Hutchinson & Co.

90 DECISIONS OF NATIONAL LABOR RELATIONS BOARD views with each employee in the voting unit. In two instances these employees were interviewed in Thompson's automobile at their re- spective homes; the other employees were interviewed separately in his office. It is well established that the "technique of calling the employees into the Employer's offices individually" to urge them to reject the union is, in itself, conduct calculated to interfere with their free choice in the election.2 This is so, regardless of the noncoercive tenor of an employer's actual remarks.3 Because the Employer's conduct interfered with the employees' freedom of choice in the selection of a bargaining representative, we shall sustain the Petitioner's objections and set the election aside. We shall further direct the Regional Director to conduct a new election at such time as he deems appropriate .4 Order IT IS HEREBY ORDERED that the election of June 10, 1952, be, and it hereby is, set aside; and IT IS FURTHER ORDERED that this proceeding be remanded to the Re- gional Director for the Fifteenth Region for the purpose of conduct- ing a new election at such time as he deems the circumstances permit a free choice of a bargaining representative. MEMBERS STYLES and PETERSON took no part in the consideration of the above Supplemental Decision and Order. 3 General Shoe Corporation (Marman Bag Plant), 97 NLRB 499. 8 We reject the Employer's claim that Silver Knit Hosiery Mills, Inc., 99 NLRB 422, and Calvine Cotton Mills, Inc., Plant No . 2, 98 NLRB 843, are controlling here. In Silver Knit, the Employer's remarks were addressed to large groups of employees , not individuals. In Calvin, the remarks were made to but a single employee , occurred 6 weeks prior to the election, and did not reflect a similar pattern of conduct toward any other employees. 4 As there is no dispute concerning the facts in this case , the Employer's motion for a hearing is hereby denied. HUTCHINSON & CO., BUCKEYE STEAMSHIP Co., PIONEER STEAMSHIP CO., AND INLAND STEEL Co.' and UNITED STEELWORKERS OF AMERICA, CIO, PETITIONER. Case No. 8-RC-1765. October 23, 1952 Decision and Direction of Elections Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Charles A. Fleming, hearing ' The names of the Employers are hereby amended to conform to our findings within Harding College, 99 NLRB 957. 101 NLRB No. 30. HIITCHINSON & CO. 91 officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman Herzog and Members Murdock and Peterson]. Upon the entire record in this case,2 the Board finds : 1. Hutchinson & Co., a partnership consisting of John T. Hutchin- son, Jean C. Hutchinson, and Dale Coy, is engaged solely in the man- agement and operation of vessels on the Great Lakes for Pioneer Steamship Co., Buckeye Steamship Co., and Inland Steel Co. With respect to Pioneer and Buckeye, the record discloses that the three partners of Hutchinson are the only officers of Pioneer and Buckeye and all these companies maintain the same principal office 3 The Hutchinson partners are also directors of Pioneer and Buckeye. For many years, Hutchinson has had an oral agreement with Buckeye and Pioneer under which it manages all their vessels. Hutchinson's managerial functions consist of the following: Through its fleet cap- tain and fleet engineer, dispatching and controlling the movement and operation of all the ships of Buckeye and Pioneer; keeping all records of the fleets' operations including requisitions for repairs, pur- chases, personnel records, and preparing tax returns and all contracts entered into by Buckeye and Pioneer. Hutchinson's fleet captain and fleet engineer hire all the captains, chief engineers, and other licensed personnel. The captains and chief engineers of the respective vessels then hire their own unlicensed per- sonnel and send crew lists to Hutchinson & Company. The captains and chief engineers of all the vessels of Pioneer and Buckeye are under the supervision of and responsible to the fleet captain and fleet engineer of Hutchinson. All major purchases of supplies and repair jobs must receive final approval by Hutchinson's fleet captain and fleet engineer. The respective captains pay their crew members by check drawn on the respective steamship companies and all payroll records are maintained by Hutchinson. All invoices and requisitions are made out in the name of the particualar steampship company but are approved by Hutchinson. With respect to Inland the record discloses that, while Hutchinson also has had an oral agreement with Inland for many years whereby Hutchinson assists Inland in the operation of its vessels, the relation between Inland and Hutchinson and that of Buckeye and Pioneer with Hutchinson is quite different. Thus, ownership of five steamships is only one of Inlaiid's many business enterprises. Moreover, none of 2 On October 15, 1952, the attorneys for Pioneer Steamship Co. and Buckeye Steamship Co. requested oral argument . This request is hereby denied as the record and briefs, in our opinion , adequately present the issues and positions of the parties. 8 Buckeye also maintains a small office other than the office which it has with Pioneer and Hutchinson where some of its accounting work is performed. 92 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the partners of Hutchinson are officers or directors of Inland nor do Hutchinson and Inland occupy the same offices. Furthermore, Inland retains most of the direct operational control of its vessels and retains Hutchinson on an advisory basis only and as a general accounting agent. In contrast to the situation with regard to Pioneer and Buckeye, Inland has its own fleet manager and fleet engineer in Chicago who direct the dispatching of all its vessels and control all the hiring and firing of both licensed and unlicensed personnel. Furthermore, In- land maintains direct contact and control with all the personnel on its vessels in such matters as advising them when and where to report to the ships, matters relating to insurance, working conditions, griev- ances, and all decisions relating to industrial relations policies. The employees on the Inland vessels are eligible and receive all the benefits allowed to all Inland employees, which are not given to the employees of Hutchinson, Pioneer, and Buckeye. The Inland vessels are used as private carriers for the Inland Steel Company, while the vessels of Hutchinson, Pioneer, and Buckeye are contract carriers. All condi- tions of employment of its employees such as wages and other benefits are directly determined by Inland and such determinations are in no way influenced by negotiations with Buckeye, Pioneer, and Hutchinson. At the hearing no formal appearance was made for Hutchinson, although one of its partners testified as to its relations with Buckeye, Pioneer, and Inland. The attorneys for the latter three companies moved to dismiss the petition upon the ground that it did not designate the proper employer because each of the three companies is an em- ployer and not Hutchinson. This motion was referred to the Board. In view of the facts given above regarding the relationship between Hutchinson, Pioneer, and Buckeye, we find, contrary to the conten- tion of Pioneer and Buckeye, that all three together constitute a single Employer within the meaning of Section 2 (2) of the Act.' On the other hand, we believe and so find that the record amply sup- ports the position of Inland to the extent that it contends that it is a separate Employer. However, the record also shows that the two Employers found herein were notified of the hearing, were fully ap- prised of the Petitioner's claim, and were aware at all times that this matter concerned their employees. Moreover, the Employers participated in the hearing, were represented by counsel, and had a complete opportunity to present their positions on all the issues which arose. There was no prejudice under the circumstances, and we there- fore deny the motion to dismiss the petition.5 A Emerson & Stevens Mfg. Co., et al , 95 NLRB 964 ; Central Packing Company, at al., 95 NLRB 19 ; Manhattan Shirt Company, et al., 84 NLRB 100. 5 See Harding College, footnote 1, supra.; Warwick Lumber Company, 78 NLRB 107. HUTCHINSON & Co. 93 Accordingly, we find that Hutchinson, Pioneer, and Buckeye and Inland are Employers engaged in commerce within the meaning of the Act. 2. The labor organizations involved claim to represent certain em- ployees of the Employer. 3. A question affecting commerce exists concerning the representa- tion of employees of the Employers within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act. 4. In its brief, the Petitioner contends that there should be two appropriate bargaining units--one, consisting of all unlicensed per- sonnel on the vessels of Hutchinson, Buckeye, and Pioneer, and the other, consisting of all unlicensed personnel on the vessels of Inland. The Intervenor, Seafarers' International Union of North America, Great Lakes District, AFL, in its brief agrees with these unit con- tentions of the Petitioner. The latter, however, also states that if the Board does not agree as to the propriety of these two units, it then requests that separate units of the unlicensed personnel on the vessels of Buckeye, Pioneer, and Inland be found appropriate. Buck- eye, Pioneer, and Inland take the position that only the Petitioner's alternative units are appropriate. In light of the facts set forth above, on the basis of which we have found that Hutchinson, Pioneer, and Buckeye constitute a single Em- ployer within the meaning of the Act and Inland a separate Employer, we find that the two units which the Petitioner and Intervenor agree upon are appropriate.6 Regarding particular classifications of employees to be included or excluded from the units found appropriate, all parties agree that the stewards should be excluded as supervisors. However, they disagree as to other classifications which we shall now consider. Boatswains: The Petitioner contends that boatswains should be included in the units. The Employers and the Intervenor would ex- clude boatswains on the ground that they are supervisors. The duties of a boatswain consist of maintaining all deck gear in sound condition. He is also responsible for the sanitary condition of the ship and all general maintenance work. He assigns and directs the deck hands in their duties and instructs them in the performance of their work. He has approximately six men under his supervision. He does work similar to that performed by these employees only 10 percent of the time. He receives higher wages than they do and where separate quarters are not available for him he is quartered with li- censed officers. He eats with the officers. Also, upon docking the ship the captain will utilize the boatswain for duties usually handled by 6 The M. A. Hanna Company, 75 NLRB 185 ; Wilson Transit Company, 75 NLRB 181; The Kinsman Transit Company, 75 NLRB 150. 94 DECISIONS OF NATIONAL LABOR RELATIONS BOARD one of the mates. As it appears that boatswains responsibly direct other employees, we find that they are supervisors within the meaning of the Act and shall exclude them from the units.? The conveyorman: The Petitioner contends that the conveyorman should be included in the unit. Employer Hutchinson, Pioneer, and Buckeye and the Intervenor would exclude the conveyorman on the ground that he is a supervisor. The classification of conveyorman is found only on ships that have their own unloading gear. There is only one vessel which is in the Pioneer fleet that unloads her own cargo. There is one conveyorman on this vessel. He is under the direct supervision of the chief engineer. His duties are to maintain and keep in repair the unload- ing gear and to direct operation of the unloading gear when the ship is discharging its cargo. He directs the work of three men who, like the conveyorman, perform no general deck duties and are not under the supervision of any of the supervisory deck personnel. The con- veyorman assigns and directs the three employees and has the author- ity to effectively recommend the hiring and firing and the promotion of these men to the chief engineer. The conveyorman is paid wages equivalent to those of a second mate. Under the circumstances, we find that the conveyorman is a supervisor within the meaning of the Act and shall exclude him from the unit of employees of Employer Hutchinson, Pioneer, and Buckeye. Captains, First and second mates, and chief engineers of the barges: The Petitioner would exclude these employees as supervisors. The Intervenor would include them unless the Board finds that they are supervisors, as they are not required by law to be licensed personnel. Employer Hutchinson, Pioneer, and Buckeye agree with the Peti- tioner's position. Buckeye is the only company that has barges. There are 5 of them and they have the same physical characteristics as the steam- ships, except that they do not have self-propulsion machinery. These barges carry from 5,500 to 9,000 tons of cargo consisting of iron, coal, and grain. They each have a crew of approximately 16 men, a captain, first and second mates, and a chief engineer. The barges are towed by steamships. The captain and the first and second mates have duties and respon- sibilities similar to those of a captain and mates aboard a steamship, except for navigational duties. The fleet captain or the captain of the barge hires the members of the crew. The first and second mates, who have the same authority over the watch as the mates on the steamships, also have the same authority to recommend hiring and ' Cities Service Oil Co. of Pennsylvania, 80 NLRB 1512, 1515. HUTCHINSON & CO. 95 firing of crew members of the barge. The captain and first and second mates stand wheel watches in the pilot house just as they would on a steamship. At the end of the season the captain, mates, and chief engineer receive a bonus from their Employer. The chief engineer on the barge has three men who work under his direction. He signs articles in the same manner as the chief engineer on a steamship. He directs the men under his charge in the main- tenance and care of boilers, pumps, towing engines , anchor windlass, generators, and equipment similar to that on a steamship. He has the authority to hire and fire these men. In view of the foregoing, and particularly the very substantial similarity between the duties and responsibilities of these officers and those on board steamships, we find that the captains, first and second mates, and chief engineers on the barges are supervisors and shall exclude them from the unit of employees of Employer Hutchinson, Pioneer, and Buckeye. Wheelsmen with licenses and oilers with licenses : The Petitioner and Intervenor would include these men and Employer Hutchinson, Pioneer, and Buckeye would exclude them from the unit. Apparently Employer Inland does not have any of these employees and therefore takes no position. Wheelsmen and oilers on steamships are not required to have li- censes. The Petitioner and Intervenor contend that job classifica- tion is the primary test and therefore these men should be included in the unit despite the fact that they have licenses which entitle them to perform more technical duties. Employer Hutchinson , Pioneer, and Buckeye contend that they should be excluded because although they are now serving in unlicensed capacities this is only temporary until vacancies occur. We agree with the Petitioner and Intervenor that the principal basis for inclusion or exclusion of employees from a unit should be the work that their particular job classification calls for them to do. Accordingly, we shall include employees perform- ing the work of wheelsmen and oilers in the unit regardless of whether or not they may happen to have licenses. We find that the following group of employees of the Employers constitute units appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act : (1) All unlicensed personnel on board all vessels owned and/or operated by Employer Hutchinson, Pioneer, and Buckeye, including wheelsmen and oilers with or without licenses, but excluding licensed officers, stewards, the conveyorman, captains, first and second mates, and chief engineers on barges, boatswains, guards, professional em- ployees, and supervisors as defined in the Act. 96 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (2) All unlicensed personnel on board all vessels owned and/or operated by Employer Inland, excluding licensed officers, stewards, boatswains, guards, professional employees, and supervisors as de- fined in the Act. [Text of Direction of Elections omitted from publication in this volume.] TIIE RATH PACKING COMPANY and UNITED PACKINGHOUSE WORKERS OF AMERICA, LOCAL No. 46, CIO, PETITIONER. Cases Nos. 18-RC- 1556, 18-RC-1557, and 18-RC-1593. October 23, 1952 Decision, Order, and Direction of Elections Upon petitions duly filed under Section 9 (c) of the National Labor Relations Act, a consolidated hearing was held before Harry Irwig, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed., Upon the entire record in this case, the Board finds : 1. The Employer is engaged in commerce within the meaning of the Act. 2. The labor organizations involved claim to represent employees of the Employer. 3. For the reasons set forth in paragraph numbered 4, below, ques- tions affecting commerce exist concerning the representation of em- ployees of the Employer, within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act, in Cases Nos. 18-RC-1556 and 18-RC-1557, but none exists in Case No. 18-RC-1593. 4. At its Waterloo, Iowa, plant, the Employer is engaged in the slaughtering of livestock and the processing of meat products. The Petitioner, which has represented the production and maintenance employees at this plant since 1948, now seeks an election in three groups currently excluded from the production and maintenance unit. i National Brotherhood of Packinghouse Workers, Confederated Unions of America, was granted leave to intervene in Cases Nos . 18-RC-1556 and 18-RC-1557 on the basis of contracts then in force but now expired . Its request to intervene in Case No . 18-RC-1593 was denied for lack of a sufficient showing of interest. At the hearing the Intervenor sought to introduce evidence to show that certain persons alleged to be or to have been officers and policy makers of the Petitioner were in fact Communists The hearing officer properly rejected the evidence. We are administra- tively satisfied that non-Communist affidavits have been filed by the officers of the Petitioner, as required by Section 9 (h) of the Act. Congress has made the truth or falsity of those affidavits a concern of the Department of Justice, not of this Board. The fact of compliance by a labor organization which is required to comply is not litigable by the parties to Board proceedings. Sunbeam Corporation, 94 NLRB 844 , 93 NLRB 1205, and 89 NLRB 469. 101 NLRB No. 25.