Higgins Industries, Inc.

National Labor Relations Board - Board Decisions

Dec 29, 1945

65 N.L.R.B. 50 (N.L.R.B. 1945)

In the Matter of HIGGINS INDUSTRIES, INC. and INDUSTRIAL UNION OF
MARINE AND SHIPBUILDING WORKERS OF AMERICA, C. I. O.
Case No. 15-R-1.457.Decided December 09, 194.5
Montgomery, Fenner and Brown, by Messrs. Fontaine Martin, Jr.
and C. P. Fenner, Jr., of New Orleans, La., and Mr. Stuart S. Hell-
man, of New Orleans, La., for the Company.
Messrs. Charles L. Brecht and W. T. Christ, of New Orleans, La.,
for the CIO.
Messrs. Bentley G. Byrnes, C. E. Alexander, Jr., and John Berni,
of New Orleans, La., and Mr. H. S. Thatcher, of Washington, D. C.,
for the AFL.
Mr. Jack Mantel, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon a petition duly filed by Industrial Union of Marine and Ship-
building Workers of America, CIO, herein called the CIO, alleging
that a question affecting commerce had arisen concerning the repre-
sentation of employees of Higgins Industries, Inc., New Orleans,
Louisiana, herein called the Company, the National Labor Relations
Board provided for an appropriate hearing upon due notice before
T. Lowry Whittaker, Trial Examiner. The hearing was held at New
Orleans, Louisiana, on October 31, 1945, and November 2, 5, 6, and
10, 1945. The Company, the CIO, New Orleans Metal Trades Coun-
cil, affiliated with the Metal Trades Department of the American
Federation of Labor jointly with New Orleans Building & Construc-
tion Trades Council, affiliated with the Building & Construction
Trades Department, Washington, D. C., American Federation of
Labor, herein called the MTC and BCTC, respectively, and collec-
tively referred to as the AFL, appeared and participated. All parties
were afforded full opportunity to be heard, to examine and cross-
examine witnesses, and to introduce evidence bearing on the issues.
The Trial Examiner's rulings Lade at the hearing are free from
65 N. L . R. B., No. 11.
- 50
HIGGINS INDUSTRIES, INC. 51
prejudicial error and are hereby affirmed. All parties were afforded
opportunity to file briefs with the Board and present oral argument
before the Board on December 10, 1945.
Upon the entire record in the case,' the Board makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
Higgins Industries, Inc., is a Louisiana corporation with its prin-
cipal office and place of business located in New Orleans, Louisiana,
where it is engaged in boat and ship building, and the manufacture of
marine equipment. The Company's plants involved in this proceed-
ing are known as the Industrial Canal Plant, City Park Plant, and
Bayou St. John Plant, all located in New Orleans, Louisiana.
During the first 6 months of 1945, raw materials used by the Com-
pany were valued at approximately $11,157.590, of which approxi-
mately 70 percent was received from points outside the State of
Louisiana. During the same period, the Company's finished products
were valued at approximately $30,091,615, of which approximately 96
percent was sold to the United States Government.
The Company admits, for the purposes of this proceeding only,
that it is engaged in commerce within the meaning of the National
Labor Relations Act.
H. THE ORGANIZATIONS INVOLVED
Industrial Union of Marine and Shipbuilding Workers of America
is a labor organization, affiliated with the Congress of Industrial
Organizations, admitting to membership employees of the Company.
New Orleans Metal Trades Council, affiliated with the Metal
Trades Department of the American Federation of Labor and the
New Orleans Building & Construction Trades Council, affiliated with
the Building & Construction Trades Department, Washington, D. C.,
American Federation of Labor, are labor organizations admitting to
membership employees of the Company.
III. TIIE QUESTION CONCERNING REPRESENTATION
The Company has refused to grant recognition to the CIO or the
AFL as the exclusive bargaining representative of certain of its em-
IOn November 19, 1945, the parties entered into a stipulation to amend the petition
and pleadings by including the names of certain co-liquidators to the name of the Com-
pany herein . The stipulation further provided that the co-liquidators be made parties
to this proceeding and that the disposition of this matter by the Board shall be binding
on said co -liquidators as parties to this proceeding The stipulation is hereby approved
and made a part of the record.
52 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployees until the CIO or the AFL has been certified by the Board in
an appropriate unit.2
A statement of the Trial Examiner at the hearing indicates that
the CIO represents a substantial number of employees in the unit
hereinafter found appropriate.3
We find that a question affecting commerce has arisen concerning
the representation of employees of the Company , within the- meaning
of Section 9 (c) and Section 2 (6) and ( 7) of the Act.
IV. THE APPROPRIATE UNIT
The CIO seeks a unit of all production and maintenance employees
at the Company's Industrial Canal, City Park, and Bayou St. John
plants, including leadermen and assistant foremen, but excluding
construction employees, boat crews, plant-protection employees, pro-
duction clerks, inspectors, office and clerical employees, foremen, and
other supervisory employees. The' Company is in substantial agree-
ment with the unit proposed by the CIO. The AFL, however, would
also include construction employees and foremen.
In November 1940, the Company and the American Federation of
Labor entered into a written collective bargaining contract, which
provided for wage rates of production and maintenance employees
who were represented by the MTC. Neither the MTC nor the BCTC,
as such, were signatories to this agreement; at that time the Company
did not employ construction employees. In August 1941, the prior
contract was extended and amended, and purported to have been
entered into between the Company and "certain building trades and
metal trades unions affiliated with the American Federation of Labor."
The amended contract was not signed by the MTC or the BCTC, but
by the individual craft unions and "American Federation of Labor."
Because the words "building trades" were used in the amended con-
2 At the oral argument before the Board, the AFL contended that, inasmuch as certain
disputed issues between the Company and the AFL are pending before the war Labor
Board , the CIO 's petition should be dismissed under the principle enunciated in Matter
of Allis - Chalmers Manufacturing Company, 50 N. L. R. B 306. We find no merit in the
AFL' s contention More pendency of proceedings before the war Labor Board does not
bar an election where, as here, the exclusive bargaining representative is not newly
certified or recognized , and has enjoyed ample opportunity since securing certification
or recognition to demonstrate its effectiveness as a bargaining agent and to obtain sub-
stantial benefits for the employees. See Matter of Allis-Chalmers Manufacturing Company.
64 N. L R B. 750
3 The Trial Examiner reported that the CIO submitted 1,181 application-for-membership
cards and authorization cards , that 392 of the cards bore the names of persons whose
names appeared on the Company ' s pay roll of September 9, 1945 , containing 1,686 em-
ployees; and that the 392 cards were dated between June 1945 and September i945. In
view of union shop provisions in the prior contracts between the Company and the AFL,
we find that the above showing of interest by the CIO is sufficient.
The AFL relies upon its prior contracts with the Company as evidence of its interest
in this proceeding.
HIGGINS INDUSTRIES, INC. 53
tract, the AFL contends that the BCTC was representing the construc-
tion employees under such contract. However, the terms of the Gulf
Shipbuilding and Repair Zone Standard Agreement, to which the
Company and the MTC are parties and which refers only to produc-
tion and maintenance employees, was made an integral part of the
1941 contract. On the other hand, wages for construction employees
throughout the New Orleans area were established by the Wage
Adjustment Board of the Department of Labor in negotiations with
the BCTC and the general contractors in the area. Although the
Company was not a party thereto, it has followed these wage rates
in recognizing the BCTC as the bargaining representative of its con-
struction employees 4
The record further indicates that there are substantial differences
between the wages and working conditions of the production and
maintenance employees, and those of the construction employees.
The construction employees are under separate supervision, have
separate dressing rooms and toolrooms, and because of their represen-
tation by the BCTC, observe separate holidays. They receive a
higher rate of pay and the basis for computing their overtime pay is
different from that used for the production and maintenance em-
ployees. Although the construction employees occasionally perform
production or maintenance duties, they retain their higher wage rates
when so assigned. In view of the separate bargaining history and
the differences in wages and working conditions, we shall exclude all
construction employees from the appropriate unit.'
Foremen: The record is clear that the production and maintenance
foremen are supervisory employees within the Board's customary
definition. The AFL would include these employees on the ground
that they are eligible to membership therein. Although foremen have
been included in the bargaining unit of construction employees in
accordance with an agreement between the Company and the BCTC,
the past bargaining history of the production and maintenance em-
ployees between the Company and the MTC has excluded them. In
accordance with the established policy of the Board of excluding
supervisors from production and maintenance units, we shall exclude
all foremen.
We find that all production and maintenance employees at the Com-
pany's Industrial Canal, City Park, and Bayou St. John, plants, in-
"The AFL contends that during negotiation of a new agreement between the Company
and the 1\LTC concerning production and maintenance employees, the BCTC was it party
thereto. However, on July 17, 1945, the secretary-treasurer of the MTC, in a letter to the
Company stated, "It is not the intention of the Building Trades Council to become signa-
tory to any Metal Trades Council contract as the Building Trades Council has form con-
tracts which they require between general contractors and the Building Trades Council
5 See Matter of Kaiser Company, Inc., 53 N L It B. 880.
54 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
eluding leadermen and assistant foremen, but excluding construction
employees, boat crews, plant-protection employees, production clerks,
inspectors, office and clerical employees, foremen, and all other super-
visory employees with authority to hire, promote, discharge, disci-
pline, or otherwise effect changes in the status of employees, or effec-
tively recommend such action, constitute a unit appropriate for the
purposes of collective bargaining within the meaning of Section 9 (b)
of the Act.
V. THE DETERMINATION OF REPRESENTATIVES
We shall direct that the question concerning representation which
has arisen be resolved by an election by secret ballot among employees
in the appropriate unit. The record reveals that a strike has been
in effect since October 29, 1945.s The AFL requests that the pay roll
immediately preceding the strike be used in determining which em-
ployees should be eligible to vote, whereas the Company and the CIO
contend that a current pay roll be used for such determination. None
of the parties questions the employee status of the strikers. We find
that the policies of the Act will best be effectuated by declaring eligible
to vote all employees on the pay roll immediately preceding the date of
our Direction of Election herein, as well as all employees on strike.
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, and pursuant to Article III, Section 9, of National Labor Rela-
tions Board Rules and Regulations-Series 3, as amended, it is hereby
DIRECTED that, as part of the investigation to ascertain representa-
tives for the purposes of collective bargaining with Higgins Indus-
tries, Inc., New Orleans, Louisiana, an election by secret ballot shall
be conducted as early as possible, but not later than sixty (60) days
from the date of this Direction, under the direction and supervision
of the Regional Director for the Fifteenth Region, acting in this mat-
ter as agent for the National Labor Relations Board, and subject to
Article III, Sections 10 and 11, of said Rules and Regulations, among
employees in the unit found appropriate in Section IV, above, who
were employed during the pay-roll period immediately preceding the
date of this Direction, including employees who did not work during
said pay-roll period because they were ill or on vacation or tempo-
rarily laid off, and employees on strike, and including employees in
6 Although the Company has instituted liquidation proceedings, it is in the process of
resuming operations and none of the parties object to the holding of an election at this
time
HIGGINS INDUSTRIES, INC. '55
the armed forces of the United States who present themselves in
person at the polls, but excluding those employees who have since quit
or been discharged for cause and have not been rehired or reinstated
prior to the date of the election, to determine whether or not they
desire to be represented by Industrial Union Marine and Shipbuilding
Workers of America, CIO, or by American Federation of Labor,' for
the purposes of collective bargaining, or by neither.
At the hearing the AFL requested to appear on any ballot or certification as set forth
above. None of the parties objected to this request, which is hereby granted.