Todd-Johnson Dry Docks Inc.

In the Matter of TODD-JOHNSON DRY DOCKS INC. and INDUSTRIAL UNION OF MARINE AND SHIPBUILDING WORKERS OF AMERICA, LOCAL No. 29 Case No. R-754.-Decided December 09, 1939 Shipbuilding and Repairing Industry-Investigation of Representatives: con- troversy concerning representation of employees: rival organizations; petition for investigation and certification of representatives filed by organization with which the Company refused to bargain, after "certification" of another organ- ization by the Regional Director without notice to this petitioner ; contract terminable upon 7 days' notice by either party and in operation for more than 1 year held no bar to present investigation; strike; controversy concerning appropriate unit; controversy concerning eligibility to vote in election of repre- sentatives-Unit Appropriate for Collective Bargaining: all employees excluding specific clerical and supervisory employees ; nature of work ; history of labor organization and collective bargaining with the Company, including an existing agreement on yard basis with labor organization now contending for craft basis-Representatives: eligibility to participate in choice : employees in the appropriate unit who worked at least 25 per cent of the total working days on which the Company operated during the period of 12 weekly pay-rolls immediately preceding the date of the Direction of Election and who, in addition, drew pay at least 3 times in said 12 weeks, once in each group of 4 successive weekly pay rolls in the 12-week period-Election Ordered Mr. Samuel Lang, for the Board. Monroe & Lemann, by Mr. Nicholas Callan, of New Orleans, La., for the Company. Mr. Yelverton Cowherd, of Birmingham, Ala., Mr. Anthony Wayne Smith, of Washington, D. C., and Mr. Arthur Leary, of New Orleans, La., for the Industrial. Mr. Bentley G. Byrnes, of New Orleans, La., for the Intervenors. Mr. David Kaplan and Mr. John P. Frey, of Washington, D. C., for the I. A. M. Mr. Herbert S. Thatcher, of Washington, D. C., for the A. F. of L. Mr. A. G. Koplow, of counsel to the Board. SUPPLEMENTAL DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE On September 4, 1937, Metal Trades Council of New Orleans, sub- ordinate to the Metal Trades Department of the American Federa- 18 N. L. R. B., No. 105. 973 974 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tion of Labor, herein called the M. T. C.,1 filed with the Regional Director for the Fifteenth Region (New Orleans, Louisiana), herein called the Regional Director, a petition alleging that a question affecting commerce had arisen concerning the representation of em- ployees of Todd-Johnson Dry Docks Inc., New Orleans, Louisiana, herein called the Company,2 and requesting an investigation and cer- tification of representatives pursuant to Section 9 (c) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. The petition alleged that all the employees of the Company, excluding clerical and supervisory employees, constituted an appropriate unit and stated that there were no other known individuals or labor organizations who claimed to represent any of the employees in such unit. There- after, pursuant to an agreement between the Company, the M. T. C., and the Regional Director, authorization cards submitted by the M. T. C. were checked by the Regional Director with a list submitted by the Company containing the names of all employees of the Com- pany on the pay roll of August 31, 1937, excluding clerical employees, the general superintendent, and the assistant general superintendent. The check disclosed that of the 838 persons whose names appeared on the list submitted by the Company, 489 had signed authorizations designating the M. T. C. as bargaining representative. On September 16, 1937, the Regional Director "certified" the M. T. C. as the exclu- sive bargaining representative of all employees of the Company, exclusive of those in a clerical or supervisory capacity. Shortly thereafter the Company and the M. T. C. began to negotiate relative to terms and conditions of employment. Following such negotiations the Company sent the M. T. C. a letter dated January 25, 1938, setting forth terms and conditions of employment for all industrial em- ployees which the letter stated. had been agreed upon, and stating that such terms and conditions were to become effective immediately and to remain in effect until terminated by either party on 7 days' written notice. By letter to the Company dated January 26, 1938, the M. T. C. stated that it accepted the proposals set forth in the Company's letter dated January 25, 1938. On March 14, 1938, Industrial Union of Marine and Shipbuilding Workers of America, Local No. 29, herein called the Industrial,' filed with the said Regional Director a petition alleging that a question affecting commerce had arisen concerning the representation of em- ' In the petition the name of the petitioner was incorrectly stated as "New Orleans Metal Trades Council", but the correction was made at the hearing. 2 In the petition and on other occasions the Company was incorrectly designated, but the correction was made at the hearing. 3Industrial Union of Marine and Shipbuilding Workers of America, Local No. 29, was incorrectly designated as Industrial Union of Marine and Shipbuilding Workers of America in the petition and the order directing an investigation and bearing, but the correction was made at the hearing. TODD, JOHN'SON DRY DOCKS INCORPORATED 975 ployees of the Company and requesting an investigation and certifi- cation of representatives pursuant to Section 9 (c) of the Act. On April 5, 1938, the National Labor Relations Board, herein called the Board, after a preliminary investigation and report had been made by the Regional Director, issued its order dismissing the petition. On April 16, 1938, after a reconsideration of the matter, the Board re- voked its order dismissing the petition and, acting pursuant to Section 9 (c) of the Act and Article III, Section 3, of National Labor Relations 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 April 23, 1938, the Regional Director issued a notice of hearing, and on May 2, 1938, a notice of postponement of hearing, copies of both of which were duly served upon the Company, upon the Indus- trial, and upon the M. T. C. Pursuant to notice, a hearing was held on May 5, 6, 7, 9,10,11, and 13,1938, at New Orleans, Louisiana, before Henry J. Kent, the Trial Examiner duly designated by the Board. The Board, the Company, the Industrial, and the M. T. C. were repre- sented by counsel and participated in the hearing. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues was afforded all parties. At the beginning of the hearing, its motion to intervene having been granted, the M. T. C. excepted to the proceeding on the ground that the Board had no right to interfere with the contract between the M. T. C. and the Company; requested that the act of the Board in revoking the order dismissing the petition of the Industrial be declared unauthorized; and moved that the petition of the Industrial be dis- missed with prejudice. At the close of introduction of evidence on behalf of the Industrial, the motion for a dismissal of the Industrial's petition was renewed. The Trial Examiner denied the motion with- out prejudice. Relying upon its contention that the Board incorrectly revoked its order dismissing the Industrial's petition and that such petition should *be dismissed, the M. T. C. rested without stating its position relative to the appropriate bargaining unit and other issues raised at the hearing. Upon request of the M. T. C. and two of the labor organizations comprising it, and pursuant to notice, a hearing was held before the Board on June 2, 1938, in Washington, D. C., for the purpose of oral argument. The Industrial, the M. T. C., the International Association of Machinists, herein called the I. A. M., which is one of the labor organizations comprising the M. T. C., and the American Federation of Labor, herein called the A. F. of L., with which the M. T. C. is affiliated, were represented by counsel and participated in the oral argument. The M. T. C., the I. A. M., and the A. F. of L. asked at 976 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the oral argument that the petition of the Industrial be dismissed, contending that such action should be taken in view of the "certifica- tion" which the Regional Director had issued on September 16, 1937, and in view of the agreement between the M. T.-C. and the Company. The three labor organizations also stated that if the Board did not dismiss the petition the employees in certain craft groups should be established as separate bargaining units and that the determination of representatives should be based upon an eligibility period differing from that which the Industrial claimed as appropriate. They re- quested that, in the event the petition of the Industrial was not dis- missed, the case be reopened and a further hearing be had for the purpose of adducing additional evidence regarding the appropriate bargaining unit and the eligibility period. On December 14, 1938, the Board issued its Decision and Order in the case,4 in which it held that neither the prior "certification" of the M. T. C. by the Regional Director nor the agreement between the M. T. C. and the Company constituted a bar to a designation of bar- gaining representatives at that time, under all the circumstances of the case, and ordered that the Regional Director provide for a second appropriate hearing upon due notice to take further evidence in the case in accordance with the Decision. On January 11, 1939, pursuant to said order, the Regional Director issued a notice of hearing, and on January 17 and 19, 1939, notices of postponement of hearing, copies of each of which were duly served upon the Company, the Industrial, the M. T. C., the I. A. M., the A. F. of L., and the International Brotherhood of Boiler Makers, Iron Shipbuilders, Welders and Help- ers of America, herein called the I. B. B. M.,5 which is one of the labor organizations comprising the M. T. C. On January 13, 1939, the M. T. C. filed with the Board its written motion for a continuance of the hearing. The motion was never ruled upon, but the hearing was postponed twice thereafter and the M. T. C. did not press its motion. Pursuant to notice, a second hearing was held on February 6, 7 and 8, 1939, at New Orleans, Louisiana, -before William R. Ringer, the Trial Examiner duly designated by the Board. The Board, the Company, the Industrial, the M. T. C., and 10 individual locals of labor organiza- tions affiliated with the M. T. C., were represented by counsel and participated in the second hearing. The 10 locals were : International Brotherhood of Boiler Makers, Iron Shipbuilders, Welders and Help- ers of America, Local Union No. 37, herein called I. B. B. M. Local No. 37; International Association of Machinists, Local Union No. 37, * 10 N. L. It. B. 629. 6 International Brotherhood of Boiler Makers , Iron Shipbuilders , Welders and Helpers of America was incorrectly designated Boiler Makers, Iron Shipbuilders , Welders and Helpers of America, in its motion to intervene , but the correction was made at the hearing. TODD-JOHNSION; DRY DOCKS INOOiR.PORATED 977 herein called I. A. M. Local No. 37; United Brotherhood of Carpenters and Joiners of America, Local Union 1846, herein called Local No. 1846; Electrical Workers Local Union No. 130, herein called Local No. 130; International Hod Carriers, Building and Common Laborers' Union, Local Union No. 689, herein called Local No. 689; ° Plumbers & Steamfitters Local Union No. 60, herein called Local No. 60; Inter- national Brotherhood of Blacksmiths, Drop Forgers & Helpers of America, Local Union No. 175, herein called Local No. 175; Inter- national Association of Sheet Metal Workers, Local Union No. 11, herein called Local No. 11; International Association of Operating Engineers, Local Union No. 406, herein called Local No. 406; Painters, Paper Hangers & Decorators of America, Local Union No. 1244, herein called Local No. 1244. Full opportunity to be heard, to ex- amine and cross-examine witnesses, and to introduce evidence bearing on the issues was afforded all parties. At the second hearing counsel for the M. T. C., which had previously intervened in the proceedings, was allowed to amend his original ap- pearance so that he appeared as counsel for the M. T. C. and each individual union representing employees at the Company forming part of the M. T. C. The M. T. C. and the aforesaid individual unions forming part thereof will be referred to herein collectively as the Intervenors. At the commencement of the hearing the Inter- venors filed a written motion to dismiss the proceeding. The Trial Examiner denied it without prejudice. This ruling is hereby affirmed. On September 16, 1939, the Board, having duly considered the matter issued its Order Reopening Record, Remanding Proceeding to Re- gional Director, and Authorizing Regional Director to Conduct Fur- ther Hearing, in which it ordered that the record be reopened for the purpose of giving the parties an opportunity to present facts which occurred subsequent to the hearing held on February 6, 7, and 8, 1939, and to present facts in addition to those contained in the then present record, and ordered the proceeding remanded to the said Regional Director for the purpose of conducting such further hear- ing. On September 23, 1939, pursuant to said Order, the Board issued a notice of hearing, and on October 10, 1939, the Regional Director issued a notice of postponement of hearing, copies of each of which were duly served upon the Company, the Industrial, the A. F. of L., the M. T. C., the I. A. M., and the I. B. B. M. The notice of hearing was also served upon the other Intervenors in the case. Pursuant to notice, a third hearing was held on October 23, 1939, before Horace A. Ruckel, the Trial Examiner duly designated by the Board. The Board, the Company, the Industrial, and the Intervenors were repre- e International Hod Carriers, Building and Common Laborers ' Union , Local Union No. 689, was incorrectly designated Hod Carriers Building & Construction Laborers, Local Union No. 689, in its motion to intervene. Correction was made by motion at the hearing. 978 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sented by counsel and participated in the third hearing. Full oppor- tunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues was afforded all parties. At the commencement of the third hearing counsel for the Inter- venors again filed a written motion to dismiss the proceedings and for other relief. The Trial Examiner denied the motion. At the hear- ing counsel for all parties stipulated that except as appeared in the evidence presented at the third hearing no important changes in the facts relevant to the issues in the case had occurred in the period since the second hearing, and that with respect to the agreement repre- sented by the exchange of letters between the Company and M. T. C., on January 25 and 26, 1938, discussed more fully below, no action had been taken thereunder or as a result thereof other than what appears in the record made at the prior hearings. . During the course of each of the three hearings the Trial Ex- aminers made several rulings on motions and on objections to the admission of evidence. The Board has reviewed the rulings of the Trial Examiners and finds that no prejudicial errors were committed. The rulings are hereby affirmed. On March 9 and February 27, 1939, respectively, and again on November 9 and 24, 1939, respectively, the Industrial and the Intervenors submitted briefs and memoranda, which the Board has considered. The Intervenors, at their request, were also permitted until December 5, 1939, to submit a reply brief, but they did not avail themselves of such permission. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT I. THE BUSINESS OF THE' COMPANY Todd-Johnson Dry Docks Inc. is a Delaware corporation with its offices, shipyards, and drydocks located on the Mississippi River at New Orleans, Louisiana. It is engaged in the drydock and repair of "vessels of all flags in foreign and coast-wise trade, and boats and barges in river and inland waters trade, as well as harbor craft and Government-owned vessels." Two companies operating shipyards at New Orleans, the Todd- New Orleans Company and the Johnson Iron Works, consolidated to form Todd-Johnson Dry Docks Inc., which was incorporated on De- cember 20, 1935, with a capitalization of $1,873,000. Approximately 60 per cent of the stock of the Company is in the hands of Tietjen & Lang Dry Dock Company, Hoboken, New Jersey, a subsidiary of Todd Shipyards Corporation, New York City. The Company now operates two plants or yards, some 6 miles apart, called "Upper Plant" and "Lower Plant," formerly the yards of Johnson Iron Works and TODD-JOHNSON DRY DOCKS INCORPORATED 979 Todd-New Orleans Company respectively. Most of the work is per- formed at the lower plant, the upper plant being used largely for "overflow" work. The two yards operate as one unit, the men being hired at the same place and the workmen being interchangeable, except that no colored labor is employed at the upper plant. During the year-1938 the Company's pay roll amounted to $980,267.54 and it purchased raw materials amounting the $498,068.51, all of which raw materials originated outside the State of Louisiana with the exception of some minor amounts of lumber. The total volume of business in 1938 was $2,042,775.33. The percentages of work done on various types of vessels during 1938 were as follows : Percent Foreign flag, foreign commerce----------------------------- 241/2 American flag, foreign commerce--------------------------- 55 Coastwise vessels------------------------------------------ 3 River and inland waterways------------------------------- 11 Harbor--------------------------------------------------- 2 U. S. Government----------------------------------------- 2 All other------------------------------------------------- 21/2 From January 1 to September 30, 1939, the Company's pay roll amounted to $816,000, and its purchases of raw materials were valued at $511,000. Most of the raw materials originated outside the State of Louisiana. The total volume of business during this period was $1 480 000 divided as follows : , , , Percent Foreign flag, foreign commerce------------------------------- 28 American flag in foreign commerce, coastwise, river, and inland waterways, harbor; and U. S. Government------------------ 71 All other --------------------------------------------------- 1 II. THE ORGANIZATIONS INVOLVED Industrial Union of Marine and Shipbuilding Workers of Amer- ica, Local No. 29, is a labor organization affiliated with the Congress of Industrial Organizations, admitting to its membership all produc- tion and maintenance employees of the Company except clerical, office, and supervisory employees. Metal Trades Council of New Orleans, subordinate to the Metal Trades Department of the American Federation of Labor, is a labor organization affiliated with the American Federation of Labor. It is composed of representatives of the locals of 21 international unions affiliated with the American Federation of Labor. Evidence indi- cates that 12 of the locals had as members employees of the Company. The nine of these which intervened in the case are: International Brotherhood of Boiler Makers, Iron Shipbuilders, Welders and Help- ers of America, Local Union No. 37; International Association of Machinists, Local Union No. 37; United Brotherhood of Carpenters 980 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and Joiners of America, Local Union 1846; Electrical Workers Local Union No. 130; International Hod Carriers, Building and Common Laborers' Union, Local Union No. 689; Plumbers & Steamfitters Local Union No. 60; International Brotherhood of Blacksmiths, Drop Forgers & Helpers of America, Local Union No. 175; International Association of Sheet Metal Workers, Local Union No. 11; and Inter- national Association of Operating Engineers, Local Union No. 406. Painters, Paper Hangers & Decorators of America, Local Union No. 1244, another local of an international union affiliated with the M. T. C. and the A. F. of L., also intervened but did not have any membership among the Company's employees. There are several other locals which admit to membership certain employees of the Company, but they did not intervene in the case. The requirements for eligibility to membership in the various locals mentioned above are not set forth clearly in the record. III. THE QUESTION CONCERNING REPRESENTATION As stated above, following the check of authorizations of the M. T. C. against pay-roll records in September 1937, the M. T. C. proceeded to bargain with the Company, such bargaining culminating in a letter from the Company dated January 25, 1938, setting forth terms and conditions of employment for all its industrial employees. There- after the Company refused to bargain collectively with representatives of the Industrial when requested to do so, although it was willing to deal with members of the Industrial as individuals. On March 14, 1938, the Industrial filed its petition with the Board, and a hearing was held in May 1938. The record contains evidence indicating that the organizational competition between the M. T. C. and the Indus- trial was attended with considerable acrimony and even physical violence. Inter-union strife was at least partially responsible for the closing of the Company's plant from April 21 to May 13, 1938. At the hearings the Industrial and the Intervenors introduced lists showing that they represented substantial numbers of the Company's employees. There was sharp disagreement on the questions of appro- priate unit and eligibility to vote in an election., As found in the Decision and Order dated December 14, 1938, the agreement between the M. T. C. and the Company does not constitute a bar to this proceeding. This agreement may be terminated by either party on 7 days' written notice and it has been in operation for more than 1 year.7 We find that a question has arisen concerning representation of employees of the Company. V 10 N. L. R. B. 629, 632. TODD-JOHNSON DRY DOCKS INCORPORATED 981 IV. THE EFFECT OF THE QUESTION CONCERNING REPRESENTATION UPON COMMERCE We find that the question concerning representation which has arisen, occuring in connection with the operations of the Company, described in Section I above, has a close, intimate, and substantial re- lation to trade, traffic, and commerce among the several States, and between the several States and foreign countries, and tends to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE APPROPRIATE UNIT The unions and the Company are agreed, and we find, that the em- ployees of the Company should not be segregated into separate units, by virtue of their employment in the lower plant or the upper plant, herein together called the yard. The Industrial desires a single unit to comprise all the employees of the Company excluding clerical and supervisory employees.8 The Intervenors urge that we designate as appropriate the.following 18 units : 1. Blacksmiths. 2. (a) (b) (c) (d) Machinists in the shop. Machinists on board ship. Tool room employees. Chauffeurs who work as garage mechanics. 3. Pipefitters. 4. (a) (b) (c) Ironworkers, or boilermakers. Electric and acetylene welders. Loftsmen. 5. (a) Carpenters. (b) Wood caulkers. 6. Tin smiths, sheet metal, or light iron workers. 7. Electricians. 8. (a) Colored laborers. (1) Yard hands. (2) Dock hands. (3) General colored labor. (4) Cleaning gang. (b) White labor. (c) White dock hands. s The president of the Company , in reply to a question at the bearing , stated that in his opinion the common laborers in the yard constitute one appropriate unit and the mechanics and helpers in the various crafts constitute one or several other appropriate units. 982 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 9. (a) Locomotive crane operators. (b) Boiler firemen. 10. Chauffeurs and truck drivers, except those working as garage mechanics. 11. Patternmakers. 12. Brass foundry workers. 13. Floating equipment crew. 14. Brick layers. 15. Insulation workers. 16. Cement mixers. 17. Hose and cable repairmen. 18. Store-room employees. The Company pay roll divides the employees into various classes according to the type of work they perform . These classes, however, do not correspond with the 18 units for which the Intervenors con- tend. In some instances a single grouping on the Company's pay roll includes employees divided into two units by the Intervenors. Thus the Company classes as "Chauffeurs" the employees listed in both numbers "2 (d)" and "10" above , and classes as "Tool Room" the em- ployees listed in both numbers "2 (c)" and "17" above. In other in- stances the Company classifies under two or more headings the employees grouped by the Intervenors into one proposed unit. This is true of machinists in the shop and machinists on board ship, who are classified separately on the pay roll but are both placed by the Inter- venors in number "2", above , together with some of the toolroom employees and chauffeurs. The agreement effected by means of the exchange of letters between the Company and the M. T. C. on January 25 and 26, 1938, provides that "Employees will be assigned to work mutually recognized as work belonging to their respective crafts, and regularly performed by employees of that craft in the past. Incidental work is excepted." The Company is engaged in the drydock and repair of vessels, some of the work being done aboard ship and some of it on shore . Skilled workers of several types, together with general . helpers and common laborers, work under a common foreman, cooperate with each other, and perform their several tasks simultaneously . It is not uncommon for an employee who is within one of the 18 categories suggested by the Intervenors on one working day to be found in others of these 18 categories on succeeding days; that is, the number and identity of employees within these respective categories change from day to day. The recent history of labor organization and collective bargaining has been on the basis of a yard unit . In its original petition for investigation and certification of representatives , filed on September 4, 1937, the M. T. C claimed as the appropriate unit the identical unit now sought by the Industrial. The authorization cards turned TO'IlD-JOHNSON DRY DOCKS INCORPORATED 983 over to the Regional Director by the M. T. C. for check against the Company's pay roll authorized the M. T. C. and not a particular affili- ated union to represent the signer. On September 16, 1937, the Regional Director "certified" the M. T. C. as the exclusive agency for the broad unit now desired by the Industrial. Thereafter the M. T. C. and the intervening unions affiliated with it proceeded to bargain with the Company on the basis of a yard unit. The letter from the Company dated January 25, 1938, which concluded a period of nego- tiation between it and the M. T. C., is addressed to the M. T. C. as "Bargaining Agents for all Industrial Employees" of the Com- pany, sets forth, inter alia, certain hours of work "for all classes of labor," and contains many specific provisions pertaining to working conditions for all classes of employees in the yard. The petitions which the Intervenors circulated in the yard after the Board re- scinded its order dismissing the petition of the Industrial, either request the Board "not to disturb recognition and certification granted . . . to the American Federation of Labor organizations last September," which was for the broad unit, or state that "We are on strike in support of our bargaining agency, the New Orleans Metal Trades Council of the American Federation of Labor for a closed shop agreement." For the reasons set forth in the separate opinions below, we find that the yard unit is the appropriate one in this case. The Industrial and the Intervenors agree and we find, that the employees listed in Appendix A, appended hereto, are either clerical or supervisory employees and should be excluded from the appro- priate unit. The Industrial and the Intervenors agree and we find that the following employees should be included in the appropriate unit : (1) storeroom employees and members of the floating equipment crew, whether they are paid on a salary or an hourly basis, (2) em- ployees who are paid on a piece-work rather than an hourly basis but who in other respects are in the same position as hourly paid employees. The Intervenors desire that we include leadermen in the appro- priate unit.e The Industrial agrees that hourly paid and off-and- on leadermen be included but argues that salaried leadermen should be excluded. Leadermen act as gang bosses and have the authority to discharge subject to the approval of their foremen. Although all three types of leadermen are subject to demotion in slack seasons, salaried leadermen have more secure tenure and accordingly are closer to management than hourly paid and off-and-on leadermen, Y Leadermen are also referred to in the record as "snappers" and "rushers ." We shall refer to them herein as leadermen. 283029-41-vol. 18-63 984 DECISIONS OF NATIONAL LABOR RELATIONS BOARD because salaried leadermen are not subject to temporary lay-offs .necessitated by the fluctuation in work. With respect to the leader- men we see no reason for departing from our usual rule that minor supervisory employees will be included if so desired by the labor organizations involved 1° and excluded if so desired by one or more of the labor organizations involved."'- Since both the Industrial and the Intervenors agree upon the inclusion of hourly paid and off-and- on leadermen we shall include them. Since there is a legitimate distinction between these two types and salaried leadermen, and the Industrial desires the exclusion of the salaried leadermen, we shall exclude them from the unit .12 The Intervenors desire that we include, and the Industrial that we exclude, foremen and assistant foremen. Foremen have the authority to hire and discharge employees. Assistant foremen may discharge employees subject to the approval of the foremen. Apply- ing our usual rule when two labor organizations disagree as to the inclusion of such supervisory employees we shall exclude foremen and assistant foremen from the appropriate unit. At the first hearing in the case the Industrial and the Intervenors wanted watchmen excluded from the unit. At the subsequent hear- ings the Industrial asked that they be included. These men, in addition to performing the customary duties of watchmen, also act in an official capacity when they are on duty alone, check the time of employees on the second and third shifts and perform other clerical duties. Because of the nature of their duties, and in accord- ance with our decisions in other cases in which there has been a dispute as to their inclusion, we find that watchmen should be ex- cluded from the appropriate unit 13 10 Matter of Campbell Machine Company, David C. Campbell and George E. Campbell, co-partners, trading as Campbell Machine Company and International Association of Machinists, Local No. 389; Shipwrights, Boatbuilders & Caulkers; and International Brotherhood of Electrical Workers, Local No. 569, 3 N. L. R. B. 793; Matter of Jones Lumber Company, West Oregon Lumber Company, Clark & Wilson Lumber Company, B. F. Johnson Lumber Company, Portland Lumber Mills, Inman-Poulsen Lumber Com- pany, and Eastern & Western Lumber Company and Columbia River District Council of Lumber and Sawmill Workers' Union No. 5, etc., et al ., 3 N. L. R. B. 855; Matter of Pier Machine Works, Inc. and Industrial Union of Marine and Ship Building Workers of America, Local No. 13, 7 N. L. R. B. 401. "Matter of Pacific Manifolding Book Company, Inc. and International Printing Press- men and Assistants' Union of North America, 3 N. L. R. B. 551; Matter of Friedman Blau Farber Company and International Ladies' Garment Workers' Union, Local No. 295, 4 N. L. R. B. 151 ; Matter of International Harvester Company Tractor Works and Farm Equipment Workers Association Division of A. A. I. S! & T. W. N. A. Lodge No. 1320, C. I. 0., 5 N. L. R. B. 192; Matter of Rem Manu facturing Co., Inc. and A. F. of L. Federal Local Union No. 20893, 7 N. L. R. B. 95. 22 Cf. Matter of Alabama Drydock & Shipbuilding Co. and Industrial Union of Marine and Shipbuilding Workers of America, Local No. 18, 5 N. L. R. B. 149. Is See Matter of International Harvester Company Tractor Works and Farm Equipment Workers Association Division of A. A. I. S. & T. W. N. A. Lodge No. 1320, C. I. 0., 5 N. L. R. B. 192; Matter of Todd Shipyards Corporation, Robins Dry Dock and Repair Co. and Tietjen and Lang Dry Dock Co . and Industrial Union of Marine and Shipbuilding Workers of America, 5 N. L. R. B. 20. TODD-JOHNSION DRY DOCKS INCORPORATED 985 The Industrial asks to have the porter included in the unit; the Intervenors desire his exclusion. No description of his duties or reasons for his exclusion appear in the record. He is paid on an hourly basis like most production and maintenance employees. We may assume that he is part of the regular maintenance staff and shall direct that he be included in the appropriate unit. The Industrial requests the inclusion of the safety engineer; the Intervenors seek his exclusion. He is paid on a salary basis. No description of his duties or reasons for his exclusion appear in the rec- ord, but from his title and from our experience in similar cases we feel he is more closely identified with the clerical and supervisory staff than with the ordinary employees, and we shall therefore direct that he be excluded from the appropriate unit. For purposes of convenience we shall list the categories of em- ployees, about which some question has been raised, in Appendix B, appended hereto, if they are excluded from the appropriate unit, and in Appendix C, appended hereto, if they are included in it. We find that all employees of the Company excluding the employees listed in Appendixes A and B, and including the employees listed in Appendix C, constitute a unit appropriate for the purposes of collective bargain- ing, and that said unit will insure to employees of the Company the full benefit of their right to collective bargaining and otherwise effectuate the policies of the Act. VI. THE DETERMINATION OF REPRESENTATIVES The number of employees on the weekly pay rolls of the Company fluctuates constantly, varying from 150 to 1700 since January 1936. At the second hearing the Industrial, I. A. M. Local No. 37, I. B. B. M. Local No. 37, Local No. 1846, Local No. 175, and Local No. 130 each introduced into evidence lists containing the names of members, ap- plicants for membership, and persons who had delegated to the said organizations the authority to represent them in collective bargaining. Local No. 60 and Local No. 689 made similar claims of authorization to represent certain employees in the plant, but introduced no lists of names by way of proof. None of the signatures of membership, appli- cation, or authorization cards was examined by counsel, nor were any of the names checked against the Company's pay rolls at the hearing. All parties presented their evidence with the tacit understanding that if the Board were to proceed to an immediate determination of bar- gaining representatives they should prefer that it be done by means of an election rather than by certification on the basis of lists intro- duced in evidence. We find that the question which has arisen con- cerning the representation of employees can best be resolved by the holding of an election by secret ballot. We shall accordingly direct that such election be held. 986 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Industrial requested that the period from November 1, 1938, through January 31, 1939, or, in the alternative, the period from May 1 through July 31, 1939, be used as a basis for determining which em- ployees shall be eligible to participate in an election. The Intervenors requested the 3-month period preceding the issuance of the Board's Direction of Election, or, in the alternative, any 3-month period of 1939. The Company suggested any 3-month period reasonably close to the date of the election. The parties agreed that any period used should begin and end on a pay-roll date. We conclude that eligibility to vote in the election may appropriately be based on the 12 weekly pay-roll periods immediately preceding the date of this Direction of Election. We shall so direct. The Industrial, the Company, and the Intervenors agreed at the hearing that in order to eliminate casual and temporary workers only those persons who had worked in each month of the 3-month eligibility period should be eligible to participate in the choice of bargaining representatives. The Industrial contended that any individual who had drawn a pay check of any size in each of the 3 months should be allowed to vote. In its brief the Industrial made the suggestion that even this requirement be relaxed in certain cases. The Company maintained that only persons who had worked 25 to 331/3% of the total working time in the 3-month period should be allowed to vote. The Intervenors asked that voting be limited to persons who had worked 331/37o of the total working time in each of the 3 months. The evidence shows that the large majority of 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 specific individual, he may seek em- ployment elsewhere for the day and return whenever he wishes to at- tempt again to get work with the Company. Since May 1938 the Company has had a policy of employing persons for work on a par- ticular day in proportion to the amount of time they worked during the few months preceding that day. Under the circumstances, we con- clude that only those persons who have worked a substantial number of hours during the 12-week eligibility period and who have received pay on a representative number of pay-roll dates should be permitted to participate in the election. We shall accordingly direct that the election be conducted among those employees in the appropriate unit who worked at least 25 per cent of the total working days on which the Company operated during the 12-week period immediately preced- ing the date of Direction of Election, and who, in addition, drew pay at least three times in said 12 weeks, once in each group of 4 successive weekly pay rolls in the 12-week period. An employee who worked for any length of time on a particular day will be considered to have worked the entire day, for purposes of this computation. TOM-JOHNS'ON DRY DOCKS IN OOiRPORATED 987 The persons eligible to participate in the election shall vote to deter- mine whether they desire to be represented by Industrial Union of Marine and Shipbuilding Workers of America, Local No. 29, or by Metal Trades Council of New Orleans, subordinate to the Metal Trades Department of the American Federation of Labor, for the purposes of collective bargaining, or by neither. Upon the basis of the foregoing 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 Todd-Johnson Dry Docks, Inc., New Or- leans, Louisiana, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the Act. 2. All employees of the Company excluding the employees listed in Appendixes A and B, and including the employees listed in Ap- pendix C, 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 Relations 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 purposes of collective bargaining with Todd-Johnson Dry Docks, Inc., New Orleans, Louisiana, an elec- tion by secret ballot shall be conducted as early as possible but not later than thirty (30) days from the date of this Direction of Election, under the supervision of the Regional Director for the Fifteenth Re- gion, acting in this matter as the agent of the National Labor Relations Board, and subject to Article III, Section 9, of said Rules and Regula- tions, among all employees of the Company excluding the employees listed in Appendixes A and B, and including the employees listed in Appendix C who worked at least 25 per cent of the total working days on which the Company operated during the period of 12 weekly pay rolls immediately preceding the date of this Direction of Election and who, in addition, drew pay at least 3 times in said 12 weeks, once in each group of 4 successive weekly pay rolls in the 12-week period, ex- cluding those who have since quit or been discharged for cause, to determine whether they desire to be represented by Industrial Union of Marine and Shipbuilding Workers of America, Local No. 29, or 988 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Metal Trades Council of New Orleans, subordinate to the Metal Trades Department of the American Federation of Labor, for the purposes of collective bargaining, or by neither. Separate concurring opinion of MR. EDWIN .S. SMITH : The record shows clearly that the M. T. C. in the past bargained with the Company on the basis of a single yard unit. In the petition for certification filed by the M. T. C. in September 1937, and in the agreement effected by the exchange of letters in January 1938, the M. T. C. recognized and accepted the appropriateness of that unit. It was not until the hearing in this case that the M. T. C. switched its position and asked for separate units. The record further reveals the complexities of attempting to sub- divide the yard into numerous small units. The classifications of the Company's pay roll do not correspond to the 18 units requested by the Intervenors and the record leaves ambiguous the allocation of many employees to the various units. In the absence of a previous history of bargaining upon the basis of separate units it would be an almost impossible task for the Board to define the precise limits of each particular craft unit and to determine which employees should vote in each unit. Such an effort would, furthermore, put the Board in the position of determining many issues involving the jurisdiction of the various member unions composing the M. T. C., which are more properly left to the decision of such unions themselves. For these reasons, and for reasons expressed by me in my opinions in Matter of Allis-Chalmers Manufacturing Company 14 and Matter of American Can Company,',' I am of the opinion that the appro- priate bargaining unit in this case is the yard unit. I agree with the views expressed in the Chairman's dissenting opinion relating to the argument that the Board is not "authorized by the Act" to find a unit different from that which the parties in collective bargaining have considered to be appropriate and which they have embodied in an agreement 1' Separate concurring opinion of MR. WILLIAM M. LEISERSON : When the original Decision and Order in this case was made on December 14, 1938 (10 N. L. R. B. 629) the Chairman in a. concurring opinion stated, that the order directing investigation and hearing was "improvidently made" and that the proceedings thereunder should not have been taken. I am in agreement with this view. 14 utter of Allis-Chalmers Manufacturing Company and International Union, United Automobile Workers of America, Local 248, 4 N. L. R. B. 159, 175. 15 Matter of American Can Company and Engineers Local No. 30, et al., 13 N. L. R. B. 1252. 16 See my concurring opinions in Matter of American Can Company, supra, and Matter of Milton Bradley Company and International Printing Pressmen and Assistants Union of North America (A. F. L.), 15 N. L. R. B. 938. TODD-JOHNSIONl DRY DOCKS INOOtRPORATED 989 Had the order of April 5, 1938, dismissing the petition of the In- dustrial, been allowed to stand, the Board would not now be in the position of determining a representation question a year and nine months after the petition was filed. The employees involved in the present representation dispute are now working under an agreement between the Company and the Metal Trades Council of New Orleans, affiliated with the American Federation of Labor, which covers "all industrial employees" of the Company. This agreement was made pursuant to a letter sent by the Regional Director of the Board at New Orleans to the parties "certifying," on the basis of a check of authorizations, that the M. T. C. had been designated as the exclusive bargaining representa- tive of "all Todd Johnson Ship Yard employees, exclusive of those in supervisory and clerical capacity." The M. T. C. had previously filed a petition for a certification, and in this petition it described the bargaining unit which it claimed appropriate as consisting of "All employees of the plant excepting those in clerical and/or supervisory capacity." Since the employees are now represented by the M. T. C. in a bargaining unit consisting of all industrial employees of the Com- pany and since the petition of the Industrial challenges this repre- sentation and requests that it be certified as the representative for the same bargaining unit, I do not think the Board is authorized by the Act to split up this existing and acknowledged bargaining unit and to order separate elections in a multiplicity of smaller units. It is true that the M. T. C. changed its position during the course of the proceedings and requested that the Board designate 18 separate units in place of the existing single unit. But if the Board has au- thority to split an established and acknowledged unit into 18 parts as now requested, it would of course have authority to divide the em- ployees into any number of units for voting purposes that suited its own judgment. The dissenting opinion, in fact, not only disregards the existing established unit but also rejects the 18 craft units pro- posed by the M. T. C.; it accepts nine of the proposed units and throws the rest into a single mixed unit with miscellaneous employees. It seems to me that the assumption of authority thus to rearrange existing and established units for voting purposes opens the door to gerrymandering, which I cannot believe Congress intended by the wording of the Act. The agreement between the M. T. C. and the Company does provide that "employees will be assigned to work mutually recognized as work belonging to their respective crafts and regularly performed by em- ployees of that craft in the past, incidental work excepted." This is 990 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the method by which the M. T. C. as the duly designated representa- tive of all the employees in a single unit has worked out with the Company the problem of assigning work to the different crafts. The provision is made necessary by the fact that much of the work is done by helpers who assist men of different crafts, and also because a good deal of the work is difficult to classify as between various crafts while much of it does not fall within the jurisdiction of any craft organiza- tion. The Board is not informed as to whether the subdivision of the employees into either 18 units or 10 units corresponds to the actual distribution of work among the crafts under the agreement. Any attempt of the Board to order the establishment of a multiplicity of small units is therefore bound to have the effect of changing the assignment of work among the crafts as provided in the agreement, and it is clear that the Board is without authority to change a work- assignment clause of an agreement under the guise of settling a representation dispute. I am of the opinion, therefore, that we must find the appropriate unit in the present case to be the same as the unit by which the em- ployees of the company are now represented under the existing agree- ment. The secret ballot should be taken accordingly. CHAIRMAN MADDEN, dissenting in part : I am unable to concur in that part of the decision which finds the yard unit to be appropriate for the purposes of collective bargaining. I am of the opinion that the principle of the Globe decision should be applied.'7 Employees in each of the nine crafts indicated below should be given the opportunity to determine by a secret ballot whether they wish to bargain collectively as separate units through the appropriate intervening craft unions affiliated with the M. T. C., or whether they wish to merge with other employees in an industrial unit : 1. Blacksmiths. 2. (a) (b) (c) (d) Machinists in the shop. Machinists on board ship. Tool room employees. Chauffeurs who work as garage mechanics. 3. Pipefitters. 17 The reference is to the doctrine whereby the Board has , in cases of conflict between so-called craft and industrial unions, where a union that has historically bargained on a craft basis has shown substantial membership among a group of craft employees and has requested the establishment of a craft unit, either established the craft group as a separate unit or permitted the craft employees to vote separately to determine whether they are to be in a separate unit or to be merged with other employees in a broader unit. See Matter of The Globe Machine and Stamping Co. and Metal Polishers Union, Local No. 3, et al., 3 N. L. R. B. 294, and subsequent cases. TO'D'D.-JOHNS'ONI DRY DOCKS INCORPORATED 991 4. (a) (b) (c) Ironworkers, or boilermakers. Electric and acetylene welders. Loftsmen. 5. (a) (b) Carpenters. Wood caulkers. 6. Tin smiths, sheet metal, or light iron workers. 7. Electricians. 8. (a) Colored laborers. (1) Yard hands. (2) Dock hands. (3) General colored labor. (4) Cleaning gang. (b) White labor. (c) White dock hands. 9. (a) Locomotive crane operators. (b) Boiler firemen. Other unions affiliated with the M. T. C. or A. F. of L. which the evidence indicates have as members employees in crafts other than the nine above-mentioned did not intervene in the case. Because these unions did not intervene, the employees in the remaining nine units proposed by the Intervenors should vote as a residual group to determine whether they wish to be represented by the Industrial, by the M. T. C., or by neither. My reasons for the above conclusions are similar to those expressed in my dissenting opinions in Matter of American Can Company 18 and Matter of Milton Bradley Company.19 For the reasons there expressed I further do not agree with the reasoning of Mr. Leiserson that the Board is not "authorized by the Act" to determine the appropriate unit. I suppose that Congress meant what it said in the statute. The Congressional language is "The Board shall decide in each case whether, in order to insure to employees the full benefit of their right to self-organization and to collective bargaining, and otherwise to effectuate the policies of this Act, the unit appropriate for the purposes of collective bargaining shall be the employer unit, craft unit, plant unit, or subdivision thereof." 20 "Matter of American Can Company and Engineers Local No . 90, et at., 13 N. L. R. B. 1252. "Matter of Milton Bradley Company and International Printing Pressmen and As- sistants Union of North America (A. F. L.), 15 N. L. R. B. 938. 20 Section 9 (d). 992 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX A Administration : President. Vice-President. Secretary-Treasurer. Supervision : General Superintendent. Assistant General Superin- tendent. General Office : Auditor. All Clerks. Typist. Office Boy. Telephone Operator. Secretary-Stenographers. Paymaster and Timekeepers : Paymaster. All Clerks. All Timekeepers. Purchasing Department : Purchasing Agent. All Clerks. Sales : All Solicitors. Estimating : Estimator. Miscellaneous : Night Superintendent. Draftsmen. Bookkeepers. General Foreman. Dock Master. Assistant Dock Masters. APPENDIX B Foremen. Watchmen. Assistant Foremen. Safety engineer. Salaried leadermen, snappers, or pushers. APPENDIX C Storeroom employees. Off-and-on leadermen, snappers, Floating equipment crew. or pushers. - Hourly-paid leadermen, snappers, Porter. or pushers.