Nicholson Transit Co.

In the Matter of Nlof-oLsoN TRANSIT COMPANY and FOREMAN'S ASSO- CIATION of AMERICA (INDEPENDENT), CHAPTER 159 Case No. 7-R-2007.-Decided January 14, 1946 Foster, Yost, and Lott, by Mr. Sparkman D. Foster, of Detroit, Mich., for the Company. Mr. Walter M. Nelson, by Mr. Bernard E. Konopka , of Detroit, Mich., for the Foreman's Association. Mr. David Martin , of Detroit, Mich., for the M. E. B. A.; and Messrs. Jack N. Tucker and N. L. Smokler, of Detroit, Mich., for the M. E. B. A ., No. 3. Mrs. Augusta Spaulding, of counsel to the Board. DECISION AND DIRECTION OF ELECTIONS STATEMENT OF THE CASE Upon a petition duly filed by Foreman's Association of America (Independent); Chapter 159, herein called the Foreman's Associa- tion,' alleging that a question affecting commerce had arisen concern- ing the representation of employees of Nicholson Transit Company, Ecorse, Michigan, herein called the Company, the National Labor Relations Board provided for an appropriate hearing upon due notice before Sylvester J. Pheney, Trial Examiner. The hearing was held at Detroit, Michigan, on August 20 and 21, 1945. ' The Company, the Foreman's Association, and Marine Engineers' Beneficial Association and its local No. 3, herein respectively called the M. E. B. A. and the M. E. B. A., No. 3, appeared and participated.2 All parties were afforded full opportunity to be heard, to examine and cross- examine witnesses, and to introduce evidence bearing on the issues. During the course of the hearing, the M. E. B. A. moved that the Board dis- 1 The petition and other formal papers were amended at the hearing to show the correct name of the petitioner. 2 National Maritime Union , CIO, herein called the N. M. U., the labor organization representing the Company's unlicensed personnel , also served with notice, appeared at the bearing According to a statement of the Trial Examiner read into the record at the hearing, the N. M. U. decided not to intervene in this proceeding when it appeared that the instant petition directly concerned the representation of licensed personnel only. 65 N. L. R. R , No. 75. 418 NICHOLSON TRANSIT COMPANY 419 miss the petition. The Trial Examiner did not rule on this motion. For reasons which appear in Sections III and IV, below, the motion is denied. The Trial Examiner's rulings made at the hearing are free from prejudicial error and are hereby affirmed. All parties were afforded opportunity to file briefs with the Board. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY Nicholson Transit Company, a Michigan corporation with its prili- cipal office at Ecorse, Michigan, owns and operates five cargo vessels on the Great Lakes, and is engaged in the regular transporting of goods, wares, and materials between points in the States of Minnesota, Michigan, Ohio, Wisconsin, New York, Pennsylvania, and Illinois. During' 1944 the value of the goods, wares, and materials so trans- ported by the Company exceeded $1,000,000. The Company admits that it is engaged in commerce within the meaning of the National Labor Relations Act. II. THE ORGANIZATIONS INVOLVED Foreman's Association of America (Independent), Chapter 159, is a labor organization admitting to membership employees of the Company. Marine Engineers' Beneficial Association and its local- No. 3 are labor organizations affiliated with the Congress of Industrial Organi- zations, admitting to membership employees of the Company. III. THE QUESTIONS CONCERNING REPRESENTATION By letter dated February 10, 1945, the Foreman's Association, claiming to represent a majority of mates and engineers in the Com- pany's employ, requested recognition as their bargaining represent- ative. The Company did not reply. The M. E. B. A. takes the position that a contract between the M. E. B. A. and the Company constitutes a bar to a determination of representatives for the Company's engineers. In 1940 the Company recognized the M. E. B. A. as the exclusive representative of the Company's engineers and, on October 9, 1940, entered into a contract with the M. E. B. A., which provided, inter alia, that it should be in force from October 1, 1940, to January 31, 1941, and thereafter for yearly periods from February 1 to January 31, subject to change or modification upon written notice 30 days before any yearly terminal date. On, May 17, 1941, the parties 420 DECISIONS OF NATIONAL LABOR RELATIONS BOARD entered into a supplementary agreement providing for changes in the wage scale and in seniority privileges. In November 1943 the M. E. B. A. notified the Company in writing of its desire to reopen the contract for changes to be effected for the 1944 season. The Company accepted the notice as adequate to reopen the contract, and notified the M. E. B. A. to this effect. Although representatives of the parties made some attempts to meet, no further negotiations were had between them. In the spring of 1944, after repeated futile ap- peals for assistance from M. E. B. A., the Company's engineers made some attempt to bargain- with the Company directly. In 1945 sub- stantially all the Company's engineers and mates authorized the Fore- man's Association to represent them for bargaining purposes. We are of the opinion that the notice to reopen the contract given by the M. E. B. A. in November 1943 and its acceptance by the Company prevented the automatic renewal of their agreement of 1940 for the year 1944.3 In any event, it is clear that the contract, which, if renewed, would expire on January 31, 1946, cannot operate as a bar to a determination of representatives at this time.4 A statement of a Board agent and other evidence, introduced into evidence at the hearing, indicate that the Foreman's Association repre- sents a substantial number of employees in the units hereinafter found appropriate.5 We find that questions affecting commerce have arisen concerning the representation of employees of the Colnpany, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the Act. IV. THE APPROPRIATE UNITS The Foreman's Association contends that mates and engineers con- stitute a single appropriate bargaining unit. The M. E. B. A. con- tends that engineers constitute a separate appropriate bargaining unit apart from mates and, in support of its contention, urges the differ- ences in the skills and duties of employees in the two categories and the history of separate bargaining for the Company's engineers since 1940. The Company employs 19 engineers and 15 mates, all duly licensed by Government authority. Mates, skilled in navigation, are deck offi- cers, responsible for the good shape of 'the ship during round-the-clock watches. Classified as first, second, or third mates, depending on their S See Matter of The Daybrook Hydraulic Corporation, 03 N. L R B 107. 4 Matter of Dann Manufacturing Company, 38 N. L R. B 528 _ 5 The Field Examiner reported that the Foreman 's Association submitted 31 cards, of which 29 appear on the Company 's pay roll of June 15 , 1945. Sixteen of the cards bear the names of engineers and 13 bear the names of mates. The 11 E B A , retaining some members among the engineers , relies substantially on its contract for its interest among them There are approximately 19 employees in the unit appropriate for engineers . There are approximately 15 employees in the appropriate unit for mates NICHOLSON TRANSIT COMPANY 421 experience, mates on watch have under their immediate supervision 10 unlicensed deck employees, including deck hands, watchmen, and wheelmen. The first mate takes command of the ship if the master becomes incapacitated." Engineers, on the other hand, are skilled in the care of mechanical equipment. Like mates, they serve watches, supervising 10 unlicensed employees in their department, including oilers, firemen, coal passers, and a wiper. Mates and engineers dis- cipline and recommend for discharge employees under them.7 In 1940, as noted above, the Company recognized the M. E. B. A. as bargaining representative for its engineers ahd entered into a contract which was operative for at least 2 years. Separate bargaining for mates and engineers has become traditional in the maritime"industry.s The M. E. B. A. does not admit mates to membership. The Foreman's Association, however, urges that the express desire of the Company's engineers and mates for a single unit outweighs these considerations.9 In view of the past bargaining history among the Company's em- ployees; the claims of the rival labor organizations herein, and the differences in the training and functions of the two categories of em- ployees seeking representation, we are not persuaded that we should depart from our earlier findings that separate units are appropriate for mates and engineers. We find that all engineers employed by the Company constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. We further find that all mates employed by the Company constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. V. TILE DETERMINATION OF REPRESENTATIVES We shall direct that the questions concerning representation which have arisen be resolved by separate elections by secret ballot. Since the M. E. B. A. has been the recognized bargaining repre- sentative of the Company's engineers and retains some membership The record does not disclose the number of masters employed by the Company or their duties Masters have not been organized by either of the labor organizations herein. ' Since engineers and mates are admittedly supervisory employees, the Company urges that they are not employees within the meaning of the Act and that neither mates nor engineers should be included in any bargaining unit For reasons which we have set forth in earlier decisions relating to the maritime industry , we find no merit in this contention See Matter of Wyandotte Transportation Company, 62 N. L. R. B 1518, and cases cited therein. 8 See Matter of A H. Bull Steamship Company, 36 N L R B 99, and cases cited therein; Matter of Wyandotte Transportation Company, supra , and Matter of Lake Tankers Corpo- ration, 64 N. L R B 281 9In support of its contention that engineers and mates on the Company's pay roll desire to bargain in a single unit, the Foreman's Association submitted separate petitions signed by mates and engineers on each of the Company's boats Three petitions, bearing in all 19 signatures, were admitted into evidence The other petitions were rejected for want of proper identification. 422• DECISIONS OF NATIONAL LABOR RELATIONS BOARD among them, we shall provide that the M. E. B. A. and the Foreman's Association shall participate in the election among the engineers. The M. E. B. A. does not admit mates into membership and does not desire to represent the mates. We shall provide that the Foreman's Asso- ciation shall participate in the election among the mates. Those eligible to vote in the separate elections shall be all employees in the respective appropriate units who were employed during the pay- roll period immediately preceding the date of the Direction of Elec- tions herein, subject to the limitations and additions set forth in the Direction. DIRECTION OF ELECTIONS By virtue of and pursuant to the power vested in the National Labor Relations Board by Section 9 (c) of the National Labor Relations Act, and pursuant to Article III, Section 9, of National Labor Rela- tions Board Rules and Regulations-Series 3, as amended, it is hereby DIRECTED that, as part of the investigation to ascertain representa- tives for the purposes of collective bargaining with Nicholson Transit Company, Ecorse, Michigan, separate 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 super- vision of the Regional Director for the Seventh Region, acting in this matter as agent for the National Labor Relations Board, and subject to Article III, Sections 10 and 11, of said Rules and Regulations, among employees in groups set forth below, 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 includ- ing 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 : (1) Among all engineers employed by the Company to determine whether they desire to be represented by Foreman's Association of America (Independent), Chapter 159, or by Marine Engineers' Bene- ficial Association, CIO, for the purposes of collective bargaining, or by neither; and (2) Among all mates employed by the Company to determine whether or not they desire to be represented by Foreman's Association of America (Independent), Chapter 159, for the purposes of collective bargaining. MR. GERARD D. REILLY took no part in the consideration of the above. Decision and Direction of Elections.