J. W. Evans & SonDownload PDFNational Labor Relations Board - Board DecisionsDec 13, 194671 N.L.R.B. 1039 (N.L.R.B. 1946) Copy Citation r1o the Matter of J. W. EVANS AND J. W. EVANS, JR., D/B/A J. iW. EVANS & SON, EMPLOYER and INDUSTRIAL UNION OF MARINE & SHIPBUILDING WORKERS OF AMERICA, LOCAL 12, CIO, PETITIONER Case No. 2-R-6848.-Decided December 13, 1946 Mr. J. W. Evans, Jr., of Port Richmond, Staten Island, N. Y., for the Employer. Messrs. Henry H. Gordon, Patrick Sullivan, and Charles A. Leone, of New York City, for the Petitioner. Mr. David C. Buchalter, of counsel to the Board. DECISION AND DIRECTION OF ELECTION Upon a petition duly filed, hearing in this case was held at New York City, on August 26 and 27, 1946, before Bertram Diamond, 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 the case, the National Labor Relations Board makes the following : FINDINGS OF FACT I. THE BUSINESS OF THE EMPLOYER 1 J. W. Evang and J . W. Evans, Jr., partners doing business as J. W. Evans & Son , are engaged in the operation of a shipyard in Staten Island , New York. During the year preceding the hearing , the Em- ployer used , in connection with its business , materials valued in excess of $50,000, of which approximately 90 percent represented shipments to it originating outside the State of New York. During the same period, the Employer completed three ferry boats which sold at a price exceeding $100,000 and which are being used in interstate trans- portation on navigable waters between New York and New Jersey. The Employer admits and we find that it is engaged in commerce within the meaning of the National Labor Relations Act. ' The name of the Employer appears in the caption as amended at the hearing. 71 N. L. R B., No 173. 1039 717734-47-vol. 71-67 1040 DECISIONS OF NATIONXL LABOR RELATIONS BOARD H. THE ORGANIZATION INVOLVED The Petitioner is a labor organization affiliated with the Congress of Industrial Organizations, claiming to represent employees of the Employer. III. THE QUESTION CONCERNING REPRESENTATION The Employer refuses to recognize the Petitioner as the exclusive bargaining representative of employees of the Employer until the Petitioner has been certified by the Board in an appropriate unit. We find that a question affecting commerce has arisen concerning the representation of employees of the Employer, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the Act. IV. THE APPROPRIATE UNIT Petitioner seeks a unit of all production and maintenance employees of the Employer excluding office, clerical and supervisory employees. Except for its agreement with Petitioner that its two foremen should be excluded as supervisory employees from any established unit, the Employer takes no position with respect to the appropriateness of the unit sought. Upon the entire record in the case, we find, in accordance with the unopposed request of Petitioner, that all production and maintenance employees of the Employer at its shipyard in Staten Island, New York, but excluding office and clerical employees, foremen, and all or any other supervisory employees with authority to hire, promote, discharge, discipline, or otherwise effect changes in the status of employees, or effectively recommend such action, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. V. THE DETERMINATION OF REPRESENTATIVES We shall direct that the question concerning representation which has arisen be resolved by an election by secret ballot. The Employer commenced shipbuilding operations in August 1945, undertaking the construction of 3 ferry boats and a small flotation ring which were completed sometime before the hearing. As of the hearing date it had several steel oil barges under construction. The record shows that the size of the employee complement in the ship- yard varies during the different stages of production. Thus, during periods of construction, the Employer maintains an average force of 20 to 30 employees, and during periods of moving, launching, and keel laying, which take from a few days to 2 weeks, the number of employees is reduced to from 8 to 15. Thereafter, the force is grad- ually increased until the number of employees reaches the level re- J. W. EVANS & SON 1041 quired for construction work. In all, it appears that some employees have been kept working fairly constantly since the commencement of operations, and that there has been a weekly average turn-over rate of 50 percent among the others. It was estimated that the average number of employees to be employed for the remainder of the year will be 20 to 22. The Employer divides its employees into 2 general groupings, i. e., regular and temporary employees. It contends that its temporary employees should be declared ineligible to vote and suggests, in effect, that this be done by permitting only those employees to vote whose names appear on, and are common to, the pay rolls of January 22, 1946, and August 6, 1946. There are 26 employees listed on the Janu- ary 22 pay roll and 34 on the August 6 pay roll, with approximately 17 names common to both. These 17, the Employer contends, are regular employees. However, the Employer admitted at the hearing that it considers as regular some of the employees listed on the August 6 pay roll whose names do not appear on the January 22 pay roll. Therefore, to use the combined pay rolls of January 22 and August 6, as the Employer apparently requests, would deprive admittedly regular employees of their right to vote. The Petitioner, on the other band, urges that temporary employees be given the right to vote for the asserted reason that they are no different from those termed "reg- ular" by the Employer; and would therefore use the pay roll of August 6,1946, the one antedating the petition. The record shows that in its operations, the Employer actually makes no distinction between temporary and regular employees, either in the work they perform or on the records it keeps. All employees are hired under the same terms of employment as prospective permanent em- ployees, receive the same rate of pay as others in their respective classi- fications, work the same number of hours and under the same working conditions and are all listed on the same pay roll without differentia- tion between a so-called temporary employee and a regular employee. And while the Employer stated that he considers those employees to be regular who have worked "steady" from 3 to 6 months, this standard. does not appear to be firmly established since one employee was ad- mittedly considered regular after only 2 months' service. Further- more, when lay-offs are necessary, no consideration is given to whether an employee is temporary or regular; the more skilled and competent workers being retained regardless of seniority. Under such circum- stances a regular employee may be laid off in preference to a tempo- rary one, and, although the Employer prefers to reemploy former employees when additional work becomes available, it does not keep a "recall" list of such employees, but hires applicants as they apply, whether they be new or former employees. On all the facts, we are. 1042 DECISIONS OF NATIONAL LABOR RELATIONS BOARD therefore, persuaded that the temporary employees have a sufficient interest in wages, hours, and working conditions at the Employer's operations to entitle them to a voice in the selection of a bargaining representative. We find, therefore, that they are eligible to vote in the election herein directed.2 And since no other reason appears for deviating from our usual practice for determining eligibility to vote, we shall direct the use of a current pay-roll date. DIRECTION OF ELECTION As part of the investigation to ascertain representatives for the purposes of collective bargaining with J. W. Evans and J. W. Evans, Jr., d/b/a J. W. Evans & Son, Staten Island, New York, 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, under the direction and supervision of the Regional Director for the Second Region, acting in this matter as agent for the National Labor Rela- tions Board, and subject to Sections 203.55 and 203.56, of National Labor Relations Board Rules and Regulations-Series 4, among the employees in the unit 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 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- tion, to determine whether or not they desire to be represented by In- dustrial Union of Marine & Shipbuilding Workers of America, Local 12, CIO, for the purposes of collective bargaining. ' CHAIRMAN HERZOG took no part in the consideration of the above Decision and Direction of Election. 2 Matter of Swift and Company, 57 N. L. R. B 1334 ; Matter of Southern Prison Com- pany and Southern Steel Company, 53 N. L. R. B. 604. Copy with citationCopy as parenthetical citation