Pickands Mather & Co.

308 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Interlake Steamship Co., a Division of Pickands Mather & Co. and Seafarers' International Union of North America, Great Lakes District, AFL-CIO Petitioner and Great Lakes Seamen, Local 5000 United Steelworkers of America, AFL-CIO, Intervenor. Case 8-RC-6789 February 5, 1969 DECISION ON REVIEW, ORDER, AND DIRECTION OF NEW RUNOFF ELECTION BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND ZAGORIA Pursuant to a Decision and Direction of Election issued by the Regional Director for Region 8 on July 5, 1967, and amended by Supplemental Decision and Order dated September 19, 1967, an election was conducted beginning on October 17, 1967 among the employees in the following described unit: All unlicensed personnel employed aboard all ships owned or operated by the Employer, including employees who have licenses but who are employed in jobs that do not require licenses, but excluding all licensed personnel who are working in licensed capacities, the shipkeeper, chief cooks, students employed during their summer vacation and professional employees, guards and supervisors as defined in the Act. The tally of ballots for the election showed that of approximately 231 eligible voters, 232 cast ballots, of which 62 were for the Petitioner, 62 for the Intervenor, 100 against the participating labor organizations, and 8 were challenged. No objections were filed. Following a Second Supplemental Decision and Order issued by the Regional Director on December 14, 1967, in which the Regional Director sustained three and overruled five of the challenges,' the five ballots, challenges to which were overruled were opened and counted; and on January 23, 1968 a revised tally of ballots was issued, which indicated that a runoff election was necessary with the Petitioner eliminated from the ballot. Such runoff election was conducted beginning May 20, 1968, The tally of ballots issued on May 29, 1968, showed that of approximately 185 eligible voters, 180 cast ballots, of which 73 were cast for, and 100 against, the Intervenor, and 7 were challenged, a number insufficient to affect the results of the election. The Intervenor filed timely objections to conduct affecting the results of the election. In accordance with the Rules and Regulations of the National Labor Relations Board, the Regional By telegraphic Order dated January 1, 1968, the Board denied the Employer's request for review of the Second Supplemental Decision and Order. Director conducted an investigation of the objections and on July 16, 1968 issued and duly served on the parties his Third Supplemental Decision and Certification of Results of Election in which he overruled the objections in their entirety. Thereafter, the Intervenor filed a timely request for review of the Regional Director's Third Supplemental Decision insofar as he overruled its Objection No. 1. By telegraphic Order dated August 12, 1968, the National Labor Relations Board granted the request for review. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel. Upon the entire record in this case, the Board makes the following findings: In Objection No. 1, the Intervenor alleged that by denying its organizers access to crew members while aboard ship, the Employer placed these employees beyond the reach of reasonable efforts to communicate with them effectively and by such conduct precluded a fair election. The Regional Director, viewing the alleged conduct as antedating the first election, concluded that it could not serve as grounds for setting aside the election.' The Intervenor asserts that it did not file objections to this conduct as it affected the first election "because it pursued through the challenged ballot route a procedure for obtaining the only relief it would have obtained by objections, namely, another election." It contends also that a further request for access to the ships for organizational purposes would have been a meaningless gesture and that as the Employer's conduct in denying access continued during the critical period before the runoff election, it is grounds for setting the election aside. The Employer is engaged in the transportation of bulk cargoes on the Great Lakes between Canada and various States of the United States. At the time of the elections, it had 15 vessels manned by unit employees. During the shipping season, which generally extends from March to December, employees stationed on the vessels spend almost all In the course of his investigation, the Regional Director also considered the Intervenor's contention that the Employer's refusal to furnish the names and addresses of its employees was objectionable conduct. The Employer, in what it considered compliance with the requirement of Excelsior Underwear Inc, 156 NLRB 1236, prior to both the original and the runoff elections, timely furnished a list of eligible employees , together with the vessels upon which they were working, but did not include their home addresses . The Regional Director, on October 9, 1967, had issued an Order denying the Petitioner's "Motion to Stay Election" on the ground that the Employer faded to furnish the home addresses In his Third Supplemental Decision, the Regional Director explicated his reasons for denying such motion, as well as for overruling the Intervenor 's objection based on the Employer's refusal to furnish the home addresses prior to the runoff election. As to the latter, he concluded that the Employer, by furnishing the names of eligible employees , and the addresses at which these employees could be reached during the 1-month period before the election, complied with the principle of the Excelsior case, and that its failure to furnish the home addresses of its employees did not affect the results of the election . The Intervenor did not seek review of this ruling 174 NLRB No. 55 THE INTERLAKE STEAMSHIP CO. of their time aboard ship. This is where they receive their mail and, except possibly when the ship is in port, eat, sleep, and take their recreation. When a vessel docks to load and unload, it generally remains in port from 4 to 8 hours. One-third of the crew must remain on duty during the loading and/or unloading and the remainder is permitted to leave the vessel if it wishes. Although the employees make their permanent homes in the general vicinity of the Great Lakes, their homes are scattered throughout that huge geographical area. Thus, the likelihood of an employee traveling to his home during the brief period a vessel is in any particular port is extremely remote. The Intervenor, on June 12, 1967, several days after the petition was filed and about 4 months before the first election, wrote the Employer letter requesting permission to go aboard its ships when they put into any major Great Lakes port, expressing willingness to arrange mutually acceptable times and places for such shipboard visits to insure that they will not interfere with the efficiency or safety of the shipping operation. The Intervenor also requested a list of the names and addresses of the crew members "because of the widely scattered geographic areas in which [they] reside when not aboard ship." The Employer responded by letter dated June 20, 1967, denying the requests, stating: "Our policy, which has been enforced and applied in a nondiscriminatory manner, limits access to our ships to those directly involved in the operation and maintenance of the ships. This long-standing policy does not permit any solicitor aboard ships for personal contact with the crew, regardless of his mission." As to the request for addresses, the Employer stated: "inasmuch as your Union has already sent mail to our ships this year, which has been delivered as addressed, we see no necessity for providing you a list of names and addresses." In its request for review, the Intervenor asserts that the Employer's letter reaffirmed a similar statement of its policy communicated to it in writing in April 1966, in the context of an earlier organizing campaign when the chief engineer of one of the Employer's ships "escorted" the Intervenor's staff representative off the ship. As a result of the exchange of correspondence and its prior experience, the Intervenor asserts, no attempt was made to board the Employer's ships. As found by the Regional Director, prior to the runoff election, the Intervenor made 12 mailings to employees addressed to their vessels, and the Employer sent employees two letters. The Employer did no campaigning during the winter lay-up period. The Regional Director made no findings, and no allegations are made, as to what efforts the Intervenor made, if any, to contact employees personally during the periods of 4 to 8 hours when they were permitted to go ashore at ports where their vessels stop for loading and/or unloading operations. 309 We find, in view of the Employer's denials of access by the Intervenor to employees aboard ship in 1966 and again in June 1967 in accord with its "long-standing policy," that a new request for access by the Intervenor during the critical period before the runoff election would have been futile.' We also find that because the employees, during the critical period, spent virtually all of their time on board the Employer's vessels, they were, as stated in Babcock & Wilcox,4 placed "beyond the reach of reasonable union efforts to communicate with them" and the Employer was therefore required to honor the Intervenor's request for reasonable means of access to the employees aboard ship at times when the vessels were at major Great Lakes ports. The facts that the Intervenor was able to reach the employees aboard the vessels by mail, that it might have tried by "catch-as-catch-can" methods to solicit some of them while they were on brief shore leave, or that employees while on shore leave might voluntarily have visited the Intervenor's meeting halls, are not, in the circumstances of this case, adequate alternative means of communication. Here, the means of direct and personal solicitation were severely limited and, in our opinion, an organizational campaign could not be carried on effectively without the seeking out of employees on board their vessels and their solicitation to membership by direct contact by experienced organizers.' Nor has the Employer attempted to show that substantial detriment to its shipping operations would result from elimination of its "no-access" rule to accommodate the rights of its employees to learn the advantages of self-organization. In the circumstances, we conclude that the Employer's denial of reasonable means of access by the Intervenor to its crew members on board ship at times when their ships were at major Great Lakes ports rendered a fair election impossible.' Accordingly, we shall set aside the election and direct the Regional Director to conduct a new runoff election.' 3See Old Town Shoe Company, 91 NLRB 240, Tomlinson Fleet Corp, 149 NLRB 1114 'N.L R B v The Babcock & Wilcox Company, 351 U S 105, 113 'See Joseph Bancroft and Sons Co , 140 NLRB 1288, 1291 'S & H Grossinger's Inc, 156 NLRB 233, enfd 372 F 2d 26 (C A 2), Joseph Bancroft and Sons Co , supra. Lake Superior Lumber Corporation, 70 NLRB 178, enfd 167 F 2d 147 (C A. 6), N L R B v United Steelworkers of America, CIO /NuTone , Inc /, 357 U S 357, N L R B v The Babcock & Wilcox Company, supra. Republic Aviation Corporation v N L R B , 324 U S 793 'In view of th.; long passage of time since the June 25 , 1967, eligibility payroll date used for the runoff election, the eligibility payroll period for the new runoff election shall be that immediately preceding the date of issuance of the notice of new runoff election 310 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ORDER It is hereby ordered that the election conducted herein on May 20, 1968, be, and it hereby is, set aside. [Direction of New Runoff Election' omitted from publication.] "An election eligibility list, containing the names and addresses of all the eligible voters, must be filed by the Employer with the Regional Director for Region 8 within 7 days after the date of issuance of the Notice of New Runoff Election by the Regional Director. The Regional Director shall make the list available to all parties to the election No extension of time to file this list shall be granted by the Regional Director except in extraordinary circumstances Failure to comply with this requirement shall be grounds for setting aside the election whenever proper objections are filed Excelsior Underwear Inc., 156 NLRB 1236