Toledo Marine Terminals, Inc.

TOLEDO MARINE TERMINALS, INC. 583 Upon the basis of the foregoing findings of fact , and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. United Hatters, Cap & Millinery Workers International Union , AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act, and Philip Ross is regional director and International Representative , United Hatters, Cap & Millinery Workers International Union , AFL-CIO. 2. E. J. Lipshutz, Samuel Rosenberg, Nathan Lipshutz, Sidney Lipshutz and Frank Lipshutz, doing business as Louisville Cap Company , is an employer within the meaning of Section 2(2) of the Act. 3. By picketing the premises of the Company for the purpose of obtaining recog- nition and a contract as the exclusive bargaining representative when they did not represent a majority of the Company 's employees, Respondents restrained and coerced said employees in the exercise of rights guaranteed them by Section 7 of the Act, thereby violating Section 8 (b)(1)(A). 4. By conducting a boycott campaign against the Company's products for the purpose of forcing the Company to recognize Respondents as exclusive representa- tive of the Company's employees and to enter into a contract with Respondents when they did not represent a majority of the Company's employees , Respondents restrained and coerced said employees in the exercise of rights guaranteed them by Section 7 of the Act, thereby violating Section 8 (b)(1)(A). 5. The aforesaid unfair labor practices, having occurred in connection with the Company's operations as set forth in section I, above, have a close , intimate, and substantial relation to trade , traffic, and commerce among the several States and substantially affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that the Respondents have engaged in certain unfair labor prac- tices, I shall recommend that they cease and desist therefrom and that they take certain affirmative action, which I find necessary to remedy and to remove the effects of the unfair labor practices and to effectuate the policies of the Act. In order to remedy the effects of Respondents nationwide boycott campaign, it will be recommended that Respondents publish in their official publication, "The Hat Worker," a notice that, pursuant to the recommended order herein, they have ended their boycott of Louisville Cap Company products and that they make distribution of such notice to all addresses to whom boycott material was sent. [Recommendations omitted from publication.] Toledo Marine Terminals, Inc. and International Brotherhood _ of Longshoremen, AFL-CIO, Petitioner. Case No. 8-RC-33925 A. pril 2, 1959 DECISION AND DIRECTION OF ELECTION Upon a petition duly filed under Section 9(c) of the National Labor Relations Act, a hearing was held before John Vincek, hear- ing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed.' i The Intervenor, International Brotherhood of Teamsters , Chauffeurs , Warehousemen, & Helpers of America, Local 293 , did not appear at the hearing, but notified the Regional Director that it wished to be put on the ballot in the event of a direction of election. The hearing officer regarded this request as a motion to intervene, which he granted over the objections of the Employer and the Petitioner . As the other parties have not been prej- udiced by the Intervenor's failure to appear at the hearing or to advise the Employer of its interest in this proceeding, and as we are administratively satisfied that the Intervenor has an adequate showing of interest , the hearing officer's ruling was proper and is therefore affirmed. 123 NLRB No. 71. .584 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 Leedom and Members Bean and Fanning] . 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. A question affecting commerce exists concerning the representa- tion of employees of the Employer within the meaning of Section '9(c) (1) and Section 2(6) and (7) of the Act. 4. The Employer is engaged, at the port of Toledo, Ohio, in the loading and unloading of vessels and in warehousing. In connection with its operations, the Employer has a permanent work force of :about 12 men, including a crane operator, a lift operator, a mechanic, a welder, 2 watchmen, and 6 foremen. During the shipping season, which normally begins in April and ends in December, the Employer .also employs stevedores as needed in connection with its loading and unloading operations. The Petitioner seeks a unit of all the Employer's employees, with the usual exclusions. The Employer and Petitioner 2 agree that the crane operator, lift operator, mechanic, and welder, as well as steve- dores as a class, should be included in the unit, and that the watch- men are guards within the meaning of the Act. They disagree as to the placement of the foremen, whom the Petitioner would include :and the Employer would exclude, and leave to the determination of the Board the question of the voting eligibility of the stevedores. The foremen are responsible for the proper performance of the loading and unloading of vessels and have the authority to assign :stevedores to different tasks. Each can hire and discharge stevedores. As these foremen responsibly direct other employees and have the power to hire and discharge, we find, in accordance with the Em- ployer's contention, that they are supervisors within the meaning of the Act, and accordingly exclude them from the unit. As the watch- men are guards within the meaning of the Act, we shall also ex- clude them from the unit. We find, accordingly, that all employees employed at the Em- -ployer's shipping and warehousing operation at the Toledo, Ohio, 2 The Intervenor which, as noted above did not appear at the hearing , took no position as to the appropriate unit. TOLEDO MARINE TERMINALS, INC. 585 port, excluding office clerical employees, professional employees, watchmen, guards, foremen, and all other supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 5. As noted above, the parties leave to the Board the determination of the voting eligiblity of stevedores. The Employer's loading and unloading operations, requiring the employment of stevedores, are,. as stated above, seasonal ; in addition, the employment of stevedores in connection with such operations is intermittent, the stevedores being hired only when a vessel docks, and being paid at the comple- tion of their job, which may last from 2 to 24 hours. Although the Employer has a roster of stevedores who had been in its employ, from which it occasionally calls men, most of the hiring is done with- out reference to this roster. These men may appear on the Em- ployer's yearly payroll anywhere from two to a few hundred hours,. the record establishing that approximately 30 percent of such em- ployees worked 50 hours or more during the Employer's 1958 season.. The record further establishes that, of those employees who worked 50 hours or more during 1958, approximately 80 percent had also. worked during 1957, whereas only 19 percent of those who worked less than 50 hours during 1958 had also worked during 1957. Under the circumstances, we find that those stevedores who worked 50, hours or more have a substantial continuing interest in their employ- ment conditions, and that selection of the 50-hour figure will insure a representative vote. Accordingly, we find that those employees who have worked 50 hours or more at any time from the start of the 1958 season to the payroll period immediately preceding the issuance of the notice of election by the Regional Director, as pro- vided hereinafter, are eligible to vote in the election. However, to, insure that they are still in the industry, we shall further require that their names shall have appeared on at least one daily payroll during the 1959 season preceding the eligibility date established hereby. As the Employer's operations are seasonal, with the next season beginning approximately in May, we shall, in order to make the franchise available to the largest number of eligible voters, direct that the election be held during the Employer's next season, when a representative complement of stevedores shall have been employed,. on a date to be determined by the Regional Director, among the- employees in the appropriate unit. [Text of Direction of Election omitted from publication.]