Robins Dry Dock & Repair Co.

In the Matter of ROBINS DRY DOCK & REPAIR COMPANY and INDUS- TRIAL UNION OF MARINE AND SHIPBUILDING} WORKERS OF AMERICA, LOCAL 39, C. 1. 0. ' Case No. B-2608.-Decided June 27,1941 Jurisdiction : ship repairing industry. Investigation and Certification of Representatives: existence of question: re- fusal to accord union recognition until certified by the Board; in accordance with the agreement of the parties, employees in the appropriate unit who have worked and/or "shaped for work" 50 per cent of the number of working days during a specified period, held eligible to vote ; election necessary. Unit Appropriate for Collective Bargaining : all production and maintenance employees at the Company's Erie Basin yard, including snappers (or subfore- men),-watchmen, floating-equipment men, toolkeepers, garagemen, storeroom workers, and practical or operating engineers, but excluding dockhands, storekeepers in the safety-equipment room, technical engineers, chauffeurs, traffic-department dispatchers, timekeepers, janitresses, draftsmen, office and clerical employees, supervisors, foremen, and assistant foremen. Mr. Daniel Baker, for the Board. Cullen & Dykman, by Mr. Harry G. Hill, of Brooklyn, N. Y., for the Company. . Mr. Samuel L. Rothbard, of Newark, N. J., and Mr. Joseph Burge, of Brooklyn, N. Y., for Local 39. Mr. Daniel J. McVarish and Mr. George A. MoKinnon, of New York City, for the Council. Mr. Joseph M. Conroy, of Jamaica, N. Y., for the Association. Mr. Abraham M. Fisch, by Mr. Sidney Schiffman, of New York City, and Mr. Samuel Grossman, of New York City, for Local 277. Mr. John A. Mellon and Mr. TV. G. Pendergast, of New York City, for the Boilermakers. Mr. Norman M. Neel, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE On May 12 and May 15, 1941, respectively, Industrial Union of Marine and Shipbuilding Workers of America, Local 39, affiliated 33 N. L. R. B., No. 2. 15 16 DECISIONS OF NATIONAL LABOR RELATIONS BOARD with the Congress of Industrial Organizations, herein called Local 39, filed with the Regional Director for the Second Region (New York City) a petition and an amended petition alleging that a question affecting commerce had arisen concerning the representa- tion of employees of Robins Dry Dock & Repair Company, Brook- lyn, New York, herein called the Company, and requesting an investigation and certification of representatives pursuant to Sec- tion 9 (c) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. On May 23, 1941, 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 Regulations-Series 2, as amended, ordered an investigation and authorized the Regional Director to conduct it and to provide for an appropriate hearing upon due notice. On May 23, 1941, the Regional Director issued a notice of hearing, copies of which were duly served upon the Company, upon Local 39, and upon International Brotherhood of Electrical Workers, Local 277, affiliated with the American Federation of Labor, herein called Local 277; Yard Workers Association, Inc., herein called the Asso- ciation; Marine Workers Metal Trades Council, affiliated with the American Federation of Labor, herein called the Council ; and Boiler; makers District Council No. 2, herein called the Boilermakers, labor organizations claiming to represent employees directly affected by the investigation.' Pursuant to notice, a hearing was held on May 26, 28, and June 2, 1941, at New York City, before Richard J. Hickey, the Trial Examiner duly designated by the Chief Trial Examiner. The Board, the Company, Local 39, the Association, the Council, Local 277, and the Boilermakers were represented by coun- sel or by representatives and participated in the hearing.2 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 hearing Local 39 requested leaver to withdraw a petition filed on July 8, 1937, by Industrial Union of Marine and Shipbuilding Workers of America, pursuant to which the Board issued a Direction of Elections on September 10, 1937, and on Sep- tember 24, 1937, an Amendment to Direction of Election,4 indefinitely postponing the election. No election has been held pursuant to the 1 Notice of hearing a as also served upon Pattern Makers of New York & Vicinity, Sheet Metal Workers Union No. 28, United Association of Plumbers & Steamfitters No. 1, District Counsel of Carpenters No. 12 , and International Association of Steam , Hot Water Local Union No. 638. None of these organizations appeared at the hearing. 2 The Boilermakers did not take an ELctive part in the hearing. 3 Matter o f Todd Shipyards Corporation, Robins Dry Dock and Repair Co., and Tietfen and Lang Dry Dock Co. and Industrial Union of Marine and Shipbuilding Workers of America, 3 N. L. R . B. 619. 4 3 N. L. R. B. 620. ROBINS DRY DOCK & REPAIR COMPANY 17 Direction of Election. We hereby vacate our Direction of Election and grant leave to withdraw the petition. During the course of the hearing the Trial Examiner made sev- eral rulings on motions and on objections to the admission of evi- dence. The Board has reviewed the rulings of the Trial Examiner and finds that no prejudicial errors were committed. The rulings are hereby affirmed., Upon the entire record in the case, the Board makes the, following : FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY Robins Dry Dock & Repair Company, Brooklyn, New York, a wholly owned subsidiary of Todd Shipyards Corporation,' is a New York corporation engaged in repairing, reconditioning, and reconstructing ships, principally large. steel, ocean-going vessels. The Company has one plant, the Erie Basin plant, located at the foot of Dwight Street in Brooklyn. Through its sales agents the Company solicits orders for the repair of vessels from numerous steamship companies, both inside and outside the State of New York and from the United States Government. The Company has business agents in the States of New York and New Jersey, and foreign business agents in Europe. About 98 percent of the vessels repaired at the Erie Basin plant are engaged in coastal and ocean-going transportation. The value of the repair work done at the. Erie Basin plant on coastal and ocean-going vessels for the period from January 1 to May 15, 1941, amounted to more than $5,000,000. In its operations the Company uses a considerable amount of steel, bolts, nuts, lumber, castings, pipes, valves, brass, electrical equipment, and machines and parts. During the period from January 1 to May 15, 1941, approximately 70 per cent of this material, valued at more than $3,000,000, was obtained from sources outside the State of New York. The Company concedes that it is engaged in interstate commerce within the meaning of the Act. H. THE ORGANIZATIONS INVOLVED Industrial Union of Marine and Shipbuilding Workers of America, Local 39, is a labor organization affiliated with the Congress of Indus- trial Organizations. It admits to membership employees of the Company. Marine Workers Metal Trades Council is a labor organization affili- ated with the American Federation of Labor. It is composed of subordinate locals which admit to membership employees of the Com-' pany. 18 DECISIONS OF NATIONAL LABOR RELATIONS BOARD International Brotherhood of Electrical Workers, Local 277, is a labor organization affiliated with Marine Workers Metal Trades Coun- cil. It admits to membership electrical workers of the Company. Yard Workers Association, Inc., is an unaffiliated labor organization. It admits to membership employees of the Company. III. THE QUESTION CONCERNING REPRESENTATION During the latter part of April 1941, Local 39 requested the Com- pany to recognize it as the exclusive collective bargaining agent for the Company's employees in the alleged appropriate bargaining unit. The Company refused to accord Local 39 such recognition until it had obtained certification by the Board. At the hearing the parties stipulated that Local 39 and the Yard Workers had substantial interests in the proceeding and substantial membership among the Company's employees entitling them to have their names placed upon the ballot. They stipulated further that Local 277 was likewise substantially represented among the electri- cians. It was.agreed further that the Council should submit evidence of its interest in the proceeding at a subsequent date, and the hearing was adjourned from May 28 to June 2,1941, for the purpose of permit- ting the Council to adduce such evidence. The Council failed to do so. We find that a question has arisen concerning the representation of employees of the Company. IV. THE EFFECT OF THE QUESTION CONCERNING REPRESENTATION UPON COMMERCE We find that the question concerning representation which has arisen, occurring in connection with the operations of the Company described in Section I, above, has a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tends to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE APPROPRIATE UNIT At the hearing Local 39 requested a unit consisting of all production and maintenance employees at the Company's Erie Basin yard, in- cluding snappers (or subforemen), watchmen, floating-equipment men, dockhands, toolkeepers, garagemen, storeroom workers and operating or practical engineers, but excluding storekeepers in the safety-equip- ment room, technical engineers, chauffeurs, traffic-department dis- patchers, timekeepers, janitresses, draftsmen, office and clerical officers, and supervisors. The Company and the Association are in approxi- mate accord with Local 39's unit claim, differing only in regard to ROBINS DRY DOCK & REPAIR COMPANY 19 some of the fringe groups hereinafter discussed. The Council requests the designation of separate units consisting of the various crafts of, which the Council is composed while Local 277 desires a single craft unit consisting of electricians, helpers, and snappers. The Company's operations are functionally integrated and encom- pass many different trades 5 all essential in the repair and reconstruc- tion of ships. There is, in many instances, no physical demarcation in the work of the various trades, and similar working conditions and rates of pay prevail for workers of similar skill in all the various categories. On the other hand, there is little interchangeability of members of the various crafts. In the past there have been no negotiations between the Company and any of the organizations here involved concerning wages, hours, or working conditions. Both Local 39 and the Association, however, have presented grievances to the management. Local 39 and the Association have organized on an industrial basis. Local 39 submitted evidence of five contracts with other Companies by the terms of which it bargained on an industrial basis. Local 277, although organized on a craft basis, has not had any contractual relations with employers except through the Council of which it is a member and on whose exec- utive committee it is represented. The Council negotiates for all the employees in the yards with which it has contractual relations.e Under the circumstances we are of the opinion that a unit consisting of production and maintenance employees is appropriate. We shall pass to a consideration of the groups in dispute. Snappers or sub f oremen. All the parties, with the exception of the Company, agree upon the inclusion of snappers. These employees handle gangs of workmen in the various departments and are under the supervision of foremen and assistant foremen. Some of them are empowered to hire and discharge. For the most part they do not work with tools and they are hourly paid like other production employees. We shall include snappers in the appropriate unit. Watchmen are engaged in tending gates, patrolling, ringing clocks, and in fire detection. They are hourly paid and not on the "shape-up." 7 Local 39 and the Association desire their inclusion and the Company and the Council their exclusion. We shall include them in the unit. Timekeepers. All the parties would exclude timekeepers from the unit as clerical employees. We shall exclude them. 5 At least the following crafts work in the yard : boilermakers, machinists, patternmakers, plumbers, pipefitters, carpenters , engineers, portable stationary engineers and architects, upholsterers, blacksmiths, painters, caulkers, tinsmiths, and electricians. The Council submitted evidence of contracts which it had with United Shipyards, Inc. and the "Marine Basin." 4 The "shape-up" is a method by which employees of the Company are hired on a day-to- day basis . They must assemble in the shape -up line at the yard gate every day and are selected to work on that day by the Company's representatives. 450122-42-vol. 33-3 20 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Floating-equipment men. There are about 12 persons classified as floating-equipment men who work on boats used to transport men and materials outside the yard to the piers. They perform the duties of seamen, four of them being on a steam "liner" under the direction of a captain. All the parties excepting the Company desire their inclusion. They shall be included in the unit. Assistant foremen. All the parties with the exception of the Council desire the exclusion of assistant foremen, many of whom have the power to hire and discharge. We shall exclude assistant foremen as supervisory employees. Dockhands. Local 39 desires the inclusion of dockhands in the unit. while the Association, the Council, and the Company would exclude them. The precise nature of their duties is not disclosed. We shall exclude them. Toolkeepers. Local 39 and the Council desire the inclusion of tool- keepers and the Association and the Company request their exclusion. They are storeroom keepers in each of the various departments en- gaged in issuing and receiving tools and keeping records of their issu- ance and receipt. They work regular hours; they have no authority or supervision, and are, for the most part, hourly paid, although some receive salaries . We shall include toolkeepers in the appropriate unit. Garagemen. Local 39 would include garagemen if they are not chauffeurs, the Council would exclude them, and the Association and the Company express no preference concerning them. They are engaged in repair work and we shall include them. Storeroom workers. The Council and Local 39 request the inclusion and the Association and the Company the exclusion of storeroom workers who work in the general stockroom for the entire yard, under the supervision of the purchasing agent. We shall include them in the unit. Storekeeper in the safety-equipment room. All the parties request the exclusion of these employees who issue safety equipment and sell clothes and who work in the personnel building under the supervision of the personnel manager. They shall be excluded. Engineers. There are two general types of engineers at the Com- pany's yard, practical engineers who operate equipment, and technical engineers among whom are designing engineers. All the parties desire the inclusion of practical or operating engineers and we shall include them. The Council desires the inclusion also of technical engineers, the other parties requesting their exclusion. We are of the opinion that the technical nature of their work distinguishes them from the remaining employees in the unit and we shall accordingly exclude technical engineers from the appropriate unit. ROBINS DRY DOCK & REPAIR COMPANY 21 Local 39 desires the exclusion of chauffeurs, traffic-department dis- patchers, janitresses, draftsmen, office and clerical employees, and supervisors. None of the parties urge the inclusion of these employees. They shall be excluded from the unit. We find that all production and maintenance employees at-the Com- pany's Erie Basin yard, including snappers (or subforemen), N atch- men, floating-equipment men, toolkeepers, garagemen, storeroom workers, and practical or operating engineers , but excluding dock- hands, storekeepers in the safety -equipment room, technical engineers, chauffeurs, traffic-department dispatchers, timekeepers, janitresses, draftsmen, office and clerical employees , supervisors, foremen, and assistant foremen , constitute 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. VI. THE DETERMINATION OF REPRESENTATIVES We find that the question concerning representation can best be resolved by an election by secret ballot. At the hearing the parties agreed that all employees in the appropriate unit who have worked and/or shaped for work, 50 Per cent of the number of working days from January 1 to May 13, 1941, should be eligible to participate in the election,8 asserting as a reason for such a test of eligibility the prevalence of periods of increased employment, the effects of which this test would obviate. We shall give effect to the desires of the parties and direct that all employees in the appropriate unit who have worked and/or shaped for work 50 per cent of the number of working days from January 1 to May 13, 1941,9 excluding employees who have quit or been dis- charged for cause, shall be eligible to vote. We are of the opinion that since the Council customarily negotiates on behalf of its constituent locals to which the employees at the Com- pany's yard are for the most part eligible to membership, the showing of representation of Local 277, which is a member of the Council, may properly be considered as entitling the Council to a place upon the ballot. • The test was explained to mean that a combination of both working and shaping for work, or either, for the requisite period of time, should constitute eligibility and further agreed that the number of working days per week to be counted should be six, and in addition, that a person working 1 hour or less on a particular day should be deemed to have worked that day. 0 See footnote 8, supra. 22 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon the basis of the above findings of fact and upon the entire record in the case, the Board makes the following : CONCLUSIONS OF LAW 1. A question affecting commerce has arisen concerning the repre- sentation of employees of Robins Dry Dock & Repair Company, Brooklyn, New York, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the National Labor Relations Act. 2. All production and maintenance employees at the Company's Erie Basin yard, including snappers (or subforemen), watchmen, floating-equipment men, toolkeepers, garagemen, storeroom workers, and practical or operating engineers, but excluding dockhands, store- keepers in the safety-equipment room, technical engineers, chauffeurs, traffic-department dispatchers, timekeepers, janitresses, draftsmen, office and clerical employees, supervisors, foremen, and assistant fore- men, 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 Rela- tions Act, and pursuant to Article III, Section 8, of National Labor Relations Board Rules and Regulations-Series 2, as amended, it is hereby Dn rri o that, as part of the investigation ordered by the Board to ascertain representatives for the purposes of collective bargaining with Robins Dry Dock & Repair Company, Brooklyn, New York, 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 Director for the Second Region, acting in this matter as agent for the National Labor Relations Board and subject to Article III, Section 9, of said Rules and Regulations, among all production and maintenance employees at the Company's Erie Basin yard, including snappers (or subfore- men), watchmen, floating-equipment men, toolkeepers, garagemen, storeroom workers, and practical or operating engineers, who worked and/or shaped for work 50 per cent of the number of working days from January 1 to May 13, 1941, but excluding dockhands, store- keepers in the safety-equipment room, technical engineers, chauffeurs, traffic-department dispatchers, timekeepers, janitresses, draftsmen, office and clerical employees, supervisors, foremen, and assistant fore- men, and all persons who have quit or been discharged for cause, to ROBINS DRY DOCK & REPAIR COMPANY 23 determine whether they desire to be represented by Industrial Union of Marine and Shipbuilding Workers of America, Local 39, affiliated with the Congress of Industrial Organizations, by Yard Workers Association, Inc., or by Marine Workers Metal Trades Council, affil- iated with the American Federation of Labor (International Brother- hood of Electrical Workers, Local 277, et al.) for the purposes of collective bargaining, or by none of these organizations. MR. EDWIN S. SMITH, dissenting in part : The toolkeepers, storeroom workers, watchmen, and garagemen are all engaged in work that places them on the fringe of the functions of the employees admittedly in the unit. Following the long-estab- lished rule of the Board in the case of such "fringe groups," I would hold that the above-named employees should be excluded from the unit on the ground that one of the labor organizations desires their exclusion.10 I concur in the remainder of the Board's Decision and Direction of Election. "Bee the eases and authorities cited in my separate opinion in Matter of Pidgeon Thomas Iron Company and Steel Workers Organizing Committee, 32 N. L. R. B. 295.