Martinolich Shipbuilding Co.

National Labor Relations Board - Board Decisions

Apr 8, 1954

108 N.L.R.B. 179 (N.L.R.B. 1954)

MARTINOLICH SHIPBUILDING CO. 179
office clerical and factory groups as to warrant departure
from our usual rule of excluding office clerical employees from
a production and maintenance unit. Nor will we "accord con-
clusive weight to a [bargaining] history which is repugnant to
established Board policy respecting the composition and
scope of bargaining units."6 Accordingly, we shall exclude
office clerical employees from the unit, but include plant
clerical employees. 7
We shall follow our normal policy of excluding technical
employees from a production and maintenance unit, where one
of the parties objects to their inclusion.'
We find that all production and maintenance employees at
the Employer's Hawthorne, California, plant, including fabri-
cation, assembly, tooling, stores, warehouse, service shipping
and receiving employees, truckdrivers, and plant clerical em-
ployees, but excluding office clerical, technical, and profes-
sional employees, guards, watchmen, and supervisors as
defined in the Act, constitute a unit appropriate for the purposes
of collective bargaining within the meaning of Section 9 (b)
of the Act.
[Text of Direction of Election omitted from publication.]
Member Beeson took no part in the consideration of the
above Decision and Direction of Election.
6General Electric Company (River Works), supra , page 4.
7 The Employer's classification system divides the employees into two groups- -production
and maintenance and office and technical. The job descriptions indicate that some of the
office and technical classifications, for example, material control man, production planning
clerk, and dispatcher, production planning, are actually plant clerical, rather than office
clerical, jobs. Such classifications are included in the unit. In listing the above examples we
do not mean to exclude other job classifications which also fall within the plant clerical
category as that term is used by the Board. Whiting Corporation 107 NLRB 493.
8 Swift & Company, 98 NLRB 746, at 747.
MARTINOLICH SHIPBUILDING CO. land LOCAL UNION 230,
UNITED ASSOCIATION OF JOURNEYMEN AND APPREN-
TICES OF THE PLUMBING AND PIPEFITTING INDUSTRY
OF THE UNITED STATES AND CANADA, AFL, Petitioner.
Case No. 21-RC-3436. April 8, 1954
DECISION AND ORDER
Upon a petition duly filed under Section 9 (c) of the National
Labor Relations Act, a hearing was held before Norman H.
'This case was originally consolidated with Cases Nos. 21-RC-3434 and2l-RC-3435
(Harbor Boat & Yacht Co.), and Case No 21-RC-3437 (National Steel & Shipbuilding Corp.).
During the course of the hearing the Petitioner moved to withdraw the petitions in these
cases. The hearing officer referred the motion to the Regional Director who approved the
withdrawals without prejudice.
108 NLRB No. 45.
180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Greer, hearing officer. The hearing officer's rulings made at
the hearing are free from prejudicial error and are hereby
affirmed.
Upcn the entire record' in this case , the Board finds:
1. The Employer is engaged in commerce within the meaning
of the Act.
2. The labor organizations involved claim to represent em-
ployees of the Employer.
3. No question affecting commerce exists concerning the rep-
resentation of employees of the Employer within the meaning
of Section 9 (c) (1) and Section 2 (6) and (7) of the Act, for the
following reasons:
The Petitioner seeks to represent a unit limited to certain
employees of the Employer. The Employer and International
Association of Machinists, herein called the Intervenor, contend
that a unit so limited is inappropriate because of the long
bargaining history of the multiemployer group , of which the
Employer is an integral part.
The Employer is one of a number of employers engaged in
building and repairing ships in the . San Diego, California, area.
For at least 6 or 7 years the employees of these shipbuilders
have been represented by various craft unions and the
Intervenor. Customarily, each year, these unions jointly con-
centrated their initial bargaining efforts on , and secured,
separate contracts from the Employer. Then, all the unions and
the San Diego Employer's Association,' herein called the
Association , representing all the shipyards in the San Diego
area except the Employer, would bargain on an industrywide
basis . These negotiations resulted in the execution of a basic
agreement establishing uniformterms and conditions of employ-
ment for the employees of all shipbuilders in the San Diego
area . Each shipbuilder thereafter adopted these terms and con-
ditions of the industry agreement by executing separate but
identical contracts with the individual unions." The Employer
considered its contracts with the unions as interim agreements
executed in order to keep its shipyard in operation until the
Association and the unions concluded their areawide industry
agreement . Thereafter, the Employer always amended its
contracts to conform to the industrywide agreement.
On September 24, 1953, the Intervenor notified the Employer
of its desire to amend the then current contract covering the
employees involved herein.5 In reply thereto, the Employer by
2 The Intervenor, in its brief, requested correction of the transcript of evidence taken at
the hearing. No objections were filed to the request. The request is hereby granted and the
record is corrected accordingly.
3 The Association is composed of approximately 300 member firms representing a cross
section of every type of industry in the area.
4 The only difference in these contracts was an added appendix covering classificatons of
employees and rates of pay applicable to the individual employer involved.
5 In accordance with the terms of the contract, this notice effectively prevented automatic
renewal. Accordingly, this contract which expired December 1, 1953, cannot be a bar to this
proceeding.
MARTINOLICH SHIPBUILDING CO 181
letter of October 25 stated that in the past it had been put on the
"spot" during industry negotiations; that it now refused to
continue to be used as a "whipping post"; and that it would
neither authorize the Association to act for it nor negotiate a
contract separately with the unions. However, the Employer
further stated that "whatever results or negotiations are ar-
rived at [by] the shipbuilding group and the unions will be
satisfactory to this company." Thereafter, in response to a
request by the Intervenor for continuous negotiations, the
Employer, by letter of December 4, replied that "I understand
that as of the date of this letter that negotiations can be opened
through the Shipyard Committee." Subsequently, a representa-
tive of the Employer attended and participated in at least five
bargaining sessions with the Association and the unions. As
a result of these negotiations, the Employer, Association, and
unions, on January 5, 1954, signed a memorandum agreement
setting forth certain specific terms and conditions of employ-
ment, and providing that the completed industrywide agreement
would be reduced to writing as soon as possible and would be
signed by each union and employer.
We agree with the Petitioner that employer inclusion in a
multiemployer unit is based upon employer intent and that
generally such intent is evidenced by participation in group
bargaining.' However, intent is a question of fact to be deter-
mined from the particular circumstances of each case. T
Although until recently the Employer had not formally partic -
ipated in joint bargaining negotiations between the Association
and the unions, we believe under all the circumstances that
it had intended to be, and for allpractical purposes always has
been, part and parcel of the overall pattern of multiemployer
bargaining in the San Diego area. We note particularly that
the Employer in the past was customarily used to initiate bar-
gaining for the shipbuilding industry in the San Diego area;
and that it therefore considered its contracts with the Intervenor
as interim agreements to be modified and amended to conform
to the subsequent industrywide agreements. Further we note
that, before the petition herein was filed, the Employer unequiv-
ocally indicated its intention to be bound in collective bargain-
ing by group, rather than individual, action; that it subsequently
participated in group negotiations with the Association and
signed the resulting industry memorandum agreement; and that
6York Transfer & Storage Co., 107 NLRB 139 at page 4.
7 Pacific Metals Company, Ltd., 91 NLRB 696 at 699.
182 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
at the hearing , the Employer reiterated its position that it was
a part of the multiemployer group. Accordingly , as the unit
sought by the Petitioner is too limited in scope and therefore
inappropriate , we shall dismiss the petition.8
[The Board dismissed the petition.]
Member Beeson took no part in the consideration of the above
Decision and Order.
8See Des Moines Packing Company, 106 NLRB 206; Atlas Storage Division, P &. W Atlas
Industrial Center, Inc., 100 NLRB 1443 at 1444; and Associated Shoe Industries of Southeastern
Massachusetts, Inc., etal., 81 NLRB 224 at 229.
BILLBOARD PUBLISHING COMPANY and AMALGAMATED
LITHOGRAPHERS OF AMERICA, LOCAL NO. 8, CIO,
Petitioner . Case No . 9-RC-2130. April 8, 1954
ORDER DENYING MOTION FOR RECONSIDERATION
On February 12, 1954 , the Board issued an unpublished
Decision and Order in the above - entitled proceeding , and there-
after on March 3, 1954 , the Petitioner filed a motion for
reconsideration of the said Decision.
The original petition was dismissed on the ground that the
requested unit of offset pressmen did not meet the Board's
minimum requirement of at least two employees . The Petitioner
states, in its motion , that the unit now consists of two full-
time offset employees and therefore requests that the Board
find the requested unit appropriate.
Because in the original Decision the Board found the unit
inappropriate , it found it unnecessary to resolve the contract-
bar issue raised by the Intervenor ( Cincinnati Printing Press-
men and Assistants ' Union No. 11 ). However, we find it unnec-
essary to reconsider the issue now raised concerning the
appropriateness of the unit , as we hereafter find that the
Intervenor ' s contract with the Employer is a bar to the pro-
ceeding.
As bearing on the issue of contract bar, the evidence dis-
closes that it has been the practice for the Intervenor to nego-
tiate collective -bargaining agreements with the Cincinnati
Printers League, an employer association , and thereafter to
secure the same terms and conditions from individual non-
members such as the Employer . Following the execution of the
agreement between the League and the Intervenor on,April 7,
1950, the Employer signed a written instrument , to which a
copy of the League agreement was attached , stating that the
108 NLRB No. 44.