James Russell Engineering Works, Inc.

National Labor Relations Board - Board Decisions

Dec 20, 1943

53 N.L.R.B. 1419 (N.L.R.B. 1943)

In the Matter Of JAMES RUSSELL ENGINEERING WORKS, INC .:, and
AMERICAN FEDERATION OF LABOR
Case No. 1-R-1611.-Decided December 920, 1943
Mr. Thomas H. Ramsey, of Boston , Mass., for the Board.
Gordon & Gordon, by Mr. Benjamin E. Gordon, of Boston , Mass.,
for the Company.
Messrs. Edward A. Raleigh and Paul M . Hovey, both of Boston,
Mass. , for the AFL.
Mr. Glenn L. Moller, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon a petition duly filed by the American Federation of Labor,
herein called the AFL, alleging that a question affecting commerce had
arisen concerning the representation of employees of James Russell
Engineering Works, Inc., Boston, Massachusetts, herein called the
Company, the National Labor Relations Board provided for an ap-
propriate hearing upon due notice before Samual H. Jaffee, Trial
Examiner. Said hearing was held at Boston, Massachusetts, on Octo-
ber 26, 1943. The Company and the AFL appeared, participated, and
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 made at the hearing are free from prej-
udicial error and are hereby affirmed. All parties were afforded an
opportunity to file briefs with the Board.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
James Russell Engineering Works, Inc. is a Massachusetts corpora-
tion with its principal office and places of business in Boston, Massa-
chusetts. The Company has two yards located about 1/2 mile apart,
I This Decision was originally titled Matter of James Russell Boiler Works.
53 N. L. R. B., No. 259.
1419
1420 DECISIONS OF NATIONAL LABOR RELATIONS BOARIb
one located on Dewar Street, the other on Freeport Street, in the City
of Boston. The Company is engaged in the manufacture of metal
products, including barges and other small vessels for the United States
Government. The principal raw materials used by the Company in its
operations are steel, iron, and stainless steel. During the year 1942, the
Company purchased raw materials valued in excess of $100,000, of
which approximately 75 percent was shipped to the Company's yards
at Boston from points outside the Commonwealth of Massachusetts.
During the same period, the Company sold finished products valued
in excess of $100,000, more than 50 percent of which was shipped from
the Company's Boston yards to points outside the Commonwealth of
Massachusetts. The Company's business during the year 1943 has
been approximately equal to its business for the same period of 1942.
The Company admits and we find that it is engaged in commerce
within the meaning of the National Labor Relations Act.
II. THE ORGANIZATION INVOLVED
American Federation of Labor is a labor organization admitting
to membership employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
On or about September 20, 1943, the AFL requested recognition
by the Company as exclusive bargaining representative of the em-
ployees of the Company at its Freeport yard. The Company re-
fused to grant such recognition to the AFL, contending that the unit
was inappropriate and questioning the AFL's contention that it
represents a majority of the employees.
A statement of the Regional Director, introduced into evidence
at the hearing, indicates that the AFL represents a substantial num-
ber of employees in the unit hereinafter found appropriate.2
We find that a question affecting commerce has arisen concerning
the representation of employees of the Company, within the mean-
ing of Section 9 (c) and Section 2 (6) and (7) of the Act.
IV. THE APPROPRIATE UNIT
The parties stipulated that the appropriate unit should consist of
all production and maintenance employees, excluding supervisors,
foremen, assistant foremen, office and clerical employees, and guards.
The Company, however, contends that the appropriate unit should
include the employees at both its yards, while the AFL seeks to con-
2 The Regional Director reported that the AFL submitted 50 authorization cards bearing
apparently genuine signatures of persons listed on the Company's pay roll of September 23,
1943, which contained the names of 77 employees in the appropriate unit.
JAMES RUSSELL ENGINEERING WORKS, INC. 1421
fine the unit to the employees at the Freeport Street yard. There
is also disagreement with respect to two categories of employees, lead-
men, and truck drivers, both of which the Company seeks to include
in and the AFL to exclude from the unit.
The two yards are approximately 1/2 mile , apart. They are'both
under the supervision of the Russell brothers , who act jointly as
general managers of both yards. The general office is at the Dewar
Street yard - and all company records , including. the pay roll, are kept
there. There is one labor relations policy, administered jointly by
the Russells . Wages, hours, and working conditions are the same
at both plants , and seniority is applied on,' a company -wide basis.
Both yards do essentially the same type of work, though the products
under construction at any given time. may vary between yards. At
the time of the hearing , between 10 and 20 percent - 6f the tonnage
of material used at the Freeport Street yard was fabricated at the
Dewar Street , yard. It is clear , therefore , that a unit including
both yards would be appropriate . There are , however, other factors
which indicate that at the present time the unit sought by the AFL
is appropriate.
On August 3, 1943, International Brotherhood of Boilermakers,
Iron Shipbuilders and Helpers of America , Local #29 (AFL), herein
called the Boilermakers , filed a petition for investigation and certi-
fication, alleging that both of the Company 's yards together con-
stituted a single • appropriate Unit. Thereafter , a consent election
was agreed upon by the parties and arrangements were made by the
Board's Regional Director to conduct such an election . Before the
election wash held, however , the' Boilermakers withdrew its petition.
Thereafter on September 20, 1943, the AFL filed the petition here
involved .,' The Company contends that because its affiliate, the
Boilermakers , had previously petitioned for a company -wide unit,
the AFL is estopped now to request a smaller unit.
While the union witnesses were regrettably lacking in frankness
with respect to organizational efforts made at the Dewar Street yard,
the' evidence as a whole indicates that the AFL or its affiliate, the
Boilermakers , has attempted to organize employees at both of the
yards operated by the Company. Nevertheless , such previous or-
ganizational activity is not-fatal to the position taken by' the petitioner
in this proceeding . Organizational activity on a broader basis is one,
of many circumstances which the Board considers in determining'the
propriety of a proposed bargaining unit, but the presence of that fac-
tor does not preclude a finding that a smaller unit is appropriate.3
It is clear from the record that the AFL regards the two, yards to-
Matter of Kentucky Fluorspar Company, 52 N L. R. B . 227; Matter of Union Lumber
Company, 53 N. L R B, No. 103 ; Matter of Servel, Inc., 51 N. L R. B. 224.
559015-44-vol. 53-91
1422 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
gether as being the ultimately appropriate unit, but it does not appear
that effective organization has as yet extended to the Dewar Street
yard 4 Though there is some interchange of employees between
the two yards, such interchange is negligible. The unit sought by
the AFL is clearly definable and the employees therein have indi-
cated a present desire to bargain collectively. Under these circum-
stances we do not believe that the employees at the Freeport Street
yard should be deprived of the opportunity to bargain collectively.
Our finding that the unit here sought is appropriate will not, however,
preclude a finding at a later date that a unit embracing the employees
of both yards is appropriate.
Leadmen. There are five or six leadmen at each yard. They are
next in authority to the superintendent at the Dewar Street yard
and to the assistant superintendent at the Freeport Street yard, thus
occupying positions generally classified as that of foremen. Although
they cannot hire or discharge, it is their duty to make recommenda-
tions pertaining to the tenure of their subordinates, which recom-
mendations serve as the basis for investigation and possible disci-
plinary action by the superintendents or the managers. We agree
with the contention of the AFL that the leadmen are supervisory em-
ployees. We shall accordingly exclude them from the appropriate
unit.
Truck drivers. There are two truck drivers in the employ of the
Company. The Union would exclude them from the unit while the
Company contends that they should be included. Approximately one-
half their time is spent going between the yards or to and from the
freight depot. The rest of their time is spent at the yards, about one-
half at each yard. Their trucks are garaged at the Dewar Street
yard and their superior is' located at that,,yard. We shall exclude
truck drivers from the appropriate unit.
We find that all production and maintenance employees at the Com-
pany's Freeport Street yard, excluding truck drivers, office and cleri-
cal employees, and guards, leadmen, foremen, assistant foremen, super-
intendents, assistant superintendents, and managers and all other
supervisory employees with authority to hire, promote, discharge,
discipline, or otherwise effect changes in the status of employees, or
effectively 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 the
' Cf. Matter of Metal O ffice Furniture Co., 51 N. L. R. B. 993.
JAMES RUSSELL ENGINEERING WORKS, INC. 1423
employees in the appropriate unit who were employed during the
pay-roll period immediately preceding the date of the Direction of
Election herein, subject to the limitations and additions set forth in
the Direction.
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 Rela-
tions Act, and pursuant to Article III, Section 9, of the National Labor
Relations' Board Rules and Regulations-Series 3, it is hereby
DIRECTED that, as part of the investigation to ascertain representa-
tives for, the purposes of collective bargaining with James Russell
Engineering Works, Inc., Boston, Massachusetts, 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 First Region, acting in this
matter as agent for the National Labor Relations Board, and subject
to Article III, Sections 10 and 11, of said Rules and Regulations,
among, the 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 temporarily laid off, and including employees in 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 repre-
sented by American Federation of Labor, for the purposes of collec-
tive bargaining.
CHAIRMAN MILIas took no part in the consideration of the above
Decision and Direction of Election.