United Shipyards, Inc.

National Labor Relations Board - Board Decisions

Mar 2, 1938

5 N.L.R.B. 742 (N.L.R.B. 1938)

In the Matter of UNITED SHIPYARDS, INC. and LOCALS No. 12, No. 13,
No. 15 OF THE INDUSTRIAL UNION OF MARINE AND SHIPBUILDING
WORKERS OF AMERICA
Case No. R 567.Decided March, 22, 1938
Shipbuilding and Repairvnq Industry-Investigation of Representatives:
controversy concerning representation of employees: rival organizations,;
refusal by employer to recognize petitioning organization as exclusive
representative of its employees; controversy concerning unit appropriate
for collective bargaining-Unit Appropriate for Collective Bargaining: three
plants; organization of plants incomplete, union claim of majority in few,
permitted; functional coherence; community of interest; central manage-
ment of labor and personnel policies by employer ; similarity of wage scales
and working conditions ; interchangeability of employees, claim of substantial
membership by rival organizations in all three plants-Election Ordered: pay-
roll period before and after strike selected to insure eligibility to greatest
number of employees.
Mr. Richard Hickey, for the Board.
Col. Kenneth Gardner and Mr. J. Ward O'Neill, of New York City,
for the Company.
Mr. Hyman N. Glickstein, of New York City, for the Industrial
Union.
Mr. Abraham M. Fisch, by Mr. David E. Kleinman, of New York
City, and Mr. J. T. Farrell, of New York City, for the Council.
Mr. R. M. Johnston, of New York City, for the I. L. A.
Mr. David Y. Campbell, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
On August 6, 1937, Industrial Union of'Marine and Shipbuilding
Workers of America, herein called the Industrial Union, filed with
the Regional Director for the Second Region (New York City), a
petition alleging that, a question affecting commerce had arisen con-
cerning the representation of employees of the United Shipyards,
Inc., New York City, herein called the Company, and requesting an
investigation and certification of representatives pursuant to Section
9 (c) of the National Labor Relations Act, 49 Stat. 449, herein called
742
DECISIONS AND ORDERS 743'
the Act. A charge of unfair labor practices having been' filed pre-
viously by the Industrial Union against the same Company, on Oc-
tober 22, 1937, the National Labor Relations Board, herein called
the Board, acting pursuant to Article III, Section 10. (c) (2),, of
National Labor Relations Board Rules and Regulations-Series 1, as
amended, directed that the cases be consolidated for the. purposes of
a hearing, and acting pursuant to Section 9 (c) of the Act of Article.
III, Section 3, of said Rules and Regulations, ordered an investiga-
tion and authorized the Regional Director to conduct it and to pro-
vide for an appropriate hearing upon due notice.
On November 30, 1937, the Industrial Union filed an amended peti-
tion alleging that all production and maintenance employees, except
foremen, assistant foremen, and draftsmen, in the Crane, Morse, and,
Fletcher plants of the Company constitute one unit appropriate for.
purposes of collective bargaining, and that all production and main-_
tenance employees, except foremen, assistant foremen, and clt aftsmen,,
in the Sisco plant constitute another unit appropriate, for:, purposes,
of collective bargaining.
On December 7, 1937, the Regional Director issued a notice of hear-
ing, copies of which were duly served upon. the Company, upon the.
Industrial Union, and upon the Marine Workers Metal Trades Dis-
trict Council, Port of New York and Vicinity, herein called the,
Council, and the International Longshoremen's Association, herein
called the I. L. A., both named in the amended petition as labor or
ganizations claiming to represent employees directly wetted by the
investigation. On December 10, 1937, the Board, acting pursuant to,
Article II, Section 37 (c), of National Labor Relations Board Rules,
and Regulations-Series 1, as amended, granted an order of severance
of the representation case and the unfair labor practices case. On,
December 13, 1937, the Regional Director issued an amended notice,
of hearing, copies of which were duly served on all parties.
Pursuant to the notice and the amended notice, a hearing was held'
on December 20, 1937, and on January 22, 1938, at New York City,,
before H. R. Korey, the Trial Examiner duly designated by the,
Board. The Board, the Company, the Industrial Union,, and the,
Council were represented by counsel and participated in the hearing.,
The I. L. A. appeared by counsel on the first day of the hearing, but
failed to participate further, although duly notified. Full oppor-_
tunity to be heard, to examine and cross-examine witnesses, and to,
introduce evidence bearing on the issues was afforded all parties. At.-
the hearing, the Industrial Union further amended the'ame'nded peti-
tion, without objection, to exclude the Sisco plant from the proceed-
ings. During the course of the hearing the Trial Examiner made,
several rulings on motions and on objections to the admission of eyi-_
805:ci-38--45
744 -NATIONAL
LABOR RELATIONS BOARD
,dente. The Board has reviewed the rulings of the Trial Examiner
.and finds that no prejudicial errors were committed . The rulings
.are hereby affirmed.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
United Shipyards, Inc. is a New York corporation, incorporated
in 1928, having its principal office located in New York City and
its four plants located in the Port of New York. The Sisco plant is
.located at Mariner's Harbor, Staten Island, New York. The Crane
and Morse plants are located in Brooklyn, New York, and the
1+ letcher plant at Hoboken, New Jersey. •
The Company has facilities for building vessels up to 500 feet in
'length and repairs all types of vessels. At the Sisco plant the great
:majority of the shipbuilding is done and approximately 28 per cent
of the vessels repaired are worked on at that plant. The Crane plant
-handles about 28 per cent of the vessels repaired and some shipbuild-'
ing is done, chiefly on smaller types of vessels. The Fletcher and
Morse plants do only repair work.
The Company is one of the two largest shipbuilding and repair
•concerns in the Port of New York and one of the largest on the At-
lantic coast. While the dollar volume of business is not shown, during
-the first 11 months of 1937, the Company repaired a total of 1395 ves-
sels in all four plants, over 79 per cent of which were ocean-going,
intercoastal, and coastwise vessels. Over 90 per cent of the materials
used by the Company in its operations in its three New York plants
.and its New Jersey plant are shipped to such plants through the
.Channels of interstate commerce by railroads, lighters and trucks
from various points of production outside the States of New York
and New Jersey, respectively. The Company concedes that it is en-
gaged in interstate commerce iii such a way as to subject it to the
jurisdiction of the Board.
We find that the aforesaid repairing and building operations of
the Company are performed upon instrumentalities which engage
in trade, traffic, transportation, and commerce among the several
States, and between the several States and high seas and foreign
-countries.
R. THE ORGANIZATIONS INVOLVED
Industrial Union of Marine and Shipbuilding Workers of America
is a labor organization affiliated with the Committee for Industrial
Organization , admitting to its membership all employees of the Com-
pany, excluding salaried persons in executive or supervisory posi-
DECISIONS ANT) ORDERS 745
tions not working with tools, timekeepers, office and clerical workers,
janitors and janitresses, draftsmen, and engineering department em-
ployees. Locals No. 12, No. 13, and No. 15 of the .Industrial Union
have jurisdiction over the entire Port of New York.
Marine Workers Metal Trades District Council, Port of New York
and Vicinity, is a labor organization affiliated with the American
Federation of Labor. It admits to membership all employees of the
Company, excluding certain employees such as executives and super-
Visors, and office and clerical workers.
International Longshoremen's Association is a labor organization
affiliated with the American Federation of Labor. It does not appear
what employees of the Company are admitted to membership, nor
does the record show to what extent the I. L. A. claims members in
any or all the plants of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
About June 1937, the Industrial Union, ' claiming to represent a
majority of the employees of the Company in all three plants directly
affected by this proceeding, attempted to bargain with the Company.
The record indicates that the Company's refusal to' recognize the
Industrial Union as the exclusive bargaining agent of the employees
in all three plants led to a strike in June 1937, among its employees
in the three plants, as well as in the Sisco plant. The Council claims
to represent a substantial number of employees of the Company in
each of the three plants, particularly in the Crane and Morse plants.
As stated before, the extent of the claims of the I. L. A. does not
appear in the record.
We find that a question has arisen concerning representation of
employees of the Company.
IV. THE EFFECT OF THE QUESTION CONCERNING REPRESENTATION UPON
COMMERCE
We find that the question concerning representation which has
arisen, occurring in connection with the operations of the Company
described in Section I above, has a close, intimate, and substantial
relation to trade, traffic, transportation, and commerce among the
several States and between the several States and high seas and for-
eign countries, and tends to lead to labor disputes burdening and ob-
structing commerce and the free flow of commerce.
V. THE APPROPRIATE UNIT
At the hearing it was stipulated that the appropriate bargaining
unit should include all employees in the said unit except all salaried
746 NATIONAL LABOR RELATIONS BOARD
employees and executives or supervisors, who do not work with
tools; foremen; timekeepers; draftsmen; watchmen; employees of
the engineering department, including technical employees in that
department ; janitors and janitresses ; office and clerical employees ;
snappers who are paid on a salaried basis; all technical employees
working on a salary.
The Industrial Union contends that the appropriate unit should
consist of the three plants, Crane, Morse, and Fletcher. The Council
claims that each of the three plants should constitute a separate unit.
The Industrial Union attempts to distinguish the Crane, Morse,
and Fletcher plants from the Sisco plant on the ground that the
latter is a shipbuilding, while the former are ship-repair plants. The
Industrial Union introduced testimony at the hearing that ship-
building is more continuous work than ship repair, and that there
is a greater variety of wage rates in shipbuilding than in the latter.
Testimony was also adduced to show the control over the labor and
personnel policies of the three plants by the central management of
the Company, particularly with reference to the determination and
establishment of rates of pay. There was also evidence on behalf
of the Industrial Union that a substantial number of employees were
transferred and worked interchangeably among the three plants.
The record is silent as to whether or not the same situation applies
also to the Sisco plant. The Company contends this transferring
among its plants is restricted to men with special qualifications. It
was also shown that prior and during the strike which occurred
among the employees of the Company a joint committee negotiated
with the Company on behalf of employees in the three plants. It
was not shown, however, nor can it be fairly assumed, that the joint
committee did not also negotiate on behalf of the employees in the
Sisco plant, particularly in view of the widespread character of the
strike and the claims of the IndustriaLUnion set forth in the original
and amended petitions.
We see no merit in the purported distinction between employees
working in ship repair and employees working in shipbuilding, in
so far as collective bargaining is concerned. The record shows that
the same crafts and the same degrees of skill are involved, and the
interests and the functions of the men are substantially identical.
Moreover,'the" record discloses that some shipbuilding is done at one
of the three plants, the Crane plant, and that at the Sisco plant
almost 28 per cent of the repair work is done.
These facts would ordinarily lead us to find that all four plants
of the Company, including the Sisco plant, constitute an appropriate
unit for the purposes of collecting bargaining. In this case, how-
ever, neither the Industrial Union nor the Council desire such a unit.
Under, these circumstances, where the state of organization has not
DECISIONS AND ORDERS 747
reached a point where any union is in a position to assert a majority
in all the plants of an employer, we have- held that one or more of
the plants may constitute an appropriate -unit.' Here the Indus-
trial Union claims that three out of the four plants constitute a
single unit and the Council contends that each of the three plants
constitute a separate unit. Since each labor organization claims a
substantial membership among employees in all three plants, since
the evidence indicates at least some transfer of employees among
the three plants, and since labor and personnel policies of the three
plants are determined by a central management of the Company,
we are of the opinion that the three plants constitute a single appro-
priate unit.
We find that the above-described employees stipulated as eligible
in the three plants constitute a unit appropriate for the purposes
of collective bargaining, and that said unit will insure to employees
of the Company- the full benefit` 'of -their right to self'-organization
'and to collective"=bargaining-and otherwise effectuate the policies of
the Act.
VI. THE DETERMINATION OF REPRESENTATIVES
During the period between the beginning of the hearing on Decem-
ber 20, 1937, and the continuance of the hearing on January 22,
1938, a check was made of the Company's May and September,
1937, pay rolls for each of the three plants by representatives of
the Industrial Union and the Council, in the presence of repre-
sentatives of the Company and under the supervision of a repre-
sentative of the Board. On the basis of the check the testimony of
the Industrial Union is that it had signed application cards for a
substantial majority of employees in each of the three plants-during
each week of the two months.
While the Council participated in the above-mentioned pay-roll
check, it did not check its claims as to membership as against the
total number of employees in any plant during any one weekly pay-
roll period. Rather, the testimony of the Council only set forth
the total of its membership claims in each of the three plants during
the entire months of May and September 1937, without any refer-
ence to the total number of employees in each of the three plants
during either entire month. It appears, however, that the member-
ship claimed by the Council is a substantial. number of the em-
ployees in each of the three plants. Since the claims of the Indus-
trial Union and of the Council, respectively, are not submitted on the
bases of comparable pay-roll periods, and since the Council failed to
'In the Matter of R C A Communications, Inc, and American Radio Telegraphists'
Association, 2 N. L R B 1109; In the Matter of Remington Rand, Inc, and Remington
Rand. Joint Protective Board of the District Council. Office Equipment Workers, 2 N. L.
R. B. 626.
748 NATIONAL LABOR RELATIONS BOARD
show the numerical relationship between its claimed membership and
the total employees in the three plants, it is not possible to determine
definitely upon the basis of the record the extent of any conflict there
may be between the claims of the Industrial Union and of the Coun-
cil, respectively. However, the record indicates that there is some
such conflict. No signed application cards were introduced in evi-
dence nor was there any verification of the signatures. Moreover, it
is unknown what further conflicts, if any, may be raised by the claims
of the I. L. A. as to membership, not being disclosed in the record.
We believe that, under these circumstances the question concerning
representation can best be resolved by holding an election by secret
ballot to determine the proper representatives for collective bar-
gaining.
The petition was filed while the strike was still in progress. Since
almost three months elapsed between the last normal pay-roll period
before the strike and the resumption of normal operations by the
Company after the strike, and because of the fluctuations in em-
ployment in the three plants, we find that it is proper to determine
eligibility to vote in the election on the basis of the weekly pay rolls
for the months of May and September, 1937, and to hold that any
person employed by the Company within the appropriate unit in
any pay-roll period in either of said months shall be eligible to vote.
At the hearing, all parties agreed that if an election were held the
ballot should include three spaces: one for the Industrial Union; one
for the American Federation of Labor, including all its craft unions;
and one for "or neither". 'Later at the hearing, the Industrial Union
expressed a desire that the ballot provide only for a choice between
the Industrial Union and the American Federation of Labor. We
are of the opinion that the ballot should provide for the three choices
in accordance with the procedure originally agreed upon.
Upon the basis of the above findings of fact and upon the entire
record in the case, the Board makes the following :
CONCLusIoNs OF LAW
1. A question affecting commerce has arisen concerning the repre-
sentation of employees of United Shipyards, Inc., New York City,
within the meaning of Section 9 (c) and Section 2 (6) and (7) of
the National Labor Relations Act.
2. All employees of the Company at its Crane, Morse, and Fletcher
plants, excluding all salaried employees and executives or super-
visors, who do not work with tools; foremen ; timekeepers; draftsmen ;
watchmen; employees of the engineering department, including tech-
nical employees in that department; janitors and janitresses; office
and clerical employees ; snappers who are paid on a salaried basis ;
DECISIONS AND ORDERS 743
and all technical employees working on a salary, constitute' a single-
unit appropriate for the purposes of collective bargaining, within=
the meaning of Section 9 (b) of the National Labor Relations Act.
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 Re-
lations Act, and pursuant to Article III, Section 8, of National Labor-
Relations Board Rules and Regulations-Series 1, as amended, it is.
hereby
DIREcrED that, as part of the investigation authorized by the Board"_
to ascertain representatives for collective bargaining with United-
Shipyards, Inc., an election by secret ballot shall be conducted within
twenty (20) days from the date of this Direction, under the- direction4
and supervision of the Regional Director for the Second Region,
acting in this matter as agent for the National Labor Relations Board,
and subject to Article III, Section 9, of said Rules and Regulations,-
among the employees of United Shipyards, Inc., employed in its.
three plants , namely the Crane, Morse, and Fletcher plants, in any-
pay-roll period in either the month of May or the month of Sep-
tember 1937, excluding salaried employees and executives or super-
visors, who do not work with tools; foremen; timekeepers; drafts--
men; watchmen; employees of the engineering department, includ-
ing technical employees in that department; janitors and janitresses;
office and clerical help; snappers who are paid on a salaried basis;.
and all technical employees working on a salary, to determine whether
such employees in the three said plants desire to be represented by
Industrial Union of Marine and Shipbuilding Workers of America,.
affiliated with the Committee for Industrial Organization, or by the-
American Federation of Labor, for the purposes of collective bar-
gaining, or by neither.