J. K. Welding Co., Inc.

National Labor Relations Board - Board Decisions

Jul 14, 1943

51 N.L.R.B. 328 (N.L.R.B. 1943)

In the Matter of J. K . WELDING COMPANY, INC. and INDUSTRIAL
UNION OF MARINE & SHIPBUILDING WORKERS OF AMERICA , LOCAL 22,
C..I.O.
Case No. R-5544.-Decided July 14, 1943
Mr. Abraham Eisenstat, of New York City, for the Company.
Mr. Max Delson, of New York City, for the Union.
Mr. David V. Easton, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon petition duly filed by Industrial Union of Marine & Shipbuild-
ing Workers of America, Local 22, C. I. O:, herein called the Union,
alleging that a question affecting commerce had. arisen concerning the
representation of employees of J. K. Welding Company, Inc., Brook-
lyn, New York, herein called the Company, the National Labor Rela-
tions Board provided for an appropriate hearing upon due notice
before John J. Cuneo, Trial Examiner. Said hearing was held at
New York City on June 17, 1943. The Company and the Union ap-
peared,' participated, and 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 opportunity to file briefs with the Board.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
J. K. Welding Company, Inc., a New York corporation, is engaged
in the manufacture of barges, tugs, and other vessels, as well as general
welding work. • For this purpose it maintains a plant in Brooklyn,
1 International Association of Bridge , Structural and Ornamental Iron Workers, Local
561, A . F. L., although duly notified of this proceeding , entered no appearance . It did,
however, have an unofficial observer at the hearing who took no part in the proceeding.
51 N. L. R. B., No. 68.
328
J. B. WELDING COMPANY, INC. 329
New York, with which we are concerned herein. Between June 1,
1942, and June 1, 1943, the Company purchased raw materials valued
in excess of $100,000, of which approximately 75 percent was shipped
to it from points outside the State of New York. During the same
period the Company manufactured and produced finished products
valued in excess of $150,000, which was delivered at the Company's
shipyard to the United States Navy and to the United States Army.
The Company admits that it is engaged in commerce within the mean-
ing of the National Labor Relations Act.
II. THE ORGANIZATION INVOLVED
Industrial Union of Marine & Shipbuilding Workers of America,
Local 22, is a labor organization affiliated with the Congress of Indus-
trial Organizations, admitting to membership employees of the Com-
pany.
III. THE QUESTION CONCERNING REPRESENTATION
On or about March 18, 1943, the Union addressed a letter to the
Company requesting a bargaining conference. The Company made
no response thereto. Thereafter, on April 27, 1943, at a conference
held at the Regional Office of the Board, the Company refused to
bargain with the Union until such time as the Union was certified as
the bargaining representative.
A statement of the Regional Director, introduced into evidence at
the hearing, indicates that the Union represents a substantial number
of employees in the unit hereinafter found appropriate.2
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 contends that a unit comprised of production and main-
tenance employees engaged in shipbuilding, stock clerks, assistants
to the departmental foremen, and chauffeurs, but excluding the super-
intendent, general foreman, working and departmental foremen,-'
timekeepers, watchmen, and guards, and all employees working less
• than 50 percent of their time in the shipyard, constitutes an appro-
priate unit. Tle Company contends that all employees of the Com-
pany, with the exception of the Superintendent, who alone has the
power to hire and discharge, should be included within the unit.
2 The Regional Director reported that the union submitted 187 application cards, 138 of
which bore the names of persons appearing upon the Company' s pay roll of March 24, 1948;
all of the signatures affixed to these 138 cards appeared to be genuine and original. He
further reported that there are approximately 227 employees in the appropriate unit.
5 "Departmental" and "working" are used synonymously herein.
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General and departmental foremen.-The general foreman and de-
partmental foremen devote at least half of their time to supervision
and the laying out of work. The majority of them perform some
-manual work in varying degrees in addition to their supervisory
duties. Although they have no power to hire or discharge, they do
,have the power to recommend such action. Each supervises from 4
to 30 employees, depending upon the operation involved. They re-
port upon the quality and performance of the work produced by these
employees, as well as any requests for raises and promotions. They
receive higher salaries than the employees working under them. Al-
though the Company seeks to include working and departmental
foremen, within the unit, we are of the opinion that the duties of these
employees are sufficiently supervisory in nature so as to warrant their
exclusion from the unit hereinafter found appropriate. We shall
therefore exclude them.
Assistants to departmental foremen.-There are certain employees
in the various departments who act as assistants to the departmental
foremen and report to them. Most of their time is devoted to actual
production work. However, they receive a. higher wage than the
other employees, and they report upon the quality of the work of
these employees as well as make recommendations regarding them
to the departmental foremen. Although both the Union and the
Company agree that these employees should be included within the
appropriate unit, we are of the opinion, and find, that they possess
power to effect changes in the status of the employees whom they
supervise, and we shall therefore exclude them.
Watchmen and guards.-These employees are deputized as auxiliary
police of the United States Coast Guard, and carry arms. They per-
form the customary duties of watchmen and guards. Although the
Company desires to include them within the unit, we are of the opinion
that the interests of these employees are not akin to those of pro-
duction and maintenance employees, and we shall, in accordance with
our usual practice, exclude them.
Timekeepers.-These employees compute and report the working
time of the employees, and, together with the superintendent, inter=
view newly hired employees. Their work is essentially clerical in
nature. In view of these circumstances, we shall exclude them from
the unit.
Outside production employees.-The Company employs a group,
consisting of 50 or more welders, who devote most of their time to the
performance of work outside the regular premises of the Company.
Most of them have no contact with the employees working in the
yard, and they are hired at the site of their employment; however,
a small minority are permanent employees of the Company, but their
J. K. WELDING COMPANY, INC. 331
duties are primarily supervisory. We shall exclude all employees
performing the major part of their work outside of the company
premises.
In accordance with the foregoing, we find that all production and
maintenance employees of the Company engaged in shipbuilding,
including stock clerks and chauffeurs, but excluding the superinter d-
ent, general foremen, departmental foremen, assistants to depart-
mental foremen, timekeepers, watchmen, and guards and all em-
ployees working the major part of their time outside of the ship-
yard as well as all supervisory employees with authority to hire, pro-
mote, 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 find that the question concerning representation which has arisen
can best be resolved by an election by secret ballot. The Union de-
sires that the pay roll of the Company covering the week prior to
June 17, 1943 (the date of the hearing herein), be used to determine
eligibility to vote, inasmuch as the Company contemplated an increase
in personnel of approximately 10 percent. We do not regard this
circumstance as sufficient to warrant a departure from our usual policy.
Accordingly, we shall direct an election among those employees of
the Company 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 virtue of and pursuant to the power vested in the National
Labor Relations Board by Section 9 (c) of the National Labor Re-
lations 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 J. K. Welding
Company, Inc., Brooklyn, New York, 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 Second Region, acting in this matter
as agent for the National Labor Relations Board, and subject to
Article III, Section 10, of said Rules and Regulations, among the em-
ployees in the unit found appropriate in Section IV, above, who
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'332 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 Industrial Union of
Marine & Shipbuilding Workers of America, Local 22, affiliated with
the Congress of Industrial Organizations, for the purposes of col-
lective bargaining.