Brown Shipbuilding Co., Inc.

National Labor Relations Board - Board Decisions

Jan 23, 1945

60 N.L.R.B. 196 (N.L.R.B. 1945)

In the Matter of BROWN SHIPBUILDING COMPANY, INC.1 -and INTER-
NATIONAL BROTHERHOOD OF PAINTERS, DECORATORS AND PAPER-
HANGERS OF AMERICA, LOCAL No. 130
Case No. 16-R-1121.-Decided Jarruoi y 23, 19415
Messrs. Powell, Wirtz, Rauhut, and Gideon, by Cllr. Her'inan Jones,
of Austin, Tex., for the Company.
Mr. C. A. West, of Houston, Tex., for the Union.
Miss Ruth Busch, of counsel to the Board.
DECISION
AND
DIRECTION OF ELICTION
STATEMENT OF TIIE CASE
Upon a petition duly filed by International Brotherhood of Painters,
Decorators and Paperhangers of America, Local No. 130, herein called
the Union, alleging that a question affecting commerce had arisen con-
cerning the representation of employees of Brown Shipbuilding Com-
pany, Inc., Houston, Texas, herein called the Company, the National
Labor Relations Board provided for an appropriate hearing upon due
-notice before John H. Garver, Trial Examiner. Said hearing was
held at Houston, Texas, on December 20, 1944. The Company 2 and
the Union 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. In its brief, the Com-
pany moved to dismiss the Union's petition on the ground that the
Board does not have jurisdiction. For reasons stated in Section I,
infra, the Company's motion is hereby denied. The Trial Examiner's
rulings made at the hearing are free from prejudicial error and are
hereby affirmed. The Company's request for oral argument is hereby
denied. All parties were afforded an opportunity to file briefs with
the Board.
'At the hearing , the Trial Examiner on his own motion corrected the name of the
Company on all formal papers as set forth above.
'The Company filed a limited appearance for the purpose of contesting the Board's
jurisdiction in this proceeding.
60 N. L R. B., No. 39
196
BROWN SHIPBUILDING , COMPANY, INC. 197
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
The Company, which was incorporated May 1, 1944, is engaged
exclusively in the construction of combat vessels for the United
States Navy. It operates two yards, which are known as "A Yard"
and "B Yard," for building purposes. "A Yard" is owned by the
Company and "B Yard" is owned by the United States Government
which leases it to the Company for $1 per year. Both yards are under
the same supervision, direction, and control. The material used by
the Company is purchased exclusively for the United States Govern-
ment and remains the property of the United States 'Government
while work is being performed thereon by employees of the Com-
pany. A substantial amount of the materials is shipped from sources
outside of the State of Texas. Upon completion, the vessels are deliv-
ered to the United States Navy at the Company's yards. The Com-
pany maintains an employment office where applicants for employ-
ment are hired; it pays employees at the yards with its own checks,
and keeps Social Security records for them. Although all actions of
the Company in employing or discharging any employees or changing
rates of pay must be submitted to the representatives of the Navy
Department, 'its foremen and supervisors, according to a stipulation
of the parties, "can discharge employees." The Navy can require
the discharge of an employee at any time.
The Company contends that it is not amenable to our jurisdiction
on the grounds that it is not an independent employer within the
meaning of the Act, but, merely, an agent of the United States Gov-
ernment; and that in the construction of instruments of warfare it is
not engaged in activities affecting commerce. These salve contentions
were duly considered and rejected by us in prior decisions involving
the Company.3
We find that the Company's operations affect commerce,' and that
it is an employer, within the meaning of the National Labor Relations
Act.
II. THE ORGANIZATION INVOLVED
International Brotherhood of Painters, Decorators and Paper-
hangers of America, Local No. 130, is a labor organization affiliated
2 Matter of Brown Shipbuilding Company , Inc., 57 N L R. B 326, and Matter of Brown
Shipbuilding Company, Inc., 58 N. L. R . B. 998. In these cases, as here, the Company
mistakenly relied upon Matter of Brown & Root , Inc , 51 N L R B 820 , and incorrectly
ascribed our determination in the latter case to the asserted fact that the employer was
an agent of the United States Government
4 See Timberlake v Day & Zimmerman , 49 F. Supp 28.
198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with the American Federation of Labor, admitting to membership
employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
The Company has refused to grant recognition to the Union as the
exclusive bargaining representative of certain of its employees until
the Union has been certified by the Board in an appropriate unit.
A statement of a Field Examiner, introduced into evidence at the
hearing, indicates that the Union represents a substantial number of
employees in the unit hereinafter found appropriate.5_
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 Union seeks to represent a unit composed of all employees in
the Company's paint department, including brush and spray painters,
glazers, apprentices, and trainees, but excluding all supervisory em-
ployees and further excluding all employees of the Company who per-
form the work of sign painting, lettering, and numbering of all facili-
ties and construction in the yards, the latter group having been found
to constitute a 'separate appropriate unit in a recent decision.' The
only question involves the propriety of including leadermen.
Although leadermen do not have the authority to hire or discharge
employees, they transmit orders from the foremen to the painters.
Each leaderman supervises the work of 12 or 15 employees. Occa-
sionally; .they do some painting to expedite the work. In two pre-
vious cases which concerned the Company,7 the Board found that
leadermen in other departments in this shipyard are supervisory em-
ployees: We shall exclude leadermen from the unit herein found
appropriate.
We find that all employees in the Company's paint department in-
cluding brush and spray painters, glazers, apprentices, and trainees,
but excluding employees who perform work of sign painting, letter-
ing, and numbering, clerical employees, plant-protection employees,
managerial employees, leadermen, and all other supervisory employees
'The Field Examiner reported that the Union submitted authorization cards, which
bore the names of 256 persons , and that there are approximately 450 employees in the
appropriate unit The cards were dated between December 1943 and November 1944.
The Company declined to submit a copy of its pay roll
O Matter of Brown Shipbuilding Company , Inc, 58 N . L It. B. 998 On November 2,
1944 , the Sign & Pictorial Painters, L Union #550 , AFL, (Case No . 16-R-942 ), and the
Brotherhood of Railroad Trainmen ( Case No 16-R-949 ) were certified as the bargaining
representative of the employees in their respective units.
4 See footnote 3, supra.
BROWN SHIPBUILDING COMPANY, INC. 199
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 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. In accordance with the request made by the Union at the
hearing, we shall designate the Union on the ballot as International
Brotherhood of Painters, Decorators and Paperhangers of America,
Local No. 130, A. F. of L.
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 Rela-
tions Board Rules and Regulations-Series 3, as amended, it is hereby
DIRECTED that, as part of the investigation to ascertain representa-
tives for the purposes of collective bargaining with Brown Shipbuild-
ing Company, Inc., Houston, Texas, 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 Sixteenth 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 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 vaca-
tion 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 those employees who have since quit or been dis-
charged 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 International Brotherhood of Painters, Decorators
and Paperhangers of America, Local No. 130, A. F. of L., for the pur-
poses of collective bargaining.