Jersey City Dry Docks Company

In the Matter of JERSEY CITY DRY DOCKS COMPANY and INDUSTRIAL UNION OF MARINE AND SHIPBUILDING WORKERS OF AMERICA, LOCAL No. 151 Case No. B-1256.-Decided August 29, 1939 Ship Repairing Industry-Investigation of Representatives : controversy con- cerning representation of employees : employer's refusal to grant recognition of union-Unit Appropriate for Collective Bargaining : woodworkers, laborers, dock bands, and miscellaneous help employed by the Company, excluding time- keepers, supervisors, foremen, watchmen , and other salaried employees- Representatives: eligibility to participate in choice: all employees who received any pay for work during each of the 3 months preceding date of Direction- Election Ordered Mr. Albert Ornstein and Mr. Richard J. Hickey, for the Board. Mr. Harry A. Stiles, of Jersey City, N. J., for the Company. Mr. Samuel L. Rothbard and Mr. Frank Kelly, both of Newark, N. J., for the Union. Mr. F. Hamilton Seeley, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE On June 14, 1938, Industrial Union of Marine and, Shipbuilding Workers of America, Local No. 15, herein called the Union, filed with the Regional Director for the Second Region (New York City) a petition alleging that a question affecting commerce had arisen concerning the representation of employees of Jersey City Dry Docks Company, Jersey City, New Jersey, herein called the Company, and requesting an investigation and certification of representatives pur- suant to Section 9 (c) of the National Labor Relations Act, 49 Stat. 499, herein called the Act. On October 11, 1938, the National Labor Relations Board, herein called the Board, acting pursuant to Section 9 (c) of the Act, and Article III, Section 3, of National Labor Rela- i variously designated in certain of the formal papers as International Union of Marine and Shipbuilding Workers of America, Local # 15, and as I. U. M. S. W. A. Local #15. The complete name of this union Is Industrial Union of Marine and Shipbuilding Workers of America, Hoboken Local No. 15, affiliated with C. I. O. 14 N. L. R. B., No. 98. 1190 JERSEY CITY DRY DOCKS COMPANY 1191 tions Board Rules and Regulations-Series 1, as amended, ordered an investigation and authorized the Regional Director to conduct it and to provide for an appropriate hearing upon due notice. On October 20, 1938, the Regional Director issued a notice of hearing, copies of which were duly served upon the Company and the Union.2 Pursuant to notice, a hearing was held on February 14 and 15, 1939, at New York City, before Samuel H. Jaffee, the Trial Exam- iner duly designated by the Board. The Company, the Union, and the Board were represented by counsel. All parties participated in the hearing and were afforded full opportunity to be heard, to exam- ine and cross-examine witnesses, and to introduce evidence bearing upon the issues. During the course of the hearing the Trial Ex- aminer made several rulings on motions and on objections to the admission of evidence. The Board has reviewed the rulings of the Trial Examiner and finds that no prejudicial errors were committed. The rulings are hereby affirmed! On March 25, 1939, the Company filed a brief in which it denied being engaged in commerce within the meaning of Section 2 (6) and (7) of the Act, and denied that the Union represented a majority of its employees. At the conclusion of the hearing on February 15, 1939, counsel for the Board reserved the right to move to reopen the record to adduce further testimony or evidence pertaining to any of the issues involved in this proceeding. This motion was granted by the Trial Examiner without objection by counsel for the Company. On May 6, 1939, the Board found that the record was inadequate for a deter- mination of the issues raised by the petition for investigation and certification, and pursuant to Article III, Section 8, of its Rules and Regulations-Series 1, as amended, ordered that the record be reopened and that a further hearing be held, and authorized the Regional Director to provide for it upon due notice." On April 25, 1939, the Regional Director duly served all parties with notice of a further hearing in this proceeding. Pursuant to notice, a further hearing was held on May 8, 1939, at New York City, before James C. Paradise, the Trial Examiner duly designated by the Board. The Company, the Union, and the Board were represented by counsel and participated in the hearing. Full opportunity to be heard, to examine and cross-examine wit- nesses, and to introduce evidence bearing upon the issues was afforded all parties. During the course of the hearing the Trial Examiner S A copy of the notice of hearing was also served upon General Maintenance Workers Union, Local 1474, I. L. A., but that organization did not appear and took no part in the proceedings. s The Board 's Order incorrectly designated the case by its Board number , R-1256. On June 26, 1939 , all parties stipulated that a corrected Order should be substituted in the record. The correct number was I1-R-1004. 190935-40-vol. 14-76 1192 DECISIONS OF NATIONAL LABOR RELATIONS BOARD made several rulings upon motions and upon objections to the admis- sion of evidence. The Board has reviewed the rulings of the Trial Examiner and finds that no prejudicial errors were committed. The rulings are hereby affirmed. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT I. THE BUSINESS OF THE COMPANY Jersey City Dry Docks Company, a New Jersey corporation, has its principal office and place of business in Jersey City, New Jersey, and is engaged in the business of operating a dry dock and in the repairing, reconditioning, and servicing of marine vessels engaged'in interstate commerce. These vessels are of many types; principally, tugboats, lighters, barges, pile drivers, and similar harbor craft. The vessels so repaired by the Company are themselves directly engaged in commerce, between the State of New York and the State of New Jersey. In addi- tion, they are engaged in the myriad activities that are essential to the existence of a world port. For example, tugboats tow the barges from pier to ocean-going steamers; floating grain elevators are necessary to transfer grain from barge to steamer or steamer to barge ; lighters carry general cargo to and from steamers that are engaged in coastal or foreign trade; pile drivers build or repair the piers on the North River where the "Queen Mary" and the "Normandie" dock. All these serv- ices are vital and necessary to the uninterrupted flow of commerce through the Port of New York. During 1938 the Company repaired the U. S. Coast Guard Cutters "Calumet," "Hudson," "Navesink," "Tuckahoe," and "Raritan." These vessels police the entire harbor, keep the channel open, see that the ships are anchored at their desig- nated berths, and do general traffic duty. The principal raw materials used by the Company are lumber, bolts, spikes, iron, and steel. These items constitute about 90 per cent of the purchases of the Company. Although practically all of these raw materials are purchased from local jobbers, they originate in large part in States other than the State. of New Jersey. During the year 1937, the business of the Company amounted to approximately $100,000. The Company's operations are performed upon instrumentalities of interstate and foreign commerce. Such operations have a close, inti- mate, and substantial relation to trade, traffic, commerce, and trans- portation among the several States and with foreign countries. H. THE ORGANIZATION INVOLVED Industrial Union of Marine and Shipbuilding Workers of America, Local No. 15, is a labor organization affiliated with the Congress of Industrial Organizations, admitting to membership all production and . JERSEY. CITY DRY DOCKS COMPANY 1193 maintenance workers in the shipyards, ship repair yards, and tank- cleaning yards, excluding office and clerical help, foremen, watchmen, and, generally, salaried employees. III. THE QUESTION CONCERNING REPRESENTATION During the spring and summer of 1938, the Union conducted an in- tensive organizing campaign among the employees of the Company, and a number of the employees signed union application cards. On April 21, 1938, the Union wrote a letter to the Company, in which it claimed to represent a majority of the employees and requested an appointment in order to negotiate. The Company replied, by letter dated June 11, 1938, that it had no knowledge of the truth of the Union's claims. The Union representative, both before and after writing the letter, made several attempts to obtain an interview with the Company's president but each time was informed that he was out of town. Being unable to obtain recognition from the Company, the Union filed its petition on June 14, 1938. At the hearing and in its brief filed with the Board, the Company has contested the Union's claim that it represents a majority of the employees of the Company. We find that a question has arisen concerning representation of employees of the Company. IV. THE EFFECT OF THE QUESTION CONCERNING REPRESENTATION UPON COMMERCE We find that the question concerning representation which has arisen, occurring in connection with the, operations of the Company described in Section I above, has a close, intimate, and substantial rela- tion to trade, traffic, commerce, and transportation among the several States and with foreign countries, and tends to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. TIIE APPROPRIATE UNIT The Union in its petition for investigation and certification claimed that all woodworkers, iron orkers, laborers, dock. hands, and miscel- laneous help, with the exception of timekeepers, supervisors, foremen, watchmen, and other salaried employees, constitute a unit appropriate for the purposes of collective bargaining. The Company raised no objection to this unit. At the first hearing, the Union objected to the inclusion of a work- ing foreman named Quinnwithin the unit. It appears that Quinn does not have the power to hire or discharge any of the employees, but it is admitted that he reports any improper work to the yard superin- tendent.- His work is largely directional and there is not any,week during some portion of which he does not direct the work of other 1194 DECISIONS OF NATIONAL LABOR RELATIONS. BOARD employees. In view of these facts, we shall exclude him from the unit. We find that the woodworkers, ironworkers, laborers, dock hands, and miscellaneous help employed by the Company, excluding Quinn, timekeepers, supervisors, foremen, watchmen, and other salaried em- ployees, constitute a unit appropriate for the purposes of collective bargaining and that said unit will insure to employees of the Com- pany the full benefit of their right to self-organization and collective bargaining and will otherwise effectuate the policies of the Act. VI. THE DETERMINATION OF REPRESENTATIVES During the first hearing the Union introduced into evidence 40 union application cards signed by employees of the Company during the months of April through September 1938. The Union further introduced the union membership records of these employees. How- ever, no check was made of these cards against the company pay roll and as a result it is uncertain what proportion these cards bear to the total number of those employed by the Company. During the month of April- 1938, there were approximately 50 persons employed, but during the following month over 100 persons were employed by the Company. We find that an election by secret ballot is necessary to resolve the question concerning representation. The nature of the Company's business and the work of the em- ployees are fluctuating and irregular. It appears that the number of persons employed by the Company varies considerably from week to week. Although the busiest season generally appears to be during the summer months, the business is not strictly seasonal since peak periods and slack periods cannot be foreseen, nor do they occur in any particular season of the year. The evidence further shows that almost all of the employees of the Company are "shaped up" or hired every morning as needed for the day's work. If there is no work, available for a particular individual, he may seek employment else- where during the day and return whenever he wishes to attempt again to get work with the Company. The Union requests that in the event an election is ordered by the Board, all employees within the appropriate unit who had worked one or more days during the month of May 1938, be eligible to vote; or secondly, that the basis of eligibility should include all those em- ployees who had worked 1 day in April or May 1938. If these pref- erences are deemed impractical by the Board, the Union would desire that the basis of eligibility be broadened to include all those who had worked 5 days during the first 6 months of 1938. The Company did not submit any suggestions regarding eligibility. Because of the length of time which has elapsed, we feel that a period closer to the date of this Direction should be used as a basis JERSEY CITY DRY DOCKS COMPANY 1195 for determining eligibility to vote in an election . We find that an election by secret ballot among employees in the appropriate unit who have received any pay for work during each of the 3 months preceding the date of this Direction , will most satisfactorily and ex- peditiously determine the question concerning representation. Upon the basis of the above findings of fact and upon the entire record in the case, the Board makes the following : CONCLUSIONS OF LAW 1. A question affecting commerce . has arisen concerning the repre- sentation of employees of Jersey City Dry Docks Company, Jersey City, New Jersey, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the National Labor Relations Act. 2. All of the woodworkers, ironworkers, laborers, dock hands, and miscellaneous help, employed by the Company, excluding Quinn, timekeepers, supervisors, foremen, watchmen, and other salaried em- ployees, constitute a unit appropriate for the purposes of collective bargaining, within the meaning of Section 9 (b) of the National .Labor Relations Act. DIRECTION OF ELECTION By virtue of and pursuant to the power vested in the National Labor Relations Board by Section 9 (c) of the National Labor Re- lations Act, 49 Stat. 449, and pursuant to Article III, Section 8, of National Labor Relations Board Rules and Regulations-Series 2, it is hereby DIRECTED that, as part of the investigation authorized by the Board to ascertain representatives for the purpose of collective bar- gaining with Jersey City Dry Docks Company, Jersey City, New Jersey, an election by secret ballot shall be conducted within twenty (20) days from the date of this Direction, under the direction and supervision of the Regional Director for the Second Region, acting in this matter as agent for the National Labor Relations Board, and subject to Article III,. Section 9, of said Rules and Regulations, among all of the woodworkers, ironworkers , laborers, dock hands, and miscellaneous help employed by the Company, excluding Quinn, timekeepers, supervisors, foremen, watchmen , and other salaried employees, who received any pay for work for the Company during each of the 3 months next preceding the date of this Direction to clletermine whether or not they desire to be represented by Industrial Union of Marine and Shipbuilding Workers of America, Local No. 15, for the purposes of collective bargaining.