General Dynamics Corp.

National Labor Relations Board - Board DecisionsSep 27, 1963

144 N.L.R.B. 908 (N.L.R.B. 1963)

908 DECISIONS OF NATIONAL LABOR RELATIONS BOARD unit. Intervenor Local 1176 contends, in opposition, that the tool hardeners are not craftsmen, that they work with sand under the same supervisor as production heat-treaters, and that they should continue to be part of the production and maintenance unit which it presently represents. The Employer is neutral. It appears from the present record that both tool hardeners now spend about 95 percent of their time hardening tools and dies. The record also reveals, however, that the nature of the jobs which the tool hardeners are performing has not changed since the Board's previous decision. Both tool hardeners work now, as then, in the Employer's heat-treating department, separated from the tool and die department and supervised by a heat-treating foreman. They have no working contact with tool- and die-makers, except when tool- and die-makers bring some of the tools and dies to them to be hardened. Neither is trained or qualified to make tools and dies; each learned the skills necessary for heat-treating tools and dies while working with produc- tion parts. In view of the foregoing, the Board finds that the two tool hardeners are not members of the tool and die craft, notwithstanding the amount of time they spend hardening tools and dies. Their addition to the Petitioner's tool and die craft unit is not warranted. Accordingly, we shall dismiss petition. [The Board dismissed the petition.] Material Service Division , General Dynamics Corp . and District 2, Marine Engineers ' Beneficial Association , AFL-CIO, Peti- tioner. Case No. 13-RC-9219. September 27, 1963 DECISION AND DIRECTION OF ELECTION Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Hearing Officer Hymen Bear. The Hearing Officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed.' Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Members Leedom and Fanning]. Upon the entire record, the Board finds : 1. The Employer is engaged in commerce within the meaning of the Act. 'Petitioner ' s request for oral argument is hereby denied as , in our opinion , the record, including the briefs , adequately present the issues and positions of the parties. 144 NLRB No. 89. MATERIAL SERVICE DIVISION, GENERAL DYNAMICS CORP. 909 2. The labor organizations involved claim to represent certain em- ployees of the Employer.' 3. A question affecting commerce exists concerning the representa- tion of employees of the Employer within the meaning of Sections 9(c) (1) and 2(6) and (7) of the Act for the following reasons: The Petitioner seeks a unit of chief and assistant marine engineers employed on certain towboats owned by the Employer and operated by the Employer's marine division for the transportation of sand and gravel on the navigable inland waterways principally between Chi- cago and Lockport, Illinois. The Employer and MOA maintain that their current contract, executed on March 5, 1963, and effective until December 31, 1964, is,a bar to the instant petition which was also filed on March 5, 1963. Alternatively, they contend that no election should be directed because the unit covered by the petition consists exclusively of supervisors within the meaning of the Act. The Petitioner asserts that the contract is not a bar because it was pressing its claim to con- tinued majority representative status at the time the contract was executed.3 The Employer and the Petitioner have, for many years, been in contractual relations covering the chief and assistant marine engineers here sought. Their latest agreement was entered into on January 1, 1960, which, by its terms, was to remain in effect until December 31, 1962, and thereafter for annual periods absent 60 days' notice of ter- mination. On November 1, 1962, the Employer sent the Petitioner a written notice of termination which the Petitioner received on No- vember 2. After unsuccessfully contending that the notice was not timely filed and that the contract was therefore automatically ex- tended for another year, the Petitioner instituted a suit in an Illinois State court to substantiate this claim. In the meanwhile, MOA as- serted a representative interest in the Employer's captains, pilots, and engineers. The Employer agreed not to conclude a contract with MOA covering n unit of these individuals pending the court litigation. On March 5, 1963, the State court ruled that the Employer's notice of termination was timely under the contract. On the same day, the Em- ployer and, MOA executed the contract here asserted as a bar, and the Petitioner filed and served upon the parties its petition. In Deluxe Metal Furniture Company,4 the Board enunciated certain new ground rules respecting the timely filing of representation peti- a Marine Officers Association, International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, Local No 54, herein called MOA, intervened on the basis of its contractual interest. a The Petitioner also urges that the contract cannot operate as a bar because it includes captains and pilots, who it alleges are supervisors under Section 2(11) of the Act, together with the chief and assistant marine engineers , who it contends are "employees " Because we find, as detailed hereinafter, that the contract does not bar an election on another ground, we deem it unnecessary to pass upon this contention 121 NLRB 995, 998-999. 910 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tions. In doing so, it left undisturbed the effect to be given to substan- tial claims to representative status. The Board pointed out that, where an incumbent union continued to press a substantial claim to repre- sentative status, a contract executed by an employer and another union in the face of such claim would not serve as a bar. In the in- stant case, the Petitioner, an incumbent Union, asserted a substantial representative claim by urging that the Employer's notice of termina- tion was untimely and that the contract remained in force for another year; by filing suit in the State court to vindicate this claim; and by filing a petition with the Board on the same date that the Employer and MOA executed their contract. In view of these facts, we con- clude that the Board's pronouncement in the Deluxe Metal case covers the situation here. Accordingly, we find that the contract between the Employer and MOA is not a bar. As we find, for the reasons set forth in paragraph No. 4 below, that the chief and assistant marine engineers are not supervisors within the meaning of the Act, we find no merit in the contentions of the Em- ployer and MOA that no election should be directed on the Petitioner's petition because the unit sought is composed solely of supervisors. 4. As stated above, the Petitioner seeks to represent a unit of chief and assistant marine engineers employed aboard the Employer's tow- boats. The Employer and MOA contend that the requested unit is inappropriate because it is composed of individuals who are super- visors within the meaning of the Act. The Employer owns and maintains five diesel-powered towboats. Two of these vessels, the MV George Lenzee and the MV Irving Crown, have a crew which consists of the captain, pilot, mate, four deckhands, a chief and assistant engineer, two oilers, a cook, and a galley boy. The crew of the MV Masco consists of the captain, pilot, mate, four deckhands, a chief and assistant engineer, and cooks. No oilers are employed on this vessel. The crews of the remaining two vessels consist of the captain, pilot, a mate, three deckhands, a chief engineer, and a cook. No assistant engineers and no oilers are em- ployed aboard these towboats. On each vessel, there is a forward and an aft watch with each watch consisting of 6 hours' duration fol- lowed by a 6-hour rest period. Where a towboat is staffed with both a chief and an assistant engineer, each engineer stands a different watch. All of the Employer's towboats are pilothouse controlled, i.e., the starting, stopping, and the speed and direction of the vessels are con- trolled by the captain or the pilot from the pilothouse which is physi- cally located on the forward deck. The engineers are employed in the engineroom and, perform none of the foregoing duties except in emergencies when the pilothouse controls become inoperable. In the course of their normal duties, they are called upon to maintain and MATERIAL SERVICE DIVISION, GENERAL DYNAMICS CORP. 911 record the engine machinery operation and to insure that proper amounts of fuel and water are present. Oilers, who are employed on only two of the five towboats, grease the steering machinery, change oil in the generators, clean the engineroom, and generally assist the engineer. While the towboats are plying the inland waterways, super- vision of the crew resides in the captain or the pilot, depending upon which of these officers is standing a particular watch. Even at these times, ultimate supervision of the crew rests with the Employer's port engineer and its manager of the marine division. The Employer and MOA maintain, in support of their contentions that the engineers are supervisors, that these individuals possess and exercise supervisory authority over oilers and deckhands when their vessels are afloat, and over landbased shore repair crews when the tow- boats are in drydock for repair. With respect to the authority of the engineers over the oilers, it seems clear that on three of the vessels the engineers exercise no supervisory authority over this classification be- cause no oilers are employed. On the two vessels which employ oilers, the record fails to disclose that the engineers possess or exercise the indicia of supervisory authority enumerated in Section 2(11) of the Act. Thus, it appears that recommendations which engineers might make to the Employer concerning the employment, retention, or trans- fer of oilers are not effective recommendations, but are independently investigated either by the captain, the port engineer, or the manager of the marine division before action is taken. With respect to the direction and assignment of duties to the oilers, the relationship of the engineers to the oilers in regard to these functions is more akin to a skilled mechanic-helper relationship than that of a supervisor- employee one. With respect to the engineers' authority over deckhands, there is testimony that engineers have some authority over these individuals in cases of emergency such as a collision or fire aboard ship, but there is no evidence that any such emergency has arisen in the past 10 years or that the authority exercised 10 years ago was supervisory in the statutory sense. With regard to the authority of the engineers over the shore repair crews, the record shows that the port engineer determines when the Employer's vessels should be laid up in drydock for inspection, re- pairs, or provisioning. When engineroom repairs are necessary, the shipyard repair crews work with the engineers in performing the overhaul. These shipyard employees are under the supervision of two working foremen who are their immediate supervisors, as well as the general foreman and superintendent. Because the engineers are responsible for the maintenance of the engineroom machinery, they work in conjunction with the repairmen and direct them in the repair of the machinery. So far as appears, however, this direction is much 912 DECISIONS OF NATIONAL LABOR RELATIONS BOARD like that of an experienced mechanic who directs the work of helpers in the performance of their joint task. In view of the foregoing, and the entire record in this proceeding, we conclude that the chief and assistant marine engineers do not pos- sess the requisite statutory indicia of supervisory authority and we therefore find that they are not supervisors within the meaning of the Act.5 Accordingly, we find that 'a unit of all chief and assistant marine engineers at the Employer's operation in Chicago, Illinois, excluding all other employees, guards, and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Sections 9(b) and 2(6) and (7) of the Act. [Text of Direction of Election omitted from publication.] I See Graham Transportation Company, 124 NLRB 960. International Woodworkers of America , Local Union 3-3, AFL- CIO and Western Wirebound Box Co . Case No. 36-CB-298. September 30, 1963 DECISION AND ORDER On May 2, 1963, Trial Examiner Martin S. Bennett issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Inter- mediate Report. Thereafter, the Respondent filed exceptions to the Intermediate Report and a 'brief in support thereof. The Charging Party filed a brief in support of the Intermediate Report. Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Members Fanning and Brown]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the entire record in this case, including the Intermediate Report, exceptions, and briefs, and hereby adopts the findings, conclusions, 'and recom- mendations of the Trial Examiner.' I The Trial Examiner found that the Respondent 's use of a horse on the picket line on or about September 25, 1962, tended to restrain and coerce persons desiring to cross the picket line . The Trial Examiner recommended that the Respondent cease and desist from "using horses as pickets." While agreeing with the Trial Examiner 's finding in the circumstances of this case, we deem it appropriate to modify the language of his Recommended Order and appendix to the Intermediate Report to make it clear that what is being prescribed is Respondent 's use of horses so as to obstruct persons desiring to enter or leave the plant premises. 144 NLRB No. 85.