J. W. Evans & Son

National Labor Relations Board - Board Decisions

Dec 13, 1946

71 N.L.R.B. 1039 (N.L.R.B. 1946)

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.