Todd-Johnson Dry Docks Inc.

National Labor Relations Board - Board Decisions

Dec 14, 1938

10 N.L.R.B. 629 (N.L.R.B. 1938)

In the Matter of TODD-JOHNSON DRY DOCKS INC. and INDUSTRIAL
UNION OF MARINE AND SHIPBUILDING WORKERS OF AMERICA, LOCAL
No. 29
Case No. R-754.-Decided December 14, 1938
Shipbuilding and Repairing Industry-Investigattou of Representatives: con-
troversy concerning representation of employees : petition for investigation and
certification of representatives filed by one organization after "certification" of
another organization by the Regional Director without notice to this petitioner ;
contract terminable upon 7 days ' notice by either party no bar to present
investigation ; prior "certification" of labor organization by Regional Director
no bar to present investigation-Order : additional appropriate hearing ordered
for taking further testimony.
Mr. Samuel Lang, for the Board.
Mr. Nicholas Callan, of New Orleans, La., for the Company.
Mr. Yelverton Cowherd, of Birmingham, Ala., and Mr. Anthony
Wayne Smith, of Washington, D. C., for the Industrial.
Mr. Bentley S. Byrnes, of New Orleans, La., for the Council.
Mr. David Kaplan and Mr. John P. Frey, of Washington, D. C.,
for the I. A. M.
Mr. Herbert S. Thatcher, of Washington, D. C., for the A. F. of L.
Mr. A. G. Koplow, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
On September 4, 1937, Metal Trades Council of New Orleans, sub-
ordinate to the Metal Trades Department of the American Federation
of Labor, herein called the M. T. C.,1 filed with the Regional Director
for the Fifteenth Region ( New Orleans , Louisiana ), herein called the
Regional Director , a petition alleging that a question affecting com-
merce had arisen concerning the representation of employees of Todd-
Johnson Dry Docks Inc., New Orleans, Louisiana , herein called the
Company,' and requesting an investigation and certification of repre-
1 In the petition the name of the petitioner was incorrectly stated as "New Orleans Metal
Trades Council ," but the correction was made at the hearing.
Z In the petition and on other occasions the Company was incorrectly designated, but
correction was made at the hearing.
10 N. L. R. B., No. 48.
629
147841-39-vol. 10--41
630 NATIONAL LABOR RELATIONS BOARD
sentatives pursuant to Section 9 (c) of the National Labor Relations
Act, 49 Stat. 449, herein called the Act. The petition alleged that all
the employees of the Company, excluding clerical and/or supervisory
employees, constituted an appropriate bargaining unit and stated that
there were no other known individuals or labor organizations who
claimed to represent any of the employees in such unit. Thereafter,
pursuant to an agreement among the Company, the M. T. C. and the
Regional Director, authorization cards submitted by the M. T. C.
were checked by the Regional Director with a list submitted by the
Company containing the names of all employees of the Company on
the pay roll of August 31, 1937, excluding clerical employees, the gen-
oral superintendent, and the assistant general superintendent. The
check disclosed that of the 838 persons whose names appeared on the
list submitted by the Company 489 had signed authorizations desig-
nating the M. T. C. as bargaining representative. On September 16,
1937, the Regional Director "certified" the M. T. C. as the exclusive
bargaining representative of all employees of the Company, exclusive
of those in a clerical or supervisory capacity. Shortly thereafter the
Company and the M. T. C. began to negotiate relative to terms and
conditions of employment. Following such negotiations the Company
sent the M. T. C. a letter dated January 25, 1938, setting forth terms
and conditions of employment for all industrial employees which the
letter stated had been agreed upon and stating that such terms and
conditions were to become effective immediately and to remain -in
effect until terminated by either party on 7 days' written notice. By
letter to the Company dated January 26, 1938, the M. T. C. stated that
it accepted the proposal set forth in the Company's letter dated Janu-
ary 25, 1938. '
On March 14, 1938, Industrial Union of Marine and Shipbuilding
Workers of America, Local No. 29, herein called the Industrial, filed
with the Regional Director a petition alleging that a question affecting
commerce had arisen concerning the representation of employees of
the Company and requesting an investigation and certification of rep-
resentatives pursuant to Section 9 (c) of the Act.3 On April 5, 1938,
the National Labor Relations Board, herein called the Board, after
a preliminary investigation and report had been made by the Regional
Director, issued its order dismissing the petition. On April 16, 1938,
after a reconsideration of the matter,-the Board revoked its order dis-
missing the petition and, acting pursuant, to Section 9 (c) of the Act
and Article III, Section 3, of National Labor Relations Board Rules
and Regulations-Series 1, as amended, ordered an investigation and
3 Industrial Union of Marine and Shipbuilding Workers of America, Local No 29, was
incorrectly designated as Industrial Union of Marine and Shipbuilding Workers of America
in the petition and the order directing an investigation and hearing.
DECISIONS AND ORDERS 631
authorized the Regional Director to conduct it and to provide for an
appropriate hearing upon due notice.
On April 23, 1938 , the Regional Director issued a notice of hearing,
and on May 2, 1938, a notice of postponement of hearing, copies of
both of which were duly served upon the Company , upon the Indus-
trial and upon the M . T. C. Pursuant to the notices , a hearing was
held on May 5, 6, 7, 9, 10, 11 , and 13, at New Orleans , Louisiana, before
Henry J. Kent, the Trial Examiner duly designated by the Board.
The Board, the Company, the Industrial, and the M. T. C. were repre-
sented by counsel and participated in the hearing. Full opportunity
to be heard, to examine and cross -examine witnesses, and to introduce
evidence bearing on the issues was afforded all parties.
At the beginning of the hearing , its motion to be allowed to inter-
vene having been allowed , the M . T. C. excepted to the proceeding on
the ground that the Board had no right to interfere with the contract
between the M. T. C. and the Company; requested that the act of the
Board in revoking the order dismissing the petition of the Industrial
be declared unauthorized ; and moved that the petition of the Indus-
trial be dismissed with prejudice . At the close of introduction of evi-
dence on behalf of the Industrial , the motion for a dismissal of the
Industrial 's petition was renewed . The Trial Examiner denied the
motion without prejudice. Relying upon its contention that the
Board incorrectly revoked its order dismissing the Industrial's peti-
tion and that such petition should be dismissed , the M. T. C. rested
without stating its position relative to the appropriate bargaining
unit and to other issues raised at the hearing.
Upon request of the M. T. C. and two of the labor organizations
comprising it, and pursuant to notice, a hearing was held before the
Board on June 2, 1938 , in Washington , D. C., for the purpose of oral
argument. The Industrial, the M. T. C., the International Associa-
tion of Machinists, herein called the I. A. M., which is one of the labor
organizations comprising the M . T. C., and the American Federation
of Labor, herein called the A. F. of L., with which, the M. T. C. is
affiliated , were represented by counsel and participated in the oral
;rgument. The M. T. C., the I. A. M., and the A. F. of L. asked at
the oral argument that the petition of the Industrial be dismissed, con-
tending that such action should be taken in view of the certification
which the Regional Director issued on September 16, 1938, and the
agreement between the M. T. C. and the Company. The three labor
organizations also stated that if the Board did not dismiss the peti-
tion the employees in certain craft groups should be established as
separate bargaining units and that the determination of representa-
tives should be based upon an eligibility period differing from that
which the Industrial claimed as appropriate . They requested that,
632 NATIONAL LABOR RELATIONS BOARD
in the event the petition of the Industrial was not dismissed, the case
be reopened and a further hearing be had for the purpose of adducing
additional evidence regarding the appropriate bargaining unit and
the eligibility period.
We have noted above that the petition which the M. T. C. filed on
September 4, 1937, stated that there were no other known individuals
or labor organizations who claimed to represent any of the employees
of the Company in the unit which the M. T. C. claimed as appropriate.
It was following the filing of this petition that the Regional Director
checked the authorization cards of the M. T. C. against a list of em-
ployees of the Company and certified the M. T. C. as bargaining repre-
sentative on the basis of such check. Having been informed that the
Industrial at the time of such check and certification represented a
substantial number of employees of the Company and inasmuch as
the Industrial had not been afforded an opportunity to participate in
the negotiations with the Regional Director or in any check of cards,
the Board revoked its order dismissing the petition of the Industrial
and ordered an investigation and hearing. Since the evidence which
the Industrial submitted at the hearing indicated that only two or
three employees of the Company were members of the Industrial at
the time the M. T. C. cards were checked and the Regional Director
certified the M. T. C. as bargaining representative, the actual facts
differed from those represented to the Board at the time it took its
action as aforesaid. We feel that it is not necessary, however, at this
time to determine what course of action the Board would have pur-
sued if it had had before it at the earlier date the facts as disclosed
at the hearing. Since more than a year has elapsed since the certifi-
cation by the Regional Director, we feel that such certification should
not in any event constitute a bar to a designation of bargaining repre-
sentatives at this time.
Furthermore, we do not consider the agreement between the M. T. C.
and the Company to constitute a bar to a designation of bargaining
representatives at this time, inasmuch as it may be terminated by
either party on' 7 days' written notice and inasmuch as it will shortly
have been in operation for a period of 1 year.
We have noted above that, relying upon its contention that the
Board incorrectly revoked its order dismissing the Industrial's petition
and its contention that such petition should be dismissed, the M. T. C.
rested without stating its position relative to the appropriate bargain-
ing unit and to the other issues raised at the hearing. We have also
noted above that at the oral argument before the Board the M. T. C.,
the I. A. M., and the A. F. of L. stated that if the Board did not dis-
miss the petition of the Industrial the employees in certain craft
groups should be established as separate bargaining units and the
DECISIONS AND ORDERS 633
determination of representatives should be based upon an eligibility
period differing from that which the Industrial claimed as appro-
priate. In view of all the facts here presented, we feel that the
M. T. C. and the other labor organizations should not be prejudiced
by reason of their failure to introduce evidence relative to the various
issues at the hearing, and that their request for further hearing should
be granted. Under the circumstances, we shall order the holding of
an additional hearing at which all parties shall be permitted to partic-
ipate and introduce additional testimony.
ORDER
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 8, of National Labor Rela-
tions Board Rules and Regulations-Series 1, as amended,
IT IS HEREBY ORDERED that the Regional Director for the Fifteenth
Region provide for an additional appropriate hearing upon due notice
to take further evidence in accordance with this Decision.
CHAIRMAN J. WARREN MADDEN, concurring :
In my opinion the order directing investigation and hearing was
improvidently made, and the proceedings thereunder should not have
been taken. However, in view of the lapse of time since these proceed-
ings began, I concur with my brethren that the record should now be
completed so that a present determination of representatives can
be made.