American Hawaiian Steamship Co.

In the Matter of AMERICAN HAWAIIAN STEAMSHIP COMPANY and NATIONAL ORGANIZATION OF MASTERS, MATES AND PILOTS OF AMERICA, A. F. L. Case No. R-3688.-Decided May 2 8,1942 Jurisdiction : water transportation industry. Investigation and Certification of Representatives : existence of question: Com- pany questioned petitioner's claim of majority representation in an appropriate bargaining unit; election necessary. Unit Appropriate for Collective Bargaining : all licensed deck officers, including masters and pilots. Definitions : Company, which hires, discharges, pays, and in other respects acts as the employer of the personnel on its vessels requisitioned by the Maritime Commission which controls the assignment of cargoes, the departure, arrival, and destination of vessels, held to be an employer within the meaning of the Act. Practice and Procedure : where Board found appropriate a unit different from that requested by union, provision was made for dismissal of the petition if the union should notify the Regional Director within a specified time that it did not desire to participate in an election. Brobeck. Phleger and Harrison, by Mr. Moses Lasky, of San Fran- cisco, Calif., for the Company. Mr. C. F. May, of San Francisco, Calif., for the M. M. P. Mr. Max E. Halpern, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE Upon petition duly filed by National Organization of Masters, Mates and Pilots of America, A. F. L., herein called the M. M. P., alleging that a question affecting commerce had arisen concerning the representation of employees of American Hawaiian Steamship Company, San Francisco, California, herein called the Company, the National Labor Relations Board provided for an appropriate hearing upon due notice before Leroy Marceau, Trial Examiner. Said hearing was held at San Francisco, California, on March 26 and 27, 1942. The Company and the M. M. P. appeared, partici- pated, and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on 41 N. L. R. B., No. 90. 425 426 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the issues. The Trial Examiner's rulings made at the hearing are free from prejudicial error and are hereby affirmed. On April 10, 1942, the Company filed a brief which the Board has considered. I Upon the entire record, in, the case the, Board makes the following FINDINGS OF FACT I. THE BUSINESS OF THE COMPANY ''American Hawaiian ' Stea'lilship Company is a New Jersey cor- poration with- an 'office ' and place of business in San Francisco, California. Until December 1941, it was engaged, as a common carrier in the transportation of freight by water between Atlantic and Pacific Coast ports. At the time of the hearing it owned 31 vessels, all' of which had been requisitioned by the Maritime Com- mission' and' had been or were to be assigned by the Maritime Com- mission to the Army, and Navy for 'transportation of lease-lend ma- terials and troops? These vessels are or will be operated by the Com- pany under time charters issued by the Maritime Commission. The Company also operates one vessel under bare-boat charter, assigned to it by the Maritime Commission and expects to receive additional vessels from the Maritime Commission for operation' in the future. Under present operations, the Maritime Commission controls the assignment of cargoes,. and the departure, arrival, and destination of the vessels. The Company concedes, however, that. it hires,. dis- charges, pays, and in all respects acts as the employer of the personnel on all vessels presently operated by the Company. We find that the Company is an employer of the personnel employed on the vessels operated by the Company, within the meaning of Section 2 (2) of the National Labor Relations Act. We find, further, that the Company is engaged in trade, traffic, transportation, and commerce among the several States and that the employees here involved are directly engaged in such trade, traffic, transportation, and commerce.2 H. THE ORGANIZATION INVOLVED National Organization of Masters, Mates and Pilots of America is a labor organization affiliated with the American Federation of Labor, admitting to membership employees of the Company.3 I Two or three of the vessels had not yet reached port following the requisition order of the Maritime Commission. 2 We reject the Company's contention that its vessels are now "public " vessels and therefore , not engaged ' in commerce within the meaning of the Act. 8 West Coast Local No. 90 of the M. M. P. is directly involved herein. AMERICAN HAWAIIAN STEAMSHIP COMPANY 427 III. THE QUESTION CONCERNING REPRESENTATION At the hearing the parties stipulated that the Company had re- fused to recognize the M. M. P. as the exclusive representative of 'the employees in the alleged appropriate' unit for the reason that the Company questioned the M. M. P.'s claim of majority representation in an appropriate bargaining unit. A statement of the Regional Director, introduced into evidence at the hearing, indicates that the M. M. P. represents a substantial number of the employees in the unit hereinafter found appropriate .4 We* find that a question affecting commerce has arisen concerning the representation of employees of the Company, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the National Labor Relations Act. IV. THE APPROPRIATE UNIT The M. M. P. requests a unit of all licensed deck officers, excluding masters, relieving masters,- and pilots, while the Company asserts that the appropriate unit should consist of all licensed deck officers, including masters and pilots. The M. M. P. contends that masters are the representatives of the owner, and as such should be excluded from the unit. It urges'fur- ther that since 1936, the Local here involved has not sought to organ- ize masters, although they are eligible to membership and three of the Company's masters are members of the Local, and that it has not sought to bargain for masters. The only reason assigned by the M. M. P. for the exclusion of pilots is a claim that the Local here involved has never attempted to organize the pilots because they are admitted to membership in separate locals of the M. M. P. The Company contends that plasters and pilots should be included in the unit since they are eligible to membership in the M. M. P. and that traditionally, the M. M. P. has bargained for a unit of licensed deck' personnel, including masters and pilots." The Company further points out that in the National Longshoremen's Board election in 1934, the M. M. P. requested a unit which included masters, and that in two prior proceedings before the Board, the Local here involved 4 The 'Regional Director's report dated January 31, 1942, states that the Al M. P. submitted 67 authorization cards, all of which are dated between April 1 and September 15, 1941, and bear apparently genuine signatures , and that 52 cards bear the names of persons who appear on the Company' s pay roll of October 31, 1941 The Company's pay roll of October 31, 1941, which was allegedly the latest pay roll in the Company's possession , was submitted to the Regional Director on January 19, 1942. It contains the names of approximately 180 licensed deck officers , of whom approximately 140 are in the unit alleged by the M. M P to be appropriate. 8 The Company, carries no employees under the classification of relieving master Since 1935, all contracts between the M M P. and the steamship companies of the Pacific Coast have been based upon a unit of licensed deck officers , including piasters and pilots. 428 DECISIONS OF NATIONAL LABOR RELATIONS BOARD agreed, and the Board found, that a unit of licensed -deck officers, including masters and pilots, was appropriate.? , Masters, mates, and pilots are deck officers, licensed by the Bureau of Marine Inspection and Navigation, exercising -supervisory author- ity over other seamen aboard vessels. Their skills, work, and duties are essentially similar, differing only in degree or grade. In addition, there.is considerable interchange of personnel among these officers since the Company usually requires its officers to hold licenses of the next higher rank, and officers with master's papers often act as mas- ters, while on other occasions they serve in inferior positions. We have held in prior cases, almost without exception, that masters and pilots should be included in a unit consisting of licensed deck officers.8 As stated by the Company, the M. M. P. has previously requested such a unit in prior proceedings involving the Company. It is clear that this Local admits masters to membership and that the M. M. P. of which this Local is a part, continues to bargain for masters -9 Under these circumstances, we see no reason to depart from our prior decisions. We find that all licensed deck officers of the Company, including masters and pilots, constitute a unit appropriate for the purposes of collective bargaining within the, meaning of Section 9 (b) of the Act. V. THE DETERMINATION OF REPRESENTATIVES We find that the question which has arisen concerning the repre- sentation of employees of the Company can best be resolved by an election by secret ballot. However, since the representative of the M. Al. P. who 'appeared at the hearing was uncertain whether the M. M. P. desired an election in the event that the Board should find a 7 Matter of American Hawaiian Steamship Company, et at. and National Organization Masters, Mates and Pilots of America,, West Coast Local No. 90, 2 N. L. R. B. 424 (certification of representatives directed , December 12, 1936 ) ; 6 N. L. R. B 768 (certifi- cation revoked and petition dismissed , April 19, 1938 ) ; Matter of American Hawaiian Steamship Company and National Organization Masters, Mates and Pilots of America, West Coast Local No 90, XX-R-286 ( order refusing investigation , July 22, 1938). BMatter of Lykes Brothers Steamship Company, Inc., et at. and National Marine Engineers' Beneficial Association, of at., 2 N. L. R. B 102; Matter of Cities Service Oil Company and United Licensed Officers of the U. S. A ., 10 N L R. B 954; Matter of The Texas Company and Texas Tanker Offloers Association, 23 N L. R. B. 1022; Matter pf Tidewater Associated Oil Company and Associated Licensed Officers Ass'n, et al., 38 N. L. R. B. 582 , and cases therein cited ; cf. Matter of United States Lines Company and National Organization Masters, Mates & Pilots, 28 N L R B 896 , where, how- ever, the M . M. P. and the company agreed upon the exclusion of masters and where, in the past , masters had not been included in a single bargaining unit of the company's licensed deck officers 9 The record discloses that in all the bargaining negotiations , the M . M. P demanded but the PaciOc American Ship Owners Association, of which the Company is a member, although not a party to the contracts , consistently refused to include' a minimum wage fof masters in the contracts , insisting that masters ' pay be left to private agreement. It Is clear also that practically all other provisions of the contracts negotiated by the M. M. P. apply to masters. AMERICAN HAWAIIAN STEAMSHIP COMPANY 429 unit including masters and pilots to be appropriate, we hereby provide that if the M. M. P., within 10 days after the receipt of this Direction of Election, notifies the Regional Director that it does not desire to participate in an election, we shall thereupon dismiss the petition 10 In view of the present uncertainty as to the arrival, departure,, routes, and personnel of vessels under the Company's present opera. tions, we shall direct that the Regional Director for the Twentieth.. Region, under whose direction the election will be held, shall deter- mine the exact time, place, and procedure for giving notice of the election and for balloting. Those eligible to vote will be the licensed: deck officers who are employed as such on each vessel at the time, balloting takes place on that vessel, provided however, that no em- ployee shall vote more than once. DIRECTION OF ELECTION By virtue of and pursuant to the power vested in the National Labor Relations Board by Section 9 (c) of the National Labor Rela- tions Act, and pursuant to Article III, Section 8, of National Labor Relations Board Rules and Regulations-Series 2, as amended, it is hereby DIRECTED that, as part of the investigation ordered by the Board to ascertain representatives for the purposes of collective bargaining with American Hawaiian Steamship Company, San Francisco, Cali- fornia, an election by secret ballot shall be conducted as soon as convenient, and beginning as promptly as practicable after the date of this Direction, .in conformity with the instructions -set -forth in Section V, above, for the conduct of such- election, under the direction and supervision of the Regional Director for the Twentieth Region, acting in this matter as agent for the National Labor Relations Board, and subject to Article III, Section 9, of said Rules and Regulations, among the employees in the unit found appropriate in Section IV, above, to determine whether or not they desire to be represented by National Organization of Masters, Mates and Pilots of America, A. F. L., for the purposes of collective bargaining. 10 Cf Matter of Christian Feigenspon Brewing Co. and Anyerican Federation of Whole- sale Non-Alcoholic Beverage Salesmens Union, No. 21742, affiliated with the American. Federation of Labor, 29 N. L. R B 1136.