Todd Houston Shipbuilding Corp.

National Labor Relations Board - Board Decisions

Jan 4, 1945

59 N.L.R.B. 1452 (N.L.R.B. 1945)

In the Matter of TODD HOUSTON SHIPBUILDING CORPORATION and
BROTHERHOOD OF RAILROAD TRAINMEN
In the Matter of TODD HOUSTON' SHIPBUILDING , CORPORATION and
HOUSTON METAL TRADES COUNCIL, AFFILIATED WITH, THE, METAL
TRADES DEPARTMENT (A. Y. L.)
In the Matter of TODD HOUSTON SHIPBUILDING CORPORATION and
WELDERS, BURNERS, HEATERS & HELPERS, LOCAL 731
Cases Nos. R-4403 (16-I1-4.87), I-4403 (16-BD10) -and 16-1-1051,
respectively.Decided January 4, 19.45
Messrs. Sam H. Benbow and Ike Ashburn, of Houston , Tex., for
the Company.
Messrs. W. A. Co7iibs and J. P. McCallum, of Houston, Tex., for the
Council and Local 731.
dlr. Ed Dawley, of Houston , Tex., for the United.
Mrs. Augusta Spaulding, of counsel to the Board.
DECISION
AND
DIRECTION. OF ELECTION
STATEMENT OF THE CASE
Upon a petition duly filed by Welders, Burners, Heaters & Helpers,
Local 731, herein called Local 731, alleging that a, question affecting
commerce had arisen concerning the representation of employees of
Todd Houston Shipbuilding Corporation, herein called the Com-
pan5r,1 while a motion for clarification with respect to a certification
issued in earlier representation proceedings, more fully discussed in
Section III, below, was pending consideration, the National Labor
Relations Board, upon due notice, provided for an appropriate con-
solidated hearing on the motion and on the new petition before Elmer
Davis, Trial Examiner. Said hearing was held at Houston, Texas,
on October 20, 1944. The Company, Local 731, Houston Metal Trades
Council, herein called the Council, and United =Brotherhood of Weld-
',The Company has recently changed its name from Houston Shipbuilding Corporation
to Todd Houston Shipbuilding Corporation. The caption and other formal papers in Cases
Nos. R-4402 and R-4403 were amended at the hearing to show the correct name of the
Company.
59N.L.R B,No.265.-
1452
TODD HOUSTON SHIPBUILDING CORPORATION ' 1453
ers, Cutters; and Helpers, Local No. 5, herein called the United, ap-
peared and participated.2 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 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 COMPANY
Todd Houston Shipbuilding Corporation has its principal office and
place of business on Irish Bend Island, Harris County , Texas, near
Houston, Texas. The Company is under contract with the United
States Government , acting by and through the United States Maritime
Commission , and is engaged in the building of ships for use in the
war effort . Since July 1, 1943, the Company has used for its con-
struction purposes raw materials valued in excess of $2,000,000, of
which more than 80 percent has come to its yard from points outside
Texas. AIL raw materials are su ?,plied to the Companywbyythe,United
States Maritime Commission , and the Company delivers to' the United
States Maritime • Commission all completed ships.
The Company admits that it is engaged in commerce , within the
meaning of the National Labor Relations Act.
II. THE ORGANIZATIONS INVOLVED
Welders, Burners, Heaters & Helpers , Local 731 , is a labor organ-
ization chartered by International Brotherhood of Boilermakers, Iron
Shipbuilders , Welders, and Helpers of America and affiliated with the
Houston Metal Trades Council and with the American .Federation of
Labor, admitting to membership employees of the Company.
Houston Metal Trades Council is a labor organization affiliated with
the Metal Trades Department of the American Federation of Labor,
admitting to membership employees of the Company.
United Brotherhood of Welders , Cutters, and Helpers of America,
Local No. '5, is an unaffiliated labor organization , admitting to mem-
bership employees of the Company.
III. THE QUESTION CONCER
I
ING REPRESENTATION
The Company , upon request , refused to grant recognition to Local
731 as exclusive representative of -employees in the welding department
until the petitioner should be certified by the Board.
s Brotherhood of Railroad Trainmen , also served , with notice , did not appear at the
bearing.
1454 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On February 4, 1943, in Cases Nos. 16-R-487 and 16-R-510, the
earlier consolidated cases involving employees of the Company herein,
the Board certified the United as exclusive bargaining representative
of all welders, burners, and helpers, and leadermen ' in the welding
department, and the Council as exclusive bargaining representative of
employees in a residual plant unit, excluding, inter alia,3 employees
in the above named categories.4 On July 8, 1943, the United filed a
motion for clarification of its certification to determine whether heat-
ers and straighteners were part of its departmental unit, or part of the
residual plant unit represented by the Council. On July 12, 1943, the
Board, finding no uncertainty in the terms of its certification of the
United, denied the motion. On October 14, 1943, the United and the
Company entered into a comprehensive written bargaining contract
covering employees in the welding department, which provided, inter
alia, for maintenance of union membership, retroactive to February 4,
1943, the date of the former's certification.' In a collateral agreement,
the contracting parties provided that the retroactive feature of the
maintenance of membership clause should become effective only when
it had been submitted to, and approved by, the War Labor Board. On
May 17, 1944, the Regional War Labor Board duly approved the
measure, but the Company appealed the order to the National War'
Labor Board.
On June 27, 1944, upon a complaint issued pursuant to an amended'
charge filed meanwhile in Case No. 16-C-968 by the United, the Board
issued its Decision and Order, finding that early in 1943, Local 731,
the petitioner herein, was chartered to supplant the United and that
by the activity of certain supervisors of the Company to compel em-
ployees in the welding department to abandon the United and to join
Local 731, the Company had committed unfair labor practices in vio-
lation of Sections 8 (1) and'(3) 'of the Act, and orderingsthat the
Company take certain remedial action to dispel the effects thereof.
The Company thereafter complied with the Board's order.5
On September 3, 1944, the Council, alleging that the Company had
refused to bargain with-either the Council or the United for heaters
and straighteners e in the welding department, requested that the
Board determine whether these employees were included in the de-
partmental unit represented by the United or in the residual plant unit
represented by the Council. On September 7, 1944, the Board granted
' The Board also found that employees engaged in operating the dinky engines in the
Company's yard constituted a separate bargaining unit and certified Brotherhood of Rail=`
road Trainmen as their exclusive bargaining representative . The present issues are confined
to employees in the welding department . See footnote 2, supra.
4 46 N. L.R.B 161.
The complaint case was formally closed on September 15, 1944.
e The term "heaters and straighteners" indicates one category of employment.
TODD HOUSTON SHIPBUILDING CORPORATION 1455
the Council's motion and remanded the case to the Regional Director
for further hearing on the issue.
Meanwhile, on September 6, 1944, Local 731 filed the new petition
herein, alleging that a question had arisen concerning the representa-
tion of employees in the welding department. On October 6, 1944,
the earlier representation proceedings (Cases Nos. 16-R-487 and 16-
R-510), on which the motion for clarification was pending, were con-
solidated with the new petition. On October 20, 1944, at the time of
the consolidated hearing, the Company's appeal from the Regional
War Labor Board's order concerning the retroactive feature of the
maintenance of membership clause in the contract between the United
and the Company, executed on October 14, 1943, was still pending
decision.
The United, calling attention to all the facts cited above, and par-
ticularly to the pendency before the National War Labor Board of
the retroactive feature of the maintenance of membership clause in
its contract with the Company, otherwise effective on October 14, 1943,
contends that, under the Allis-Chal'hers doctrine, we should dismiss
the new petition filed by Local 731 herein, and resolve the issue with
respect to the appropriate unit for heaters and straighteners on the
motion for clarification in the earlier cases. Local 731 does not agree,
and does not claim as part of its proposed unit the heaters and straight-
eners claimed both by the Council and by the United. We are aware
that the very period covered by the retroactive feature of the mainte-
nance of membership clause marks the commission of unfair labor
practices by the Company, instigated by the raiding tactics on the
part of the petitioner, which we do not condone. The Company has,
however,'complie'd with the Board's order and the effects of the unfair
labor practices have been dissipated. While it is doubtless true that
the United, without fault on its part, lost some prestige among the
Company's employees as a result of these events, we are inclined, in
view, of the very substantial benefits accruing to the employees con-
cerned as a result of the contract negotiated by the United on October
14, 1943, to attribute any substantial defection from the United to
the Company's unfair labor practices rather than to the pendency of
proceedings before the War Labor Board. Thus we find the Allis-
Chalmers doctrine inapplicable herein.7 Therefore, we will not deny
7 As we, noted in flatter of Taylor Forge and Pipe Woi ks. 5S N L R B. 1371, when
the pendency of proceedings before the war Labor Board, involving the employer and an
intervening union which is the previously established bargaining representative of em-
ployees affected by the petition is urged as it reason for dismissing the petition which we
would otherwise entertain , the Board , weighing the equities , considers whether the inter-
venor , acting promptly and diligently to negotiate a comprehopsive collective bargaining
contract , has failed to complete its initial bargaining program prior to the petitioner's
demand for recognition because of delays incident to the submission of issues to the war
Labor Board . If, however , despite the delay in the settlement of some of its demands, the
618683-45-vol 59-93
i9fii AINVdT'\i03 1119 11 2 REA Od SVZZVG
1456 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to the Company's employees the right to designate a new bargaining
representative at this time, if they so desire.
A statement prepared by a Field Examiner and admitted into evi-
dence at the hearing indicates that Local 731 represents a substantial
number of employees in the unit hereinafter found appropriate .8
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
In the earlier representation proceedings involving the Company's
employees, noted above, the Board found that all welders, burners,
and their helpers, and leadermen in the welding department of the
Company's shipyards, excluding all foremen and other supervisory
employees above leadermen, constitute an appropriate bargaining unit.
The Council and Local 731, its affiliate, contend that the unit thus found
appropriate is presently the appropriate bargaining unit for employees
in the welding department. They further contend that heaters and
straighteners, cable pullers, and copper bar men, more particularly
described below, are properly part of the residual unit for which the
Council, as a result of the earlier representation proceedings, is pres-
ently the certified representative. The United contends that the appro-
priate bargaining unit for employees in the welding department should
include all welders, burners, their helpers, heaters and straighteners,
cable pullers, and copper bar men and that supervisory employees,
including leadermen, should be excluded from the bargaining unit.
The Company's welding department, a single administrative sector
under the supervision of a master welder, is subdivided into divisions,
called Departments 4, 5, and 40. Welders are included in Department 4,
and burners and heaters and straighteners are included in Department
5. Department 40 is a service division in the welding department and
includes cable pullers (sometimes called cable maintainers), copper
intervenor had enjoyed ample opportunity since securing certification or recognition to
demonstrate its effectiveness as a bargaining agent, the Board does not extend the cus-
tomary period during which a statutory representative customarily enjoys immunity from
reinvestigation of its representative status. Matter of Wisconsin Steel Works, International
Harvester Company, 53 N. L. R. B. 734; Matter of The Regina Corporation, 57 N. L. R. B.
4; Matter of Great Lakes Carbon Corporation, 57 N. L. R. B. 115.
'Local 731 submitted 1,266 authorization cards and 1,600 application-for-membership
cards, of which 984 of the former and 288 of the latter appear to bear genuine original
signatures of employees on the Company's pay roll of September 13, 1944, listing 4,693
names. In addition to these cards, Local 731 submitted evidence of actual membership of
113 employees in the appropriate unit . Of the authorization cards submitted, 10 were
dated in 1943 without designation of the particular mouth, 39 were undated, and the
remaining were varionsiv dated hetween in n nnrv n„a n^+..r ,,... yn...
TODD HOUSTON SHIPBUILDING CORPORATION • 1457
bar men (sometimes called copper bar, crew), and checkers and other
clerical employees.,' For reasons which we set forth in the earlier
representation proceedings, we found that welders, burners, and their
helpers should be included in a departmental unit. The principal issue
between the rival organizations is whether heaters and straighteners
and cable pullers and copper bar men should be included therein. The
parties further presently disagree as to the status of leadermen.
Heaters and straighteners: 10 It is the function of a heater and.
straightener by use of an acetylene torch and a hammer, or by use of
an acetylene torch and water, to straighten or shrink folds in a ship's
framework. Straightening is accomplished by the use of heat and a
hammer, and shrinking by heat and water. Although heaters and
straighteners use a torch somewhat different from that used by welders
and burners, the work of these employees is similar and related to the
work of a burner and welder, as indicated by their inclusion as crafts-
men in the same administrative sector of the Company's plant under
the master welder. Heaters and straighteners receive compensation
comparable to that of welders. We shall include heaters- and straight-
eners in the departmental unit 11
Cable pullers and copper bar men: Cable pullers keep account of
welding cables and assist welders by connecting cables to welding
machines. Copper bar men assist craftsmen in making a certain type
of weld. At the time of the original hearing in the earlier representa-
tion proceedings, employees in these two categories were classified as
automatic welders and helpers in the welding department and, as such,
included in the bargaining unit. For more accurate job classification
purposes, the Company renamed these helpers to indicate more exactly
the type of services rendered by them and, without changing in any
way the nature of their work, transferred them from Departments
4 and 5, to Department 40, a service section in the welding depart-
ment. We shall specifically include cable pullers and copper bar men
in the unit for employees in the welding department.
Leadermen: In the earlier representation proceedings, in accord-
ance with an agreement among the parties, we included leadermen in
the units found appropriate for the Company's employees, on the
understanding that leaderlen in the Company's employ were not
supervisory employees within our definition of that term. At the
9 None of the labor organizations desires the inclusion of clerical employees in the de-
partmental unit and the record does not disclose the number of them or the nature of their
work. We shall exclude them from the appropriate unit.
10 Although it appears that heaters and straighteners were employed by the Company
at the time of the original hearing in the eprher representation proceedings , the original
1458 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
present time , based upon its experience as bargaining representative
of the employees primarily concerned herein, the United urges the
exclusion of leadermen from the , unit for employees in the welding
department.
Leadermen in,the welding department . are assigned by their fore-
men certain machines and gangs of approximately 15 men, whom they
instruct and supervise . Leadermen use tools for purposes of demon-
stration , but they ordinarily do not work with tools . Leadermen
assign men in their gangs to work locations , and direct their work.
They issue passes for relief from work for hospital and grievance pur-
poses. Leadermen may make recommendations regarding the reten-
tion of men in their gangs . Men whom they do not wish to retain in
their gangs may be transferred on their recommendations , but their
recommendations for discharge are subject to complete investigation.
Upgrading in the welding department is the result of tests, and leader-
men formerly specifically recommended men for such tests. Under
the present card system , men are deemed entitled to take tests for
advancement on the basis of certain seniority at the shipyards without
waiting for the specific recommendation of their immediate super-
visors. Leadermen nevertheless report the work progress of men in
their gangs to their foremen , and the amount of work accomplished,
and the Company looks upon leadermen as part of its supervisory
staff. Upon the basis of the entire record herein , we shall exclude
leadermen from the bargaining unit.
We find that all welders, burners, helpers , heaters and straighteners,
cable pullers , and copper bar men, in the welding department at the
Company's shipyard , excluding checkers and other clerical employees,
leadermen , foremen, and all other supervisory employees with author-
ity 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.
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 issues raised by the Council have been resolved by our finding
of the unit appropriate for bargaining purposes , set forth in Section
IV, above. The Council does not wish to compete with Local 731, its
affiliate, as the bargaining representative of employees in this unit,
and we shall make no provision for the Council's participation in the
election.
As noted above, the United has not submitted any cards indicating
its present interest among the Company's employees , but has elected
TODD HOUSTON SHIPBUILDING CORPORATION 1459
to rely upon its status as their certified bargaining representative.
We shall provide that the United and Local 731 participate in the
election.
Those eligible to vote in the election shall be all employees in the
unit found appropriate in Section IV, above, who were employed
during the pay-roll period immediately preceding the date of the
Decision and- Direction of Election herein, subject to the limitations
and additions set forth in the Direction.
i 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 repre-
sentatives for the purposes of collective bargaining with Todd Hous-
ton Shipbuilding Corporation, 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, act-
ing in this matter as agent for the National Labor Relations Board,
and subject to Article III, Sections 10 and 11, of said Rules and Regu-
lations, among the employees in the unit found appropriate in Section
IV, above, who were employed during the pay-roll period imme-
diately preceding the date of this Direction, including employees who
did not work during the 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 those employees who have since quit or
been discharged for cause and bate not been rehired or reinstated
prior to the date-of the election, to determine whether they desire to
be represented by Welders, Burners, Heaters & Helpers, Local 731,
affiliated with the American Federation of Labor, or by United
Brotherhood of Welders, Cutters and Helpers of America, Local No.
5, for the purposes of collective bargaining, or by neither.
CHAIRMAN MILLIS took no part in the consideration of the above
Decision and Direction of Election.