Federal Shipbuilding and Dry Dock Co.

In the Matter of FEDERAL SHIPBUILDING AND DRY DOCK COMPANY and INDUSTRIAL UNION OF MARINE & SHIPBUILDING WORKERS OF AMERICA, LOCAL No. 16 Case No. B-1573.-Decided January 11, 1940 Shipbuilding Industry-Investigation of Representatives : controversy con- cerning representation of employees : rival organizations : employer's refusal to recognize petitioning organization as exclusive bargaining representative of employees : contract for members only, no bar to-Unit Appropriate for Collective Bargaining : production and maintenance employees , including working leaders, watchmen, and guards, excluding leading men, supervisory and clerical em- ployees : arbitrary classifications of intervening organization found inappro- priate: two intervening craft organizations failed to show substantial authoriza- tion, and unnecessary to decide if units sought appropriate-Representatives: no credible claim of substantial membership, two organizations denied places on ballot-Election Ordered Mr. Millard L. Midonick and Mr. D. R. Dirnick, for the Board. Mr. Samuel L. Rothbard, of Newark, N. J., and Mr. John F. Dempsey, of Jersey City, N. J., for the Industrial Union. Mr. B. L. Rawlins, Jr., of Pittsburgh, Pa., and Mr. W. A. Brown and Mr. Arthur B. Knight, both of New York City, for the Company. Mr. Oscar Greenberg, of Jersey City, N. J., for the S. E. A. Mr. Alfred J. Klippberg, of New York City, for the I: A. M. .Mr. William L. Williams, of 'New York City, for the I. B. E. W. Mr. Malcolm A. Hoffmann, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE On June 19, 1939, Industrial Union of Marine & Shipbuilding Workers of America, Local No. 16, herein called the Industrial Union, affiliated with the Congress of Industrial Organizations, herein called the C. I. 0., 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 em- ployees of Federal Shipbuilding and Dry Dock Company," herein 1 Designated as Federal Shipbuilding & Dry Dock Co. In the petition and notice of hearing. 19 N. L. R. B., No. 35. 313 314 DECISIONS OF NATIONAL LABOR RELATIONS BOARD called the Company, and requesting an investigation and certification of representatives pursuant to Section 9 (c) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. On September 14, 1939, 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 Relations Board Rules and Regula- tions-Series 2, ordered an investigation and authorized the Regional Director to conduct it and to provide for an. appropriate hearing on due, notice. On October 4, 1939, the Regional Director issued a notice of hear- ing, copies of which were duly served upon the Company, upon the Industrial Union, upon the Shipyard Employees Association, herein called the S. E. A., upon the International Brotherhood of Electrical Workers, Marine Local 277, herein called the I. B. E. W., upon the International Association of Machinists, herein called the I. A. M., upon the Pattern Makers' Association of New York & Vicinity, and upon Marine Workers Metal Trades District Council, all labor or- ganizations claiming to represent employees directly affected by the investigation. Pursuant to the notice, a hearing was held on October 16, 1939, at New York City, and on October 19, 20, and 23, 1939, at Newark, New. Jersey, before Mapes Davidson, the Trial Examiner duly designated by the Board. The Board, the Company, the Indus- trial Union, and the S. E. A. were represented by counsel, and the I. A. M. and the I. B. E. W. by their representatives, and all partici- pated 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. During the course of the hearing, the Trial Examiner 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 com- mitted. The rulings are hereby affirmed. During the hearing the Company and the S. E. A. made motions to dismiss the petition, upon which the Trial Examiner did not rule. The motions are here- by denied. On November 6, 1939; the Company filed a brief which has been considered by the Board.. Upon the entire record' in the case, the Board makes the following: FINDING OF FACT 1. THE BUSINESS OF THE COMPANY Federal Shipbuilding and. Dry Dock Company, a New Jersey cor- poration with its principal office, place of business, and only plant at Kearny; New Jersey, is engaged chiefly in the designing and build- FEDERAL S'HIPBUTLDPNG AN]) DRY DOCK COMPANY 315 ing of seagoing merchant and naval vessels.2 All the vessels are built under specific contracts, and generally require one or more years for their completion. The materials are purchased on direct order. The Company completely manufactures the ship's hull structure, as well as much of its machinery, piping, and fittings, installs all equip- ment required by contract, and usually tests all work, runs sea trials, and delivers the ship to its owner. During the first 6 months of 1939 approximately 89 per cent of the materials used by the Company were shipped to it from points out- side the State of New Jersey, and these materials aggregated ap- proximately $8,500,000 in value. During the salve period approxi- mately 81 per cent of the total value of the Company's finished products were shipped outside the State of New Jersey. The value of these products was approximately $13,500,000. During the first 6 months of 1939 the Company employed an average of approximately 6,000 employees. The Company concedes that it is engaged in inter- state commerce within the meaning of the Act. II. THE ORGANIZATIONS INVOLVED Industrial Union of Marine & Shipbuilding Workers of America, Local No. 16, is a labor organization affiliated with the Congress of Industrial Organizations. It admits to membership all employees of the Company except office and clerical workers. Shipyard Employees Association is an unaffiliated labor organiza- tion. It admits to membership all employees of the Company, ex- cepting officials, superintendents, foremen, assistant foremen, and others having the right to hire and discharge.3 International Association of Machinists is a labor organization affiliated with the American Federation of Labor. It admits to mem- bership machinists employed by the Company. International Brotherhood of Electrical Workers, Marine Elec- tricians Local 277, is a labor organization affiliated with the American Federation of Labor. It admits to membership electricians, elec- tricians' helpers, and apprentices. III. THE QUESTION CONCERNING REPRESENTATION On May 22, 1937, May 21, 1938, and May 29, 1939, the Industrial Union entered into 1-year contracts with the Company on behalf of the Industrial Union's membership among all production and main- tenance workers at the Company's plant. On May 25, 1937, the Com- pany by letter to the S. E. A. agreed to recognize it as the collective 2. The Company is a wholly owned subsidiary of United States Steel Corporation. .. . 11 Although its constitution and bylaws do not so provide, the membership of the S.. E. A. is confined to employees of the Company. 316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD bargaining agent for its members at the plant, and on June 14, 1938, and June 15, 1939, the Company and the S. E. A. entered into contracts similar in terms to those executed by the Company and the Industrial Union.4 Throughout the negotiations terminating in the contracts set forth above, the Industrial Union claimed to represent a majority of the Company's production and maintenance employees, and sought their exclusive representation. The Company during these negotiations asserted that its policy prevented recognition of any organization as sole bargaining agent.5 The Company's agreement of May 29, 1939, with the Industrial Union contained a provision to the effect that if the Company entered into a contract with another labor organiza- tion, the Industrial Union by 20 days' notice in writing might cancel its agreement. On June 15, 1939, the Company and the S. E. A. en- tered into an agreement covering the latter's members. The Industrial Union did not elect to cancel its agreement, but shortly thereafter filed its petition with the Board. The Company and the S. E. A. both contend that by reason of the Industrial Union's contract, no question concerning representation has arisen. As we have frequently held, however, a contract granting recognition to a labor organization as the representative of its members only, cannot be regarded as a bar to a determination of representatives e We find that a question has arisen concerning representation of employees of the Company. IV. THE EFFECT OF THE QUESTION CONCERNING IIEPIIESENTATION UPON COMMERCE We find that the question concerning representation which has-arisen, occurring in connection with the operation of the Company described in Section I above, has a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tends to lead to labor disputes burdening and obstructing con-ilnerce and the free flow of commerce. V. THE APPROPRIATE UNIT The Industrial Union alleges in its petition that all the employees of the Company engaged in production and maintenance work;. in- *The language in all these contracts was substantially the same and the bargaining unit identical. 5 At a meeting with the Industrial Union on May 25, 1939, President L. 1-I. Korndorff stated the company policy to be : The Company will not voluntarily enter into a contract which will recognize any labor organization as the exclusive representative of all of the employees for collective bargaining purposes. aMatter of Northrop Corporation and United Automobile Workers, Local No. 220, 3 N. L. R. B. 228; Matter of Friday Harbor Canning Company, a corporation and Canning Workers Union Local 20154, A. F. of L., 15 N. L . It. B. 1039. FED'E'RAL SHIPBUILDING AND DRY DOCK 001\IPANiY 317 eluding watchmen, guards, and leading men (also known as snap- pers),'-but excluding superintendents, assistant superintendents, fore- men, assistant foremen, subforemen, and office and clerical help, con- stitute a unit appropriate for the purposes of collective bargaining. The Company does not dispute the appropriateness of this unit in so far as it conforms with the unit defined by its contracts with the Indus- trial Union. The contractual unit differs from the foregoing only in that it excludes leading men, "leaders" working exclusively as super- visors, watchmen, and guards. The S. E. A., which like the Industrial Union, has previously bargained with the Company for its members among the production and maintenance employees, urges that each of seven different classi- fications of the employees constitutes an appropriate unit.8 Several of the units sought by the S. E. A. bear no reasonable relationship to the operations performed by the Company's employees, and have no precedent either in the collective bargaining history of the Com- pany or the industry. The chairman of the executive committee of the S. E. A. testified that the requested division into seven units was not decided upon until after` an informal conference at the Board's Regional Office following the filing of the petition in this proceeding, The company operations are functionally integrated, and encompass many different trades,' all essential to the building of a ship. The Company itself has traditionally observed three main divisions in its operations : hull, machine, and maintenance departments. Its indus- trial relations manager testified that the units desired by the S. E. A. cut across these lines and segregate departments from each division into a new and arbitrary grouping. He further testified that the unit covered by the Industrial Union contract corresponds with these three divisions taken together. Under all the circumstances, we do not deem the units sought by the S. E. A. to be appropriate for the purposes of collective bargaining. As already noted, the Company and the Industrial Union disagree only as to whether leading men, "leaders," watchmen, and guards 4 By amendment to its petition , leading men or snappers "are defined to include any employee who is in charge of a shop or part of a shop or boat." s (1) Office and Clerical workers, excluding draftsmen. (2) Lunchroom and hospital employees, watchmen, guards, janitors, cleaners, trans- portation workers, toolroom keepers, etc. (3) Inside shop machinists, (4) Pattern workers. (5) Hull trade shop. (6) Hull installation trades, including ship fitters, bolters, reamers, drillers, etc. (7) Machinery installation trades, including pipe fitters , electricians , and installation machinists. The Company has 42 operating divisions which include, among others, such diverse occupations as patternmakers , installation machinists, inside machinists , ship fitters, erectors, riggers, carpenters, bolters, reamers. drillers. riveters, chippers, caulkers, testers, burners, welders , painters , sheet metal workers, pipe fitters, coppersmiths , tinsmiths, elec- tricians, Mold Loft, Assembly Shop, and Plate Shop . employees. 318 DECISIONS OF NATIONAL LABOR RELATIONS BOARD should be included within the appropriate unit. The Company seeks to exclude these groups as "part of management." The S. E. A. opposes the inclusion of leading men but seeks representation of watchmen and guards. Leading men plan and coordinate work and make recoinmenda- tions respecting discipline, promotion, and discharge of employees working under their supervision. Although they have no power to hire or discharge, and do not ordinarily initiate the orders they give the 10 to 60 employees working under them, they are. regarded as "down-the-line supervisors" or "gang pushers" whose primary func- tion it is to see that work is properly done. Leading men do no manual work.. They are salaried employees and distinguished from watchmen. and guards by higher wages, greater skill, and more in- tensified training, as well as the supervisory character of their duties. Although there is testimony that a substantial number of leading men are members of the Industrial Union, they were excluded from the contracts between the Company and the Industrial Union.. Under the circumstances of this case, we feel that leading men should be excluded from the bargaining unit." Working leaders are of lesser authority than leading men, and are distinguished from the latter because fewer men work under them, and less weight is given to their recommendations. Moreover, they perform manual work for the most part.1' They have been included in the unit set by the contracts, and the-Company does not seek their exclusion. The S. E. A. did not oppose their inclusion and they have not been excluded by the S. E. A. contracts. We shall include in the appropriate unit leaders actually performing manual work and not working exclusively as supervisors. Watchmen and Guards were not excluded by the 1937 and 1938 contracts with the Industrial Union but were excluded by the 1939 contract. Several witnesses testified that a great majority of these employees are members of the Industrial Union and seek to be repre- sented by it, and that they are linked to other employees by a common interest which does not affect their loyalty to the Company. The S. E. A. and the Industrial Union seek their inclusion. The Company considers these workers part of management since their duties include the enforcement of rules of safety and conduct and the protection of the plant against fire and theft. Watchmen and guards have no 10 Matter of Bethlehem Shipbuilding Corporation, Limited and Industrial Union of Marine and Shipbuilding Workers of Ant erica, Local No. 5, etc., 11 N. L. R. B. 105, 1V,; Matter of United Shipyards, Inc. and Locals No. 12, No. 13, No. 15 of the Industrial Union of Marine and Shipbuilding Workers of America, 5 N. L. It. B . 742 ("snappers" excluded on stipulation). 11 Certain "leaders," who apparently perform no manual work and work exclusively as supervisors , may properly be regarded as in the some category as "leading men." Ac- cordingly, such "leaders" will be excluded from the appropriate unit. FE'DERAL' SHIPBUILDING AND DRY DOCK COMPANY 319 special- training, are paid by the hour, and their hourly wage is lower than that of certain classes of production employees. The Company -industrial relations manager testified that watchmen and guards earn 40 per cent less than leaders, and that this differentia- tion is based largely on the superior knowledge, training, and ability of the latter. After an unsuccessful attempt to bargain for them- selves, a great majority of these employees sought representation by the Industrial Union. The Company has not shown that their in- elusion causes watchmen to relax the discharge of their duties. Under these circumstances, and where no labor organization contests their inclusion, we have customarily included them in plant-wide bargain- ing units.12 We shall include watchmen and guards in the appropri- ate unit. The I. A. M. contends that the inside shop machinists constitute all appropriate unit. In the alternative, however, the I. A. M. asserts that if the Board finds that both inside shop machinists and installa- tion. machinists, numbering about 600, comprise an appropriate unit, it will participate in any election. The I. B. E. W. contends that all electricians, including snappers and leading men who are electricians, electrician helpers, and appren- tices, constitute an appropriate unit. This group contains approxi- mately 190 employees. The I. A. M. and the I. B. E. W., however, made no credible showing of any substantial membership in the units which they urge to be appropriate.ls The Industrial Union contested the intervention of ,the I. A. M. and the I. B. E. W., and at the close of the hearing moved that their testimony be stricken from the record on. the ground that the I. A. M. and the I. B. E. W. have no interest in the proceeding. The I. A. M. and the I. B. E. W., although they received notice of this proceeding in July of 1939, requested a 4-week adjournment of the hearing to enable them to adduce proof of membership 14 and also moved that the record be held open for this purpose. Representatives of the I. B. E. W. and the I. A. M. further stated they were unable to make an offer of proof as to their membership because they could not make an approximation of what their records would reveal. While both representatives claimed a number of members, their testimony 22 Matter of Agwtlines, Inc., doing business under the trade name of Clyde-Mallory Lines and Brotherhood of Railway and Steamship Clerks, Freight Handlers, Express an,., Station Emgiloyees, 12 N. L. R. B. 366; Matter of American-Hawaiian Steamship Core. pang, a Corporation and Gatemen, Watchmen., ,t Miscellaneous Waterfront Workers Union. Local 33-124 International Longshoremen's Association . etc., 10 N . L. R. B. 1355. 18 They have never bargained with the Company. "Despite assurances that their proofs would be kept confidential, the two unions de- clared, inconsistently with the purported reason for their request for an adjournment, they would not present evidence of membership. 320 DECISIONS OF NATIONAL LABOR RELATIONS BOARD was vague and unpersuasive.15 Because cf the failure of the I. A. M. and the I. B. E. W. to make a showing that they had been authorized to represent a substantial number of employees in their proposed units, we find it unnecessary to decide whether such units are appro- priate for the purposes of collective bargaining.- We find that all the Company's production and maintenance em- ployees, including leaders performing manual work, watchmen, and guards, but excluding superintendents, assistant superintendents, foremen, assistant foremen, subforemen, leading men, leaders, work- ing exclusively as supervisors, and office and clerical employees, con- stitute a unit appropriate for the purposes of collective bargaining, and that said unit will insure to the employees of the Company the full benefit of their right to self-organization and to collective bargaining and otherwise effectuate the policies of the Act. Vt. THE DETERMINATION OF REPRESENTATIVES The Industrial Union offered to prove that it represents a majority of the employees in the appropriate unit, in support of a request for certification without an election. Such certification was opposed by both the Company and the S. E. A. The latter organization showed substantial membership in the unit, and has a membership agreement with the Company. We find that the question concern- ing representation call best be resolved by means of an election by secret ballot. Since neither the I. A. M. nor the I. B. E. W. showed that they had been authorized to represent a substantial number of 15 Testimony of the Grand Lodge representative of the I. A. M., after being asked if he had ascertained the names of members working for the Company, is as follows : A. I was not interested in getting their names. Q. Didn't you know about these proceedings then? A. Yes. Q. And you were not interested in getting their names? A. Even if I had, they might not have given them to me. Q. Did you get their names? A. Well, some of them I got. Q. How many? A. I am not prepared to tell you how many. The business manager of Marine Local 277 of the I. B. E. W. testified as follows : Q. So you don't even know approximately what your records will reveal? A. Absolutely not. Q. You testified you believe you have a membership of about 50 members in the Federal Shipbuilding and Dry Dock Company. Is that right: A. I said one of the members told me. Q. In your local? •r A. No. (Local 277, only, has jurisdiction of the Company's employees.) 1e Cf. Matter of Allis-Chalmers Manufacturing Company and International Union, United Automobile Workers of America, Local 8/r8, 4 N. L. R. B . 159 at 168. Matter of Southwestern Engineering Co. and International Brotherhood of Boilermakers, Iron Ship Builders . Welders and Helpers of America Local 92, A. F. L., 14 N. L. It. B. 104; Matter of Southern California Gas Conepany and Utility il'orkers Organizing Committee. Local No. 7.42, 10 N. L. R. B. 1123. FEDERAL SHIPBUILDING AND DRY DOCK tOOMPAI Y 321" employees in their proposed units, and did not indicate any desire to-compete in an election in the unit found to be appropriate, we shall exclude them from the ballot 17 The Industrial Union requests that June 19, 1939, the date of filing of the petition, be the date for determining eligibility of the employees to participate in an election. On that date there were about 4,800 employees in the unit, but by the time of the hearing this number had increased to 5,800, and new employees were being hired at the rate of about 100 a week. Both the Company and the S. E. A. request that eligibility be determined by the pay roll next preceding the election. We see no reason in this case to depart from our usual practice, and shall direct that the employees eligible to vote shall be those within the appropriate unit during the pay-roll period immedi- ately preceding the Direction of Election herein. Upon the basis of the foregoing findings of fact and upon the entire record in the proceedings, the Board makes the following: CONCLUSIONS OF LAW 1. A question affecting commerce has arisen concerning the repre- sentation of employees of Federal Shipbuilding and Dry Dock Com- pany, Kearny, New Jersey, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the National Labor Relations Act. 2. The production and maintenance employees of the Company, including leaders performing manual work, watchmen, and guards, but excluding superintendents, assistant superintendents, foremen, assistant foremen, subforemen, leading men, leaders working ex- clusively as supervisors, and office and clerical employees, constitute a unit appropriate for the purposes of collective bargaining, within the meaning of Section 9 (c) 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, 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 Federal Shipbuilding and Dry Dock Company, Kearny, New Jersey, an election by secret ballot shall be conducted as early as possible but not later than thirty (30) days from the 'date of this Direction, under the direction and supervision of the Regional Di- rector for the Second Region, acting in this matter as agent for the 11 See Section V, above. 322 DECISIONS OF NATIONAL LABOR RELATIONS BOARD National Labor Relations Board and subject to Article III, Section 9, of said Rules and Regulations, among the production and mainte- nance employees of the Company who were employed by the Company during the pay-roll period last preceding the date of this Direction, including employees who did not work during such pay-roll period because they were ill or on vacation, leaders performing manual work, watchmen, and guards, but excluding superintendents, assistant superintendents, foremen, assistant foremen, subforemen, leading men, leaders working exclusively as supervisors, and office and clerical employees, and all employees who have since quit or have been discharged for cause, to determine whether they desire. to be represented by the Industrial Union of Marine & Shipbuilding Workers of America, Local No. 16, affiliated with the Congress of Industrial Organizations, or by Shipyard Employees Association, for the purposes of collective bargaining, or by neither.