Higgins, Inc.

National Labor Relations Board - Board Decisions

Feb 28, 1955

111 N.L.R.B. 797 (N.L.R.B. 1955)

HIGGINS, INC.
Appendix A
797
NOTICE To ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board , and in order to effectuate the policies of the National Labor Rela-
tions Act, we hereby notify our employees that:
WE WILL NOT interrogate or instruct supervisors to obtain and report infor-
mation concerning the organizational activities of our employees.
WE WILL NOT discourage membership in Carpenters Local Union 531,
affiliated with Gulf Coast Council of Carpenters , affiliated with United Brother-
hood of Carpenters and Joiners of America , AFL, or any other labor organiza-
tion , by discharging , refusing to reinstate , or in any other manner discriminating
against our employees in regard to their hire or tenure of employment or any
term or condition of employment.
WE WILL NOT in any other manner interfere with , restrain , or coerce our
employees in the exercise of their right to self-organization , to form, join,
or assist Carpenters Local Union 531 , affiliated with Gulf Coast Council of
Carpenters , affiliated with United Brotherhood of Carpenters and Joiners of
America, AFL, or any other labor organization , to bargain collectively through
representatives of their own choosing , and to engage in other concerted activities
for the purpose of collective bargaining or other mutual aid or protection, or
to refrain from any or all such activities.
WE WILL offer to Alfred E. Bytheway , Donald E. Dorn , and Keith Smith
immediate and full reinstatement to their former or substantially equivalent
positions without prejudice to any seniority or other rights and privileges pre-
viously enjoyed , and make each of them whole for any loss of pay suffered
as a result of our discrimination against them.
All of our employees are free to form , join, or assist any labor organization, and to
engage in any self-organization and other concerted activities for the purpose of
collective bargaining or other mutual aid or protection , or to refrain from any and
all such activities , except to the extent that such right may be affected by an agree-
ment made in conformity with the proviso to Section 8 (a) (3) of the Act.
FLORIDA BUILDERS , INCORPORATED,
Employer.
Dated-------- -------- By----------------------------------------------(Representative ) (Title)
This notice must remain posted for 60 days from the date hereof , and must not be
altered, defaced , or covered by any other material.
HIGGINS, INC. and ERNEST G. PERNICIARO, PETITIONER and INTERNA-
TIONAL BROTHERHOOD OF BOILERMAKERS , IRON SHIP BUILDERS,
BLACKSMITHS , FORGERS & HELPERS, LOCAL No. 561, AFL. Case No.
15-RD-66. February 28, 1955
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 William W. Fox, 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.
111 NLRB No. 134.
798 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. The Petitioner asserts that the Union is no longer the bargaining
representative, as defined in Section 9 (a) of the Act, of the employees
of the Employer.
The Union, a labor organization, is the currently recognized exclu-
sive bargaining representative of the employees designated in the
petition.'
3. A question affecting commerce exists concerning the representa-
tion of certain employees of the Employer within the meaning of
Section 9 (c) (1) and Section 2 (6) and (7) of the Act.'
4. In accordance with the stipulation of the parties, we find the fol-
lowing employees of the Employer at the Employer's shipyard, High-
way 90 and Industrial Canal, New Orleans, Louisiana, constitute a
unit appropriate for the purposes of collective bargaining within the
meaning of Section 9 (b) of the Act: 3
All boilermakers and apprentices, crane operators, welders, tackers,
blacksmiths, burners, chippers, caulkers, grinders, riveters, holders-
on, heaters, layers-out, steel fabrication ship workers, tank testers,
gougers, stationary engineers producing oxygen, operators and help-
ers in the shear shop, hose repairmen, buffers and polishers, helpers
and leadmen, plate and steel fabrication workers, riggers, hookers-on,
and groundmen, except those working in the carpenter division, ex-
cluding boat crews (except trial run crews) plant protection em-
'The parties stipulated and agreed that Local 561 be substituted for Local 37, Inter-
national Brotherhood of Boilermakers , Iron Ship Builders , Blacksmiths , Forgers & Helpers,
AFL, in the present proceeding as the currently recognized exclusive bargaining repre-
sentative of the employees designated in the petition herein. The evidence in the record
shows that in Case No . 15-RC-886 the Board certified Local 37 as the exclusive bargain-
ing representative for the employees involved in the present petition , that after such cer-
tification the International chartered Local 561 for the purpose of acting in the place and
stead of Local 37, that all of the membership in Local 37 thereafter transferred to Local
561, and that the Employer was notified of such action and accepted Local 561 as the ex-
clusive bargaining representative of the employees in the certified unit.
2 The Union moves to dismiss the petition herein on the following grounds • ( 1) The
petition is untimely filed because it was filed at the time of an abnormal reduction in the
work force ; and (2 ) the Petitioner 's showing of interest is insufficient because of the in-
clusion of foremen temporarily demoted to rank -and-file positions within the unit, and be-
cause the showing was not based on an expanded payroll current at the time of the hear-
ing, or upon a payroll including all employees then in a temporary laid -off status. We
find that these contentions are without merit . As to ( 1), although the record shows that
the Employer 's work force was substantially reduced from a peak of 1,113 employees on
July 25 , 1954, to 224 employees on December 20, 1954, when the petition herein was filed,
and increased to 304 employees at the time of the hearing less than a month later, the
Employer has no present plans for increasing its work force , nor, it indicates , do the orders
on hand warrant any further increase in the complement of its employees . In the cir-
cumstances , no persuasive reason is established for depriving these employees of their right
to determine their bargaining representative Walker County Hosiery M11s, 91 NLRB 8.
As to ( 2), it is well established that the Petitioner 's showing of interest is an adminis-
trative matter not litigable Moreover, the Board has held that where an employer's
operations fluctuate , the Board requites a showing of representation only among employees
employed at the time the petition is filed. ( Trenton Foods, Inc., 101 NLRB 1769, 1770.)
As to the inclusion of the foremen allegedly temporarily demoted to rank-and -file positions,
the record refutes the Umon 's contention that the demotions were temporary and that by
reason thereof the showing was insufficient.
3 The parties stipulated that the unit description as set forth in the petition herein be
amended to conform to the contract unit.
HIGGINS, INC. 799,
ployees, production clerks, inspectors, office and clerical employees,
foremen, assistant foremen, and all other supervisors as defined in the
Act.
5. The Union contends that in the event the Board directs an elec-
tion, all temporarily laid-off employees who continue to hold their
seniority reemployment rights should be eligible to vote, and that fore-
men temporarily demoted should not be eligible to vote. The record
shows that under the terms of the recently expired collective-bargain-
ing agreement regular employees are laid off and rehired according
to length of service, skill, and ability. Such seniority is lost if an
employee is laid off for 6 months or more. The Board has held that
the mere fact that laid-off employees have continued seniority rights
does not entitle them to vote, but rather the test is whether there exists
a reasonable expectancy of employment in the near future 4 Although
the Employer indicated that should business conditions warrant, laid-
off employees would be recalled in the order of their seniority, skill,
and ability, there is, as indicated above, no reasonable expectancy of
their recall in the near future. In the circumstances, we find that
employees in laid-off status are not eligible to vote in the election.'
As to the Union's contention with respect to the foremen, it is clear
that their eligibility to vote in any Board-directed election depends on
their supervisory status. In this regard, the record shows that the
agreement of the parties provides that foremen who have been de-
moted as a result of the Employer's curtailment of operations are
returned to the contract unit with accumulated seniority.' Although
the Employer conceded that it was probable that should the unit ex-
pand once more, the one-time foremen would be restored to their
supervisory positions, the same business considerations which con-
trolled the recall of the laid-off employees were equally applicable to
the restoration of the foremen to their supervisory status. But, as
previously indicated, the record fails to show that there is any definite
prospect of business conditions improving in the near future to an
extent that would provide a reasonable expectancy that such restora-
tion will occur. Therefore, we find that foremen who were demoted
to rank-and-file jobs have no reasonable expectancy of being returned
to supervisory positions. Accordingly, we find that they are not super-
visors within the meaning of the Act and therefore are eligible to vote
in the election.'
[Text of Direction of Election omitted from publication.]
4 Harris Products Company, 100 NLRB 1036 , 1039-1040 ; Avco Manufacturing Corpora-
tion, 107 NLRB 295
I bid
e Although the number of foremen thus demoted is not specified in the record , it appears
that the Employer endeavors to maintain a ratio of approximately 1 foreman to every 25
or 30 production employees.
7 United States Rubber Company, 86 NLRB 338, 340.