Waterfront Employers Association of the Pacific Coast

In the Matter Of WATERFRONT EMPLOYERS ASSOCIATION OF THE PACIFIC COAST, WATERFRONT EMPLOYERS ASSOCIATION OF CALIFORNIA, WATER- FRONT EMPLOYERS OF WASHINGTON, WATERFRONT EMPLOYERS OF PORTLAND, MATSON TERMINALS, INC., ET AL., EMPLOYERS and INTER- NATIONAL LONGSHOREMEN'S AND WAREHOUSEMEN'S UNION, CIO, PETITIONER Case No. 90-R-1615.-Decided September 28, 1946 Mr. Thomas J. Davis, Jr., for the Board. Messrs. Gregory A. Harrison-and Richard Ernst, of San Francisco, Calif., for the Coast Association; Pacific Mail Steamship Company; and, in association with Mr. Lee G. Paul, of Los Angeles, Calif., for the California Association. Brobeck, Phleger ct Harrison, by Mr. Richard Ernst, of San Fran- cisco, Calif., for Matson Terminals , Inc.; Norton, Lilly & Co.; Pacific Port Service Company; Seaboard Stevedore Company of Washing- ton; Marine Terminals Corporation; Marine Terminals ,Corporation of Los Angeles; Seaboard Stevedoring Corporation; Long Beach Stevedore & Terminal Company; Marine Agencies, Ltd.; and, in association with Cooper, White ct Cooper, by Mr. Edwin T. Cooper, of San Francisco , Calif., for Metropolitan Stevedore Company and California Stevedore & Ballast Co. Messrs. Herman Phleger and Richard Ernst, of San Francisco, Calif., for Matson Navigation Company and Oceanic Steamship Com- pany. Messrs. Moses Lasky and Richard Ernst, of San Francisco, Calif., for American-Hawaiian Steamship Company. Messrs. James S. Moore, Jr., and Richard Ernst, of San Francisco, Calif., for Oliver J. Olson & Co. - Mr. Richard Ernst, of San Francisco, Calif., for Henry S. Gerland, d/b/a General Stevedore & Ballast Company, and Outer Harbor Dock & Wharf Co. Mr. Samuel L. Holmes, of San Francisco, Calif., for Pacific Steve- doring & Ballasting Company and Golden Gate Terminals. Messrs. Edward F. Treadwell and Reginald S. Lauthlin, of San Francisco, Calif., for American President Lines, Ltd., and, in associa- tion with Lillick,'Geary, Olson & Charles, by Messrs. James L. Adams and Harold S. Dobbs, of San Francisco , Calif., for Associated-Ban- ning Company. Wright cC McKeon, by Mr. William E. Wright, of San Francisco, Calif., for Moore-McCormack Lines, Inc.; Hammond Lumber Co.; Hammond Shipping Co.; and East Asiatic Co., Inc. 71N L.R B, No 14 80 WATERFRONT EMPLOYERS ASSOCIATION OF THE PACIFIC COAST 81 L. R. Weinmann and H. Moffitt, by Mr. Oliver Fenstermacher, of Oakland, Calif., for Flood Bros. Pillsbury, Madison t Lutro, by Mr. M. E. Mensor, of San Francisco, Calif., for Encinal Terminals. Mr. Russell A. Mackey, of San Francisco, Calif., for United States Lines and Panama Pacific Line. Hagar, Crosby ct'Crosby, by Mr. Gerald Hagar, of Oakland, Calif., for Howard Terminal. Williamson d Wallace, by Messrs. W. R. Wallace and W. R. Ray, of San Francisco, Calif., for Grace Line, Inc.; Johnson Line; El Dorado Oil Works, W. R. Grace & Co.; San Francisco Stevedoring Co.; Mitchell Stevedore Co.; and El Dorado Terminals Company. Dorr, Stevenson cC Cooper, by Mr. Jay T. Cooper, of San Francisco, Calif., for Luckenbach Gulf Steamship Co.; Luckenbach Steamship Co.; and Williams, Diamond & Co. Lillick, Geary, Olson cC Charles, by Messrs. James L. Adams and Harold S. Dobbs, of San Francisco, Calif., for the companies listed below.' Bogle, Bogle ct Gates, by Messrs. Edward G. Dobrin and Richard Ernst, of San Francisco, Calif., for the companies listed below' Bogle, Bogle & Gates, by Mr. Edward G. Dobrin, of Seattle, Wash., for the Washington Association, and the companies listed below.3 'Arrow Stevedoring Company ; Northern California Terminals ; W. M. Chamberline & Co ; French Line ; General Steamship Corporation , Ltd. ; James Griffiths & Sons, Inc Kerr Steamship Co, Inc. ; Klaveness Line ; Sudden & Christenson , Inc.; Transatlantic Steamship Co, Ltd ; Westfal-Larsen Line ; E. K. Wood Lumber Company ; Consolidated Olympic Line , Kingsley Company of California ; Willapa Harbor Stevedoring Co. ; J. C Strittmatter, d/h/a Consolidated Ste:nnship Company; Schirmer Stevedoring Company; Pope & Talbot, Inc ; Jones Stevedoring Company ; and Arrow Line. 2 Alaska Transportation Company, American Hawaiian Steamship Co ; American Mail Line, Ltd Anglo-Canadian Shipping Co.; Baker Dock Co , J M Baxter & Co. ; Blue Star Line, Inc , Border Line Navigation Co ; Brady-Hamilton Stevedores , Inc ; Burns Steam- ship Company ; City Dock Co ; Consolidated Olympic Line ; Dodwell & Co , Ltd ; The Donaldson Line , Ltd ; Fruit Express Line ; Furness (Pacific ), Ltd. ; General Steamship Corp, Ltd.; GirdR ood Shipping Company; Great Northern Railway Co ; James Griffiths & Son, Inc ; Hammond Lumber Company ; Hammond Shipping Co , Ltd.; Inter-Coastal Packing Co ; International Shipping Co. ; Interocean Steamship Corp. , Johnson Line ; Kerr Steamship Co, Inc. ; Kingsley Company of California; Klaveness Line; Leslie Salt Company; Luckenbach Gulf Steamship Company, Knutsen Line ; J Lauritzen Line ; J. J. Moore & Co, Inc ; Norton, Lilly & Co ; Oliver J Olson & Co ; Olympia Steamship Co, Inc , Pacific-Atlantic Steamship Co. ; Pacific Ports Service Co ; Pacific Republic Line; Royal Mail Lines , Ltd., Salmon Terminals , Inc ; C. F. Sharp & Co, Inc Steamers Service Co Union Sulphur Co , Frank Waterhouse & Co of Canada, Ltd , Westfal-Larsen Co Line, Weyerhonser Steamship Company 3 Arlington Dock Company ; Alaska Steamship Company; Ames Terminal Company; Baker Dock Company ; Bellingham Contracting and Stevedoring Co. Brady-Hamilton Stevedores , Inc. ; City Dock Co. ; Coastal Steamship Company, Deming-Robert & Williams, Inc. ; Everett Stevedoring Co., Inc ; W. R Gracy & Co. , Grays Harbor Stevedoring Co Griffiths & Sprague Stevedoring Company, Inc ; Luckenbach Steamship Co , H E Mansfield, Inc ; Matson Terminals , Inc.; Pope & Talbot (McCormack Steamship Co ), now Pope & Talbot Lines ; Newsprint Service Co. ; Northland Transportation Company , Northern Stevedores, Inc ; Olympia Stevedoring Co ; Olympic Peninsula Stevedoring Co ; Puget Sound Stevedoring Co ; Quern Terminal & Stevedoring Co ; Rothschild -International Stevedoring Co , Seaboard Stevedoring Corp. of Washington , Shaffer Terminals, Inc Tait Stevedoring Co , Twin Harbor Stevedoring & Tug Co ; Washington Stevedoring Co Williams, Diamond & Co ; and Western Stevedoring Co. 82 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Krause c6 Evans, by Messrs. Gunther F. Krause and Richard Ernst, of San Francisco, Calif., for the companies listed below 4 Mr. Gunther F. Krause, of Portland, Oreg., for the Portland Asso- ciation, and the companies listed below.5 Gladstein, Andersen, Resner, Sawyer & Edises, by Mr.- Richard Gladstein, of San Francisco, Calif., and Messrs. Henry Schmidt and Cole Jackman, of San Francisco, Calif., for Petitioner. Mr. John Geisness, of Seattle, Wash., for the ILA, Local 38-114. Mr. Seymour Cohen, of counsel to the Board. DECISION DIRECTION OF ELECTIONS AND ORDER STATEMENT OF THE CASE Upon a petition duly filed, hearing in this case was held before Arthur Leff, hearing officer, at San Francisco, California, on various dates between March 20, and May 6, 1946; G at Los Angeles, California, on May 9, and 10, 1946; at Seattle, Washington, on May 14, 15, and 16, 1946; and at Portland, Oregon, on May 20 and 21, 1946. During the course of the hearing, a number of.motions for dismissal were made, composed of the following general groups : (I)- motions by employer associations to dismiss the petition as against them on the ground that they are not "employers" within the meaning of the Act; (2) motions by various companies to dismiss the petition as to them on the ground that walking bosses are not "employees" within the meaning of the Act; and (3) motions by various companies to dismiss the petition as against them on the ground that they do not employ walking bosses. The hearing officer referred these motions to the Board. The petition will be dismissed as to all companies named in the petition which are not listed in Appendices A, B, C, and D, on the ground that they do not employ walking bosses or are not members of one or more of the employer associations. For reasons hereinafter stated, all motions 4 Brady-Hamilton Stevedores, Inc. ; W. J. Jones & Son , Inc. ; Longview Stevedoring Com- pany ; Luckenbach Steamship Company , Inc. ; Pope & Talbot, Inc.-McCormack Steamship Division ; Oregon Stevedoring Company ; Portland Stevedoring Company ; Seaboard Steve- doring Corporation ; Williams, Diamond & Company ; Interstate Terminals ; Albina Dock Co. ; and Independent Stevedore Company. Brady -Hamilton Stevedores , Inc. ; W. J. Jones & Son, Inc. ; Linnton Terminals ; Long- view Stevedoring Co.; Luckenbach Steamship Company ; Pope & Talbot-McCormack Steam- ship Division ; Oregon Stevedoring Co.; Portland Stevedoring Co.; Seaboard Stevedoring Corporation of Washington ; West Oregon Terminals ; Williams, Diamond & Company ; Independent Stevedoring Company, Interstate Terminals ; and Albina Dock Co. 6 The hearing was held before John Paul Jennings , hearing officer, on March 20, 1946. WATERFRONT EMPLOYERS ASSOCIATION OF THE PACIFIC COAST 83 to dismiss made by companies listed in these Appendices, which do em- ploy walking bosses and are members of one or more of the employer associations, together with all motions to dismiss made by the em- ployer associations, are hereby denied. The hearing officer denied mo- tions made by various companies for (1) a severance of the proceeding with respect to them (2) a transfer of the case to other Board Regions; and (3) preliminary hearings prior to a general hearing on issues raised by other motions. We have reviewed these rulings and find that they, as well as all other rulings made by the hearing officer at the hearin0% are free from prejudicial error. They are hereby affirmed. Oral argwnent was heard before the Board at Washington, D. C., on Augnut, 22, 1946. The alleged denial of due process Certain of the companies and the employer associations contend that they have been denied due process of law by this proceeding in that (1) timely notice was not given prior to the hearing; ( 2) the issues were not clearly presented; (3) a proper hearing was not afforded to all parties; and (4) there was an improper joinder of parties. We find no merit in these contentions. An amended petition was filed with the Board on February 28, 1946, in which Petitioner set forth in the usual form the employers of the eniployees wlioln it sought to represent and the bargaining unit which it alleged to be appropriate. A Notice of Hearing thereon was issued by the Board on March 6, 1946, and the hearing was opened of March 26,1946. Sonie dispute having arisen concerning the companies which actually employed the employees sought to be represented, the hearing, on March 20, 1946, was adjourned to April 3, 1946. On March 27, 1946, the Petitioner filed a second amended petition, omitting sonic of the companies named in its first amended petition, setting forth rea- sons why it considered its original unit contention to be appropriate, and presenting an alternative unit contention. An amended Notice of Hearing on this petition was issued on March 28, 1946, giving notice that the hearing would resume on April 3, 1946, the date previously fixed. A third amended petition was filed on April 8, 1946, in which Petitioner set forth a supplemental list of 27 direct employers of those employees whom it sought to represent. The Board's second amended Notice of Hearing on this petition was issued on April 9, 1946, setting the hearing date for April 15, 1946. From *these facts. we conclude that the parties were given proper and timely notice. Petitioner has, from the filing of its first petition, made clear its primary position on the unit which it claims to be appropriate and the employees ' whom it seeks to represent in that unit. The alternative 0 84 DECISIONS OF NATIONAL LABOR RELATIONS BOARD position taken by it in its second amended petition, and which it urged only in the event the Board found its primary contention untenable, was not a substantial departure from its original position, but merely a modification thereof.' It is true that of the 200 odd companies named by Petitioner in its petition as amended, only about 60 were ultimately shown to be mem- bers of one or more of the employer associations and direct employers of the supervisory employees sought to be represented. However, it was agreed by Petitioner early in the hearing that it would not oppose dismissal of the petition as to those companies which the record did not affirmatively show were concerned in this proceeding. Further- more, there was at no time any serious dispute over the particular classifications of employees sought to be represented, several minor questions, involving relatively few employees, arising because of some differences in area practice and nomenclature. The companies and employer associations maintain that the com- panies doing business in one port or area are entitled to a full hear- ing in that area with respect to all the issues created by the petition and that, for the convenience of the parties and their witnesses, four independent and complete hearings should have been held. The fail- ure of the Board to do so, and the denial by the hearing officer of a number of motions made by various companies for severance of the proceeding as to them and its transfer to other areas, it is contended, amounted to a denial of due process." The motions for severance and transfer were denied without prejudice to the right of the moving parties to make further application, upon a sufficient showing that the convenience of witnesses or parties could be promoted thereby, for leave to take testimony of material witnesses at other ports. Although no such applications were made, the hearing officer, on his own mo- tion, arranged for the hearing to be held at each of the ports to which a transfer was requested. Under the plan followed by the hearing of- ficer, the case as a whole, except as to certain area aspects, was heard 7 The first amended petition alleged as appropriate a unit consisting of all ship, dock. and walking bosses who work in the Pacific Coast ports of the United States for the com- panies which are members of the several regional employer associations Petitioner 's alter- native position seeks as appropriate separate units, each coextensive with the area over which each employer association exercises jurisdiction. 8 As authority for this position, the companies and employer associations cite N. L. R B. v. Prettyman, 117 F. (2d) 786, 790 (C C. A. 6), where the court, in finding the Board's hearing as "not comporting with the standards of fairness inherent in procedural due process," said: It was not intended that those affected by the Act should be penalized by being re- quired to travel and transport witnesses unreasonable distances to attend hearings pursuant to complaint . . . That case is clearly distinguishable on its facts . There the Board, after the holding of a hearing on its complaint had been enjoined by a Michigan Circuit Court , instituted a new proceeding based on the same charges and held the hearing thereon in Washington, D. C., admittedly to avoid interference by the State Courts of Michigan. 0 WATERFRONT EMPLOYERS ASSOCIATION OF THE PACIFIC COAST 85 in San Francisco, California, between April 3 and May 6,1946. There- after, the hearing was held in Los Angeles, California, on May 9 and 10, 1946, in Seattle, Washington, on May 14 to 16, 1946, and in Port- land, Oregon, on May 20 and 21, 1946, for the purpose of taking testimony in those respective areas as to (1) the companies operating therein who were direct employers of the employees sought to be rep- resented; (2) positions on unit inclusions and exclusions; and (3) any other pertinent issues which the companies in the respective areas wished to present. It is to be noted also that counsel for the great majority of the companies and the employer associations participated in the hearing in all four cities. Finally, the companies and employer associations urge that there has been an improper joinder of parties. Such joinder was prejudi- cial error, they insist, (1) as to the large number of companies who were not shown to be direct employers of the employees sought to be represented and to the four employer associations who, it is alleged, are not employers of those employees, inasmuch as they were obliged to participate in this lengthy proceeding or risk being involved in an erroneous certification; and (2) as to those companies which were shown to be direct employers of the supervisory employees sought, inasmuch as an orderly, fair, and expeditious hearing as to them was thereby prevented. And there was a further denial of due process, it is contended, by refusing to sever the proceeding as to the companies which were shown to be direct employers, because the only basis for joining them would be their participation, directly or indirectly, in the activities of the Waterfront Employers Association of the Pacific Coast, which association, it is alleged, is not an employer within the meaning of the Act of the employees herein sought to be represented. In the light of the above circumstances and the entire record, we are convinced, and find, that the conduct of this proceeding has in no way been prejudicial to the rights of any of the parties, nor has it denied them due process of law. Full and adequate opportunity was afforded all parties to participate in the hearing, which was held over a period of 2 months and in four localities extending the length of the Pacific Coast region. The record shows that the companies and the employer associations were at all times fully cognizant of the issues involved, and that they were not in any prejudicial manner limited in the calling of witnesses or the presentation of competent evidence. It was made clear early in the proceeding that the Petitioner would not oppose motions for dismissal by any of the companies not affimatively shown by the record to be direct employers of the supervisory employees sought to be represented or members of one or more of the employer associations, and the petition is being dismissed as to them. Moreover, as appears hereinafter, we believe that the several employer associa- tions are "employers" within the meaning of the Act. 86 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Supreme Court of the United States, in considering the re- quirements of Section 9 (c) of the Act,° has said: "The section is short. Its terms, are broad and general. * * Obviously great latitude concerning procedural details is contemplated. Requirements of formality and rigidity are altogether lacking. * * We think the statutory purpose rather is to provide for a hearing in which interested parties shall have full and adequate opportunity to present their objections before the Board concludes its investigation and makes its effective determination by the order of certification. * * The requirements imposed by that guaranty [of due process] are not technical nor is any particular form of procedure necessary" (citing Morgan v. U. S., 298 U. S. 468).10 We are satisfied that the present proceeding has afforded all parties that "full and adequate oppor- tunity to present their objections" which due process requires. Upon the entire record in the case, the National Labor Relations Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF TIJE COMPANIES Waterfront Employers Association of the Pacific Coast is an em- ployer association whose membership consists, directly or indirectly, of the great majority of shipping, stevedore, and terminal companies operating in the Pacific Coast areas of the States of California, Wash- ington, and Oregon. At the hearing, it was either stipulated or established by uncontested evidence, in substance, that each of the companies whose names appear on the Appendices hereto attached, and which are members of the above association and employ walking bosses, is engaged in the load- ing, unloading, or handling of waterborne cargo; that more than 50 percent of the cargo at the time it is, handled, loaded, or unloaded by the company is in the course of transportation between States of the United States, or between the United States and foreign countries, or between the United States and non-contiguous territories or posses- sions of the United States; and that ship, clock, and walking bosses herein sought to be represented are employed in connection with the handling, loading, or unloading of such cargo. 'Section 9 (c) reads as follows : "Whenever a question affecting commerce arises con- cerning the representation of employees, the Board may investigate such controversy and certify to the parties, in writing, the name or names of the representatives that have been designated or selected. In any such investigation, the Board shall provide for an appro- priate hearing upon due notice, either in conjunction with a proceeding under Section 10 or otherwise, and may take a secret ballot of employees, or utilize any other suitable method to ascertain such representatives." 10Jnland Empire District Council, Lumber and Sawmill Worke,s Union, Lewiston, Idaho, et at. v Millis, et at , 325 U 8 097, at 700 IT WATERFRONT EMPLOYERS ASSOCIATION OF THE PACIFIC COAST 87 A number of the companies which operate under agency contracts for the War Department, Navy Department, and War Shipping Ad- ministration contend that the transportation above referred to is not commerce, but is governmental activity, inasmuch as the cargoes are Government cargoes being handled for the Government in the course of their transportation by, the Government. We have considered similar contentions in previous cases and have found them, as we do here, to be without merit.11 We find that companies herein concerned, as listed in the Appendices, are engaged in commerce within the meaning of the National Labor Relations Act. 11. THE OR(:ANlZ,%TIONS 1NVOL\ED Petitioner is a labor organization, affiliated with the Congress of Industrial Organizations, claiming to represent certain employees of the companies herein concerned. International Longshoremen's Association, Local 38-114, herein called the ILA, Local 38-114, is a labor organization, affiliated with the American Federation of Labor, claiming to represent certain em- ployees of the companies herein concerned. 2 III. '1'I1E (ZIIESir1 ON CONCERNING REPRESENTATION Certain of the companies and the employer associations contend that the Board has no jurisdiction in this proceeding because no question concerning representation has arisen, inasmuch as demand for recog- nition and bargaining has been made by Petitioner only upon the sev- eral employer associations and not upon the large number of individual employers named in the petition'' Nor, they assert, may demand upon the individual employers found to be employers of the super- visory employees herein sought to be represented be deemed to have been made by the Isere existence of this proceeding, since Petitioner has made no alternative demand for individual employer units. We are satisfied, however, from the positions of the individual companies "Matter of The Ingalls $1 pbuildinq Corporation, 67 N. L. R B. 1194 The Board has many times held companies operating plants for Government instrumentalities to be en- gaged in commeice within the meaning of the Act Matter of The B. F. Goodrich Company, Louisville, Kentucky, 65 N. L. R B 1229, and cases cited therein "At the heming, the hearing officer granted the motion of the ILA, Local 38-114, to inteivene on its claim of interest in the proceeding by virtue of its collective bargaining agieenient with a group of member companies of the Waterfront Employers of Washington, covering certain of the supervisory employees liei ern sought to be represented by Petitioner. 11 On November 30, 1945, Petitioner addressed identical telegrams to the four employer associations, stating that it represented a majority of the ship, dock, and walking bosses employed by members of the various waterfront employers associations on the Pacific Coast. including the State of Washington, and that a petition was being filed with the Board that clay to obtain certification. Petitioner in its telegrams also requested the asso- ciations to bargain collectively with it on behalf of the employees named. The associations did not respond to the bargaining demand, and a petition was filed on the day of the demand. 88 DECISIONS OF NATIONAL LABOR RELATIONS BOARD as developed at the hearing, that they will not recognize Petitioner as the representative of their supervisory employees in any unit unless the Board certifies it as such.14 Moreover, we note that all the in- dividual companies as to whom the petition is not being dismissed are members of one or more of the employer associations upon whom Petitioner did make demand for recognition, and it was through the associations that Petitioner wished to bargain in behalf of the em- ployees of these companies. The further contention is made that contracts in the Washington and Oregon areas covering supervisors of the type here involved bar a present determination of representatives. The contract of October 31, 1944, as amended March 8, 1946, between the ILA, Local 38-114, and a group of Washington employers, contains an expiration date of September 30, 1946, subject to being automatically renewed unless notice to the contrary is given 90 days prior to that date. Inasmuch as the amended petition was timely filed and considering the anniver- sary date of the Washington contract, we find that this agreement is not a bar to a determination of representatives at the present time.15 And the contract of June 4,1937, in the Oregon area, made between the Waterfront Employers of Portland and the "Negotiating Committee for Walking Bosses," is of indefinite duration and therefore clearly not a bar 18 The companies and employer associations assert also that the Board is without jurisdiction in 'this matter because the supervisors herein sought to be represented by Petitioner are not "employees" within the meaning of the Act. The status of supervisory personnel has been considered in a number of cases, and both the Board 17 and the courts 18 have held that, in relation to their employer, supervisors are employees within the meaning of the Act. Accordingly, we find that the super- visors involved in this proceeding are employees under the Act. We find that a question affecting commerce has arisen concerning the representation of employees of the Employers, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the Act. 11 See Matter of Houston Blow Pipe and Sheet Metal Works, 53 N. L. R. B 184. 1b See Matter of Hercules Powder Company, 64 N. L. R. B. 700. 10 The duration provision of the contract reads as follows : "The scale of wages, hours and working conditions herein V e o shall remain in effect until modified by mutual agreement, or failing agreement, by arbitration." After the execution of the contract, a sister local of the ILA , of which the walking bosses were members, changed affiliation to Petitioner. The record is clear that , since that time, a local affiliated with Petitioner has been considered to be the union party to this contract, further evidence of which is found in the fact that Petitioner's local has negotiated several amendments to the agreement. 17 Matter of Packard Motor Car Company, 61 N L. R B. 4, and 64 N. L. R B 1212, enf'd in N. L. R. B. v. Packard Motor Car Company, 157 F. (2d) 80, C. C. A. 6, August 12, 1946; Matter of L A Young Sprung & Wire Corporation, 65 N. L R B 298 . Matter of Jones & Laughlin Steel Corporation, Vesta-Shannopin Coal Division, 66 N. L . It. B. 386 18 N. L. R. B v. Packard Motor Car Company , supra ; N. L. R. B. v: Armour and Co., 154 F. (2d) 570 ( C. C. A. 10 ) ; Jones & Laughlin Steel Corporation v. N. L. R. B., 146 F. (2d) 833 (C. C. A. 5) ; N. L. R. B. v. Skinner & Kennedy Stationery Company, 113 F. ( 2d) 667 (C. C. A. 8). WATERFRONT EMPLOYERS ASSOCIATION OF THE PACIFIC COAST 89 IV. THE APPROPRIATE UNIT, THE DETERMINATION OF REPRESENTATIVES Positions of the Parties Petitioner seeks a unit composed of certain longshore foremen gen- erally known as ship, dock, and walking bosses, herein referred to as walking bosses, who work in the Pacific Coast ports of the United States for those companies which are members of one or more of the following employer associations : Waterfront Employers Association of the Pacific Coast, herein called the Coast Association. Waterfront Employers Association of California, herein called the California Association." Waterfront Employers of Washington, herein called the Wash- ington Association. Waterfront Employers of Portland, herein called the Portland Association. As virtually all direct employers of longshore labor on the Pacific Coast, except several municipally owned terminals, are members of one or more of these employer associations, the unit sought is in effect a coast-wide unit.20 Alternatively, and only in the event that the Board finds a coast- wide unit inappropriate, Petitioner seeks three separate multiple- employer units, each coextensive with the regional areas over which the California Association, Washington Association, and Portland Association, respectively, exercise jurisdiction. The California Asso- ciation exercises jurisdiction over the State of California, whose prin- cipal port areas include San Francisco and Long Beach; the Wash- ington Association exercises jurisdiction over the State of Washing- ton, exclusive of the Columbia River ports, whose principal port area is that of Seattle; the Portland Association exercises jurisdiction over the State of Oregon, including the Columbia River ports, whose prin- cipal port area is Portland itself. 30 For certain administrative purposes, the California Association is subdivided into two divisions, known as the Northern Division and the Southern Division. 20 This unit claim was more particularly defined at the hearing as follows : The unit for which the petitioning union in this case contends consists of all ship, dock and walking bosses or foremen bearing the designations appearing in the supple- mentary list of job names attached to the petitioner's Exhibit 11 who engage in the supervision of cargo handling and its transfer from the vessel to the first place of rest and vice versa, including sorting, piling cargo on the dock and direct transfer of cargo from vessel to railroad car or barge, or vice versa, and transfer of cargo to and from docks, piers, wharves, transit sheds and adjacent and adjoining areas, whether or not such operations are incident to loading or discharging of vessels when the employees so supervised are engaged in longshore , carloading or unloading work for any of the companies named in this proceeding * * * who are members of one or another of the various waterfront Employer Associations. 90 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The companies and employer associations, in opposing the unit or units sought by Petitioner, collectively make the following conten- tions: (1) Petitioner may not properly be certified as a bthgaining representative for supervisory employees where, as here, it already represents the rank and file workers whom the walking bosses super- vise, and both supervisors and rank and file employees are members of the same union locals; (2) a unit composed of the employees of more than one company is inappropriate; and (3) even if some unit is found appropriate, a number of the categories of employees sought to be included by Petitioner should be excluded. A. The Various Levels of Longshore Employees in the Industry and the Status of the Walking Boss In the lowest level of longshore employees in the longshore industry is the rank and file longshoreman, who performs the physical work in connection with the loading and discharging of water-borne cargo 21 Next above him is the so-called "skilled" longshoreman, such as a winch operator or lift-jitney operator, who receives a skilled differ- ential in pay. The third level includes the gang boss or, as he is known in some areas, the hatch tender. The gang boss is in charge, and con- sidered to be a part, of the organized longshore gangs which are dis- patched to the employing companies from the hiring halls which are jointly operated by Petitioner's longshore locals and the several em- ployer associations. The gang boss supervises the work of the gangs and has some authority as to their discipline. He also receives a differential in pay over the basic longshore rate. All three of the categories above described are organized in the same longshore locals and are covered by the coast-wide longshore contract betwen Petitioner and the Coast Association. The walking boss, who is a member of the same longshore local as those employees whom he supervises, is on the fourth level. This level is considered to be the lowest level of supervisors who directly repre- sent management in the supervision of the work of rank and file em- ployees. Generally selected and employed directly by the companies carrying on stevedore, terminal, or carloading operations, the walking boss is usually in charge of only one ship or one loading or unloading operation. It is his function, generally speaking, to spot gangs in par-. titular hatches, to correlate the work of the gangs in particular load- ing or unloading operations, to advise the gangs where to place cargo, to supply the necessary gear, and to see that there is compliance with safety rules. He transmits orders to the gangs through the gang boss 21 Longshore work is defined as : "all handling of cargo in its transfer from vessel to first place of rest, and vice versa, including sorting and piling of cargo on the dock, and the direct transfer of cargo from vessel to railroad car or barge , and vice versa 11 WATERFRONT EMPLOYERS ASSOCIATION OF THE PACIFIC COAST 91 or hatch tender, and he has limited authority to discharge members of the gang for offenses such as pilferage, smoking in restricted areas, and i efusal to work. Not only does he lack authority to discipline short of discharge, but inasmuch as longshore gangs are dispatched in organ- ized groups, lie has no power to demote, promote, or transfer: Nor, with limited exceptions such as the right to assign certain "swing men" to work on the ship or dock as is necessary, does lie have the right to give individual work assignments to gang members. It is true that he has authority to adjust minor grievances ,i rising on the lob, but usually, if grievances involve any matters of importance, he refers them to the stevedore superintendent or an executive higher in authority. Griev- ances involving policy questions are never handled by him, and he has no voice in the formulation of general labor or other management poli- cies. He (toes not have an office, although he may on occasion use the superintendent's office. His hours of work, including the determina- tion of hours for which overtime rates are applicable, are the same as those of rank and file employees, even though he is sometimes required to come to work earlier or to leave later. He is paid on an hourly basis (there is a relatively small group of monthly paid walking bosses) with a customary differential of 35 cents an hour above the basic rate for rank and file employees. Above the walking boss are a number of other levels of supervisors, who are not sought by Petitioner. Immediately above the walking boss are the superintendent classifications 22 The superintendent or assistant superintendent, who supervises and coordinates the work of the walking boss, is in charge of a number of loading or unloading operations, and thus normally has a number of walking bosses under him. Although a superintendent or assistant superintendent may not always be physically present at the place of a particular loading opera- tion, he is always available and may be reached by the walking boss if the need arises. Above the superintendent is the general superintend- ent or manager, who is in general charge of the company's operations in a particular area. Highest in the line of authority are the execu- tives, officers, or in some instances, the company's proprietor. From the above facts, Ave find that walking bosses are supervisory employees within the meaning of our customary definition. As pointed out above, however, they are in the lowest level of the long- shore supervisory hierarchy and formulate no management policies. B. The Question Of the Representation of Supervisory Ensployees Although they do not concede the issue, the companies and employer associations recognize the present state of the Board's decisions on "Petitioner introduced some evidence to the effect that a category of employees known as "supercargo " is next above the walking boss. The record shows , however, that the supercargo is a clerical supervisor who is employed by the shipping company rather than by the stevedore or terminal company, and that he does not directly supervise walking bosses in the handling of cargo. 92 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the right of supervisory employees to constitute an appropriate unit for the purposes of collective bargaining.23 They contend, -however, that the Board may not properly certify Petitioner as bargaining rep- resentative of the walking bosses in the instant case because Peti- tioner already represents the rank and file employees whom the walking bosses supervise. In support of this position, the companies and em- ployer associations assert that the methods of operation in the long- shore industry require that walking bosses, in their capacity as repre- sentatives of management, be free from any control or domination by the rank and file. Such domination, it is urged, is inherent in the situation where, as here, supervisors and the rank and file, who far outnumber the supervisors, belong to the same union locals, and, it is further contended, this control in the hands of the rank and file will substantially affect the bargaining agreements negotiated in behalf of the supervisors. The companies and employer associations also allege that the establishment of a unit of walking bosses, where Peti- tioner is permitted to represent that unit, is in effect the setting up of a separate supervisory unit for election purposes only, and that, as a practical matter, Petitioner will bargain for the supervisors and the rank and file as a single unit.24 We believe that the questions raised by the companies and the em- ployer associations 25 are largely disposed of by our decision in the Jones & Laughlin case,26 where we held that certification in a super- visors' unit could not be withheld from a union which was affiliated with a rank and file labor organization, and by our more recent decision in the Virginia Electric & Power case,27 where we held that this was true even where certification as the representative of supervisors was being sought by the local union which, at the time of the hearing, also repre- sented rank and file employees. Although we are cognizant of the problems which exist, problems which we continue to believe are capa- 23 See Matter of Packard Motor Car Company, 61 N. L R B 4, and 64 N. L. R B 1212 ; Matter of L A. Young Spring it Wire Corporation , 65 N. L . R. B. 298; Matter of The B. P. Goodrich Company, Parish it Bingham Division, 65 N. L. R B. 294. 21 On July 18, 1946, certain of the companies filed with the Board a motion to reopen the hearing for the purpose of accepting into the record an excerpt from "The Dispatcher," an official publication of Petitioner , dated July 12, 1946, as tending to show that Petitioner is in reality seeking a single collective bargaining unit covering rank and file longshore workers and their supervisors. The excerpt , attached to the motion , reads in part as follows ( refer- ring to Petitioner's demands for 1946 negotiations ) : "Other demands are * * * For one master contract covering all waterfront workers represented by the ILWU . Longshoremen, checkers, bosses, carloaders and other groups now are covered by sepaate agreements " The motion is hereby granted , and the excerpt is made part of the record in this proceeding 25 Signihctntly, the companies in the Washington a, ea do not oppose representation of their walking bosses by the ILA, Local 38-114. It is true that this union restricts its mem- bership to walking bosses in the Washington area, but other ILA locals represent rank and file longshoremen in the three exception ports in that area Moreover , there is evidence indicating that some of these walking bosses retain their membership in the longshore locals of the ILA as well Matter of Jones it Laughlin Steel Corporation, Vesta-Shannopin Coal Division, 66 N L R. B. 386 17 Matter of Virginia Electric it Power Company , 68 N L R B 504 WATERFRONT EMPLOYERS ASSOCIATION OF THE PACIFIC COAST 93 ble of a just solution by means of the collective bargaining process, we believe that the Act leaves us no alternative but to afford to all em- ployees the opportunity freely to select representatives of their own choosing. Denying walking bosses that opportunity will neither cure the alleged evils of rank and file union affiliation by supervisors to which the companies and employer associations point, nor eliminate the difficulties which they anticipate. These claimed evils and diffi- culties, which, in many respects, are similar to those we considered in the Jones d Laughlin controversy, will continue to prevail, even if cer- tification is denied, so long as the walking bosses retain their member- ship in the rank and file union, and there is every indication that they will do so, as is their right, whatever action the Board may take. Peace- ful settlement of the problems which have arisen or which may arise in the future is more likely to be achieved through the give and take of collective bargaining, which it is the purpose of the Act to foster. As for the contention of the companies and employer associations that the walking bosses and the rank and file employees will be treated as a single unit by Petitioner for bargaining purposes, it is sufficient to note that we contemplate that bargaining units separately established by us shall be separate in fact as well as form, and that the companies and employer associations may so insist in dealing with the bargaining representatives of the employees in such units. We conclude, therefore, that Petitioner may be certified as the repre- sentative of the walking bosses in the event these employees select Petitioner as their bargaining agent. C. The Question of the Multiple-Employer Unit As pointed out above, Petitioner seeks in this proceeding a single coast-wide multiple-employer unit of walking bosses or, alternatively and only in the event the Board does not find a coast-wide unit appro- priate, three regional multiple-employer units. A coast-wide unit is opposed by the several employer associations, by their member com- panies, and by the ILA, Local 38-114. The alternative units are like- wise opposed, except in the Washington area where the ILA, Local 38-114, and the Washington companies contend that the present con- tract unit is an appropriate one. Outside the Washington area, the companies take the position that, if any unit is established, no grouping broader than that of the employees of an individual company, as fur- ther restricted by an area limitation in those instances where a com- pany is engaged in operations in more than one area, is appropriate. 1. Valking bosses on the Pacific Coast form a cohesive group The walking bosses involved in this proceeding, whether working on ship or dock and by whatever company and in whatever area of 94 ' DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Pacific Coast employed, possess, for the most prt, like skills and, work under substantially the same conditions. Although a few com- panies utilize special techniques to handle special types of cargo, gen- erally speaking an experienced walking boss is capable of working anywhere, and there is in fact considerable interchange of such employees from company to company within the port areas. Sub- stantially all these employees are paid on an hourly basis Their wage-hour structure throughout the Coast is uniform and follows the peculiar pattern established there for rank and file employees, i. e., straight time rates for all work up to (i hours performed between S a. m. and 5 p. m., and overtime rates for work in excess of (i hours performed between 8 a. in. and 5 p. in. or for work performed outside that period. Individual ability, value to the employing company, length of service, and like consicleratloiis aclniittedly play no part in determining the rate of pay of walking bosses. Rather they are paid in accordance with prevailing rates which, as will hereinafter be shown. are estab- lished largely by concerted action of the employing companies in the several areas and by them cleared through each of the area associations and the Coast Association before being made effective. From 1941 to March 1946, the hourly rates paid walking bosses have been generally uniform, and pay raises when granted have become operative at almost precisely the same time along the entire Pacific Coast.28 In March 1946, however, the «rashington companies, which up to that time had followed the coast-wide scale, snaking all contract a(ljnstnlents ill pay rates effective on approximately the same date when changes in rates went into effect iii other areas, granted their walkih in bosses a greater increase than that given in other areas. All Increase of 15 cents went into effect in Washington on the same day that a 5 cents raise went Into effect in. the other areas. But the record shows that the greater ill- crease in Washington was cleared through the California and Portland Associations, as well as the «rashington Association, and was ai)proved in other areas because it was not made retroactive. Wage payments to the hourly-paid walking bosses are, ill many instances, made at the central pay offices where the rank and file employees receive their wages. These pay offices are located in each main port and are operated by the several employer associations. While wages generally have been uniform, varying practices have in some cases been followed by Califoi nia companies with respect to 2" This generalization is subject to qualification in the following respects (a) Persons lassihed as assistant bosses of foremen at some companies receive a differential of 10 cents ]ose than the prevailing iate ( b) souse companies make a distinction between foremen who supervise longshore operations and those who superN use car gang men and clock workeis (who at the tune of the hearing weie being paid less than the longshore basic rate) and make adjustments in the supervisors ' rates to preserve the usual differential between rank and file employees and supervisors , ( c) there have been a few isolated instances where individual companies, after the prevailing rate was raised , have continued to pay the old rate, but there have been no instances since 1 941 when any company has paid more WATERFRONT EBIPLOYERS ASSOCIATION OF THE PACIFIC COAST 95 such employee benefits and privileges as vacations, Christmas bonuses, and penalty rates for the handling of special types of cargo. In Ore- _(Yon and Washington where, unlike California, there have existed exclusive collective bargaining agreements covering walking bosses, standardization has prevailed even in these respects. Walking bosses, in contrast to rank and file longshoremen who are dispatched from the longshore halls under a rotation system, are selected and hired by individual companies and remain in the employ of the hiring company as long as their services are required. They, however, do move about from company to company. During the war years, the practice became rather common for companies which during a particular period may have had a surplus number of walking bosses to "lend-lease" the bosses to other companies which at that time were in need of them. The record discloses that there is still some inter- change of this character. Such interchange, however, appears to be limited to companies within a single port area; there is apparently uo interchange between companies in different areas. Another type of interchange also takes place. Almost all walking bosses are regis- tered longshoremen as well, and, as such, they are eligible to be dis- patched with longshore gangs. When supervisory work is unavail- able, walking bosses may and do place themselves on the dispatching list as gang bosses or as rank and file employees. It is plain from the foregoing facts, and we find, that the walking bosses on the Pacific Coast form a single, well-defined and cohesive group with similar skills, wages, and working conditions, and that they have mutual interests and problems. 2. The history of organization and collective bargaining with respect to employees other than walking bosses in the longshore industry (a) The coastwide unit of rank and file longshoremen 2' On May 9, 1934, following the refusal of the employers to accede to the demands of Pacific Coast district locals of the ILA for a coast- wide agreement for longshoremen, all the longshoremen on the Pacific Coast went out on strike. Subsequently, the seamen, boilermakers, machinists, teamsters, and licensed officers also struck. Several efforts to settle the strike failed, and on June 26, 1934, President Roosevelt appointed the National Longshoremen's Board to mediate the strike. The settlement effectuated by that Board, under which the longshore- men returned to work on July 31, 1934, provided that the issues in dispute which involved the longshoremen were to be submitted to arbitration. On October 12, 1934, an arbitration award was made by that Board, acting as an arbitration board, which was incorporated 29 For a more elaborate discussion of this subject, see Matter of Shipowners Association of the Pacific Coast, et at., 7 N L R. B 1002, 1007 ff, , and 32 N L R B 668, 673 if 717734-47-vol 71-S 96 DECISIONS OF NATIONAL LABOR RELATIONS BOARD into a series of agreements between the ILA, acting on behalf of its longshore locals, and each of the then existing four area employer associations.30 These employer associations, during the strike, had formed a committee to carry on negotiations with the longshoremen. The award, which set basic wage rates and hours of work and provided for the establishment of hiring halls jointly operated by the longshore locals and the regional employer associations, was to be effective until September 30, 1935, and was subject to automatic renewal. In May 1935, the four regional employer associations appointed Francis P. Foisie as their Coast Cordinator, and, in the spring of 1936, they set up a Coast Committee to act in their behalf in conducting negotiations with the ILA Pacific Coast District, otherwise known as District 38, looking to the execution, renewal, or modification of labor contracts, and the settlement of disputes arising out of such contracts. Soon thereafter, both the management and labor parties to the award gave notice of a desire to modify its terms. Negotiations for that purpose proved unsuccessful, and, on October 28, 1936, District 38 and all maritime unions on the Coast went out on strike. This strike was terminated on February 4, 1937, by an agreement between District 38 and the Coast Committee. This agreement was technically, re- garded as an amendment to the award of 1934, and provided for the creation in each port of a Labor Relations Committee, com- posed of three representatives of the area employer associations and three representatives of the longshoremen. It is this committee which today operates the port hiring hall, has charge of the registration list of regular longshoremen from which the longshoremen must be as- signed to work, determines the organization of gangs and the method of dispatching, and investigates and adjudicates grievances. In June 1937, pursuant to a recommendation of the Coast Committee, the Coast Association was created for the purpose of formulating policies for employers on the Pacific Coast in connection with long- shore labor and other matters in which they were interested. Also in June 1937, a coast-wide referendum among the locals of Dis- trict 38 was held on the question of affiliation with the Committee for Tndustrial Organization,31 herein called the CIO,, with the result that there was an overwhelming vote in favor of such affiliation. On August 11, 1937, the executive board of District 38 received a charter from the CIO, and, the following month, it disassociated itself from 30 In 1934 , the employers of longshore labor on the Pacific Coast formed four regional or area associations, the waterfront Employers of Portland, the Waterfront Employers of Seattle, the Waterfront Employers Union of San Francisco , and the Marine Service Bureau of Los Angeles The names of the latter three were subsequently changed to Waterfront Employers of Washington, Waterfront Employers Association of San Francisco, and Water- front Employers Association of Southern California, respectively In 1943, the San Fran- cisco and Southern California Associations consolidated to form the Waterfront Employers' Association of California. 31 Now the Congress of Industrial Organizations. WATERFRONT EMPLOYERS ASSOCIATION OF THE PACIFIC COAST 97 District 38 and the ILA, and formed Petitioner's District No. 1. Thereafter, all longshore locals on the Coast, with the exception of the Tacoma, Olympia, Port Angeles, and Anacortes locals, all in the Puget Sound area, applied for and received charters from Petitioner.', The agreement of February 4, 1937, which terminated the second coast-wide strike, was automatically renewed for another year on July 31, 1937. On June 21, 1938, the Board certified Petitioner as exclusive iepresentatix,e for "the workers who do longshore work in the Pacific Coast ports of the United States for the companies which are members of Waterfront Employers of Seattle, Waterfront Employers of Port- land, Waterfront Employers Association of San Francisco, Waterfront Employers Association of Southern California, and Shipowners' Asso- ciation of the Pacific Coast." 33 On October 1, 1938, Petitioner and the Coast Association executed a bargaining agreement, which in form further amended the 1934 award, as altered by the 1937 agreement. On December 20, 1940, another agreement in the nature of an amendment to the 1934 award was executed by Petitioner and the Coast Associa- tion, with a provision for its automatic renewal. Except for some minor amendments, the 1940 agreement is still in effect. (b) Other multiple-employer bargaining units Various other categories of employees in the longshore industry on the Pacific Coast are also bargained for on a multiple-employer basis. Thus, on a regional or area-wide basis, Petitioner is recognized under collective bargaining agreements as the representative of rank and file employees engaged in "dock" or "carloading"work. This work consists of "indirect" cargo handling at the docks, such as the transfer of cargo between a point of rest on the dock and cars and barges, and is considered to be outside the contract definition of "longshore" work. The dockworkers or carloaders are drawn from the same pool of work- ers as are those who perform "longshore" work, interchange between the two types of work frequently being made by the workers. The parties to the bargaining agreements covering the dockworkers or carloaders are the respective regional employer associations and the locals of Petitioner which are concerned. Some negotiations were car- ried on between the Coast Association and Petitioner to 'consolidate these area agreements into a single coast-wide agreement, but no defi- nite steps in this regard had been taken at the time of the hearing. Generally speaking, Petitioner here seeks to represent the walking bosses who supervise employees performing work under the coast-wide longshore agreement or under the area dockworkers or carloading agreements.' 32 The Olympia local ultimately affiliated with Petitioner 23 Matter of Shipowners Association of the Pacific Coast, et al., 7 N L R B 1002, 1041 On June 16, 1941, the Board excepted Tacoma, Port Angeles, and Anacortes from the coast- wide unit. Matter of Shipowners Association of the Pacific Coast, et al., 32 N L R B 663 98 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Supercargoes, supervisors, clerks, and checkers, herein called the checkers, who perform the clerical work incidental to loading and unloading operations, have also been covered, since 1935, by collective bargaining agreements on an area-wide basis. These agreements are in effect between the regional employer associations and the checkers' locals involved. From August 1936 to February 1937, negotiations were carried o ii between ILA District 3S and the "Coast Committee for the Shipowners" for the, purpose of entering into a coast-wide bar- gaining agreement for checkers, but the negotiations proved unsuc- cessful and were not thereafter renewed. At present, except in the Washington area, where they are represented by an ILA local, the checkers are represented by Petitioner along the entire Coast.i" There are a number of other regional association agreements, such as one covering certain miscellaneous employees in the San Francisco area and one covering gear and lockermen in the Portland area. In addition, there are several multiple-employer bargaining agreements, executed by individual companies and covering certain groups of em- ployees such as port watchmen, crane operators, and maintenance and repair men, which were negotiated by companies acting jointly through an employer committee. The employer associations are not parties to these agreements, although their facilities ww ere at times used for carry- ing on contract negotiations. Generally, where companies in any region have similar categories of employees who are organized, the practice appears rather uniform for them to act in concert in their dealings with the unions. We also take cognizance of the fact, evidence as to which was intro- duced in the record, that there is a considerable history of collective bargaining on a multiple-employer basis between many of the Pacific Coast shipping companies, acting through the Pacific American Ship- owners Association, and the maritime unions active on the Coast, in regard to certain groups of sea-going personnel. It is clear that at least some of these companies, either directly or through subsidiary organizations, are members of one or more of the employer associations herein and engage in longshore or terminal operations, in the course of which they employ walking bosses. 3. The history of organzisation and collective bargaining with respect to walking bosses The history of organization of walking bosses prior to 1934 coin- cided with that of rank and file employees, as related in some detail in the two Shipowners cases, cited above. The walking bosses have "Matter of Waterfront Employers Association of the Pactific Coast, et al , Case No. 20-R-1690 , 71 N. L R B 121 , issued this day, affects checkers on the Pacific Coast and contains a fuller discussion of the bargaining history concerning these employees. WATERFRONT EMPLOYERS ASSOCIATION OF THE PACIFIC COAST 99 always participated equally with rank and file longshore employees, not only in union organization, but in economic action as well, as evi- deuced by the coast-wide strikes of 1934 and 1936. Following the 1934 award, which did not specifically name walknig bosses, Petitioner took the position, opposed by the companies, that the award covered these employees. In 1935, this matter was submitted to arbitration, and the arbitrator (Judge Sloss) decided the controversy adversely to Peti- tioner. When. in the first Shipmcvers case, Petitioner sought certifica- tion in a coast-wide unit by the Board, it requested the inclusion of walking bosses in that unit. The Board, however, denied the request, finding that, because of certain differences iii their relations with em- ployers, "walking bosses are not to be considered as within the category of longshoremen which constitutes the appropriate unit defined above." 35 There has been no formal collective bargaining between the com- panies and any labor organization with respect to walking bosses on the basis of a coast-wide unit. On a regional basis, the record discloses the following: In the California area, no union has been recognized as the repre- sentative of walking bosses, and there has been no bargaining agree- ment covering them. In 1939, however, in Matter of Associated Banning Co'impany, et all., 19 N. L. R. B. 140, Petitioner requested a unit consisting of all walking bosses employed by member companies of the Waterfront Employers' Association of Southern California'36 alleging that the association was an employer handling labor relations for each such company. The Board concluded that the association was an. employer within the meaning of the Act and found the unit sought to be appropriate. It also indicated that, although it consid- ered the unit appropriate on the extent of organization theory, it would have regarded a coast-wide unit coextensive with the rank and file unit even more appropriate." Although Petitioner won the election in the unit found appropriate iii the Associated Banning case and was certified, no bargaining agreement was ever made between the parties. In the Oregon area a written agreement, which covered wages, hours, and working conditions of walking bosses employed in the area by members of the Portland Association, was entered into in 1937 between 35 Matter of Shipowne>s Association of the Pacific Coast, et at, 7 N. L R B 1002, 1025 34 As noted above, in 1943, this association merged with the Waterfront Employers Asso- ciation of San Francisco to form the California Association. " Said the Board ( p. 150) . Indeed , the precedent existing in the industry might well be said to suggest the pro- priety of a coast-wide bargaining unit for bosses . In the absence, however , of any- organization of bosses seeking to represent them in a coast-wide unit, we are of the opinion that the policies of the Act may best be effectuated by now restricting the unit to bosses employed by members of the Association in the Los Angeles harbor area. The bosses should not be denied the benefits of the Act pending organization of the bosses in the other harbor areas. 100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD a "Negotiating Committee for Walking Bosses" of the ILA and that association. Later that year, the walking bosses in the Oregon area transferred their allegiance to Petitioner. The Portland Association has declined formally to recognize the transfer of allegiance to Peti- tioner by substituting Petitioner's name on the walking boss contract. But since 1937, this association has dealt under the contract with a committee of walking bosses, which has actually been a committee of a local of Petitioner, a fact known to and recognized by the association and its members. Ian negotiations with the Portland Association, this committee has been represented by the business agent of Petitioner's local, and correspondence intended for the committee has been directed to the local's hall. Thus, the Portland Association, while not formally recognizing Petitioner, for all practical purposes has since 1937 bar- gained with it for association members on a multiple-employer basis. In the Washington area, the ILA, Local 38-114, has been the recog- nized bargaining representative for walking bosses since 1938. Written contracts have been continuously in effect since that time. These contracts, however, have not been signed by the Washington Association. Prior to 1942, the contracts were negotiated on behalf of the companies in that area by a Management Committee and sepa- rate but identical contracts were executed by the individual companies. Since 1942, the Management Committee has followed the practice of signing a single contract on behalf of all companies concerned. The companies represented by the Management Committee have consisted of all those known to the ILA, Local 38-114, to employ walking bosses. These companies are all members of the Washington Association. The association's secretary also acts as the committee's secretary, its attorney as the committee's attorney. The committee, which is com- posed of selected company representatives, keeps the association trustees advised of the progress of negotiations, and does not finally consummate any agreement with the ILA, Local 38-114, until it has obtained the approval of the association. The trustees of the associa- tion, in turn, submit proposed agreements to the Coast Association and to the other area associations for clearance before giving their approval. Notwithstanding the assertion of the Washington com- panies that their bargaining with the ILA, Local 38-114, has been group bargaining rather than association bargaining, the record as a whole supports a finding that the Management Committee is for all practical purposes an association committee set up to represent mem- bers of the Washington Association in dealings with the ILA, Local 38-114, concerning walking bosses. We conclude, therefore, that the Washington Association has in reality bargained for its members with the ILA, Local 38-114, on a multiple-employer basis. WATERFRONT EMPLOYERS ASSOCIATION OF THE PACIFIC COAST 101 4. The employer associations as "employers" of walking bosses (a) The organization of the employer associations All of the companies listed on the Appendices attached hereto are, and for many years have been, organized into employer associations created primarily for the purpose of representing them in matters concerning their labor relations. These companies are- all members of the Coast Association. All, with perhaps one exception,88 are or- ganized first into the regional associations and through them into the Coast Association. Many, including this possible exception, are di- rectly members of the Coast Association. The record shows that the power granted the several associations by their respective constitutions and bylaws is broad enough to permit them to represent their member- ship in labor relations with supervisory employees such as are here sought to be represented by Petitioner. The constitution of the Coast Association sets forth as among its primary purposes and objects the following: To encourage the establishment and maintenance of fair and reasonable wages and working conditions for longshore work and other work ashore relating to steamship service, and, by the estab- lishment and maintenance of harmonious and peaceful industrial relations between employer and employee, to promote dependable and efficient steamship service in the public interest; To fix, establish and maintain on behalf of its members policies in all matters related to longshore work and other employments ashore at Pacific Coast ports of the United States (except Alaska ports) ; To represent its members and others in matters relating to the employment of longshoremen and other shore employees at said ports including the negotiation, execution and performance of contracts with other employers or groups thereof and contracts with groups or associations of longshoremen and other shore employees governing wages, hours and conditions of such em- ployment ; To assist, represent and act in behalf of the members and others in connection with any violations of agreements relating to long- shore or other employments ashore at said ports, to the end that all such agreements shall be faithfully performed by all parties thereto. To act for the foregoing purposes on behalf of all members, either directly or through such agents or instrumentalities as this corporation shall select. No member of this corporation shall be subjected to any personal obligation or liability by any action taken by this corporation 88 Humboldt Stevedore Co., Ltd. 102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD unless such action is authorized by these articles of incorporation and is taken in compliance with the provisions of the bylaws of the corporation. [Italics added.] Article V of the bylaws of the Coast Association provides for authorization of the acts of the Association by the members and escape in the absence of authorization as follows : No contract, commitment or undertaking which would impose any personal obligation or liability on the nlenlbers of this cor- poration shall be made or entered into by this corporation unless and until the same shall first have been authorized or accepted in writing by the member or members to be bound thereby, or has been approved, at any regular or special meeting of the members, by vote of members holding a majority of the voting power of the entire membership, or unless such contract, commitment or un- dertaking shall have been made or entered into by this corporation pursuant to a delegation of authority conferred by a similar vote. A member who has not authorized or accepted in writing, such contract, commitment or undertaking and who has not voted in favor of the approval thereof, or the delegation of authority with respect thereto, shall not be bound by such contract, commitment or undertaking if such member resigns within seven days after the date of the vote thereon.39 Article XIX of the bylaws provides that resignation shall not re- lieve a member of obligations theretofore incurred, as follows: * * provided, however, that no such resignation or expul- sion and no suspension from membership in this corporation shall terminate or affect . . . any obligation of such member under or pursuant to the terms of any labor contract or agreement there- tofore made or entered into on its behalf by this corporation. Article XVIII of its bylaws makes the following provisions concern- ing the right of the Coast Association to establish policy and make binding commitments on behalf of its members : Section t. This corporation shall have power to establish poli- cies for its members and the corporation in all matters relating to labor contracts and labor controversies and shall have power to represent and act on behalf of its members in any negotiations carried on by the corporation, on behalf of its members with unions of longshoremen and other employments ashore, and, sub- s9 Under Article V of the constitution , a company employing longshoremen or other shore employees and associations of such employees are eligible for membership only as associate members, and, as such, have no voting power Shipping companies only are eligible as voting members WATERFRONT EMPLOYERS ASSOCIATION OF THE PACIFIC COAST 103 jest to the provisions of Article V of these . bylaws, any contracts, commitments or undertakings made by this corporation on behalf of its members with any w n•ion shall bind. the members of this corporation. * • [Italics added.] Another section of the sauce Article makes provision for all members to assist any individual member in the case of certain disputes arising out of the contract , whether or not the Association is a party to that contract. It provides: Section 2. If any union, its members or officials , shall violate any labor contract or award relating to wages, hours, or working con- ditions to which agreement or award this corporation or any of its members is a party . . . any member affected thereby shall notify the corporation . All appropriate means for peaceful settle- ment of any such matter shall be pursued . . . . If compliance is not secured , a meeting of the members of this corporation shall forthwith be called and all members shall take whatever action shall be determined by a vote . . . . [Italics added.] Article XX of the bylaws makes further provision for such assist- ance, as follows: If any labor union : . . shall violate any agreement with this corporation , or with any member thereof, or shall refuse to work for any member or members of this corporation , . . . and if this corporation after investigation shall desire to resist the demands of such union . . . this corporation shall render to such member or members of this corporation the fullest moral support , and shall pay such expenses incurred by such member in any strike, lock- out or other labor trouble caused by such action of the union .. . as shall be approved . . . . [Italics added.] The bylaws of the California Association binds its membership to conform to all policies established and all contracts and commitments made by the Coast Association . The conformity provision, Art. XVI, reads as follows : Section 1 . This corporation shall conform to and comply with all policies established by the Waterfront Employers Association of the Pacific Coast for its members in matters relating to labor contracts and labor controversies , and this corporation shall be represented in any negotiations carried on by the Waterfront Employees Association of the Pacific Coast on behalf of its mem- bers with unions of longshoremen or other employee associations, and any contracts, commitments or undertakings made by the Waterfront Employers Association of the Pacific Coast on be- 104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD half of its members, including this corporation, with any union shall bind this corporation and its members.- Section 2. If any union ... shall violate any labor contract or award ... to which agreement or award this corporation or any of its members may be a party, whether by strike, stoppage of work, or in any other manner, this corporation and its members shall take whatever action in respect thereto shall be determined by the Waterfront Employers' Association of the Pacific Coast ... No similar conformity provision is written into the bylaws of either the Portland Association or the Washington Association. The bylaws of these associations seem to have been drafted prior to the organization of the' Coast Association. It appears, however, that the same conformity requirements actually apply to them and their mem- bership. Francis P. Foisie, president of the Coast Association, testi- fied without contradiction that by virtue of the membership of the Washington and Portland Associations in the Coast Association, the members of those regional associations are bound, as a matter of prac- tice, by the same conformity provisions which are expressed in the bylaws of the California Association. As to the power of the regional associations to bind their members to contracts entered into directly by them, express provision is made therefor in the bylaws of the Washington and California Associ- ations.41 The bylaws of the Portland Association are silent on that point. It is clear from the record, however, and it was not disputed, that in all instances where the Portland Association has made con- tractual commitments, its members have always considered themselves bound by such action; the same is true as to the members of the Port- land Association when the commitments have been made by •the Coast Association. - (b) Extent to which the associations have actually exercised authority in formulating labor policies for walking bosses In the areas under their jurisdiction, the Portland and Washington Associations, as has been shown, have actually carried on collective bargaining with unions representing walking bosses. There has been no formal collective bargaining by the California Association in its area, or by the Coast Association on a coast-wide basis. "Provisions for authorization and escape identical with those in Article V of the Coast Association bylaws, as set out above, are found in Article XVII of the California Association bylaws 91 Both use substantially similar language to the effect that the association shall have the power to establish policies for its members with respect to labor matters and to repre- sent and act on behalf of its members in negotiations with unions of longshoremen or other shore ep1ployees, and any contracts made pursuant to such negotiations by the association on behalf of its members with any union shall bind such members WATERFRONT EMPLOYERS ASSOCIATION OF THE PACIFIC COAST 105 It is not disputed that, under the Articles of Incorporation and the bylaws of the Coast Association and the California Association, these organizations have the legal capacity to act for their members with respect to walking bosses. But, it is alleged, although these associa- tions have the power to act concerning walking bosses, their bylaws require that specific authority must be given them by their members be- fore they can exercise such power . It is denied that their members have ever expressly authorized the associations to bargain on their behalf with reference to walking bosses. Furthermore , it is alleged, the mem- ber companies do not desire the associations to represent them in that connection. The evidence shows, however, that no such specific authorization has ever been requested of or granted by the individual members of the area associations concerned in relation to such bargaining as has been conducted with regard to walking bosses in Oregon and Washington. The evidence also shows that, with respect to other classes of employees such as longshoremen , dock workers, checkers , etc., who have been rep- resented in collective bargaining, all the associations, including the Coast and Ca'^ifornia Associations, have assumed authority to act without requiring specific authorization from their membership, im- plying such authority from the broad powers conferred by their con- stitutions and bylaws. Notwithstanding the fact that there has been no formal collective bargaining in California, or on the Coast as a whole, the record shows that at least since 1941 labor policy with respect to walking bosses, par- ticularly with reference to their wages, has been formulated, regulated, and substantially controlled,by association rather than individual em- ployer action. Furthermore, this regulation has occurred on a coast- wide basis and has involved the areas where collective bargaining re- lationships have existed as well as those where they have been non- existent. In the areas of Oregon and Washington, where collective bargaining agreements covering walking bosses were in force , as well as in California where they were not, all wage adjustments have re- quired clearance through and approval by the various regional asso- ciations, with the determinative authority resting in the Coast Asso- ciation. That this is so is demonstrated by the following evidence: (1) In February 1941, a committee set up by the Coast Association made a survey of wages paid in all Pacific port areas to the various classes of port labor other than the longshoremen covered by the coast= wide longshore agreement. Included among the classes of employees were walking bosses as well as dock workers, checkers, gearmen, and miscellaneous workers. Recommendations were made by the commit- tee for the standardization of wage rates, among which were recom- mendations that walking bosses be paid at the rate of $1.30 straight 106 DECISIONS OF NATIONAL LABOR RELA'T'IONS BOARD time and $1.95 overtime and that the wage increases be made retroac- tive to February 21, 1941. The record indicates that, in accordance with these recommendations, the increased rates were put into effect at the same time by the employers in all ports, except in the State of Washington where the ILA, Local 38-114, was the bargaining repre- sentative. (2) In the State of Washington a new contract was being nego- tiated at that time, and the ILA, Local 38-114, was demanding a higher rate. There is in evidence a letter written by the Washington Asso- ciation to the Coast Association, copies of which were submitted to the various regional associations, in which the Washington employers urged the Coast Association to authorize a wage rate for walking bosses in Washington higher than that previously approved by the Coast Board. A higher rate was apparently approved by the Coast Board, for, on May 15, 1941. a new contract was signed in Washington with the ILA, Local 38-114, for a wage rate of $1.35 straight time and $2.021,/2 overtime, beginning on May 14, 1941, and for an adjustment retroactively of the pay of walking bosses in the Washington area for the period from February 21, 1941, to May 14, 1941, to the level which prevailed in the other port areas during that period Significantly, on May 14, 1941, the rate of bosses in the other ports was also adjusted to $1.35 straight time and $2.021/.,, overtime, so as to bring them in line with the new rates in Washington. (3) The next change in walking boss rates was effected up and down the Coast on February 16, 1942. That this change resulted from action taken by the Coast Association is reflected by letters in evidence written by the Portland Association, the Waterfront Employers Association of Southern California, and the Waterfront Employers Association of San Francisco to their respective members. The letter written to its members by the Waterfront Employers Association of Southern Cali- fornia reads in part as follows : At a meeting of the Pacific Coast port representatives held in San Francisco, February 10, 1942, it was decided to increase wages for ship and dock foremen . . . Directors of the Waterfront Employers Association of the Pacific Coast on February 11, 1942, approved. These increases to be made effective 12: 01 February 16, 1942.. . .The other letters are to similar effect. There is no letter in evidence written by the Washington Association, but it is noteworthy that on February 17, 1942, the contract of the ILA, Local 38-114, was modified so as to provide for an increase effective at the same time the new rate became operative at the other ports. (4) The latest wage adjustment for walking bosses was made effec- tive in March 1946. A 5-cent increase went into effect on March 11 in California and on March 26 in the Oregon area, being granted by all WATERFRONT EMPLOYERS ASSOCIATION OF THE PACIFIC COAST 107 companies in those areas with two isolated exceptions. This increase required War Labor Board approval. Following conferences held in California by the companies there concerned, a single application for approval was proposed on behalf of all of them by the attorney for the CalifornialA.ssociation. In the Oregon area, where a "Negotiating Committee of Walking Bosses," actually a committee of a local of Petitioner, is re ognized, a joint application was filed. In Washing- ton, an increase as also granted effective March 11, although, for the first time since 1941, a departure was made in that area from the wage scale prevalent in other port areas. There a 15-cent increase was granted, but, unlike the other areas, the increase was not made retro- active to October 1944. Before being made effective, the proposed in- crease of 15 cents in Washington was submitted for approval to the Coast Association and the other regional associations and was sup- ported (and allowed) on the ground that it was given in lieu of retro- activity. The clear and uncontradicted testimony of Russell Ferguson, man- ager of the Portland Association, further reveals how association action on a coast-wide basis controls employer labor policy a^ it affects walk- ing bosses. His testimony shows that proposed changes in wages and other working conditions of such employees are "cleared" by and be- tween all of the area associations and that final approval is secured from the Coast Association before any changes are put into effect. Be- cause it explains so well how the associations acted in this respect, portions of the testimony are set out below 42 4' [Hearing Officer] LEMF. Now, here in Portland did you notify Mr. Foisie, before the most recent raise was given, or the Waterfront Employers' Association of the Pacific Coast, that you contemplated giving such a raise? The WITNESS - Undoubtedly ; and also Los Angeles and Seattle-in fact, all the ports [Hearing Officer] LLFF And did they give similai raises'? The WITNESS Yes, sir [Hearing Officer] LEFF Did they notify you when they gave those raises? The WITNESS. Oh, yes, we generally keep each other advised as to what is going on in each of the ports [Hearing Officer] LEFT. And do you get clearance from all the other associations ? And from the Pacific Coast Association? The WITNESS I suppose you would,call it clearance from the other ports on all con- tracts on wage increases. Q. (By Mr. Ernst ). Do the other ports also receive clearance from you before they sign similar contracts? A. That is right ; ves. Q. And in 1946 , when the Waterfront Employers of Washington gave clearance to grant- ing an increase to walking bosses in the Washington area exclusive of the Columbia River, what comment, if any, was made to their proposal? The WITNESS It was the understanding definitely with the Seattle group, as we under- stood it, that it was given to them in lieu of retroactivity, to which we did not object, as I understand it, and they went ahead and signed it on that basis, in lieu of retroactivity, with the walking bosses in Seattle. . Q. (By Mr. Ernst ). Did you advise the Port of Seattle that the rate of $1 60 would adversely affect your operations here? A. Well , as I recall, we did, very definitely, unless something was given to give up the 108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Finally, we note certain uncontested evidence in the record, intro- duced by Petitioner, to the effect that a number of grievances con- cerning walking bosses were taken up by the joint labor relations extra increase, and in lieu of retroactivity was the answer, which was finally cleared with the employers here. s + r a + a e Q. (Cross-examination by Mr. Anderson). You did not want to sign a contract because, as you have already indicated, the matter of signing a contract involving wage increases, and representation, and all that sort of thing is a matter which not only the port associa- tion is interested in, but all the other associations are likewise interested in? A. That states part of it. Q. And, of course, finally it would have to go through the San Francisco office of the Coast Association for a sort of general over-all approval, is that correct? A Well, that is partially correct. Q. Well, that is substantially correct, isn't it? A. Well, if it is cleared through the Waterfront Employers of California, that is sufficient. Q I understand from that if the California Association approves something, that the Coast Association usually approves it, is that right? A. I think that they usually do, yes. s e r * • e x [Hearing Officer] LEFF Well, does it not require approval of the Washington Association? The WITNESS. Yes, the approval of all three associations. Q. (By Mr. Anderson). In other words, they all three work together? A. That is right. Q The California Association, the Oregon Association, and the Washington Association, they all work together through the Waterfront Employers' Association of the Pacific Coast? A. Well, we work direct too. We send copies of correspondence to all three, and we receive copies of correspondence from all three. Q. But I mean, generally speaking, with contracts affecting rates of pay and hours which, I guess, are two of the most important things, those are all cleared through the central clearing office, namely the Coast Association, as a general rule, isn't that right' A Usually. There are some exceptions. Q. And I assume that you have worked that way ever since you have been the manager of the Association, is that correct? A. Yes, sir. Q In other words, the general practice followed is that if there was any change made, or any contract entered into which might have some effect upon some other port-the usual practice from 1939, since you became connected with the Waterfront Employers of Oregon, has been to clear it through correspondence or telephone, or meeting- A (Interposing). That is right. Q. (Continuing). With the other associations? A Yes, sir. Q. And then after it is cleared with them, then it is cleared through the main associa- tion Is that substantially correct? A. Yes, sir [Hearing Officer] LEFF Does that apply even to the dock workers' agreement' The WITNESS. That applies to all agreements, but not always. We have had contracts which have been cleared through California, but yet we waited for clearance from Washington [Hearing Officer] LEFF. That applies to the longshore agreement? The WITNESS Yes, sir. [Hearing Officer] LEFF. And the dock workers' agreement' The WITNESS. Yes [Hearing Officer] LEFF And the checkers' agreement? The WITNESS Yes. [Hearing Officer] LEFF And any other kind of agreement? The WITNESS (Interposing). Yes. [Hearing Officer] LEFF. (Continuing). That the Waterfront Employers of Portland might enter into? The WITNESS. Yes, sir. WATERFRONT EMPLOYERS ASSOCIATION OF THE PACIFIC COAST 109 committees set up in the various ports and for the Coast under the coastwide longshore contract. (c) Conclusion The foregoing facts clearly demonstrate that the,regional associa- tions and the Coast Association have formulated and executed labor policies for their member companies with respect to walking bosses. Under these circumstances, and upon consideration of the entire rec- ord, we are convinced, and find, despite contentions to the contrary, that the several regional associations and the Coast Association are `.`employers" of walking bosses within the meaning of the Act. Sec- tion 2 (2) of the Act defines "employer" as "any person acting in the interest of an employer, directly or indirectly," and Section 2 (1) de- fines "person" as "one or more . .. associations." As shown above, the record in this proceeding amply supports a finding that the several associations have acted for their member companies with respect to walking bosses in such a manner as to bring them within this statutory definition of "employer .1143 5. The power of the Board to find multiple-employer units appropriate and the exercise of that power The companies and employer associations take the position that the Board has no authority to find appropriate a unit broader than that composed of the employees of an individual direct employer. The Board lacks the power to find a multiple-employer unit appropriate, they argue, inasmuch as (1) there is no obligation on an individual em- ployer to combine himself with other employers through an associa- tion or otherwise for the purpose of bargaining collectively with the representatives of their employees, and (2) there is no obligation on an association of individual employers to act as the bargaining repre- sentative of any one or more of its members. We find no merit in these contentions. Section 9 (b) of the Act expressly authorizes the Board to "decide in each case whether, in order to insure to employees the full benefit of their right to self-organization and to collective bargaining, and otherwise to effectuate the policies of this Act, the unit appropriate for the purposes of collective bargaining shall be the employer unit, craft unit, plant unit, or subdivision thereof." (Emphasis added.) As pointed out in the preceding section, an employer association may, as we have here concluded with respect to the Coast Association and the 4' See Matter of Shipowners Association of the Pacific Coast, et at ., 7 N. L. R. B. 1002, 1024; Matter of New Bedford Cotton Manufacturers' Association, 47 N. L. R. B. 1345, 1353, and cases cited therein . Compare Matter of Associated Banning Company, 19 N. L. It. B. 140, 150; Matter of National Dress Manufacturers' Association, Inc., et at., 28 N. L. R. B. 386, 393, where the Board found certain employer associations to be "employers " within the meaning of the Act, although the associations had not acted for their employer members with respect to the particular employees sought to be represented. 110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD regional associations, be found to be an "employer" within the meaning of the Act. Therefore, we believe that this Board may properly find appropriate units composed of the employees of a number of separate and competing companies which have chosen to associate themselves in an organization of employers for the purpose of taking action on labor matters with respect to their employees 44 If the Board's power were limited to finding a unit composed of the employees of a single in- dividual employer, as it is contended by the companies and employer associations,45 we could not, as we have previously done in a number of cases, recognize the propriety of established multiple-employer units which have evolved in bargaining between labor organizations and em- ployer associations.45 Minority groups or individuals could seek to have the Board order employers to cease giving effect to existing bene- ficial contracts and not to renew them 47 Thus the Board, called upon to issue certifications and orders in conflict with existing practices of collective bargaining which are satisfactory to the employers and to the majority of the employees involved, would disrupt and possibly destroy that stability in employment relations which it was the very purpose of the Act to foster. We agree that the Act does not require individual employers to combine themselves into employer associations for the purpose of bar- gaining with the representatives of their employees, and that it does not require employer associations to bargain for their members. But where, as here, individual employers have, on their own initiative, combined themselves into employer associations, and these associations have, pursuant to powers delegated to them by their members, acted With respect to the employees of those members so as to bring them- 44 Where the Board has used the term "multiple-employee" in finding a unit of employees appropriate for the purposes of collective bargaining, it has in reality used that term to designate the employees of a single employer, as defined in the Act, which is composed of a number of constituent parts 45 That this contention is basically invalid, see N. L R, B v Luid, 103 F (2d) 815 (C C. A 8), where the Court said "The inference to be drawn from these decisions of the Supreme Court and from the language of the statute is that, within the meaning of the Act, whoever as or in the capacity of an employee controls the emplover-employee relations in an integrated industry is the emplover So interpreted it can make no difference in determining what constitutes an appropriate unit for collective bargaining whether there be two employers of one group of employees or one employer of two groups of employees Either situation having been established the question of appropriateness depends upon other factors such as unity of interest. common control, dependent operation, sameness in character of work and unity of labor relations " 46 See. for example, Matter of Admar Rubber Company, 9 N. L R B 407 , Matter of Monon Stone Company, et al, 10 N L. If. B 64, Matter of Hyman-Michaels Company, 11 N L R B 796 , Matter of Alston Coal Company, 13 N L. R B 683 , Matter of Stevens Coal Company, 19 N L R B 98, Matter of John Kausel, 28 N L R B 906 Some 37 trades or industries in which employer associations engage in collective bar- gaining are listed in U S Dep't of Labor, Bureau of Labor Statistics, Collective Bargaining With Employers' Associations, Monthly Labor Review, 1939, Vol. 49, No 2, p 310 47 See Matter of Foote d Davies, 66 N L. R B 416, where the Board held a closed-shop contract invalid on the ground that it did not coves an appropriate unit. See also Matter of Graham Ship Repair Co , 63 N L R B. 842. WATERFRONT EMPLOYERS ASSOCIATION OF THE PACIFIC COAST 111 selves within the statutory definition of employer, the Board may properly consider those facts in making its unit findings. Usually the Board has exercised its power to find multiple-employer bargaining units appropriate where there has been a previous his- tory of bargaining upon a multiple-employer basis and where adequate machinery for the conduct of such bargaining existed 48 We believe that these requirements are met by the facts in the case now before us. We have heretofore discussed the rather consider- able history of collective bargaining relating to walking bosses in the Oregon and Washington areas and have shown that the terms pro- posed or accepted by the companies in those areas in the course of their bargaining negotiations were formulated by or "cleared through" the Coast Association. Moreover, we have shown that many of the terms concerning wages and other conditions of employment of walking bosses incorporated in the bargaining agreements, in those areas were in fact placed into effect on a coast-wide basis in behalf of all the com- panies on the Pacific Coast who were members of one or more of the associations and directly employed walking bosses. We have also discussed the status of employee and employer organization, and the history of collective bargaining and employer action on a multiple- employer basis, not only with respect to walking bosses, but also con- cerning longshoremen, dockworkers, checkers, and other employees, and these facts, we believe, clearly indicate that adequate machinery exists for the conduct of multiple-employer bargaining. We conclude, therefore, that this Board is empowered by the Act to find multiple-employer units appropriate for the purposes of col- lective bargaining, and that we may properly exercise that power under the circumstances in this case. We are not persuaded otherwise by the fact that the companies and employer associations have in- dicated that they do not desire multiple-employer units. To hold in all cases, especially where the employers have themselves acted on a multiple-employer basis, that the Board is precluded in the face of employer opposition from finding a multiple-employer unit to be appropriate, is to permit the employers to shape the bargaining unit at will, notwithstanding the presence of compelling factors, including their own past conduct, decisively negating the position they have. taken. Contrary to the. mandate given the Board under the Act, such a holding would in effect vest in the hands of the employers rather than the Board the power to determine the appropriate unit for collective bargaining purposes. as See Matter of Shipowners Association of the Pacific Coast, et at., 7 N. L. R. B. 1002 ; Matter of Associated Banning Company, 19 N. L. R. B. 140 ; Matter of New Bedford Cotton Manufacturing Association, 47 N. L. R. B. 1345 ; Matter of Advance Tanning Company, et at., 60 N . L. R. B. 923. Cf. the cases cited in footnote 46, supra. 717734-47-vol. 71 9 112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 6. The scope of the multiple-employer unit or units a. General It is clear from the history of collective bargaining and of as- sociation dealing with respect to walking bosses that a multiple-em- ployer unit or units of these employees instead of individual com- pany groupings are appropriate. We believe, furthermore, that a single multiple-employer unit, coast-wide in scope, and coextensive with the membership of the several employer associations, is feasible for collective bargaining purposes. The following factors support this position : (a) The walking bosses employed along the entire Pacific Coast form a well-defined, cohesive group with similar skills and sub- stantially uniform wages and working conditions. (b) A coast-wide unit of the rank and file longshoremen whom the walking bosses supervise has been found appropriate by the Board and bargaining has been conducted by them on that basis. In its supervisory cases, the Board has customarily followed the pattern of organization for rank and file employees in determining the scope of the supervisory units .411 (c) The state of organization of walking bosses indicates their ability and desire to function on a coast-wide basis. Thus, petitioner, having organized walking bosses employed throughout the Pacific Coast, here seeks to represent them on a coast-wide basis. Moreover, walking boss members of Petitioner participated in a coast-wide con- ference which Petitioner called in San Francisco, California, in December 1945, and there formulated a statement of policy indicating their desires for collective bargaining on a coast-wide basis and drew up and presented to the Coast Association a proposed coast-wide col- lective bargaining agreement for walking bosses. (d) The organization into employer associations of the companies which employ walking bosses indicates the ability of those companies to function on a coast-wide basis. The companies which employ walking bosses are members of the Coast Association, either through their membership in the regional associations or directly. The con- stitution and bylaws of the Coast Association show that it was or- ganized by its member companies for the purpose of establishing policies with respect to wages, working conditions, and other labor matters for "longshore work and other employments ashore," and to represent its members in "the negotiation, execution and performance of contracts . . . with groups or associations of longshoremen and 49 See Matter of Westinghouse Electric Corporation ( East Springfield Works), 66 N L. R B. 1297. WATERFRONT EMPLOYERS ASSOCIATION OF THE PACIFIC COAST 113 other shore employees governing wages, hours and conditions of such employment." Furthermore, the Coast Association is empowered to bind its members in collective bargaining with "other shore em- ployees." The regional associations also are authorized to act for their members with respect to walking bosses and many bind the members by such action. Their practice of clearing matters among themselves, as well as through the Coast Association, in effect amounts to action on a coast-wide basis. (e) The Coast Association has exercised its powers to determine and does now determine labor policies with respect to walking bosses along the entire Pacific Coast for its members which employ such labor. These activities, as found above, are such as to constitute this association an employer of the walking bosses within the meaning of the Act. By their course of conduct on behalf of their members, which are located along the entire Pacific Coast, the regional as- sociations also fall within the Act's definition of employer of they walking bosses. (f) The history of collective bargaining with respect to walking bosses shows that, for all practical purposes, the companies and employer associations have regarded and treated all such employees throughout the Pacific Coast substantially as a single group. b. Possible separation of Washington Association members But we are of the opinion that a separate unit of walking bosses em- ployed in the Washington area by the companies which are members of the Washington Association may also be feasible for the purposes of collective bargaining. Supporting this view are the following elements : (a) The walking bosses employed in the Washington area by them- selves form a well-defined cohesive group with similar skills and uni- form wages and working conditions. (b) Walking bosses in Washington have been organized by the ILA, Local 38-114, on an area basis, and this union wishes to represent them on such a basis. (c) The organization into the Washington Association of the Wash- ington companies which employ walking bosses indicates the ability of these companies to act on a regional basis. (d) The Washington Association is an employer within the mean- ing of the Act of the walking bosses of its members. (e) Since 1938, the ILA, Local 38-114, has had collective bargain- ing agreements covering the walking bosses employed by members of the Washington Association, and it has been recognized in these agree- ments as the bargaining representative of the walking bosses. 114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In the light of the foregoing facts, we shall not at this time make a final determination of the appropriate unit or units. Such deter- mination will depend, in part, upon the desires of the walking bosses, as reflected by the results of the elections hereinafter directed in two separate voting groups. These groups shall consist of (a) the walk- ing bosses employed in the Washington area by members of one or both of the following associations: the Washington Association and the Coast Association ; and (b) the walking bosses employed in the Cali- fornia and Oregon areas by members of one or more of the following associations : the California Association, the Portland Association, and the Coast Association. Only in the event that the employees in these two voting groups, voting separately, select Petitioner, will they be taken to have indicated a desire to constitute a single appropriate unit. i . The composition of the voting groups In their final unit contentions the companies object to the inclusion of the following categories, which are sought by Petitioner: Superzntendezts and assistant s2uperinteindeuts-Petitioner alleges that certain superintendents and assistant superintendents in the south- ern part of the California area are merely "glorified"' walking bosses. The record shows, however, that these employees have duties and authority comparable to that of assistant superintendents working elsewhere on the Pacific Coast wham Petitioner does not seek to include. Accordingly, we shall exclude them.5e Utility bosses-` liese employees supervise special operations in con- nection with the loading of cargo, such as lashing, ri gging, and certain carpentry work. We shall include them, inasmuch as the record shows them to be similar to walking bosses in status, function, and authority. Car gang foremen-Inclusion of these "foremen" (also classified in some instances as ear gang bosses or clock bosses) is disputed by certain companies operating in the northern part of the California area. The record shows that certain of the employees so designated individually supervise a number of car gangs, which work tinder car gang or dock workers' contracts, have duties, and authority similar to those of walking bosses, and receive approximately the same wage rates as walking bosses. We shall include them. However, the record further shows that other employees, also known as car gang foremen, individually have charge of but one car gang and are otherwise comparable to longshore gang bosses in the duties which they perform and the wage differential which they receive. 60 Petitioner seemed to consent on the record to the exclusion of certain employees of Matson Terminals, Lie, who perform, in the San Francisco Bay area, the functions of su- perintendents and assistant superintendents, but who are classified on the pay roll as foie- men or assistant walking bosses. In any event, we shall exclude them WATERFRONT EMPLOYERS ASSOCIATION OF THE PACIFIC COAST 115 Inasmuch as longshore gang bosses are included in the contracts cov- ering rank and file longshoremen, Nye shall exclude the car gang fore- men who individually direct the work of only one car gang and are otherwise comparable to longshore gang bosses. Equipment Foreman-The record shows that only one company em- ploys an equipment foreman. Inasmuch as his work consists solely of supervising the maintenance of special equipment, we shall ex- clude him. Stores Loading Supervisors and Assistant Stores Loading Super- visor.s-The record shows that these employees, who are employed by one company, in part supervise stores gangs in the loading of stores, as distinguished from cargo, aboard ships. The regular stores gangs are not secured through the hiring hall, although extra gangs are some- times obtained there. The supervisors spend more than 50 percent of their time in the office and warehouse, where they also supervise certain clerical employees. Inasmuch as they do not perform the work of walking bosses and are not under the supervision of the stevedoring superintendent as are walking bosses, we shall exclude them. Warehouse Foremen-The record shows that certain of these em- ployees supervise workers who handle cargo on the docks, while others supervise warehouse employees. As agreed upon by the parties, we shall include those supervisors, however they may be classified, who are below the rank of assistant superintendent and who supervise em- ployees working on the docks handling cargo, and we shall exclude those supervisors who are below the rank of assistant superintendent and who supervise (1) employees handling cargo at inland ware- houses, or (2) employees who are dispatched under warehouse bar- gaining contracts. We shall direct that separate elections be held among the supervisory employees in the voting groups described below 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 : (1) All ship, dock, and walking bosses, employed in the State of Washington, exclusive of the Columbia River Ports, by the companies named in Appendix A, which are members of one or both of the follow- ing Associations : the Waterfront Employers of Washington and the Waterfront Employers Association of the Pacific Coast,' including utility bosses; car gang foremen who individually supervise a number of car gangs and have similar duties, authority, and wage rates as walking bosses; and -warehouse foremen, however they may be classi- 13 It is intended to include all members of these associations which employ ship , dock, and walking bosses in the State of Washington , exclusive of the Columbia River Ports , and not only those members listed in Appendix A. 116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD fled, who are below the rank of assistant superintendent and who super- vise employees working on the docks handling cargo; but excluding superintendents and assistant superintendents, however they may be classified; car gang foremen who direct the work of only one car gang and are otherwise comparable to longshore gang bosses; equipment foremen; stores loading supervisors and assistant stores loading super- visors; and warehouse foremen, however they may be classified, who are below the rank of assistant superintendent and who supervise (a) employees handling cargo at inland warehouses, or (b) employees who are dispatched under warehouse bargaining contracts. (2) All ship, dock, and walking bosses employed in the States of California and Oregon, including the Columbia River Ports in the State of Washington, by the companies listed in Appendices B, C, and D, which are members of one or more of the following associations: Waterfront Employers Association of California, Waterfront Em- loyers of Portland, and Waterfront Employers Association of the Pacific Coast,52 including utility bosses; car gang foremen who indi- vidually supervise a number of car gangs and have similar duties, authority, and wage rates as walking bosses; and warehouse foremen, however they may be classified, who are below the rank of assistant superintendent and who supervise employees working on the docks handling cargo ; but excluding superintendents and assistant super- intendents, however they may be classified; car gang foremen who direct the work of only one car gang and are otherwise comparable to longshore gang bosses; equipment foremen; stores loading supervisors and assistant stores loading supervisors; and warehouse foremen, how- ever they may be classified, who are below the rank of assistant super- intendent and who supervise (a) employees handling cargo at inland warehouses, or (b) employees who are dispatched under warehouse bargaining contracts. As stated above, there will be no final determination of the appropri- ate unit or-units pending the results of the elections. DIRECTION OF ELECTIONS As part of the investigation to ascertain representatives for the purposes of collective bargaining with the Employers involved herein, including the companies listed in Appendices A, B, C, and D, sep- arate elections 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 Twentieth Region, acting in this matter as agent for the National Labor 69 It is intended to include all members of these associations which employ ship, dock, and walking bosses in the States of California and Oregon , including the Columbia River Ports in Washington , and not only those members listed in Appendices B, C, and D. WATERFRONT EMPLOYERS ASSOCIATION OF THE PACIFIC COAST 117 Relations Board, and subject to Sections 203.55 and 203.56 of National Labor Relations Board Rules and Regulations-Series 4, among the employees in voting groups (1) and (2), described 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 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 have not been rehired or reinstated prior to the date of the elections, to determine in voting group (1) whether the employees desire to be represented by International Longshoremen's Association (AFL); or by International Longshoremen's and Warehousemen's Union (CIO), for the purposes of collective bargaining, or by neither; and to determine in voting group (2) whether or not the employees de- sire to be represented by International Longshoremen's and Ware- housemen's Union (CIO), for the purposes of collective bargaining. ORDER IT IS HEREBY ORDERED that the petition for investigation and certifica- tion of representatives filed herein by 'International Longshoremen's and Warehousemen's Union, CIO, be, and it hereby is, dismissed as to all companies named in the petition which are not listed in Appendices A, B, C, and D, annexed hereto, and which are not as of the date of this Order, employers of walking bosses and members of one or more of the employer associations. MR. JAMES J. REYNOLDS, JR., took no part in the consideration of the above Decision, Direction of Elections, and Order. APPENDIX A COMPANIES EMPLOYING SHIP, DOCK, AND WALKING BOSSES IN THE STATE OF WASHINGTON-EXCLUDING COLUMBIA RIVER PORTS *Alaska Steamship Co., Seattle, Washington *Ames Terminal Co., Seattle, Washington Arlington Dock Company, Seattle, Washington City Dock Company, Seattle, Washington *Coastal Steamship Co., Tacoma, Washington *Deming, Roberg & Williams, Bellingham, Washington *Indicates that the company is also a member of the Waterfront Employers Association of the Pacific Coast All companies listed in this Appendix are members of the Waterfront Employers of Washington. 118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD - Everett Stevedoring Co., Inc., Everett, Washington W. R. Grace Company, Seattle, Washington 'Griflitlls & Sprague Steve. Co., Coleman Building, Seattle, Wash- ington '"Luckenbach Steamship Co., Inc., Seattle, Washington *H. E. Mansfield, Inc., Anacortes, Washington 'Matson Terminals, Inc., Seattle, Washington *Northland Transportation Co., Seattle, Washington *Olympic Peninsula Steve. Co., % Rothschild-International, Seattle, Washington *Olympia Stevedoring Co., Olympia, Washington Pope & Talbot, Inc. (McCormick Steamship Division), Seattle, Washington `Puget Sound Steve. Co., Seattle, Washington Querns Terminal and Stevedoring Co., Seattle, Washington *Rotlschild-International Steve. Co., Seattle, Washington Shaffer Terminals, Inc., Tacoma, Washington *Tait Stevedoring Co., Seattle, Washington *Twin Harbor Stevedoring & Tug Co., Hoquiam, Washington *Washington Stevedoring Co., Seattle, Washington *Western Stevedore Co., Seattle, Washington Williams Dimond & Co. 'Indicates that the company is also a member of the Waterfront Employers Association of the Pacific Coast All companies listed in this Appendix are members of the Waterfront Employers of Washington APPENDIX B Co]I PAN I i'S E1 l PLOYING S l-ill', DOCK, AND `TALKING BOSSES IN THE NoRTiii i x PART OF THE STATE OF CALIFORNIA *Arrow Stevedore Co., San Francisco, California *Associated-Benning Co., San Francisco, California California Stevedore &- Ballast Co., San Francisco, California J. C. Strittmatter, doing business as Consolidated Steamship Com- pany, San Francisco, California ' *El Dorado Terminals Co., San Francisco, California "Flooc1-Brothers, San Francisco, California *Frank J. Foran, Inc., San Francisco, California 'Henry Gerland, doing business as General Stevedoring & Ballast Co., San Francisco, California *W. R. Grace & Company, 2 Pine Street, San Francisco, California Howard Terminal, 95 Market Street, Oakland, California *Indicates that the company i also a member of the waterfront Employers Association of the Pacific Coast Except as indicated , aft companies listed in this Appendix are mem- hers of the Waterfront Employ ers Association of California. WATERFRONT EMPLOYERS ASSOCIATION OF THE PACIFIC COAST 119 -"'Humboldt Stevedore Co., Ltd., Eureka, California *Jones Stevedoring Co., San Francisco, California >.Luckelibach Steamship Co., Inc., San Francisco, California ""Marine Terminals Corp., San Francisco, California -Matson Terminals, Inc., San Francisco, California *Mitchell Stevedoring Co., San Francisco, California Northern California Terminals, San Francisco, California 'Charles Haseltine, doing business as Pacific Steve. & Bal. Co., San Francisco, California *Pope and Talbot, Inc., San Francisco, California *San Francisco Steve. Co., San Francisco, California Seaboard Steve. Corp., San Francisco, California Schirmer Steve. Co., Ltd., San Francisco, California **The record indicates that Humboldt Stevedore Co., Ltd , may be a member only of the Coast Association. *Indicates that the company is also a member of the Watertiont Employers Association of the Pacific Coast Except as indicated, all companies listed in this Appendix are mem- bers of the Waterfront Employers Association of Calitoinm APPENDIX C COMPANIES EMPLOYING SHIP, DOCK, AND WALKING BOSSES IN THE SOUT1'1ERN PART OF THE STATE OF CALIFORNIA ^-Associated-Banning Co., Los Angeles, Long Beach, California Crescent Wharf & Warehouse Co., Terminal Island, California Long Beach Terminals Co., Long Beach, California *Marine Terminals Corp., of Los Angeles, Terminal Island, Cali- forma Matson Terminals, Inc., Los Angeles, Long Beach, California Metropolitan Stevedore Co., Willnnlgton, California Outer Harbor Dock & Wharf Co., San Pedro, California `Pope and Talbot, Inc., Los Angeles, Long Beach, California Seaboard Stevedoring Corp., Los Angeles, Long Beach, California *Indicates that the company is also a member of the Waterfront Employers Association of the Pacific Coast All companies listed in this Appendix are members of the Waterfront Employers Association of California APPENDIX D CO_lIP.1NIFS EMPLOYING SHIP, DOCK, AND WALKING BOSSES IN THE STATE OF OREGON-INCLUDING ALL COLUMBIA RIVER PORTS *Albina Dock Co., Portland, Oregon Brady-Hamilton Stevedores, Inc., Portland, Oregon *Indicatm that the company is also a member of the Waterfront Employers Association of the Pacific Coast All companies listed in this Appendix are members of the Waterfront Employers of Portland 120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Columbia Basin Terminals, 1788 N. W. Front Street, Portland, Oregon *Independent Stevedore Co., Marshfield, Oregon *Interstate Terminals, Portland, Oregon *W. J. Jones & Son, Inc., Portland, Oregon Linton Terminals Longview Steve. Co., Longview, Oregon *Luckenbach Steamship Co., Inc., Portland, Oregon *Oregon Stevedoring Co., Portland, Oregon *Pope and Talbot, Inc. (McCormick Steamship Division), Portland, Oregon *Portland Stevedoring Co., Portland, Oregon Seaboard Steve. Corp. of Washington, Portland, Oregon West Oregon Terminals, Portland, Oregon Williams, Dimond & Co., Portland, Oregon *Indicates that the company is also a member of the waterfront Employers Association of the Pacific Coast. All companies listed in this Appendix are members of the waterfront Employers of Portland.