Alabama Dry Dock and Shipbuilding Co.

National Labor Relations Board - Board Decisions

Mar 20, 1942

39 N.L.R.B. 954 (N.L.R.B. 1942)

In the Matter of ALABAMA DRY DOCK AND SIIIPBUILDING Co. and MOBILE
METAL TRADES COUNCIL, AFFILIATED WITH AMERICAN FEDERATION OF
LABOR
Case No. H-3558-Decided March 20;1,942
Jurisdiction : shipbuilding and ship repairing industry
I ivestigation and Certification of Representatives : existence of question • re-
fusal of Company to accord union recognition ; contract'enteied into after filing
of petition, no bar to ; eligibility determined in a manner which parties agreed
is a proper test to apply to determine eligibility in view of unusual employment
conditions at plant involved, election necessary.
Unit Appropriate for Collective Bargaining : all maintenance and production
employees including temporary leadermen, but excluding clerical and office
workers, draftsmen, checkers, tunekeepers, watchmen, permanent or regular
leadermen, subforemen, foremen, and other supervisory officials
Mr. Ralph K. Chase and William T. Daly, of Mobile, Ala., for the
Company.
Mr. Bentley G. Byrnes, of New Orleans, La., for the Metal Trades
Council.
Mr. Yelverton Cowherd, of Birmingham, Ala., for the Industrial
Union _
Mr. Ralph Molbert, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
,STATEMENT OF THE CAST;
On January'8; 1912, Mobile Metal Trades Council, affiliated With the
Anierican Federation of Labor, herein called the Metal Trades Council,
filed with the Regional Director for the Fifteenth Region (New Orle-
ans, Louisiana) a petition alleging that a question affecting commerce
had arisen concerning the representation of employees of Alabama Dry
,Dock and Shipbuilding Co., Mobile, Alabama, herein called the Com-
pai y, and-requesting•an investigation and certification of representa-
tives pursuant to Section 9 (c) of the National Labor Relations Act,
49 Stat. 449, herein called the Act: On January 28, 1942, the National
Labor Relations Board, herein called the Board, acting pursuant to
39 N. L. R B , No. 188
954 - .,.
ALABAMA DRY DOCK AND SHIPBUILDING CO. 955
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 on due notice.
On January 29, 1942, the Regional Director issued a notice of hear-
ing and, on February 3, 1942, a notice of postponement of hearing,
copies of which were duly served upon the Company, the Metal Trades
Council, and Industrial Union of Marine and Shipbuilding Workers of
America, affiliated with the Congress of Industrial Organizations, here-
in called the Industrial Union, a labor organization claiming to rep-
resent employees directly affected by the investigation. Pursuant to
notice, a hearing was held on February 17, 1942, at Mobile, Alabama,
before C. Paul 'Barker, the Trial Examiner duly designated by the
Chief Trial Examiner. The Company, the Metal Trades Council, and
the Industrial Union were represented 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.
During the course of the hearing; the Industrial Union moved to
dismiss the petition filed by the Metal Trades Council. The Trial
Examiner reserved ruling on this thotion. The motion is hereby de-
nied. During the course of the hearing the Trial Examiner made
several rulings on other motions and on objections to the admission
of evidence. The Board has reviewed the rulings of the Trial Ex-
aminer and finds that no prejudicial errors were committed.' The
rulings are hereby affirmed. The -Metal Trades Council and the Com-
pany thereafter filed briefs which have been considered by the Board.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
T. THE BUSINESS OF THE COINIPANY
-p-Alabama Dry Dock -and Shipbuilding Co., an Alabama corpora-
.
",tion 'maintains its principal office at Mobile , Alabama, and operates
two repair yards and a construction yard located adjacent to Mobile,
Alabama. It is engaged in the business of repairing and constructing .
oceangoing passenger and cargo ships and inland barges. The Com-
pany holds contracts for the repair and construction of vessels for
agencies of the United States Government. The value of these con-
tracts exceeds $20,000 ,000. The Company admits that it is engaged in
commerce within the meaning of the Act.
II. THE ORGANIZATIONS INVOLVED
Mobile Metal Trades Council is a labor organization affiliated with
the American Federation of Labor. Through its component unions,
956 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
which are affiliated with the American Federation of Labor, it admits
to membership employees of the Company . Mobile Metal Trades
Council represents the following local unions affiliated with the Ameri-
can Federation of Labor : International Brotherhood of Boilermakers,
Iron Shipbuilders , Welders and Helpers of America; International
Union of Operating Engineers ; International Association of Machin-
ists; United Association of Journeymen Plumbers and Steam Fitters;
United States and Canada Amalgamated Assocation of Sheet Metal
Workers; United Brotherhood of Carpenters and Joiners ; Brother-
hood of Painters , Decorators and Paper Hangers of America; Inter-
national Union of Common Labor; Heat and Frost Workers; Inter-
national Brotherhood of Blacksmiths ; International Union of Team-
sters, Chauffeurs and Warehousemen of America ; International 'As-
sociation . of Bridge , Structural & Ornamental Iron Workers; and
International Brotherhood of Electrical Workers.
Industrial Union of Marine and Shipbuilding Workers of America,
affiliated with the Congress of Industrial Organizations , is a labor
organization admitting to membership employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
The Metal Trades Council ' on December 30, 1941, appeared before
the Regional Director for the Fifteenth Region and asserted its claim
to represent a majority of the employees in a designated unit of the
Company's employees. The Regional Director, on the same day,
through a telephone conversation with a Company official and by letter
under the date of December 30, 1941, notified the Company that the
Metal Trades Council was filing a petition for certification and indes-
tigation pursuant to Section 9 (c) of the National Labor Relations
Act. On January 16,'1942, in a letter addressed to the Company, the
Metal Trades Council requested that the Company either agree to
collective bargaining negotiations with it or postpone negotiations
with any other labor group until such time as the Board should certify
a•bargaining agency. The Company made no reply to this request ,',,
The Industrial Union was certified on May 2, 1938 , by the Board-- as'
the' exclusive representative of the employees of the Company in W
designated unit for the purposes of collective bargaining.' On Sep-
tember 6, 1938 , the Industrial Union and the Company entered into a
collective bargaining contract of indefinite duration. This contract
remained in force and effect untill sometime in January 1941. A new
contract was executed on February 3, 1941 , to be effective until Feb-
ruary 3, 1942, and thereafter from year , to year unless either party, at
least 30 days prior to the expiration of the term , or 'an extended term,
gave written notice to the other, of an intention to make changes in,
'7N.L R B.9.
ALABAMA DRY DOCK AND SHIPBUILDING CO. 957,
or to- terminate the agreement. The parties to the contract partici-
pated in the Gulf Zone Standards Conference held at New Orleans, on
May 13, 1941. This conference published on June 18, 1941, a "Gulf
'Shipbuilding and Repair Zone Standards Agreement." The Indus-
trial Union and the Company agreed to incorporate certain standards
there adopted into their pre-existing contract.' On January 3, 1942,
the Industrial Union by letter requested a conference with the Com-
pany for the purpose of negotiating a new contract. On January 26,
1942, the Industrial Union and the Company entered into a new con-
tract to be in force and effect until August 1, 1943, and thereafter until
either party shall give 30 days' notice of its desire to' terminate or
modify the contract. It is clear, wider these circumstances, that the
contract executed on January 26, 1942, is not a bar to this proceeding.
A statement by the'Regional Director introduced in evidence at the
hearing discloses that the Metal Trades Council represents a substan-
tial number of employees in the unit hereinafter found to be appro-
priate.
We find that a queston,has arisen concerning representation of em
ployees of the Company.
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 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.
2 The case of Alabama Dry Dock and Shipbuildink Company and Industrial Union of
Marine and Shipbuilding Workers of America, Local 18, C. I. 0., as certified to the
National Defense Mediation Board on October 8, 1941.
The Industrial Union sought to include a provision for a "union shop" in the con-
tract between it and the Company The Industrial Union contended that the contract
of February 3, 1941, was in some respects inconsistent with the provisions adopted at
the Gulf Zone Standards Conference and since the existing agreement had to be modified
in part , every section of it was thrown open'for negotiation . The Industrial Union
further took , the position that the agreement adopted at the Conference ' voided existing
collective , bargaining agreements . The Company contended that the contract executed on
.February 3, 1941 , was in force and effect until February t, 1042, modified to accord with
the Zone Standards but otherwise effective without change. The National Defense
Mediation Board was of the opinion that the ratification of the Zone Standards by both
parties did not terminate the contract executed on February 3, 1941, and it recommended
that until February 3, 1942, the relations between the Industrial Union and the Company
be governed by the existing contract of February 3, 1941, modified to the extent required
to conform to the Gulf Zone Standards and no further.
3 The Regional Director ' s statement shows that the Metal Trades Council submitted
records for 5 , 663 members in the individual unions The Regional Director reported that
4,434 of the names appearing on these records were the names of persons appearing on
the Company 's' pay roll . The application cards submitted to the Regional Director were
dated within the last 4 months . The Company estimated that about 6,599 checks were
issued on February 3, 1942, to employees of the Company who would fall within the
appropriate unit.
1958 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
V THE AI'I'IlOPR IAl i:UNIT `
The Metal Trades Council requests a unit composed of all employees,
of the Company engaged in maintenance and production, excluding
clerical and office Workers, draftsmen, checkers (except warehouse
checkers), timekeepers, watchmen, subforemen, and foremen paid on a
salary basis, and all supervisory employees above foremen. The Indus-
trial Union contends that watchmen should be included in the unit, and
that all leadermen, subforemen, and foremen, and-warehouse checkers
should be excluded. In other respects it agrees that the unit sought by
the Metal Trades Council is appropriate.5
A. Leader-men, subforemen, and foremen on an hourly basis
All employees in this group have the authority to recommend hire or
discharge and some have power to hire and discharge. Leadermen are
further classified as permanent (or regular) and temporary leadermen.
Temporary leadermen, When not needed as leadermen, work with tools
without distinction from other employees. The class,of employees now
known as temporary leadermen correspond to the group formerly
known as leadermen on an hourly basis.' These employees were in-
cluded in the unit found appropriate in the prior proceeding 7 and have
been included in subsequent bargaining agreements with the Company,.
We are of the opinion that temporary leadermen should be included 111
the unit, but that the permanent or regular leadermen and all subfore-
men,and foremen should be excluded since they exercise substantial
supervisory authority.
B. Warehouse Checkers s
Warehouse checkers, paid on an hourly basis, check material in and
out of the warehouse and keep records in connection therewith. All
' On February 23, 1938 , an election was held , pursuant to a Decision and Direction of
Election (5 N L R B No. 149) among all persons employed by the Company other than
clerical and office workers, draftsmen , checkers , timekeepers, leadermen paid on a salary
basis , foremen, and other supervisory officials . On May 2 , 1938, the Industrial Union
was certified by the Board as the exclusive representative of the employees of the Com-
pany in that unit. Footnote 1, supra The Metal Trades Council, a party to that pro-
ceeding, represented 11 of the 13 unions affiliated with the American Federation of Labor
that it represents in this proceeding
u At the hearing the Company took the position that the watchmen should not be ex-
cluded In its brief the Company argued that the other classes of employees in dispute
should be excluded from the unit.
Formerly all the permanent or regular leadermen and apparently the subforemen and
foremen were paid on a salary basis. All leadermen and most of the subforemen, and
foremen are now employed by the Company on an hourly basis The change was made to
correct the condition formerly existing whereby many employees on an hourly basis, due to
overtime wage rates , earned more than leadermen on a salary basis
7 See footnote 4, supra.
6 Warehouse checkers are eligible to membership in the International Union of Teamsters,
Chauffeurs and Warehousemen of America, one of the A. F. of L unions now affiliated
-with the Metal Trades Council. This union was not represented by the Metal Trades
Council in the prior proceeding 5 N L R B 149
ALABAMA DRY DOCK AND SHIPBUILDING CO. -959
other checkers, the parties agree should be excluded. Warehouse
checkers have been excluded from the unit covered by collective bar-
gaining agreements-between the Company and the Industrial Union.
We are of the opinion the warehouse checkers should be excluded from
the unit.
C. Watchmen-
All the watchmen are, or the remainder soon will be, deputized as
special police officers of the city of Mobile. They carry' firearms and
their primary duties consist of inspecting the passes of all persons
entering the plant, guarding against safety and fire hazards, and di-
recting traffic within the grounds pf the Company. In the perform-
ance of their duties they have the power to arrest employees within the
plant of the Company. Watchmen were not excluded- in either the
-prior proceeding or the bargaining agreements entered into subsequent
thereto but their functions and duties have materially changed since
that time. We are of the opinion that watchmen should be excluded
from the unit.
We find that all employees of the Company engaged in'maintenance
and production including temporary leadermen, but excluding clerical'
and office workers, draftsmen, checkers, timekeepers, watchmen, per-
manent or regular leadermen, subforemen, foremen, and other super-
visory officials, constitute a unit appropriate for the purposes of collec-
tive bargaining. We further find that said unit will insure to em-
ployees of the Company the full benefit of their right to self -organiza-
tion and to collective bargaining and otherwise will effectuate the
policies of the Act.
VI. THE DETERMINATION OF REPRESENTATIVES
We find that the question concerning representation which has
arisen can best be resolved by an election by secret ballot. We shall
direct that all employees in the appropriate unit who drew pay once
during any one of the weeks ending January 13, 20, 27, or February
3, 1942, and who also drew pay once during any one of the '4 weeks
ending December 2, 9, 16, and 23, 1941," subject to- the limitations and
additions as are set forth in the Direction of Election herein, shall
be eligible to vote.
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 Alabama Dry Dock Shipbuilding Co., Mo-
"All pathos have agreed that this test to deter"mine ehgibilily shQuld he used in the
election because of the unusual employment conditions at the plant of the Company
4481 05-42-\ of 39-62
960 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
bile, Alabama, within the meaning of Section 9 (c) and Section 2
(6) and (7) of the National Labor Relations Act.
2. All employees of the Company engaged in maintenance and pro-
duction including temporary leadermen, but excluding clerical and
office workers, draftsmen, checkers, timekeepers, watchmen, perma-
nent or regular leadermen, subforemen, foremen, and other supervisory
officials, 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, 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 Alabama Dry Dock and Shipbuilding Co., Mobile , Alabama, 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 Fif-
teenth 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 employees of the Company , engaged in
maintenance and production who drew pay once during any one of
the 4 weeks ending January , 13, 20, 27, or February 3, 1942, and who
also drew pay once during any one of the 4 weeks , ending December 2,
9, 16, and 23 , 1941, including temporary leadermen and employees who
did not work during such pay-roll period because they were ill or on
vacation or in the active military service or training of the United
States, or temporarily laid off , but excluding clerical and office work-
ers, draftsmen , checkers , timekeepers , watchmen, permanent or regu-
lar leadermen , subforemen , foremen, and other supervisory employees;
and those employees who have since quit or been discharged for cause,
to determine whether they desire to be represented by Mobile Metal
Trades Council , affiliated with the A . F. of L ., or by Industrial Union
of Marine and Shipbuilding Workers, Local 18, affiliated with the
C. I. 0., for the purposes of collective bargaining , or by neither.