Coastal Drydock & Repair Corp.

National Labor Relations Board - Board Decisions

Jan 29, 1954

107 N.L.R.B. 1023 (N.L.R.B. 1954)

COASTAL DRYDOCK & REPAIR CORP 1023
Having duly considered the matter, the Board finds as follows:
The Regional Director predicated his recommendation that
the election be set aside on the ground that the Employer,
during the preelection campaign, used company time and
property for electioneering speeches to employees, although
it denied the Petitioner ' s requests to use the same forum for
a like use. For the reasons set forth in the Livingston Shirt'
and Peerless Plywood' cases, such conduct by the Employer
does not constitute in and of itself a valid basis for setting aside
the election herein.
The Regional Director found, however, that on May 27, 1953,
during working hours at about 2 p. m. , the Employer's plant
manager assembled all the first-shift employees in the plant
cafeteria and delivered an election speech. He also found that,
on the same day, the plant manager also addressed the second-
shift employees in the plant cafeteria during working hours at
about 6 p. m. The Regional Director further found that the hours
of the election on May 28, 1953, were from 7 a. m. to 8 :30 a. m.,
and from 5 p. m. to 6 p.m. No exceptions were filed by the Em-
ployer to these findings.
As it appears, therefore, that the Employer made electioneer-
ing speeches to employees on company time less than 24 hours
in advance of the election, we shall, pursuant to the rule set
forth in the Peerless Plywood case, set aside the election of
May 28, 1953, and direct that a new election be held.
[The Board set aside the election held on May 28, 1953.]
[Text of Direction of Election omitted from publication.]
it,ivingston Shirt Company, 107 NLRB 400.
2 Peerless Plywood Company, 107 NLRB 427.
COASTAL DRYDOCK & REPAIR CORP. and INDUSTRIAL
UNION OF MARINE & SHIPBUILDING WORKERS OF
AMERICA, CIO, Petitioner . Case No. 2-RC-6112. January 29,
1954
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 (c) of the National
Labor Relations Act, a hearing was held before Milton Pravitz,
hearing officer. The hearing officer's rulings made at the
hearing are free from prejudicial error and are hereby
affirmed.
Upon the entire record in this case, the Board finds:
1. The Employer is engaged in commerce within the meaning
of the Act.
107 NLRB No. 194.
1024 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. The labor organizations involved claim to represent cer-
tain employees of the Employer.
3. The Employer and the Intervenor, Coastal Drydock
Employees Assn., assert that a collective-bargaining contract
between them, dated August 13, 1953, is a bar to the present
proceeding which was initiated by the filing of a petition on
August 17, 1953. The Petitioner contends, inter alia,' that the
alleged contract should not be held a b'ar for the following
reasons:
By letter to the Employer dated June 25, 1953, the Petitioner
requested recognition as the representative of the employees
sought in the instant petition. On the same date it filed a repre-
sentation petition with the Board. On July 2, 1953, after pre-
liminary conference with a field examiner at the Board's
Regional Office, at which a representative of the Employer was
present, the Petitioner sent the Regional Director the following
letter:
Re Case No. 2-RC-5983. In compliance with your sug-
gestion that we withdraw the above petition for certification,
please be advised that we wish to withdraw said petition.
Be advised also, t' at it is our intention to again file said
petition as soon as it is legally possible to do so.
The record shows that the suggestion referred to was that of
a field examiner who informed the Petitioner that the petition
would be dismissed unless it was withdrawn. The field
examiner's statement to the Petitioner was predicated on the
fact that a consent election had been conducted among the em-
ployees in question on August 15, 1952, approximately 10 months
before the filing of the petition in question. No certification of
representatives resulted because a majority of the employees
voted against the Petitioner, the only union on the ballot. It was
the field examiner's understanding that Board practice pre-
cluded the entertaining of a petition filed within 1 year from the
holding of any election in the unit sought in the petition.
In Centr-O-Cast Engineering Cott the Board announced that
it would dismiss all petitions filed within a year of an election
which resulted in the certification of a bargaining representa-
tive. However, subsequent to that decision, the Board in Palmer
Mfg. Co.3 expressly reaffirmed its previous ruling that, where
an election did not result in certification of a bargaining
representative, neither Section 9 (c) (3) of the Act nor Board
'The Petitioner also asserts that the contract is not a bar allegedly because it was in
fact executed after the filing of the petition, it is for members only, and it is indefinite
in its wage provisions. In view of our finding that the contract is not a bar for the reasons
stated infra, we find it unnecessary to pass on these additional contentions of the Peti-
tioner.
t 100 NLRB 1507
3103 NLRB 336.
COASTAL DRYDOCK & REPAIR CORP 1025
practice precluded the initial processing of a petition filed at
or near the close of the year after an election, so long as the
new election was not to be held until more than 1 year after the
preceding election. In so doing the Board cited Igleheart
Brothers Division, General Foods Corp.,4 a case in which the
Board denied as untimely a motion to dismiss a petition filed,
as was the instant Petitioner's original petition, 50 days before
the close of the election year.
It is clear from the above that the Petitioner's original peti-
tion was timely filed and that it would not have been withdrawn
but for the Petitioner's reliance on the mistaken representation
of the Board's agent that it would be dismissed. Under the cir-
cumstances we do not believe that the Petitioner should be
penalized because of the mistake of a Board representative.5 As
the original petition was filed before the existing contract wag
signed, we find that the contract is not a bar to a present deter-
mination of representatives. We find, therefore, that a question
affecting commerce exists concerning the representation of
employees of the Employer, within the meaning of Section 9 (c)
(1) and Section 2 (6) and (7) of the Act.
4. The parties agree that a production and maintenance unit
is appropriate. The Employer and the Intervenor would include
watchmen, the Petitioner takes no position. The Employer and
the Intervenor agree that working snappers are not supervisors
and should be included in the unit, but that nonworking snappers
should be excluded as supervisors. It is not clear from the
record whether the Petitioner takes any express position on
this issue, although at one point it seems to indicate that the
Board should either include all snappers or exclude all, making
no distinction between working and nonworking snappers.
The record is very scanty on the functions of snappers. They
all appear to direct groups of workmen but the record does not
indicate whether the direction calls for the exercise of any
individual judgment. The groups directed by working snappers
consist of 1 or 2 workmen, in addition to the snapper who works
with tools 100 percent of his time. All larger groups are
directed by nonworking snappers who devote their entire time
to direction. It is clear that the nonworking snappers have the
power effectively to recommend hiring or discharge and that
the working snappers do not. We find that the nonworking
snappers are, but that the working snappers are not, super-
visors. Accordingly, we include the working snappers in the
unit, but exclude the nonworking snappers.
In accordance with the requirement of Section 9 (b) (3), we
exclude the watchmen from the unit as guards within the
meaning of the Act.'
We find that all production and maintenance employees of the
Employer at its New York City yard, including working
496 NLRB 1005.
5 Cf De Soto Creamery and Produce Company, 94 NLRB 1627 pp. 1631, 1632
6 Walterboro Manufacturing Company, 106 NLRB 1383.
1026 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
snappers , but excluding office clerical employees , watchmen and
other guards , nonworking snappers, and all other supervisors as
defined in the Act constitute a unit appropriate . for the purposes
of collective bargaining within the meaning of Section 9 ( b) of the
Act.
[Text of Direction of Election omitted from publication.]
DE DIEGO TAXI CABS, INC . and CAPITULO DE CHOFERES
DE SAN JUAN , SINDICATO DE TRANSPORTE DE PUERTO
RICO TWUA- CIO. Case No . 24-CA-375. February 1, 1954
DECISION AND ORDER
On September 29, 1953, Trial Examiner Stephen S. Bean
is sued his Intermediate Report in the above -entitled proceeding,
finding that the Respondent had engaged in and was engaging in
certain unfair labor practices, as set forth in the copy of the
Intermediate Report attached hereto. Thereafter, the Respond-
ent and the Intervenors filed exceptions to the Intermediate
Report and supporting briefs.
The Board has reviewed the rulings made by the Trial
Examiner at the searing, and finds that no prejudicial error
was committed. The rulings are hereby affirmed. The Board
has considered the Intermediate Report, the exceptions and
briefs, and the entire record in the case, and hereby adopts
the Trial Examiner's findings, conclusions., and recommenda-
tions.'
ORDER
Upon the entire record in the case, and pursuant to Section
10 (c) of the National Labor Relations Act, the National
Labor Relations Board hereby orders that the Respondent,
De Diego Taxi Cabs, Inc., Santurce, Puerto Rico, and its
officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in Capitulo de Choferes de
San Juan, or any other labor organization of its employees,
'Chairman Farmer and Member Rodgers, while agreeing to assert jurisdiction in this
case, are not thereby to be taken as adopting the Board's past jurisdictional plan as a
permanent policy.
In view of the finding that Santos was discharged in violation of Section 8 (a) (3), the Trial
Examiner properly found that the discharge of a union negotiator in the midst of contract
negotiations was calculated to undermine the position of the Union as bargaining representa-
tive and to be treated as an element in determining that the Respondent was not bargaining in
good faith. We do not adopt the Trial Examiner's suggestion that this would be true whether or
not the discharge violated Section 8 (a) (3).
107 NLRB No. 215.