Marine Basin Co.

National Labor Relations Board - Board DecisionsFeb 11, 1946

65 N.L.R.B. 970 (N.L.R.B. 1946)

In the Matter Of MARINE BASIN COMPANY and INDUSTRIAL UNION OF MARINE & SHIPBUILDING WORKERS OF AMERICA , C. I. O. Case No. 0-R-5837 .-Decided February 11, 1946 Mr. William R. Tait, of New York City, for the Company. Mr. William L. Standard, by Mr. Herrman Rosenfeld, of New York City, for the CIO. Messrs. George A. McKinnon and John H. 117hite, of New York City,,for the AFL. Mr. 117arrem H. Leland, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE Upon an amended petition duly filed by Industrial Union of Ma- rine & Shipbuilding Workers of America, C. I. O., herein called the CIO, alleging that it question affecting commerce had arisen concerning the representation of employees of Marine Basin Com- pany, Brooldymi. New York, herein called the Company, the Na- tional Labor Relations Board provided for an appropriate hearing upon due notice before Robert Silagi , Trial Examiner . The hearing was held at New York City on October 15, 1945. The Company, the CIO, and Metal Trades Council, A. F. of L., herein called the AFL, appeared and participated. All parties were afforded full oppor- tunity 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 prejudicial 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 Marine Basin Company , a New York corporation, is engaged in, the business of dry docking and repairing ships at its shipyard in 65 N. L R B. No. 171. 970 MARINE BASIN COMPANY 971 Brooklyn, New York. In its business the Company uses various raw materials consisting chiefly of lumber, steel, paint, canvas, bolts, spikes, electrical fittings, and cables. During the year ending Sep- tember 30, 1945, the Company purchased raw materials valued in excess of $1,000,000, part of which was transported to its shipyard from points outside the State of New York. During the same pe- riod, the services rendered by the Company to vessels exceeded $1,- 000,000 in value. Since the beginning of the war, most of the work performed by the Company was done on behalf of the United States Army, Navy, and Maritime Commission, and approximately 90 per- cent of its services was used for war purposes. All the ships upon which the Company performs work enter the waters of Lower New York Bay after leaving the Company's shipyard. We find that the Company is engaged in commerce within the mean- ing of the National Labor Relations Act. If. TIIE ORGANIZATIONS INVOLVED Industrial Union of -Marine & Shipbuilding Workers of America, affiliated with the Congress of Industrial Organizations , is a labor organization admitting to membership employees of the Company. Metal Trades Council is a labor organization admitting to member- ship employees of the Company. 111. THE QUESTION CONCERNING REPRESENTATION Since 1937 the Company and the AFL have had contractual rela- tions. On January 21, 1945, the Company and the AFL entered into a 1-year closed-shop agreement providing for automatic renewal for yearly periods in the absence of notice to change or cancel, given by either party at least 30 days prior to any anniversary date. By its terms, the Company recognized the AFL as "the exclusive bargaining agent of all employees excepting superintendent, foremen, watchmen, guards, and office employees of the Company for the purpose of col- lective bargaining." On July 391, 1945, the CIO informed the Company that it represented a majority of certain of the Company's employees and requested recognition as their exclusive bargaining representative. The Company replied by letter dated August 2, 1945, that its contract with the AFL precluded such recognition. The CIO seeks to represent all fire-watch employees and guards. The Company and the AFL contend, in effect, that no question con- cerning representation exists because of their 1945 contract. But long before the operative date of the contract's automatic renewal clause, the CIO apprised the Company of its claim to representation. Hence, apart from any other considerations, the contract cannot serve to preclude a current determination of representatives.' 'Matter of Craddock-Terry Shoe Corp., 55 N L R B 1406 972 DECISIONS OF NATIONAL LABOR RELATIONS BOARD A statement of a Board agent, introduced into evidence at the hearing, indicates that the CIO represents a substantial number 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 meaning of Section 9 (c) and Section 2 ( 6) and ( 7) of the Act. 1V. THE APPROPRIATE UNIT The CIO, as previously indicated, seeks to represent the Company's fire-watch employees and guards. It contends that both groups com- prise an appropriate unit. It is willing, however, to represent each group in a separate unit, depending upon the Board's findings. Both the Company and the AFL contend that guards and fire-watch em- ployees should be grouped together with other employees and oppose the CIO's primary and alternative positions. As noted above, the Company and the AFL have had collective agreements since 1937. In 1945 these parties entered into an agree- ment which covered all employees, but which specifically excluded guards. There is and has been no separate pay-roll classification of, fire-watch employees. Laborers otherwise employed are assigned to fire prevention duties from time to time and are referred to in the record as the fire-watch. Such assignments are usually made on a daily basis, ,depending upon the Company's needs. Whenever "hot work" (burning and welding) is performed on board ship, navy reg- ulations require a fire-watch employee to stand by with an asbestos blanket, fire extinguishers, and a pail of water. The number of em- ployees engaged in fire-watch work varies with the number of vessels under repair and the extent of "hot work" at the time. From the record, it appears that the contract between the Company and the AFL embraces the employees designated as the fire-watch. Furthermore, aside front this fact, it would appear that these employees should more properly be represented together with the Company's other workers. Consequently, we shall not place the fire-watch employees in a unit of guards, nor shall we establish a separate unit of such employees.' Inasmuch as the guards are a distinct classification having special functions, and have not been represented as a part of a more compre- hensive grouping, there is no reason why they cannot forma separate appropriate unit. Question arises concerning the supervisory status of snappers or roundslnen. Snappers are temporarily promoted from the ranks of 2 The Field Examiner reported that the CIO submitted 70 application-authorization cards. 41 of which bear the names of persons listed on the Company's pay roll of September 13, 1945, which contained the names of 45 @mployees within the unit alleged to be appro- priate Five of these cards were dated August 1945, and 36 cards were undated Ap- parently , the AFL relies upon its 1945 contract as sole evidence of its interest in the proceeding. _ MARINE BASIN COMPANY 973 the guards when needed. They are paid approximately 10 percent more than the guards. However, they have no authority to hire, dis- charge, or effectively recommend changes in the status of guards. They do make reports to the head of the yard department concerning the work of the guards and he then conducts an independent investiga- tion. We shall include the snappers, as non-supervisory employees, in the unit of guards. We find that all guards of the Company, including snappers or roundsmen, but excluding all 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 em- ployees 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 Relations Act, and pursuant to Article III, Section 9, of National Labor Rela- tions Board Rules and Regulations-Series 3, as ailiended, it is hereby DIRECTED that, as part of the investigation to ascertain representa- tives for the purposes of collective bargaining with Marine Basin Company, Brooklyn, New York, 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 Second Region, acting in this ]natter 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 the said pay-roll period because they were ill or on vacation or tem- ' Inasmuch as we have found that the employees in the appropriate unit were not encompassed within the AFL's contract with the Company , and that union has made no independent showing of representation among them , it will not be accorded a place on the ballot See Matter o f R H. Wilcox and F. C Rice, partners , d/b/a Wilmington Welding & Boiler Works, Ltd, 64 N . L R B 924; and Matter of Chicago Flexable Shaft Company, 60 N. L R B. 848. 974 DECISIONS OF NATIONAL LABOR RELATIONS BOARD porarily laid off, and including employees in the armed forces of the United States who present themselves in person at the polls, but ex- cluding any who have since quit or been discharged for cause and have not been rehired or reinstated prior to the date of the election, to de- termine whether or not they desire to be represented by Industrial Union of Marine & Shipbuilding `Yorkers of America, C. I. 0., for the purposes of collective bargaining.