Avondale Shipyards, Inc.

National Labor Relations Board - Board Decisions

Jan 9, 1969

174 N.L.R.B. 73 (N.L.R.B. 1969)

AVONDALE SHIPYARDS, INC. 73
Avondale Shipyards, Inc. and International
Brotherhood of Boilermakers, Iron Shipbuilders,
Blacksmiths , Forgers and Helpers, AFL-CIO,
Petitioner. Case 15-RC-3422
January 9, 1969
DECISION, ORDER, AND AMENDED
DIRECTION OF SECOND ELECTION
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND ZAGORIA
On December 22, 1966, the Regional Director for
Region 15, following hearing, issued a Decision and
Direction of Election in a unit comprising
production and maintenance employees of the
Employer at its Avondale, Harvey, and Bayou
Black Divisions. Thereafter, a Request for Review
was filed by the Employer, which was subsequently
denied by the Board. On January 26, 1967, an
election was conducted. On February 14, 1967, the
Regional Director issued a Supplemental Decision
and Direction of Second Election, which set aside
the election because of meritorious objections filed
by the Petitioner. The second election has been
delayed because of, inter alia , the Employer's refusal
to furnish an Excelsior list of eligible voters. On
June 7, 1968, the Employer filed with the Regional
Director a petition requesting a reopening of the
record to take evidence as to its newly formed
Industrial and Standard Paint Divisions, which it
asserted must necessarily be included in any unit
found appropriate. Thereafter, the Petitioner filed a
statement in opposition. On July 5, 1968, the
Regional Director issued an order reopening the
record, and directing a further hearing to determine
whether the unit should be redefined, as requested
by the Employer. On August 12, 1968, the
Employer filed with the Regional Director a petition
to vacate his direction of a second election and to
certify the result of the first election.' Thereafter,
the Petitioner filed an opposition to the Employer's
petition.2
Pursuant to the order of July 5, 1968, a hearing
was held before Hearing Officer R. Kelly Baird. At
this hearing evidence was adduced as to the
Employer's Industrial and Paint Divisions, and also
as to a newly created Steel Sales Division. At the
conclusion of the hearing the Regional Director
transferred the matter to the National Labor
Relations Board for decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
'This petition was referred to the Regional Director by the Hearing
Officer, but was not acted upon by him. By virtue of the subsequent
transferral of the instant proceedings to the Board, we shall pass on it and
deny it for reasons discussed, infra
'The Petitioner, in its brief to the Board, renews such opposition and
objects to redefinition of the unit We find no merit therein for reasons
discussed, infra.
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
The Hearing Officer's rulings made at the hearing
are free from prejudicial error and are hereby
affirmed. The Employer and the Petitioner have
filed briefs which have been duly considered.
Upon the entire record in this case, the Board
finds:
1. The Petitioner moves that the Board dismiss
the reopened proceeding and direct the holding of a
second election in the unit as originally described,
on the principal ground that by setting up new
divisions the Employer could indefinitely delay an
election. The motion is denied. There is nothing in
the record to show that this was the purpose for the
creation of the new divisions. Moreover, it would be
an exercise in futility to conduct an election in what
was no longer an appropriate unit, and we see no
purpose in perpetuating the description of a unit if,
as the Employer contends, circumstances have
rendered that description obsolete.
2. The Employer moves that we reverse the
Regional Director's Supplemental Decision of
February 14, 1967, and certify the results of the first
election, contending chiefly that a new showing of
interest should be required before direction of a
second election, because of an expansion of the unit.
However, it has not been the Board's practice to
require a new showing of interest in the case of
expanding units.' As the first election has been set
aside based on the Employer's conduct, a second
election must in any event be held. We are
administratively satisfied Petitioner's showing is
adequate. Accordingly, the Employer's motion is
hereby denied.
3. The Employer is a Louisiana corporation
engaged primarily in the construction and repair of
ocean-going and inland-waterway vessels, off-shore
drilling rigs, and other sea-going vessels. The scope
of the original unit found appropriate herein
included various plants of the Employer engaged in
shipbuilding , ranging from 2 to 80 miles apart, in
the state of Louisiana.
The Employer contends that the above unit is no
longer appropriate because of its creation of three
additional divisions since the appropriate unit was
determined. Because these divisions allegedly have
working conditions similar to those in the included
plants, and are subject to the same centralized
personnel and operating policies and have the same
degree of functional integration, the Employer
claims they are necessarily a part of the appropriate
unit, and asks that the description be changed to
include them.
The Petitioner, while objecting to the reopening of
the record, now agrees that one of the additional
divisions, the Industrial Division, should be included
in the unit description. However, the Petitioner does
'See, e.g ., Trenton Foods , 101 NLRB 1769.
174 NLRB No. 14
74 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
not agree that the other two are necessarily a part
of the unit found appropriate, contending that
nothing corresponding to the Steel Sales Division
was included in the original unit description, and,
further, that the Standard Paint Division is
essentially not a part of the shipbuilding operations
of the Employer and is operated autonomously from
the other divisions.
a. The Industrial Division : This division was
created on June 1, 1968, from two departments of
the Employer's Avondale and Harvey divisions
which were included in the appropriate unit. These
departments were moved to their present location,
some 2 miles from the Harvey Division and 8 miles
from the Avondale Division, around January 1,
1968. It appears that while this division performs
work for outside customers not previously
performed, most of its work, involving the
manufacture of components for ships constructed by
the Employer, is substantially the same as that
performed in the original unit. The parties stipulated
that functions performed by this division were
formerly performed by employees in classifications
encompassed in the original unit description, and
that one half of this division's employee complement
were formerly employed in other departments of the
Employer. Accordingly, as the work of this division
appears to be substantially a relocation of work in
the original unit, we shall accept the stipulation of
the parties to include this division.4
b. The Steel Sales Division:5 This division, like
the Industrial Division, involves the transfer of work
and personnel from a unit department of the
Avondale Division, in this case the work of
supplying steel for use in the Employer's
shipbuilding operations, and an organizational
change to the status of a division, on August 1,
1968. Such work is being performed at the same
location as the work performed by the Industrial
Division. It appears that all 18 individuals employed
by the Steel Sales Division at the time of the
hearing had formerly performed comparable work
for the Avondale division, and had been eligible to
vote in the first election. As the operations of this
division are substantially a relocation of functions
performed in the original unit, utilizing the same
employees, we shall include the Steel Sales Division
in the unit description.
c. The Standard Paint Division: In September
1967, the Employer purchased the Standard Paint
s-_--
'We shall leave the dispute over the unit placement of Lerille, an
employee in the marine closure department of the Industrial Division, to
challenged ballot, as the record is not sufficiently complete to determine
whether he is a managerial employee who should be excluded from the
unit, as contended by the Petitioner.
'The Petitioner objects to consideration of the status of this division
because the notice of reopened hearing did not mention it. The Petitioner
was afforded full opportunity at the hearing to litigate the status of this
division , and did not request a postponement on the ground of surprise,
and Varnish Company, Inc., a separate unrelated
corporation. This corporation was engaged in the
manufacture and sale of industrial and house paints,
and was owned principally by Jack B. Valley. Prior
to its purchase by the Employer, Standard Paint
had sold 20 percent of its paint to the Employer.
Thereafter, the Employer continued the Company
with the same complement of employees and
management, at the same location, about 1 mile
from the Harvey Division. Valley was made vice
president and general manager of the newly formed
Standard Paint Division on July 1, 1968. This
management, unlike other division managements
which do no hiring, exercises substantially the same
control over hiring of its own employees as it did
before it sold the business to the Employer. This
division is also somewhat less functionally integrated
than the other divisions, in that, unlike them, billing
and collecting from their own customers is done by
Standard Paint Division personnel rather than
Employer's headquarters personnel. There have been
no transfers of employees between this division and
other divisions. Moreover, the hours of work of
employees of this division are different from the
hours of work of employees in other divisions. And,
unlike other divisions, at least 65 percent of the
Paint Divisions's products are sold to outside
customers. Under the foregoing circumstances, we
do not believe that the employees of the Standard
Paint Division necessarily have a community of
interest with the employees in the appropriate unit,
and we shall not include them.
ORDER
It is hereby ordered that the unit found by the
Regional Director to be appropriate be, and hereby
is, redescribed to read as follows:
All production and maintenance employees of the
Employer at its Avondale, Harvey, Bayou Black,
Industrial and Steel Sales divisions, including the
Avoncraft division, but excluding the Standard
Paint division, office clerical employees, guards,
professional employees, and supervisors, as
defined in the Act.
[Amended Direction of Second Election' omitted
from publication.]
accordingly, we find that the Petitioner was not prejudiced by the failure to
give advance notice Moreover , technical rules of pleading need not be
followed in a representation proceeding since it is non-adversary in nature.
Accordingly , we find no merit in Petitioner' s objection.
'An election eligibility list, containing the names and addresses of all the
eligible voters, must be filed by the Employer with the Regional Director
for Region 15 within 7 days after the date of issuance of the Notice of
Second Election The Regional Director shall make the list available to all
the parties to the election No extension of time to file this list shall be
granted by the Regional Director except in extraordinary circumstances.
Failure to comply with this requirement shall be grounds for setting aside
the election whenever proper objections are filed. Excelsior Underwear
Inc., 156 NLRB 1236