Globe Steamship Co.

In the Matter of GLOBE STEAMSHIP COMPANY ; BETHLEHEM TRANS- PORTATION CORPORATION; THE REISS STEAMSHIP COMPANY; THE COLUMBIA TRANSPORTATION COMPANY; THE KINSMAN TRANSIT COMPANY; THE CLEVELAND CLIFFS IRON COMPANY, MARINE DEPT.; THE PIONEER STEAMSHIP COMPANY; THE WILSON TRANSIT COM- PANY; THE INTERLAKE STEAMSHIP CO. PITTSBURGH STEAMSHIP COMPANY; GREAT LAKES STEAMSHIP COMPANY, INC.; TRITON STEAMSHIP COMPANY, THE BUCKEYE STEAMSHIP COMPANY; M. A. HANNA COMPANY; WYANDOTTE TRANSPORTATION COMPANY; RED ARRow STEAMSHIP COMPANY; ROCKPORT STEAMSHIP COMPANY, EM- PLOYERS and GREAT LAKES ENGINEERS BROTHERHOOD, INC., PETITIONER Cases Nos. 8-RC-386 through 8-RC-400,8-RC-408, and 8-RC-4f09.- Decided July 29,1949 DECISION AND ORDER Upon separate petitions duly filed,' a consolidated 2 hearing was held in these cases at Cleveland, Ohio, on March 14 through March 22, 1949, before Harry L. Browne, hearing officer. The hearing officer referred to the Board a petition in the nature of a motion made by Wyandotte Transportation Company, and separate motions made by all other Employers, to dismiss the respective petitions on the ground that the proposed units consist of individuals who are not employees within the meaning of the Act. For the reasons herein- after stated, the motions are granted. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Upon the entire record in the case the Board finds : 1. Each Employer is engaged in commerce within the meaning of the National Labor Relations Act. 1 Amended petitions were filed in Cases Nos. 8-RC-388 and 8-RC-392. 2 Wyandotte Transportation Company appeared specially and moved to dismiss the petition in Case No. 8-RC-400 on the ground, in substance , that the petition was im- properly Sled in the Board 's Eighth Region . In view of our disposition of this case it is unnecessary to pass upon this motion. 85 N. L. R. B., No. 79. 475 476 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. The Petitioner is an organization claiming to represent individ- uals within the units alleged to be appropriate. 3. The alleged questions concerning representation : The Employers are engaged in the business of transporting bulk freight by vessels on the Great Lakes. Each Employer operates a fleet of vessels ranging in carrying capacity from approximately 7,000 to 18,000 tons. The Petitioner seeks 17 separate units composed in each instance, of all assistant engineers aboard all vessels owned and/or operated by the respective Employers. The Employers contend that assistant engineers are supervisors within the meaning of the Act,3 and that therefore the proposed units are inappropriate4 The Peti- tioner disputes the Employer's contentions, asserting that assistant engineers have no supervisory powers, and are merely highly trained and skilled mechanics. The vessels operated by the Employers are steam propelled. Per- sonnel on each vessel are assigned either to the deck department, to the galley, or to the engine department. The engine department operates and maintains, among other things, the ship's boilers and propelling machinery. Because of the way in which a Great Lakes vessel is constructed, the engine department is situated, for the most part, in the stern of the ship, and constitutes, in effect, a separate segment of the vessel. The chief engineer heads the department. Sub- ject to the over-all authority of the ship's master, and except with respect to matters directly affecting navigation, speed, and direction, which must necessarily be controlled from the bridge, the chief engi- neer has complete control over the operations and the personnel within his department. In addition to the chief engineer, whom the Petitioner concedes to be a supervisor, the complement of the engine department consists of three assistant engineers, three oilers, either three or six firemen, and three coal passers. The assistant engineers serve either as a first, second, or third assistant. Like the chief engineer, they are licensed by the United States Coast Guard, and, under the law, are officers of the vessel on which they serve. To receive a license as third assistant engineer, the lowest'grade of assistant, an applicant must have worked .3 Section 2 (11) of the act provides : "The term `supervisor' means any individual having authority, in the interest of the employer, to hire, tgansfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment." ° Section 2 (3) of the Act provides in pertinent part : - "The term `employee' . . . shall not include . . any individual employed as a supervisor. . . . GLOBE STEAMSHIP COMPANY ET AL. 477 in the engine department for at least 30 months as an unlicensed crew member, and -m-ust also pass a written examination. Additional periods of service and the satisfaction of additional examinations are required to qualify as a second or first assistant engineer. Assistant engineers, unlike the unlicensed members of the engine department who are paid an hourly rate, are paid a monthly salary .5 They also enjoy privileges, such as sleeping and eating accommodations aboard ship, which are not enjoyed by the unnlicensed personnel. During the recent war, all assistant engineers were commissioned in the United States Coast Guard. Each assistant engineer is charged with definite responsibility for the operation and maintenance of specific machinery and equipment within the jurisdiction of the engine department. Thus, the first assistant engineer is responsible for the main engine, the second assist- ant for the boilers, and the third assistant for the deck machinery. This division of responsibility exists for the duration of each shipping season. Its manifestation, however, is most pronounced during the "fit-out" and "lay-up" periods of each season, when the ships are either made ready for sailing or are placed in condition to withstand the winter, nonsailing, months. During these periods, no watches are stood, and the assistant engineers, under the direction of the chief engineer and with the help of the unlicensed personnel, perform manual work on the machinery and equipment for which they are' respectively responsible. During the sailing season, the chief engineer does not stand regular watches. Each assistant engineer, however, regularly stands two 4-hour watches each day in the main engine room. On each such watch, either three or four of the -unlicensed crew members of the engine department are also present, the unlicensed personnel being permanently assigned to stand watch with either the first, second, or third assistant. The assistant engineers are in charge of these watches, with responsibility for keeping the ship's power plant and propelling machinery in operation and good repair. Thus, under their direc- tion, the oilers normally oil the machinery and watch the meters in the engine room, and the firemen and coal passers fire the boilers and check the gauges in the boiler room. Not infrequently, the assistant Assistant engineers presently receive the following monthly pay : Class A and B ships First assistant------------ $ 602. 67 Class C ships First assistant ----------- $560. 27 Second assistant---------- 481. 07 Second assistant ---------- 451. 73 Third assistant----------- 402. 13 Third assistant----------- 378. 93 O When accommodations are available, first assistant engineers are permitted to have their families accompany them on trips on the lakes. 478 DECISIONS OF NATIONAL LABOR RELATIONS BOARD engineers are themselves called upon to perform a considerable amount of mechanical labor. In the absence or incapacity of the chief engineer, the first assistant becomes the acting head of the engine department. Similarly, if the first assistant is also absent or incapacitated, the second assistant assumes that function; and, under corresponding circumstances, the position devolves upon the third assistant. The Board has previously considered the status of assistant engi- neers on Great Lakes vessels. In the Nicholson case,' decided before the amendment of the Act, and when the status of an "employee" was not denied to individuals with supervisory powers, the Board noted the admitted supervisory functions of engineers who stand watches, found that they disciplined and recommended for discharge employees serving under them, and established such engineers in a separate unit. In the Bethlehem case," also decided before the amendment of the Act, and in which all except two of the Employers herein were parties, the Board found appropriate a series of units composed of both chief and assistant engineers. .In the latter case, the Board citing the Wyandotte case; considered and rejected a contention that no unit could be found appropriate for engineers because they were super- visors and managerial employees.10 The Board's treatment of engi- neers on Great Lakes vessels as supervisors is in accord with its treat- ment of engineers throughout the maritime industry.11 The impact of the Nicholson and Bethlehem cases upon the instant proceeding is accentuated by evidence showing that the duties of assist- ant engineers and the manner of operating the Employers' vessels have not changed materially for many years.12 The decisions in those cases are, therefore, relevant to a determination of this case. However, with- 7 Matter of Nicholson Transit Company, 65 N. L. R. B. 418, decided in 1946. 8 Matter of Bethlehem Transportation Corporation, 65 N. L. R. B. 605, also decided in 7.946. 'Matter of Wyandotte Transportation Company, 62 N. L. R. B. 1518, decided in 1945. In the Wyandotte case, the Board found appropriate a unit of mates, and there reaffirmed an earlier determination that deck officers were entitled to the benefits of the Wagner Act despite their supervisory authority and managerial responsibility. 11 The Petitioner herein was also a party in the Bethlehem case. In a brief filed with the Board in that case, the Petitioner took the position that "the chief engineer and his 11 assistant are merely supervisory in capacity . . . . 11 See, for example, Matter of New Orleans Coal & Bisso Towboat Company, 71 N. L. R. B. 1441 (harbor towboats) ; Matter of Standard Oil Company of California, 67 N. L. R. B. 506 (oceangoing tankers) ; Matter of Central Barge Company, 64 N. L. it. B. 1059 (river towboats) ; Matter of Lake Tankers Corporation, 64 N. L. it. B. 281 (river boats) ; Matter of International Mercantile Marine Company, 1 N. L. It. B. 384 (oceangoing freighter and passenger ships) ; Matter of Delaware-New Jersey Ferry Company, 1 N. L. it. B. 85 (ferry- boats). lz One witness for the Petitioner stated that the duties of the unlicensed engine depart- ment personnel and of the assistant engineers have been unchanged since 1927. Another of the Petitioner's witnesses testified that there had been no changes since 1945. GLOBE STEAMSHIP COMPANY ET AL. 479 out regard to such considerations, we perceive that the supervisory status of assistant engineers at the present time is independently demonstrated by evidence adduced at the hearing in this case which fully describes the functions, duties, and powers of the assistants. This evidence discloses that considerable responsibility is delegated to the assistant engineers by virtue of their accountability for specific items of machinery, and through their position as the heads of the engine department watches. Their. responsibilities, moreover, are accompanied by a commensurate degree of control over unlicensed personnel. Thus, the record shows that assistant engineers can make effective recommendations to the chief engineer with respect to the hire, discharge, disciplining, and promotion of the unlicensed engine department personnel, and the settlement of their grievances.13 In- deed, the record indicates that the power to discharge personnel and the power to settle grievances are sometimes exercised by them di- rectly without the intervention of the chief engineer.'' A power to command, moreover, stands forth as the most funda- mental and most frequently used of the supervisory powers possessed. by the assistant engineers. Such a power is in fact inherent in their status as licensed ship's officers. It manifests itself conspicuously during their twice-daily watches as a power responsibly to direct the work of the unlicensed personnel,-for without their command power, there would be no controlling head during these Watches, since only in the unusual case does the chief engineer .take over.'-' The in- "The Petitioner's witnesses generally denied that assistant engineers possess super- visory powers. However, on cross-examination, four of the Petitioner's five witnesses each conceded that the recommendations of assistants with respect to hire, discharge, or a change affecting the status of unlicensed personnel, are followed by chief engineers. Wit- nesses called on behalf of the Employers also testified that assistants have the power to make effective recommendations. The motivation underlying this policy was explained by the Employers' witness, Rector, an assistant fleet engineer, who testified that a chief would support his assistants, whom Rector called "lieutenants," on the "basis of a good operation," and in order not to affect their authority over the unlicensed personnel. The Petitioner's witness, Kraemer, a chief engineer, stated that lie generally depends on the judgment of an assistant making a recommendation, and testified "I back np my Assistant Engineers." 14 For example, reports pertaining to the ships of The Cleveland Cliffs Iron Company, a party hereto, show that during 1948 first assistant engineers discharged 18 members of the ships' unlicensed personnel, second assistants discharged 4 members, and third assistants discharged 2 members. 15 Federal statutory law has a direct bearing upon the status of assistant engineers on Great Lakes vessels : Assistant engineers in charge of watches must be licensed by the United States Coast Guard, and are "officers" (46 U. S. C. A. Secs. 221, 222, and 224). A licensed officer, before entering upon his duties, must take oath that he will faithfully and honestly perform all the duties required of him by law (46 U. S. C. A. Sec. 231). For negligence, unskillfulness, willful violation of law, or refusal to perform official duties while employed on a vessel, an officer's license may be suspended or revoked (46 U. S. C. A. Sees. 229 and 240). The impact of the foregoing provisions upon the manner in which assistant engineers discharge their duties, and thereby necessarily direct unlicensed personnel, is attested to by the testimony of the Employers' witness, Nolan, assistant fleet engineer of Great Lakes Steamship Company, Inc., and by the testimony of the Petitioner's witness, Bruck, 480 DECISIONS OF NATIONAL LABOR RELATIONS BOARD lierent command function of the assistants is further emphasized in the practice whereby each succeeds to the position of head of the en- gine department when the officer next highest in rank is absent or incapacitated. The record shows that the exercise by the assistant engineers of the supervisory powers described above requires that they use independ- ent judgment in evaluating the performance and capabilities of the unlicensed personnel, and in coping with the varied situations arising in the engine department-many of which are directly related to the safety of their vessels and fellow crew members. The fact that assist- ant engineers may frequently be called upon to perform considerable manual labor is not incompatible with their possession of supervisory powers 16 The determination that assistant engineers possess supervisory powers is supported by a comparison of the status of the assistants with that of mates aboard Great Lakes vessels, whom the Board in the recent Wilson Transit case,17 found to be supervisors. In addition to the engineers, the other licensed officers aboard each of the Employers' ships are the master and three mates.,, The record shows that mates are officers of the deck department, receiving substantially the same pay as the assistant engineers, and enjoying similar privileges and accommodations. Like assistant engineers, mates were commissioned in the United States Coast Guard during the recent war. Aboard ship, they perform manual labor, and are in charge of watches with approxi- mately the same number of unlicensed crew members under their di- rection as stand watch with assistant engineers. In the performance of their duties, mates transfer, relieve from duty, and responsibly direct the work of unlicensed personnel, and also effectively recommend their discharge and promotion.- Upon such a state of facts, it appears, therefore, that assistant engineers in the engine department are the supervisory counterparts of mates in the deck department. a first assistant engineer . Nolan testified that an assistant engineer who knowingly retained an incompetent or negligent man on his watch would , if disaster resulted, be subject to having his license suspended or revoked . Bruck testified that he would compel an oiler to carry out his instructions with respect to the operations of the boilers of his ship because, in the event of neglect of duty on the part of the oiler and resulting damage to the boilers, the assistant would be held liable. 1s See Matter of The Wilson Transit Company , of at., 80 N. L. R. B . 1476; Matter of The Murray Company, 77 N. L. R. B. 481 ; Matter of Steelweld Equipment Company, Inc., 76 N. L. R. B. 831. 1' Matter of The Wilson Transit Company, et al., 80 N. L. R. B. 1476 , decided in Decem. ber 1948. IS A steward , who is not a licensed officer , is in charge of the ship' s galley . Stewards on Great Lakes vessels have previously been held to be supervisors . Matter of Kins- man Transit Company, 75 N. L. R. B. 150 ; Matter of M. A. Hanna Company, 75 N. L. R. B. 185 ; Matter of Wilson Transit Company, 75 N.. L. R. B. 181. 19 See Matter of The Wilson Transit Company, et al., 80 N. L. R . B. 1476. GLOBE STEAMSHIP COMPANY ET AL. 481 For the foregoing reasons, and upon the entire record, we find that assistant engineers are supervisors as defined in the Act. We con- clude, therefore , that no question affecting commerce exists concerning the representation of employees of the Employers , within the mean- ing of Section 9 (c) (1) and Section 2 (6) and (7) of the Act. Accord- ingly, we shall dismiss the petitions. ORDER IT IS HEREBY ORDERED that the petitions herein be, and they hereby are, dismissed. MEMBER HOUSTON took no part in the consideration of the above Decision and Order.