Ira S. Bushey & Sons, Inc.

National Labor Relations Board - Board Decisions

Jan 28, 1938

4 N.L.R.B. 1181 (N.L.R.B. 1938)

In the Matter Of IRA S. BIISHEY & SONS , INC., and INDUSTRIAL UNION
OF MARINE & SHIPBUILDING WORKERS OF AMERICA, LOCAL No. 13
Case No. R-519-Decided January 28, 1938
Boat Building and Repair-Investigation of Representatives: controversy
concerning representation of employees: refusal by employer to recognize pe-
titioning union as exclusive representative; prior strike-Uint Appropriate for
Collective Bargaining: stipulation-Election Ordered
Mr. Richard J. Hickey, for the Board.
Mr. Frank B. Devlin, of New York City, for the Company.
Mr. Hyman N. Glickstein, of New York City, for the Union.
Miss Edna Loeb, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
On September 22, 1937, Industrial Union of Marine & Shipbuild-
ing Workers of America, Local No. 13, herein called the Union,
filed with the Regional Director for the Second Region (New York
City) a petition alleging that a question affecting commerce had
arisen concerning the representation of employees of Ira S. Bushey
& Sons, Inc., New York City, herein called the Company, and re-
questing an investigation and certification of representatives pur-
suant to Section 9 (c) of the National Labor Relations Act, 49 Stat.
449, herein called the Act. On October 25, 1937, 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 Rela-
tions Board Rules and Regulations-Series 1, as amended, ordered
an investigation and authorized the Regional Director to conduct
it and to provide for an appropriate hearing upon due notice.
On December 7, 1937, the Regional Director issued a notice of
hearing, copies of which were duly served upon the Company, upon
the Union, upon the International Longshoremen's Association,
and upon the Marine Workers Metal Trades District Council. Pur-
suant to the notice, a hearing was held on December 15, 1937, at
New York City, before H. R. Korey, the Trial Examiner duly desig-
nated by the Board. The hearing was adjourned from day to day
1181
1182 NATIONAL LABOR RELATIONS BOARD
and completed on December 22, 1937. The Board, the Company,
and the Union were represented by counsel and participated in
the hearing. Full opportunity to be heard, to examine and to 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.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
The Company is a New York corporation, having its plant and
principal offices in Brooklyn, New York. It is engaged in the
building and repair of canal boats, tug boats, and harbor craft, and
normally employs from 225 to 250 production and maintenance
workers.
During the last fiscal year, the gross sales of the Company
amounted to more than $500,000, and it expended over $250,000 for
raw materials. The chief raw material purchased by the Company
is steel , innumerable steel products and types of equipment being
employed in the business. Almost all of these materials are shipped
to the Company from states other than New York including Con-
necticut, Massachusetts, Indiana, Michigan, Ohio, Pennsylvania, Illi-
nois, Maryland, New Jersey, and Wisconsin.
The vessels built and repaired by the Company ply in the New
York Harbor carrying coal, grain, lumber, oil products, brick, lime,
and other like commodities, loading and unloading these goods at
various points on the New York and New Jersey shores. They also
ply in the Long Island Sound and some of them make deliveries on
the shores of the State of Connecticut. Frequently, these harbor craft
pull alongside of ocean going vessels to be loaded with the products
which these vessels have brought from various foreign or domestic
ports. Some of the boats dealt with by the Company go up the Hud-
son River through the Erie Canal to Buffalo, New York, sometimes
traveling as far as Erie, Pennsylvania, while others go along the New
England coast to Maine.
It is estimated that over 80 per cent of the business done by the
Company is repair work on canal boats. The record indicates that the
Company is like a service station in that vessels in the stream of com-
merce halt momentarily for repairs and then continue on their way.
Although by a motion to dismiss the petition the Company originally
asserted that the Board had no jurisdiction over it, this objection was
DECISIONS AND ORDERS 1183
withdrawn during the course of the hearing, and the Company entered
into a stipulation with the Union as to the terms of an election.
II. THE ORGANIZATION INVOLVED
Industrial Union of Marine & Shipbuilding Workers of America,
Local No. 13, is a labor organization affiliated with the Committee for
Industrial Organization, admitting to its membership all production
and maintenance employees of the Company, excluding office workers,
clerical and supervisory employees, as well as all other workers em-
ployed on a salaried basis.
III. THE QUESTION CONCERNING REPRESENTATION
Prior to June 14, 1937, the Union organized the production and
maintenance employees of the Company. Advising the Company that
it represented a majority of these employees, the Union attempted to
bargain in their behalf. The Company, however, refused either to
recognize the Union or to bargain with it.
On June 14, 1937, a general strike was called in the shipyards
in the metropolitan area of New York. As a result of this strike, in
which a number of the employees of the Company participated, the
Company was forced to close its plant. During the course of the
strike and after its voluntary termination by the Union on August
18, 1937, the Union made further unsuccessful efforts to negotiate
with the Company.
We find that a question has arisenconcerning representation of the
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 and has led to labor disputes burdening and obstructing
commerce and the free flow of commerce.
V. THE APPROPRIATE UNIT
The Union and the Company by stipulation have indicated their
agreement as to the appropriate unit. We find in accordance with
such stipulation that the production and maintenance employees of
the Company, excluding all persons in executive and supervisory po-
sitions, including foremen, assistant foremen, whether salaried or
paid on an hourly basis, and exclusive of timekeepers, office and
clerical employees, janitors, janitresses, draftsmen and technical en-
1184 NATIONAL LABOR RELATIONS BOARD
gineering department employees, watchmen, garagemen, and all other
employees who are paid on a salaried basis, constitute a unit appro-
priate for the purposes of collective bargaining and that said unit
will insure to the employees of the Company the full benefit of their
right of self-organization and to collective bargaining and otherwise
effectuate the policies of the Act.
VI. THE DETERMINATION OF REPRESENTATIVES
Although the Union introduced into evidence a list of names which
its counsel stated were taken from membership application cards of
the Union, neither the cards nor any pay rolls of the Company were
submitted in evidence. We find, they efore, that the question con-
cerning representation which has arisen can best be resolved by an
election by secret ballot.
It was stipulated and agreed by the parties that in the event an
election was directed, all the employees within the appropriate unit,
as herein above described, shall be eligible to vote whose names ap-
peared on the payrolls of the Company either for the week ending
June 9, 1937, or for the week ending September 21, 1937. We find
this determination of eligibility satisfactory. The stipulation pro-
vides that the ballot shall contain two spaces or boxes, one to read
"Industrial Union of Marine & Shipbuilding Workers of America,
Local No. 13", and the other to read "No Union".
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 represen-
tation of employees of Ira S. Bushey & Sons, Inc., New York City,
within the meaning of Section 9 (c) and Section 2 (6) and (7) of
the National Labor Relations Act.
2. The production and maintenance employees of the Company,
excluding all persons in executive and supervisory positions, includ-
ing foremen, assistant foremen, whether salaried or paid on an
hourly basis, and excluding timekeepers, office and clerical employees,
janitors, janitresses, draftsmen and technical engineering depart-
ment employees, watchmen, garagemen, and all other employees who
are paid on a salaried basis, constitute a unite 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 Re-
DECISIONS AND ORDERS 1185
lations Act , 49 Stat. 449 , and pursuant'to Article III, Section 8, of
the National Labor Relations Board Rules and Regulations-Series
1, as amended , it is hereby
DIRECTED that, as part of the investigation authorized by the
Board to ascertain representatives for collective bargaining with Ira
S. Bushey & Sons , Inc., of New York City, an election by secret
ballot shall be conducted within twenty (20) 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, Sec-
tion 9, of said Rules and Regulations , among the production and
maintenance employees of the Company , excluding all persons in
executive and supervisory positions , including foremen, assistant
foremen, whether salaried or paid on an hourly basis, and excluding
timekeepers , office and clerical employees , janitors, janitresses, drafts-
men and technical engineering department employees , watchmen, ga-
rage-men , and all other employees who are paid on a salaried basis,
who were named on the pay rolls of the Company either for the week
ending June 9, 1937 , or for the week ending September 21, 1937, to
determine , in accordance with the stipulation , whether they desire to
be represented by Industrial Union of Marine & Shipbuilding `York-
ers of America, Local No. 13, for the purposes of collective bargain-
ing, or by no union.