Dade Drydock Corp.

National Labor Relations Board - Board Decisions

Oct 7, 1944

58 N.L.R.B. 833 (N.L.R.B. 1944)

In the Matter of DADE DRYDOCK CORP. and INDUSTRIAL UNION OF
MARINE & SHIPBUILDING WORKERS OF AMERICA-CIO
In the Matter of DADE DRYDOCK CORP. and OLIN H. STEVENSON, J. D.
STONER, AND JACK WALLWORK'
In the Matter of DADE DRYDOCK CORP. and INDUSTRIAL UNION OF
MARINE & SHIPBUILDING-WORKERS OF AMERICA-CIO
Cases Nos. 10-R-1191, 10-R-1191 and 10-R-1.59 respectively.-
De-cided October 7, 1944
Mr. Paul S. Kuelthau, for the Board.
Messrs. Evans, Meshon, and Sawyer, by Mr. Herbert S. Sawyer, of
Miami, Fla., for the Company.
Mr. Edward C. Holman, of Miami, Fla., for the C. I. O.
Mr. Fred H. Kirtley, of Miami, Fla., for the Independent.
Mr. Paul Chipman, of Atlanta, Ga., and Messrs. H. C. Summers and
11. S. Davis, both of Miami, Fla., for the I. A. M.
Mr. David V. Easton, of counsel to the Board.
DECISION
DIRECTION OF ELECTIONS
AND
ORDER
STATEMENT OF THE CASE
Upon petitions duly filed by Industrial Union of Marine & Ship-
building Workers of America-CIO, herein called the C. I. 0., and
upon a, petition filed on behalf of The Florida Independent Employees
Association, herein called the Independent, by Olin H. Stevenson, J. D.
Stoner, and Jack Wallwork, each alleging that a question affecting
commerce had arisen concerning the representation of employees of
Dade Drydock Corp., Dade County, Miami, Florida, herein called the
'Although the petition In Case No. 10-R-1194 was filed by the above-named individuals,
the record clearly indicates that these persons were actually acting on behalf of The Florida
Independent Employees Association, hereinafter referred to as the Independent, and that
the participation of these individuals in this pioceeding was in a representative capacity.
Accoidingly, we shall consider the Independent, rather than the named individuals, as the
real party in Interest.
58 N. L. R. B , No. 155.
609591-45-vol 58-54
833
834 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Company , the National Labor Relations Board consolidated the cases
by an order dated July 20, 1944 , and provided for an appropriate hear-
ing upon due notice before William J. Isaacson , Trial Examiner. The
Notice of Hearing dated July 26, 1944 , provided that, in addition to
an investigation of the questions of representation , evidence was to be
received upon the issue of "whether the Florida Independent Employ-
ees Association or Olin H. Stevenson , J. D. Stoner and Jack Wallwork,
is a successor to, or a continuation of Employees Protective Association
of Dade Drydock Corp .,2 heretofore disestablished by the National
Labor Relations Board and the United States Circuit Court of Appeals
for the Fifth Circuit ." I Said hearing was held at Miami, Florida, on
August 17 and 18, 1944 . The Company, the C. I. 0., the Independent,
and International Association of Machinists (A. F. of L.), herein
called the I. A. M., appeared , participated , and were afforded full
opportunity to be heard , to examine and cross -examine witnesses, and
to introduce evidence bearing on the issues . The Independent objected
at the hearing to the reception of evidence pertaining to the issue of
successorship . It further objected to the introduction into evidence
of the stipulation of May 5, 1944, which provided for the disestablish-
ment of the Association. The' objections of the Independent were
based upon the fact that it had been informed by the Company that
unfair labor practice charges, alleging , inter alia, that the Company
had violated Sections 8 (1) and ( 2) of the National Labor Relations
Act, filed by the C. I. 0.,4 had been withdrawn. The Trial Examiner
overruled the objections of the Independent.' The Trial Examiner's
2 We shall refer to this organization hereinafter as the Association
3 On May 5, 1944 , the Company , the C I 0 'and an agent of the Board executed a stipu-
lation providing , enter alta, that the Board may enter an older providing that (a) the
Company shall cease and desist dominating or interfering with the administration of the
Association and giving effect to the collective baiga rnmg agreement currently opeiative
between them, and (b ) the Company shall withdraw and withhold recognition from' the
Association as the collective bargaining representative of its employees and completely
disestablish it as such representative The stipulation further piovided that, upon appli-
cation by the Board, the United States Circuit Court of Appeals for the Fifth Circuit, or
any other appropriate court, may enter its deciee enforcing the Order of the Board.
On May 23 , 1944, the Board issued its Decision and Order in Matter of Dade Drpdock
Corp ., Case No. 10-C-1340, unpublished , in which , enter alga, it ordered that the Company
completely disestablish the Association as the collective bargaining representative of its
employees
On May 30 , 1944, the United States Circuit Court of Appeals for the Fifth Circuit entered
a consent decree providing , enter aba, that the Company completely disestablish the Asso-
ciation as the collective bargaining repiesentative of its employees
4 Matter of Dade Drydock Corp , Case No 10-C-1574 The C 1 0 's charges were based,
in part, upon the allegation that the Independent was a successor to, or -a continuation
of, the Association previously ordered disestablished.
5 The Trial Examiner based his ruling with respect to these objections upon the fact that
the notice of withdrawal of the unfair labor practice charges against the Company in Case
No. 10-C-1574 in nowise affected the issues to be litigated in the instant representation
proceeding , since ( a) the Notice of Hearing in the instant ease specifically stated that
evidence would be adduced with respect to the issue of successorship , and (b ) said Notice
had not been amended The propriety of adducing evidence with respect to successorship
is well established . See Matter of Dow Cleinscat Co., 32 N L R B 660; Matter of R G.
LeTourneau, Inc, 36 N. L It . B. 774; Matter of H. E Fletcher Company, 41 N. L. R. B.
DADE DRYDOCK CORP. 835
rulings made at the hearing are free from prejudicial error, and are
hereby affirmed . All parties were afforded an opportunity to file briefs
with the Board.
Upon the entire record in the case, the Board makes the fol lowing :
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
Dade Drydock Corp., a Florida corporation, is engaged at Miami,
Florida, in the repair and conversion of naval vessels, and in the oper-
ation of a floating drydock belonging to the United States Navy. Ap-
proximately 95 percent of the repair and conversion work of the Com-
pany is performed pursuant to contracts with the United States Navy
and Maritime Commission. The vessels which are repaired and con-
verted are delivered to these agencies for use in the war effort and in
the transportation of goods between ports in various States and Terri-
tories of the Uliited States and foreign countries. In addition, a
large portion of the Company's business is transacted with common
carriers engaged in the transportation of freight and cargo. At least
15 percent of the raw materials used by the Company in its repair and
conversion operations is purchased by it from points outside the State
of Florida.
The Company admits that it is engaged in commerce within 'the
meaning of the National Labor Relations Act.
II. THE ORGANIZATIONS INVOLVED
Industrial Union of Marine & Shipbuilding Workers of America is
a labor organization affiliated with the Congress of Industrial Organ-
izations, admitting to membership employees of the Company.
International Association of Machinists is a labor organization af-
filiated with the American Federation of Labor, admitting to mem-
bership employees of the Company.
The Florida Independent Employees Association is an unaffiliated
organization, admitting to membership employees of the Company.
420, Matter of J. Greenebaum Tanning Company , Plant No 3, 49 N. L R B . 787; Matter
of New York Merchandis i ng Company, Inc, 51 N L R B. 41.
The record indicates that all possible steps were taken to afford the Independent an
opportunity to meet this issue . The Board 's attorney offered to consent to an adjournment
after the Trial Examiner indicated that he would overrule the objections . This offer was
not accepted by Mr. Kirtley , counsel for the Independent. Instead, Mr . Kirtley requested
a short recess , at the end of which he announced that he would no longer participate in
the proceeding The Trial Examiner asked him whether or not he desired an adjournment
Instead of replying, Mr Kirtley left the room and took no further part in the proceeding
whereupon the Trial Examiner again offered to adjourn the hearing in order that new
counsel might be obtained for the Independent . The offer was refused by Messrs . Steven-
son, Etoner , and Wallwork This offer was repeated several times thereafter , and in each
instance, a representative of the Independent stated that he preferred to continue the present
bearing.
836 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE QUESTIONS CONCERNING REPRESENTATION
The Company has refused to recognize any labor organization as
the collective bargaining representative of its employees in the absence
of certification by the Board.
As previously indicated, on May 23, 1944, the Board issued an Order
in Case No. 10-C-1340, providing, inter alia, that the Company with-
hold recognition from and completely disestablish the Association,
and post notices to this effect. As stated above, evidence was received
at the hearing herein on the issue of whether the Independent is the
successor to, or continuation of, the Association, the organization here-
tofore ordered disestablished. We turn, therefore, to a consideration
of the evidence bearing on this issue.
The Trial Examiner's Intermediate Report in the above-mentioned
case was issued on February 18, 1944. Sometime thereafter, but before
the issuance of the Board's Decision and Order on May 23, the presi-
dent of the Association, Stevenson, conferred with Kirtley, its attor-
ney, with respect to the Association's future conduct regarding that
proceeding. It was decided at this conference to form a new organ-
ization "along similar lines to the [Association]" rather than to spend
money in order to litigate the case further. In accordance with this
decision, Kirtley framed an authorization to be distributed among and
signed by the employees of the Company. This document authorized
Stevenson, Stoner, and Wallwork s to act on behalf of the signing em-
ployees in performing all matters necessary to form the Independent;
it further authorized the three designees to act as the collective bar-
gaining agents of the signatories.7 On April 11, Stevenson, with the
Stevenson and Wallwork were stewards of the Association at this time. -
The following is a facsimile of said authorization :
MIAMI, FLORIDA, April 11, 1944.
WHEREAS, a Trial Examiner of the NLRB has made a recommendation that The
Employees Protective Association'of Dade Dry Dock Corp., should be disestablished,
and the undersigned employee of Dade Dry Dock Corp, desires to be a member of an
independent union consisting of at least a majority of all employees of said Corporation,
save and except all employees in a supervisory capacity, which is not, and shall not, in
any manner be dominated or controlled by said Corporation, for the purpose of collec-
tive bargaining for all of said employees of said Corporation, in all matters relating to
wages, hours and conditions of working and employment.
NOW THEREFORE, the undersigned hereby authorizes, empowers and directs the follow-
ing named persons;
Olin H. Stevenson
J. D. Stoner
Jack Wallwork
for and on behalf of the undersigned to do all things necessary and incidental for the
purpose of organizing an independent union to be known as The Florida Independent
Employees Association, and said persons above named to act for and on behalf of the
undersigned, and said The Florida Independent Employees Association, as his and its
collective bargaining representatives with said Corporation, and Immediately upon a
majority of the said employees of said Corporation executing an authority of like nature,
said persons herein named shall at once act as, and be. said bargaining agents, and
forthwith submit a constitution and by-laws of said The Florida Independent Employees
Association to said employees which the undersigned hereby agrees to, abide by, upon
DADE DRYDOCK CORP. 837
permission of his foreman, left work before quitting time in order to
distribute these authorizations to the employees of the Company outside
the plant gate.8 He was assisted by Stoner, Wallwork, and several
other employees, some of whom held important positions in the Asso-
ciation. The extent of Stevenson's solicitation activities on behalf of
the Independent is demonstrated by the fact that he, secured and wit-
nessed the signatures of over 200 employees. On the same day, Steven-
son rented a hall, which had been customarily used by the Association
as its meeting place, for the purpose of having a place in which to an-
swer inquiries of the employees with respect to the proposed formation
of the Independent .9 He admittedly pointed out to employees who
made inquiry, the expense involved in contesting the Trial Examiner's
findings with respect to the Association. In'this manner, Stevenson,
and the employees who assisted him, soon secured the signatures of a
majority of the Company's employees upon the authorization.
Sometime prior to April 21, 1944, Kirtley prepared for the signa-
tures of Stevenson, Stoner, and Wallwork a letter requesting a meet-
ing with the Company: -This_ letter,-dated April 21, was delivered on
that date to' Alexander-M. Balfe, the president of the Company,
through the inter-office mail. On the following day a conference was
held in Balfe's office. Present at this conference were Stevenson,
Stoner, Wallwork, and Kirtley, representing the Independent; Balfe;
Kenneth Gardner, the Company's labor management director; Her-
bert S. Sawyer, attorney for the Company; and a conciliator from the
United States Conciliation Service. The Independent's representa-
tives asked that the Company recognize it as the collective bargaining
representative of the Company's employees, and offered to submit as
proof of their majority claim the authorizations hereinabove referred
to. Sawyer rejected the demand, asserting that the Company would
not recognize any labor organization in the absence of certification
by the Board. On the saner-day;rStevenson, as president of the Asso-
ciation; executed an agreement with the Company, which was wit-
nessed by Kirtley, the Association's attorney, abrogating the existing
collective bargaining contract between the Company and the Associa-
the same being adopted for said The Florida Independent Employees Association by a
majority of persons executing an instrument similar hereto, but inI any event, the per-
sons herein designated as bargaining representatives shall act as such from and after
a majority of said employees of said Corporation have executed their consent for them
so to act.
Capacity employed ________________________
witness
------------------------
It is evident from the record, however, that Stevenson's foreman had no knowledge of
why Stevenson desired to leave early.
9 The cost of the authorizations as well as that of other literature distributed under the
sponsorship of Stevenson , and the rental of the hall , was defrayed by Stevenson out of his
own funds.
838 DECISIONS OF, NATIONAL LABOR- RELATIONS BOARD
tion. That same evening, at a meeting of the Association's members
presided over by Stevenson, Kirtley addressed the gathering and ad-
vised that the Association dissolve., Those assembled thereupon voted
to dissolve the Association.
Subsequent -to May 23, 1944, the date of issuance,of the Board's
Decision and Order in.Case No. ,10-C-1340, the Company posted the,
notices required'by the terms of that Decision and Order.
- The Independent4 held no meeting of its membership and did not
elect officers. It printed no membership cards, collected no dues, did,
not draft.or adopt it constitution or bylaws, and engaged in no ac-
tivities on company time or premises.
Upon the foregoing facts, it is apparent that the Independent's
successorship to the Association is established. It is clear that where,
as here, an organization is the direct outgrowth of a predecessor or-,
ganization which has.been ordered disestablished by the Board, it is
necessary that there be a complete fracture between the two organiza-
tions, and the employer is required to take positive-steps to disabuse the,
employees generally- of any belief which they may have that the em-
ployer favors the,successorship organization. as it favored the prede-,
cessors 10 The "absolute and public cleavage'' 11 required is plainly,
absent in this case. On the contrary, before the Company posted the
notices required by the, Board's Decision and Order, and before the
dissolution of the Association, its -president,, attorney and two of its
stewards, as well as several other employees who were active in behalf
of the Association, organized and formed the Independent, solicited'
memberships in its behalf, and sought recognition from the Company
as the collective bargaining representative of all the Company's non-,
supervisory employees. It was only after the Independent was created
and organized and attempted to function as ' a collective bargaining.
representative that the Association was dissolved at the urging and
under the direction of the identical persons, Kirtley and Stevenson,
who guided the formation and organization of the Independent. In
these circumstances, we find that the Independent is merely a con-
tinuation of and successor to the Association, the organization which
the Board ordered disestablished. It follows that the Independent is
incapable of-acting as the representative of the Company's employees
for the purposes of collective bargaining. Its petition for investiga-
tion and-certification will, therefore, be dismissed.12
10E. g , N. L. R B v' Southern B-11 Tei"phone and Tel°grap7, Co, 319 U S ,0; We tu,g-.
louse Electric & Mfg Co. v. N. L R B, 112 F (2d) 657, 660 (C C A 2), affirmed 312
U. S. 660; N L R B. v. Newport News Shipbuilding and Dry Dock Co, 308 U. S. 241, 250;
International Assn of Machinists v. N. L. R B., 311 U. S. 72, 78-79 ; N. L R. B v. Link-Belt
Co., 311 U. S 584, 598; N. L R B. v. Thompson Products , Inc., 130 F (2d) 36:3, 367-368.
(C. C. A. 6) ; Roeblsng Employees Association v. N. L R. B, 120 F.
(C. C. A. 3).
(2d) 289, 294-295
11 Western Union Telegraph Co. v N. L R. B, 113 F (2d) 992, 996 (C. C A 2). .
11 See cases cited in footnote 5, supra. - - '
DADE DRYDOCK CORP. 839
Statements of li Field Examiner for the Board, introduced into
evidence at the hearing, indicate that the -C:. I. 0. represents a
substantial number of employees in each 'unit-hereinafter found
appropriate .13
We find' that, with respect to Cases Nos. 10-R-1191 and 10-R-1259,
questions affecting commerce have arisen concerning the representa-
tion of employees of the Company, within the meaning of- Section-
9 (c) and Section 2 (6) and (7) of the Act.
IV. THE APPROPRIATE UNITS- - -
R
The C. I. 0. seeks two units of employees of the Company, one"con-'
sisting of all production and maintenance employees, including .lead-
men,14 truck drivers, storeroom clerks,- toolrooih clerks, receiving'
clerks, and checkers, but excluding office and clerical employees,
guards, expediters, assistant expediters, and all other supervisory em-
ployees, and the other comprised of all guards,15 except 'the captain.
The I. A. M. does not dispute the propriety of these units; and the
Company's position is neutral.
In view of the absence of opposition by either the I. A.'M.'-or the-
Company,ls,and upon the entire record in the case, we find the-follow-
11 Case No. 10-R-1191 (production and maintenance).
The Field Examiner reported that the C I 0 submitted 160 valid designations bearing
signatures of persons appealing upon the Company s pay roll of May 7, 1944, and that an
additional 21 designations submitted by the C I. 0. were signed by persons subsequent-to
the date of that pay roll Said pay roll contained 605 names of employees in this unit. He
further reported that the I -A M submitted 31 valid designations bearing signatures of
persons in this unit appearing upon the afore-mentioned pay roll. -
At the bearing, the Trial Examiner reported that the I. A Al submitted It additional'
valid designations containing names of persons in this unit appearing upon the afore-
mentioned pay roll. In view of the presence of an organization which we had to be a
successor to, or continuation of, a labor organization previously-ordered disestablished,-we
find that the showing of the C. I 0 is sufficient to warrant the entertainment of this
proceeding. Cf Matter of Humble Oil cC Refining Company, 53 N L R B. 116, and cases
cited therein. -
Case No. 10-R-1259 (guard unit). -
The Field Examiner reported that the C I 0 submitted 7 valid designations of persons
appearing upon the afore-mentioned pay roll, and that said pay roll contained the names of
18 employees in this unit. -
The Trial Examiner reported that the I A M submitted at the hearing 8 valid designa-
tions containing signatures of persons in this unit appearing upon the afore-mentioned pay-
roll.
"There is no evidence indicating that leadmen are supervisory- employees within the
meaning of the Board's customary definition, and the parties agree to their inclusion.
18 The guards of the Company wear uniforms. - -
"The Independent sought a single unit comprised of all.non-supervisory employees of
the Company, including guards, and office and clerical employees Since we have found
above that the Independent is a successor to, or continuation of, 'a labor organization-
previously -ordered disestablished by the Board, we shall not give weight to its contention.
In any 'event, we have excluded guards and office and clerical employees from production
and maintenance units despite contentions to the contrary which we have considered. See
Matter, of Cannon Manufacturing Corporation and Cannon Electrical D-eiielopnrent Com-
pany, 46 N. L. R. B.-592. • -
840 , DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing units appropriate for the purposes of collective bargaining within
the meaning of Section 9 (b) of the Act:
1. All production and maintenance employees "of the Company,
including leadmen, truck drivers, storeroom clerks, toolroom clerks,
receiving clerks, and checkers, but excluding office and clerical em-
ployees, guards, expediters, assistant expediters, and all other super-
visory employees with authority to hire, promote, discharge, dis-
cipline, or otherwise effect changes in the status of employees, or
effectively recommend such action; and
2. All guards employed by the Company excluding the captain,
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.
V. THE DETERMINATION OF REPRESENTATIVES
We shall direct that the questions concerning representation which
have arisen be.resolved-by>separate"election"s-by,secretballot;amang the
employees in the appropriate units who were employed during the
pay-roll period immediately preceding the date of the Direction of
Elections herein, subject to the limitations and additions set forth in
the Direction.17
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 Dade Drydock
Corp., Dade County, Miami, Florida, separate 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 ,super-
vision of the Regional Director for the Tenth 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
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
11 The C. I. O. requested that it be designated upon the ballot in each election as "CIO,"
and the I. A. M. requested that it be designated thereon as "International Association of
Machinists (A. F. of L.)." Both requests are hereby granted.
DADE DRYDOCK CORP. 841
States who present themselves in person at the polls, but excluding
those employees who have since quit or been discharged for cause
and have not been rehired or reinstated prior to the date of the elec-
tions, to determine whether they desire to be represented by the CIO or
by International Association of Machinists (A. F. of L.), for the pur-
poses of collective bargaining, or by neither,
ORDER
The National Labor Relations Board hereby orders that the petition
for investigation and certification of representatives of employees of
Dade Drydock Corp., Dade County, Miami, Florida, filed in Case
No. 10-R-1194 by Olin H. Stevenson, J. D. Stoner, and Jack Wallwork,
be, and it hereby is, dismissed.
MR. GERARD D. REILLY took no part in the consideration of the above
Decision and Direction of Elections and Order.
C"