Albina Engine and Machine Works, Inc.

In the Matter of ALBINA ENGINE AND MACHINE WORKS, INC. and INTERNATIONAL LONGSHOREMEN'S AND WAREHOUSEMEN'S UNION, DISTRICT 1, LOCAL 33, AFFILIATED WITH THE C. I. O. LOCAL 33 In the Matter of COMMERCIAL IRON WORKS and INTERNATIONAL LONG- SHOREMEN'S AND WAREHOUSEMEN'S UNION, DISTRICT 1, LOCAL 33, AFFILIATED WITH THE C. I. O. In the Matter Of WILLAMETTE IRON AND STEEL CORPORATION and INTERNATIONAL LONGSHOREMEN'S AND WAREHOUSEMEN'S UNION, DISTRICT 1, LOCAL 33, AFFILIATED WITH THE C. I. O. Cases Nos. R-2193, R--.194, and R-2195.-Decided March, 21, 1941 Jurisdiction : shipbuilding and repairing industry. Practice and Procedure : petition dismissed where no appropriate unit within scope of the petition. Mr. Thomas P. Graham, Jr., for, the Board. Mr. Gunther F. Krause, of Portland, Oreg., for Albina. Mr. Bert S. Gooding and Mr. Plowden Stott, of Portland, Oreg., for Commercial. Mr. Newton C. Smith, of Portland, Oreg., for Willamette. Anderson ct O'Brien, by Mr. Clifford D. O'Brien, of Portland, Oreg., for the I. L. W. U. Mr. Edwin D. Hicks and Mr. Chris Boesen, of Portland, ' Oreg., for the M. T. C. Mr. Raymond J. Compton, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE On September 27, 1940, International Longshoremen's and Ware- housemen's Union, District 1, Local 33, affiliated with the C. I. 0., herein called the I. L. W. U., filed with the Regional Director for the Nineteenth Region (Seattle, Washington) separate'petitions alleging that questions affecting commerce had arisen concerning the represen- 30 N. L. R. B., No. 71. 491 492 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tation of employees of Albina Engine and Machine Works, Inc., Port- land, Oregon, herein called Albina, and Commercial Iron Works, Portland, Oregon, herein called Commercial, respectively, and re- questing an investigation and certification of representatives pur- suant to Section 9 (c) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. On October 17, 1940, the I. L. W. U. filed a similar petition with respect to the representation of employees of Willamette Iron and Steel Corporation, Portland, Oregon, herein called Willamette. On October 31, 1940, the National Labor Rela- tions Board, herein called the Board, acting pursuant to Section 9 (c) of the Act and Article III, Section 3, of National Labor Rela- tions Board Rules and Regulations-Series 2, as amended, ordered an investigation in each case and authorized the Regional Director to conduct it and to provide for an appropriate hearing upon due notice, and acting pursuant to Article III, Section 10 (c) (2), of said Rules and Regulations, further ordered that the aforesaid three cases be consolidated for the purpose of hearing. On October 31, 1940, the Regional Director issued a notice of hearing, copies of which were duly served upon Albina, Commercial, and Willamette, herein collectively called the Companies, upon the I. L. W. U., and upon Metal Trades Council of Portland and Vicinity, A. F. of L., herein called the M. T. C., a labor organization claiming to repre- sent employees directly affected by the investigation. Pursuant to'notice and notice of postponement, a hearing was com- menced on November 7, 1940, at Portland, Oregon, before Charles W. Whittemore, the Trial Examiner duly designated by the Chief Trial Examiner. The Companies, the I. L. W. U., and the M. T. C., were represented by counsel and all participated in the hearing. On November 8, 1940, the Trial Examiner granted a motion by counsel for the I. L. W. U. to adjourn the hearing pending an attempt by the parties to reach a settlement with respect to the issues involved. On December 2, 1940, the hearing was resumed before Peter F. Ward, the Trial Examiner duly designated by the Chief Trial Examiner. At the opening of the hearing on that date, the I. L. W. U. moved to dismiss its petitions without prejudice upon the ground that an ac- cord had been reached with the M. T. C. The Trial Examiner reserved ruling on the motion for the Board, and thereupon ad- journed the hearing. On January 4, 1941, before the Board had ruled upon the motion to dismiss the petitions, the I. L. W. U. filed a written motion with the Board requesting that its petitions be reinstated and that further hearing be held thereon. On January 10, 1941, the Board granted the motion of the I. L. W. U., and ordered that the record in the consolidated cases be reopened for further hearing. ALBINA ENGINE! AND MA'CHI'NE' WORKS, INC. 493 Pursuant to notice, a further hearing was held on January 23, 24, 27, 29, and 31, and February 3 and 4, 1941, at Portland, Oregon, 'before Thomas S. Wilson, the Trial Examiner duly designated by the Chief Trial Examiner. The Companies, the I. L. W. U., and the M. T. C. were represented by counsel, and all participated in the hearing. 'Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues was af- forded all parties. During the course of the hearing, counsel for the I. L. W. U. objected to the admission in evidence of three separate petitions introduced by the M. T. C. The Trial Examiner reserved ruling thereon for the Board. The petitions offered by the M. T. C. are admitted in evidence as motions to intervene, and are hereby granted. During the course of the 'hearings, the Trial Examiners made various rulings on motions and on objections to the admission of evidence other than indicated above. The Board has reviewed the rulings of the Trial Examiners and finds that no prejudicial errors were committed. The rulings are hereby affirmed. The I. L. W. U. and the M. T. C. filed briefs which the Board has considered. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT 1Q 1. THE BUSINESS OF THE COMPANIES Albina Engine and Machine Works, Inc., an Oregon corporation, has its principal office and place of business in Portland, Oregon, where it is engaged in the , construction and repair, of ships and commercial work. Approximately 95 per cent of Albina's business is marine work performed on vessels engaged in foreign or interstate commerce. Approximately 70 per cent of the raw materials used by the Company, which in 1940 amounted to approximately $300,000 in value, are obtained from points outside the State of Oregon. For the past 6 years, ship construction and repair,work performed by the Company has approximated $1,000,000 in value yearly. Commercial Iron Works, an Oregon corporation, has its principal office and place of business in Portland, Oregon,' where it is engaged in the construction and repair of ships and in the operation of a foundry, machine shop, and pattern shop. During 1940, approxi- mately 40 per cent of the Commercial's business was marine repair' work on vessels-engaged in foreign or interstate commerce. During the same year, the Company purchased raw materials, consisting principally of steel, brass; iron, and lumber, valued at approximately $300,000,•the greater portion of the metals being shipped from States `other than Oregon. 494 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Willamette Iron and Steel Corporation, an Oregon corporation, has its principal office and place of business in Portland, Oregon, where it is engaged in ship construction' and repair and the manufacture and jobbing of logging and structural steel. Until 1940, the marine work of Willamette comprised less than 10 per cent of its business, but since October 1940, this amount increased to approximately 50 per cent, all of which is performed on vessels engaged in foreign or interstate commerce. From 1936 to October 1940, the gross sales of the Company amounted to approximately $1,845,000. During the same period, it purchased raw material amounting to approximately $715,000, of which more than 40 per cent were shipped from points outside the State of Oregon. . The Companies admit that they are engaged in commerce within the meaning of, the Act.. - H. THE ORGANIZATIONS INVOLVED International Longshoremen's and Warehousemen's Union, District 1, Local 33, is a labor organization affiliated with the Congress of Industrial Organizations, admitting to membership employees of the Companies. Metal Trades Council of Portland and Vicinity is a labor organiza- tion composed of various unions in the metal trades industries affili- ated with the American Federation of Labor, which admit to membership employees of the Companies. III. THE ALLEGED QUESTION CONCERNING REPRESENTATION In February 1934, Ship Cleaners, Painters and Scalers, Local 354, herein called Local 354, was chartered by the Brotherhood of Paint- ers, Decorators and Paperhangers of America, affiliated with the M. T. C. Shortly thereafter, Local 354 entered into a joint agree- ment with Albina and Commercial, whereby Local 354 was to furnish and the companies to employ whatever men might be needed for such painting, cleaning, and various other work connected with ship repair operations, as had been customarily- performed by unor- ganized laborers on the waterfront prior to the chartering of Local 1 There was introduced in evidence jurisdictional extracts from the constitutions and bylaws of the following unions affiliated with the M. T. C. : Bricklayers , Masons and Plasterers International Union of America. International Union of Operating Engineers. International Brotherhood of Boiler Makers, Iron Ship Builders , Welders and Help- ^ ers of America. United Brotherhood of Carpenters and Joiners of America. Brotherhood of Painters , Decorators and Paperhangers of America. International Hod Carriers Building and Common Laborers Union of America. Operative Plasterers' and Cement Finishers ' International Association of the United States and Canada. ALBINA ENG'IN'E AND MACHINE WORKS, INC. 495 354. While the agreement set forth a wage scale covering laboring and painting, paint spraying, and oil cleaning and handling, it con- tained no further definition of the particular work to be performed by members of Local 354 within these general classifications? In November 1935, Local 354 transferred its affiliation to \ the International Longshoremen's Association, A. F. of L., and was thereafter known as Scalers, Drydock, Dredgeline & Levee Workers, Local 38-135. On September 24, 1937, Local No. 38-135 affiliated with International Longshoremen's and Warehousemen's Union un- der its present designation of Local 1-33. Although thereafter the 1. L. W. U. continued to,work under the terms of the 1934 agree- ment with Albina and Commercial, its members increased the scope of their activities to include certain rough cement, brick, rigging, winch driving, and additional painting work. On October 1, 1938, the I. L. W. U. executed a new joint contract with Albina and' Commercial, to be effective for a period of 1 year and thereafter ilntil,terminated by either party upon 30 days' written notice. The wage scale agreed upon therein covered, "oil bilges, double bottoms, tanks; cleaning and scaling fire and water side of boilers, including removing debris; washing tanks with chemicals, water, coal oil, other materials or by mechanical means; bituminous painting; pneumatic tool work including turbining; painting and general work; winch drivers and hatch tenders; sandblasting, outside and inside hull; riggers or high climbers; cement finishing;' brick work; spraying."' Thereafter members of the I. L. W. U. were em- ployed by Albina and Commercial indiscriminately on repair and new construction work within the foregoing classifications.3 • Until 1940, however, the operations of Albina and Commercial included only a small amount of new construction, the work performed by members of the I. L. W. U. during this period being largely in connection with repair operations and, with few exceptions, of a type requiring little or no particular skill. Moreover, members of the I. L. W. U. did not perform' all the work falling within the general classifications 9 Another agreement introduced in evidence as typical of those executed at that time between Local 354 and the various employers in the Portland area, more specifically defines the jurisdiction of Local 354 as covering "fuel oil tank cleaning and handling ; all other oil cleaning and handling ; cleaning, scaling, and brush painting the hull ; spray gun operators ; all other labor." It further appears from the evidence that the only painting performed by members of Local 354 was "rough" painting of the hull below the water line on repair jobs The members of Local 354 did not engage in, new construction work. 8 All members of the I. L. W IT. employed by the Companies were intermittently assigned to the various jobs from the I . L W., U. hiring hall under a rotational dispatch system. As of October 1, 1938, the dispatch list of the I. L. W. U. carried the names of approxi- mately 100 members and 25 men not affiliated pith the I. L. W. U but who were permitted to work out of the I. L. W. U. hiring hall. During the period from January 1, 1939, to October 1, 1940, an aggregate of 95 I. L. W. U. members were employed at various times by Albina, and an aggregate of 79 by Commercial . In addition , both companies employed a number of permit men during the same period. 496 DECISIONS OF NATIONAL LABOR RELATIONS BOARD set forth in the contract. Members of various craft unions affiliated with the M. T. C., who since prior to 1934 had performed a major part of the shipbuilding and repair work of the Companies, not only performed the same type of work as the members of the I. L. W. U. but also performed exclusively certain work within these classifica- tions' No definite line of demarcation was ever drawn between the respective jurisdictions of the I. L. W. U. and the M. T. C.,.and in' other than cleaning and scaling operations the consequent overlapping of work on various jobs was often the cause of dispute between the' two organizations. Willamette engaged in no' new "construction until 1940, and it was not until the latter part of 1939 that its repair operations in- eluded , the type of work performed 'by members of the I. L. W. U. Although it refused at that time to sign a contract with the- I. L. W. U., Willamette thereafter employed a number of men from the I. L. W. U. hiring hall under the wages, hours, and working conditions provided for in the I. L. W. U. contract with Albina and- Commercial.a In January 1940, the M. T. C. delivered an ultimatum to the Com- panies that on all new construction they were, to employ only mein hers of unions affiliated with the M. T. C.' In August 1940, Com-` mercial notified the, I. L. W. U. that it would not renew the 1938- contract after it expired on October 1, 1940. At approximately the same time, Albina informed the I. L. 'W. U. that for the following. contract year only members of unions affiliated with the M. T. C;' would be employed on new construction work. On September 16,• 1940, the I. L. W. U. submitted proposed contracts to the'Companies covering both repair and new construction • work in practically the same wage classifications as were listed in the 1938 contract.. The, Companies refused to sign, however, because of'the ultimatum of the M. T. C. and on October 1, 1940, Willamette executed a closed' shop: * For example , it appears from the evidence that while a majority 'of the cleaning and- scaling operations was performed by members of *the I. L. W. U. members of the Boiler makers Union likewise did certain cleaning and scaling work. As for rigging, most of this' work Sias performed exclusively by the Boilermakers Union, although some involving wood- work was done by the Carpenters Union. On only one or two isolated occasions bad' members of the`I . L. W. U. performed rigging work for either Albina or Commercial. Although members of the I . L. W. U. engaged in a variety of rough painting work, such, work was often divided with members of the Painters Union on a compromise basis with respect to particular jobs. A similar overlapping of work also existed during this period with respect to winch driving, hatch tending, and cementing. • . 6 During the period from November 14, 1939, to April 19, 1940, Willamette for the first time employed an aggregate of 29 men from the I. L. W. U. hiring hall on three jobs, none of which involved new construction. 6The I. L W. U. thereupon filed petitions with the Board for an'investigation and certi- fication of representatives . These petitions were dismissed , however, after the Companies had'expressed their intention^of continuing to employ members 'of the I. L. W. U whenever work customarily performedsby them was available. ' ALBINA EN,,GINE AND MACHINE WORKS, INC. 497 contract with, the M. T. C. Thereafter, the I. L. W. , U. filed its' petitions herein.. - On November 8, 1940, as hereinbefore stated; the Board recessed its hearing on the petitions filed by the I. L. W. U. to permit the parties to reach an accord with respect to the issues •involved.7 On December 2, 1940, when the hearing was resumed, the' I. L. W. U. moved to dismiss the petitions, stating that an accord had been reached with the M. T. C. Thereafter, the I. L. W. U. and the Com- panies entered into contract negotiations. On December 6, 1940, when the negotiations were about completed, the General Laborers Union, affiliated with the M. T. C., protested the execution of any contracts between the I. L. W. U. and the Companies. The Com- panies-accordingly refused to negotiate further with the I. L. W. U. until the complaint,of the General Laborers Union had been satis- factorily adjusted with the M. T. C. On December 19, 1940, repre- sentatives of the I. L. W. U. and the M. T. C. made an unsuccessful - attempt td settle the controversy. Thereafter, the Companies em- ployed, only members of unions affiliated with the M. T. C.8 The I. L. W. U. contends that all employees employed by. each of the Companies, respectively, in shipbuilding and drydock operations who are engaged in ship scaling, cleaning, sandblasting, painting, and other general shipyard labor; cleaning, scaling and painting oil tanks, bilges, double bottoms, hulls, decks, and superstructure except interior decoration, riggers, including rigging and erecting of ship's stand- ing and running. gear such as masts, booms, etc. ; winch drivers and hatch tenders used in rigging and cleaning operations; and all cement work, 'constitute units appropriate for the purposes of collective bar- gaining. The M. T. C. and the Companies claim that all employees of ' the Companies, respectively, excluding office and supervisory employ- ees, constitute appropriate bargaining units. In defining the unit which it now claims to be appropriate, it is evident that the I. L. W. U. has relied upon the general wage classifi- cations set forth in its 1938 contract with Albina and Commercial and to some extent upon the type of work actually performed for the Companies. - However, as found above, the broad jurisdiction indi- cated in the Albina and Commercial contract was never exercised by- the I. L. W. U., and while its members performed some work I Prior to the reaching of the accord between the I. L. W. U. and the M T C., the Boiler- makers Union offered to permit members of the I. L. W. U. to work at Willamette under dispatch from the I. L. W U. hiring hall pending settlement of the controversy The 1. L W. U accordingly dispatched approximately 50 of its members to work as helpers under the jurisdiction of the Boilermakers . Shortly thereafter, 37 of these men joined the Boilermakers , and in January 1941 the membership of the I L W U. bad decreased to between `48 and 58 members. "At the time of the hearing , Albina employed approximately 75 employees, Commercial 400, and Willamette 1000, all of whom were members of unions affiliated with the M. T C. 498 DECISIONS OF NATIONAL LABOR RELATIONS BOARD within the various categories listed in the unit it now seeks to estab- lish, such work in many instances was negligible in amount or the same as that also performed by members of the M. T. C. Conse- quently, it' cannot be said that the unit alleged to be appropriate by the I. L. W. U. has been established either by collective bargaining or by actual working practice. This is especially true with respect to Willamette, which never executed a contract with 'the I. L. W. II.: and employed only a few of its members during a relatively short period of time. Moreover, the line of demarcation which the I. L. W. U. attempts to draw in its definition of the appropriate unit establishes neither a craft nor a functional group, nor is it otherwise sufficiently definite to permit a practical application thereof to the integrated operations of the Companies. In view of the foregoing, we conclude that the unit contended for by the I. L. W. U. is inappro-' priate for the purposes of collective bargaining. Although at the hearing the M. T. C. asked for certification as the bargaining representative of the employees of the Companies, in its brief it requests only a dismissal of the petition filed by the I. L. W. U. We find that no question now exists concerning.the representation of employees of the Companies. On the basis of the above findings of fact and upon the entire record in the ease, the Board makes the following : CONCLUSION OF LAW No question has arisen concerning the representation of employees of Albina Engine and Machine Works, Inc., Commercial Iron Works, and Willamette Iron and Steel Corporation in units appropriate for the purposes of collective bargaining, within the meaning of Section 9 (c) of the National Labor Relations Act. ORDER Upon the basis of the foregoing findings of fact and conclusion of law, the National Labor Relations Board hereby orders that the peti- tions for investigation and certification of representatives of employees of Albina Engine and Machine Works, Inc., Commercial Iron Works, and Willamette Iron and^Steel Corporation' filed by International Longshoremen's and Warehousemen's Union, District 1, Local 33, affiliated with the C. I. O. be, and they hereby are, dismissed. ' MR. EDWIN S. SMrra, concurring : The Board is not here faced with a claim for representation by a craft group. The semi-industrial nature of the unit asked for by the I. L. W. U. is clearly evidenced by the widely divergent types of work ALBINA ENGINE, AND MACHINE WORKS, INC. 499 performed by employees it would include therein. While there is a history of collective bargaining in behalf of the I. L. W. U., the trends of such bargaining likewise has been towards an industrial rather than a craft unit' . In'fact, the present unit claims, of the I. L. W. U., as noted in the majority opinion, fan out so broadly as to create confusion as to just what boundaries short of an industrial unit are intended. Under such circumstances and for reasons stated in my dissenting opinion in Matter of Allis-Chalmers Manuu f actwring Company," I believe there is no justification for weakening the bargaining strength of the employees as an industrial unit by permitting the heterogeneous group represented by the I. L. W. U. to separate therefrom. Accord- ingly, I would find that ;industrial units composed of all employees of the Companies, respectively, are appropriate for the purposes of collective bargaining, and that no question now exists concerning the representation of employees within such units. OMatter of Allis-Chalmers Manufacturing Company and International Union, United Automobto Workers of Ainertca, Local 248, 4 N. L. R. B. 159, 175. I 440135-42-Vol 30-33