Technical Marine Maintenance Co., Inc.

National Labor Relations Board - Board Decisions

Jan 10, 1946

65 N.L.R.B. 364 (N.L.R.B. 1946)

In the Matter of TECHNICAL MARINE MAINTENANCE CO., INC., and
AMERICAN FEDERATION OF LABOR, METAL TRADES DEPARTMENT
Case No. 1-R-5712.Decided January 10, 1916 1
Maloney d Doyle, by Mr. Anthony J. 1Veslan, of Brooklyn, N. Y.,
and Powers, London, Mole ce, Clancy, by Robert L. London, of New
York City, for the Company.
Mr. Jacob Friedland, of Jersey City, N. J., for the AFL.
Messrs. Samuel L. Rothbard and Emil Oxfeld, of Newark, N. J.,
and Mr. George Sabosik, of Jersey City, N. J., for the CIO.
Mr. Nathan Saks, of counsel to the Board.
DECISION
AND
,DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon a petition duly filed by American Federation of Labor,
Metal Trades Department, herein called the AFL, alleging that a
question affecting commerce had arisen concerning the representation
of employees of Technical Marine Maintenance Co., Inc.,, North
Bergen, New Jersey, herein called the Company, the National Labor
Relations Board provided for an appropriate hearing upon due notice
before Daniel Baker, Trial Examiner. The hearing was held at New-
ark, New Jersey, on August 17 and 27, 1945. The Company, the AFL,
and Industrial Union of Marine and Shipbuilding Workers of Amer-
ica, CIO, herein called the CIO, appeared and participated.'. All
parties 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 prejudicial error and are hereby affirmed. All parties were
afforded opportunity to file briefs with the Board.
Name of the Company as corrected at the hearing.
s The AFL has filed a waiver of any right to object to any election which may be held
in the instant proceeding on the basis of any of the acts alleged as unfair labor practices
in Case No . 2-C-5957 . The CIO has filed a similar waiver with respect to Case No.
2-C-5915.
65 N L. R. B., No. 67.
364
TECHNICAL MARINE MAINTENANCE CO., INC. 365
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
Technical Marine Maintenance Co., Inc., a New York corporation
with its principal office in Brooklyn , New York, operates a shipyard
at North Bergen , New Jersey , where it is engaged in the repair of ships
for the War Shipping Administration . During its last fiscal year, the
Company's receipts from this work exceeded $1,000,000.
The Company admits that it is engaged in commerce within the
meaning of the National Labor Relations Act.
H. THE ORGANIZATIONS INVOLVED
American Federation of Labor, Metal Trades Department, is a-
labor organization, admitting to membership employees of the Com-
pany.
Industrial Union of Marine and Shipbuilding Workers of America
is a labor organization, affiliated with the Congress of Industrial
Organizations, admitting to membership employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
By letter dated May 24, 1945, the AFL notified the Company that
it represented the Company's employees, and requested recognition
and a bargaining conference. Thereafter, several conferences were
held between the AFL and the Company. While these conferences
were in process, the CIO, by telegram dated June 5, 1945, and by letter
dated June 8,1945, notified the Company that it represented the Com-
pany's employees, and that the Company should not enter into a con-
tract with any union which had not been certified by the Board. On
June 8, 1945, the AFL filed its petition herein. On June 19, 1945, the
parties executed an Agreement for Consent Election, but before the
election was held, the Regional Director, because of circumstances
which had occurred in the interim, canceled the consent election.
A statement of a Board agent, introduced into evidence at the hear-
ing, indicates that the AFL represents a substantial number of em-
ployees in the unit hereinafter found appropriate.3
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.
8 The Field Examiner reported that the APL submitted 168 authorization cards, bearing
the names of 118 employees listed on the Company's pay roll of June 10, 1945; and that
the CIO submitted 118 authorization cards, bearing the names of 95 employees listed on
that pay roll.
There are approximately 300 employees in the appropriate unit.
366 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IV. THE APPROPRIATE UNIT
The AFL seeks a unit of all production employees of the Company,
including snappers, assistant snappers, truck drivers, fire watchers,
and construction workers, but excluding guards, office clerical em-
ployees, and supervisory employees. The Company agrees that this
unit is appropriate; the CIO disagrees with the proposed unit only
in that it would exclude the construction workers from the unit as
temporary employees.
Early in 1945, the Company began preparing for the operation of its
North Bergen shipyard. At that time it hired approximately 50 con-
struction workers to erect buildings and repair docks. The employ-
ment of these construction workers was, however, to be terminated
upon the completion of the Company's building and repair program.
As different phases of this program were completed, the Company sev-
ered the employment of workers no longer needed. At the time of
the hearing, the Company employed only 11 construction workers,
8 of whom were dock repairmen, and 3 of whom were bricklayers.
It appears, however, that the work of these 11 employees was to be
completed within a week of the hearing, and that the Company wast
planning to discharge them at that time. In view of this circumstance,
and inasmuch as the Company stated that it had no expectation of
hiring any construction workers in the future, the issue is in all likeli-
hood now moot. In any event, because of the different and temporary
character of their work, we shall exclude construction workers from
the unit.
We find that all production employees of the Company, including
snappers, assistant snappers, truck drivers, and fire watchers, but
excluding construction workers, guards, office clerical employees, and
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 or REPRESENTATIVES
The AFL urges that the Company's. pay roll for the week ending
Julie 10, 1945, be used to determine eligibility to vote on the grounds
that : (1) the consent election agreement provided for the use of that
pay-roll period; and (2) there have been mass discharges in violation
of the Act, subsequent to that date, and the employees affected thereby
should be entitled to vote. The CIO is in accord, with the Board's
practice of using a current pay roll, and the Company leaves the issue
to the discretion of the Board. With respect to the first ground urged
by the AFL, the provision of the consent election agreement as to the
TECHNICAL MARINE MAINTENANCE CO., INC. 367
pay roll to be used is patently not applicable to this proceeding. As
to its second ground, the fact that some employees may have been dis-
charged in violation of the Act does not warrant a departure from
our practice of using a current pay roll in determining eligibility to
vote' Moreover, the use of a current pay roll will not operate to dis-
enfranchise those employees entitled to vote, since employees so dis-
charged may vote subject to challenge. Accordingly, we shall deny
the AFL's request.
We shall direct that the question concerning representation which
has arisen be resolved by an election by secret ballot among 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 Relations
Act, and pursuant to Article III, Section 9, of National Labor Rela-
tions Board Rules and Regulations-Series 3, as amended, it is hereby
DIRECTED that, as part of the investigation to ascertain representa-
t,ves for the purposes of collective bargaining with Technical Marine
Maintenance Co., Inc., North Bergen, New Jersey, 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 matter as agent for the National Labor Relations Board, and sub-
ject to Article III, Sections 10 and 11, of said Rules and Regulations,
among 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 dur-
ing said pay-roll period because they were ill or on vacation or tempo-
rarily laid of, and including employees in the armed forces of the
United States who present themselves in person at the polls, but ex-
cluding 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 they desire to be represented by Ameri-
can Federation of Labor, Metal Trades Department, or by Industrial
Union of Marine and Shipbuilding Workers of America, CIO, for the
purposes of collective bargaining, or by neither.
MR. GERARD D. REILLY took-no part in the consideration of the above
Decision and Direction of Election.
4 The question of whether discharges are violations of the Act are properly the subject
matter of proceedings under Section 10 of the Act Such action has been initiated by the
AFL in Case No 2-C-5957
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