Bethlehem-Fairfield Shipyard, Inc.

National Labor Relations Board - Board Decisions

May 4, 1945

61 N.L.R.B. 901 (N.L.R.B. 1945)

In the Matter of BETHLEHEM-FAIRFIELD SHIPYARD, INC. and LOCAL
#43, INDUSTRIAL UNION OF MARINE AND SHIPBUILDING WORKERS
OF AMERICA, C. I. O.
In the Matter of BETHLEHEM STEEL COMPANY, SHIPBUILDING DIVISION,
BALTIMORE YARD and LOCAL #24, INDUSTRIAL UNION OF MARINE
AND SHIPBUILDING WORKERS OF AMERICA, C. I. O.
Cases Nos. 5-R-1769 and 5-R-1781, respectively.Decided May 4,1945
Mr. C. A. McLain, of New York City, and Mr. Gerald J. Reilly, of
Bethlehem, Pa., for the Companies.
Mr. I. Duke Avent, of Baltimore, Md., for the C. I. O.
Miss Ruth E. Blie field, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTIONS
STATEMENT OF THE CASE
Upon petitions duly filed by Local #43, Industrial Union of Marine
and Shipbuilding Workers of America, C. I. 0., herein called Local
43, and Local #24, Industrial Union of Marine and Shipbuilding
Workers of America, C. I. 0., herein called Local 24, collectively re-
ferred to herein as the C. I. 0., alleging that questions affecting com-
merce had arisen concerning the representation of employees of Beth-
lehem-Fairfield Shipyard, Inc., Fairfield, Baltimore, Maryland, herein
called Fairfield, and Bethlehem Steel Company, Shipbuilding Divi-
sion, Baltimore, Maryland, herein called the Steel Company, the Na-
tional Labor Relations Board consolidated the cases and provided for
an appropriate hearing upon due notice before George L. Weasler,
Trial Examiner. Said hearing was held at Baltimore, Maryland, on
January 19 and 20,1945. Fairfield, the Steel Company, and the C. 1. 0.,
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. Fairfield and the Steel Company,
hereinafter together called the Companies, moved to dismiss the peti-
tions on the grounds that guards and corporals are not "employees"
within the meaning of the National Labor Relations Act; and the
61 N. L. R. B., No. 149.
901
902 DECISIONS OF NATIONAL LABOR RELATIONS, BOARD
units petitioned for are not appropriate units within the meaning of
Section 9 of the Act. For the reasons 'discussed infra, these motions
are hereby denied.
The Trial Examiner 's rulings made at the hearing are free from
prejudicial error and are hereby affirmed. 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
1. THE BUSINESS OF THE COMPANIES
Case No. 5-R-17'69
Bethlehem-Fairfield Shipyard , Incorporated , a Maryland corpora-
tion, operates a shipyard at Fairfield , Baltimore , Maryland , where it
is engaged in the construction of victory ships for the United States
Maritime Commission . All of the shipbuilding facilities at the Fair-
field Yard are owned by the U. S. •Maritime Commission , and all of the
vessels which are being constructed by Fairfield at this yard are being
constructed for the U. S . Maritime Commission on a cost plus fee basis.
During the calendar year 1943, approximately 90 percent of all
materials used by Fairfield at the yard was furnished to it by the Mari-
time Commission for use in such work, and it is estimated that in ex-
cess of 50 percent of such material was used in, or was for use in, the
construction of vessels for the Maritime Commission . During 1943
more than 100 merchant vessels were constructed at the Fairfield Yard
and delivered to the Maritime Commission.
We find that Fairfield is engaged in commerce within the meaning of
the National Labor Relations Act.
Case No. 5-R-1781
Bethlehem Steel Company, Shipbuilding Division, Baltimore Yard,
is a Pennsylvania corporation, with offices at 25 Broadway, New York
City. The Shipbuilding Division is engaged at its shipyard located at
Key Highway , Baltimore, Maryland, in the repair , alteration , and con-
version of ships. During the calendar year 1943 the aggregate value
of all materials used at the Baltimore Yard, not including the value of
any materials which were manufactured at the Yard, was in excess of
$1,000,000, of which more than 50 percent was delivered to the Yard
from points outside the State of Maryland . During the said year the
aggregate amount billed by the Steel Company for work at its Balti-
more Yard was in excess of $1,000,000 of which amount more than 50
percent was billed for work on ships which were destined for use in
interstate and foreign commerce , or for the United States Govern-
ment.
BETHLEHEM-FAIRFIELD SHIPYARDS, INC. 903
We find that the Steel Company is engaged in commerce within the
meaning of the National Labor Relations Act.
IT. THE ORGANIZATIONS INVOLVED
Local #43, Industrial Union of Marine and Shipbuilding Workers
of America, affiliated with the Congress of Industrial Organizations,
is a labor organization admitting to membership employees of Fair-
field.
Local #24, Industrial Union of Marine and Shipbuilding Workers
of America, affiliated with the Congress of Industrial Organizations, is
a labor organization admitting to membership employees of the Steel
Company.
III. THE QUESTIONS CONCERNING REPRESENTATION
The C. I. O. requested recognition as exclusive bargaining repre-
sentative of the employees in the units claimed herein by it to be ap-
propriate. The Companies refused the request, alleging that the
claimed units were inappropriate, and the C. I. O. thereupon filed the
petitions in the instant proceedings.
Statements of a Board agent, introduced into evidence at the hear-
ing, indicate that the C. I. O. represents a substantial number of
employees in each of the units hereinafter found appropriate.'
We find that questions affecting commerce have arisen concerning
the representation of employees of Fairfield and the Steel Company,
respectively, within the meaning of Section 9 (c) and Section 2 (6)
and (7) of the Act.
IV. THE APPROPRIATE UNITS
The C. I. O. contends for two separate units of all plant-protection
employees employed by each of the Companies involved herein 2
respectively, including corporals but excluding clerks in the guard's
office, sergeants, lieutenants, captains, chiefs, superintendents, and
' The Field Examiner reported that Local #43 submitted 118 authorization cards ; that
there ate 195 employees in the appropriate unit at Fairfield; and that 43 cards were dated
October 1944, 39 were dated November 1944, and 36 cards were undated
Local #24 submitted 160 authorization cards There are 250 employees in the appro-
priate unit at the Steel Company ; and 33 cards were dated March 1944, through June
1944 ; 7 cards were dated July 1944, through October 1944 ; 85 cards were dated November
1944 , 1 card was dated December 1944 ; and 34 cards were undated.
i The Fairfield unit includes plant-protection employees at the Fabricating (Pullman)
Yard, the Main Yard, and all storage yards and warehouses of the Company.
The Steel Company unit includes all plant-protection employees at the Key Highway
Yard, Fort McHenry (Lower Yard), Pier No. 5, Pratt Street (Bull Line Pier) and the
Booth and Flynn Yard
904 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
certain named special investigators.3 The Companies, while not dis-
puting the composition of the units except insofar as they include
corporals, contend that the units are inappropriate within the mean-
ing of Section 9 of the Act; that guards are not employees within the
meaning of the Act; and they moved to dismiss the petitions herein
on these grounds.
Inasmuch as the-duties of the employees in both the requested units
are substantially the same, we shall discuss them together herein.
In general the guards at both Companies are charged with the duty
of protecting Government and company property in the area to which
they have been assigned; guarding against theft and sabotage; direct-
ing traffic, apprehending and reporting violators of company rules;
and reporting accidents on company property.
The Companies' property is divided into a number of sections,, and
in each section a guard is stationed at an assigned post. Those guards
posted at the gates or entrances check the identification of persons
entering or leaving the premises, and their authorization for so doing;
examine articles being taken in or out of the premises to see that no
forbidden articles, such as liquor or weapons are brought in, and no
tools or other materials are taken out without the proper authoriza-
tion; the gate guards also check to see that all employees entering or
leaving the plant punch the proper time card. The guards on duty
at other posts have the same general duties but may have additional
special duties depending on the location of the post, the material or
premises being guarded, and the rules of the Company regarding the
post. For example, a guard on duty at a spot where valuable Govern-
ment equipment or material is stored is required to be especially alert
for fire hazards and sabotage.
The guards make written reports, on a prescribed report form, to
the chief of the guard force regarding all violations of company rules
and regulations and all traffic accidents which they observe. These
reports are posted in logs which are kept at the respective guard
headquarters. Copies of the logs are sent daily to the office of the
general manager and to the Industrial Relations Department. Sum-
maries of the guards' reports concerning an individual employee are
sent to the employee's department head and to the Industrial Rela-
tions Department. The report by the guard contains a detailed state-
It was stipulated at the hearing that Local #43 has been certified as bargaining agent
for the production and maintenance employees , piece-rate counters , safety inspectors and
timekeepers employed at Fairfield, and that Local #24 has been certified as the bargaining
representative of the production and maintenance employees of the Steel Company. There
are presently in effect contracts with each of the Companies dated December 15, 1943,
covering the aforesaid employees
The CIO organizer testified that both locals plan to establish separate offices, meeting
places, books , and record for the guard units. Neither local seeks to include the guard units
in the already existing units.
BETHLEHEM-FAIRFIELD SHIPYARDS, INC. 905
ment of what occurred, but does not contain any recommendation by
the guard as to the disposition of the matter. It is merely a report of
the facts. Action taken on the reports by the department head is re-
ported to the Superintendent of Plant Protection. On occasion, when
the matter on which the guard has reported comes before the griev-
ance committee the guard may be called upon to testify concerning the
incident. Here again the guard testifies as to the facts but makes no
recommendations.
In the discharge of their duties the guards are required to take into
custody persons violating company rules and bring such employee to
the guard house. If an employee resists in such cases the guard is
authorized to use force against the employee. When the employee
is brought to the guard house the guard reports the incident to the
lieutenant in charge and delivers the employee into his custody for
whatever action is necessary. If the lieutenant decides that the em-
ployee should be placed under arrest he will call the patrol wagon from
the Baltimore City Southern Police Station. The guard will then
accompany such violater to the police station and book him on, the
roster of the City Police Department. Where the violation is not con-
sidered serious the guard will, upon orders from the lieutenant, take
the employee to his foreman. If the foreman decides the employee
should be sent home the guard will accompany him to the gate.
The guard force at each plant is constructed along military lines
and consists of a chief, captain, lieutenants, sergeants, corporals, male
guards, and guardettes. The forces are divided into three shifts
which do not coincide with the shifts of the production workers. At
both Companies' yards the guards were, for a time, sworn into the
United States Coast Guard Reserve, but were disenrolled in 1944.
All of the guards are at the present time under oath as special police
under the statutes of the State of Maryland. Their police powers,
however, extend only to the Companies' premises during the time they
are on duty. While the guards were enrolled in the Coast Guard Re-
serve they wore the Coast Guard uniform and insignia. Since their
disenrollment all Coast Guard insignia have been removed from their
uniform. All the guards at the shipyard with the exception of the
guardettes are armed with pistols and some also carry night sticks.
Whether or not a guard at the Steel Company carries a revolver or
night stick is dependent upon where he is stationed.
From the foregoing it is evident, and we find, that the Companies'
guards are employees within the meaning of the Act, and that they
comprise appropriate units for collective bargaining. The Com-
panies' contentions to the contrary were urged by the employer in
Matter of Bethlehem Steel Company 4 and were fully discussed in our
4 61 N. L. R. B. 892.
906 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
decision in that case. We find that such contentions are without
merit. The instant case differs from the cited case only in that the
guards involved herein are deputized. The limited police powers
of the guards, however, serve only to implement their monitorial
authority, and do not alter their status as employees of the Com-
panies. We have, therefore, dismissed the Companies' motion to
dismiss the petition.5
Corporals: As stated above, the only disagreement between the
parties with respect to the composition of the units requested by the
C. I. 0. concerns the inclusion of corporals, the Companies desiring
their exclusion as supervisory employees, while the C. I. 0. requests
their inclusion. The duties of the corporals at the yards of both Com-
panies are substantially the same.
Each corporal has.a section of approximately 8 to 10 guards assigned
to him and it is his duty to assign them to their stations on the post
and see to it that the guards properly perform their duties. The
corporal makes regular rounds of the posts, and transmits instructions,
received from his superior, to the guards. He relieves guards at sta-
tions of duty when necessary. The corporal, while responsible for
the performance of the guards, has no power to hire or discharge them.
In the event a guard is not, in the opinion of the corporal, performing
his duties satisfactorily, the corporal may report the guard to his
!ieutenant. In such report the corporal merely states the facts of the
case, but makes no recommendation as to its disposition. The lieu-
tenant will in every case investigate the matter to determine the facts,
and will decide for himself whether or not the guard should be repri-
manded. The final authority for discharge of a guard rests with the
chief of the plant-protection division. The corporals may on occasion
act as sergeants in the absence of the regular sergeants, but this is done
mostly for the purpose of training a corporal for promotion to the
rank of sergeant. In general, however, the corporals perform the
same functions and are subject to the same rules and regulations as
the guards. There is also no substantial difference in the rate of pay
between corporals and guards. At the Steel Company corporals re-
ceive 5 cents an hour more than guards. At Fairfield the corporals
are paid on a straight salary basis while the guards are paid by the
hour. However, it was testified that in many cases the guards, because
of premiums for overtime work, earn more than the corporals.
From the foregoing facts it appears that corporals are not super-
visors within our usual definition, as contended by the Company. We
shall therefore include corporals in the units found appropriate herein.
6 See Matter of Rockbestos Products Corporation, 47 N L. R. B. 1312 ; cf Matter of
Rohm and Haas , 60 N L R B 554 , and Matter of Drava Corporation, 52 N. L. It. B 322
EETHLEHEM-FAIRFIELD SHIPYARDS, INC. 907
Case No. 1769.
We find that all guards, guardettes, and corporals employed at Fair-
field, including those employed at the Fabricating (Pullman) Yard,
and at all warehouses of Fairfield, excluding clerks in the guard's office,
sergeants, lieutenants, captains, chiefs, superintendents, and special
investigators 6 and all or any other supervisory employees with author-
ity to hire, promote, discharge, discipline, or otherwise effect changes
in the status of employees, or effectively recommend such action, con-
stitute a unit appropriate for the purposes of collective bargaining
within the meaning of Section 9 (b) of the Act.
Case No. 1781.
We find that all, watchmen, including corporals, employed by the
Steel Company at its Baltimore Key Highway, Fort McHenry, Pier
No. 5, Pratt Street, Booth and Flynn Yards, excluding clerks in the
guard's office, sergeants, lieutenants, captains, chiefs, superintendents,
and special investigators,' and all other supervisory employees with
authority to hire, promote, discharge, discipline, or otherwise effect
changes in the status of employees, or effectively recommend such
action, constitute a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9 (b) of the Act.
V. THE DETERMINATION OF REPRESENTATIVES
The C. I. 0. alleges that a number of new guards may be hired by
the Steel Company in the near future and contends that only those
guards employed during the last pay-roll period immediately preced-
ing the hearing on January 19, 1945, or during a pay -roll period that
is not more than 2 to 3 weeks subsequent to the hearing should be
eligible to vote. The Steel Company contends that the Board should
follow its usual practice with respect to determining the eligibility
of employees to vote in the election . Since it appears that the em-
ployees to be hired will have the expectancy of permanent employ-
ment, there appears no reason for denying such employees the right
to express their choice of a bargaining representative . We shall ac-
cordingly follow our usual practice and consider eligible to vote all
employees who were employed during the pay-roll period immediately
preceding the date of the Direction of Elections herein.
We shall direct that the questions concerning representation which
have arisen be resolved by elections by secret ballot among the em-
ployees in the appropriate units who were employed during the pay-
Fairfield at present , employs one plain clothes special investigator named Allan Byerly.
His duties are substantially the same as the other guards except that he works in civilian
clothes and on special assignments . He is paid the same as the regular guards and is
responsible only to the chief of the force His duties appear to be of a highly confidential
nature Both the CIO and the Company desire his exclusion from the unit.
' The Steel Company employs two special investigators , Frank Goong , and Henry C.
Craig. See footnote 6, supra, for discussion of their duties
908 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
roll period immediately preceding the date of the Direction of Elec-
tions herein, subject to the limitations and additions set forth in the
Direction 8
DIRECTION OF ELECTIONS
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 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 Bethlehem-Fair-
field Shipyard, Incorporated, Fairfield, Baltimore, Maryland, and
Bethlehem Steel Company, Shipbuilding Division, Baltimore Yard,
Baltimore, Maryland, respectively, elections 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 Fifth Region, acting in these matters
as agent for the National Labor Relations Board, and subject to
Article III, Sections 10 and 11, of said Rules and Regulations and the
determinations made in Section V, above, among the employees in the
units 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 temporarily laid
off, and including employees in the armed forces of the United States
who present themselves in person at the polls, but excluding any who
have since quit or been discharged for cause and have not been rehired
or reinstated prior to the date of the elections, to determine whether
or not they desire to be represented by Industrial Union of Marine
and Shipbuilding Workers of America, affiliated with the C. I. O.
CHAIRMAN MILLIS took no part in the consideration of the above
Decision and Direction of Elections.
8 The C. I. 0 requested that its name appear on the ballot without the designation of
the local number . The request is hereby granted.