Welin Davit and Boat Corp.

National Labor Relations Board - Board Decisions

Aug 11, 1943

51 N.L.R.B. 1221 (N.L.R.B. 1943)

In the Matter Of WELIN DAVIT AND BOAT CORPORATION and. LOCAL
#60 OF THE INDUSTRIAL UNION OF MARINE AND SHIPBUILDING WORK-
ERS OF AMERICA, C. I. O.
Case No. R-5739.-Decided August 11, 1913
11Mr. W. Howard Demarest, of Newark, N. J., for Welin.
il[r. M. H. Goldstein, of Philadelphia, Pa., and Mr. David Mandel,
of Perth Amboy, N. J. for the C. I. O.
Mr. Sanvuel R. Isard, of Newark, N. J., for the A. F. of L.
[l17-s. Augusta Spaulding, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon petition duly filed by Local #60 of the Industrial Union of
Marine and Shipbuilding Workers of America, affiliated with the
Congress of Industrial Organizations, herein called the C. I. O.,
alleging that a question affecting commerce had arisen concerning the
representation of employees of Welin Davit and Boat Corporation
and Alloy Fabricators, Inc., Perth Amboy, N. J., herein collectively
called the Companies and individually called Welin and, Alloy,
respectively, the National Labor Relations Board provided for an
appropriate hearing upon due notice before Robert H. Kleeb, Trial
Examiner. Said hearing was held at Perth Amboy, New Jersey,
on July 23, 1943. Welin, the C. I. 0., and Federal Labor Union
#22955, affiliated with the American Federation of Labor, herein
called the A. F. of L., 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. During
the course of the hearing, the A. F. of L. moved to dismiss this pro-
ceeding on the ground that a contract between the Company and
Alloy Fabricators, Inc , herein called Alloy , also served with notice , entered no appear-
ance at the hearing . The president of Alloy, called as a witness by the Board, testified
at the hearing. For reasons which appear in Section IV, below, the caption of this case
is hereby amended by deleting the name of Alloy therefrom
51 N L R B., No. 191.
1221
1222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the A. F. of L. constituted a bar to a determination of representa-
tives at this time. For reasons which appear in Section III, below,
the motion is denied. 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. TIIE BUSINESS OF WELIN
Welin Davit and Boat Corporation operates a boat yard at Perth
Amboy, New Jersey, where it is engaged in the manufacture of davits,
life boats, life saving equipment, winches, and metal containers. All
products except metal containers are manufactured for the United
States Government. Metal containers are manufactured in part for
government use and in part for private customers. During the year
1942 the value of Welin's business exceeded 14 million dollars. Ap-
proximately 90 percent of all raw materials purchased by Welin during
that period was received from points outside New Jersey, and ap-
proximately 90 percent of products finished during that period was
shipped directly or indirectly to points outside New Jersey.
Welin admits that it is engaged in commerce, within the meaning
of the National Labor Relations Act.
II. THE ORGANIZATION INVOLVED
Local #$60 of the Industrial Union of Marine and Shipbuilding
Workers of America is a labor organization affiliated with the Con-
gress of Industrial Organizations, admitting to membership em-
ployees of Welin.
Federal Labor Union #22955 is a labor organization affiliated with
the American Federation of Labor, admitting to membership, em-
ployees of Welin.
III. THE QUESTION CONCERNING REPRESENTATION
On May 21, 1942, the Regional Director for the Second Region,2
conducted a consent election among the employees of Welin to deter-
mine whether or not they desired to be represented by the A. F. of L.
On May 28 the Regional Director advised Welin that a majority of
its employees had selected the A. F. of L. as their bargaining agent.
2 At this time the territory wherein Welin's plant is located was 'sithin the Second
Region of the Board's operations Subsequently this teiritory `gas transferred to, and
presently is in, the Board 's Fourth Region.
WELIN DAVIT AND BOAT CORPORATION 1223
On June 18, 1942, Welin and the A. F. of L. entered into a written
contract covering such employees. The contract provides that it shall
remain "in full force and effect until May 30, 1943, and so on from
year to year unless and until either party hereto shall notify the other
in writing of the desire to change or terminate same at least 30 days
prior to the end of any such year."
On April 22, 1943, the A. F. of L., pursuant to the provision of the
contract noted above, advised Welin by letter of its desire to make
certain changes in the contract. This letter was received by Welin
on April 26. On April 24, Welin by letter advised the A. F. of L.
of a like desire on the part of Welin. Thereafter several bargaining
conferences were held between Welin and the A. F. of L. By oral
arrangement between them the provisions of the contract of June 18,
1942, were considered operative during their bargaining negotiations.
No written agreement was thereafter concluded between Welin and
the A. F. of L.
On June 28, officers of the A. F. of L. notified Welin by letter that
its employees had severed their relations with the A. F. of L. and
had affiliated themselves with the C. I. 0., the petitioner in this pro-
ceeding. They further advised Welin that the C. I. O. would abide by
the terms of the expired contract pending negotiations for the new
contract then under consideration, and they asked Welin to recognize
the C. I. O. as sole bargaining representative of its employees. On
June 29, Welin replied that the A. F. of L. was the recognized bar-
gaining agent of its employees pursuant to the consent election, noted
above. On July 1, the C. I. O. filed the petition in this proceeding.
The A. F. of L. contends that the automatic renewal clause in the
contract of June 18, 1942, and the oral arrangement between Welin
and the A. F. of L. that this contract should remain in operation pend-
ing the completion of the new contract operate as a bar to this pro-
ceeding. We find no merit in this contention. Both Welin and the
A. F. of L. desired to make changes in this contract and each gave
timely notice to the other to prevent the renewal clause from taking
automatic effect. As we have frequently held in other decisions, an
oral arrangement to abide by the terms of a former contract pend-
ing negotiations for the completion of a new contract does not operate
as a bar to an investigation and determination of representatives, upon
a petition of a rival union claiming to represent the employees
involved.-
A statement prepared by the Regional Director and introduced into
evidence at the hearing indicates that the C. I. O. represents a sub-
,
Matter of Daniel Binlchartsnneier Cooperage Co., 49 N. L. R. B 428, and cases cited
herein.
1224 DECISIONS OF NATIONAL LABOR RiELATIONIS, BOARD
stantial number of employees in the unit hereinafter found
appropriate'
We find that a question has arisen concerning the representation of
employees of Welin, within the meaning of Section 9 (c) and Section
2 (6) and (7) of the Act.
IV. THE APPROPRIATE UNIT
The parties agree that all production and maintenance employees
listed on the pay roll of Welin, including clerical employees in the tool-
room and storeroom, but excluding timekeepers, guards, main office
clerical employees, draftsmen, technical engineers, salesmen, superin-
tendents' clerks, subforemen and other supervisory employees above
the category of subforemen, should be included in the bargaining unit.5
The C. I. 0. and the A. F. of L. contend that the employees included
in the unit thus described, although they are listed on the pay roll of
Welin only, are in fact employees of Welin and of Alloy, and that the
Companies should, therefore, properly be named jointly as their em-
ployer in any certification of representatives issued pursuant to the
petition filed herein. Welin contends that employees in all categories
listed for inclusion in the unit are employees of Welin only.
In 1931 Welin, which was then engaged in boat building at Newark,
New Jersey, acquired the business of Alloy Fabricators, a concern
engaged in the fabrication of alloy metals next door to Welin. Welin
transferred to its pay roll all production employees formerly employed
by Alloy Fabricators, and proceeded to fabricate alloy metals as a part
of its production work. In or about 1931 Alloy Fabricators, Inc.,
herein called Alloy and named by the petitioning union as co-employer
in this proceeding, was incorporated. Whether production employees
were ever listed as employees on Alloy's pay roll is not entirely clear
from the record. At the present-time, while Alloy purports to be
engaged in the fabrication of alloy materials, stainless steel, monel,
duralium, and inconel, it employs no persons engaged in fabricating
work. It employs draftsmen and engineers who design products to be
fabricated of alloy metals. It buys products specially made to such
designs and sells such products to its customers. All articles presently
designed and sold by Alloy are fabricated in the shops of Welin by
4 The C. I. 0. submitted 448 cards , of which 400 appeared to bear genuine original
signatures of employees listed on Welin's pay roll of July 4, 1943. These cards bear dates
between May 2 and July 2, 1943. -
There are approximately 700 employees in the appropriate unit.
The A. F. of L. submitted no proof of its present representation among Welin 's employees.
As noted above, the A. F. of L. has served as their bargaining representative since May 1942.
5 Employees in categories v ithin the proposed unit were included in the contract between
the A. F. of L. and Wehn ; others except guards were excluded. So far as the record
discloses , welin did not at that time employ guards or plant-protection employees. The
s'xclusion of guards from a bargaining unit of production employees is in accord with the
Board's practice. Cf. Matter of U. S. Electrical Motors, Inc., 45 N. L. R. B. 298.
WELIN DAVIT AND BOAT CORPORATION 1225
employees on Welin's pay roll. Alloy presently lists on its pay roll
approximately eight employees, including engineers , draftsmen, sales-
men, and clerical employees. They are severally engaged in drawing
'plans for alloy fabricated products, selling alloy products, and clerical
work incidental to such occupations. All present employees on Alloy's
pay roll are therefore essentially office, as distinguished from produc-
tion, employees. Draftsmen employed by Alloy work in the same office
with draftsmen on Welin's pay roll. The records of Alloy are kept and
stored in the same office with the records of Welin. A separate room
in the offices is assigned to Alloy's sales manager . A sign upon the
plant carries the names both of Welin and of Alloy. Welin owns half
the stock of Alloy. The record does not disclose who the other stock-
holders maybe. C. L. Harkrader presently serves as president both' of
Welin and of Alloy. The record does not disclose who are the other
officers of either corporation.
The labor organizations allege that Alloy formerly both sold and
actively produced the products which are now made for it on order
by Welin's employees, and in Welin's shops; 6 that Alloy may in the
future resume active production work, and again list these production
employees on its pay roll; and that such resumption of production
work by Alloy will work hardship upon the employees included in
the unit unless both Welin and Alloy are presently named as their
employer. We find no merit in this contention. Findings of fact
made by the Board, and all conclusions deduced therefrom , are made
upon conditions disclosed by the record, and presently obtaining, in-
any given proceeding. Whenever it appears that changed conditions
impair the former findings of the Board and such findings later oper-
ate to deny to employees rights guaranteed under the Act, appropriate
proceedings may be instituted with the Board for adequate relief.7
While it is clear that Welin and Alloy have a common interest in
the alloy fabrication at Welin's plant, and certain office employees of
each share working space and are subject to similar working condi-
tions in the plant, we note that all employees included within the
agreed unit proposed as appropriate are production employees in
Welin's shops and listed only on the pay roll of Welin. The pro-
posed exclusion of all draftsmen, salesmen, and clerical employees
working at Welin's plant excludes expressly from the unit all em-
ployees listed on Alloy's pay roll as well as employees in the named
6 Section 10 of the contract between the A. F. of L. and Welm executed on June 18,
1942, provides in part : "Continuous Service" shall mean continuous employment of a person
by the company in any work, and the service records of employees of the Welin Davit and
Boat Corporation and of Alloy Fabricators Inc. at Perth Amboy, shall be recognized.
The president of Welin and of Alloy, called as witness by the Board, was unable to
explain the pertinence of Alloy's service records in determining the seniority of employees
covered by the contract.
7 Cf. Matter of Pacific Greyhound Lines, 9 N. L. R. B. 557, 565.
1226 DECISIONS OF NATIONAL LABOR RIELATION{S BOARD
categories on Welin's pay roll . For the purposes of this present rep-
resentation proceeding , therefore , we deem it inappropriate to name
Alloy as co -employer of employees in the unit which we herein find
appropriate for the purposes of collective bargaining.
The parties agree that all subforemen and all supervisory employees
above subforemen should be excluded from the bargaining unit. The
record does not disclose the extent of the authority of these employees.
We shall therefore exclude from the bargaining unit , which we now
find appropriate , subforemen and all supervisory employees with au-
thority to hire, promote , discharge , discipline , or otherwise effect
changes in the status of employees , or effectively recommend such
action.
We find that all production and maintenance employees of Welin,
including clerical employees in the toolroom and storeroom, but
excluding timekeepers , guards, main office clerical employees , drafts-
men, technical engineers , salesmen , superintendents ' clerks, subfore-
men, and all supervisory employees with authority to hire, promote,
discharge , discipline , or otherwise effect changes in the status of em-
ployees, or effectively recommend such action , constitute a unit ap-
propriate for the purposes of collective bargaining , within the mean-
ing of Section 9 (b) of the Act.
V. THE DETERMINATION OF REPRESENTATIVES
We find that the question which has arisen concerning the repre-
sentation of employees of Welin can best be resolved by an election
by secret ballot.
The A. F. of L . submitted no evidence of its present representation
among Welin's employees . Since the A. F. of L. has been the recog-
nized bargaining representative of these employees since the issu-
ance of the results of the consent election on May 28, 1942, we shall
place the name of the A. F. of L . on the ballot.
Those eligible to vote in the election shall be all employees of
Welin in the unit found appropriate in Section IV, above, 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
WELIN. DAVIT AND BOAT CORPORATION 1227
DIRECTED that, as part of the investigation to ascertain represen-
tatives for the purposes of collective bargaining with Welin Davit
and Boat Corporation, Perth Amboy, New Jersey, 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 Fourth
Region, acting in this matter as agent for the National Labor Re-
lations Board, and subject to Article III, Section 10, of said Rules
and Regulations, among all employees of Welin, 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 vacation or temporarily laid off, and in-
cluding employees in the armed forces of the United States who
present themselves in person at the polls, but excluding employees
who have since quit or been discharged for cause, to determine
whether they desire to be represented by Local #60 of the Industrial
Union of Marine and Shipbuilding Workers of America, C.J. 0., or
by Federal Labor Union #22955, A. F. of L., 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.