Bethlehem-Fairfield Shipyard, Inc.

National Labor Relations Board - Board Decisions

Jul 20, 1943

51 N.L.R.B. 506 (N.L.R.B. 1943)

In the Matter of BETHLEHEM-FAIRFIELD SHIPYARD , INCORPORATED and
LOCAL 43, INDUSTRIAL UNION OF MARINE AND SHIPBUILDING WORKERS
OF AMERICA
In the Matter of BETHLEHEM -FAIRFIELD SHIPYARD , INCORPORATED and
LOCAL 43, INDUSTRIAL UNION OF MARINE AND SHIPBUILDING WORKERS
OF AMERICA-C. I. O.
Cases Nos. 8-5531 and R-5532 respectively. Decided July 20, 1943,
Cravath, de Gersdorff, Swaine & Wood, by Messrs. C. A. McLain
and E. E. Buchanan, of New York City, for the Company.
Mr. I. Duke Avnet, of Baltimore, Md., for the Union.
Mr. Robert E. Tillman, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTIONS
STATEMENT OF THE CASE
Upon petitions duly filed by Local 43, Industrial Union of Marine
and Shipbuilding Workers of America, herein called the Union, al-
leging that a question affecting commerce had arisen concerning the
representation of employees of Bethlehem-Fairfield Shipyard, Incor-
porated, Fairfield, Baltimore, Maryland, herein called the Company,
the National Labor Relations Board provided for an appropriate hear-
ing upon due notice before Earle K. Shawe, Trial Examiner. Said
hearing was'held at Baltimore, Maryland, on June 17, 1943. The Com-
pany and the Union 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 rulings of the Trial
Examiner made at the hearing are free from prejudicial error and are
hereby affirmed. All parties were afforded opportunity to file briefs
with the Board.
At the hearing, the Company moved to exclude all evidence in sup-
port of the Union's petitions and to dismiss each of the petitions
on the ground that the employees concerned performed managerial
functions and as such were not employees within the meaning of the
51 N. L. R. B., No. 93.
506
BETHLEHEM-FAIRFIELD SHIPYARD, INCORPORATED 507
Act. For the reasons stated in Section N, infra, the motions are
hereby denied.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
Bethlehem-Fairfield Shipyard, Incorporated, a Maryland corpo-
ration, operates a shipyard at Fairfield, Baltimore, Maryland, where
it is engaged in the construction of merchant vessels. All the ship-
building facilities are owned by, and all the vessels are being con-
structed on a cost plus basis for, the United States Maritime Com-
mission. During the year 1942, approximately 90 percent of all ma-
terials used at the shipyard was furnished by the Commission, and
50 percent of all materials used was shipped to the shipyard from
points outside the State of Maryland. During the same period more
than 75 Liberty Ships were constructed by the Company- and deliv-
ered to the Commission.
II. THE ORGANIZATION INVOLVED
Local 43, Industrial Union of Marine. and Shipbuilding Workers
of America, is a labor organization affiliated with the Congress of
Industrial Organizations, admitting to membership employees of
the Company.
III. THE QUESTIONS CONCERNING REPRESENTATION
The parties stipulated that the Union had requested the Company
to recognize it as the exclusive collective bargaining representative of
the employees herein involved, and that the Company refused recogni-
tion on the grounds that the units sought were inappropriate and the
Union did not represent majorities.
A statement of a Field Examiner of the Board, introduced in evi-
dence at the hearing, as supplemented by a statement of the Trial
Examiner made at the hearing, indicates that the Union represents a
substantial number of employees in each of the units hereinafter found
to be appropriate:
I The statements of the Field Examiner and the Trial Examiner are summarized in the following table:
No. of em- Cards in
Classification of employees Cards sub- ployees in classifiea-mitted classifica- tontion
Safety Inspectors--------------------------------------------- 12 25 7
Inspectors, Ventilation---------------------------------------- 4 7 4
Counters--------------------- -------------------------------- 197 431 141
Counter Leaders and Sr. Counter Leaders-------------------- 2 30 2
508 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We find that questions affecting commerce have 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 UNITS
On October 17, 1941, the Union won a consent election conducted
among the Company's employees, and was certified by the Board's Re-
gional -Director as the collective bargaining representative of the
Company's production and maintenance employees. In the present
proceedings, the Union is petitioning for two additional units of em-
ployees of the Company, namely, a unit -of safety inspectors, and a
unit of piece-work counters. The Company contends that neither unit
is appropriate because the functions performed by the employees in
question are managerial and thus such employees are not "employees"
within the meaning of the Act.
The Board has previously ruled that inspectors 2 and -piece-work
counters 3 are employees within the meaning of the Act. Nothing in
the record of the instant case convinces us that these previous rulings
should be changed or that there is any basis for distinguishing the
two groups of employees herein from those in the previous cases. We
find, therefore, that the Company's safety inspectors and piece-work
counters are employees within the meaning of the Act, entitled to
representation by means of collective bargaining.
Safety inspectors: At the time of the hearing, the Company em-
ployed 40 safety inspectors, 7 of whom were detailed to supervise the
installation and maintenance of ventilating equipment. The Com-
pany contends that the latter type of inspector should be excluded
from a unit of safety inspectors as supervisory employees. Both
parties agree to exclude the safety engineer as a supervisor of the
safety inspectors.
The regular safety inspectors are assigned to particular areas in
the shipyards and in the fabricating shops where their function is to
reduce and prevent accidents. In this connection they study work-
ing conditions, investigate accidents, care for safety equipment, and
instruct employees as to means of preventing accidents. Should an
employee be performing his work in a hazardous fashion, the safety
inspector warns him of the danger and advises a safer method. If
the employee rejects the advice, the safety inspector cannot discipline
him but usually reports the matter to the head of the particular
production or maintenance department and perhaps eventually to his
2 Matter of United Wall Paper Factories , Inc., 49 N . L. R. B. 1423; Matter of McDon-
nell Aircraft Corp, 49 N. L. R. B. 897; Matter of Shell Development Company, Inc.,
38 N L . R. B 192, 199.
'Matter of Cramp Shipbuilding Company, 46 N. L. R. B . 115; see Matter of Great
Lakes Engineering Works, 40 N. L. R. B. 1254, 1257.
BETHLEHEM-FAIRFIELD SHIPYARD, INCORPORATED 509
own superior, the safety engineer. However, even the safety engineer
cannot compel compliance with a safety order.
The inspectors in charge of ventilation undergo the same prelim-
inary training as do regular safety inspectors. Their duties differ,
however, in that they handle placement and servicing of fans and
blowers wherever needed in the plant and in the vessels. To aid them
in the manual labor involved in this connection, they are empowered
to requisition common laborers from the Labor Department. Ordi-
narily each inspector will have from four to eight laborers aiding
him. However, assignments of laborers are not permanent, so ac-
cordingly there may be a change in personnel from day to day. The
safety inspectors cannot hire or discharge such laborers. The ex-
tent of their power to discipline is to send an unsatisfactory laborer
back to the Labor Department and request a replacement. On the
basis of these facts, we find that the safety inspectors in charge of
ventilation do not occupy supervisory positions of such nature as to
warrant excluding them from the unit.
The Company contends further that the two types of safety in-
spectors should not be included in one unit because it intends to trans-
fer those in charge of ventilation to the electrical department, so
that the two types of inspectors will then be under different super-
vision rather than under the same supervision as they were at the
time of the hearing. While under some circumstances such a separa-
tion might be decisive in determining the appropriate unit, it has no
such effect in this instance. 'Here the two types of inspectors undergo
the same preliminary training and have as their ultimate function
the safety and well-being of the production and maintenance em-
ployees. They are paid on a salary basis and have the same vaca-
tion and sick leave privileges. With these interests in common, we
perceive no advantage to be gained by segregating the two types of
inspectors into separate bargaining units. A single unit will impose
no burden on the Company, even though the inspectors in charge of
ventilation are transferred to another department.
We find, therefore, that all safety inspectors employed by the Com-
pany, including inspectors in charge of ventilation, but excluding
safety engineers and all other supervisory employees with authority
to hire, promote, discharge, discipline, or otherwise effect changes in
the status of employees, or effectively recommend such action, con-
stitute a unit appropriate for the purposes of collective bargaining
within the meaning of Section 9 (b) of the Act.
Piece-work counters. The Union petitions for a unit of all piece-,
work counters, including counter leaders and senior counter leaders in
the counting department, but excluding all departmental clerks, tally
clerks, all piece-rate clerks and piece-rate setters, and all supervisors
above the rank of senior counter leaders. At the time of the hearing
e
510 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
O
the Company employed 495 piece-work counters, 39 counter leaders,
and 6 senior counter leaders. Since we have ruled that counters are
employees entitled to the protection of the Act, the sole remaining
dispute between the parties concerns the counter leaders and senior
counter leaders whom the Union would include in the counter unit
and the Company would exclude.
The record indicates that the Company's counters perform the usual
duties of piece-work counters; that is, they count and/or measure
the amount of work turned out by the individual piece-work produc-
tion employee in a given day.4 . They have nothing to do with setting
rates of pay. The counter leaders supervise the work of 10 to 15
counters in a specific section of the plant or on a specific job. They
have'no power to discipline but they do report back to their senior
counter leader and make recommendations which are usually followed.
The leaders receive the same hourly rate as the senior counter leaders
(who supervise both counters and counter leaders) and meet with
them to discuss work problems. Unlike the leaders in the Matter of
Bethlehem-Sparrows Point Shipyard, Inc.,' who devoted a majority
of their time to counting, the leaders at Fairfield normally do no
initial counting but devote their entire time to supervising. Under
all the circumstances, we shall exclude the counter leaders from the
appropriate unit as supervisory employees.6 The 6 senior counter
leaders, being the superiors of the counter leaders, will likewise be
excluded.
We find that all piece-work counters in the counting department,
excluding all departmental clerks, tally clerks,' piece-rate clerks,
piece-rate setters, senior counter leaders, counter leaders, and all other
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. THE DETERMINATION OF REPRESENTATIVES
We shall 'direct that the questions concerning representation which
have arisen be resolved by elections by secret ballot among the em-
ployees in the appropriate units who were employed during the pay-
roll period immediately preceding the date of our Direction of
Elections, subject to the limitations and additions set forth therein.
See work description in Matter of'Cramp Shipbuilding Company, 46 N. L. R B, 115.
s 49 N. L. It. B. 762.
Cf. Matter of Cramp Shipbuilding Company, 46 N L. R. B 115.
7 Tally clerks are classified as counters du the Company 's pay roll , but perform only
clerical work and do no counting . The Company agreed with the Union to exclude them
from the unit. -
BETHLEHEM-FAIRFIELD SHIPYARD, INCORPORATED 511
DIRECTION OF ELECTIONS
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 Bethlehem-Fair-
field Shipyard, Incorporated, Fairfield, Baltimore, Maryland, elec-
tions 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 Rela-
tions Board, and subject to Article'III, Section 10, of said Rules and
Regulations, among the employees in the units 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 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, to determine whether or not they desire to be represented
by I. U. M. S. W. A., C. I. 0., Local 43,8 for the purposes of collective
bargaining.
8 The Union expressed a preference at the hearing that its name appear on the ballot
as set forth in the Direction of Elections.