Isthmian Steamship Co.

In the Matter Of ISTHMIAN STEAMSHIP COMPANYQtnd MARINE ENGINEERS' BENEFIOIAL ASSN Case No. R-847.-Decided January 2, 1940 Shipping Industry-Investigation of Representatives: controversy concerning representation of employees : rival organizations-Unit Appropriate for Collective- Bargaining: all licensed marine engineers of employer ; controversy as to- Election Ordered : employer notified that during pendency of election there should be no discrimination in issuance of passes to the two competing unions. Mr. Albert Ornstein, for the Board. Mr. A. V. Cherbonnier, of New York City, for the Company. Mr. Edward P. Trainer, of New York City, for the M. E. B. A. Mr. Bert L. Todd, of New York City, for the U. L. O. Mr. Harry A. Seller'y, Jr., of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE On November 15, 1937, Marine Engineers' Beneficial Association, herein called the M. E. B. A., filed with the Regional Director for the Second Region (New York City) a petition alleging that a question affecting commerce had arisen concerning the representation of em- ployees of Isthmian Steamship Company, New York City, herein called the Company, 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 March 14, 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, as amended, ordered an investigation and authorized the Regional Di- rector to conduct it and to provide for an appropriate hearing upon due notice. On June 11, 1938, the Regional Director issued a notice of hearing, copies of which were duly served upon the Company, the M. E. B. A., United Licensed Officers of the United States of America, herein called the U. L. 0., International Union of Operating Engineers, herein 19 N. L. R. B., No. 3. 16 ISTHMIAN STEAMSHIP COMPANY 17 called the I. U. O. E., and International Longshoremen's Association, Local No. 1550, herein called the I. L. A., labor organizations claiming to represent employees directly affected by the investigation. Pur- suant to the notice, a hearing was held on June 17, 1938, at New York City before Howard Myers, the Trial Examiner duly designated by the Board. The Board and the Company were represented by counsel and the M. E. B. A. and the U. L. O. by their representatives. The Board, the Company, the M. E. B. A, and the U. L. O. participated in the hearing. The I. U. O. E. and the I. L. A. did not appear. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues was afforded all parties. During the course of the hearing the Trial Examiner made several rulings on motions and on 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. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY' Isthmian Steamship Company is engaged in operating 27 vessels for the transportation of freight in interstate and foreign commerce. H. THE ORGANIZATIONS INVOLVED Marine Engineers' Beneficial Association is a labor organization affiliated with the Congress. of Industrial Organizations. United Licensed Officers of the United States of America is an unaffiliated labor organization. Both labor organizations admit to membership .licensed marine engineers of the Company. III. THE QUESTION CONCERNING REPRESENTATION By stipulation of the parties it appears, and we find, that the vessels of the Company "are engaged in intercoastal, foreign, and coastwise trade." Following a strike of employees of the Company conducted by the M. E. B. A. in the early part of 1937, the Company delivered to the M. E. B. A. a letter dated March 17, 1937. In this letter the Company stated that "we propose following the rates of wages, hours of labor, overtime pay and other conditions in effect with other Inter- coastal Lines . . . It is further contemplated that the Isthmian Steamship Company will employ no engineers except members of the ' The facts concerning the business of the Company are based upon a stipulation entered into by the parties at the hearing. 18 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Marine Engineers Beneficial Association on its ships in the Inter- coastal Services." 2 The arrangement between the Company and the M. E. B. A. set forth in this letter applied only to those licensed marine engineers who were engaged in the Company's intercoastal trade. The M. E. B. A. requested the Company to recognize it as the representative of the Company's other licensed marine engineers. The U. L. O. also claimed to represent the Company's licensed marine engineers. The Company refused.to grant the desired recognition to either the M. E. B. A. or the U. L. O. On November 15, 1937, the M. E. B. A. filed its petition herein in which it alleged that a question had arisen concerning the representa- tion of employees of the Company in that "the Company executed the above-mentioned letter" but "continually refuses to admit vessels are in Intercoastal Trade and refuses to bargain with the union (the M. E. B. A.), for all vessels of the Company." At the hearing the Company took the position that labor organiza. tions were advancing conflicting claims with respect to the representa- tion of its licensed marine engineers, that it did not know which labor organization, if any, was the exclusive representative of such em- ployees, and that they should be given an opportunity to express their choice through an election by secret ballot. We find that a question has arisen concerning the representation of employees of the Company. IV. THE EFFECT OF THE QUESTION CONCERNING REPRESENTATION UPON COMMERCE We find that the, question concerning representation which has; arisen, occurring in connection with the operations of the Company described in Section I above, has a close, intimate, and substantial. relation to trade, traffic, and commerce among the several States, and. tends to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE APPROPRIATE UNIT .The M. E. B. A. desires that we designate as the appropriate unit. in this case all licensed marine engineers of the Company excluding licensed marine engineers employed in the Company's intercoastal trade. The M. E. B. A. defends the proposed exclusion on the ground. that licensed marine engineers in the intercoastal service are covered by the arrangement instituted by the above-mentioned letter. The- 2 From the record it appears that the terms of this letter were in effect at the time of the hearing. ISTHMIAN STEAMSHIP COMPANY 19 M. E. B.. A. wishes to proceed, with an election, however, even if the Board should find that the appropriate unit in this case comprises all the licensed marine engineers of the Company. The Company and the U. L. 0. both favor the wider unit. The record discloses no differences between the duties and interests of intercoastal licensed marine engineers, and other licensed marine engineers of the Company. Indeed these persons and the vessels of the Company are customarily transferred to and from the intercoastal, foreign, and coastwise lines. Consequently, there is no rational method of determining whether or not a particular licensed marine engineer is included within the unit proposed by the M. E: B. A. The exigencies of its business may compel the Company to assign a li- censed marine engineer or a vessel to the three types of service in three successive voyages. Because of these circumstances, we shall include all licensed marine engineers in the appropriate unit. We find that all licensed marine engineers of the Company constitute a unit appropriate for the purposes of collective bargaining and that said unit will insure to employees of the Company the full benefit of their right to self-organization and to collective bargaining and other- wise effectuate the policies of the Act. VI. THE DETERMINATION OF REPRESENTATIVES From the record it appears that a substantial number of licensed. marine engineers have designated the M. E. B. A. and the U. L. 0., respectively, as their collective bargaining representative. The pres- ent record does not enable us to determine, however, which labor organization, if any, has been selected by a majority. Accordingly, we shall direct an election by secret ballot to resolve the question concerning representation. We shall direct that this election begin as promptly as is practicable after the date of this Direction under the direction and.supervision of the Regional Director for the Second Region who shall determine in her discretion the exact time, place, and procedure for giving notices of election and for balloting, provided, however, that each vessel shall be posted with a notice of election. The M. E. B. A., the U. L. 0., and the Company are agreed, and accordingly we conclude, that those eligible to vote shall be licensed marine engineers who are employed on a ship when it is posted with a notice of election. These parties also agreed that licensed marine engineers "on vacation at the time of said posting" shall be eligible. If the ships of the Company are to be posted on the same date, then, pursuant to the stipulation, licensed marine engineers on vacation on such date shall be eligible to vote. If the respective postings are to 20 DECISIONS OF NATIONAL LABOR RELATIONS BOARD occur on different dates, then licensed marine engineers on vacation on the date on which the Regional Director issues the instruction that all ships be posted shall be eligible. At the time of the hearing the Company was giving passes to the M. E. B. A. which admitted its agents to vessels scheduled for use in the intercoastal service. A. P. Jump, personnel director of the Company, testified that the Company was "thinking of revoking the right of people to go aboard the ship." Counsel for the Company also stated that the Company would cease granting passes if we so directed. The election contemplated by Section 9 (c) of the Act is one in which the employees can designate "representatives of their own choosing." We must therefore prescribe conditions of election which will insure to employees a genuine and untrammeled choice. In order that the election may reflect the true desires of the em- ployees, the Company must afford them equal access to the agents of both labor organizations and not engender any misunderstanding or apprehensions which will encourage affiliation with one labor organiza- tion and discourage it with another. Therefore, unless the Company denies passes to the M. E. B. A. and the U. L. O. or grants an equal number of passes to both organizations, from the date of service of this Decision and Direction of Election upon the parties until the completion of voting thereunder, the Company will be interfering with the proper conduct of the election and with the selection by employees of representatives of their own choosing.3 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 employees of Isthmian Steamship Company, New York City, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the National Labor Relations Act. 2. All licensed marine engineers of 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. 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 Rela- tions Act, 49 Stat. 449, and pursuant to Article III, Section 8, of Na- 3 Cf. Matter of American Prance Line et at. and International Seamen's Union of America, 3 N. L. R. B. 64, 76, 78. ISTHMIAN STEAMSHIP COMPANY 21 tional Labor Relations Board Rules and Regulations-Series 2, it is hereby DIRECTED that, as part of the investigation authorized by the Board to ascertain representatives for the purposes of collective bargaining with Isthmian Steamship Company, New York City, an election by secret ballot shall be conducted as soon as convenient and beginning as promptly as is practicable after the date of this Direction in con- formity with the rules set forth hereinabove for the conduct of such election, under the direction and supervision of the Regional Director for the Second Region, acting in this matter as the agent for the National Labor Relations Board, and subject to Article III, Section 9, of said Rules and Regulations, among the licensed marine engineers of said Company who are employed on a ship when it is posted, and licensed marine engineers who are on vacation on the applicable date, as set forth in the section of the Decision entitled "The determination of representatives," excluding licensed marine engineers who have since quit or been discharged for cause, to determine whether they de- sire to be represented by Marine Engineers' Beneficial Association, by United Licensed Officers of the United States of America, or by neither, for the purposes of collective bargaining. 553030-41-vol. 19-3