P. S. Thorsen & Co., Inc.

National Labor Relations Board - Board Decisions

Jun 10, 1944

56 N.L.R.B. 1340 (N.L.R.B. 1944)

In the Matter of P . S. THORSEN & COMPANY, INC. and MAINTENANCE
WORKERS AND PIPE COVERERS LOCAL #1474-1, INTERNATIONAL LONG-
SHOREMAN 'S ASSOCIATION
Case No. 2-R-4647.Decided June 10, 19
Messrs. Raymond Woodward and W. L. Davies, of Brooklyn, N. Y.,
for the Company.
Mr. Louis Waldman, by'Mr. Samuel Duker, of New York City, for
the ILA.
Mr. William L. Standard, by Mr. Herman Rosenfeld, of New York.
City, and Mr. Morris Miller, of Brooklyn, N. Y., for the CIO.
Miss Frances Lopinsky, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon a petition duly filed by Maintenance Workers and Pipe Cov-
erers Local #1474-1, International Longshoreman's Association,
herein called the ILA, alleging that a question affecting commerce
had , arisen concerning the representation of employees of P. S.
Thorsen & Company, Inc., Brooklyn, New York,' herein called the
Company, the National Labor Relations Board provided for an
appropriate hearing upon due notice before Jerome I. Macht, Trial
Examiner. Said hearing was held-at Brooklyn, New York, on May
9; 1944. The Company, the AFL, and Industrial Union of Marine and
Shipbuilding Workers of America, CIO, Local #13, herein called the
CIO, appeared and participated. All parties were afforded full op-
portunity to be heard, to examine and, cross-examine witnesses, and
to introduce evidence bearing on the issues. The Trial Examiner's
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.
' At the hearing upon suggestion of the Trial Examiner , the pleadings in the case were
amended to correspond with this, the correct corporatename of the Company.
56 N. L R B, No. 238.
1340
P. S. THORSEN & COMPANY, INC . 1341
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
' P. S. -Thorsen & Company, Inc., is a New York corporation engaged
in furnishing and applying all types of insulation on board ships
in the port of New York and surrounding territory in New Jersey.
Its principal office and place of business is in Brooklyn, New York,
and it has warehouses in Brooklyn, New York, and in Hoboken,
Kearny, and Port Newark, New Jersey. The annual value of its
raw materials exceeds $100,000. These. materials,are installed on
war ships including transports and cargo ships. The annual value
of the installations made by the Company exceeds $250,000. About
50 percent of the materials purchased by the Company moves in
interstate commerce to the Company's warehouses.
The Company admits that it is engaged in commerce within the
meaning of the National Labor Relations Act.
H. THE ORGANIZATIONS INVOLVED
Maintenance Workers and Pipe Coverers, Local #1474-1, Inter-
national Longshoreman's Association, affiliated with the American
Federation of Labor, is a labor organization admitting to membership
employees of the Company.
Industrial Union of Marine &, Shipbuilding Workers of America,
affiliated with the Congress of Industrial Organizations, is a labor
organization admitting to membership employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
The CIO has had contracts with the Company from year to year
since 1937. The contract entered into on June 5, 1942, expired on
June 5, 1943. At that time, the parties, not having agreed upon the
terms of a new contract, extended the term of the expired contract
to June 30, 1943, and subsequently extended it "until a new agreement
shall have been'signed between the parties." Matters in issue were
then referred to a mediator who certified the dispute to the National
War Labor Board. In September -1943, the Regional. War Labor
Board Issued a Directive Order to which the CIO filed an appeal. In
March 1944, the ILA requested the Company to recognize it as the
exclusive bargaining representative of its employees. The Company
refused, stating that it was bound by the CIO contract. Thereafter,
on May 2, 1944, pursuant to a final 'Directive Order issued by the
National War Labor Board, the Company and the CIO entered into
a contract which was dated June 5, 1943, and was to expire June 5,
587784-45-vol. 56-86
1342_ DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1944, unless continued by mutual agreement of the parties. The CIO
agreed therein to present its new agreement to the Company 30 days
prior to the termination date. On. May 2, 1944, the CIO presented
to the Company its proposed new contract which at the time of the
hearing had not been executed -by'the parties.
The CIO contends that its contracts, including the one submitted,
to the Company on May 2, 1944, but not yet,signed, constitute a con-
tinuous collective bargaining relationship between it and the Com-
pany; that each agreement is a renewal of its predecessor and that
the series of contracts constitutes a bar, to a present determination of
representatives. The CIO contends further that its failure to execute
a contract prior to the date of the ' ILA's request for recognition was
a direct result of its- having resorted to the procedures of the War
Labor Board, an act for which it should not be penalized. The con-
tentions are without merit. The CIO has had the opportunity to
represent the employees of the -Company for a number of years; it,
therefore, merits no special ,consideration by reason of its having re-
sorted to governmental procedures.2 Its present contract on behalf
of "those employees, is about to expire and the new one which it hoped
to put into effect has not been executed.3 We find the contracts of the
CIO no bar to a present determination 'of representatives.
A statement of a Board agent, introduced into evidence at the
hearing, indicates that the ILA represents a substantial number of
employees in the, unit hereinafter found appropriate.4
We find that a question'.affecting commerce has arisen concerning
the representation of employees of the Company, within the meaning
of Section 9 (c) and Section 2 (6) and (7) of the Act.
IV. THE APPROPRIATE UNIT,
All parties are in, agreement that the appropriate unit shall consist
of all production workers of the Company exclusive of timekeepers,
chauffeurs, truck drivers, warehousemen, office workers, and super-
visory employees. The parties are further in agreement that; em-
ployees classified as job foremen and strawbosses should be included
in the unit. - -
The Company employs a general superintendent, 6 assistant super-
intendents, approximately 40 job foremen, and approximately 20 straw-
bosses. The general superintendent is in charge of all operations and
2 See Matter of Fort Dodge Creamery Company, 53 N. L. R B 928; Matter of Inter-
national Hari ester Company , 5.5 N L R B 497.
' See Matter of Eicor, Inc , 46 N L R. B. 1035.
4 The Field Examiner reported that the ILA submitted 391 application for membership
cards, 376 of which bore the names of persons listed on the Company ' s pay roll of March -
19, 1944, which contained : the names 'of-504 employees in- the appropriate unit Of, these
cards, 318 were dated between January 14 and April 1, 1944, and 58 were,undated. At
the hearing , the 11A submitted 106'additional cards . , The CIO relied upon its contracts
t h w its interest in the proceedingo 09
P. S. -THORSEN & COMPANY, INC., - 1343
is located'at the Company's main office in Brooklyn, New York. His
6 assistants are stationed, 1 each, in Brooklyn, New York, Hoboken
and Port Newark, New Jersey, and 3 in Kearny, New Jersey. As
ships come into, or reach a certain stage of construction in, the ship-
yards located in the vicinity of these ports, the Company is notified
that a• job is to be performed upon them. A crew is then chosen by
an assistant superintendent'; at the same time an. employee, chosen
from the ranks of the first and second class mechanics and designated
as job foreman, is placed in charge of the crew. If the crew is large,
one or more strawbosses may be assigned to assist the job foreman.
The job foreman and the strawbosses may or may hot have had pre-
vious experience in that capacity. A job foreman is in complete con-
trol of the job to which he is assigned and bears the responsibility for
the job. , He is supervised through telephone contact with the assistant
superintendent who issued his assignment. He lays out the work for,
his men, sees' that they have the proper, material to do it, acts as time-
keeper for them, keeps the Company informed of the nature of the
work to be done and the rate of progress towards its completion, and
returns unused material to the warehouses of the Company. He may
not'hire or discharge, but he may reprimand a subordinate and may
cause his transfer from the job for reasons of insubordination, in-
ability, or lack of need for the workman's services. His recommenda-
tions concerning the abilities of persons working with him are the
basis for effective recommendations made by the assistant superin-
tendents. The recommendations of the assistant superintendents,
however, are made after independent investigation. A job foreinan
seldom performs manual labor, but, if liis crew is very small, he may
work with tools. A strawboss performs similar duties and has similar
authority, but he reports to the job foreman rather than to the assistant
superintendent and he bears less responsibility than does the job
foreman. •
It is evident that job foremen and strawbosses exercise a certain
amount of supervisory authority. However, the classification and
accompanying authority are temporary. In the operation, of the
Company's business,, it is not uncommon for an employee who acts
as job foreman of one job to work under a job foreman, as a
mechanic, on another. These employees have been included in the
appropriate unit and covered by the CIO's contracts since 1937. In
view of the agreement of the parties, the temporary nature of the
authority vested in job foremen and strawbosses, the constant inter-
change Between these employees and persons within the unit of
production employees, 'and the history of bargaining whereby they
have been included in such a unit, we find that job foremen and
strawbosses are not supervisory employees within our usual defini=
tion of the teriia. • ' - .
1344 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We find that all production workers of the Company, including
job foremen, and strawbosses, but excluding timekeepers, chauffeurs,
truck drivers, warehousemen, office workers, and supervisory em-
ployees 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 among the
employees in the appropriate unit who were employed during the
pay-roll period immediately preceding the date of the Direction of
Election herein, subject to the limitations and additions set forth
in the Direction.'
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 Re-
lations Act, and pursuant to Article III, Section 9, of National
Labor Relations Board Rules and Regulations-Series 3, it is hereby
DIRECTED that, as part of the investigation to ascertain representa-
tives for the purposes of collective bargaining with P. S. Thorsen &
Company, Inc., Brooklyn, 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 super-
vision of the Regional' Director for the Second 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 Regula-
tions, among the employees in the unit found appropriate in Section
IV, above, who were employed 'during the pay-roll period immedi-
ately 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 any who have since quit or been discharged
for cause and have not been rehired or reinstated prior to the date
of, the election, to determine whether they desire to be represented
by Maintenance Workers and Pipe Coverers Local # 1474-1, ILA
(A. F. of L.), or by Industrial Union of Marine and Shipbuilding
Workers of America, Local #13, CIO, for the purposes of collective
bargaining, or by neither.
, The ILA has requested that its name appear on the ballot as Maintenance Workers and
Pipe Coverers Local #1474 -1, ILA (A F. of L ) The request is hereby granted