Clyde-Mallory Lines

In the Matter of AGWILINES, INC., DOING BUSINESS UNDER THE TRADE NAME OF CLYDE-MALLORY LINES and BROTHERHOOD OF RAILWAY AND STEAMSHIP CLERKS, FREIGHT HANDLERS, EXPRESS AND STATION EMPLOYEES Cases Nos. R-1293 and B-1294.-Decided April 00, 1939 Water Transportation Industry-Investigation of Representatives: contro- versy concerning representation of employees: controversy as to appropriate unit; controversy as to majority-Unit Appropriate for Collective Bargaining: office and dock.clerks, other office employees, and regular and extra watchmen, excluding checkers, secretaries to executives, and supervisory employees; geo- graphical separation of plants-Election Ordered-Certification of Representa- tives. Mr. Samuel Lang, for the Board. Kay, Ragland d Kurz, by Mr. Reuben Ragland of Jacksonville, Fla., for the respondent. Mr. L. W. Reigel, of Atlanta Ga., for the Brotherhood. Mr. Roscoe L. Barrow, of counsel to the Board. DECISION AND DIRECTION OF ELECTIONS STATEMENT OF THE CASE On June 28, 1938, Brotherhood of Railway and Steamship Clerks, Freight Handlers, Express and Station Employees, herein called the Brotherhood, filed with the Regional Director for the Fifteenth Region (New Orleans, Louisiana) separate petitions, on September 9, 1938, separate amended petitions, and on October 17, 1938, separate second amended petitions, alleging that questions affect- ing commerce had arisen concerning the representation of employees of Agwilines, Inc., doing business under the trade name of Clyde-Mal- lory Lines, herein called the Company, at its Jacksonville, Florida, and Miami, Florida, offices, respectively, and requesting an investigation and certification of representatives pursuant to Section 9 (c) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. On September 22, 1938, the National Labor Relations Board, here- in called the Board, acting pursuant to Section 9 (c) of the Act and Article III, Section 3, of National Labor Relations Board Rules and 12 N. L. R. B, No. 47. 366 AGWILINES, INC. 367 Regulations-Series 1, as amended, ordered an investigation and au- thorized the Regional Director to conduct it and to provide for an appropriate hearing upon due notice, and acting pursuant to Article III, Section 10, of said Rules and Regulations further ordered that, for purposes of hearing, the cases be consolidated and that one record of the hearing be made. The Regional Director issued on October 19, 1938, notices of con- solidation and notices of hearing, on October 22, 1938, notices of post- ponement of hearing, on January 23, 1939, amended notices of hearing, and on February 9, 1939, further notices of postpone- ment of hearing. Copies of all were duly served upon the Com- pany and the Brotherhood. Pursuant to the notices, a hearing was held on February 15, 1939, at Miami, Florida, before George O. Pratt, the Trial Examiner duly designated by the Board. The Board and the Company were represented by counsel and the Brotherhood by a representative. All participated in the hearing, and full op- portunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing upon the issues was afforded all parties. During the course of the hearing the Trial Examiner made several rulings on motions and objections to the admission of evidence. The Board has reviewed the rulings of the Trial Examiner and finds that no prejudicial errors were committed. The rulings are hereby affirmed. Two motions made by the Company, one asking for the exclusion from the appropriate unit of regular and extra watchmen and the other asking for a list of employees which the Board should find eligible to vote, in the event of an election, were reserved for the con- sideration of the Board. They will be considered hereinafter. Upon the entire record in the case the Board makes the following : FINDINGS OF FACT 1. TILE BUSINESS OF THE COMPANY The parties to this proceeding have stipulated that the findings of the Board as to the business of the Company in a prior case, Matter of Agwilines, Inc. and International Longshoremen's Associa- tion, Local No. 1.140,1 are true and correct and may be used for the purpose of showing that the Company is engaged in interstate and foreign commerce at the present time. Accordingly, the findings there made are hereby incorporated. as findings of fact in this case. Agwilines, Inc., is a Maine corporation maintaining its principal office at New York City. Clyde-Mallory Lines is a division of 12 N. L. It. B. 1. 368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Agwilines, Inc. It is engaged in the transportation of freight and passengers in coastwise service between ports on the Atlantic and Gulf coasts of the United States and between the United States and Havana, Cuba. We find that the Company is engaged in commerce among the several States and between the United States and a foreign country. II. THE ORGANIZATION INVOLVED The only organization involved is the Brotherhood of Railway and Steamship Clerks, Freight Handlers , Express and Station Employees, a labor organization affiliated with the American Federation of Labor. It admits to its membership all clerical and office employees and watchmen, excluding supervisory employees , secretaries to executives, and checkers. III. THE QUESTION CONCERNING REPRESENTATION The parties have stipulated that a question concerning representa- tion exists in both cases herein by virtue of their disagreement as to the appropriate unit for collective bargaining. We find that a question concerning the representation of the em- ployees of the Company at its Jacksonville, Florida, and Miami, Florida, offices, respectively , has arisen and that such question tends to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. IV. THE APPROPRIATE UNIT The parties have stipulated that because of the long distance be- tween the Jacksonville and Miami offices, the employees of each should constitute a separate unit. No reason appears for departing from the wishes of the parties in this respect, and we shall find two separate units in accordance with the stipulation. The parties have further agreed that office and dock clerks, and other office employees, excluding checkers and supervisory employees, should be within the units appropriate for collective bargaining. There is, however, controversy as to certain employees. The Brotherhood claims that watchmen should be included in the appropriate unit. The Company asks for their exclusion primarily on the ground that the inclusion of watchmen in the same unit with employees whom they are supposed to watch impairs their efficiency. The Company has not shown that such inclusion causes watchmen to relax the discharge of their duties. We have customarily included watchmen in the appropriate unit where the only labor organization involved desires their inclusion and where charges of lax attitude on AGWILINES, INC. 369 the part of unionized watchmen are not supported by the evidence.2 We shall include watchmen in the unit. Ten employees at the Jacksonville office and 11 employees at the Miami office are designated "extra watchmen" on the Company's pay roll. They report for duty when a ship is scheduled to arrive and the Company selects from among them such as are needed. If they are needed at other times, they are called by the Company. From November 1, 1938, to February 2, 1939, 13 of these employees worked during every week. Eight of these men have averaged work- ing over 35 hours per week, their averages ranging upwards to ap- proximately 60 hours per week. Averages for the remaining 13 extra watchmen range from approximately 9 to approximately 26 hours per week. In point of hours worked, it is obvious that these men enjoy a status not unlike that of regular employees. All do sufficient work to give them an interest in the conditions of em- ployment, and we feel that they should not be denied the advantages of collective bargaining. Our practice has been to include in the appropriate unit extra employees who are subject to call whenever needed 3 and seasonal_ employees who return to work for the same company from year to year,4 where the only union involved asks for their inclusion. The record shows that a large majority of the reg- ular and extra watchmen wish to be represented by the Brotherhood. Both regular and extra watchmen shall be included in the appro- priate unit. It follows that the Company's motion for the exclusion of regular and extra watchmen is denied. F. C. Weaver and R. G. Haggart, however, are supervisors of the watchmen at Jacksonville and Miami respectively, and shall be excluded. The Brotherhood evidently desires the inclusion and the Com- pany the exclusion of R. Canova, roundsman at the Jacksonville office. Canova is a night watchman with authority to assign other night watchmen to their places in the plant only when the regular supervisor fails to make the assignments. It does not appear how often, if at all, this occurs. Under the circumstances, and in view of the Brotherhood's desire for his inclusion, he shall be included in 2 Matter of American-Hawanan Steamship Company, a Corporation and Gatemen, 'Watchmen 4 Miscellaneous Waterfront Workers Union, Local 38-124, 10 N L R B 1355; Matter of Willys Overland Motors, Inc. and International Union, United Automobile Workers of America, Local No. 12, 9 N L R. B. 924; Matter of The Electric Auto- Lite Company and International Union, United Automobile Workers of America No. 12, 9 N. L. R . B. 147; Matter of Luekenbaeh Steamship Company, Inc, et al and Gate- men, Watchmen and Miscellaneous Waterfront Workers Union Local 38-124, Interna- tional Longshoremen's Association, 2 N L. R. B. 181. a Matter of Williams Dimond .1 Company, et al. and Port Watchmen, Local No 137, 2 N. L. R. B. 859; Matter of Flexo Products Corporation and International Brotherhood of Electrical Workers, Local B-713, 7 N. L. R. B 1163. 4 Matter of Alaska Packers Association and Alaska Cannery Workers Union Local No. 5, Committee for Industrial Organization, 7 N. L R. B. 141; Matter of National Dis- tillers Products Co. and United Distillery Workers of U. S., Local No . 484, Affiliated with Committee for Industrial Organization, 5 N. L. R. B. 862. 370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the appropriate unit. W. D. Davis and C. S. Morgan are designated as gatemen ; their duties are similar to the duties of watchmen in that they check loaded goods against the drivers' receipts as the goods come into and leave the premises. The Brotherhood apparently de- sires their inclusion. They shall be included. The Brotherhood asks for exclusion and the Company for inclu- sion of R. M. Pate and M. Wilson, secretaries to the executives at the Jacksonville office, and M. Holbrook, secretary to the executive at the Miami office. A part, at least, of their work is confidential in nature. The Company does not desire to bargain with the Brother- hood in regard to the wages and hours of these employees, although at the same time asserting that they should be included in the appropriate unit. They shall be excluded from the appropriate unit.5 J. P. Imlay and J. R. Fordham, chief clerks at Jacksonville and Miami, respectively, have general supervision over the clerical forces at the two offices. The Company desires their inclusion, and the Brotherhood their exclusion. They shall be excluded. The Brother- hood asks for exclusion and the Company for inclusion of F. L. Paige, chief clerk of the passenger department at the Miami office. There are 10 employees in this department, and it appears that he has some supervisory duties over them. He shall be excluded. J. T. Potts and A. S. Wilburn, ticket agents at the Jacksonville and Miami offices, respectively, are also in controversy. The Com- pany asks for their inclusion and the Brotherhood for their exclu- sion. Potts and Wilburn sell' tickets, handle correspondence, and are responsible for making and forwarding to the management re- ports of all tickets sold by the ticket sellers and the receipts there- from. Since it appears that they thus check on the work of other employees, and since the only union involved desires their exclusion, they shall be excluded from the appropriate unit. We find that the office and dock clerks, other office employees, and regular and extra watchmen, excluding checkers, secretaries to the executives, and supervisory employees, employed by the Company at its Jacksonville and Miami offices, respectively, constitute two separate units appropriate for the purposes of collective bargaining, and that said units will insure to employees of the Company the full benefit of their right to self-organization and collective bar- gaining, and otherwise will effectuate the policies of the Act. 5 Matter of Minnesota Broadcasting Company Operating WTCN and Newspaper Guild of the Twin Cities, Minneapolis and St Paul, Local No. 2 of the American Newspaper Guild. 7 N. L R. B. 867. AGWILINES, INC. V. THE DETERMINATION OF REPRESENTATIVES 371 The Brotherhood did not offer sufficient proof of majority repre- sentation for certification on the record, and asked that elections by secret ballot be held. We find that the question which has arisen concerning the representation of employees of the Company can best be resolved by holding elections by secret ballot. During the hearing the Brotherhood claimed that, in the event of elections, the employees eligible to vote should be those on the Com- pany's pay roll immediately preceding the date on which the Board was petitioned, June 28, 1938 ." On February 23, 1939, the Brother- hood filed briefs in which it stated that at the hearing it named this eligibility date only as a compromise and that October 1937 is a more just date, since it secured authorization cards from the employees prior to that time, and some of these employees have since been laid off while new employees have been taken on. There was no agree- ment among the parties as to either of these dates. In the absence of any such agreement, we feel that a more current eligibility date will best effectuate the policies of the Act. We shall accordingly direct that the employees of the Company within the appropriate units who were on the Company's pay roll immediately preceding the date of our Direction of Elections herein, excluding those who have since quit or have been discharged for cause, shall be eligible to vote. As previously noted, the Company moved to have the Board supply it with a list of employees entitled to participate in the election. The parties can readily determine this by referring to the pay roll immediately preceding the date of our Direction of Elections herein, and by referring to our above treatment, by name, of each of the employees who are in controversy. We assume that this will serve the purpose indicated by the Company's motion. Upon the basis of the above findings of fact and upon the entire record in the case, the Board makes the following : CONCLusIONS OF LAW 1. Questions affecting commerce have arisen concerning the repre- sentation of the employees of Agwilines, Inc., doing business under the trade name of Clyde-Mallory Lines, at its Jacksonville, Florida, and Miami, Florida, offices, respectively, within the meaning of Sec- tions 9 (c) and 2 (6) and (7) of the National Labor Relations Act. 2. Office and dock clerks, regular and extra watchmen, and other office employees, excluding checkers, secretaries to the executives, and supervisory employees, employed by the Company at its Jacksonville, 6 In the record June 21, 1938, is erroneously given as the date on which the petitions were filed. 169134-39-vol 12-25 372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Florida, and Miami, Florida, offices, respectively, constitute two separate units appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the National Labor Relations Act. 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, 49 Stat. 449, and pursuant to Article III, Section 8, of National Labor Relations Board Rules and Regulations-Series 1, as amended, it is hereby DIRECTED that, as part of the investigation authorized by the Board to ascertain representatives of employees at the Jacksonville and Miami offices of Agwilines, Inc., doing business under the trade name of Clyde-Mallory Lines, for the purposes of collective bargaining, two separate elections shall be conducted within fifteen (15) days from the date of this Direction, under the direction and supervision of the Regional Director for the Fifteenth 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 (1) all office and dock clerks, regular and extra watchmen, and other office employees whose names appear on the Company's Jacksonville pay roll immediately preceding this Direction of Elections excluding checkers, secretaries to executives and supervisory employees, and all employees who have since quit or have been discharged for cause, and (2) all employees in the same categories appearing on the Com- pany's Miami pay roll of the same date, with the same exclusions, to determine whether or not they desire to be represented by Brother- hood of Railway and Steamship Clerks, Freight Handlers, Express and Station Employees, affiliated with the American Federation of Labor, for the purposes of collective bargaining. [SAME TITLE] CERTIFICATION OF REPRESENTATIVES May 120, 1939 STATEMENT OF THE CASE On April 20, 1939, the National Labor Relations Board, herein called the Board, issued its Decision and Direction of Elections in the above-entitled proceedings. The Direction of Elections directed that elections by secret ballot be conducted within fifteen (15) days from the date of the Direction among (1) all office and dock clerks, AGWILINES, INC. 373 regular and extra watchmen, and other office employees of Agwilines, Inc., doing business under the trade name of Clyde-Mallory Lines, herein called the Company, on the Company's Jacksonville, Florida, pay roll immediately preceding the Direction of Elections, exclud- ing checkers , secretaries to executives, and supervisory employees, and all employees who have since quit or have been discharged for cause, and (2 ) all employees in the same categories appearing on the Company's Miami, Florida, pay roll of the same date, with the same exclusions to determine whether or not they desire to be repre- sented by Brotherhood of Railway and Steamship Clerks, Freight Handlers, Express and Station Employees, affiliated with the Amer- ican Federation of Labor, for the purposes of collective bargaining. Pursuant to the Direction, elections by secret ballot were con- ducted among the above-described employees of the Company at its Jacksonville and Miami offices, respectively, under the direction and supervision of the Regional Director for the Fifteenth Region. On May 8, 1939, the Regional Director, acting pursuant to Article III, Section 9, of National Labor Relations Board Rules and Regu- lations-Sbries 1, as amended , issued an Intermediate Report on the election, copies of which were duly served on the parties. No objec- tions or exceptions to the Intermediate Report have been filed by any of the parties. As to the balloting and its results, the Regional Director reported as follows : Jacksonville, Florida Total number of employees eligible to vote-- -------------- 47 Total number of votes cast ------------------------------ 47 Total number of votes for Brotherhood of Railway and Steamship Clerks, Freight Handlers , Express and Sta- tion Employees , affiliated with the American Federa- tion of Labor------------------------------------------- 39 Total number of votes against Brotherhood of Railway and Steamship Clerks, Freight Handlers , Express and Station Employees , affiliated with the American Federa- tion of Labor------------------------------------------- 8 Total number of blank ballots--------- ------------------- 0 Total number of void ballots ----------------------------- 0 Total number of challenged ballots----------------------- 0 Total number of spoiled ballots-------------------------- 0 Miami, Florida Total number of employees eligible to vote--------------- - 27 Total number of'employees eligible to vote----------------- 27 Total number of votes for Brotherhood of Railway and Steamship Clerks, Freight Handlers , Express and Sta- tion Employees, affiliated with the American Federation of Labor----------------------------------------------- 17 374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Total number of votes against Brotherhood of Railway and Steamship Clerks, Freight Handlers , Express and Sta- tion Employees, affiliated with the American Federation of Labor---------------------------------------------- 6 Total number of blank ballots-------------------------- 0 Total number of void ballots----------------------------- 0 Total number of challenged ballots---------------------- 4 Total number of spoiled ballots--------------------------- 0 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, 49 Stat. 449, herein called the Act, and pursuant to Article III, Sections 8 and 9, of National Labor Relations Board Rules and Regulations-Series 1, as amended, IT IS HEREBY CERTIFIED that Brotherhood of Railway and Steamship Clerks, Freight Handlers, Express and Station Employees, affiliated with the American Federation of Labor, has been designated and selected by a majority of the office and dock clerks, regular and extra watchmen, and other office employees of Agwilines, Inc., doing business under the trade name of Clyde-Mallory Lines, at the Company's Jacksonville, Florida, office, exclusive of checkers, secretaries to execu- tives, and supervisory employees, as their representative for the purposes of collective bargaining and that, pursuant to the pro- visions of Section 9 (a) of the Act, Brotherhood of Railway and Steamship Clerks, Freight Handlers, Express and Station Employ- ees, affiliated with the American Federation of Labor, is the ex- clusive representative of all such employees for the purposes of col- lective bargaining in respect to rates of pay, wages, hours of employment, and other conditions of employment. IT Is HEREBY CERTIFIED that Brotherhood of Railway and Steamship Clerks, Freight Handlers, Express and Station Employees, affiliated with the American Federation of Labor, has been designated and se- lected by a majority of the office and dock clerks, regular and extra watchmen, and other office employees of Agwilines, Inc., doing business under the trade name of Clyde-Mallory Lines, at the Company's Miami, Florida, office, exclusive of checkers, secretaries to executives, and supervisory employees, as their representative for the purpose of collective bargaining and that, pursuant to the provisions of Section 9 (a) of the Act, Brotherhood of Railway and Steamship Clerks, Freight Handlers, Express and Station Employees, affiliated with the American Federation of Labor, is the exclusive representative of all such employees for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, and other condi- tions of employment. 12 N. L. R. B., No. 47a.