New York Shipping Association

NEW YORK SHIPPING ASSOCIATION 791 maintaining our standards there appears no alternative but to set this election aside and to direct a new election. ."[The Board ordered the second mail ballot election be set aside.] '[Text of Direction of Election omitted from publication.] MEMBER BEESON took no part in the consideration of the above Decision, Order, and Direction of Election. NEW YORK SHIPPING ASSOCIATION AND ITS MEMBERS and INTERNA- TIONAL LONGSHOREMEN'S ASSOCIATION, INDEPENDENT, AND AMERICAN FEDERATION OF LABOR, INTERNATIONAL LONGSHOREMEN 'S Associ- ATION. Case No. 2-RM-556. August 12,1954 Order Directing Hearing on Challenges On May 26, 1954, pursuant to a Supplemental Decision and Order dated April 1, 1954, and a Second Direction of Election dated April 26, 1954, a second election by secret ballot was conducted in the above- entitled matter under the direction and supervision of the Regional Director for the Second Region. The tally of ballots issued on May 26, 1954, and served upon the parties, showed that'the challenges were sufficient in number to affect the results of the election. No objections were filed by any of the parties to the election. Pursuant to Section 102.61 of the Board's Rules and Regulations, the Acting Regional Director made an investigation of the challenged ballots, and on June 18, 1954, issued and served on the parties his report on challenges. In his report, the Acting Regional Director recommended that the Board overrule the challenges to 655 ballots; sustain the challenges to 472 ballots; rule 12 ballots void; and if neither union had a majority of the valid votes cast after opening and count- ing of the first-mentioned group of ballots, that the Board direct a hearing to take testimony with respect to a group of 630 voters chal- lenged as alleged supervisors. On June 28, 1954, the Association filed exceptions to the recom- mendation that a hearing be held with respect to 550 of the 630 ballots (the 550 representing those challenged as cast by "hatch bosses"). On July 1, 1954, the AFL filed exceptions to the recommendations with respect to 2 challenged ballots (La Dagona and Noble) and 36 other ballots of individuals challenged as alleged supervisors, and made certain additional requests not relating to any specific chal- lenges. The Independent filed no exceptions. On July 22, 1954, the Board issued an order directing the Regional Director to open and count the 655 ballots as recommended by the 109 NLRB No.124. 792 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Acting Regional Director, and the 2 ballots of La Dagona and Noble as urged by the AFL in its exceptions ; it also adopted the Acting Regional Director's recommendation that 12 challenged ballots be found void; and rejected as without merit the requests included in the AFL's exceptions. On July 27, 1954, the Regional Director issued a revised tally of ballots certifying the results of counting the challenged ballots di- rected to be counted by the Board on July 22,1954. The revised tally of ballots showed that the remaining challenges were sufficient in num- ber to affect the results of the election. In his report, the Acting Regional Director stated that with respect to the group of 630 (described in Appendix L in the report), the AFL challenged 491, the Independent challenged 123, and the remaining 16 were challenged either jointly by the two unions and/or by the Board agents. Of the 630 challenges, approximately 550 were chal- lenged as "hatch bosses" and the remainder as chief clerks or foremen of a supervisory nature. The Acting Regional Director, stated that during the course of the investigation of certain alleged unfair labor practices in New York Shipping Association et al. Case No. 2-CA- 3466, substantial evidence was obtained concerning the status of hatch bosses to the effect that although the duties and responsibilities of hatch bosses varied depending on the location of their employment, it appeared from the testimony of over 10 percent of the hatch bosses in- terviewed that, as a minimum, they responsibly direct the men work- ing in their gangs, and, in addition, many of them appear to make effective recommendations concerning the status of the men in their group. He found further that if none of the hatch bosses had super- visory authority, then all of the supervisory authority would be vested in a supervisor who would have direct supervision over the work of at least 80 employees who were working in different locations. He also stated that his investigation revealed that hatch bosses do little, if any, physical labor in most cases and that they are usually paid 15 cents an hour more than the longshoremen in their gangs. The Acting Regional Director concluded that in view of the variances in the duties and responsibilities of the hatch bosses, the nature and extent of the field investigation which would be required to make recommendations concerning the disposition of these challenges would be so time-con- suming as to unduly delay the resolution of the representation issue and prolong the instability existing in the Port of New York. He found a similar problem to exist with respect to the approximately 80 remaining supervisory challenges listed in the group of 630 challenges under consideration. The Board (Chairman Farmer and Members Peterson and Beeson) duly considered the Acting Regional Director's report on challenges, the exceptions filed thereto, and the revised tally of ballots. NEW YORK SHIPPING ASSOCIATION 793 In the opinion of the Board, the matters disclosed in the report on challenges as to the status of the hatch bosses are sufficiently serious to warrant the holding of a hearing for the purpose of resolving the issues raised. The Board took into full consideration the contentions of the Association in its exceptions (1) that "hatch bosses" and "hatch foremen" are the same, and that all the parties, including the AFL, specifically agreed that the hatch foremen were working foremen and should be included in the unit; (2) that hatch bosses were not chal- lenged in the December 1953 election; and (3) that hatch bosses are registered as longshoremen and are not licensed as hiring agents by the Bi-State waterfront Commission. However, as supervisors are expressly excluded from the coverage of the Act, and as the matters disclosed by the report on challenges concern alleged supervisors, a serious issue is raised which goes to the Board's jurisdiction, the resolu- tion of which the Board cannot obviate because of technical, pro- cedural, or other considerations. As the Regional Director's findings reveal evidence of at least a prima facie character that some of the hatch bosses may possess or exercise supervisory authority, the Board has no alternative but to direct a hearing to resolve this issue. As a similar problem exists as to the remaining 80 challenges in this group of 630, the Board will include those in the hearing on challenges. In the report on challenges, the Acting Regional Director recom- mended sustaining the challenges with respect to a group of 202 voters, (Appendix K), whose names were either omitted from the eligibility list or stricken therefrom on the basis of lists of supervisors, but which, according to the report, none of the parties asserted were eligible to vote. In its exceptions, the AFL contends that 36 of these voters (listed by name in the AFL's exceptions), were not supervisors, and were therefore within the unit described by the Board in its Direction of Election. In view of this conflict, the Board will also include those challenges in the hearing on challenges. IT IS HEREBY ORDERED that a hearing be held to take evidence with respect to the 630 challenges in Appendix L of the report on chal- lenges and the 36 challenges (listed by name in the AFL exceptions) of the group described in Appendix K of the report on challenges; IT IS FURTHER ORDERED that the said hearing shall be conducted by a Trial Examiner assigned by the Chief Trial Examiner. IT IS FURTHER ORDERED that the above-entitled matter be, and it hereby is, referred to the said Regional Director for the purpose of conducting such hearings, and that the aforesaid Regional Director be, and he hereby is, authorized to issue early notice thereof. By direction of the Board : FRANK M. KLEILER, Executive Secretary.