The Arundel Corp.

National Labor Relations Board - Board Decisions

Nov 6, 1943

53 N.L.R.B. 466 (N.L.R.B. 1943)

In the Matter of TILE ARUNDEL CORPORATION and Ii-Du *kAi. UkION OF'
MARINE AND SHIPBUILDING WORkERS OF AMERICA, CIO (LOCAL 43)
Case No. 5-R-1370.-Decided November 6, 1943
Mr. G. Donald Schaub , of Baltimore , Md.,. for the Company.
Messrs . Joseph DiGiacomo and William. Fwehley , if Baltin16re,
Md., for the C. 1. 0.
Mr. Jacob B7rwn , of Baltimore , Md., for the A. F. of L.
Mr. A . Sumner Lawrence, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon petition duly filed by Industrial Unidn of Marine and Ship-
building Workers of America, C. I. 0., Local 43, herein called the
C. I. 0., alleging that a question affecting commerce had arisen con-
cerning the representation of eidployees of The Arundel Corporation,
Fairfield] Maryland, herein called the Company,' the National Labor
Relations Board proi7ided for an appropriate hearing upon due notice
before David H. Werther, Trial Examiner. Said hearing was held
at Baltimore, Maryland, on October 4, 1943. The Company, the
C. I. Q., and Baltimore Bdilditrg and. Construction Trades Council,
A. F. L., herein called the A. F.'of L., appeared, participated; and Were
afforded full opportunity to be heard, to examine and cross-examine
witnesses, and to introduce evidence bearing on the issues. The Trial
Examiner's ruling's made at the hearing are free frdAi piejudicial
error and are hereby affirmed. ; All parties were afforded the oppor-
tunity for filing briefs with the Board.
Upon the entire record in the case the Board makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
The Arundel Corporation, a Maryland corporation, has its prin-
cipal office and place of business in Baltimore, Maryland, with branch
offices in New York City, Maine, Florida, and Los Angeles, California.
IIncorrectly described In the petition and other formal papers as "Arundel Corpora-
tion", and corrected by motion at the hearing.
53 N. L. R. B., No. 81.
466
'Iii AMR-6EL cittPORA!T'I ' 40
Tile Company is priiicipally engaged in construction aiid recliiia-
tion projects, dredging, and bridge work. Contract work perfol'iniid
in 1942; Ineliiding the Conipkiiy's share of joint ventures ih which it
participated, totaled aplii oxithately $27,500,600 for dredging Mid con=
struction work in more than 13 States of the United States and Puerto
Rico.
The Company is also engaged in the production and distribution of
sand and gravel, crushed stone, crushed slag, and ready-mixed con-
crete, all of which 'Materials' are produced in the State of Maryland
During the first 6 months of 1943, the Company sold such products of
a value in excess of $80d,000, Of which approximately 81/2 percent of
value was shipped to points outside the State of 1VIaryland.
The Company owns and operates a fleet of tugs and barges and a
fully equip] ed ship repair yard at Fairfield, Maryland, With which
latter operaioi this proceeding is concerned. The Fairfield yard is
engaged in repairing tugs, barges, dredges, and 'miscellaneous vessels,
steam shovels, cranes, bulldozers, and various cdnstrtiction equipment.
In connection with the 'operation of its repair yard, the Company
purchased during the first 6 months of 1943 raw materials of a value
in excess of. $79;122A0, of which approximately, 20 percent of value,
was shipped to the repair yard froth points outside the State of
Maryland.
The Company concedes that it is engaged in commerce within the
iiieaiii'ng of the 3Gfional Labor Relations Act.
II. THE ORGANIZATIONS INVOLVED
industrial Union of Marine and Shipbuilding Workers of America,
Local 43,,is a labor organization affiliated with the Congress of In-
dustrial drganiza`tions, admitting to membership employees of the
Company.
Baltlmore Building and Construction Trades Council is a labor
organization afliated with the American Federation of Labor, admit-
ting to membership employees of the Company.
III. THE QUEaTION CONCEkkiNG REPRESENTATION
On or about August 18;1943, and several times thereafter, the C. I. 0.
requested that the Company bargain with it as representative of the
employees at the Company's Fairfield ship repair yard. Upon the
failure of the Company to indicate definitely whether it would bar-
gain c6llectively, the C. I. 0. filed its present petition for investigation
and certification of representatives.
A statement of a Field Examiner for the Board introduced into
evidence at the hearing, indicates that the C. I. 0. represents a sub-
468 DECISIONS OF- NATIONAL ,LABOR RELATIONS BOARD
stantial number of employees in the unit hereinafter found appro-
priate.2
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
The C. I. 0. contends that the appropriate unit should consist of
all production and maintenance employees, including truck drivers,
employed at the Company's Fairfield ship repair yard, -excluding,
supervisors, foremen, assistant foremen, and clerical employees. The
Company and the A. F. of L. do not generally dispute the specific
categories sought to be included or excluded,3 but 'do contend that the
appropriate unit should include all employees of the. Company in
every phase of the Company's operations and activities within the
the State of Maryland.
The scope of the Company's operations within the, State of Mary-
land in addition to the Fairfield ship repair yard, covers 6 sand, and„
gravel plants, 4 stone quarries, 4 ready-mixed concrete plants, and 1
truck loading station, all of which are located at, widely separated
points, ranging in distance from 11/2 to 115 miles from the ship re-
pair yard. Each of the sand and gravel plants, the 4 quarries collec-
tively, and the Fairfield ship repair yard, has its gwli superintendent
or manager who is in full charge of the operations of 'his particular
plant. The superintendents or managers in charge of the various
sand and gravel plants and quarries are responsible for the per-
formance of their duties to a company vice president, though the
superintendent of the Fairfield ship repair yard''is responsible only
to the President of the Company. ' The superintendent or manager
of each plant has the sole power to hire and discharge employees in
his particular plant. Each plant maintains.'it-s own pay roll, iri the
performance of which duty each plant calculates' the number 'of hours
worked by its employees and forwards such ' calculations to the gen-
eral offices of the Company where the pay checks are drawn and
transmitted to the plant for distribution.
While ship repair employees are transferred for -duty among the
other plants of the Company, such transfers are 'of: a temporary
nature and for. emergency purposes only. `Employee's so transferred
°'The Field Examiner reported that the C . I. 0 had submitted 93 authorization cards
dated between August and September 1943, of which 83 bore the apparently genuine
original signatures of persons whose names appear on the Company 's pay roll of August
25, 1943, containing the names of 100 persons within the appropriate unit claimed by
the C. I. O.
8 The only exception to this statement concerns an 'employee by 'the - name of Feeliley,
hereinafter discussed, whom the A. F. of L claims should be excluded from the appro-
priate unit as a supervisory employee.
THE ARUNDEL CORPORATION 469
do only the type of work which they would normally do at the ship
repair yard, such as the repair of mechanical and marine equipment
used in connection with the Company's sand, gravel, and quarry oper-
ations.` •Moreover such transferees continue to work under the super-
vision of the ship repair superintendent. The record indicates that
there have been no permanent transfers from the ship repair yard to
the other operations of the Company, and that transfers from such
other operations to the ship repair yard are negligible in quantity.
Notwithstanding the above facts, the Company and the A. F. of L.
urge in favor of a State-wide multiple plant unit the fact that labor
policies of the Company are centrally determined, together with the
claim that the history of collective bargaining has been conducted
upon a State-wide multiple plant basis.
As to the` first contention, it appears that while the labor policy
affecting all operations of the Company within the Sttiate of Mary-
land is centrally determined, the superintendent of the shipyard
makes recommendations to the president of the Company with ref-
erence,to the • rate of pay and other working conditions in the ship-
yard .5 Employee grievances arising among the shipyard workers
are settled where possible by the superintendent of the shipyard
through' personnel conferences with the individual employees con-
cerned."
With respect to the history of collective bargaining, the contract
chiefly relied upon is a so-called master agreement executed on March
29,1940,•bythe Company and the A. F. of L. The agreement provides
that only members in good standing of the various local unions affil-
iated with the A. F. of L. union will be employed by the Company in
all of the Company's operations and such other operations controlled
by the 'Company that properly come within the jurisdiction of the
A. F. of L. The agreement further provides that the Company shall
enter into collective bargaining agreements with the various local
unions affiliated with the A. F. of L. covering such of its employees as
belong to the A. F. of L's affiliates: '
While the contract does not specify the particular plant or plants
or operations or geographical limits purported to be affected thereby,
a witness for the A: F. of L. testified that the agreement was intended
to apply to all the Company's operations in the state of Maryland.
4 The repair work performed by the ship repair yard employees consists of repairs to
plant equipment which cannot be made by the plant employees themselves.
'The Board has held that notwithstanding the existence of a central personnel office,
a single plant unit may be appropriate where, among other circumstances , it appears that
the `plant managers consult with the central office and propose wage rates for their
respective plants., Bee Matter of John Deere Harrester Workers of Deere & Company,
44 N. L. it. B. 335.
O The Board has considered as an element in the finding of a single plant unit the fact
that grievances arse handled locally by the plant foremen. See Matter of Pacific Lumber
Co, 51 N . L. R. B. 407 ; Matter of May Pollack & Co, 38 N. L. R. B 996
470 DECISIONS OF NATIONAL LABOR RELATIONS BOARD-
The coftl;act is )lot, however, a collective bargaining agreement in
the sense that it settles matters of wages, hours of work and other, con-
ditions of work, but merely binds the Company to bargain in the
future with the A. F. of L.'s affiliates in respect to such matters. More-
over, the contract in question not only fails to cover by its terms the
employees of the ship repair yard, but also Contains no provision
for termination.
The A. F. of L. contends that, notwithstanding. the, indefinite
character. of the master agreement, the fact that the A. F. of L., acting
under the master, agreement, has awarded jurisdiction to its affiliate,
herein referred to as the Operating Engineers,' f or, the purposes of
bargaining collectively with respect to employees throughout the
Company's sand and gravel operations, together with the employees.
in, the ship repair, yard, establishes a history of collective bargaining
upon, a multiple plant basis, throughout the State of Maryland. , How-,
ever, while it appears that the Operating. Engineejrs has, pursuant
to the master agreement and in accordance with its grant of .jurisdic-
tion over the Company's employees, entered into, contracts with the
Company, apparently covering employees -within the craft of the
Operating Engineers in sand and gravel plants throughput, the State
of Maryland,? it is admitted by the A. F. of'L. that the Operating
Engineers has never made a contract in behalf of, or even organized,
the, ship repair yard employees. Moreover, the latter, have concededly
been neglected by the Operating Engineers and have never, been organ-
ized by, any,labor organization. other than the, petitioning C. I. Q.
anion..
Under the circumstances, we are of the opinion} that neither, the
Company's centralized administration of labor policies, nor_ the history
of collective bargaining, as hereinabove set forth, is determinative of
the question of the appropriate unit. We find that, upon the entire
record in the case, the employees of the ship repair yard constitute a,
homogeneous group suitable for the purposes of collective bar-
gaining.8
There remains for consideration the question of including, or ex-
cluding one Feehley from the appropriate unit. This employee is in
charge of the ship repair yard from 4:3Q to 12:30 at night, duri>Rg
which period he is assisted at times by as many as 5 or 0 employees whq
' The last contract dated August 25, 1942, is for a period of 1 year, or, until such time
as either party gives 30 days ' more of, change or termination . The contract fails to
clearly identify the employees intended to qe covered tlkk;eby . The only possibility of
determining coverage rests in construction of the language appearing in the preamble
and' Article 1, Section 2 , of the agreement . It would appear Eros this lagguaae, that
the contract affects !,employees within the union 's craft at these plants of the company
located within the State of Maryland engaged in the production of sand anal grace'.", ,
See Matter of Peoiflo Lem per Company, 51 N. L. R B 4017
0
THE ARUNDEL CORP ORATION 471
work under his direction on repair jobs. He has, however, no author-
ity either to make, or to recommend changes in their employee status.
Feehley is listed on the company pay roll as a machinist. As such,
he does manual work and is paid by' the hour like other production
employees. While his rate per hour is 15 cents higher than that re-
ceived by ordinary machinists, this rate includes 10 cents extra com-
pensation for night work. By comparison, it appears that foremen
are listed on thepay roll as foremen, are paid a straight weekly salary
and do no manual work. Upon the entire record we find that Feehley
has no substantial supervisory duties, but is merely a journeyman
machinist, who at times directs and is assisted by helpers according
to. a custom long prevailing in the machinists' craft. We shall, ac-
cordingly, include Feehley within the unit hereinafter found appro-
priate'for the purposes of collective bargaining.
We find that all production and maintenance employees of the Com-
pany employed at its Fairfield, Maryland, ship repair yard, including
Fe.ehley, truck drivers,' and watchmen,1° but excluding foremen,
assistant foremen, clerical employees and all 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 collec-
tive 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 em-
ployees in the appropriate unit who were employed during the pay-
roll period immediately preceding the date of the Direction of Elec-
tion herein, subject to the limitations and additions set forth in the
Direction.
While the A. F. of L. made no actual showing of representation
among the ship repair yard employees, we shall, in view of its possible
interest as indicated by the master agreement aforesaid , include its
name on the ballot in the election directed among the employees of the
Company.
9 While the C. I. O. originally requested the exclusion of these employees , it agreed with
the A. F. of L. at the hearing that truck drivers should be included within the appro-
priate unit . In the absence of any claim for their separate representation , it is our usual
practice to include truck drivers within a unit of production and maintenance employees.
See Matter of Carl G. Hedblom and Byron C. Hedblom, co-partners, d/b/a General Ship and
Engine Works, 49 N. L. R. B. 1290.
lU While watchmen were not specifically claimed by the petitioning union , it appears
that these employees who are neither armed nor militarized do essentially maintenance
work and are therefore included in a unit of production and maintenance employees in
accordance with our usual practice in this respect . See Matter of Pass and Seymour,
Inc., 51 N. L. R. B. 1135.
472 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 9, of National, Labor Relations
Board Rules and Regulations-Series 2, as amended, it, is hereby
DIRECTED that, as part of the investigation to ascertain representa-
tives for the purposes of collective bargaining, with The Arundel Cor-
poration, Fairfield, Maryland, 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 Fifth 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 Regulations, , among the em-
ployees 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 of, and including employees in the armed forces of the United
States who present themselves in person at the polls, but excluding
those who have, since quit or been discharged for cause and have not
been rehired or reinstated prior, to the date of the election, to deter-
mine whether they desire to be represented by Industrial Union of
Maxine and Shipbuilding Workers of America, C. I. 0., Local 43, or
by Baltimore Building and Construction Trades Council, A. F. of L..
for the purposes of collective bargaining, or by neither. °