Todd-Johnson Dry Docks Inc.

National Labor Relations Board - Board Decisions

Dec 29, 1939

18 N.L.R.B. 973 (N.L.R.B. 1939)

In the Matter of TODD-JOHNSON DRY DOCKS INC. and INDUSTRIAL
UNION OF MARINE AND SHIPBUILDING WORKERS OF AMERICA, LOCAL
No. 29
Case No. R-754.-Decided December 09, 1939
Shipbuilding and Repairing Industry-Investigation of Representatives: con-
troversy concerning representation of employees: rival organizations; petition
for investigation and certification of representatives filed by organization with
which the Company refused to bargain, after "certification" of another organ-
ization by the Regional Director without notice to this petitioner ; contract
terminable upon 7 days' notice by either party and in operation for more than
1 year held no bar to present investigation; strike; controversy concerning
appropriate unit; controversy concerning eligibility to vote in election of repre-
sentatives-Unit Appropriate for Collective Bargaining: all employees excluding
specific clerical and supervisory employees ; nature of work ; history of labor
organization and collective bargaining with the Company, including an existing
agreement on yard basis with labor organization now contending for craft
basis-Representatives: eligibility to participate in choice : employees in
the appropriate unit who worked at least 25 per cent of the total working
days on which the Company operated during the period of 12 weekly pay-rolls
immediately preceding the date of the Direction of Election and who, in
addition, drew pay at least 3 times in said 12 weeks, once in each group of
4 successive weekly pay rolls in the 12-week period-Election Ordered
Mr. Samuel Lang, for the Board.
Monroe & Lemann, by Mr. Nicholas Callan, of New Orleans, La.,
for the Company.
Mr. Yelverton Cowherd, of Birmingham, Ala., Mr. Anthony
Wayne Smith, of Washington, D. C., and Mr. Arthur Leary, of New
Orleans, La., for the Industrial.
Mr. Bentley G. Byrnes, of New Orleans, La., for the Intervenors.
Mr. David Kaplan and Mr. John P. Frey, of Washington, D. C.,
for the I. A. M.
Mr. Herbert S. Thatcher, of Washington, D. C., for the A. F. of L.
Mr. A. G. Koplow, of counsel to the Board.
SUPPLEMENTAL DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
On September 4, 1937, Metal Trades Council of New Orleans, sub-
ordinate to the Metal Trades Department of the American Federa-
18 N. L. R. B., No. 105.
973
974 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion of Labor, herein called the M. T. C.,1 filed with the Regional
Director for the Fifteenth Region (New Orleans, Louisiana), herein
called the Regional Director, a petition alleging that a question
affecting commerce had arisen concerning the representation of em-
ployees of Todd-Johnson Dry Docks Inc., New Orleans, Louisiana,
herein called the Company,2 and requesting an investigation and cer-
tification of representatives pursuant to Section 9 (c) of the National
Labor Relations Act, 49 Stat. 449, herein called the Act. The petition
alleged that all the employees of the Company, excluding clerical and
supervisory employees, constituted an appropriate unit and stated
that there were no other known individuals or labor organizations
who claimed to represent any of the employees in such unit. There-
after, pursuant to an agreement between the Company, the M. T. C.,
and the Regional Director, authorization cards submitted by the
M. T. C. were checked by the Regional Director with a list submitted
by the Company containing the names of all employees of the Com-
pany on the pay roll of August 31, 1937, excluding clerical employees,
the general superintendent, and the assistant general superintendent.
The check disclosed that of the 838 persons whose names appeared on
the list submitted by the Company, 489 had signed authorizations
designating the M. T. C. as bargaining representative. On September
16, 1937, the Regional Director "certified" the M. T. C. as the exclu-
sive bargaining representative of all employees of the Company,
exclusive of those in a clerical or supervisory capacity. Shortly
thereafter the Company and the M. T. C. began to negotiate relative
to terms and conditions of employment. Following such negotiations
the Company sent the M. T. C. a letter dated January 25, 1938, setting
forth terms and conditions of employment for all industrial em-
ployees which the letter stated. had been agreed upon, and stating
that such terms and conditions were to become effective immediately
and to remain in effect until terminated by either party on 7 days'
written notice. By letter to the Company dated January 26, 1938,
the M. T. C. stated that it accepted the proposals set forth in the
Company's letter dated January 25, 1938.
On March 14, 1938, Industrial Union of Marine and Shipbuilding
Workers of America, Local No. 29, herein called the Industrial,' filed
with the said Regional Director a petition alleging that a question
affecting commerce had arisen concerning the representation of em-
' In the petition the name of the petitioner was incorrectly stated as "New Orleans
Metal Trades Council", but the correction was made at the hearing.
2 In the petition and on other occasions the Company was incorrectly designated, but
the correction was made at the hearing.
3Industrial Union of Marine and Shipbuilding Workers of America, Local No. 29, was
incorrectly designated as Industrial Union of Marine and Shipbuilding Workers of America
in the petition and the order directing an investigation and bearing, but the correction
was made at the hearing.
TODD, JOHN'SON DRY DOCKS INCORPORATED 975
ployees of the Company and requesting an investigation and certifi-
cation of representatives pursuant to Section 9 (c) of the Act. On
April 5, 1938, the National Labor Relations Board, herein called the
Board, after a preliminary investigation and report had been made
by the Regional Director, issued its order dismissing the petition. On
April 16, 1938, after a reconsideration of the matter, the Board re-
voked its order dismissing the petition and, acting pursuant to Section
9 (c) of the Act and Article III, Section 3, of National Labor Relations
Board Rules and Regulations-Series 1, as amended, ordered an
investigation and authorized the Regional Director to conduct it and
to provide for an appropriate hearing upon due notice.
On April 23, 1938, the Regional Director issued a notice of hearing,
and on May 2, 1938, a notice of postponement of hearing, copies of
both of which were duly served upon the Company, upon the Indus-
trial, and upon the M. T. C. Pursuant to notice, a hearing was held
on May 5, 6, 7, 9,10,11, and 13,1938, at New Orleans, Louisiana, before
Henry J. Kent, the Trial Examiner duly designated by the Board.
The Board, the Company, the Industrial, and the M. T. C. were repre-
sented by counsel and participated in the hearing. Full opportunity
to be heard, to examine and cross-examine witnesses, and to introduce
evidence bearing on the issues was afforded all parties.
At the beginning of the hearing, its motion to intervene having been
granted, the M. T. C. excepted to the proceeding on the ground that
the Board had no right to interfere with the contract between the
M. T. C. and the Company; requested that the act of the Board in
revoking the order dismissing the petition of the Industrial be declared
unauthorized; and moved that the petition of the Industrial be dis-
missed with prejudice. At the close of introduction of evidence on
behalf of the Industrial, the motion for a dismissal of the Industrial's
petition was renewed. The Trial Examiner denied the motion with-
out prejudice. Relying upon its contention that the Board incorrectly
revoked its order dismissing the Industrial's petition and that such
petition should *be dismissed, the M. T. C. rested without stating its
position relative to the appropriate bargaining unit and other issues
raised at the hearing.
Upon request of the M. T. C. and two of the labor organizations
comprising it, and pursuant to notice, a hearing was held before the
Board on June 2, 1938, in Washington, D. C., for the purpose of oral
argument. The Industrial, the M. T. C., the International Association
of Machinists, herein called the I. A. M., which is one of the labor
organizations comprising the M. T. C., and the American Federation
of Labor, herein called the A. F. of L., with which the M. T. C. is
affiliated, were represented by counsel and participated in the oral
argument. The M. T. C., the I. A. M., and the A. F. of L. asked at
976 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the oral argument that the petition of the Industrial be dismissed,
contending that such action should be taken in view of the "certifica-
tion" which the Regional Director had issued on September 16, 1937,
and in view of the agreement between the M. T.-C. and the Company.
The three labor organizations also stated that if the Board did not
dismiss the petition the employees in certain craft groups should be
established as separate bargaining units and that the determination
of representatives should be based upon an eligibility period differing
from that which the Industrial claimed as appropriate. They re-
quested that, in the event the petition of the Industrial was not dis-
missed, the case be reopened and a further hearing be had for the
purpose of adducing additional evidence regarding the appropriate
bargaining unit and the eligibility period.
On December 14, 1938, the Board issued its Decision and Order in
the case,4 in which it held that neither the prior "certification" of the
M. T. C. by the Regional Director nor the agreement between the
M. T. C. and the Company constituted a bar to a designation of bar-
gaining representatives at that time, under all the circumstances of
the case, and ordered that the Regional Director provide for a second
appropriate hearing upon due notice to take further evidence in the
case in accordance with the Decision. On January 11, 1939, pursuant
to said order, the Regional Director issued a notice of hearing, and
on January 17 and 19, 1939, notices of postponement of hearing, copies
of each of which were duly served upon the Company, the Industrial,
the M. T. C., the I. A. M., the A. F. of L., and the International
Brotherhood of Boiler Makers, Iron Shipbuilders, Welders and Help-
ers of America, herein called the I. B. B. M.,5 which is one of the labor
organizations comprising the M. T. C. On January 13, 1939, the
M. T. C. filed with the Board its written motion for a continuance of
the hearing. The motion was never ruled upon, but the hearing was
postponed twice thereafter and the M. T. C. did not press its motion.
Pursuant to notice, a second hearing was held on February 6, 7 and 8,
1939, at New Orleans, Louisiana, -before William R. Ringer, the Trial
Examiner duly designated by the Board. The Board, the Company,
the Industrial, the M. T. C., and 10 individual locals of labor organiza-
tions affiliated with the M. T. C., were represented by counsel and
participated in the second hearing. The 10 locals were : International
Brotherhood of Boiler Makers, Iron Shipbuilders, Welders and Help-
ers of America, Local Union No. 37, herein called I. B. B. M. Local
No. 37; International Association of Machinists, Local Union No. 37,
* 10 N. L. It. B. 629.
6 International Brotherhood of Boiler Makers , Iron Shipbuilders , Welders and Helpers
of America was incorrectly designated Boiler Makers, Iron Shipbuilders , Welders and
Helpers of America, in its motion to intervene , but the correction was made at the
hearing.
TODD-JOHNSION; DRY DOCKS INOOiR.PORATED 977
herein called I. A. M. Local No. 37; United Brotherhood of Carpenters
and Joiners of America, Local Union 1846, herein called Local No.
1846; Electrical Workers Local Union No. 130, herein called Local
No. 130; International Hod Carriers, Building and Common Laborers'
Union, Local Union No. 689, herein called Local No. 689; ° Plumbers
& Steamfitters Local Union No. 60, herein called Local No. 60; Inter-
national Brotherhood of Blacksmiths, Drop Forgers & Helpers of
America, Local Union No. 175, herein called Local No. 175; Inter-
national Association of Sheet Metal Workers, Local Union No. 11,
herein called Local No. 11; International Association of Operating
Engineers, Local Union No. 406, herein called Local No. 406; Painters,
Paper Hangers & Decorators of America, Local Union No. 1244,
herein called Local No. 1244. Full opportunity to be heard, to ex-
amine and cross-examine witnesses, and to introduce evidence bearing
on the issues was afforded all parties.
At the second hearing counsel for the M. T. C., which had previously
intervened in the proceedings, was allowed to amend his original ap-
pearance so that he appeared as counsel for the M. T. C. and each
individual union representing employees at the Company forming
part of the M. T. C. The M. T. C. and the aforesaid individual
unions forming part thereof will be referred to herein collectively as
the Intervenors. At the commencement of the hearing the Inter-
venors filed a written motion to dismiss the proceeding. The Trial
Examiner denied it without prejudice. This ruling is hereby affirmed.
On September 16, 1939, the Board, having duly considered the matter
issued its Order Reopening Record, Remanding Proceeding to Re-
gional Director, and Authorizing Regional Director to Conduct Fur-
ther Hearing, in which it ordered that the record be reopened for
the purpose of giving the parties an opportunity to present facts
which occurred subsequent to the hearing held on February 6, 7, and
8, 1939, and to present facts in addition to those contained in the then
present record, and ordered the proceeding remanded to the said
Regional Director for the purpose of conducting such further hear-
ing. On September 23, 1939, pursuant to said Order, the Board issued
a notice of hearing, and on October 10, 1939, the Regional Director
issued a notice of postponement of hearing, copies of each of which
were duly served upon the Company, the Industrial, the A. F. of L.,
the M. T. C., the I. A. M., and the I. B. B. M. The notice of hearing
was also served upon the other Intervenors in the case. Pursuant
to notice, a third hearing was held on October 23, 1939, before Horace
A. Ruckel, the Trial Examiner duly designated by the Board. The
Board, the Company, the Industrial, and the Intervenors were repre-
e International Hod Carriers, Building and Common Laborers ' Union , Local Union No.
689, was incorrectly designated Hod Carriers Building & Construction Laborers, Local
Union No. 689 , in its motion to intervene . Correction was made by motion at the hearing.
978 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sented by counsel and participated in the third hearing. Full oppor-
tunity to be heard, to examine and cross-examine witnesses, and to
introduce evidence bearing on the issues was afforded all parties.
At the commencement of the third hearing counsel for the Inter-
venors again filed a written motion to dismiss the proceedings and for
other relief. The Trial Examiner denied the motion. At the hear-
ing counsel for all parties stipulated that except as appeared in the
evidence presented at the third hearing no important changes in the
facts relevant to the issues in the case had occurred in the period
since the second hearing, and that with respect to the agreement repre-
sented by the exchange of letters between the Company and M. T. C.,
on January 25 and 26, 1938, discussed more fully below, no action
had been taken thereunder or as a result thereof other than what
appears in the record made at the prior hearings. .
During the course of each of the three hearings the Trial Ex-
aminers made several rulings on motions and on objections to the
admission of evidence. The Board has reviewed the rulings of the
Trial Examiners and finds that no prejudicial errors were committed.
The rulings are hereby affirmed. On March 9 and February 27, 1939,
respectively, and again on November 9 and 24, 1939, respectively, the
Industrial and the Intervenors submitted briefs and memoranda, which
the Board has considered. The Intervenors, at their request, were
also permitted until December 5, 1939, to submit a reply brief, but
they did not avail themselves of such permission.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE' COMPANY
Todd-Johnson Dry Docks Inc. is a Delaware corporation with its
offices, shipyards, and drydocks located on the Mississippi River at
New Orleans, Louisiana. It is engaged in the drydock and repair
of "vessels of all flags in foreign and coast-wise trade, and boats and
barges in river and inland waters trade, as well as harbor craft and
Government-owned vessels."
Two companies operating shipyards at New Orleans, the Todd-
New Orleans Company and the Johnson Iron Works, consolidated to
form Todd-Johnson Dry Docks Inc., which was incorporated on De-
cember 20, 1935, with a capitalization of $1,873,000. Approximately
60 per cent of the stock of the Company is in the hands of Tietjen
& Lang Dry Dock Company, Hoboken, New Jersey, a subsidiary of
Todd Shipyards Corporation, New York City. The Company now
operates two plants or yards, some 6 miles apart, called "Upper Plant"
and "Lower Plant," formerly the yards of Johnson Iron Works and
TODD-JOHNSON DRY DOCKS INCORPORATED 979
Todd-New Orleans Company respectively. Most of the work is per-
formed at the lower plant, the upper plant being used largely for
"overflow" work. The two yards operate as one unit, the men being
hired at the same place and the workmen being interchangeable, except
that no colored labor is employed at the upper plant.
During the year-1938 the Company's pay roll amounted to $980,267.54
and it purchased raw materials amounting the $498,068.51, all of which
raw materials originated outside the State of Louisiana with the
exception of some minor amounts of lumber. The total volume of
business in 1938 was $2,042,775.33. The percentages of work done
on various types of vessels during 1938 were as follows :
Percent
Foreign flag, foreign commerce----------------------------- 241/2
American flag, foreign commerce--------------------------- 55
Coastwise vessels------------------------------------------ 3
River and inland waterways------------------------------- 11
Harbor--------------------------------------------------- 2
U. S. Government----------------------------------------- 2
All other------------------------------------------------- 21/2
From January 1 to September 30, 1939, the Company's pay roll
amounted to $816,000, and its purchases of raw materials were valued
at $511,000. Most of the raw materials originated outside the State
of Louisiana. The total volume of business during this period was
$1 480 000 divided as follows :, , ,
Percent
Foreign flag, foreign commerce------------------------------- 28
American flag in foreign commerce, coastwise, river, and inland
waterways, harbor; and U. S. Government------------------ 71
All other --------------------------------------------------- 1
II. THE ORGANIZATIONS INVOLVED
Industrial Union of Marine and Shipbuilding Workers of Amer-
ica, Local No. 29, is a labor organization affiliated with the Congress
of Industrial Organizations, admitting to its membership all produc-
tion and maintenance employees of the Company except clerical, office,
and supervisory employees.
Metal Trades Council of New Orleans, subordinate to the Metal
Trades Department of the American Federation of Labor, is a labor
organization affiliated with the American Federation of Labor. It
is composed of representatives of the locals of 21 international unions
affiliated with the American Federation of Labor. Evidence indi-
cates that 12 of the locals had as members employees of the Company.
The nine of these which intervened in the case are: International
Brotherhood of Boiler Makers, Iron Shipbuilders, Welders and Help-
ers of America, Local Union No. 37; International Association of
Machinists, Local Union No. 37; United Brotherhood of Carpenters
980 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and Joiners of America, Local Union 1846; Electrical Workers Local
Union No. 130; International Hod Carriers, Building and Common
Laborers' Union, Local Union No. 689; Plumbers & Steamfitters
Local Union No. 60; International Brotherhood of Blacksmiths, Drop
Forgers & Helpers of America, Local Union No. 175; International
Association of Sheet Metal Workers, Local Union No. 11; and Inter-
national Association of Operating Engineers, Local Union No. 406.
Painters, Paper Hangers & Decorators of America, Local Union No.
1244, another local of an international union affiliated with the M. T. C.
and the A. F. of L., also intervened but did not have any membership
among the Company's employees. There are several other locals
which admit to membership certain employees of the Company, but
they did not intervene in the case. The requirements for eligibility
to membership in the various locals mentioned above are not set forth
clearly in the record.
III. THE QUESTION CONCERNING REPRESENTATION
As stated above, following the check of authorizations of the M. T. C.
against pay-roll records in September 1937, the M. T. C. proceeded
to bargain with the Company, such bargaining culminating in a letter
from the Company dated January 25, 1938, setting forth terms and
conditions of employment for all its industrial employees. There-
after the Company refused to bargain collectively with representatives
of the Industrial when requested to do so, although it was willing
to deal with members of the Industrial as individuals. On March
14, 1938, the Industrial filed its petition with the Board, and a hearing
was held in May 1938. The record contains evidence indicating that
the organizational competition between the M. T. C. and the Indus-
trial was attended with considerable acrimony and even physical
violence. Inter-union strife was at least partially responsible for
the closing of the Company's plant from April 21 to May 13, 1938.
At the hearings the Industrial and the Intervenors introduced lists
showing that they represented substantial numbers of the Company's
employees. There was sharp disagreement on the questions of appro-
priate unit and eligibility to vote in an election.,
As found in the Decision and Order dated December 14, 1938, the
agreement between the M. T. C. and the Company does not constitute
a bar to this proceeding. This agreement may be terminated by either
party on 7 days' written notice and it has been in operation for more
than 1 year.7
We find that a question has arisen concerning representation of
employees of the Company.
V 10 N. L. R. B. 629, 632.
TODD-JOHNSON DRY DOCKS INCORPORATED 981
IV. THE EFFECT OF THE QUESTION CONCERNING REPRESENTATION UPON
COMMERCE
We find that the question concerning representation which has
arisen, occuring in connection with the operations of the Company,
described in Section I above, has a close, intimate, and substantial re-
lation to trade, traffic, and commerce among the several States, and
between the several States and foreign countries, and tends to lead to
labor disputes burdening and obstructing commerce and the free flow
of commerce.
V. THE APPROPRIATE UNIT
The unions and the Company are agreed, and we find, that the em-
ployees of the Company should not be segregated into separate units,
by virtue of their employment in the lower plant or the upper plant,
herein together called the yard.
The Industrial desires a single unit to comprise all the employees
of the Company excluding clerical and supervisory employees.8 The
Intervenors urge that we designate as appropriate the.following 18
units :
1. Blacksmiths.
2. (a)
(b)
(c)
(d)
Machinists in the shop.
Machinists on board ship.
Tool room employees.
Chauffeurs who work as garage mechanics.
3. Pipefitters.
4. (a)
(b)
(c)
Ironworkers, or boilermakers.
Electric and acetylene welders.
Loftsmen.
5. (a) Carpenters.
(b) Wood caulkers.
6. Tin smiths, sheet metal, or light iron workers.
7. Electricians.
8. (a) Colored laborers.
(1) Yard hands.
(2) Dock hands.
(3) General colored labor.
(4) Cleaning gang.
(b) White labor.
(c) White dock hands.
s The president of the Company , in reply to a question at the bearing , stated that in
his opinion the common laborers in the yard constitute one appropriate unit and the
mechanics and helpers in the various crafts constitute one or several other appropriate
units.
982 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
9. (a) Locomotive crane operators.
(b) Boiler firemen.
10. Chauffeurs and truck drivers, except those working as garage
mechanics.
11. Patternmakers.
12. Brass foundry workers.
13. Floating equipment crew.
14. Brick layers.
15. Insulation workers.
16. Cement mixers.
17. Hose and cable repairmen.
18. Store-room employees.
The Company pay roll divides the employees into various classes
according to the type of work they perform . These classes , however,
do not correspond with the 18 units for which the Intervenors con-
tend. In some instances a single grouping on the Company's pay
roll includes employees divided into two units by the Intervenors.
Thus the Company classes as "Chauffeurs" the employees listed in both
numbers "2 (d)" and "10" above , and classes as "Tool Room" the em-
ployees listed in both numbers "2 (c)" and "17" above. In other in-
stances the Company classifies under two or more headings the
employees grouped by the Intervenors into one proposed unit. This
is true of machinists in the shop and machinists on board ship, who are
classified separately on the pay roll but are both placed by the Inter-
venors in number "2", above , together with some of the toolroom
employees and chauffeurs.
The agreement effected by means of the exchange of letters between
the Company and the M. T. C. on January 25 and 26 , 1938, provides
that "Employees will be assigned to work mutually recognized as
work belonging to their respective crafts, and regularly performed by
employees of that craft in the past . Incidental work is excepted."
The Company is engaged in the drydock and repair of vessels, some
of the work being done aboard ship and some of it on shore . Skilled
workers of several types , together with general . helpers and common
laborers , work under a common foreman, cooperate with each other,
and perform their several tasks simultaneously . It is not uncommon
for an employee who is within one of the 18 categories suggested by
the Intervenors on one working day to be found in others of these 18
categories on succeeding days; that is, the number and identity of
employees within these respective categories change from day to day.
The recent history of labor organization and collective bargaining
has been on the basis of a yard unit . In its original petition for
investigation and certification of representatives , filed on September
4, 1937, the M . T. C claimed as the appropriate unit the identical
unit now sought by the Industrial . The authorization cards turned
TO'IlD-JOHNSON DRY DOCKS INCORPORATED 983
over to the Regional Director by the M. T. C. for check against the
Company's pay roll authorized the M. T. C. and not a particular affili-
ated union to represent the signer. On September 16, 1937, the
Regional Director "certified" the M. T. C. as the exclusive agency for
the broad unit now desired by the Industrial. Thereafter the M. T. C.
and the intervening unions affiliated with it proceeded to bargain
with the Company on the basis of a yard unit. The letter from the
Company dated January 25, 1938, which concluded a period of nego-
tiation between it and the M. T. C., is addressed to the M. T. C.
as "Bargaining Agents for all Industrial Employees" of the Com-
pany, sets forth, inter alia, certain hours of work "for all classes of
labor," and contains many specific provisions pertaining to working
conditions for all classes of employees in the yard. The petitions
which the Intervenors circulated in the yard after the Board re-
scinded its order dismissing the petition of the Industrial, either
request the Board "not to disturb recognition and certification
granted . . . to the American Federation of Labor organizations
last September," which was for the broad unit, or state that "We are
on strike in support of our bargaining agency, the New Orleans
Metal Trades Council of the American Federation of Labor for a
closed shop agreement."
For the reasons set forth in the separate opinions below, we find
that the yard unit is the appropriate one in this case.
The Industrial and the Intervenors agree and we find, that the
employees listed in Appendix A, appended hereto, are either clerical
or supervisory employees and should be excluded from the appro-
priate unit.
The Industrial and the Intervenors agree and we find that the
following employees should be included in the appropriate unit :
(1) storeroom employees and members of the floating equipment
crew, whether they are paid on a salary or an hourly basis, (2) em-
ployees who are paid on a piece-work rather than an hourly basis
but who in other respects are in the same position as hourly paid
employees.
The Intervenors desire that we include leadermen in the appro-
priate unit.e The Industrial agrees that hourly paid and off-and-
on leadermen be included but argues that salaried leadermen should
be excluded. Leadermen act as gang bosses and have the authority
to discharge subject to the approval of their foremen. Although
all three types of leadermen are subject to demotion in slack seasons,
salaried leadermen have more secure tenure and accordingly are
closer to management than hourly paid and off-and-on leadermen,
Y Leadermen are also referred to in the record as "snappers" and "rushers ." We shall
refer to them herein as leadermen.
283029-41-vol. 18-63
984 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
because salaried leadermen are not subject to temporary lay-offs
.necessitated by the fluctuation in work. With respect to the leader-
men we see no reason for departing from our usual rule that minor
supervisory employees will be included if so desired by the labor
organizations involved 1° and excluded if so desired by one or more
of the labor organizations involved."'- Since both the Industrial and
the Intervenors agree upon the inclusion of hourly paid and off-and-
on leadermen we shall include them. Since there is a legitimate
distinction between these two types and salaried leadermen, and the
Industrial desires the exclusion of the salaried leadermen, we shall
exclude them from the unit .12
The Intervenors desire that we include, and the Industrial that
we exclude, foremen and assistant foremen. Foremen have the
authority to hire and discharge employees. Assistant foremen may
discharge employees subject to the approval of the foremen. Apply-
ing our usual rule when two labor organizations disagree as to the
inclusion of such supervisory employees we shall exclude foremen
and assistant foremen from the appropriate unit.
At the first hearing in the case the Industrial and the Intervenors
wanted watchmen excluded from the unit. At the subsequent hear-
ings the Industrial asked that they be included. These men, in
addition to performing the customary duties of watchmen, also act
in an official capacity when they are on duty alone, check the time
of employees on the second and third shifts and perform other
clerical duties. Because of the nature of their duties, and in accord-
ance with our decisions in other cases in which there has been a
dispute as to their inclusion, we find that watchmen should be ex-
cluded from the appropriate unit 13
10 Matter of Campbell Machine Company, David C . Campbell and George E. Campbell,
co-partners, trading as Campbell Machine Company and International Association of
Machinists, Local No. 389; Shipwrights , Boatbuilders & Caulkers; and International
Brotherhood of Electrical Workers, Local No. 569, 3 N. L. R. B. 793; Matter of Jones
Lumber Company , West Oregon Lumber Company, Clark & Wilson Lumber Company,
B. F. Johnson Lumber Company, Portland Lumber Mills, Inman-Poulsen Lumber Com-
pany, and Eastern & Western Lumber Company and Columbia River District Council of
Lumber and Sawmill Workers ' Union No. 5, etc., et al ., 3 N. L. R. B. 855; Matter of Pier
Machine Works, Inc. and Industrial Union of Marine and Ship Building Workers of
America, Local No. 13, 7 N. L. R. B. 401.
"Matter of Pacific Manifolding Book Company, Inc. and International Printing Press-
men and Assistants ' Union of North America, 3 N. L. R. B. 551; Matter of Friedman
Blau Farber Company and International Ladies' Garment Workers' Union, Local No. 295,
4 N. L. R. B. 151 ; Matter of International Harvester Company Tractor Works and Farm
Equipment Workers Association Division of A. A. I. S! & T. W. N. A. Lodge No. 1320,
C. I. 0., 5 N. L. R. B. 192; Matter of Rem Manu facturing Co., Inc. and A. F. of L. Federal
Local Union No. 20893, 7 N. L. R. B. 95.
22 Cf. Matter of Alabama Drydock & Shipbuilding Co. and Industrial Union of Marine and
Shipbuilding Workers of America, Local No. 18, 5 N. L. R. B. 149.
Is See Matter of International Harvester Company Tractor Works and Farm Equipment
Workers Association Division of A. A. I. S. & T. W. N. A. Lodge No. 1320, C. I. 0., 5
N. L. R. B. 192; Matter of Todd Shipyards Corporation, Robins Dry Dock and Repair Co.
and Tietjen and Lang Dry Dock Co . and Industrial Union of Marine and Shipbuilding
Workers of America, 5 N. L. R. B. 20.
TODD-JOHNSION DRY DOCKS INCORPORATED 985
The Industrial asks to have the porter included in the unit; the
Intervenors desire his exclusion. No description of his duties or
reasons for his exclusion appear in the record. He is paid on an
hourly basis like most production and maintenance employees. We
may assume that he is part of the regular maintenance staff and shall
direct that he be included in the appropriate unit.
The Industrial requests the inclusion of the safety engineer; the
Intervenors seek his exclusion. He is paid on a salary basis. No
description of his duties or reasons for his exclusion appear in the rec-
ord, but from his title and from our experience in similar cases we
feel he is more closely identified with the clerical and supervisory staff
than with the ordinary employees, and we shall therefore direct that
he be excluded from the appropriate unit.
For purposes of convenience we shall list the categories of em-
ployees, about which some question has been raised, in Appendix B,
appended hereto, if they are excluded from the appropriate unit, and
in Appendix C, appended hereto, if they are included in it. We find
that all employees of the Company excluding the employees listed in
Appendixes A and B, and including the employees listed in Appendix
C, constitute a unit appropriate for the purposes of collective bargain-
ing, and that said unit will insure to employees of the Company the
full benefit of their right to collective bargaining and otherwise
effectuate the policies of the Act.
VI. THE DETERMINATION OF REPRESENTATIVES
The number of employees on the weekly pay rolls of the Company
fluctuates constantly, varying from 150 to 1700 since January 1936.
At the second hearing the Industrial, I. A. M. Local No. 37, I. B. B. M.
Local No. 37, Local No. 1846, Local No. 175, and Local No. 130 each
introduced into evidence lists containing the names of members, ap-
plicants for membership, and persons who had delegated to the said
organizations the authority to represent them in collective bargaining.
Local No. 60 and Local No. 689 made similar claims of authorization
to represent certain employees in the plant, but introduced no lists of
names by way of proof. None of the signatures of membership, appli-
cation, or authorization cards was examined by counsel, nor were any
of the names checked against the Company's pay rolls at the hearing.
All parties presented their evidence with the tacit understanding that
if the Board were to proceed to an immediate determination of bar-
gaining representatives they should prefer that it be done by means
of an election rather than by certification on the basis of lists intro-
duced in evidence. We find that the question which has arisen con-
cerning the representation of employees can best be resolved by the
holding of an election by secret ballot. We shall accordingly direct
that such election be held.
986 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Industrial requested that the period from November 1, 1938,
through January 31, 1939, or, in the alternative, the period from May 1
through July 31, 1939, be used as a basis for determining which em-
ployees shall be eligible to participate in an election. The Intervenors
requested the 3-month period preceding the issuance of the Board's
Direction of Election, or, in the alternative, any 3-month period of
1939. The Company suggested any 3-month period reasonably close
to the date of the election. The parties agreed that any period used
should begin and end on a pay-roll date. We conclude that eligibility
to vote in the election may appropriately be based on the 12 weekly
pay-roll periods immediately preceding the date of this Direction of
Election. We shall so direct.
The Industrial, the Company, and the Intervenors agreed at the
hearing that in order to eliminate casual and temporary workers only
those persons who had worked in each month of the 3-month eligibility
period should be eligible to participate in the choice of bargaining
representatives. The Industrial contended that any individual who
had drawn a pay check of any size in each of the 3 months should be
allowed to vote. In its brief the Industrial made the suggestion that
even this requirement be relaxed in certain cases. The Company
maintained that only persons who had worked 25 to 331/3% of the
total working time in the 3-month period should be allowed to vote.
The Intervenors asked that voting be limited to persons who had
worked 331/37o of the total working time in each of the 3 months. The
evidence shows that the large majority of employees of the Company
are "shaped up" or hired every morning as needed for the day's work.
If there is no work available for a specific individual, he may seek em-
ployment elsewhere for the day and return whenever he wishes to at-
tempt again to get work with the Company. Since May 1938 the
Company has had a policy of employing persons for work on a par-
ticular day in proportion to the amount of time they worked during the
few months preceding that day. Under the circumstances, we con-
clude that only those persons who have worked a substantial number
of hours during the 12-week eligibility period and who have received
pay on a representative number of pay-roll dates should be permitted
to participate in the election. We shall accordingly direct that the
election be conducted among those employees in the appropriate unit
who worked at least 25 per cent of the total working days on which
the Company operated during the 12-week period immediately preced-
ing the date of Direction of Election, and who, in addition, drew pay
at least three times in said 12 weeks, once in each group of 4 successive
weekly pay rolls in the 12-week period. An employee who worked for
any length of time on a particular day will be considered to have
worked the entire day, for purposes of this computation.
TOM-JOHNS'ON DRY DOCKS IN OOiRPORATED 987
The persons eligible to participate in the election shall vote to deter-
mine whether they desire to be represented by Industrial Union of
Marine and Shipbuilding Workers of America, Local No. 29, or by
Metal Trades Council of New Orleans, subordinate to the Metal Trades
Department of the American Federation of Labor, for the purposes
of collective bargaining, or by neither.
Upon the basis of the foregoing findings of fact and upon the entire
record in the case, the Board makes the following :
CONCLUSIONS OF LAW
1. A question affecting commerce has arisen concerning the repre-
sentation of employees of Todd-Johnson Dry Docks, Inc., New Or-
leans, Louisiana, within the meaning of Section 9 (c) and Section
2 (6) and (7) of the Act.
2. All employees of the Company excluding the employees listed
in Appendixes A and B, and including the employees listed in Ap-
pendix C, constitute a unit appropriate for the purposes of collective
bargaining, within the meaning of Section 9 (b) of the National Labor
'Relations Act.
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,
49 Stat. 449, and pursuant to Article III, Section 8, of National Labor
Relations Board Rules and Regulations=Series 2, it is hereby
DIRECTED that, as part of the investigation authorized by the Board
to ascertain representatives for the purposes of collective bargaining
with Todd-Johnson Dry Docks, Inc., New Orleans, Louisiana, an elec-
tion by secret ballot shall be conducted as early as possible but not later
than thirty (30) days from the date of this Direction of Election,
under the supervision of the Regional Director for the Fifteenth Re-
gion, acting in this matter as the agent of the National Labor Relations
Board, and subject to Article III, Section 9, of said Rules and Regula-
tions, among all employees of the Company excluding the employees
listed in Appendixes A and B, and including the employees listed in
Appendix C who worked at least 25 per cent of the total working days
on which the Company operated during the period of 12 weekly pay
rolls immediately preceding the date of this Direction of Election and
who, in addition, drew pay at least 3 times in said 12 weeks, once in
each group of 4 successive weekly pay rolls in the 12-week period, ex-
cluding those who have since quit or been discharged for cause, to
determine whether they desire to be represented by Industrial Union
of Marine and Shipbuilding Workers of America, Local No. 29, or
988 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Metal Trades Council of New Orleans, subordinate to the Metal Trades
Department of the American Federation of Labor, for the purposes of
collective bargaining, or by neither.
Separate concurring opinion of MR. EDWIN .S. SMITH :
The record shows clearly that the M. T. C. in the past bargained
with the Company on the basis of a single yard unit. In the petition
for certification filed by the M. T. C. in September 1937, and in the
agreement effected by the exchange of letters in January 1938, the
M. T. C. recognized and accepted the appropriateness of that unit.
It was not until the hearing in this case that the M. T. C. switched
its position and asked for separate units.
The record further reveals the complexities of attempting to sub-
divide the yard into numerous small units. The classifications of
the Company's pay roll do not correspond to the 18 units requested
by the Intervenors and the record leaves ambiguous the allocation of
many employees to the various units. In the absence of a previous
history of bargaining upon the basis of separate units it would be
an almost impossible task for the Board to define the precise limits
of each particular craft unit and to determine which employees
should vote in each unit. Such an effort would, furthermore, put
the Board in the position of determining many issues involving the
jurisdiction of the various member unions composing the M. T. C.,
which are more properly left to the decision of such unions themselves.
For these reasons, and for reasons expressed by me in my opinions
in Matter of Allis-Chalmers Manufacturing Company 14 and Matter
of American Can Company,',' I am of the opinion that the appro-
priate bargaining unit in this case is the yard unit.
I agree with the views expressed in the Chairman's dissenting
opinion relating to the argument that the Board is not "authorized
by the Act" to find a unit different from that which the parties in
collective bargaining have considered to be appropriate and which
they have embodied in an agreement 1'
Separate concurring opinion of MR. WILLIAM M. LEISERSON :
When the original Decision and Order in this case was made on
December 14, 1938 (10 N. L. R. B. 629) the Chairman in a. concurring
opinion stated, that the order directing investigation and hearing
was "improvidently made" and that the proceedings thereunder
should not have been taken. I am in agreement with this view.
14 utter of Allis-Chalmers Manufacturing Company and International Union, United
Automobile Workers of America, Local 248, 4 N. L. R. B. 159, 175.
15 Matter of American Can Company and Engineers Local No. 30, et al ., 13 N. L. R. B.
1252.
16 See my concurring opinions in Matter of American Can Company , supra, and Matter
of Milton Bradley Company and International Printing Pressmen and Assistants Union of
North America (A. F. L.), 15 N. L. R. B. 938.
TODD-JOHNSIONl DRY DOCKS INOOtRPORATED 989
Had the order of April 5, 1938, dismissing the petition of the In-
dustrial, been allowed to stand, the Board would not now be in the
position of determining a representation question a year and nine
months after the petition was filed.
The employees involved in the present representation dispute are
now working under an agreement between the Company and the
Metal Trades Council of New Orleans, affiliated with the American
Federation of Labor, which covers "all industrial employees" of the
Company. This agreement was made pursuant to a letter sent by
the Regional Director of the Board at New Orleans to the parties
"certifying," on the basis of a check of authorizations, that the
M. T. C. had been designated as the exclusive bargaining representa-
tive of "all Todd Johnson Ship Yard employees, exclusive of those
in supervisory and clerical capacity." The M. T. C. had previously
filed a petition for a certification, and in this petition it described
the bargaining unit which it claimed appropriate as consisting of
"All employees of the plant excepting those in clerical and/or
supervisory capacity."
Since the employees are now represented by the M. T. C. in a
bargaining unit consisting of all industrial employees of the Com-
pany and since the petition of the Industrial challenges this repre-
sentation and requests that it be certified as the representative for
the same bargaining unit, I do not think the Board is authorized
by the Act to split up this existing and acknowledged bargaining
unit and to order separate elections in a multiplicity of smaller units.
It is true that the M. T. C. changed its position during the course of
the proceedings and requested that the Board designate 18 separate
units in place of the existing single unit. But if the Board has au-
thority to split an established and acknowledged unit into 18 parts
as now requested, it would of course have authority to divide the em-
ployees into any number of units for voting purposes that suited its
own judgment. The dissenting opinion, in fact, not only disregards
the existing established unit but also rejects the 18 craft units pro-
posed by the M. T. C.; it accepts nine of the proposed units and
throws the rest into a single mixed unit with miscellaneous employees.
It seems to me that the assumption of authority thus to rearrange
existing and established units for voting purposes opens the door to
gerrymandering, which I cannot believe Congress intended by the
wording of the Act.
The agreement between the M. T. C. and the Company does provide
that "employees will be assigned to work mutually recognized as work
belonging to their respective crafts and regularly performed by em-
ployees of that craft in the past, incidental work excepted." This is
990 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the method by which the M. T. C. as the duly designated representa-
tive of all the employees in a single unit has worked out with the
Company the problem of assigning work to the different crafts. The
provision is made necessary by the fact that much of the work is done
by helpers who assist men of different crafts, and also because a good
deal of the work is difficult to classify as between various crafts while
much of it does not fall within the jurisdiction of any craft organiza-
tion. The Board is not informed as to whether the subdivision of
the employees into either 18 units or 10 units corresponds to the actual
distribution of work among the crafts under the agreement. Any
attempt of the Board to order the establishment of a multiplicity of
small units is therefore bound to have the effect of changing the
assignment of work among the crafts as provided in the agreement,
and it is clear that the Board is without authority to change a work-
assignment clause of an agreement under the guise of settling a
representation dispute.
I am of the opinion, therefore, that we must find the appropriate
unit in the present case to be the same as the unit by which the em-
ployees of the company are now represented under the existing agree-
ment. The secret ballot should be taken accordingly.
CHAIRMAN MADDEN, dissenting in part :
I am unable to concur in that part of the decision which finds the
yard unit to be appropriate for the purposes of collective bargaining.
I am of the opinion that the principle of the Globe decision should
be applied.'7 Employees in each of the nine crafts indicated below
should be given the opportunity to determine by a secret ballot
whether they wish to bargain collectively as separate units through
the appropriate intervening craft unions affiliated with the M. T. C.,
or whether they wish to merge with other employees in an industrial
unit :
1. Blacksmiths.
2. (a)
(b)
(c)
(d)
Machinists in the shop.
Machinists on board ship.
Tool room employees.
Chauffeurs who work as garage mechanics.
3. Pipefitters.
17 The reference is to the doctrine whereby the Board has , in cases of conflict between
so-called craft and industrial unions, where a union that has historically bargained on
a craft basis has shown substantial membership among a group of craft employees and
has requested the establishment of a craft unit, either established the craft group as
a separate unit or permitted the craft employees to vote separately to determine whether
they are to be in a separate unit or to be merged with other employees in a broader unit.
See Matter of The Globe Machine and Stamping Co. and Metal Polishers Union , Local No. 3,
et al., 3 N. L . R. B. 294, and subsequent cases.
TO'D'D.-JOHNS'ONI DRY DOCKS INCORPORATED 991
4. (a)
(b)
(c)
Ironworkers, or boilermakers.
Electric and acetylene welders.
Loftsmen.
5. (a)
(b)
Carpenters.
Wood caulkers.
6. Tin smiths, sheet metal, or light iron workers.
7. Electricians.
8. (a) Colored laborers.
(1) Yard hands.
(2) Dock hands.
(3) General colored labor.
(4) Cleaning gang.
(b) White labor.
(c) White dock hands.
9. (a) Locomotive crane operators.
(b) Boiler firemen.
Other unions affiliated with the M. T. C. or A. F. of L. which the
evidence indicates have as members employees in crafts other than
the nine above-mentioned did not intervene in the case. Because
these unions did not intervene, the employees in the remaining nine
units proposed by the Intervenors should vote as a residual group to
determine whether they wish to be represented by the Industrial, by
the M. T. C., or by neither.
My reasons for the above conclusions are similar to those expressed
in my dissenting opinions in Matter of American Can Company 18
and Matter of Milton Bradley Company.19 For the reasons there
expressed I further do not agree with the reasoning of Mr. Leiserson
that the Board is not "authorized by the Act" to determine the
appropriate unit. I suppose that Congress meant what it said in
the statute. The Congressional language is "The Board shall decide
in each case whether, in order to insure to employees the full benefit
of their right to self-organization and to collective bargaining, and
otherwise to effectuate the policies of this Act, the unit appropriate
for the purposes of collective bargaining shall be the employer unit,
craft unit, plant unit, or subdivision thereof." 20
"Matter of American Can Company and Engineers Local No . 90, et at., 13 N. L. R. B.
1252.
"Matter of Milton Bradley Company and International Printing Pressmen and As-
sistants Union of North America (A. F. L.), 15 N. L. R. B. 938.
20 Section 9 (d).
992 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX A
Administration :
President.
Vice-President.
Secretary-Treasurer.
Supervision :
General Superintendent.
Assistant General Superin-
tendent.
General Office :
Auditor.
All Clerks.
Typist.
Office Boy.
Telephone Operator.
Secretary-Stenographers.
Paymaster and Timekeepers :
Paymaster.
All Clerks.
All Timekeepers.
Purchasing Department :
Purchasing Agent.
All Clerks.
Sales :
All Solicitors.
Estimating :
Estimator.
Miscellaneous :
Night Superintendent.
Draftsmen.
Bookkeepers.
General Foreman.
Dock Master.
Assistant Dock Masters.
APPENDIX B
Foremen. Watchmen.
Assistant Foremen. Safety engineer.
Salaried leadermen, snappers,
or pushers.
APPENDIX C
Storeroom employees. Off-and-on leadermen, snappers,
Floating equipment crew. or pushers. -
Hourly-paid leadermen, snappers, Porter.
or pushers.