Ira S. Bushey & Sons, Inc.

National Labor Relations Board - Board Decisions

Mar 11, 1938

5 N.L.R.B. 904 (N.L.R.B. 1938)

In the Matter of IRA S. BusIEY & SONS, INC., and INDUSTRIAL UNION
OF MARINE & SHIPBUILDING WORKERS OF AMERICA, LOCAL No. 13
Case No. R-519
CERTIFICATION OF REPRESENTATIVES
March 11, 1938
STATEMENT OF THE CASE
On September 22, 1937, Industrial Union of Marine and Ship-
building Workers of America, Local No. 13, herein called the Union,
filed with the Regional Director for the Second Region (New York
City) a petition alleging that a question affecting commerce had
arisen concerning the representation of employees of Ira S. Bushey
& Sons, Inc., New York City, herein called the Company, and re-
questing an investigation and certification of representatives pur-
suant to Section 9 (c) of the National Labor Relations Act, 49 Stat.
449, herein called the Act. On October 25, 1937, the National Labor
Relations Board, herein called the Board, acting pursuant to Sec-
tion 9 (c) of the Act and Article III, Section 3, of National Labor
Relations Board Rules and Regulations-Series 1, as amended, or-
dered an investigation and authorized the Regional Director to
conduct it and to provide for an appropriate hearing upon due
notice.
On December 7, 1937, the Regional Director issued a notice of hear-
ing, copies of which were duly served upon the Company, upon the
Union, upon the International Longshoremen's Association, and upon
the Marine Workers Metal Trades District Council, affiliated with
the American Federation of Labor, herein called the Metal Trades
Council. Pursuant to the notice, a hearing was held on December
15, 1937, adjourned from day to day, and completed on December 22,
1937, at New York City before H. R. Korey, the Trial Examiner
duly designated by the Board. The Board, the Company, and the
Union were represented by counsel and participated in the hearing.
Although the record indicates that representatives of the American
Federation of Labor were present at the hearing, they refrained from
making any formal appearance in behalf of the' Metal Trades Coun-
cil, nor did they take any part in the proceeding.
904
DECISIONS AND ORDERS 905
By Decision dated January 28, 1938,1 the Board directed the Re-
gional Director for the Second Region, acting as agent for the Board,
and subject to said Rules and Regulations, to conduct an election by
secret ballot among the production and maintenance employees of
the Company, who were named on the pay rolls of the Company
either for the week ending June 9, 1937, or for the week ending Sep-
tember 21, 1937, excluding all persons in executive and supervisory
positions, including foremen, assistant foremen, whether salaried or
paid on an hourly basis, and excluding timekeepers, office and clerical
employees, janitors, janitresses, draftsmen and technical engineering
department employees, watchmen, garagemen, and all other employees
who are paid on a salaried basis, to determine whether they desired
to be represented by the Union, for the purposes of collective bar-
gaining, or by no union.
Pursuant to the Direction of Election, the Regional Director con-
ducted an election by secret ballot on February 16, 1938. As to the
results of the balloting, the Intermediate Report showed the fol-
lowing : '
Total number elgible to vote________________________________ 318
Total number of ballots cast______________________________ 182
Total number of ballots counted____________________________ 170
Total number of votes in favor of Industrial Union of Marine
& Shipbuilding Workers, Local No. 13_____________________ 112
Total number of votes in favor of no union__________________ 58
Total number of blank ballots______________________________ 0
Total number of void ballots______________________________ 3
Total number of challenged votes__________________________ 9
Following the election, the Metal Trades Council filed a protest to
the conduct of the election, dated February 17, 1938, alleging that it
had not been included on the ballot although the Board had been
notified in writing that it desired to appear in any and all elections
to be held.
It appears that on February 14, 1938, two days before the election
was scheduled to be held, Mr. Sidney Schiffman, an attorney repre-
senting the Metal Trades Council, called at the office of the Regional
Director to protest the failure of the Board to include the organiza-
tion on the ballot. Mr. David Schatzow, Field Examiner for the
Second Region, explained to him that the omission was due to the
fact that the Metal Trades Council had made no formal appearance
at the hearing, although duly served with notice thereof. Mr. Schiff-
man was advised that the Board alone had authority to amend the
Direction of Election and that it would be necessary for the Metal
'Trades Council to contact the Board in Washington, D. C., immedi-
ately if the organization desired to present a request for such amend-
14 N L. R. B. 1181.
906 NATIONAL LABOR RELATIONS BOARD
ment. After having telephoned Mr. Win. J. Daly, secretary of the
organization, in regard to the matter, Mr. Schiffman informed Mr.
Schatzow that no such action would be taken as to the instant elec-
tion, but stated that a letter would be written to the Board regarding
future elections. Thereafter, the Regional Director received a letter
from Mr. Daly, dated Febrary 14, 1938, referring to the fact that the
Metal Trades Council had not been named on the ballot which was
to be used in the election to be conducted at the Ira S. Bushey plant
and stating that it was desirous of having its name on the ballot "in
any and all future elections, now decided upon, or to be decided upon
at a later date."
It is clear from the foregoing that although the Metal Trades
Council was duly notified of the holding of the hearing, it refrained
from becoming a party to the proceeding or from participating
therein. Moreover, although informed by the Regional Office as to
the proper procedure for presenting to the Board any request for
an amendment of the Direction of Election, the Metal Trades Council
failed to present any such request. We find, therefore, that the
protest of the Metal Trades Council is without merit.
CERTIFICATION OF REPRESENTATIVES
By virtue of and pursuant to the power vested in the National
Labor Relations Board by the National Labor Relations Act, 49 Stat.
449, and pursuant to Article III, Section 8, of National Labor, Rela-
tions Board Rules and Regulations-Series 1, as amended,
IT IS HEREBY CERTIFIED that Industrial Union of Marine and Ship-
building Workers of America, Local No. 13, has been designated and
selected by a majority of the production and maintenance employees
of Ira S. Bushey & Sons, Inc., New York City, excluding all persons
in executive and supervisory positions, including foremen, assistant
foremen, whether salaried or paid on an hourly basis, and excluding
timekeepers, office and clerical employees, janitors, janitresses, drafts-
men and technical engineering department employees, watchmen,
garagemen, and all other employees who are paid on a salaried basis,
as their representative for the purposes of collective bargaining, and
that, pursuant to Section 9 (a) of the National Labor Relations Act,
Industrial Union of Marine and Shipbuilding Workers of America,
Local No. 13, is the exclusive representative of all such employees for
the purposes of collective bargaining in respect to rates of pay, wages,
hours of employment, and other conditions of employment.