The United Boat Service Corp.

National Labor Relations Board - Board Decisions

Mar 22, 1944

55 N.L.R.B. 671 (N.L.R.B. 1944)

In the Matter of THE UNITED BOAT SERVICE CORPORATION and UNITED
BROTHERHOOD OF WELDORS, CUTTERS AND HELPERS OF AMERICA, LOCAL
#22, C. U. A. (IND.)
In the Matter of THE UNITED BOAT SERVICE CORPORATION and INDUS-
TRIAL UNION OF MARINE AND SHIPBUILDING WORKERS OF AMERICA,
LOCAL #38, C. I. O.
In the Matter of THE UNITED BOAT SERVICE CORPORATION and BROTHER-
HOOD OF PAINTERS, A. F. OF L. DISTRICT COUNCIL 9
In the Matter of THE UNITED BOAT SERVICE CORPORATION and UNITED
ASSOCIATION PLUMBERS AND PIPEFITTERS, LOCAL UNION #2,
A. F. OF L.
In the Matter of THE UNITED BOAT SERVICE CORPORATION and NEW
YORK CITY DISTRICT COUNCIL, UNITED BROTHERHOOD OF CARPENTERS
AND JOINERS of AMERICA, A. F. OF L.
In the Matter of THE UNITED BOAT SERVICE CORPORATION and
INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, A. F. OF L.
Cases Nos. 2-R-3.989 (R-5486), 2-R-/,121, 2-R-4446, 2-R-41,49,
and 2-R-4498 respectively-R-4 459)
SUPPLEMENTAL DECISION
ORDER
AND
AMENDMENT TO DIRECTION OF ELECTIONS
March, 22, 1944
Upon a petition duly filed in Case No. 2-R-3989 (R-5486), by United
Brotherhood of Weldors, Cutters and Helpers of America, Local #22,
C. U. A. (Ind.), herein called the Weldors, alleging that a question
affecting commerce had arisen concerning the representation of cer-
tain employees of The United Boat Service Corporation, City Island,
New York, herein called the Company, the National Labor Relations
Board provided for an appropriate hearing upon due notice before
Jack Davis, Trial Examiner. Said hearing was held at New York
City on June 2, 1943. The Company and the Weldors appeared and
55 N. L. R. B., No 119.
671
672 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
participated. Thereafter, on July 7, 1943, while the petition of the
Weldors was still pending before the Board, Industrial Union of
Marine and Shipbuilding Workers of America, Local #38, herein
called the C. I. 0., filed a petition for investigation and certification
of representatives in Case No. 2-R-4124, alleging that a question
affecting commerce had arisen concerning the representation of all
production and maintenance employees of the Company, including
the employee categories claimed by the Weldors. Thereafter, on
August 5, 1943, the Board issued an order reopening the record, re-
manding the proceedings to the Regional Director, and authorizing
the Regional Director to issue notice of further hearing. Said fur-
ther hearing was held upon clue notice at New York City on August
31, 1943, before the same Trial Examiner who presided at the earlier
hearing. The Company, the Weldors, and the C. I. O. appeared and
participated. Thereafter, on November 30, 1943 the Board issued its
Decision and Direction of Elections 1 herein, directing that separate
elections be conducted (1) among the Company's welding employees
with the Weldors and the C. I. O. on the ballot, and (2) among the
remaining production and maintenance employees with the C. I. O.
alone on the ballot. In December 1943, Brotherhood of Painters, A.
F. of L., District Council 9, herein called the Painters, United Asso-
ciation Plumbers and Pipefitters, A. F. of L., Local Union #2, herein
called the Plumbers, and New York City District Council, United
Brotherhood of Carpenters and Joiners of America, A. F. of L., herein
called the Carpenters, each advised the Regional Director of its inter-
est in representing certain employees of the Company. On January
8, 1944, the Board ordered that the elections be stayed and that the
record be reopened for the purpose of receiving evidence on the claims
of the Painters, the Plumbers, and the Carpenters. In the interim,
each of the last three labor organizations filed petitions with the Board
by which it sought an investigation of representatives for the em-
ployees in the unit it claimed appropriate. On January 19, 1944, Inter-
national Brotherhood of Electrical Workers, A. F. of L., herein called
the I. B. E. W, filed its petition with the Board seeking an investiga-
tion of representatives for the electrical workers in the employ of
the Company, and was permitted to intervene at the hearing. Since
the position of the four A. F. of L. unions is essentially that of
intervenors in Case No. 2-R-4124, these unions are frequently referred
to herein as intervenors. On January 28, 1944, a further hearing was
held herein at New York City, before the same Trial Examiner who
presided at the earlier hearings. The Company, the Weldors, the
C. I. 0., the Painters, the Plumbers, the Carpenters, and the I. B.
E. W. appeared, participated, and were afforded full opportunity to
153 N. L R. B 992.
THE UNITED BOAT SERVICE CORPORATION 673.
be heard, to examine and cross-examine witnesses, and to introduce
evidence bearing on the issues. The Trial Examiner's rulings made
at the further hearing are free from prejudicial error and are hereby
affirmed. During the hearing, the C. I. O. requested a hearing before,
the Board for the purpose of oral argument. In view of the exhaus-
tive record herein and the briefs filed by the parties, the request is,
hereby denied. 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
In our original Decision herein, after two hearings, we determined,
In. effect, that the industrial unit advocated by the C. I. O. is an ap-
propriate unit for the purposes of collective bargaining on behalf of
the Company's employees. We reserved decision, pending the out-
come of the elections heretofore directed, of the question whether the
employees claimed by the WVeldors should be included in that indus-
trial unit, or should constitute a separate unit for bargaining pur-
poses. The Painters, Carpenters, Plumbers, and I. B. E. W. now re-
quest that we reconsider the foregoing determination and alter it by
finding that the craft groups in which they are interested must be
excluded, at least tentatively, from the unit for which the C. I. O.
contends.
The representations made to the Board subsequent to the issuance
of the Decision and Direction of Elections herein indicated that the-
Painters, the Plumbers, and the Carpenters severally represented a
substantial number of the Company's employees in craft units alleged
by these unions to be appropriate for bargaining, and that the inter-
ests thereby established antedated the hearing herein of August 31,
1943, on the C. I. O. petition in Case No. 2-R-4124. If this were so,
clearly the Board was remiss in failing to give notice to these unions
of that hearing, and the petitions of the Painters, Plmbers, and Car-
penters, even though belated, should now be given consideration. In
reliance upon the representations of interest referred to above, the
Board reopened the record for the purpose of entertaining the con-
tentions of the Painters, Plumbers, and Carpenters. The I. B. E. IV.
was permitted to intervene at the hearing.
During the hearing of January 28, 1944, a representative of the
Plumbers testified that he first started to organize the Company's
plumbers and pipe fitters in December 1943, later testifying, vaguely,
that members of the Plumbers local union had engaged in organiza-
tional work among the Company's plumbers and pipe fitters at an
earlier date.
578129-44-von 55-44
674 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Painters' representative testified that he was aware that paint-
ers were employed by the Company in the summer of 1943, and visited
the yard in that season to observe working conditions. He was, how-
ever, "not interested" in securing recognition from the Company until
December 1943, when he was informed that another union, the C. I. O.,
was claiming to represent the painters.
The Carpenters had members among the Company's employees as
early as May 1943. However, it introduced no evidence at the hearing
to show affirmatively that it represented employees in the unit it pro-
poses at the time of the hearing on the C. I. O. petition.
The situation of the I. B. E. W. differs in some respects from that of
the other three A. F. of L. Unions. It made no offer to show member-
ship among the Company's electricians until its membership drive of
December 1943 and January 1944. None of the intervening unions
requested recognition of the Company until January 19, 1944.
We find that none of the intervening A. F. of, L. Unions has proved
that it had -such an active representative interest in employees of
the Company in the unit it proposes at the time of the hearing on the
C. I. O. petition,' as to be entitled to notice thereof. It is true that
counsel for all the intervenors claim that their members were em-
ployed by the Company during that period, but, in the light of the
testimony of representatives of the intervenors, the evidence of mem-
bership submitted demonstrates that they did not engage in active
organization until after the issuance of our Decision and Direction
of Elections herein. We are mindful that merely to recruit and retain
members is not the sole function of a labor organization. Indeed,
that is generally only the first'step toward representation. Were we
to concede that on August 31, 1943, at the time of the hearing on the
C. I. O. petition, all painters, all plumbers, all carpenters, and all elec-
tricians in the employ of the Company were members, respectively,
of the intervening A. F. of L. unions which now claim to represent
them, that fact alone would not have entitled the several unions to
notice of the August hearing in these proceedings. Only labor organi-
zations which exhibit an active interest in representing employees
affected by a representation proceedings are entitled to notice of the
2 The membership cards or dues records submitted by the intervenors indicate the following:
Authorizations Employees in Authorizations Employees in
Labor organization dated before units on in December units on
December 1943 August 24,1943 1943 or later 11/30/43
Painters__________________________ 0 22 17 36
Plumbers___________________ 0 31 26 31
Carpenters_______________ *6 19 16 25
I. B. E. W_______________________ 0 15 9 25
*Four dated in May and one each in October and November 1943. The employees whose names
appear on two of the cards dated in May were not listed on the November 30 pay roll.
THE UNITED BOAT SERVICE CORPORATION 675
hearing therein. Even those which seek to intervene on their own
initiative, at or prior to the hearing, must manifest a desire to engage
in collective bargaining on behalf of the employees in whom they
assert an interest.3 Thus, in a case decided as long ago as 1938, the
Board dismissed the petition of a labor organization seeking certifica=
tion as bargaining representative of a group of employees when an
,official of the, organization conceded that it did not presently contem-
plate the initiation of bargaining relations with the employer, but
wished only to be in a position to do so if conditions arose making
such action desirable 4 Of course, we do not imply that this analogy
is applicable to the intervening unions here, and we agree that they
now, as for many years, represent their members in matters of collec-
tive bargaining. We reiterate, however, that on August 31, 1943, at
the time of the further hearing on the C. I. O. petition, neither the
Painters, the Plumbers, the Carpenters, nor the I. B. E. W. were
actively seeking to represent whatever members they may have had
at the yard in collective bargaining with the Company. Since this is
so, we are of the opinion that they were not- aggrieved by our failure
to serve them with notice of that hearing.
Our basic policy with respect to the time when labor organizations
will be permitted to intervene in representation proceedings was
stated in the American Woolen Company ottse,5 where the Board held :
Expeditious investigation and certification of representatives
is essential to the proper administration of the Act. Sound ad-
ministrative policy requires, therefore, that parties claiming the
right of representation submit prima facie proof upon which they
rely either to the Regional Director prior to the hearing or to
the Trial Examiner at the time of the hearing. Hereafter in all
proceedings not now pending before the Board where full oppor-
tunity has been afforded for the timely presentation of such prima
facie proof, we shall reject offers of proof of representation made
after the close of hearings.
Since the decision in that case we have concluded that the privilege
of intervening in a representation proceeding after the close of the
hearing should be extended to organizations which establish that, as
of the time of the hearing, they had such a representative interest in
3 Normally , of course , the requisite desire on the part of a labor organization to bargain
collectively on behalf of the employees in the unit it claims to be approp,iate is sufficiently
manifested by its motion to intervene Whether or not such an intervenor makes a show-
ing of interest , by way of membership , designation as bargaining agent, or otherwise,
sufficient to give weight to its unit contentions or to entitle it to a place on the ballot in
an election among the employees involved , is a question to be determined by the circum-
stances of the case and is not of concern here See Matter of Douglas Aircraft Company,
Inc. 53 N L R B 486; Matter of The B F G,)od,ich Rubber Company, 55 N L R B 338
See Matter of J. & A Young , Inc, 9 N L R B 1164.
"Matter of American Woolen Company, 32 N L R B 1, 8
676 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees affected by the investigation as to have been entitled toy
notice thereof. We are also of the opinion that it is desirable in
certain circumstances to reopen the record and permit a labor organi-
zation to intervene in a case where the Board has not, as yet, rendered
its decision, especially where, owing to the limited extent of organiza-
tion among the employees affected by the proceedings as of the time
of the first hearing, the Board doubts the propriety of directing an,
election on the basis of the record made at that hearing.0 Subject
to those qualifications, we are still persuaded that the policy and the
reasons therefor set forth in the American Woolen decision are sound.
For the foregoing reasons, we have concluded that we were misled
in reopening the case herein to consider the contentions of the four
intervenors, since the hearing has revealed that none of the inter-
venors had a substantial interest at the time of the hearing of August
31. Accordingly, we are hereby vacating our order permitting the
intervention of the Painters, Plumbers, and Carpenters, reversing
the action of the Regional Director in permitting the intervention of
the I. B. E. W., and dismissing the petitions filed by the said unions.
It may be argued, of course, that the long delay 7 which has occurred
cannot now be avoided, and inasmuch as an election is to be conducted
no further delay would result from placing the A. F. of L. unions on
the ballots in the units they seek. We grant the plausibility of such
a contention, but deem it outweighed by the importance of restating
a principle uniformly applicable to all unions in representation
proceedings."
ORDER
In view of the foregoing findings and conclusions, and upon the entire
record in the case, the National Labor Relations Board hereby orders
that the permission to intervene heretofore granted to Brotherhood of
Painters, A. F. of L., District Council 9; United Association of Plumb-
ers and Pipefitters, A. F. of L., Local Union #2; New York City
District Council, United Brotherhood of Carpenters and Joiners of
America, A. F. of L.; and International Brotherhood of Electrical
0 Our action is reopening the record herein for the purpose of conducting a further hearing
on the C I. O.'s petition is a case in point
4 The instant case exemplifies the aggregate effect of apparently legitimate delays. The
proceeding were instituted 10 months ago, and no election has yet been held . We are of
the opinion that rigid adherence to the principles governing intervention after hearing,
stated above, will greatly minimize the incidence of such delays.
8 Recently , by a pro forma order unaccompanied by decision in Matter of Bethlehem-Ala-
mcda Shipyard, Inc et at (Decision and Direction of Election reported in 53 N. L. R B. 999).
we applied the rule herein restated in another instance where it appeared that to grant the
motion for belated intervention would not , in and of itself, delay the conclusion of the
proceedings There, we declined to permit the United Steelworkers of America, C. I 0.,
which had organized subsequent to the hearing , to intervene and be placed on the ballot
in an election theretofore directed by the Board upon the petition of another labor
organization.
THE UNITED BOAT SERVICE CORPORATION 677
Workers, A. F. of L . be, and it hereby is, withdrawn , and the several
petitions filed , respectively , by the above-named labor organizations
in Cases Nos . 2-R-4446, 2-R-4449, 2-R-4459, and 2-R-4498, be, and
they hereby are, dismissed.
AMENDMENT TO DIRECTION OF ELECTIONS
The National Labor Relations Board hereby orders that the Order
Staying Election issued herein on January 8, 1944, be vacated and that
the Direction of Elections issued herein on November 30, 1943, be
amended by striking therefrom the words "not later than thirty (30)
days from the date of this Direction" and substituting therefor "not
later than thirty (30) days from the date of our Supplemental De-
cision, Order and Amendment to Direction of Elections herein,"
and by striking therefrom the words "who were employed during the
pay-roll period immediately preceding the date of this Direction" and
substituting therefor "who were employed during the pay-roll period
immediately preceding the date of our Supplemental Decision, Order,
and Amendment to Direction of Elections herein."
CHAIRMAN MILLIS took no part in the consideration of the above
Supplemental Decision, Order and Amendment to Direction of
Elections.
[See infra, 55 N. L. R. B. 1440 for Second Supplemental Decision
and Third Amendment to Direction of Elections.]