Boston Iron & Metal Co.

National Labor Relations Board - Board Decisions

Dec 30, 1940

28 N.L.R.B. 804 (N.L.R.B. 1940)

In the Matter of BOSTON IRON & METAL Co. and CONGRESS OF
INDUSTRIAL ORGANIZATIONS
Case No. R4178.-Decided December 30, 1940
Jurisdiction : ship dismantling and salvaging industry.
Investigation and Certification of Representatives : existence of question : refusal
to accord recognition to union ; election necessary.
Unit Appropriate for Collective Bargaining : production employees, excluding
supervisory and clerical, employees.
Mr. Morton H. Rosen, of Baltimore, Md., for the Company.
Mr. Frank J. Bender, of Baltimore, Md., for the Union.
Mr. Louis Cokin, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
On November 25, 1940, Congress of Industrial Organizations, herein,
called the Union, filed with the Regional Director for the Fifth
Region (Baltimore, Maryland) a petition alleging that a question
affecting commerce had arisen concerning the representation of em-
ployees of Boston Iron & Metal Co., Baltimore, Maryland, 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 the Act. On November 29,
1940, the National Labor Relations Board, herein called the Board,
acting pursuant to Section 9 (c) of the Act and Article III, Section
3, of National Labor Relations Board Rules and Regulations-Series
2, as amended, ordered an investigation and authorized the Regional
Director to conduct it and to provide for an appropriate hearing upon
due notice. '
On November 30, 1940, the Regional Director issued a notice of
hearing, copies of which were duly served upon the Company and
the Union. Pursuant to notice, a hearing was held on December 5,
1940, at Baltimore, Maryland, before Herbert O. Eby, the Trial
Examiner duly designated by the Board. The Company was repre-
sented by counsel and the Union by its representative ; both par-
28 N. L. R. B., No. 124.
804
BOSTON. IRON & METAL CO. ' 805
ticipated 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. During the course of the hearing,
the Trial Examiner made several rulings on motions and on objec-
tions to the admission of evidence. 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
Boston Iron & Metal Co. is a Maryland corporation with plants at
Baltimore, Maryland, where it is engaged in the business of dis-
mantling vessels for the purpose of selling salvagable materials there-
from. During an 18-month period prior to December 1940, the Com-
pany purchased 20 vessels, the majority of which were brought to
the Company's plants from points outside the State of Maryland.
During 1939 the Company's sales amounted to $1,000,000, approxi-
mately 90 percent of which represented goods shipped to points outside
the State of Maryland. The Company admits that it is engaged in
commerce within the meaning of the Act.
II. THE ORGANIZATION INVOLVED
Congress of Industrial Organizations is a labor organization admit-
ting to membership all production employees of the Company, ex-
cluding,supervisory and clerical employees.
III. THE QUESTION CONCERNING REPRESENTATION
On November 4, 1940, the Union wrote to the Company requesting
a conference for the purpose of, collective bargaining. After several
exchanges of letters between the Union and the Company, the Com-
pany suggested that the Union file a petition with the Board: A
statement of a Field Examiner of the Board introduced in evidence
shows that the Union represents a substantial number of employees
in the alleged appropriate unit'
We find that a question has arisen concerning the representation of
employees of the Company.
I The Field Examiner 's statement shows that 59 employees, whose names appear on the
Company's- pay roll for the period ending November 28, 1940, have signed applications in
:the Union . There were 99 employees on the November 28, 1940, pay roll.
806 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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, and commerce among the several States
and tends to lead to labor' disputes burdening and obstructing com-
merce and the free flow of commerce.
V. THE APPROPRIATE UNIT
The Union urges that all production employees of the Company,
excluding supervisory and clerical employees, constitute an appro-
priate unit. The, Company stated that it does not contest the ap-
propriateness of this unit.
We find that all production employees of the Company, excluding
supervisory and clerical employees, 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
The Union seeks to be certified on the basis of the record. There
was introduced in evidence-pay rolls of the Company. These pay
rolls show that the Company employed 99 employees in the appro-
priate unit on October 3, 1940, and the same" number on November
28, 1940, but that 20 of the employees- on the November 28 pay roll
were not employed by the Company on October 3. The pay roll of
the Company for December 5, ' 1940f shows that, it 'eiiiployed 79 em-
ployees in the appropriate unit at that time, made up of 69 employees
whose names appear on the October 3, 1940, pay roll, plus 10 employees
hired subsequently. In support of its claim of majority represeita`-
tioii, the Union produced applications for membership in the Union
signed by 65 of the 99 employees in'the appropriate unit whose names
appear on the Company pay rolls of November 28, 1940. Howev*er,
as' pointed out above, the Company's ' pay roll is in a constant state
of flux. Under these circumstances, we find, that the' question con
cerning representation which has arisen can best be resolved' by
means of an election by secret ballot.
The union urged that the pay roll of October 3, 1940, be used -as
a basis for determining eligibility to vote in the event'the Board di'
rected an election and stated in support of its request that employees
'had been laid off by the Company since that time: No reason appears
BOSTON IRON & METAL CO. 807
why the pay roll immediately preceding the date of this Direction of
Election should not be used, inasmuch as the usual Direction includes'
as persons eligible to participate in the election employees who were
then or have since been temporarily laid off.
We shall direct that the employees of the Company eligible to vote
in the election shall be those in the appropriate unit who were em-
ployed during the pay-roll period immediately preceding the date
of the Direction of Election herein, including employees who, did
not work during such pay-roll period because they were ill or on
vacation and employees who were then or have since been temporarily
laid off, but excluding those who have since quit or been discharged
for cause.
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 Boston Iron & Metal Co., Baltimore, Mary-
land, within the meaning of Section 9 (c) and Section 2 (6) and (7)
of the Act.
2. All production employees of the Company, excluding supervisory
and clerical employees, constitute a unit appropriate for the purposes
,of collective bargaining, within the meaning of Section 9 (b) of,the
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 Rela-
tions Act, and pursuant to Article III, Section 8, of National Labor
Relations Board Rules and Regulations-Series 2, as amended, it is
hereby
DIRECTED that, as part of the investigation authorized by the Board
to ascertain representatives for the purposes of collective bargaining
with Boston Iron & Metal Co., Baltimore, Maryland. 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 of Election, under
the direction and supervision of the Regional Director for the Fifth
Region, acting in this matter as agent for the- National Labor Rela-
tions Board, and subject to Article III, Section 9, of said Rules and
Regulations, among all production employees of the Company wh(.
were employed during the pay-roll period immediately preceding the
date of this Direction, including employees who did not work during
such pay-roll period because they were ill or on vacation and em-
ployees who were then or have since been temporarily laid off, but
808 DECISIONS OF NATIONAL LABOR : RELATIONS BOARD
excluding ' supervisory and clerical employees and employees who
have since quit or been discharged for cause, to determine whether
or not they desire to be represented by Congress of Industrial Organ-
izations for the purposes of collective bargaining.
CHAIRMAN HARRY A. MILLis took no part in the consideration of
the above Decision and Direction-of Election.