Wilmington Transportation Co.

In the Matter Of WILMINGTON TRANSPORTATION COMPANY, EMPLOYER and SEAFARERS INTERNATIONAL UNION OF NORTH AMERICA, AFL, PETITIONER Case No. 21-R-3224.Decided October 11, 1946 Gibson, Dunn cti Crutcher, by Mr. David P. Evans, of Los Angeles, Calif., and Mr. L. H. Connor, of Wilmington, Calif., for the Em- ployer. Messrs. E. G. Arnold and William L. Gries, of Wilmington, Calif., for the Petitioner. Katz, Gallagher, and Margolis, by Mr. John T.'McTernan, of Los Angeles, Calif., and Mr. John A. Palmer, of San Pedro, Calif., for the Intervenor. Mr. Bernard Dunau, of counsel to the Board. DECISION AND DIRECTION OF ELECTION , Upon a petition duly filed, hearing in this case was held at Los Angeles, California, on July 24, 25, and 29, 1946, before James A. Cobey, hearing officer. The hearing officer's rulings made at the hear- ing are free from prejudicial error and are hereby affirmed. Upon the entire record in the case, the National Labor Relations Board makes the following : FINDINGS. OF FACT 1. THE BUSINESS OF THE EMPLOYER Wilmington Transportation Company, a California corporation with principal offices at Wilmington, California, operates a steamer service between Wilmington (Los Angeles harbor), California, and Avalon, Santa Catalina Island, and a tugboat service confined primar- ily to the Los Angeles-Long Beach harbor area. About 90 percent of the ships assisted within the Los Angeles-Long Beach harbor area by the Employer's tugboats are engaged in interstate or foreign com- merce. We find that the Employer is engaged in commerce within the meaning of the National Labor Relations Act. II. THE ORGANIZATIONS INVOLVED The Petitioner is a labor organization affiliated with the American Federation of Labor claiming to represent employees of the Employer. 71 N. L. R. B, No. 45. 328 WILMINGTON TRANSPORTATION COMPANY 329 Inlandboatmen's Union of the Pacific (San Pedro Division), herein called the Intervenor, is a labor organization affiliated with the Con- gress of Industrial Organizations claiming to represent employees of the Employer. III. TISE QUESTION CONCERNING REPRESENTATION The Employer refuses to recognize the Petitioner as the exclusive bargaining representative of employees of the Employer until the Petitioner has been certified by the Board in an appropriate unit, con- tending that it has a currently effective collective bargaining agree- ment with the Intervenor which precludes a present determination of representatives. The Intervenor, however, contends that its agree- ment with the Employer had been terminated prior to the filing of the petition in this proceeding, and, together with the Petitioner, seeks an election to resolve the question concerning representation. On February 3, 1943, the Employer entered into a single collective bargaining agreement with the Intervenor, representing deck hands and ether unlicensed deck personnel, the Masters Mates and Pilots of America, Local No. 18, herein called the Masters, representing cap- tains, and Marine Engineers' Beneficial Association, No. 79, Inc., herein called the Engineers, representing engineers and assistant en- gineers. This agreement was made retroactive to January 1, 1943, and was to continue for annual periods thereafter unless written notice of a "desire to amend, modify, or terminate" the agreement was given by any of the parties not less than 30 days but not more than 60 days prior to December 31 of any calendar year. The agreement cov- ered the usual subjects of collective bargainining contracts. On November 14, 1944, the Masters wrote to the Employer declar- ing the agreement to be "open for the purpose of negotiation"; on November 27, 1944, the Intervenor wrote a similar letter to the Em- ployer expressing its desire to open the contract for renegotiation in conjunction with the Masters; on November 30, 1944, the Engineers wrote to the Employer stating its wish to open the agreement "for an adjustment of wages." On December 11, 1944, at a joint conference of the parties, all participants agreed to hold their negotiations in abeyance, pending the submission to the National War Labor Board of a wages and working conditions issue then in dispute between the unions and a competing tugboat company. Thereafter, on May 10, 1945, at a conference which all the contracting parties attended, an oral agreement was reached concerning increased wage rates which were to be retroactive to May 1, 1945. Certain seniority changes were also agreed upon, but it is not clear whether accord on this matter was reached on May 10, 1945, or at some time after that, but before June 25, 1945. The seniority provisions were primarily negotiated 330 DECISIONS OF NATIONAL LABOR RELATIONS BOARD by the Masters and the Engineers. The Intervenor has little interest in them, and acquiesced in the matter out of deference to the wishes of the other two unions. On June 25, 1945, the contracting parties executed two instruments which reduced to writing the matters previously agreed upon. One instrument was entitled-"Tugboat Agreement" and was further de- scribed as "Paragraph F, Section 4, covering Classification and Rates of Pay." It contained the wage rates under the existing contract and the proposed increased wage rates, and added a paragraph (G) which had not been part of the original agreement. The second instrument read "It is hereby agreed and understood that Section 13 of Tugboat Agreement effective January 1, 1943, covering establishing of senior- ity, shall be as follows and the provisions thereof shall be applied retroactive to May 1, 1945," and beneath this statement certain sub- stantive changes in existing seniority rules were listed under Para- graphs (A) through (F). These two instruments were submitted to the National War Labor Board in appropriate form, and after ex- tended proceedings before the War Shipping Panel of that I)ody, approval of the increased wage rates was granted on December 29, 1945. At no time between the opening'of negotiations in November 1944, and the approval of the wage increase on December 29, 1945, did the Intervenor submit to the Employer proposals on matters other than those previously described. On January 31,1946, the Petitioner wrote to the Employer stating that it represented a majority of the Em- ployer's unlicensed deck personnel, and requested a conference to nego- tiate an agreement. On February 6,1946, the Employer replied that it had an agreement with the Intervenor covering these employees, and that until the Petitioner was duly certified as their exclusive bargain- ing representative it would continue to treat with the Intervenor. On February 11, 1946, the petition in this proceeding was docketed. On February 28, 1946, the Masters, the Engineers, and the Inter- venor mailed to the Employer a proposed uniform tugboat agreement, and at the same time mailed an identical agreement to other tugboat companies in the Los Angeles harbor area. This proposed agreement had been drafted at the suggestion of the Department of Labor which had indicated the desirability of a uniform industry-wide contract re- lating to labor relations. The Employer did not acknowledge the request for a meeting contained in the covering letter. On April 5, 1946, the Intervenor wrote to the Employer, disputing the accuracy of a seniority list submitted by the Employer on Febru- ary 7, 1946, and citing relevant provisions in the original agreement and the revisions in support of its position. During the entire period of time between the opening of negotiations in November 1944, and the hearing, it appears that the Employer and the Intervenor in their WILMINGTON TRANSPORTATION COMPANY 331 dealings with each other guided themselves in accordance with the original agreement as revised. In support of its position that it has a currently effective agreement with the Intervenor, the Employer contends that the reasonable infer- ence to be drawn from the course of conduct between the contracting parties and the wording of the revised provisions is that on June 25, 1945, the date of the signing of the revisions, the negotiations between the parties on disputed issues were closed and the original agreement, except, as modified by the revisions, was thereupon resumed for the tern indicated therein. The Intervenor, on-the other hand, contends that after the opening of the original agreement in November 1944, the contract ceased to be for a fixed term and became terminable at the will of either party. Upon this record, we incline to the Employer's position that its agreement with the Intervenor continues in full force and effect. In this view the petition, having been filed almost 10 months prior to the date when the agreement may be reopened, was prematurely filed and should normally have been disnussed when filed. Were this all, or had some intervening equity arisen in favor of any party since the premature filing of the petition, we should now dismiss. We note, however, that the date when the agreement may be opened is not far off, that the Employer will in any event shortly again be faced with conflicting claims of rival labor organizations, and that no party's rights can he adversely affected by a present determination of the question concerning the representation of these employees for the period following the current contract term. Under these circum- stances no purpose would now be served by dismissing the pending petition and requiring the institution of a new and time-consuming proceeding. We find that the contract between the Intervenor and the Employer is not a bar to a determination of representatives within the next ^30 days pursuant to our usual Direction of Election. In directing an election at the present time we do not thereby intend to abrogate any rights the parties may have under existing contracts. Any certifi- cation of representatives which we may issue as the results of the elec- tion shall be for the purpose of negotiating a new contract to take effect upon the expiration of the existing agreement. We find that a question affecting commerce has arisen concerning the representation of employees of the Employer, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the Act. Iv. THE APPROPRFATE UNIT We find, in accordance with the agreement of the parties , that all unlicensed deck personnel employed on the Employer 's tugboats, ex- 332 DECISIONS OF NATIONAL LABOR RELATIONS BOARD eluding all supervisory employees with authority to hire, promote; discharge, discipline, or otherwise effect changes in the status of em- ployees, or effectively recommend such action, constitute a unit ap- propriate for the purposes of collective bargaining within the mean- ing of Section 9 (b) of the Act. V. THE DETERMINATION OF REPRESENTATIVES We shall direct that the question concerning representation which has arisen be resolved by an election by secret ballot, subject to the limitations and additions set forth in the Direction. We find,,in accordance with the agreement of the parties, that all captains who have worked as deck hands 50 percent or more of their time during the 60-day period immediately preceding the date of the Direction of Election herein shall be eligible to vote in the election. As the result of a decline in business, a number of employees now are or may be on leave of absence at the time of the election. It does not appear that employees in this position have any reasonable expectation of employment with the Employer in the near future. Accordingly, employees on such leave of absence status at the time of the election shall be ineligible to vote. DIRECTION OF ELECTION As part of the investigation to ascertain representatives for the purposes of collective bargaining with Wilmington Transportation Company, Wilmington, California, an election by secret ballot shall be conducted as early as possible, but not later than thirty (30) days from the date of this Direction, under the direction and supervision of the Regional Director for the Twenty-first Region, acting in this mat- ter as agent for the National Labor 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 the unit found appropriate in Section IV, above, who were employed during the pay- roll period immediately preceding the date of this Direction, including employees who did not work during said pay-roll period because they were ill or on vacation or temporarily laid off 1 and including em- ployees in the armed forces of the United States who present them- selves 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 election, to determine whether they desire to be represented by Seafarers International Union of North America, AFL, or by Inlandboatmen's Union of the Pacific (San Pedro Division), CIO, for the purposes of collective bargaining, or by neither. Tins term does not include employees on leave of absence of laid -off employees o ho have little reasonable expectation of a return to work.