M. & J. Tracy, Inc.

In the Matter of M. & J . TRACY, INC. and INLAND BOATMEN'S UNION Case No. B-760.-Decided May 13, 1939 Shipping Industry-Investigation of Representatives: controversy concerning representatives of employees : recognition of union, employer's refusal to grant, on ground of a subsisting contract with another union; substantial doubt as to majority status, overlapping membership, lack of authentication of signa- tures; rival organizations-Contract: prior collective contract with rival organ- ization no bar to investigation and certification-Unit Appropriate for Collec- tive Bargaining: employer association, with no legal power to contract for its members as ; barge captains, stipulation as to-Election Ordered Mr. Richard J. Hickey and Mr. Gordon T. O'Hanlon, for the Board. Phillips, Mahoney d Fielding, by Mr. William E. Goldman and Mr. J. A. Bell, Jr., of New York City, for the Company. Mr. Wm. L. Standard and Mr. Maw Lustig, of New York City, for I. B. U. Mr. Louis Waldman and Mr. David I. Ashe, of New York City, for Local 933-1 and for I. L. A. Mary Lemon Schleifer, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE On December 12, 1937, Inland Boatmen's Union, herein called 1. B. U., filed with the Regional Director for the Second Region (New York City), a petition alleging that a question affecting com- merce had arisen concerning the representation of the men employed on barges, scows, and other craft of similar nature, and tugs oper- ated by M. & J. Tracy, Inc., New York City, herein called the Com- pany, and requesting an investigation and certification of representa- tives, pursuant to Section 9 (c) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. On February 15, 1938, the National Labor Relations Board, herein called the Board, acting pursuant to Section 9 (c) of the Act and Article III, Section 3, of National Labor Relations Board Rules and Regulations-Series 1, 12 N. L. R. B., No. 96. 936 M. & J. TRACY, INC. 937 as amended, ordered an investigation and authorized the Regional Director to conduct it and to provide for an appropriate hearing upon due notice. On March 8, 1938, the Regional Director issued a notice of hearing, copies of which were duly served upon the Company, I. B. U., Marine Division International Longshoremen's Association, Interna- tional Seamen's Union of America, and the Harbor Carriers of the Port of New York.' On March 11, 1938, copies of the notice of hear- ing were also served on Locals No. 996, No. 933-4, No. 933-3, and No. 933-1, International Longshoremen's Association 2 Pursuant to the notice, a hearing was begun in New York City on March 14, 1938, before Herman A. Gray, the Trial Examiner duly designated by the Board. The hearing was adjourned on March 14 and reconvened on April 12, 1938. The Board, the Company, I. B. U., Local 933-1, and International Longshoremen's Associa- tion, herein called I. L. A., were represented by counsel and par- ticipated in the hearing. At the opening of the hearing, counsel for the Company filed a written "Plea in Abatement," which constituted, in effect, a motion to dismiss on the ground that the Board had no jurisdiction to certify a collective bargaining representative because of a subsisting contract between the Company and Tidewater Boatmen's Union, Local 933-1, I. L. A., herein called Local 933-1. Counsel for Local 933-1 and for I. L. A. joined in the motion to dismiss. No ruling was made by the Trial Examiner concerning the Plea in Abatement, which, regarded as a motion to dismiss, is hereby denied. Counsel for all of the parties stipulated that the evidence adduced in a case previously heard 8 should be considered as having been introduced in evidence in the instant case. The Trial Examiner granted a motion by counsel for I. B. U. that the petition be amended so as to request an investiga- tion and certification of representatives for only the employees engaged on the barges operated by the Company. During the course of the hearing, the Trial Examiner reserved decision on motions by counsel for the Company and counsel for Local 933-1 and for I. L. A. to dismiss the petition for the reasons set forth in the Plea in Abatement and for the further reason that the averments contained in the petition, necessary to the granting of the relief sought, had not been established by competent legal evi- dence. The motions are hereby denied. 1 The interest of the latter groups will appear hereafter. 2 As hereafter appears, of the parties served on March 11, 1938, only Local 933-1 has any interest in the proceedings. 8 Matter of M. & J. Tracy, Inc. and Inland Boatmen's Union, Case No. C-594, 12 N. L. R. B. 916. 938 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On May 28, 1938, the Board ordered the record reopened for the introduction of further evidence and on June 9, 1938, issued an order dismissing objections which had been filed by the Company to the reopening of the record. Pursuant to notice served upon the parties a supplemental hearing was held in New York City on August 4, 1938, before Herman A. Gray. All of the parties who appeared at the original hearing were represented by counsel and participated in the supplemental hearing.4 Again at the supplemental hearing, the Trial Examiner reserved decision on a motion by counsel for the Company, in which counsel for Local 933-1 and for I. L. A. joined, to dismiss the petition. The motion is hereby denied. Full opportunity to be heard, to examine and cross-examine wit- nesses, and to introduce evidence bearing on the issues was afforded all parties at both hearings. In addition to the rulings already dis- cussed, numerous other rulings on motions and objections to the introduction of evidence were made by the Trial Examiner during the course of the hearings. The Board has reviewed these rulings and finds that no prejudicial errors were committed. The rulings are hereby affirmed. On November 3, 1938, a hearing was held before the Board in Washington, D. C., for the purpose of oral argument in Matter of M. ct; J. Tracy, Inc. and Inland Boatmen's Union, Case No. C-594. Because of the confusion which had arisen concerning the consolida- tion of the two cases, counsel for Local 933-1 and for I. L. A. ap- peared at the oral argument and was granted permission by the Board to argue the issues involved in the instant case and to file a brief. The brief filed by the Company in Case No. C-594, covered the instant case also. The Board has considered the briefs of the Company and of Local 933-1 and I. L. A. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY M. & J. Tracy, Inc., a New York corporation, is engaged in the transportation of coal and bulk commodities by water routes. The Company operates deep-sea colliers, barges, and tugs between ports in the State of New York and ports in other States of the United States. A The supplemental hearing covered both the instant case and also Matter of M. cE J. Tracy, Inc. and Inland Boatmen's Union, Case No. C-594, 12 N. L. R. B. 916. Counsel for Local 933-1 and for I. L A, objected to the consolidation of the two cases at the hearing on August 4, 1938. The objection is without merit for although only one record was made for the two cases heard on August 4, the Board has never consolidated the cases. M. & J. TRACY, INC. 939 The controversy which has arisen involves only those employees of the Company who are engaged in the operation of barges. A barge is an unpropelled harbor craft which is towed by a tug. Only one employee, designated as a barge captain, is employed on each barge. The Company owns 229 such barges, approximately 169 of which were in operation at the time of the hearing. These barges are operated in the New York harbor between ports in the State of New York and ports in the State of New Jersey. The deep-sea colliers operated by the Company are operated be- tween ports in the State of New York and ports in Virginia, in the New England States, and on the Gulf of Mexico. We find that the Company is engaged in traffic, transportation, and commerce among the several States of the United States. II. THE LABOR ORGANIZATIONS INVOLVED Inland Boatmen's Union is, properly, International Inland Boat- men's Union, having been granted a charter in that name by the Committee for Industrial Organization on November 17, 1937. In- ternational Inland Boatmen's Union, is the successor of Inland Boat- men's Division of the National Maritime Union, which was likewise affiliated with the Committee for Industrial Organization. Inter- national Inland Boatmen's Union has subordinate locals having juris- diction over various types of employees in the New York harbor. United Boatmen's Local No. 2, having jurisdiction over employees on unpropelled water craft, is one such subordinate local. Some of the barge captains employed by the Company are members of United Boatmen's Local No. 2. International Inland Boatmen's Union and United Boatmen's Local No. 2 are labor organizations within the meaning of the Act. Tidewater Boatmen's Union, Local 933-1, a labor organization, is a local of International Longshoremen's Association, affiliated with the American Federation of Labor. Local 933-1 has jurisdiction over employees on water craft carrying coal and other freight through the Barge Canal. III. THE QUESTION CONCERNING REPRESENTATION During 1937, I. B. U. made several requests to officials of the Com- pany that the Company bargain collectively with I. B. U. concerning the wages and working conditions of the barge captains. The Com- pany refused these requests on the ground that a subsisting contract between the Company and Local 933-1 prevented it from bargaining collectively with I. B. U. In its petition I. B. U. claimed that a majority of the barge cap- tains employed by the Company wished I. B. U. to represent them for 940 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the purposes of collective bargaining. In substantiation of this claim, I. B. U. submitted membership and pledge cards signed by some of the barge captains employed by the Company for examination by the Trial Examiner and the Board. I. B. U. refused to submit these cards to coun- sel for the Company, and counsel for Local 933-1 and for I. L. A. for examination on the ground that, in view of the contract between the Company and Local 933-1, such an examination might result in the dis- missal of its members. We have frequently held that we will not com- pel unions to submit their membership rolls under such circumstances.5 The Trial Examiner checked the cards offered by I. B. U. against a signed pay roll furnished by the Company, and the result of the check was admitted in evidence at the hearing on August 4,1938. This check shows that a substantial number, though less than a majority of the barge captains employed by the Company, have apparently designated I. B. U. to represent them by becoming members of that organization. In addition, Stuart McDonald, a delegate for I. B. U., testified that he had talked with practically all of the barge captains employed by the Company and that all but 15 of these employees had orally pledged themselves to join I. B. U. In view of the contract which exists be- tween the Company and Local 933-1, discussed hereafter, it is clear that many employees, even though wishing I. B. U. to represent them, would hesitate to join the organization for fear of discharge by the Company. I. L. A. submitted 159 cards, in which the signer designated Local 933-1 and I. L. A. to represent him, for examination by the Trial Examiner and the Board. At the hearing on August 4, 1938, the Trial Examiner stated that he had also checked these cards against the pay roll of the Company and had sent the result of this check to the parties, but the record does not show the result of this check. Al- though these cards are in the possession of the Board, the pay roll submitted to the Trial Examiner by the Company was not made part of the record, and the Board is unable to authenticate the signatures on the cards. In addition, many employees have signed cards in both organizations and many of the cards submitted by both organizations are not dated. The Company and I. L. A. deny the power of the Board to hold an election or to certify representatives because of the subsisting con- tract between the Company and Local 933-1. This contract was entered into on or about March 10, 1937, and does not terminate until March 31, 1940. By the terms of the contract the Company is re- quired to allow only members of Local 933-1 to work so long as Local 6 See Matter of Samson Tare and Rubber Corporation and United Rubber Workers of America, Local No. 44, 2 N . L. R. B. 148; Matter of Cherry Cotton Mills and Local No. 1824, United Textile Workers of America, 4 N. L. R. B. 731. M. & J. TRACY, INC. 941 933-1 is able and willing to furnish members to work. We find that this contract is within the proviso of Section 8 (3) of the Act.,, Since, however, over 2 years of the term of the contract have already expired, we conclude, in conformity with prior decisions,7 that it can- not preclude us from determining and certifying the organization which a majority of the barge captains now wish to represent them. In view of the claim of I. B. U. that it represents a majority, and in view of the uncertainty which exists as to which organization a ma- jority of the barge captains employed by the Company wish to repre- sent them, we find that a question has arisen concerning the representa- tion of the barge captains employed by the Company. We find that the question concerning representation which has arisen, tends to lead to labor disputes burdening and obstructing com- merce and the free flow of commerce. IV. THE APPROPRIATE UNIT During the hearing counsels for the Company, I. B. U., and Local 933-1 and I. L. A. stipulated that the barge captains employed by the Company constituted a unit appropriate for the purposes of collective bargaining. We see no reason against finding such a unit appro- priate." The contract to which the Company and Local 933-1 claim to be parties purports to be that of the Coal Carrying-Division of Harbor Carriers of the Port of New York, a membership association of em- ployers. Although we have held in certain cases that where a group of employers deal jointly through an employer's association, the employees of all members of the association should constitute an appropriate unit,9 such a conclusion has not been reached where the S As the evidence adduced in Case No C-594 was made part of the record in the instant case, we hereby incorporate by reference those findings in Case No. C-594, which are applicable to this case 7Matter of Metro -Goldwyn-Mayer Studios and Motion Picture Producers Assn, et al. and Screen Writers Guild, Inc., 7 N. L. It. B. 662; Matter of Hubinger Company and Corn Products Union No. 19931 and Hubinger Company Employees Representation Plan, 3 N. L. R B. 802 and 4 N. L It. B. 428. S Although harbor workers , including barge captains, and deep-sea workers employed by the Company were held to constitute an appropriate unit in Matter of International Freighting Corp. and International Seamen's Union of America, 3 N. L. It. B. 692, this decision was subsequently amended upon the request of all parties to exclude harbor workers from the unit. Ibid. 4 N. L. It. B. 111. 9 Matter of Shvpowner's Association of the Pacific Coast, et al. and International Long- shoremen's Association and Warehousemen's Union, District No. 1, 7 N. L. It. B. 1002; Matter of Mobile Steamship Association et al and International Longshoremen's and Warehousemen's Union, 8 N L. It. B. 1297 ; Matter of Admiar Rubber Company and American Federation of Labor on behalf of Employees of Company, 9 N. L. It. B. 407; Matter of Monon Stone Company et al and Quarry Workers' International Union of North America, 10 N. L. R. B. 64; and Matter of Hyman-Michaels Company, United Com- mercial Company Division and International Union of Mine, Mill and Smelter Workers, Local No. 50, C. I. 0, 11 N. L. R. B. 798. 942 DECISIONS OF NATIONAL LABOR RELATIONS BOARD association, as the one here involved,10 has no legal power to contract for its members and exercises no employer functions." We find that the barge captains employed by the Company con- stitute a unit appropriate for the purposes of collective bargaining and that said unit will insure to these employees of the Company the full benefit of their right to self-organization and to collective bar- gaining and otherwise effectuate the policies of the Act. V. THE DETERMINATION OF REPRESENTATIVES It is apparent from what has been stated previously that the cards submitted by I. B. U. and I. L. A. cannot serve as the basis for cer- tifying either organization. They were not offered for inspection by opposing counsel or the Company, many are undated, most of the sig- natures on the cards submitted by I. L. A. were not authenticated, and many barge captains have signed cards in both organizations. The question concerning representation which has arisen can only be resolved, therefore, by an election. We shall, accordingly, direct an election to be held. Because of the length of time which has elapsed since the filing of the petition, we shall direct that the employees eligible to vote in the election shall be those barge captains employed by the Company during the pay-roll period immediately preceding the date of this Decision and Direction of Election, excluding those who have since quit or been discharged for cause. Nevertheless, despite the provi- sions of the existing contract, any barge captain who is discharged pursuant to the terms of the contract subsequent to the date of this Decision shall be entitled to vote. 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. A question affecting commerce has arisen concerning the repre- sentation of the barge captains employed by the Company, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the National Labor Relations Act. 2. The barge captains employed by the Company constitute a unit appropriate for the purposes of collective bargaining, within the meaning of Section 9 (b) of the National Labor Relations Act. m Footnote 6, supra. n Matter of Aluminum Line et al. and International Longshoremen and Warehousemen's Union, 8 N L R B. 1325; and Matter of F E Booth & Company et al. and Monterey Bay Area Fish Workers Union No. 23, 10 N. L. R. B. 1491. Al. & J. TRACY, INC. 943 DIRECTION OF ELECTION 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, 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 for the purposes of collective bargaining with M. & J. Tracy, Inc., New York City, an election by secret ballot shall be conducted within thirty (30) days from the date of this Direc- tion under the direction and supervision of the Regional Director for the Second 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 the barge captains employed by M. & J. Tracy, Inc., designated as eligible to vote in Section V above, to deter- mine whether they wish to be represented by United Boatmen's Local No. 2, Inland Boatmen's Union, affiliated with the Committee for Industrial Organization, or by Local 933-1, Tidewater Boatmen's Union, International Longshoremen's Association, affiliated with the American Federation of Labor, for the purposes of collective bar- gaining, or by neither. MR. EDWIN S. SMITH, concurring : I am unable to agree with the interpretation of the contract between the Company and Local 933-1 placed upon it by the majority.12 How- ever, I concur in the decision that the contract is no bar to this inves- tigation of representatives. 'a See the dissenting opinion in Matter of M. & J. Tracy, Inc. and Inland Boatmen's Union, Case No C-594, 12 N. L. R B. 916.