Wilmington Welding & Boiler Works, Ltd.

National Labor Relations Board - Board Decisions

Nov 26, 1945

64 N.L.R.B. 924 (N.L.R.B. 1945)

In the Matter of R. H. WILCOX AND F . C. RICE, PARTNERS, D/B/A
WILMINGTON WELDING & BOILER WORKS, LTD. and GUARDS AND
WATCHMEN , LOCAL No. 1155, AFL
Case No. 11-R-30 1.-Decided Novemmzber 26,194b
Mr. L. G. Herrmann, of Wilmington, Calif.. for the Company.
Mr. David Sokol, of Los Angeles, Calif., for the AFL.
Mr. Alexander Turcozy, of Los Angeles, Calif., for the CIO.
Mr. David V. Easton, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon a petition duly filed by Guards and Watchmen, Local No.
1155, AFL, herein called the AFL , alleging that a question affecting
commerce had arisen concerning the representation of employees of
R. H. Wilcox and F. C. Rice, partners, doing business as Wilmington
Welding & Boiler Works, Ltd., Wilmington, California, herein called
the Company , the National Labor Relations Board provided for an
appropriate hearing upon due notice before Maurice J. Nicoson, Trial
Examiner. The hearing was held at Los Angeles, California, on
September 18, 1915. The Company, the AFL, and Industrial Union
of Marine and Shipbuilding Workers of America, CIO, herein called
the CIO, appeared and participated. All parties 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
rulings made at the hearing are free from prejudicial error and are
hereby affirmed. All parties were afforded au opportunity to file
briefs with the Board.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE COMP ANY
R. H. Wilcox and F . C. Rice are co-partners doing business in
Wilmington , California , under the firm name and style of Wilmington
64 N L R. B., No. 159.
924
WILMINGTON WELDING & BOILER WORKS, LTD. 925
Welding & Boiler Works, Ltd. The Company operates a sheet metal
and welding shop and is also engaged in repairing ships. During
1944 the Company purchased steel and iron products valued at ap-
proximately $203,181.38. Although these purchases were usually
made locally, the Company concedes that a substantial portion of the
materials used in the manufacture of its purchased items originated
at sources located outside the State of California. During the same
period the total income derived from the Company's services approxi-
mated $646,364.17; most of this amount was received in payment of
repairs to ocean-going vessels which operate beyond the territorial
waters of the State of California.
The Company admits that it is engaged in commerce within the
meaning of the National Labor Relations Act.
II. THE ORGANIZATIONS INVOLVED
Guards and Watchmen, Local No. 1155, affiliated with the American
Federation of Labor, and Industrial Union of Marine and Shipbuild-
ing Workers of America, affiliated with the Congress of Industrial
Organizations, are labor organizations admitting to membership em-
ployees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
The Company has refused to grant recognition to the AFL as the
exclusive bargaining representative of certain of its employees until
the AFL has been certified by the Board in an appropriate unit.
On March 7, 1945, a petition was filed with the Board on behalf
of the AFL by the Los Angeles Metal Trades Council, in which a
unit of the Company's plant-protection guards (not firemen) was
sought,1 and, on that day, another was filed by the CIO, requesting a
unit of certain employees of the Company, excluding, inter alia, those
sought on behalf of the AFL.2 In Case No. 21-R-2726, a cross-check
was conducted by the Regional Director, who, on March 19, 1945, des-
ignated the petitioner therein as the representative of the Company's
plant-protection guards. In Case No. 21-R-2727, the parties executed
a stipulation for Certification upon Consent Election, and, as a result
of the election conducted pursuant thereto, the CIO was certified by
the Board on April 9, 1945, as the representative of "all employees
of the Company at the . . . shops and yard (at 115 Marine Ave.,
Wilmington, California, and piers #198 and 199) including shop
employees, Marine Division employees, timekeepers, leadmen and
subforemen , but excluding plant guards and all supervisory em-
ployees . . . "
i Case No. 21-R-2726.
' Case No 21-R-2727.
926 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As of the date of the certification of the CIO , the Company did
not employ plant-protection firemen, the record indicating that these
employees were first engaged in July 1945 at the insistence of the
Navy Department . On August 14, 1945, the AFL filed the petition
herein, seeking a unit of plant protection , firemen. On August 17,
1945, the CIO executed a contract with the Company covering "all
of the employees , who work in and from the Company 's shipyard at
Pier No. 198 and No. 199, . . . including timekeepers and leadmen,
with the exception of and excluding executives, office and clerical
employees , guards, foremen , and all supervisory employees . . ."
The CIO contends , in effect, that no question concerning representa-
tion exists because of its certification and its agreement with 'the
Company, asserting that plant -protection firemen are included within
the scope of each. As previously indicated , the Company did not en-
gage plant-protection firemen at the time of the certification. These
employees are charged with the duty of protecting the Company's
docks from loss by fire , and are clearly plant-protection personnel.
Since the AFL was designated as the representative of plant-protec-
tion guards , who comprised the Company 's plant-protection staff at
that time , it is not at all clear that the plant-protection firemen con-
stitute an accretion to the CIO 's unit. Under these circumstances, we
cannot find that these employees are included within the scope of the
CIO's certification . It also follows , therefore , that, since the con-
tract between the Company and the CIO was predicated upon the
unit covered by the certification , no determination can be made that
plant-protection firemen are embraced within its terms .3 Accordingly,
we find that neither the certification nor the contract precludes a
current determination of representatives.
A statement of a Field Examiner for the Board, introduced into
evidence at the hearing , indicates that the AFL represents a substan-
tial number of employees in the unit hereinafter found aprropriate.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.
I Indeed , counsel for the CIO asserted at the hearing that the contract covered "all em-
ployees, excluding the guards , and excluding the plant protection along with the employees
with power to hire and fire, included in the certification by the Board ( italics supplied)."
Furthermore , the record clearly indicates that there was no discussion during the negotia-
lions leading to the contract with respect to the wages of plant -protection firemen, and the
contract itself contains no specific reference to them , although it sets forth the wage sched-
ules of all other employees represented by the CIO.
"The Field Examiner reported that the AFL submitted six designations of which five
bore the navies of persons appealing upon the Companv's pay roll which contained the,
vanes of five employees within the unit proposed by the AFL
The .CIO relies upon its agreement -with the Company, dated August 17, 1945, for the
establishment of its interest in this proceeding
WILMINGTON WELDING & BOILER WORKS, LTD.
IV. THE APPROPRIATE UNIT
927
As indicated above, the AFL seeks a unit of plant-protection fire-
men. The CIO does not dispute the propriety of the proposed unit on
its merits, but merely contends that they are part of the unit which
it curently represents. The Company takes no position with respect
to the unit.
Plant-protection firemen, as previously noted, are charged with the
duty of protecting the Company's property from loss by fire. They
operate fire fighting equipment and patrol the property to eliminate
fire hazards. They are a homogeneous group, possessing skills and
functions differing from those of other employees, and they work
under separate supervision.
In view of the foregoing facts, and our determinations in Section
III, supra, we find that all plant-protection firemen of the Company,
excluding 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. TILE DETERMINATION OF REPRESENTATIVES
We shall direct that the question concerning representation which
has arisen be resolved by an election by secret ballot among 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 virture of and pursuant to the power vested in the National
Labor Relations Board by Section 9 (c) of the National Labor Rela-
tions Act, and pursuant to Article III, Section 9, of National Labor
Relations Board Rules and Regulations-Series 3, as amended, it is
hereby
DIRECTED that, as part of the investigation to ascertain represent-
atives for the purposes of collective bargaining with R. H. Wilcox and
F. C. Rice, partners, d/b/a Wilmington, Welding & Boiler Works,
Ltd., Wilmington, California, an election by secret ballot shall be
6 The AFL contends that the CIO should not he placed upon the ballot because it has
made no showing of representation among the employees found herein to constitute an
appropriate unit . Inasmuch as the CIO ' s contract cannot be said to cover the employees
in the appropriate unit and it has failed to make an independent shoeing of some repre-
sentation among them , we shall not accord it a place on the ballot . See Matter of Chicago
Flexible Shaft Company, 60 N. L. R B. 848.
928 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
conducted as early as possible, but not later than sixty (60) days from
the date of this Direction, under the direction and supervision of the
Regional Director for the Twenty-First 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
employees in the unit fund 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
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 or not they desire to be represented by Guards and Watchmen,
Local No. 1155, affiliated with the American Federation of Labor, for
the purposes of collective bargaining.
MR. JOHN M. HOUSTON took no part in the consideration of the
above Decision and Direction of Election.