Federal Shipbuilding and Dry Dock Co.

In the Matter Of FEDERAL SHIPBUILDING AND DRY DOCK COMPANY and INDUSTRIAL UNION OF MARINE & SHIPBUILDING WOn*vi s OF }.r,- ICA, LOCAL No. 16 Case No. R-1573 Shipbuilding Industry-Amendment to Decision and Direction of Election- Unit Appropriate for Collective Bargaining: controversy as to inclusion of watch- men and guards in plant-wide unit : neither of two interested unions seeking ex- elusion ; desires of employees to determine ; original decision that watchmen and guards should be included in production and maintenance unit amended to pro- vide for separate ballots: (a) among production and maintenance employees, including working leaders, excluding watchmen, guards, leading men, supervisory and clerical employees; (b) among watchmen and guards; if majority of em- ployees voting in each classification designate same labor organization, classifi- cations will be combined to form single unit; ( Smith, dissenting) no justification for departure from Board's original conclusion, supported by evidence, that watchmen and guards should be included in plant-wide unit; existence of earlier members-only contracts excluding watchmen and guards not definitive of their .status--Elections Ordered,: to determine appropriate unit or units and representa- tives thereof. AMENDMENT TO DECISION AND DIRECTION OF ELECTION February 8, 1940 On January 11, 1940, the National Labor Relations Board, herein called the Board, issued a Decision and Direction of Election' in the above-entitled proceeding. The Direction of Election provided that an election by secret ballot should be conducted under the direction and supervision of the Regional Director for the Second Region (New York City) among the production and maintenance employees of Federal Shipbuilding and Dry Dock Company who were employed during the pay-roll period last preceding the date of the Direction of Election, 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 em- ployees, and all employees who had since quit or been discharged for 119 N. L. It. B. 313. 20 N. L. R. B., No. 25. 270 FEDERAL. SHIPBUILDI NG. AND DRY DOCK COMPANY 271 cause, to determine whether they desire to be represented by the Indus- trial 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 bar- gaining, or by neither. On January 20, 1940, Federal Shipbuilding and Dry Dock Company filed a "Petition for Reconsideration" of the Decision and Direction of Election objecting to the inclusion of watchmen and guards in the unit therein found appropriate. On January 29, 1940, the Board issued, and duly served on all the parties, a notice to show cause why the Decision and Direction of Election should not be amended to pro- vide for a separate election for watchmen and guards and to provide further that the watchmen and guards should be included in a unit with the other employees, only if a majority of them selected the same bargaining agent as did a majority of the other employees. On Feb- ruary 3, 1940, the Company filed "Objections to the Proposed Amend- ment," in effect claiming that watchmen and guards were not entitled to representation by either of the two unions involved, and. requesting oral argument on the matter. No other objections or requests for permission to argue the matter orally have been received. The record contains no substantial evidence to support the Company's contention that the watchmen and guards are not entitled to' representation by either of the unions involved. We see no reason, moreover, why the election in this matter should be further delayed, since the balloting may proceed in the manner which we shall- direct without material prejudice to the interest of any party. Should the Company desire to present further evidence to show that the employees in question are not entitled to representation by either of the two unions involved, this may be done at a hearing subsequent to the balloting which, upon request by the Company, we shall direct to be held. The objections of the Company are hereby overruled and its request for oral argument denied. The Board hereby amends its Decision and Direction of Election in the above-entitled proceeding in the following respects : (1) By striking therefrom all of the seventh paragraph of Section V thereof and substituting therefor the following : "Watchmen and Guards have been excluded by all of the previous contracts between the Industrial Union, the S. E. A., and the Com- pany. Several witnesses testified that a great majority of these employees are members of the Industrial Union, desire to be rep- resented by it, and are linked to the other employees by a common interest which does not affect their loyalty to the Company. The Company considers these workers part of management since their duties include the enforcement of rules of safety and conduct and 272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the protection of the plant against fire and theft. The evidence shows that watchmen and guards perform important policing func- tions, particularly in connection with the protection of United States naval-vessels' which are under construction at the Kearny plant. The evidence does not affirmatively show on the other hand that their inclusion will cause watchmen and guards to relax their vigilance in the performance of their duties. The S. E. A. and the Industrial Union seek their inclusion, and in the past have sought to bargain for them. Ordinarily where no labor organization contests their inclu- sion, we have included watchmen and guards in plant-wide bar- gaining units.' Under the circumstances of this case, however, and since the watchmen and guards previously have been excluded front the bargaining units in the Industrial Union and S. E. A. contracts, we are unable to hold on the present record that watchmen and guards should be included in the appropriate unit. We feel, how- ..ever, that.the _determin.ing factor in-,such situition"'should'be:,the desire of the employees themselves. We shall therefore make no final determination of the appropriate unit at this time but shall direct a separate election among watchmen and guards. Accordingly two ballots shall be prepared and balloting conducted as follows : (a) Among production and maintenance employees of the Com- pany, including leaders performing manual work but excluding superintendents, assistant superintendents, foremen, assistant fore men, subforemen, leading men, leaders working exclusively as super- visors, watchmen, guards, and office and clerical employees, to determine whether they desire to be represented by the Industrial Union, by the S. E. A., or by neither ; (b) Among watchmen and guards employed -by the Company to determine whether they desire to be represented .by_the. Industrial Union, by the S. E. A., or by neither. In the event that a majority of the employees voting in each of these classifications choose the same labor organization, the employees within both classifications will be combined to constitute a single unit for purposes of collective bargaining." (2) By striking therefrom all of the eleventh paragraph of Section V thereof, and substituting therefor the following: "Since neither the I. A. Al. nor the I. B. E. W. showed that they had been authorized to represent a substantial number of employees in their proposed units, we shall exclude them from the ballots." 2 Matter of Agwilines, Inc., doing business under the trade name of Clyde-Mallory Lines and Brotherhood of Railway and Steamship Clerks, Freight Handlers , Express and Station Employees, 12 N. L. R. B. 366 : Matter of American-Hawaiian Steamship Company, a Cor- poration and Gatemen , Watchmen <C Miscellaneou s Waterfront Workers Unix, Local 38- 121, International Longshoremen 's Association, etc., 10 N . L. R. B. 1355. i al FEDERAL SHIPBUILDING AND DRY DOCK COMPANY 273 (3) By striking therefrom the designation , "VI. The determina- tion of representatives" and the paragraph immediately following such designation. (4) By striking therefrom the second paragraph of the section thereof heretofore designated as Section VI, and substituting therefor the following : "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 or elections . On that date there were about 4,800 production and niaiutenance employees, 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 employees who were employed by the Company during the pay-roll period immediately preceding the Direction of Election herein." ( 5) By striking therefrom the second numbered Conclusion of Law. (6) By striking therefrom the Direction of Election and substitut- ing therefor the following : 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, and pursuant to Article III, Section 8, of National Labor Rela- tions Board Rules and Regulations-Series 2, as amended, 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, separate elections by secret ballot shall be conducted as early as possible but not later than thirty (30) days from the date of this Amended Direction of Election, under the directidif and supervisidi of the Regional Director of 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 those employees of Federal Shipbuilding and Dry Dock Company, Kearny, New Jersey, who fall within the two groups indicated below who were employed by the Company during the pay-roll period last preceding January 11, 1940, including employees who did not work during such pay-roll period because they were ill or on vacation and employees who were then or have since been temporarily laid 274 DECISIONS -OF NATIONAL LABOR RELATIONS BOARD off, but excluding those employees who have since quit or been discharged for cause : (a) All production and maintenance employees of the Company, including leaders performing manual worki but excluding superin- tendents, assistant superintendents, foremen, assistant foremen, sub- foremen, leading men, leaders working exclusively as supervisors, watchmen, guards, and office and clerical employees, to determine whether they desire to be represented for purposes of collective bar- gaining 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, or by neither : (b) All watclnnen and guards, excluding persons supervising the work of watchmen and guards, to determine whether they desire to be represented for purposes of collective bargaining by the Industrial Union of Marine & Shipbuilding Workers of America, Local No. 16, a.ffiliated with the Congress of Industrial Organizations, or by Ship- yard Employees Association, or by neither. MR. EDWIN S. SMITH, dissenting : I dissent from the Amendment to Decision and Direction of Elec- tion providing for a separate election among watchmen and guards. The reasoning in my dissents in the Allis-Chalmers 3 and subsequent cases is applicable here. In my opinion there are no facts in the record sufficient to'justify a departure from the Board's original conclusion in this case that watchmen and guards should be included in a single unit with the production and maintenance employees.4 Neither of the labor organizations involved seeks exclusion of the watchmen and guards from the unit. The existence of members only contracts excluding such employees from a plant-wide unit should not be regarded as definitive of their status. In other cases I have stated that notwithstanding the exist- ence of an exclusive representation contract the Board is not pre- cluded by anything in the Act from finding a different unit appro- priate, and that, when warranted by the circumstances, the Board should not refrain .front exercising its power. to find a different unit.5 This reasoning seems even more strongly applicable where the pre- vious contracts with the respective labor organizations covered their members ' only. 3 Matter of Allis-Chalmers Manufacturing Company and International Union, United Automobile Workers of America, Local 248, 4 N. L. R. B. 159, et at. 4 While it Is true that the original Decision erroneously recited that watchmen and guards were not excluded from the 1937 and 1938 contracts of the Industrial Union, this fact was not material to my concurrence in the original Decision. 5 See my concurring opinion in Matter of American Can Co. and Engineers Local A" o. 30. Firemen and Oilers Local -No. 56, et al., 13 N. L. R. B. i252. 1258. FEDERAL SHIPBUILDING AND DRY DOCK COMPANY 275 The facts here presented show that after an unsuccessful attempt to bargain for themselves, a great majority of watchmen and guards joined the Industrial Union which, unsuccessfully, sought to represent them. These facts evince an evolutionary development in the process of collective bargaining, on behalf of employees of the Company, which ought not be impeded by decision of the Board.6 6 See my dissenting opinion in Matter of Briggs Manufacturing Company and Briggs Indiana Corporation and International Union, United Automobile Workers of America, affiliated with the C. 1. 0., etc., 13 N. L. R. B. 1326, 1334.