B and C Stevedoring Co., Inc.

In the Matter of B AND C STEVEDORING CO., INCORPORATED and INTER- NATIONAL LONGSHOREMEN'S ASSOCIATION (AFL) Case No. 10-RC-727.-Decided January 30, 1950 DECISION AND DIRECTION OF ELECTION Upon a petition duly filed, a hearing was held before Gilbert Cohen, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed.' Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman Herzog and Members Houston and Murdock]. Upon the entire record in this case, the Board finds : 1. The Employer, a Florida corporation, is engaged in stevedoring at Tampa, Florida, for Hamilton Brothers, Inc. Hamilton Brothers, Inc., also a Florida corporation, is engaged in the wholesaling of bananas and coconuts. During the past year, Ham- ilton Brothers, Inc., purchased bananas and coconuts, amounting in value to more than $100,000, over 90 percent of which originated in points outside Florida. During the same period, Hamilton Brothers, Inc., shipped bananas and coconuts, amounting in value to more than $100,000, over 90 percent of which was shipped to points outside Florida. During the period from January 1, 1949, through August 31, 1949, the Employer unloaded for Hamilton Brothers, Inc., 123 ships con- taining cargoes, mainly of bananas and coconuts, amounting in value to more than $50,000, all of which originated in points outside Florida. During the same period, the Employer loaded 39 ships for Hamilton Brothers, Inc., with cargoes. mainly of general merchandise, amount- ing in value to more than $25,000, all of which was shipped to points outside Florida. We find, contrary to the Employer's contention, that the Employer is engaged in commerce within the meaning of the Act.2 After the close of the hearing, the Employer filed a motion to dismiss the petition herein. For reasons indicated below, the motion is denied. Z N. L. R. B. v. Fainblatt, et al., 306 U. S. 601. 88 NLRB No. 77. 321 322 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. The labor organization involved claims to represent certain employees of the Employer. 3. A question affecting commerce exists concerning the representa- tion of employees of the Employer within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act.,' 4. The following employees of the Employer constitute a unit appro- priate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act: All employees' engaged in loading or unloading vessels in or about the port of Tampa, Florida, excluding the bookkeeper, messenger boy, and clean-up man,' and the foreman 6 and other supervisors. 5. The Employer hires its employees from a general labor pool on which its competitors also draw for stevedoring work. The Employer hires its workmen on a day-to-day basis until a particular job is com- pleted. The same workman may work for other stevedoring companies during any weekly or monthly period of time. The parties disagree with respect to the eligibility of these workmen to vote in the election among the Employer's employees. The Employer contends that any employee whose name appears on its daily payroll at least once in each of any 8 weeks during the 6- month period preceding September 14, 1949, the clay of the filing of the petition herein, and who, during the same 6-month period, has not worked for any other employer in the Tampa area 4 more times than for the Employer, should be eligible to vote in the election directed below. The Petitioner agrees that the 6-month period preceding September 14, 1949, should be used in determining eligibility to vote in this election, but contends that any employee whose name appears 3 We find no merit in the Employer's contention that the Petitioner cannot maintain a representation proceeding at this time, either because the Petitioner does not represent an adequate number of the Employer's employees or because the Petitioner, before the peti- tion was filed, failed to make an unequivocal demand for recognition as exclusive bargain- ing representative of the Employer's employees. It is well established that adequacy of representative interest is an administrative matter, not litigable by the parties. Decker Clothes, Inc., 83 NUTS 484. At the hearing, the Employer refused to recognize the Petitioner. Advance Pattern Company, 80 NLRB 29 ; J. I. Case Company, 80 NLRB 223. ' The Employer classifies its employees as laborers. They perform the usual functions of stevedores, classified in the industry as stackers, beltmen, lioldmen, fruit cutters, gang- headers, breakout men, checkers, water boys, riggers, and winchmen. As the record clearly shows that checkers perform only routine duties, we find that they are not professional employees. I'1'he so-called clean-up man is employed by the Employer's president for work on his farm. Sometimes he removes refuse from the holds of vessels on which the employees of the Employer have been working and transfers the refuse to the president's farm. Be- cause his occasional work for the Employer is merely incidental to his regular farm work, we shall exclude the so-called clean-up man from the unit of stevedores. fi The foreman hires employees for the Employer and hence is a supervisor within the meaning of the Act. Our records show that the Petitioner has filed with the Board other petitions for certification of representatives involving employees of other employers in the Tampa area, which draw their stevedore employees from the same general labor pool. B AND C STEVEDORING CO., INCORPORATED 323 on the Employer's daily payroll more than eight times during this 6-month period should be eligible to vote. The Employer carries its employees on a daily payroll, which reaches its employment peak during the months of June, July, and August. If employment during the 6-month period, preceding Sep- tember 14, 1949, be used in determining eligibility, both persons hired by the Employer after the filing of the instant petition and persons currently employed by the Employer for a substantial time who did not happen to work for the Employer eight times within the stipu- lated period, who might otherwise be entitled to vote under our general eligibility policy, would be precluded from voting in the election directed below. To limit eligibility to vote in an election among the Employer's employees to those who have worked more times for the Employer than for its competitors in the Tampa area during the 6-month period, as the Employer suggests, may deprive employees who have a significant and substantial interest in collective bargaining with the Employer of an opportunity to share in the selection of their bargaining representative. Upon the entire record in the case, we are of the opinion that all employees in the appropriate unit whose names appear on eight or more different payrolls of the Employer within the period beginning June 1, 1949, and ending with the date of the payroll immediately preceding the issuance of this Decision and Direction of Election, should be eligible to vote, and we so provide.' DIRECTION OF ELECTION As part of the investigation to ascertain representatives for the pur- poses of collective bargaining with the Employer, an election by secret ballot shall be conducted as early as possible, but not later than 30 days from the date of this Direction, under the direction and super- vision of the Regional Director for the Region in which this case was heard, .and subject to Sections 203.61 and 203.62 of National Labor Relations Board Rules and Regulations, among the employees in the unit found appropriate in paragraph numbered 4, above, who were employed during the period and under the conditions described in paragraph numbered 5, above, but excluding those employees who have since quit or been discharged for cause and have not been rehired or reinstated prior to the date of the election, and also excluding em- ployees on strike who are not entitled to reinstatement, to determine whether or not they desire to be represented, for purposes of collective bargaining, by International Longshoremen's Association (AFL). 'Cf. American Fruit and Steamship Company, 88 NLRB 207 ; and Crenshaw Bros. Produce Company, 88 NLRB 324. 882191-51-22