St. Johns River Shipbuilding Co.

National Labor Relations Board - Board DecisionsSep 29, 1943

52 N.L.R.B. 958 (N.L.R.B. 1943)

In the Matter of ST. JOHNS RIVER SHIPBUILDING COMPANY and BROTHERHOOD OF RAILROAD TRAINMEN Case No. R-5793.-Decided September 29, 1943 Messrs. G. A. Duncan and W. J. Eller, both of Jacksonville, Fla., for the Company. Mr. J. S. Haddock, of Columbus, Ga., and Mr. R. L. Hightower, of Jacksonville, Fla., for the Trainmen. Mr. Alex. F. McDonald, of Savannah, Ga., for the Operating Engineers. Mr. Glenn L.Moller, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE Upon petition duly filed by Brotherhood of Railroad Trainmen, herein called the Trainmen, alleging that a question affecting com- merce had arisen concerning the representation of employees of St. Johns River Shipbuilding Company, Jacksonville, Florida, herein called the Company, the National Labor Relations Board provided for an appropriate hearing upon due notice before Mortimer H. Free- man, Trial Examiner. Said hearing was held at Jacksonville, Florida, en August 2 and 3, 1943. The Company, the Trainmen, and Inter- national Union of Operating Engineers, Local 673, A. F. of L., herein called the Operating Engineers, appeared, participated, and were af- forded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence hearing upon the issues. All parties were afforded 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 St. Johns River Shipbuilding Company, a Florida corporation, is engaged in the construction of ships for the United States Maritime 52 N. L. R. B., No. 165 958 ST. JOHNS RIVER SHIPBUILDING COMPANY 959 Commission at its shipyard located at Jacksonville, Florida. Since August 15, 1942, the Company has purchased for use at its shipyard, steel, iron, lumber, other raw materials, and machinery, amounting in value to more than $10,000,000, approximately 50 percent of which was shipped to the Jacksonville shipyard from points outside the State of Florida. Since the first keel was laid, in August 1942, the Company has built nine ships and delivered seven of them to the Maritime Commission, each ship being valued at approximately $1,500,000.. It is admitted, and we find that the Company is engaged in com- merce within the meaning of the National Labor Relations Act. H. THE ORGANIZATIONS INVOLVED Brotherhood of Railroad Trainmen is an unaffiliated labor organi- zation admitting to membership employees of the Company. International Union of Operating Engineers, Local 673, affiliated -with the American Federation of Labor and with the Jacksonville Metal Trades Council, is a labor organization admitting to member- ship employees of the Company. III. THE QUESTION CONCERNING REPRESENTATION The parties stipulated that on or about May 19, 1943, the Trainmen requested recognition by the Company as the exclusive bargaining representative of the yard conductors and yard brakemen, and that said request was refused on the ground that there was an existing contract with the Jacksonville Metal Trades Council, herein called the Metal Trades Council, and its affiliated unions, which contract the Company contended covered the employees here involved: At the hearing the Trainmen explained that the employees whom it seeks to represent in a separate appropriate unit are the switchmen and switch- men foremen in the Company's employ. The contract upon which the Company bases its refusal to accord recognition 'to the Trainmen was dated September 1, 1942, and ap- parently has a substantial period yet to run.,- The Operating Engi- neers, which is one of the affiliates of the Metal Trades Council and itself a signatory to the contract, contends that the switchmen come under its jurisdiction and are therefore covered by the contract. The Trainmen contends that the contract does not and was not intended to cover switchmen. Determination of this issue necessitates analysis ' The duration and termination provisions of the contract are ambiguous , inasmuch as they are derived from Gulf Shipbuilding and Repair Zone Standards Agreement, and Amend- ments thereto One of said provisions prescribes a term of 2 years while another prescribes a term of the duration of the National Emergency. See Matter of Trailer Co. of America, 51 N. L. R. B. 1106. 960 DECISIONS OF NA!PIONAL LABOR RELATIONS BOARD of the provisions of the contract itself and a review of the back- ground of the contract and the circumstances surrounding its execu- tion, in order to ascertain what was the intention of the parties at the time the contract was executed. A. THE CONTRACT The contract which the Operating Engineers and the Company now urge as a bar to the instant proceeding provides, in part: This agreement between the St. Johns River Shipbuilding Company, Jacksonville, Florida, hereinafter referred to as "Em- ployer" and the Jacksonville Metal Trades Council of the Metal Trades Department of the American Federation of Labor and its signatory unions and any other such Union affiliated with the Metal Trades Department of the American Federation of Labor and other American Federation of Labor Unions that may later be found to have proper jurisdiction, hereinafter referred to as "Unions." The Jacksonville Metal Trades Council and its com- prising Unions signatory to this agreement being accepted as the Collective Bargaining Agency for all employees coming under the jurisdiction of crafts that are signatory to this agreement of above employer. This agreement covers the entire operation of the St. Johns River Shipbuilding Company, Jacksonville, Florida, except building trades construction. The following employees are not covered by the provisions of this agreement : Managerial forces Watchmen Firefighters Guards All other employees coming under the jurisdiction of the Unions signatory to this agreement and any other American Federation of Labor Union later found to have proper jurisdiction, are cov- ered by this Agreement. [Italics ours.] It appears from the foregoing clauses that the Company agrees to recognize the signatory unions as the exclusive bargaining agency for all employees coming under the jurisdiction of those unions. The Operating Engineers contends, however, not only that the switchmen are within its jurisdiction, but also that the provision that the agree- ment covers "the entire operation" of the Company except building trades construction enlarges the jurisdictional limitation as to signa- tory "crafts" and that the contract, therefore, covers the switchmen ST. JOHNS RIVER SHIPBUILDING COMPANY 961 and all other employees of the Company, regardless whether such em- ployees are within the jurisdiction of the signatory unions. It is obvi- ous that the above-cited provisions are ambiguous with respect to the coverage of the contract. Consequently, in order to ascertain whether it covers switchmen, we shall look to the other provisions of the con- tract and to its background and the circumstances surrounding its execution. At the end of the contract is an addendum fixing the wage rates of the employees covered by the agreement. Although crane assistants, crane operators, locomotive engineers and firemen are listed, and wage scales are set for each category, switchmen are not mentioned, nor can it be contended that switchmen come under one of the listed categories, for the wage scale of the switchmen is unlike that of any category of employees listed in the addendum. In fact, it is admitted that the wage scale for the switchmen was established as a result of bargaining between the Order of Railroad Conductors and the Thompson-Star- rett Construction Company, the contractor which built the shipyard for the company. Ordinarily we will not inquire into the trade jurisdiction of a labor organization.2 In the instant proceeding, however, we are forced to do so by reason of the fact that the coverage of the contract which is urged as a bar to our proceeding further with an investigation in this case, is defined in terms of the jurisdiction of the signatory unions. When the coverage of a contract is based upon the trade jurisdiction of the signatory union, it must be assumed that the parties refer to the constitutional jurisdiction of the union; otherwise the limitation in the contract would have no meaning. If the term "jurisdiction," as used in the contract, were construed as synonymous with-the union's jurisdictional claims, then obviously the union could at will extend the coverage of such contract from time to time to any employees whom it might wish to represent. Thus, the Operating Engineers could claim that it represents under the contract nurses, architects, cafeteria em- ployees, and other completely unrelated categories of employees. A former business representative of the Operating Engineers, tes- tifying on its behalf, stated that his union's jurisdiction over switch- men is established by the following language in its constitution : All persons engaged in . . . operating or assisting in operat- ing all hoisting or portable machinery . . . or engines used in open or heavy construction work; 8 2 Matter of Rathbone, Hair & Ridgway Company, 45 N L. R B. 612; Matter of Pueblo Gas and Fuel Co , 118 F. (2d) 304 (C C. A. 10), enforcing 23 N. L. R. B 1028. 8 Among the enumerated types of machinery and equipment are "dinkey and standard locomotives ," but with no further qualification of the definitive phrase " * * * persons engaged in . . . operating or assisting in operating... ... 962 DECISIONS OF NATIONAL LABOR RELATIONS BOARD This language does not indicate a clear intention to include within its meaning persons performing functions as far removed from the actual ,operation of machinery as those of switchmen. Thus, it appears that the ambiguity of the contract with respect to the question at issue is not resolved by reference to the jurisdictional provisions of the Operat- ing Engineers' constitution. It is therefore necessary to look to the circumstances leading up to and surrounding the execution of the .contract in order to ascertain the intent of the parties. B. HISTORY OF LABOR RELATIONS AT THE SHIPYARD The Company's shipyard is new, having been completed about the beginning of this year. Early last year the Company contracted with the Thompson-Starrett Construction Company for the construction, the shipyard. Construction of the shipyard began in April 1942 and was completed in January 1943. However, because of the im- mediate need for ships, the yard went into operation piecemeal, before construction of the yard was completed. Hence, the first keel was laid about August 15, 1942. Thompson-Starrett has had closed-shop contracts with the Metal Trades Council and the Jacksonville Building Trades Council and their affiliated unions for approximately 30 years and obtained most of its employees for the construction of the ship- yard through those unions. In the construction of the shipyard it became necessary for Thompson-Starrett to employ railroad switch- men to handle the switching operations of the railroad equipment in the yards. These switchmen were not employed through any of the Metal Trades Council unions, but were employed directly by Thomp- son-Starrett. When they were employed by Thompson-Starrett, the latter's yardmaster, who appears to have been secretary of a local of the Order of Railroad Conductors, informed the switchmen that they would have to become members of the Order of Railroad Conductors in order to remain in the contractor's employ.4 Several of the switch- men who were members of long standing of the Trainmen, protested through the business agent of the Trainmen to the superintendent of the construction company that they did not wish to belong to the Order of Railroad Conductors. The construction superintendent promised to see that the yardmaster ceased his activities on behalf of the Conductors, and assured the switchmen that they were free to join any labor organization they saw fit. These conversations occurred during the first 2 weeks of September 1942. Not until November 9, 1942, did the Operating Engineers claim jurisdiction over the switch- 4 The testimony indicates that some of the switchmen were told that they had to Join the Order of Railroad Conductors , while others were told by the yardmaster that all the others were signed up and that their membership was needed to "make it 100%." ST. JOHNS RIVER SHIPBUILDING COMPANY 963 men, more than 2 months after the contract with the Company was executed, and considerably later than the Company's employment of at least six switchmen. Although there were no switchmen in the Company's employ at the time the contract was executed, neither were there any locomotive engineers or firemen. All these employees, in- cluding the switchmen, were employed at the shipyard at the time the contract was executed, but were on the pay roll of the construction contractor. The engineers and firemen were specifically included in the contract and wage scales were set for them, whereas no mention was made of switchmen. It seems to us quite unlikely that the switch- men were unintentionally omitted. Thus it appears that although the Operating Engineers had a closed-shop contract with Thompson- Starrett Company during the entire construction job and with the Company since September 1942, it did not assert jurisdiction over the switchmen until more than 2 months after the execution of the contract with the Company.5 On the basis of the vague language of the contract and the juris- dictional provisions of the Constitution of the Operating Engineers, and the bargaining history of the shipyard as outlined above, we are of the opinion that the parties did not intend, at the time the contract was executed, to include switchmen within its terms. We are of the opinion and find that the contract between the Company and the Metal Trades Council and its affiliated unions is not a bar to a present deter- mination of representatives. The statement of the Trial Examiner at the hearing indicates that the Trainmen and the Operating Engineers each represents a sub- stantial number of employees in the unit hereinafter found appro- priate s 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. I Cf Matter of Consolidated Steel Corporation, Ltd, 51 N. L R B 1030 In that case the Board dismissed the petition of the Trainmen on the basis of the bargaining history, as evidenced by an expiring contract with the Metal Trades Council, by the fact that the employees sought to be represented by the Trainmen had all obtained their jobs through the Operating Engineers , which union had from the beginning asserted jurisdiction over them, and by the fact that the interests of the employees involved were allied with the interests of other employees represented by the Operating Engineers. The contract was not limited to employees coming under the jurisdiction of the signatory unions, but specifically covered "all employees" of the Company. 6 The Trial Examiner stated that the Trainmen submitted to him 19 authorization cards bearing the apparently genuine signatures of persons whose names appear on the Company's pay roll for the period ending July 30, 1943. There are 23 employees in the unit which the Trainmen alleges to be appropriate . How many of the 19 authorization cards were signed by switchmen foremen does not appear , but the number of switchmen foremen is, in any event, insufficient to affect our conclusion . The Operating Engineers submitted 28 author- ization cards bearing apparently genuine signatures of persons whose names appear on the same pay roll. 549875--44-vol. 52-62 964 DECISIONS OF NATIONAL LABOR RELATIONS BOARD IV. THE APPROPRIATE UNIT ; THE DETERMINATION OF REPRESENTATIVES The Company owns several locomotives and combination locomo- tive cranes which are operated upon a network of standard gauge rail- road tracks covering the entire yard and connecting with main line railroads at either end of the yard. The Company maintains a ware- house across the right of way of one of the main railroads, about 500 feet distant from the yard, and has an easement agreement with the railroad by which the Company's locomotives and cars are permitted to move across and along the tracks of the railroad in order to get to and from the Company's warehouse. Each switchman foreman is in charge of a crew consisting of a loco- motive engineer, fireman, and switchman. , The locomotive cranes are operated by crews consisting of an operator, an oiler, 1 or 2 checkers, a rigger leaderman, and from 8 to 10 riggers. A switchman is as- signed to each of these locomotive cranes to throw the switches when- ever necessary, in order to permit the cranes to move about the yard. The only other duty of the switchman is to signal the operator of the equipment when it reaches the point at which it is,to be used. Switch- men who are assigned to the locomotive cranes are not, however, re- sponsible to the leaderman in charge of the crane, but are responsible directly to the railroad superintendent. The leadermen in charge of the cranes advise the switchmen where the equipment is to be used and the latter then throw the necessary switches and give the operators the necessary signals to enable the operators to stop at the exact spot desired. Switchmen have traditionally considered themselves to be a separate and distinguishable group for purposes of collective bargaining and we have recognized their separate status in previous decisions.7 The instant case presents no reason for departing from our previous point of view in this regard. The Trainmen wishes to include in the unit switchmen foremen. As previously indicated, these employees are in charge of crews of men. They do not have authority to hire or discharge, but it is their duty to supervise the activities of their subordinates and to recommend dis- ciplinary action, including discharge, when they feel that such action is necessary. Clearly switchmen foremen are supervisory employees with authority to recommend changes in the status, of other employees. They will not be permitted to vote in the election hereinafter ordered nor will they be included in any unit, which we may hereafter find to be appropriate.' ' Matter of Phelps-Dodge Corporation, 40 N. L. R. B. 180; Matter of Kenneeott Copper Corporation, 40 N. L. R. B. 986; and Matter of Long -Bell Lumber Company, 36 N. L. R B. 664. - 8 Matter of Maryland Drydock Co ., 49 N. L . R. B. 733. ST. JOHNS RIVER SHIPBUILDING COMPANY 965 In accordance with the above conclusions we find that all switchmen employed by the Company at its Jacksonville, Florida, shipyard, but excluding switchmen foremen, might properly constitute a separate appropriate unit, or might be merged into the existing production and maintenance unit presently covered by the contract with the Metal Trades Council and its affiliated unions. Therefore, before making a final determination of the propriety of the unit sought by the Train- men, we shall first ascertain the wishes of the employees themselves to determine whether they desire to constitute a separate unit or be- come part of the larger unit. 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 Re- lations Board Rules and Regulations-Series 2, as amended, it is hereby DIRECTED that, as part of the investigation to ascertain representa- tives for the purposes of collective bargaining with St. Johns River Shipbuilding Company, Jacksonville, Florida, an election 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 Tenth 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 all switch- men in the employ of the Company at its shipyard at Jacksonville, Florida, who were employed during the pay-roll period immediately preceding the date of this election, 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 switchmen foremen and any other supervisory em- ployees with authority to hire, promote, discharge, discipline, or oth- erwise effect changes in the status of employees, or effectively rec- ommend such action, and any employees who have since quit or been discharged for cause, to determine whether they desire to be represented by Brotherhood of Railroad Trainmen, or by Interna- tional Union of Operating Engineers, Local 673, affiliated with the Jacksonville Metal Trades Council and with the American Federa- tion of Labor, for the purposes of collective bargaining, or by neither. CHAIRMAN MILms took no part in the consideration of the above Decision and Direction of Election.