Bethlehem Transportation Corp.

In the Matter of BETHLEHEM TRANSPORTATION CORPORATION, THE M. A. HANNA COMPANY, WILSON TRANSIT COMPANY, INTERLAKE STEAMSHIP COMPANY, INTERSTATE STEA,ISIIIP COMPANY, PIONEER STEAMSHIP COMPANY, BUCKEYE STEAMSHIP COMPANY, KINSMAN TRANSIT COMPANY, JUPITER STEAMSHIP COMPANY, CLEVELAND CLIFFS IRON COMPANY, SHENANGO FURNACE COMPANY, REISS STEAMSHIP COMPANY, INTERNATIONAL HARVESTER COMPANY, BROWN & COMPANY, PITTSBURGH STEAMSHIP COMPANY, WYANDOTTE TRANS- PORTATION COMPANY, GREAT LAKES STEAMSHIP COMPANY, COLUM- BIA TRANSPORTATION COMPANY, CONSOLIDATED STEAMSHIP COMPANY, CONTINENTAL STEAMSHIP COMPANY, DULUTH STEAMSHIP COMPANY, GLOBE STEAMSHIP CORPORATION, INTER-OCEAN STEAMSHIP COM- PANY, SIERRA STEAMSHIP COMPANY, SUMATRA STEAMSHIP COMPANY, TRITON STEAMSHIP COMPANY, UNITED STEAMSHIP COMPANY and GREAT LAKES ENGINEERS BROTHERHOOD, INC. Cases Nos. 8-R-1910 through 8-R-1913; 8-R-1915 through 8-R-1925; 8-R-1916; 8-R-1944; 8-R-19115; 8-R-1951 through 8-R-1959.- Decided January P,9, 1946 Mr. George F. Hayes, for the Board. Cravath, Swaine cC Moore, by Mr. John H. Morse, of New York City, for Bethlehem. Jones, Day, Cockley cC Recavis, by Mr. Earl TV. LeFever, of Cleve- land, Ohio, for M. A. Hanna. Baker, Hostetler eC Patterson, by Mr. Thomas J. Edwards, of Cleve- land, Ohio, for Interlake. Messrs. James C. Beech and Paul J. Tietjen, of Pittsburgh, Pa., for Interstate. Messrs. W. A. TV'illiams and W. C. Secord, of Cleveland, Ohio, for Jupiter. Mr. G. F. Moredock, Jr., of Chicago, Ill., for International Har- vester. Richards cC Coffey, by Mr. L. E. Coffey, of Buffalo, N. Y., for Brown & Company. Dykema, Jones cC WWTheat, by Mr. E. 0. Jones, of Detroit, Mich., for Wyandotte. Mllr. Arthur B. Rathbone, and Johnson d Branand, by Messrs. Gil- bert R. Johnson and John T. Jaeger, of Cleveland, Ohio, for Columbia. 65 N. L R. B, No 105 605 606 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Johnson cfi Branand, by Messrs. Gilbert R. Johnson and John T. Jaeger, of Cleveland, Ohio, for Wilson, Great Lakes,1 Consolidated, Continental, Duluth, Globe, Inter-Ocean, Sierra, Sumatra, Triton, and United. Duncan, Leckie, McCreary, Shlitz d Hinslea, by Messrs. Lee C. Hinslea and Lucian Y. Ray, of Cleveland, Ohio, for Pioneer, Buckeye, Kinsman, Cleveland Cliffs, Shenango, Reiss, and Pittsburgh. Messrs. Ernest Abram and Arthur M. Leissa, of Cleveland, Ohio, for the Independent. William L. Standard, by Mr. Herman Rosenfeld, of Cleveland, Ohio, for MEBA. Mr. Donald H. Frank, of counsel to the Board. DECISION DIRECTION OF ELECTIONS AND ORDER STATEMENT OF THE CASE Upon petitions duly filed by Great Lakes Engineers Brotherhood, Inc., herein called the Independent, alleging that questions affecting commerce had arisen concerning the representation of employees of each of the Companies listed in Appendices A, B, and C, annexed hereto, herein jointly called the Companies, the National Labor Rela- tions Board provided for an appropriate consolidated hearing upon due notice before Thomas S. Wilson, Trial Examiner. The hearing was held at Cleveland, Ohio, on September 25 and -26,1945. The Com- panies, the Independent, and Marine Engineers' Beneficial Associa- tion No. 2 (CIO), herein called MEBA, appeared and participated., All parties were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues. The Trial Examiner's rulings made at the hearing are free 1 Bethlehem and other companies moved the dismissal of the petitions on the ground that the consolidation of these cases for the purpose of hearing was improper We find no merit in this contention, nor in the motions of Wyandotte, Reiss, International Harvester, and Brown that the petitions involving them should be dismissed on the ground that those petitions were improperly consolidated in the instant proceeding because , unlike the other companies , they are not located in the Eighth Region The Act does not prescribe for the Board the holding of 9 (c) hearings in any particular locale. The Board's Rules and Regulations, promulgated in order to effectuate the policies of the Act, have not been violated herein where the petitions involve identical units of employees of employers en- gaged in substantially the same work and operating on the same inland waterway The motions are hereby denied. In its brief, International Harvester moved the dismissal of the petition involving it, on the ground that MEBA had filed a charge of unfair labor practices against it as a member of Lake Carriers' Association, in Case No. 8-C-1847. That case has since been dismissed administratively. The motion is hereby denied. BETHLEHEM TRANSPORTATION CORPORATION 607 from prejudicial error and are hereby affirmed. All parties were afforded an opportunity to file briefs with the Board. Upon the entire record in the case, the Board makes the following: FINDINGS OF FACT I. THE BUSINESS OF THE COMPANIES Each of the Companies involved in this proceeding is engaged in the business of transporting for hire coal, grains, ores, and other mate- rials by steam cargo vessel or vessels on the Great Lakes and adjacent waters, between ports in Canada and ports in various States of the United States. The tonnage of the ships of each is in excess of 100,000 tons. Each of the Companies is incorporated in the State of Ohio except Wyandotte, Brown,' International Harvester, and Reiss, which are incorporated in the States of Michigan, New York, New Jersey, and Delaware, respectively. We find that each of the Companies is engaged in commerce within the meaning of the National Labor Relations Act. H. THE ORGANIZATIONS INVOLVED Great Lakes Engineers Brotherhood, Inc., is an unaffiliated organ- ization which admits to membership employees of the Companies, and which has among its purposes the advancement of all matters which the members believe to be designed for the general good and welfare of the engineers on the Great Lakes. We find that it is a labor organization within the meaning of the Act. Marine Engineers' Beneficial Association No. 2, affiliated with the Congress of Industrial Organizations, is a labor organization admit- ting to membership employees of the Companies. III. THE QUESTION CONCERNING REPRESENTATION Each of the Companies has refused to grant recognition to the In- dependent as the exclusive bargaining representative of its engineers until the Independent has been certified by the Board in an appropri- ate unit. 2 During the hearing it was revealed that Brown & Company, one of the Companies in- volved herein, acts as agent in the operation of ships owned by Brown Steamship Company and Shasta Steamship Company. The Independent thereupon moved to amend its petition concerning Brown & Company to include the two owner-companies ; and Brown & Company moved the dismissal of the petition concerning it on the ground that it is not employer of the employees involved The motions are hereby denied. It is apparent from the record that Brown & Company is an "employer" of the persons working upon those ships within the meaning of the Act. 679100-46-vol 65-40 608 DECISIONS OF NATIONAL LABOR RELATIONS BOARD A statement of a Board agent, introduced into evidence at the hear- ing, indicates that the Independent represents a substantial number of employees in certain of the units it seeks.' The Field Exammer further reported the MEBA had made a show- ing of interest only in the employees of Brown & Company' At the hearing the Trial Examiner granted additional time to MEBA in which to submit its evidence of interest in the employees of the other companies involved herein, upon which a further Field Examiner's report could be' based. MEBA has not complied, but has, instead, offered a list of its members and its Locals, without cards or other proof, and without designating therein which of its members are em- ployed and by what companies here involved. It is our opinion that such a showing is insufficient to allow MEBA to participate in elec- tions involving the employees of those companies. We shall therefore allow MEBA to participate only in the election among the employees of Brown & Company, concerning whom MEBA's showing is sufficient. The Field Examiner's report also reveals that the Independent made what is ordinarily considered an insufficient showing of interest 3 The Field Examiner reported the showing of the Independent to be, in part, as follows No of em- ployees on pay roll* No of cards submitted No of cards checked on pay roll Bethlehem ------------------------------------------------ 60 56 44 M A Hanna------------------------------------------- 56 40 36 Wilson--------------------------------------------------- 48 40 34 Interlake--------------------- ---------------------------- 152 110 88 In teestate------------------------- ---------------------- 16 15 12 Pioneer------------------------------------------------- 76 62 47 Buckeye----- ------------------------------------------- 28 30 15 Kinsman------------------------------------------------ 20 13 8 Jupiter-------------------------------------------------- 4 3 2 Shenango---- ------------------------------------------ 12 7 6 Cleveland Cliffs----------- -------------------------- 88 83 58 Reiss----------------------------------------------------- **36 23 -------------- International Harvester___________________________________ **8 3 -------------- Brown & Company -------------------------------------- 12 12 6 Pittsburgh------------------------------------------------ 252 123 90 Wyandotte -------------------------------------------- **16 13 -------------- Great Lakes--------------------------------- -------- 61 40 29 Columbia------------------ ----------------------------- 70 45 38 Clobe------------------------------------------- 12 7 7 Inter-Ocean---------------------------------- ------------ 4 3 3 Triton-------------------------------------------------- **4 2 - ----------- United---------------------------------------- 4 2 2 Pay rolls submitted were for periods between July 15 and August 2, 1945 **Approximate. no figures on pay rolls were submitted by these companies At the hearing, Brown & Company objected to the admission into evidence of the Field Examiner's report and moved that its name be removed from the exhibit unless the cards upon which the report is based were produced. The objection is overruled and the motion is denied This evidence is not used by ms other than in sotisfymg our own administrative requirements, and Brown & Company is not subjected to legal prejudice thereby. Brown & Company also moved the dismissal of the petition concerning it on the ground that the showing made by the Independent is insufficient The motion is hereby denied Wyandotte objected to the admission of the Field Examiner's report because the Independent had not previously requested recognition from that company Since it is clear from the record that none of the Companies is prepared to recognize either of the unions involved herein in the absence of a certification from the Board, we find no merit in Wyandotte's objection 4 The report showed that there are 12 employees in the unit sought, of employees of Brown & Company, and that MEBA submitted 10 cards, all of which bore names of persons appearing on that company's pay roll BETHLEHEM TRANSPORTATION CORPORATION 609 in the employees of Sierra, Consolidated, Continental, Duluth, and Sumatra.5 When, in addition, the intervening union has submitted no specific showing of interest in the employees of those companies, we are confronted with a situation in which, we believe, elections are not in order. We shall, therefore, hereinafter dismiss the petitions involving those five companies. We find that questions affecting commerce have arisen concerning the representation of employees of the companies listed in Appendices A and C, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the Act," but that no questions affecting commerce have arisen concerning the representation of employees of the companies listed 'in Appendix B. IV. THE APPROPRIATE UNITS The Independent and the MEBA seek separate units consisting of all licensed engineers 7 and assistant engineers employed by each of the companies, excluding fleet engineers. The Companies agree that the fleet engineers should be excluded from whatever units are deter- mined to be appropriate herein. The Companies assert, however, that their engineers ale not employees within the meaning of the Act, but are supervisory and managerial employees for whom there is no appropriate unit." The record shows that these engineers perform the duties normally associated with that position. For reasons set forth in our earlier decisions relating to the maritime industry, we find no merit in the contention of the Companies.9 It is the custom in the industry, moreover, to include in units of maritime engineers chief engineers as well as their assistants.10 We shall therefore include them in the unit hereinafter found appropriate. We find that all of the licensed engineers and assistant engineers employed by each of the companies listed in Appendices A and C, but excluding fleet engineers, constitute separate units appropriate for 5 The Field Examiner reported the showing of the Independent to be as follows No. of em- ployees on pay roll No. of cards submitted No of cards checked on pay roll Sierra ---------------------------------------------------- 4 0 0 Consohdated--------------------------------------------- 4 1 Continental----------------------------------------------- 4 Duluth-------------------------------------------------- 4 Sumatra-------------------------------------------------- 4 1 C The motion of Bethlehem to dismiss the petitions on the ground that the Act is unconstitutional in that it is an improper delegation of authority by Congress because of the inadequacy of the definition of the term "employees" is hereby denied 7 kiss called chief engineers 9 At the hearing, Interlake moved the dismissal of the petition concerning it on the ground that its situa- tion is unique It presented no facts, however, to substantiate this claim, and the motion is hereby denied. Y See Matter of Wyandotte Transportation Company, 62 N L R B 1518 W Matter of Central Barge Company, 64 N L. R. B 1059, Matter of Drano Corporation, Keystone Sand Din mon, 39 N L it. B 846; Matter of John Blood & Company, Inc , t N L R B 371. 610 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. V. THE DETERMINATION OF REPRESENTATIVES We shall direct that the questions concerning representation which have arisen be resolved by separate elections by secret ballot among the employees in the appropriate units who were employed during the pay-roll period immediately preceding the date of the Direction of Elections 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 Rela- tions Act, and pursuant to Article III, Section 9, of National Labor Relations 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 each of the com- panies listed in Appendix A, separate elections by secret ballot shall be conducted as early as possible, but not later than sixty (60) days from the date of this Direction, under the direction and supervision of the Regional Director for the Eighth Region, acting in this matter as agent for the National Labor Relations Board, and subject to Ar- ticle III, Sections 10 and 11, of said Rules and Regulations, among the employees in the units 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 dur- ing said pay-roll period because they were ill or on vacation or tem- porarily laid off, and including employees in the armed forces of the United States who present themselves in person at the polls, but ex- cluding any who have since quit or been discharged for cause and have not been rehired or reinstated prior to the date of the elections, to determine whether or not they desire to be represented by Great Lakes Engineers Brotherhood, Inc., for the purposes of collective bargain- ing. IT IS FURTHER DIRECTED that, as part of the investigation to ascertain representatives for the purposes of collective bargaining with Brown & Company, Buffalo, New York (named in Appendix C), an election by secret ballot shall be conducted as early as possible, but not later than sixty (60) days from the date of this Direction, under the direc- tion and supervision of the Regional Director for the Eighth 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 Regu- lations, among the employees in the unit found appropriate in Sec- tion IV, above, who were employed during the pay-roll period im- BETHLEHEM TRANSPORTATION CORPORATION 611 mediately 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 including employees in the armed forces of the United States who present themselves in person at the polls, but excluding any 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 Great Lakes Engineers Brotherhood, Inc., or by Marine Engineers' Beneficial Association No. 2 (CIO), for the purposes of collective bargaining, or by neither. ORDER Upon the basis of the foregoing findings of fact, and upon the entire record in the case, the National Labor Relations Board hereby orders that the petitions in Cases Nos. 8-R-1951, 8-R-1952, 8-R-1953, 8-R- 1956, and 8-R-1957, filed by Great Lakes Engineers Brotherhood, Inc., for investigation and certification of representatives of employees of each of the companies listed in Appendix B, be, and they hereby are, dismissed. APPENDIX A Companies Bethlehem Transportation Corporation --------- The M A Hanna Company -__-__-__- Wilson Transit Company----------------------- Interlake Steamship Company------------------ Interstate Steamship Company------------------ Pioneer Steamship Company-------------------- Buckeye Steamship Company ------------ Kinsman Transit Company a Jupiter Steamship Company------------------- Cleveland Cliffs Iron Company----------------- Shenango Furnace Company-------------------- Feiss Steamship Company------------- -------- International Harvester Company--------------- Pittsburgh Steamship Company________________ ---------------- WyandotCompany ___---____ Great Lakes Steamship Company__ ------------ Columbia Transportation Company------------- Globe Steamship Corporation___________________ Inter-Ocean Steamship Company--------------- Triton Steamship Company--------------------- United Steamship Company____________________ Location Cleveland, Ohio------------- Cleveland, Ohio------------- Cleveland, Ohio------------- Cleveland, Ohio_____________ Cleveland, Ohio------------- Cleveland, Ohio------------- Cleveland, Ohio------------- Cleveland, Ohio_____________ Cleveland, Ohio ------------- Cleveland, Ohio-------- ---- Cleveland, Ohio__ _ Sheboygan, Wis___--------- Chieavo, Ill-------- -------- Cleveland, Ohio ------------ Wyandotte, Mich ----------- Cleveland, Ohio------------- Cleveland, Ohio------------- Cleveland, Ohio_____________ Cleveland, Ohio------------- Cleveland, Ohio_____________ Cleveland, Ohio_____________ APPENDIX B Companies Consolidated Steamship Company______________ Continental Steamship Company--------------- Duluth Steamship Company____________________ Sierra Steamship Comapy______________________ Sumatra Steamship Company------------------- Location Cleveland, Ohio_____________ Cleveland, Ohio------------- Cleveland, Ohio_____________ Cleveland, Ohio------------- Cleveland, Ohio_____________ APPENDIX C Company Brown & Company---------------------------- Location Buffalo, N. Y______________ Herein called Bethlehem M. A. Hanna Wilson Interlake Interstate. Pioneer Buckeye Ki ;swan. Jupiter Cleveland Cliffs Shenango. Reiss International Harvester. Pittsburgh. Wyandotte. Great Lakes Columbia Globe Inter-Ocean. Triton United. Herein called Consolidated. Continental. Duluth. Sierra Sumatra. Herein called 'Brown & Company.