Nicholson Terminal & Dock Co.

In the Matter of NICHOLSON TERMINAL & DOCK Co. and INDUSTRIAL UNION OF MARINE & SHIPBUILDING WORKERS OF AMERICA, C. I. O. Case No. R-5106.-Decided May 7,1943 Mr. Frederick P. Mett, for the Board. Foster c1 Lott, by Mr. Thomas L. Lott, of Detroit, Mich., andMr. H. H. Parsons, of Ecorse, Mich., for the Company. Mr. Gerald Millen, of Detroit, Mich., for the C. I. O. Mr. T. E. Pelz, of Detroit, Mich., for Boilermakers. Mr. Charles E. Wright, and Mr. Henry J. Murphy, both of Detroit, Mich., for the Machinists. Mr. A. Sumner Lawrence, of counsel to the Board. DECISION AND , - DIRECTION OF ELECTIONS STATEMENT OF THE CASE - Upon petition duly filed by Industrial Union of Marine and Ship- building, Workers of America, C. I. 0., herein called the C. I. 0., alleging that a question affecting commerce had arisen concerning the representation of employees of Nicholson Terminal & Dock Co., Ecorse, Michigan, herein called the Company, the National Labor Relations Board provided for an appropriate hearing upon due notice before Charles E. Parsons, Trial Examiner., Said hearing was held at Detroit, Michigan, on April 2, 1943. The Company, the C. I. 0., International Brotherhood -of Boilermakers, Iron Shipbuilders and Helpers, of America, affiliated with the A. F. of L., herein called the Boilermakers, and International Association of Machinists, District No. 60, affiliated with the A. F. of L., herein called the Machinists, appeared, participated, and were afforded full opportunity to be heard, to examine and cross-examine witnesses, aiid 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. Upon the entire record in the case, the Board makes the following : 491\' L. It. B., No. 83. 582 NICHOLSON TER'MIINAL & DOCK CO. FINDINGS OF FACT I. THE BUSINESS OF THE COMPANY 583 Nicholson Terminal &,Dock Co., a Michigan corporation, has its principal place of business in Ecorse, Michigan, where it operates a fuel dock and lake shipping terminal and is engaged in the gen- eral business of loading and unloading of ships, temporary storage .of freight, and ship repair work. During the winter season, the Company has its machine shop devoted almost 90 percent-to marine contract work and also operates its fuel yard as a domestic fuel yard. During the year 1942, the Company had an unusual volume of business in its ship repair department due to its acceptance of several contracts for the conversion of lake ships for ocean service. As a general rule, the materials unloaded by the Company at its dock have their point of origin outside the State of Michigan. The Company loads and unloads substantial quantities of coal, all of which is obtained from points outside the State of Michigan. II. THE ORGANIZATIONS INVOLVED Industrial Union of Marine & Shipbuilding Workers of America, is a labor organization affiliated with the Congress of Industrial Organizations, admitting to membership employees of the Company, International Brotherhood of Boilermakers, Iron Shipbuilders and Helpers of America, is a labor organization affiliated with the Amer- ican Federation of Labor, admitting to membership employees of the Company. International Association of Machinists, District No. 60, is a labor organization affiliated with the American Federation of Labor, ad- mitting to membership employees of the Company. _ International Longshoremen's Association, Local 1324, is a labor organization affiliated with the American Federation of Labor, admit- ting to membership employees of the Company.' III. THE QUESTION CONCERNING REPRESENTATION On or about December 17, 1942, a group of employee represent- atives informed the Company that the employees had taken a straw vote which indicated that they were divided between the C. I. O: and several other labor organizations, and that they no longer wished to continue the bargaining agreement outstanding between the Com- pany'and the I. L. A. Thereafter, the Machinists submitted to the 'While the 'International Longshoremen 's Association, herein called the I: L. A., did not appear at the hearing, we find that it is an interested party by virtue of the col- lective bargaining agreement hereinafter referred 'to. i 584 DECISIONS OF NATIONAL LABOR RELATION S BOARD Company a proposed, contract covering the machine workers of the Company. The Company, however, declined to negotiate with the Machinists upon being informed that the C. I. O. had filed a peti- tion for investigation and certification of representatives. At the hearing, the Company contended that the present proceed- ing was barred by reason of its contract with the I. L. A. The con- tract, the last of a series between the Company and the I. L. A., is a closed-shop agreement dated January 31, 1942, with a provi-, sion that if notice of a desire to negotiate a modification of the contract or a different contract, to be effective after January 31, 1943, is not given on or before December 31, 1942, the contract will continue in effect until January 31, 1944. Since the record discloses ,not only that the Company received formal notice from the I. L. A. of a desire to negotiate a new contract within the aforesaid provi- sion, but also that on or about the same date the Company accepted a proposal of the Machinists to negotiate a separate contract for the machinists notwithstanding that the latter were included under the contract with the I. L. A., we find that the contract is not a bar to the present proceeding since the contract has either expired according to its terms or has been abrogated by mutual consent of the parties thereto. A statement of the Regional Director, together with other evi- dence introduced at the hearing, indicates that the C. I. O. and the Machinists represent a substantial number of employees in the unit claimed by each to be 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 National Labor Relations Act. - IV. THE APPROPRIATE UNITS; THE'DETE IMINATION OF REPRESENTATIVES ,The C. 1. 0. contends that the appropriate unit should consist of all hourly rated employees exclusive of supervisory employees, clerical 1 employees, and guards. This is substantially the same unit as that in effect under the contract between the Company and the I. L. A. 2 The Regional Director reported that the C . I. O. had submitted 73 signed authoriza- tion cards of which 47 were dated between January 1 , 1943, and April 1, 1943, and 26 undated; that of the 73 cards, 70 have the apparently genuine original signatures of persons whose names are on the Company 's pay roll of February - 9, 1943, containing 108 names uithin the alleged appropriate unit. The Regional Director further reported that the Machinists had submitted 17 signed authorization cards, dated between October 1, 1942, and January 1 , 1943; that of the 17 cards, 13 bore the apparently genuine original signatures of persons whose navies are on the Company's pay roll of February 9, 1943, containing 16 names within the unit alleged to be appropriate by the Machinists. - The Regional Director further reported that no evidence of representation was received from` ether _ the'.Boilermakers or the I. L. A. As noted "above the I. L A. has had a contract with - the Company. ANICHO SON TE•RM'INAL & DOCK CO. 585 The Boilermakers contends for a similar unit comprising the em- ployees covered by the contract between the Company and the I. L. A., excluding, however, the stevedores and machinists. The Machinists urges a separate unit for all hourly paid machine workers both inside and outside the machine shop, including foremen if paid on an hourly basis. While some of the machinists do outside work repairing cranes and equipment throughout the yard, the machinists generally are confined to the machine shop and do work which has no connection with the dock itself. Moreover, the machinists, contrary to the practice of the plant for other classifications of employees, do not do work other than their own when operations in the machine shop become slack. At the present time, practically all the machinists are members of the, Machinists' Local. Prior to the series of contracts between the Company and the I. L. A., the Machinists had a separate oral agreement with the Com- pany on the subject of wages. While they subsequently approved the industrial unit of the I. L. A., the machinists reasserted their right to separate representation in October of 1942, when they signed authoriza- tion cards for the Machinists' Local, at which time a representative of the Machinists negotiated with the president of the I. L. A. for a trans- fer of the machinists' members. The I. L. A. in substance relinquished jurisdiction over the machinists and has not represented them since about October 1942. More recently on the occasion of the straw vote taken by the I. L. A. and the subsequent conference with the Company on December 17, 1942, the machinists neither participated nor were represented therein for the reason that they were being represented by the Machinists' Local, of which they were already members. We are of the opinion that the considerations are sufficiently balanced to make the desires of machinists themselves controlling in our deter- mination of the type of unit through which they shall bargain.3 We shall, accordingly, grant. the machinists an opportunity to determine whether they desire to be represented for the purposes of collective bargaining by the Machinists, the C. I. 0., or by neither labor organi- zation. In the event that a majority of the machinists select the Ma- chinists' Local, this group will constitute a single appropriate unit. If, on the other hand, the machinists select the C. 1. 0. and that organi- zation is also the choice of the remaining employees, the machinists will be merged in and become part of the industrial unit. We shall, however, notwithstanding the request of the Machinists, exclude from the machinists' voting group all foremen who act in a supervisory capacity or have the right either to hire or discharge employees or to recommend such action. ' See Matter of the Goodyear Aircraft Corporation and Pattern Makers League of North America (AFL),•45 N. L. R. B. 298. 586 DECISIONS OF NATIONAL. LABOR RELATIONS BOARD There remains for consideration the question as to what, if any, exclusions shall be made from the industrial unit. In this respect, the C. I. O. would exclude only supervisory employees, clerical em= ployees, and guards' On the other hand, the Boilermakers would also exclude stevedores. While it appears that stevedores are now em- ployed by the Company in fewer numbers than formerly we see no reason why this group which has previously been included in the industrial unit and for whom no other labor organization is at present contending should be deprived of the opportunity to bargain collec- tively through representatives of their choice. We shall, accordingly, include stevedores within the industrial unit. We'find that all hourly rated employees other than machine workers, but excluding supervisory employees, clerical employees, and guards, may constitute a unit appropriate for the purposes of collective bar- gaining within the meaning of Section 9 (b) of the Act. We shall, however, make no definite determination of the appropriate unit or units at this time pending the result of the separate elections herein- above referred to. We find that the questions concerning representation which have arisen can best be resolved, by means of elections by secret ballot among the employees in the aforesaid groups who-were employed during the pay-roll period immediately preceding the date of the Direction of Elections herein, subject to, the limitations and additions set forth in the Direction. In view of the fact that the Boilermakers has made no showing of-representation among employees of the Com- pany, we shall not accord the Boilermakers a place upon the ballot in the election among the employees other than machinists. Since the I. L. A. has recently represented these employees pursuant to con- tract, we shall accord it a place on the ballot. 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 Nicholson Termi- nal & Dock Co., Ecorse, Michigan, elections by secret ballot shall be conducted as soon as possible, but not later than thirty (30) days from the date of this Direction, under the direction and supervision of the Regional I Director for, the Seventh 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 following groups of employees who were employed during the pay-roll period i NICHOLSON' TERMINAL & DOCK CO. 587 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 employees who have since quit or been 'discharged for cause. - 1. All hourly rated employees other than machine workers , employed by the- Company at its Ecorse, Michigan, plant, but excluding super- visory employees , clerical employees , and guards, to determine whether they desire to be represented by Industrial Union of Marine and Shipbuilding Workers of America, C. I. 0., or by International Long- shoremen's Association , Local 1324, A. F. L., for the purposes of collective bargaining, or by neither. 2. All hourly rated machine workers, employed by the Company at its Ecorse, Michigan , plant, but excluding foremen who act in a supervisory capacity or have the right to hire or discharge employees or to recommend such action to the Company , to determine whether they desire to be represented by International Association of Machin- ists, District No. 60, A. F. L., or by Industrial Union of Marine and Shipbuilding Workers of America , C. I. 0., for the purposes of col- lective bargaining , or by neither. i