Bethlehem Steel Co.

National Labor Relations Board - Board Decisions

Mar 28, 1942

39 N.L.R.B. 1230 (N.L.R.B. 1942)

In the Matter of BETHLEHEM STEEL COMPANY (BOSTON YARDS) and
PATTERN MAKERS LEAGUE OF NORTH AMERICA (AFL)
Case No. B-3571.-Decided March 08, 1942
Jurisdiction : ship repairing industry.
Investigation and Certification of Representatives : existence of question: re-
fusal to accord union recognition on ground that an industrial unit including
employees in question was formerly found to be appropriate ; question exists
despite prior determination of broader unit and conducting of negotiations
on that basis ; election necessary.
Unit Appropriate for Collective Bargaining : determination of whether pattern-
makers and patternmakers ' apprentices shall constitute a separate unit or
shall remain a part of the industrial unit held dependent upon desires of
employees themselves.
Mr. John L. Wynne, of Bethlehem, Pa., for the Company.
Mr. George Q. Lynch, of Washington, D. C., for the PML.
Mr. Samuel E. Angoff, of Boston, Mass., for the IUMS.
Mr. Robert A. Zottoli, of Quincy, Mass., for the Independent.
Mr. George A. Koplow, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
On January 17, 1942, Pattern Makers League of North America
(AFL), herein called PML, filed with the Regional Director for
the First Region (Boston, Massachusetts) a petition alleging that a
question affecting commerce had arisen concerning the representa-
tion of employees of Bethlehem Steel Company (Boston Yards);
East Boston, Massachusetts, herein called the Company,' and re-
questing 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 February 2, 1942, the National Labor
Relations Board, herein called the Board, acting pursuant to Section
'In the petition and other foirnal papers the Company was designated "Bethlehem Steel
Corporation ( Simpson & Atlantic Works Plants )." By amendment at the hearing the
designation was changed to "Bethlehem Steel Company ( Boston Yards)."
39 N. L . R. B., No. 229.
r
1230
BETHLEHEM STEEL COMPANY - 1231
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, and authorized the Regional Director to conduct it
and to provide for an appropriate hearing upon due notice.
On February 12, 1942, the Regional Director issued a notice of
,hearing, copies of which were duly served upon the Company, upon
the• PML, upon the industrial Union of Marine and Shipbuilding
Workers of America, Local No. 25, 'herein called the IUMS, and
upon Independent Union at the Simpson & Atlantic Yards, herein
called, the Independent. The latter two organizations claim to
represent employees directly affected by the investigation.
Pursuant to notice, a hearing was held on February 24, 1942, at
Boston, Massachusetts, before Albert J. Hoban, the Trial Examiner
duly designated by the Chief Trial Examiner. The Company, the
PML, the IUMS, and the Independent were represented by counsel
or other representatives and participated in the hearing. Full op-
portunity 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 committed. The rulings are hereby
affirmed. The Trial Examiner also referred to the Board certain
motions to' dismiss which are denied for the reasons set forth below.
The IUMS filed a brief which the Board has considered.
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACrr
1. THE BUSINESS OF THE COMPANY
Bethlehem Steel Company, a Pennsylvania corporation, with offices
for its Shipbuilding Division located in New York City, is engaged
through its Shipbuilding Division in the repair, reconditioning, and
reconstruction of ships at yards located in East Boston, Massachusetts,
herein called the Boston Yards. This is the only phase of the Com-
pany's operations involved in this proceeding. During 1941 the value
of all materials used at the Boston Yards, other than materials pro-
duced or manufactured at said Boston Yards and materials purchased
for specific contracts, which are usually finished materials, was in
excess of $1,200,000; of which more than 70'percent was delivered from
points 'outside the` Commonwealth of Massachusetts. During 1941
the amount billed by the Company for the repair, reconditioning, and
reconstruction of ships at the Boston Yards was; in excess of $9,400,-.
000, of which more than 95 percent, was billed with respect to work'
448105-42-vol. 39-79
1232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
performed on ships which were destined for use in interstate and for-
eign commerce. The Company admits that it is engaged at its
Boston Yards in commerce within the meaning of the Act.
II. -THE ORGANIZATIONS INVOLVED
Pattern Makers League of North America, affiliated with the Amer-
ican Federation of Labor; Industrial Union of Marine and Shipbuild-
ing Workers of America, Local No. 25, affiliated with the Congress of
Industrial Organizations; and Independent Union at the, Simpson &
Atlantic Yards, unaffiliated , are labor organizations admitting to
membership employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
During 1941 the Company refused, upon request, to recognize the
PML as the collective bargaining representative of the Company's pat-
tern makers and apprentices, on the ground that in an order of the
Board, enforced by the United States Circuit Court of Appeals, an
industrial unit which includes pattern makers and apprentices was
found to be appropriate.
On November 1, 1937, the IUMS filed a petition for certification
as the representative of employees in an industrial unit. The peti-
tion was consolidated with charges of unfair labor practices against
the Company and with a petition and charges involving another
branch of the Company's operations. After extended hearings the
Board on February 10, 1939, issued a Decision in which it found
that the appropriate unit consisted of the production, maintenance,
and stockroom employees at the Boston Yards, exclusive of office,
clerical, supervisory, and executive employees, draftsmen, watchmen,
and janitors.2 The Board also dismissed the petition upon finding
that the IUMS had been designated by a majority of the employees
in such unit, and ordered the Company, upon request, to bargain with
the IUMS as the exclusive representative of said employees. The
Order of the Board was enforced by the United States Circuit
Court of Appeals for the First Circuit on October 8, 1940,3 and on
January 13, 1941, the Company's petition for certiorari was dismissed
by the Supreme Court of the United States, on the Company's
motion.,
Since January 13, 1941, the Company and the IUMS have engaged
in extensive collective bargaining negotiations resulting in the exe-
cution on June 10, 1941, of a nation-wide "Memorandum of Under-
2 Matter of Bethlehem Shipbuilding Corporation, et at., 11 N. L R. B 105.
3 Bethlehem Shipbuilding Corporation v. National Labor Rkatione 'Board, 114 F. (2d)
930 (C. C. A. 1).
4 Bethlehem Shipbuilding Corporation V. National Labor Relation8 Board, 312 U. S. 710.
BETHLEHEM STEEL COMPANY 1233
standing," in which, inter alia, the Company and the IUMS
established certain grievance' procedures and agreed to conduct fur-
ther negotiations looking toward an agreement covering conditions
of employment in all plants and yards of the Company in which
the IUMS is certified by the Board as the bargaining representative.
At the time of the hearing the, further negotiations that were con-
ducted pursuant to the Memorandum were the subject of proceedings
pending-before the National War Labor Board.
The IUMS contends that no question concerning representation
exists because of the Board's prior determination of the broader
unit and the fact that extensive negotiations have been conducted on
that basis, and moved, therefore, that the petition be dismissed.
For the reasons stated in Section V, below, the motion to dismiss is
hereby denied."
A statement of the Regional Director introduced into evidence dis-
closes that the PML represents a substantial number of employees in
the collective bargaining unit hereinafter found to be appropriate 6
No.evidence was introduced to show that the IUMS or the Independ-
ent represents any employees in said unit.
We find that a question has arisen concerning the representation of
employees of the Company. I ,
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
The PML claims that a unit composed of the pattern makers and
pattern makers' apprentices is appropriate for the purposes of col-
lective bargaining. The IUMS and the Independent contend that a
unit of production and maintenance employees including the pattern
makers and apprentices is,appropriate. I -
c We find no merit in the contention of the IUMS that the Board does not have jurisdic-
tion to determine the unit in these proceedings because the prior determination has been
upheld by the courts . See Section 9 (b) of the Act.
The PML submitted to the Regional Director 12 membership cards, of which two were
dated in 1936 , one in 1937 , four in 1940 , and five in 1941. The cards indicated that the
last dues payment for each of the 12 individuals was made in December 1941 or January
1942. All 12 cards bore the names of employees on the Cbmpany 's pay roll of February 7,
1942, in the unit hereinafter found to be appropriate . There are 13 employees in the unit.
1234 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pattern makers constitute a well established, clearly identifiable,
and highly skilled craft requiring a long apprenticeship. They
can, and often do, move from one plant or type of industrial activity
to another, with no special training required-to make the change.
The PML has been in existence in this country for more than 50
years, and admits to membership only pattern makers and appren-
tices. By its constitution it provides its members with tool insurance,
sick and death benefits, and various other types of financial assistance.
The record shows that at the Boston Yards there are at the present
time approximately 12 or 13 pattern makers, including one appren-
tice, whereas prior to 1940 only three of four pattern makers were
employed. Many of the conditions of their employment are similar
to those of the other production employees. On the other hand,
they all work in the pattern shop, which, although not a separate
building, is separate from other shops in the yards. All construction
and repair work on patterns is done by the pattern, makers and ap-
prentices, without the assistance of helpers. While the grievance
procedure established,-by the IUMS is available to all employees,
none of the pattern makers has ever made any use of 'it. At the
present time all but one of the pattern makers are members of the
PML, in good standing, despite the fact that the IUMS has been
found to be the representative of a unit which includes them.
The earlier' proceedings before the Board, insofar as they dealt
with the unit question, were concerned primarily with determining
whether the Company had failed to bargain with the IUMS as the
representative of employees in an appropriate unit. The PML did
not appear to contest the determination of the unit, nor was the PML
served with notice of the proceedings. The Decision did not mention
or discuss the pattern makers specifically. Thus there has been no
prior consideration of the contentions of the respective advocates
of craft and industrial unionism in a proceeding where the ultimate
question to be determined is one of representation in an appropriate
unit.
In view of all the circumstances, we are of the opinion that the
considerations are sufficiently balanced to make the desires * of the
pattern makers and pattern markers' apprentices themselves con-
trolling in our determination of the type of unit through which they
shall bargain.7 Accordingly we shall direct an election among the
7 See Matter of Bendix Products Division of Bendix Aviation Corporation and Pattern
Makers League of North America , South Bend Association , affiliated with the A . F. of L,
39 N. L R B. 81; Matter of Globe Machine and Stamping Company and Metal Polishers
Union, Local No 3, et al., 3 N L. R. B. 294. See also Third Annual Report of the Board,
pp 167 if., and cases cited therein.
In Matter of Bethlehem Steel Company,, Sparrows Point Division and Baltimore Associa-
tion of the Pattern Makers League of North America , 32 N. L. R. B. 1131, the Board
found that the pattern makers and apprentices constituted a separate appropriate unit.
(See also discussion of this case in Sixth Annual Report of the Board , p. 64). In Matter
EETHLEHEM STEEL COMPANY 1235
pattern makers and apprentices of the Company to determine
whether or not they desire to be represented by the PML. If' a
majority of these employees votes in favor of the PML, they shall
constitute a separate unit for bargaining purposes; if a majority
votes against the PML, the petition shall be dismissed and they shall
remain a part of the industrial unit.
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. Both the
IUMS and the Independent asked that the petition be dismissed, and
requested that their names be omitted from the ballot in the event
the Board directs an election. Accordingly, only the PML will appear
on the ballot.
We shall direct that the employees of the Company ' eligible to
vote in the election shall be those employed as pattern makers and
pattern makers' apprentices during the pay-roll period immediately
preceding the date of this Direction of Election, subject to the limita-
tions and additions set forth in the Direction.
Upon the basis of the above findings of fact and upon the entire
record in the case, the Board makes the following :
CONCLUSION OF LAW
A question affecting commerce has arisen concerning the representa-
tion of employees of Bethlehem Steel Company (Boston Yards), East
Boston, Massachusetts, within the meaning of Section 9 (c) and Sec-
tion 2 (6) and (7) 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 ordered by the Board
to ascertain representatives for the purposes of collective bargaining
with Bethlehem Steel Company (-Boston Yards), East Boston, Massa-
chusetts, an election by secret ballot shall be conducted as early as
possible, but not later than thirty (30) days from date of this Direc-
tion, under the direction and supervision of the Regional Director
of Bethlehem Steel Company ( Shipbuilding Division ) Baltimore Yard and Pattern Makers
Association of Baltimore, V-R-766, the Regional Director of the Board conducted a consent
election in a separate unit of pattern makers
1236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for the First 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 pattern makers and pattern makers'
apprentices who'were employed by the Company during the pay-roll
period immediately preceding the date of this Direction of Election,
including 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
those who have since quit or been discharged for cause, to determine
whether or not they desire to be represented by Pattern Makers League
of North America (AFL), for the purposes of collective bargaining.