Tampa Shipbuilding Co., Inc.

National Labor Relations Board - Board Decisions

May 13, 1946

67 N.L.R.B. 1359 (N.L.R.B. 1946)

In the Matter of TAMPA SHIPBUILDING COMPANY, INCORPORATED and
GUARDS, WATCHMEN AND FIREFIGHTERS LOCAL UNION 11o. 22970,
A. F. of L.
Case No. 10-C-1813.-Decided May 13, 1946
DECISION
AND
ORDER
On March 18, 1946, the Trial Examiner issued his Intermediate
Report in the above-entitled proceeding, finding that the respondent
had engaged in and was engaging in certain unfair labor practices
and recommending that the respondent cease and desist therefrom and
,take certain affirmative action as set forth in the copy of the Inter-
mediate Report attached hereto. No exceptions to the Intermediate
Report, or briefs were thereafter filed with the Board.
The Board has reviewed the rulings of the Trial Examiner and
finds that no prejudicial error was committed. The rulings are hereby
affirmed. The Board has considered the Intermediate Report and the
entire record in the case. As previously noted, the respondent has
filed no exceptions to the Intermediate Report. The Board hereby
adopts the findings, conclusions, and recommendations of the Trial
Examiner.
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the respondent, Tampa Shipbuilding Com-
pany, Incorporated, Tampa, Florida, and its officers, agents, succes-
sors, and assigns shall :
1. Cease and desist from :
(a) Refusing to bargain collectively with Guards, Watchmen and
Firefighters Local Union No. 22970, A. F. of L., as the exclusive rep-
resentative of all the guards employed at its Tampa, Florida, shipyard,
excluding corporals, sergeants, lieutenants, the captain, 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 ;
07N L. R. B, No 183.
1359
1360 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) In any manner interfering with the efforts of Guards, Watch-
men and Firefighters Local Union No. 22970, A. F. of L., to bargain
collectively with it as the representative of its employees in the ap-
propriate unit described above.
2. Take the following affirmative action which the Board finds will
effectuate the purposes of the Act:
(a) Upon request, bargain collectively with Guards, Watchmen
and Firefighters Local Union No. 22970, A. F. of L., as the exclusive
representative of all its employees in the aforesaid appropriate unit,
with respect to rates of pay, wages, hours of employment, and other
conditions of employment;
(b) Post at its shipyard at Tampa, Florida, copies of the notice
attached to the Intermediate Report, marked "Appendix A." 1 Copies
of this notice, to be furnished by the Regional Director of the Tenth
Region, shall, after being duly signed by the respondent' s representa-
tive, be posted by the respondent immediately upon receipt thereof,
and maintained by it for sixty (60) consecutive days thereafter, in
conspicuous places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the respondent
to insure that these notices are not altered, defaced, or covered by any
other material;
(c) Notify the Regional Director for the Tenth Region in writing,
within ten (10) days from the date of this Order, what steps the
respondent has taken to comply herewith.
CHAIRMAN IIERzoo took no part in the consideration of the above
Decision and Order.
INTERMEDIATE REPORT
Mr. William Pate, for the Board.
Reeves, Allen and Johnson , by Mr. Leroy Allen, of Tampa , Fla., for the
respondent.
Mr. J. P. Rhodes, of Jacksonville, Fla., for the Union
STATEMENT OF THE CASE
Upon a charge duly filed on November 2, 1945 , by Guards, Watchmen and Fire-
fighters Local Union No. 22970, A. F. of L, herein called the Union, the National
Labor Relations Board, herein called the Board, by its Regional Director for
the Tenth Region ( Atlanta, Georgia ), issued its complaint , dated February 14,
1946, against Tampa Shipbuilding Company, Incorporated , herein called the
respondent , alleging that the respondent had engaged in and was engaging in
unfair labor practices affecting commerce within the meaning of Section 8 (1)
and (5) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat.
449, herein called the Act. Copies of the complaint accompanied by notice of
hearing were duly served upon the respondent and the Union.
i This notice, however , shall be, and it hereby is, amended by striking from the first
paragraph thereof the words "RECOMMENDATIONS OF A TRIAL EXAMINER" and
substituting in lieu thereof the words "A DECISION AND ORDER."
TAMPA SHIPBUILDING COMPANY, INCORPORATED 1361
With respect to the unfair labor practices, the complaint alleged in sub-
stance: (a) that all guards employed at the respondent's Tampa shipyard, ex-
clusive of corporals, sergeants, lieutenants, the captain, and all other super-
visory employees with authority to hire, promote, discharge, discipline, or other-
wise effect changes in the status of employees, or effectively recommend such
action, constitute a unit appropriate for the purpose of collective bargaining,
as found by the Board in its Certification of Representatives issued August 10,
1945,' wherein the Board certified that the Union had been designated and
selected by a majority of the employees in said unit as their representative for
the purpose of collective bargaining; (b) that on September 16, 1945, the Union
requested the respondent to bargain collectively and that on September 16 and
at all times thereafter, the respondent had refused to bargain with the Union
as the exclusive representative of the employees in the above-described ap-
propriate unit; (c) that by such refusal to bargain with the Union the respond-
ent has interfered with, restrained, and coerced its employees in the exercise of
rights guaranteed in Section 7 of the Act and has engaged in and is engaging
in unfair labor practices within the meaning of Section 8 (1) and Section 8 (5)
of the Act.
The respondent did not file an answer to the complaint.
Pursuant to notice, a hearing was held on March 0. 1946, at Tampa, Florida,
before Louis Piost, the undersigned Trial Examiner duly designated by the Chief
Trial Examiner. The Boni d and the respondent were represented by counsel and
the Union by a representative. All parties participated in the hearing. Full
opportunity to be heard, to examine and cross-examine witnesses, and to intro-
duce evidence bearing upon the issues was afforded all parties. At the hearing
the parties entered into a stipulation covering the facts An opportunity was
afforded all parties to file briefs with the undersigned A brief has been received
from the respondent.
Upon the record thus made the undersigned makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RFSPONDENT
Tampa Shipbuilding Company, Incorporated, is a Florida corporation, oper-
ating a shipyard at Tampa, Florida, where it is engaged in the construction, con-
version, and repair of ships During the year 1945, it purchased and used raw
materials valued in excess of $2,000,000, of which SO percent came to its Tampa
shipyard from points outside the State of Florida. During the same period its
receipts from its operations exceeded $10,000,000. More than 90 percent of
the ships it constructed, converted, and repaired was delivered on interstate
waterways to the United States Navy, the War Shipping Administration, and
the Lend Lease Administration a
II. THE ORGANIZATION INVOLVED
Guards, Watchmen and Firefighters Local No. 22970 is a labor organization
affiliated with the American Federation of Labor, admitting to membership
employees of the respondent.
1 See Matter of Tampa Shipbuilding Company , Incorporated and Guards , Watchmen and
Firefighters Local Union No 22970 , A F. of L, Case No 10-R-1279.
2 The Board has taken jurisdiction over the respondent in Matter of Tampa Shapbueldang
Company, Incorporated and Guards , Officers, Petsolcum and Nightwatchmen , Federal
Lo( al No. 22970 A. F. L, 50 N L R B 177, and in Matter of Tampa Shipbuildzng Com-
pany, Incorporated , 62 N L . R B 954.
692148-46-vol. 67--87
1362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE UNFAIR LABOR PRtOTICER
A Sequence of events
Upon a petition duly filed by the Union, alleging that it question affecting
commerce had arisen concerning the representation of certain of the respondent's
employees , namely the guards employed at its Tampa shipyard, the Board sched-
uled a hearing before a Trial Examiner for January 8, 1945. The State of
Florida thereupon sought and obtained from the Circuit Court of the Thirteenth
Judicial District in and for Hillsborough County, Florida (hereinafter called
the State Court), an order enjoining the conduct of said hearing On January
27. 1945, the cause was removed to the District Court of the United States for
the Southern District of Florida (hereuialtel called the U S District Court).
The same day the Board filed motions with the U S District Court to dissolve
the injunction and dismiss the complaint On January 23, the State of Flouda
moved the U S District Court to remand the cause to the State Court Follow-
ing a hearing upon the above motions, the U S District Court, on January 15,
1945, granted the Board's motion to dismiss the complaint On appeal the
United States Circuit Court of Appeals for the Fifth Circuit affirmed the ruling
of the U S. District Court.'
Upon due notice, a heating on the matter was held in Tampa, Florida, on
March 8 and 9, 1945, before a Trial Examiner of the Board. At the hearing the
respondent contended that the guards at its Tampa shipyard were deputy sheriffs
in the employ of the county sheriff, and were not subject to the provisions of the
Act. The Board found that the guards were deputized by the sheriff under the
provisions of a Florida statute which gave the sheriff authority to provide
adequate industrial guard service, but that the deputized guards exercised no
authority as deputy sheriffs off the respondent's property ; were in fact paid
by the respondent and under the iespondent's control, the sheriff's control of
the guards being nominal . The Board found the guards to be employees of the
respondent within the ineaning of Section 2 (3) of the Act4
The respondent took the further position that its guards should not be in-
cluded in any collective bargaining unit because they were engaged in protect-
ing a vital rear industry The Board found no merit in this contention and
further found that all (the respondent's) guards (employed at its Tampa ship-
yard) excluding corporals, sergeants, lieutenants, the captain, and all other
supervisory employees with the authority to hire, promote, discharge, discipline,
or otherwise effect changes in the status of employees, or effectively recom-
mend such action, constitute a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9 (b) of the Act, and directed that
an election be held among the employees within the appropriate unit to determine
whether they desired to be represented by the Union for the purpose of collective
bargaining with the respondent
On July 24, 1945, the State of Florida filed in the State Court a snit to enjoin
the agent of the Board front conducting said election on the grounds that the
3 Before the State Court and the U S District Court it was urged that the employees
involved were deputy Sheriffs of Hillsborough County, Flouda, and hence not covered by
the Act, being employees of a political subdivision of the State
,rho United States Circuit Court of Appeals in affirming the dismissal of the complaint
said, We think the suit was pieuiatuie in that the appellant without exhausting its
administrative remedy sought to enjoin representatives of the Board from concluding a
hearing in an uncompleted administrative proceeding "
See Florida v Bellman, 149 F (2d) 38Q (C C A 5)
4 See Hatter of Tampa /i phnlldinq Company, Incorporated and Guards, Watchmen and
I freighters Local No. 22970, (12 N I, R B 954
TAMPA SHIPBUILDING COMPANY, INCORPORATED 1363
respondent's guards were employees of the sheriff of Hillsborough County,
Florida, and expressly exempted from the operation of the Act. The State
Court entered an order granting a temporary injunction. Thereafter, the Board
filed a petition to remove the suit to the U. S. District Court. On July 26, tile
State Court entered an order to remove the suit to the U. S. District Court.
On the same day the Board filed a motion with the U. S. District Court to dis-
miss the complaint and dissolve the temporary restraining order. On the follow-
ing day the State of Florida moved. to remand the cause to the State Court.5
Following a hearing, on July 27, the District Court entered an order denying
the motion of the State of Florida and granting the motion to dissolve the tell)-
porary restraining order.
Thereafter, on July 27, the agent of the Board conducted an election in accord-
ance with the Board's order. The Tally of Ballots showed that from among
approximately 150 eligible voters, 66 cast valid votes, of which 47 were for the
Union, and 19 against.
No objections to the conduct of the election were tiled.
On August 10, 1945, the Board certified that the Union had been designated
and selected by a majority of the respondent's employees within the appropriate
unit heretofore described.
On September 16, 1945, the Union requested. the respondent to bargain with it
as the exclusive representative of the guards in the unit above described. On
September 17, the respondent informed the Union that it would not bargain with
it as requested, and has at all times thereafter refused so to bargain.
B. The refusal to bargain
1. The appropriate unit and the Union's majority representation therein
As hereinabove related the Board on August 10, 1945, issued its certification in
the Matter of Tampa Shipbuilding Company, Incorporated and Guards, Watch-
men and Firefighters Local Union No. 22.970A. F. of L., Case No. 10-R-1279,
certifying- that the Union had been designated and selected by a majority in an
appropriate unit of the respondent's employees, consisting of all guards (em-
ployed by the respondent at its Tampa yard), excluding corporals, sergeants,
lieutenants, the captain 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, as their representative for the
purpose of collective bargaining with respect to rates of pay, wages, hours of
employment and other conditions of employment.
The undersigned finds that the. Board's finding as to the appropriate unit in
Case No, 10-R-1279 and its subsequent certification of the Union, are binding
upon the respondent. The undersigned further finds that all the guards em-
ployed by the respondent at its Tampa, Florida, shipyard excluding corporals,
sergeants, lieutenants, the captain, 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, and that at all times after August 10, 1945, the Union,
pursuant to Section 9 (a) of the Act, has been the exclusive representative of
such employees.
b State of Florida ex rel. Tom lvatsoy„ Altorncy General v. Frank Fraser as Field
Examiner for the National Labor Relations Board. U. S. D. C. Southern District of
Florida, decided July 27, 1945.
1364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. The refusal to bargain
On September 16, 1945, the Union requested the respondent to bargain, and on
September 17, the respondent refused and has continued to refuse to bargain
with the Union . In refusing to bargain with the Union the respondent ad-
vanced the following reasons : ( 1) the guards are not its employees ; ( 2) the
guards act as an armed force guarding war industry , and do not constitute a unit
appropriate for collective bargaining ; ( 3) a majority of the eligible voters in the
alleged unit did not participate in the election for designation of representatives,
as required by law.
The first two reasons were urged by the respondent in Case No . 10-R-1279 and
were found by the Board to be without merit The undersigned finds no merit in
the third reason given by the respondent for its refusal to bargain with the Union,
namely, that a majority of the eligibles did not participate in the election for
designation of representatives , as requzi ed by /av ." The Board has consistently
held that a determination of representatives can be made by a majority of those
voting in an election , though less than a majority of those eligible elected to
cast ballots.
In National Labor Relations Board v. Standard Lime and Stone Company,' the
Court in enforcing the Board 's order, said , " there is no reason why the ordinary
political rule should not be applied , viz, that those who do not take the trouble
to vote acquiesce in the choice registered by the majority of those voting." The
law does not require that a majority vote in an election , It is sufficient that all
voters be given the opportunity to cast ballots , and that a representative number
have voted ( as is the case here ). The respondent , moreover , filed no objection
to the conduct of the election in 10-R-1279.
The undersigned finds that on September 17, 1945, and at all times subsequent,
the respondent has refused to bargain collectively with the Union as the exclusive
representative of certain of its employees in an appropriate unit, and has thereby
interfered with , restrained , and coerced its employees in the exercise of rights
guaranteed in Section 7 of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondent set forth in Section III above, occurring in con-
nection with the operations of the respondent's business described in Section I
above, have a close, intimate and substantial relation to trade, traffic and com-
merce among the several States and tend to lead to labor disputes burdening
and obstructing commerce and the free flow of commerce.
V. THE REMEDY
Having found that the respondent has engaged in certain unfair labor prac-
tices, the undersigned will recommend that it cease and desist therefrom and take
certain affirmative action designed to effectuate the policies of the Act.
Having found that the respondent on September 17, 1945, and all times there-
after, refused to bargain collectively with the Union as the exclusive representa-
tive of its employees in an appropriate unit, the undersigned will recommend
that the respondent, upon request bargain collectively with the Union.
As there appears to be no evidence that danger of other unfair labor practices
is to be anticipated from the respondent's conduct, the undersigned will not
recommend that the respondent cease and desist from the commission of any
6 The Tally of Ballots in Case No. 10-R-1279 showed approximately 150 eligibles, and 66
valid votes cast. of which 47 were for the Union, 19 against. In the instant matter B C
Staffort, the respondent's assistant secretary-treasurer, testified that the respondent now
employs 38 guards, exclusive of supervisory employees
7 149 F. (2d) 435 (C C A. 4), enf'g 56 N L R B 522, cert. denied 66 S Ct. 28.
TAMPA SHIPBUILDING COMPANY, INCORPORATED 1365
other unfair labor practices e However, in order to effectuate the policies of the
Act, the undersigned will recommend that the respondent cease and desist from
the unfair labor practices found and from in any manner interfering with the
efforts of the Union to bargain collectively with it.
Upon the basis of the above findings of fact and upon the entire record the
undersigned makes the following:
CONCLUSIONS OF LAW
1. Guards, Watchmen. and Firefighters Local Union No. 22970, A. F. of L, is
a labor organization within the meaning of Section 2 (5) of the Act.
2. All guards employed by Tampa Shipbuilding Company, Incorporated, at its
Tampa Florida shipyard, excluding corporals, sergeants, lieutenants, the captain,
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 purpose of collec-
tive bargaining, within the meaning of Section 9 (b) of the Act.
3. The Union was at all times material herein and now is the exclusive repre-
sentative of all the employees in such unit for the purposes of collective bar-
gaining within the meaning of Section 9 (a) of the Act.
4. By refusing to bargain collectively with the Union as the exclusive repre-
sentative of the employees in the above-stated unit the respondent has engaged
in and is engaging in unfair labor practices, within the meaning of Section
8 (5) of the Act.
5. By interfering with, restraining, and coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act, the respondent has engaged in
and is engaging in unfair labor practices within the meaning of Section 8 (1)
of the Act.
6. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
RECOMMENDATIONS
Upon the basis of the above findings of fact and conclusions of law, and upon
t the entire record in the case, the undersigned recommends that the respondent,
Tampa Shipbuilding Company, Incorporated, Tampa, Florida, its officers, agents,
successors, and assigns shall:
1. Cease and desist from :
(a) Refusing to bargain collectively with Guards, Watchmen and Firefighters
Local Union No. 22970, A. F. of L., as the exclusive representative of all its
guards employed at its Tampa, Florida, shipyard excluding corporals, sergeants,
lieutenants, the captain, 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 ;
(b) In any manner interfering with the efforts of the Union to bargain
collectively with it, for the unit above found to be appropriate.
2. Take the following affirmative action which the undersigned finds will
effectuate the policies of the Act :
(a) Upon request bargain with the Union as the exclusive representative of
the employees in the appropriate unit hereinabove described ;
(b) Post at its shipyard at Tampa, Florida, copies of the notice attached
hereto, marked "Appendix A." Copies of said notice, to be furnished by the
Regional Director of the Tenth Region, shall, after being duly signed by the
See N. L. R B. v. Express Publishing Company, 312 U. S. 426.
1366 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
respondent's representative, be posted by the respondent immediately upon receipt
thereof, and maintained by it for sixty (60) consecutive days thereafter, in
conspicuous places, including all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the respondent to insure that said
notices are not altered, defaced, or covered by any other material ;
(c) Notify the Regional Director for the Tenth Region in writing, within ten
(10) days from the date of this Order, what steps the respondent has taken to
comply herewith.
It is further recommended that, unless on or before ten (10) days from the
receipt of this Intermediate Report the respondent notifies said Regional Director
in writing that it will comply with the foregoing recommendations, the National
Labor Relations Board issue an order requiring the respondent to take the action
aforesaid.
As provided in Section 33 of Article II of the Rules and Regulations of the
National Labor Relations Board, Series 3, as amended, effective November 27,
1945, any party or counsel for the Board Inay within fifteen (15) days from the
date of the entry of the order transferring the case to the Board, pursuant to
Section 32 of Article II of said Rules and Regulations file with the Board,
Rochanibeau Building, Washington 25, D C, an original and four copies of a
statement in writing setting forth such exceptions to the Intermediate Report or
to any other part of the record or proceeding (including rulings upon all motions
or objections) as he relies upon, together with the original and four copies of a
brief in support thereof Immediately upon the filing of such statement of
exceptions and/or brief, the party or counsel for the Board filing the same shall
serve a copy thereof upon each of the other parties and shall file a copy with the
Regional Director. As further provided in said Section 33, should any party
desire permission to argue orally before the Board, request therefor must be
made in writing within ten (10) clays from the date of the order transferring
the case to the Board.
Louis PLOST,
Dated March 18, 1946. Trial Ecamaney.
APPENDIX A
NOTICE io ALL EMPLOYLE,
Pursuant to recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the, policies of the National Labor
Relations Act, we hereby notify our employees that :
We will bargain collectively, upon request, with Guards, Watchmen and
Firefighters Local Union No 22970, A. F of L, as the exclusive representative
of all guards employed at our shipyard at Tampa, Florida, excluding cor-
porals, sergeants, lieutenants, the captain and all other supervisory em-
ployees with authority to hire, promote, discharge, discipline, or otherwise
effect changes in the status of employees, or effectively recommend such
action.
We will not in any manner interfere with the efforts of the above named
Union to bargain with us collectively, or refuse to bargain with the said
Union collectively as the exclusive representative of the unit above described.
---------------------------------
( ippiover)
Dated---------------------------- By--------------------------- ------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof, and must
not be altered, defaced, or covered by any other material.