Federal Shipbuilding and Dry Dock Co.

National Labor Relations Board - Board Decisions

Feb 8, 1940

20 N.L.R.B. 270 (N.L.R.B. 1940)

In the Matter Of FEDERAL SHIPBUILDING AND DRY DOCK COMPANY and
INDUSTRIAL UNION OF MARINE & SHIPBUILDING WOn*vi s OF }.r,-
ICA, LOCAL No. 16
Case No. R-1573
Shipbuilding Industry-Amendment to Decision and Direction of Election-
Unit Appropriate for Collective Bargaining: controversy as to inclusion of watch-
men and guards in plant-wide unit : neither of two interested unions seeking ex-
elusion ; desires of employees to determine ; original decision that watchmen and
guards should be included in production and maintenance unit amended to pro-
vide for separate ballots: (a) among production and maintenance employees,
including working leaders, excluding watchmen, guards, leading men, supervisory
and clerical employees; (b) among watchmen and guards; if majority of em-
ployees voting in each classification designate same labor organization, classifi-
cations will be combined to form single unit; ( Smith , dissenting) no justification
for departure from Board's original conclusion, supported by evidence, that
watchmen and guards should be included in plant-wide unit; existence of earlier
members-only contracts excluding watchmen and guards not definitive of their
.status--Elections Ordered,: to determine appropriate unit or units and representa-
tives thereof.
AMENDMENT TO DECISION AND DIRECTION
OF ELECTION
February 8, 1940
On January 11, 1940, the National Labor Relations Board, herein
called the Board, issued a Decision and Direction of Election' in the
above-entitled proceeding. The Direction of Election provided that
an election by secret ballot should be conducted under the direction
and supervision of the Regional Director for the Second Region (New
York City) among the production and maintenance employees of
Federal Shipbuilding and Dry Dock Company who were employed
during the pay-roll period last preceding the date of the Direction of
Election, including employees who did not work during such pay-roll
period because they were ill or on vacation, leaders performing manual
work, watchmen, and guards, but excluding superintendents, assistant
superintendents, foremen, assistant foremen, subforemen, leading men,
leaders working exclusively as supervisors, and office and clerical em-
ployees, and all employees who had since quit or been discharged for
119 N. L. It. B. 313.
20 N. L. R. B., No. 25.
270
FEDERAL . SHIPBUILDI N G. AND DRY DOCK COMPANY 271
cause, to determine whether they desire to be represented by the Indus-
trial Union of Marine & Shipbuilding Workers of America, Local
No. 16, affiliated with the Congress of Industrial Organizations, or by
Shipyard Employees Association, for the purposes of collective bar-
gaining, or by neither.
On January 20, 1940, Federal Shipbuilding and Dry Dock Company
filed a "Petition for Reconsideration" of the Decision and Direction of
Election objecting to the inclusion of watchmen and guards in the
unit therein found appropriate. On January 29, 1940, the Board
issued, and duly served on all the parties, a notice to show cause why
the Decision and Direction of Election should not be amended to pro-
vide for a separate election for watchmen and guards and to provide
further that the watchmen and guards should be included in a unit
with the other employees, only if a majority of them selected the same
bargaining agent as did a majority of the other employees. On Feb-
ruary 3, 1940, the Company filed "Objections to the Proposed Amend-
ment," in effect claiming that watchmen and guards were not entitled
to representation by either of the two unions involved, and. requesting
oral argument on the matter. No other objections or requests for
permission to argue the matter orally have been received. The record
contains no substantial evidence to support the Company's contention
that the watchmen and guards are not entitled to' representation by
either of the unions involved. We see no reason, moreover, why the
election in this matter should be further delayed, since the balloting
may proceed in the manner which we shall- direct without material
prejudice to the interest of any party. Should the Company desire to
present further evidence to show that the employees in question are not
entitled to representation by either of the two unions involved, this
may be done at a hearing subsequent to the balloting which, upon
request by the Company, we shall direct to be held. The objections
of the Company are hereby overruled and its request for oral argument
denied.
The Board hereby amends its Decision and Direction of Election in
the above-entitled proceeding in the following respects :
(1) By striking therefrom all of the seventh paragraph of Section
V thereof and substituting therefor the following :
"Watchmen and Guards have been excluded by all of the previous
contracts between the Industrial Union, the S. E. A., and the Com-
pany. Several witnesses testified that a great majority of these
employees are members of the Industrial Union, desire to be rep-
resented by it, and are linked to the other employees by a common
interest which does not affect their loyalty to the Company. The
Company considers these workers part of management since their
duties include the enforcement of rules of safety and conduct and
272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the protection of the plant against fire and theft. The evidence
shows that watchmen and guards perform important policing func-
tions, particularly in connection with the protection of United States
naval-vessels' which are under construction at the Kearny plant. The
evidence does not affirmatively show on the other hand that their
inclusion will cause watchmen and guards to relax their vigilance
in the performance of their duties. The S. E. A. and the Industrial
Union seek their inclusion, and in the past have sought to bargain for
them. Ordinarily where no labor organization contests their inclu-
sion, we have included watchmen and guards in plant-wide bar-
gaining units.' Under the circumstances of this case, however, and
since the watchmen and guards previously have been excluded front
the bargaining units in the Industrial Union and S. E. A. contracts,
we are unable to hold on the present record that watchmen and
guards should be included in the appropriate unit. We feel, how-
..ever, that.the _determin.ing factor in-,such situition"'should'be:,the
desire of the employees themselves. We shall therefore make no
final determination of the appropriate unit at this time but shall
direct a separate election among watchmen and guards. Accordingly
two ballots shall be prepared and balloting conducted as follows :
(a) Among production and maintenance employees of the Com-
pany, including leaders performing manual work but excluding
superintendents, assistant superintendents, foremen, assistant fore
men, subforemen, leading men, leaders working exclusively as super-
visors, watchmen, guards, and office and clerical employees, to
determine whether they desire to be represented by the Industrial
Union, by the S. E. A., or by neither ;
(b) Among watchmen and guards employed -by the Company to
determine whether they desire to be represented .by_the. Industrial
Union, by the S. E. A., or by neither.
In the event that a majority of the employees voting in each of
these classifications choose the same labor organization, the employees
within both classifications will be combined to constitute a single
unit for purposes of collective bargaining."
(2) By striking therefrom all of the eleventh paragraph of Section
V thereof, and substituting therefor the following:
"Since neither the I. A. Al. nor the I. B. E. W. showed that they
had been authorized to represent a substantial number of employees
in their proposed units, we shall exclude them from the ballots."
2 Matter of Agwilines , Inc., doing business under the trade name of Clyde-Mallory Lines
and Brotherhood of Railway and Steamship Clerks, Freight Handlers , Express and Station
Employees , 12 N. L . R. B. 366 : Matter of American -Hawaiian Steamship Company, a Cor-
poration and Gatemen , Watchmen < C Miscellaneou s Waterfront Workers Unix, Local 38-
121, International Longshoremen 's Association, etc., 10 N . L. R. B. 1355.
i
al
FEDERAL SHIPBUILDING AND DRY DOCK COMPANY 273
(3) By striking therefrom the designation , "VI. The determina-
tion of representatives" and the paragraph immediately following
such designation.
(4) By striking therefrom the second paragraph of the section
thereof heretofore designated as Section VI, and substituting therefor
the following :
"The Industrial Union requests that June 19 , 1939, the date of
filing of the petition , be the date for determining eligibility of the
employees to participate in an election or elections . On that date
there were about 4,800 production and niaiutenance employees, but
by the time of the hearing this number had increased to 5,800, and
new employees- were being hired at the rate of about 100 a week:
Both the Company and the S. E . A. request that eligibility be
determined by the pay roll next preceding the election . We see no
reason in this case to depart from our usual practice, and shall direct
that the employees eligible to vote shall be those employees who were
employed by the Company during the pay-roll period immediately
preceding the Direction of Election herein."
( 5) By striking therefrom the second numbered Conclusion of Law.
(6) By striking therefrom the Direction of Election and substitut-
ing therefor the following :
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 Relations
Act, and pursuant to Article III, Section 8, of National Labor Rela-
tions 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 Federal Shipbuilding and Dry Dock Company, Kearny, New
Jersey, separate elections by secret ballot shall be conducted as early
as possible but not later than thirty (30) days from the date of this
Amended Direction of Election, under the directidif and supervisidi
of the Regional Director of the Second Region, acting in this matter
as agent for the National Labor Relations Board, and subject to
Article III, Section 9, of said Rules and Regulations, among those
employees of Federal Shipbuilding and Dry Dock Company, Kearny,
New Jersey, who fall within the two groups indicated below who
were employed by the Company during the pay-roll period last
preceding January 11, 1940, 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
274 DECISIONS -OF NATIONAL LABOR RELATIONS BOARD
off, but excluding those employees who have since quit or been
discharged for cause :
(a) All production and maintenance employees of the Company,
including leaders performing manual worki but excluding superin-
tendents, assistant superintendents, foremen, assistant foremen, sub-
foremen, leading men, leaders working exclusively as supervisors,
watchmen, guards, and office and clerical employees, to determine
whether they desire to be represented for purposes of collective bar-
gaining by the Industrial Union of Marine & Shipbuilding Workers
of America, Local No. 16, affiliated with the Congress of Industrial
Organizations, or by Shipyard Employees Association, or by neither :
(b) All watclnnen and guards, excluding persons supervising the
work of watchmen and guards, to determine whether they desire to
be represented for purposes of collective bargaining by the Industrial
Union of Marine & Shipbuilding Workers of America, Local No. 16,
a.ffi liated with the Congress of Industrial Organizations, or by Ship-
yard Employees Association, or by neither.
MR. EDWIN S. SMITH, dissenting :
I dissent from the Amendment to Decision and Direction of Elec-
tion providing for a separate election among watchmen and guards.
The reasoning in my dissents in the Allis-Chalmers 3 and subsequent
cases is applicable here. In my opinion there are no facts in the record
sufficient to'justify a departure from the Board's original conclusion
in this case that watchmen and guards should be included in a single
unit with the production and maintenance employees.4 Neither of
the labor organizations involved seeks exclusion of the watchmen and
guards from the unit.
The existence of members only contracts excluding such employees
from a plant-wide unit should not be regarded as definitive of their
status. In other cases I have stated that notwithstanding the exist-
ence of an exclusive representation contract the Board is not pre-
cluded by anything in the Act from finding a different unit appro-
priate, and that, when warranted by the circumstances, the Board
should not refrain .front exercising its power. to find a different unit.5
This reasoning seems even more strongly applicable where the pre-
vious contracts with the respective labor organizations covered their
members ' only.
3 Matter of Allis-Chalmers Manufacturing Company and International Union, United
Automobile Workers of America, Local 248, 4 N. L. R. B. 159, et at.
4 While it Is true that the original Decision erroneously recited that watchmen and
guards were not excluded from the 1937 and 1938 contracts of the Industrial Union, this
fact was not material to my concurrence in the original Decision.
5 See my concurring opinion in Matter of American Can Co. and Engineers Local A" o.
30. Firemen and Oilers Local -No. 56, et al., 13 N. L. R. B. i252. 1258.
FEDERAL SHIPBUILDING AND DRY DOCK COMPANY 275
The facts here presented show that after an unsuccessful attempt
to bargain for themselves, a great majority of watchmen and guards
joined the Industrial Union which, unsuccessfully, sought to represent
them. These facts evince an evolutionary development in the process
of collective bargaining, on behalf of employees of the Company,
which ought not be impeded by decision of the Board.6
6 See my dissenting opinion in Matter of Briggs Manufacturing Company and Briggs
Indiana Corporation and International Union, United Automobile Workers of America,
affiliated with the C. 1. 0., etc., 13 N. L. R. B. 1326, 1334.