West Side Iron Works

National Labor Relations Board - Board Decisions

Apr 3, 1946

66 N.L.R.B. 1472 (N.L.R.B. 1946)

In the Matter of JOSEPH W. YELLEN, ANTHONY YELIEN, THEODORE
YELLEN, FRANK YELLEN, JOHN YELLEN, WILLIAM YELLEN, STEPHEN
YELLEN, AND JOSEPH A. YELLEN, INDIVIDUALLY AND AS COPARTNERS
DOING BUSINESS UNDER THE TRADE NAME AND STYLE OF WEST SIDE IRON
WORKS and INDUSTRIAL UNION OF MARINE & SHIPBUILDING WORKERS
OF AMERICA, CIO
Case No. 2-R-5818.-Decided April 3, 1949
Mr. Morris A. Herson, of New York City, for the Company.
Messrs. Samuel L. Rothbard and William Bell, both of New York
City, for the Industrial.
Mr. S. T. Gordon, of Brooklyn, N. Y., for the Brotherhood.
Mr. Thomas J. Davis, Jr., of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon a petition duly filed by Industrial Union of Marine & Ship-
building Workers of America, CIO, herein called the Industrial,
alleging that a question affecting commerce had arisen concerning the
representation of employees of West Side Iron Works, New York
City, herein called the Company, the National Labor Relations Board
provided for an appropriate hearing upon due notice before John J.
Cuneo, Trial Examiner. The hearing was held at New York City
on October 25, 1945. The Company, the Industrial, and the United
Brotherhood of Welders, Cutters and Helpers of America, Local
No. 22, herein called the Brotherhood, 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
1 The International Longshoremen 's Association , Local 1474 , affiliated with the American
Federation of Labor, made a showing of interest and participated in the prehearing con-
ferences with the Trial Examiner , but did not file a motion to intervene , or take part in
the hearing.
66 N. L. R. B., No. 182.
1472
WEST SIDE IRON WORKS 1473
from prejudicial error and are hereby affirmed. All parties were
afforded opportunity to file briefs with the Board .2
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
West Side Iron Works is a partnership organized under the laws
of New York and composed of eight partners, namely, Joseph W.
Yellen, Anthony Yellen, Theodore Yellen, Frank Yellen, John
Yellen, William Yellen, Stephen Yellen, and Joseph A. Yellen. It
is engaged in stevedoring and in ship repair and conversion in New
York City. The Company stipulated that during the year ending
August 1, 1945, it purchased iron and steel valued in excess of
$1,000,000, of which approximately 66 percent was shipped in from
points outside the State of New York, and that during the same
period, the Company performed services and furnished materials
valued in excess of $1,000,000, on vessels plying between ports in the
United States and ports in foreign countries. For the purposes of
this proceeding, the Company concedes, and we find, that it is en-
gaged in commerce within the meaning of the National Labor Rela-
tions Act.
II. THE ORGANIZATIONS INVOLVED
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.
International Longshoremen's Association, Local 1474, is a labor
organization affiliated with the American Federation of Labor, ad-
mitting to membership employees of the Company.3
United Brotherhood of Welders, Cutters and Helpers of America,
Local No. 22, is an unaffiliated labor organization admitting to mem-
bership employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
On July 28, 1945, the Industrial addressed to the Company a
letter in which it claimed to represent a majority of the employees
within the alleged appropriate unit and requested that the Com-
pany refrain from entering into any contract relationship with any
s After the hearing the parties entered into a stipulation for the correction of the
transcript of the record made at the hearing. This stipulation is hereby made a part
of the record in this proceeding and the transcript is corrected accordingly.
"See footnote 1, supra
1474 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
other labor organization until the Board had determined the bar-
gaining representative, or until the parties by agreement settled the
question concerning representation. The Company did not reply to
this communication. At the hearing the Company stated that it re-
fused to recognize any labor organization until one had been certified
by the Board.
A report of a Board agent, introduced into evidence at the hear-
ing, indicates that the Industrial represents a substantial number of
employees in the unit hereinafter found appropriate, namely, De-
partment 14 This report further indicates that none of the labor
organizations represents a substantial number of employees in
Department 2.5
We find that a question affecting commerce has arisen concerning
the representation of employees in Department 1 of the Company,
within the meaning of Section 9 (c) and Section 2 (6) and (7) of the
Act. We further find that the showing of interest of the labor or-
ganizations does not justify the holding of an election in Department
2. In the event that this default is corrected by a supplemental
showing, pursuant to appropriate motion, the Board would be in-
clined to proceed on the basis of the present record to a decision on
the requests of the Industrial and the Brotherhood with respect to
the employees in Department 2.
IV. THE APPROPRIATE UNIT
The Industrial, in its petition, seeks a single company-wide unit
of all production and maintenance employees, excluding office and
clerical employees, snappers, and supervisory employees. The
Brotherhood seeks to have all the welders, burners and their helpers,
including snappers, included in one company-wide unit separate from
the unit sought by the Industrial. The Company contends that the
two departments of the Company should be treated as separate units
• The report, dated September 26, 1945, showed that the Industrial submitted 231
authorization cards. Of these, 209 checked with the pay roll of July 29, 1945; no date
appeared on 170 of them, 26 were dated July 1045, and 13 were dated August 1945. One
hundred seven of these cards related to Department 1. This represents 46 6 percent In
Department I If snappers are excluded from the computation as urged by Industrial, or
44.5 percent If the snappers are included.
The Longshoremen submitted 5T cards, of which 53 checked with the pay roll, all of
which related to Department 1, and 49 of which were dated August 1945, and 3 undated.
This represents 22 percent of the employees in Department 1, including snappers.
The Tl otherhpod submitted no cards relating to Department 1.
6 the report showed that the Industrial submitted 102 cards which checked against the
pay toll of, Department 2, constituting a representation of 22 6 percent, excluding snap-
pers, and 20.7 percent if snappers are included. The Longshoremen submitted no cards
for Department 2. The Brotherhood submitted 16 cards, 15 of which checked against
the pay roll, of which 3 were dated June 1945, 10 dated August 1945, and 2 undated.
This represents 21 percent (if snappers are excluded, and 20 percent if they are included)
of the burners and welders in Department 2.
I
WEST SIDE IRON WORKS 1475
with the snappers included with the production and maintenance em-
ployees a
There are no contracts involved and no history of collective bar-
gaining.
The Company is engaged in two separate enterprises. In Depart-
ment 1 the Company has developed a patented process, involving the
welding of iron pad-eyes into the decks of ships, for securely lashing
certain types of cargo on the decks. It was developed to meet the
need during wartime of increasing carrying capacity and of trans-
porting certain bulky objects, such as tanks, locomotives, and airplane
crates which are difficult to lower through hatches. This process
was characterized by the Department of Labor, in ruling on a request
of the Company for an exemption from an executive order relating
to hours of labor, as a "specialized type of stevedoring," distinct from
ship building and ship repair. This department has been in operation
since early in 1940. The other business of the Company is ship repair,
alteration and conversion. This includes the welding of plates, the
repairing of ships' masts, booms, and rigging, and the repair and
installation of boilers, pipes, and engines. This work is carried on
in Department 2, which commenced operations in May 1944.
Each department is headed by a partner of the firm. Each has
its own separate bank account, bookkeeping staff, supervisory force,
wage scale, holiday pay, seniority system, personnel department,
shaping rooms, toolrooms and warehouses. Each department main-
tains its own shops on shore for the fabrication of the items used by
it. Department 2 procures its employees through the United States
Employment Service, while Department 1 procures its employees
from other sources. Each department has its separate mail address
and letterhead, and, recently, separate switchboards have been in-
stalled. Department 1 obtains its business from the operations divi-
sions of the shipping companies, while Department 2 obtains its work
from the maintenance divisions. Department 1 frequently installs
pad-eyes and lashes cargo on ships on which Department 2 does no
work at all. We are, therefore, of the opinion that the production
and maintenance employees in Department 1 constitute a homogene-
ous and functionally coherent group distinct from those in Depart-
ment 2 and should be treated as a unit separate from the employees
in Department 2.
The next question is whether the welders should be included with
the production and maintenance employees in this unit. The welders
in Department 1 are tack welders. Their work consists mainly of
burning holes in the decks of ships into which pad-eyes and cleats are
a The position of the Longshoremen is not clear, but as that union has no representation
in Department 2, it is assumed that the Longshoremen would favor the position of the
Company as to treating the two departments as separate units.
1476 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
inserted and welded in order that the deck cargo may be securely
lashed. This type of welding requires considerably less skill and
experience than "production" or "finish" welding. Production
welders, such as are employed in Department 2, are required to have a
certificate of ability from the American Bureau of Ships or the
United States Coast Guard before they are permitted to work on
boilers, steam or heat pressure parts or strength members of the hull.
The welders and burners in Department 1, however, are merely re-
quired to have the State and local permits apparently required of
anyone carrying a torch. They shape in the same room as the other
employees in Department 1, and work on the ships' decks in physical
propinquity to the other employees. These tack welders, in our
opinion, do not possess such a degree of skill or constitute such a
distinct craft group as to warrant their separation from the other
employees in the unit .7 And, as pointed out, the Brotherhood has
no representation among these tack welders. We therefore conclude
that a separate unit of welders, burners and their helpers in Depart-
ment 1 is not appropriate for the purposes of collective bargaining,
and that these employees should be included in the unit of production
and maintenance employees.
The further question is raised whether snappers should be in-
cluded. The snappers are appointed on the basis of superior skill.
A snapper directs the work of a group of from 4 to 20 men. When
the group is large, he spends all his time directing the work; when
it is only 5 or 6 in number, he labors along with the others. A man
is sometimes made a snapper temporarily and afterwards reverts to
his former status. The snappers are never included in meetings of
the supervisory staffs of the departments. These meetings include
foremen and upward. The snappers' duties include the reporting
of incompetence to the supervisor; but the supervisor makes an inde-
pendent investigation before discharging or altering the status of
the employee in question, and in case of conflict between the state-
ment of the snapper and that of the employee, as much weight would
be given to the employee's claims as to those of the snapper. Re-
quests for raises are automatically passed along by the snapper to
the foreman without recommendation. We are of the opinion that
the snappers do not have authority to hire, promote, discharge, disci-
pline, or otherwise effect changes in the status of employees, or effec-
tively recommend such action. Therefore, the snappers should be
included in the unit of production and maintenance employees."
Accordingly, we find that all production and maintenance em-
ployees in Department 1, including snappers, but excluding office and
"See Bethlehem -Hingham Shipyard, Inc, 54 N L. R. B. 631; United Boat Service
Corporation, 53 N L. R B. 992.
89ee Wheeler Shipbuilding Corporation , 56 N. L. R. B. 1351.
WEST SIDE IRON WORKS 1477
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, con-
stitute an appropriate unit for the purposes of collective bargaining,
within the meaning of Section 9 (b) of the Act. I
V. THE DETERMINATION OF REPRESENTATIVES
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 Direc-
tion.
In view of the fact that the Longshoremen did not file a motion to
intervene and did not participate in the hearing, but did make a
showing of interest in Department 1, the Longshoremen shall be
accorded a place on the ballot only if it shall notify the Regional Di-
rector in writing within 10 days of the issuance of this Decision and
Direction of Election that it desires a place on the ballot.
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 Rela-
tions Act, and pursuant to Article III, Section 9, of National Labor
Relations Board Rules and Regulations-Series 3, as amended, it is
hereby
DIRECTED that, as part of the investigation to ascertain representa-
tives for the purposes of collective bargaining with Joseph W. Yellen,
Anthony Yellen, Theodore Yellen, Frank Yellen, John Yellen, Wil-
liam Yellen, Stephen Yellen, and Joseph A. Yellen, individually and
as copartners doing business under the trade name and style of West
Side Iron Works, New York City, 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 subject 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 during
said pay-roll period because they were ill or on vacation or tem-
porarily laid off, and including employees in the armed forces of the
686572-46-95
1478 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 or not they desire to be repre-
sented by Industrial Union of Marine & Shipbuilding Workers of
America, affiliated with the Congress of Industrial Organizations,
for the purposes of collective bargaining.