Lihue Plantation Co., Ltd.

In the Matter of LIHUE PLANTATION COMPANY, LTD. and AHIIHINI TERMINAL AND WATERFRONT WORKERS' ASSOCIATION, LOCAL No. 21744 In the Matter of LIHUE PLANTATION COMPANY, LTD. and INTERNA- TIONAL LONGSHOREMEN 'S AND WAREHOUSEMEN'S UNION, LOCAL No. 1-35 Cases Nos. R-1590 and R-1591, respectively.Decided January 8,1940 Stevedoring Industry-Investigation of Representatives : controversy concern- ing representation of employees ; rival organizations ; employer refuses to recog= nize either organization until determination of which represents employees in appropriate unit- Unit Appropriate for Collective Bargaining : prior agreement covering regular terminal employees and casuals ; casuals constitute integral part of stevedore operations ; inclusion of casuals, working foremen, and em- ployees who devote less than half their time to clerical work ; exclusion of supervisory employees above rank of working foremen, employees who devote more than half their time to clerical work, and timekeepers-Election •Ordered: eligibility of casuals limited. Mr. William A. Babcock, Jr., for the Board. Smith, Wild, Beebe d Cades, by Mr. Arthur E. Smith, of Honolulu, T. H., for the Company. Mr. R. F. McCarthy, of Honolulu, T. H., for Local No. 21744. Mr. Louis E. Welch, of Honolulu, T. H., for the I. L. W. U. Mr. Albert J. Hoban, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE On July 14, 1938, and June 1, 1939, Ahukini Terminal and Water- front Workers' Association, Local No. 21744, herein called Local No. 21744, affiliated with the American Federation of Labor, and Inter- national Longshoremen's & Warehousemen's Union, Local No. 1-35, Unit 2, herein called the I. L. W. U., affiliated with the Congress of Industrial Organizations, respectively, filed with the Regional Di- rector for the Twentieth Region (San Francisco, California) separate petitions, alleging that questions affecting commerce had arisen con- 19 N. L. R. B., No. 19- 130 . LIHT E PLANTATION COMPANY, LTD. 131 cerning the representation of employees of The Lihue Plantation Company, Limited,' Kauai, Territory of Hawaii, herein called the Company, and requesting an investigation and certification of repre- sentatives pursuant to Section 9 (c) of the National Labor Relations Act, 49 Stat. 449, herein called the Act.2 On July 31, 1939, the National Labor Relations Board, herein called the Board, acting pursuant to Section 9 (c) of the Act and Article III, Section 3, and Article II, Section 10 (c) (2), of National Labor Relations Board Rules and Regulations-Series 2, ordered an investi- gation in each case and authorized the Regional Director to conduct it and to provide for an appropriate hearing upon due notice and further ordered that the cases be consolidated for the purposes of hearing. On September 21, 1939, the Regional Director issued a notice of hearing, copies of which were duly served upon the Company, upon Local No. 21744, and upon the I. L. W. U. On September 27, 1939, the Regional Director issued a notice of postponement of hearing, copies of which were duly served upon the afore-mentioned parties. Pursuant to notice, a hearing was held from October 9 to 12, 1939, at Lihue, Kauai, Territory of Hawaii, before Thomas H. Kennedy, the Trial Examiner duly designated by the Board. The Board and the Company were represented by counsel, and Local No. 21744 and the 1. L. W. U., by representatives, all of whom participated in the hear- ing. 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 Ex- aminer and finds that no prejudicial errors were committed. The rulings are hereby affirmed. On October 23 and November 13, 1939, the I. L. W. U. and the Company, respectively, filed briefs with the Board. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT I. THE BUSINESS OF THE COMPANY The Lihue Plantation Company, Limited, is a corporation or- ganized under and existing by virtue of the laws of the Territory of Hawaii. - It is engaged at Lihue, Island of Kauai, Territory of Hawaii, in the cultivation and harvesting of sugar cane, the produc- Incorrectly referred to in the notice of hearing as Lihue Plantation Company, Ltd. The petition of Local No. 21744 was amended on March 15, 1939, on May 29, 1939, and at the hearing on October 10, 1939. 132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tion of raw sugar and molasses , and the storage , sale, and shipment of sugar, molasses, and other products. At the Port of Ahukini, Island of Kauai, the Company owns and operates a private terminal at which it is engaged in storing, ship- ping, receiving, and handling cargo and freight for itself and for other persons and firms on the Island. At the Port of Nawiliwili, also situated on. the Island of Kauai, approximately 5 miles from the Port of Ahukini, the Company uses the facilities of a public wharf for shipping and receiving its own freight and in loading and un- loading cargo for others . During 1938 the Company handled 106,905 tons of outgoing freight at the Ports of Ahukini and Nawiliwili, consisting of raw sugar, molasses , pineapples, and general freight. Except for raw sugar, which is shipped to refineries located in the United States, all outgoing freight is shipped to ports in the United States and foreign countries . During the same year, 26,403 tons of incoming freight, consisting principally of such materials as ferti- lizer, jute bags, lime, steel , stock feed, and fuel oil, were handled by the Company. The bulk of the incoming freight handled by the Company is shipped to Ahukini and Nawiliwili from other ports in the Territory of Hawaii , from States and Territories of the United States, and from foreign countries . In its stevedoring operations, with which this proceeding is concerned , the Company employs ap- proximately 297 persons. We .find that the Company in its operations described above, is engaged in trade, traffic , transportation, and commerce within the Territory of Hawaii and between the Territory of Hawaii and the several States of the United States and foreign countries and that the terminal workers employed by the Company are directly engaged in such trade, traffic, transportation, and commerce. H. THE ORGANIZATIONS INVOLVED Ahukini Terminal and Waterfront Workers' Association, LocalNo. 21744, is a labor organization affiliated with the American Federation of Labor, admitting to membership all terminal workers at the ports of Ahukini and Nawiliwili, exclusive of foremen with the right to hire and discharge and supervisory officials of higher rank. International Longshoremen's & Warehousemen's Union, Local No. 1-35, Unit 2, is a labor organization affiliated with the Congress of Industrial Organizations, admitting to membership all persons em- ployed at terminal work in or about the ports of Ahukiiini and Nawiliwili, excluding foremen who have the power to hire or dis- charge and supervisory officials of higher rank than such foremen, timekeepers, and office workers. LIHUE PLANTATION COMPANY, LTD. III. THE QUESTION CONCERNING REPRESENTATION 133 On October 22, 1937, the Company entered into. a written agree- ment with Ahukini Longshoremen's Industrial Association, herein called the Association, in which it recognized the Association as the "sole collective bargaining agency for all its employees at the port of Ahukini, Kauai, T. H., while engaged in activities coming under the provisions of the Wagner Act." The agreement was to remain in effect to September 30, 1938, and from year to year thereafter in the absence of a written notice of a desire to terminate given by one of the parties at least 60 days prior to the expiration date. On July 16, 1938, Local No. 21744 notified the Company that it had filed a petition with the Board requesting an investigation and certification of rep- resentatives and asked that the Company refrain from renewing any agreements or entering into new agreements with other labor organi- zations. More than 60 days prior to the date of the expiration of its agreement with the Association, the Company notified the Associa- tion, which had meanwhile obtained a charter from the International Longshoremen's & Warehousemen's Union as Local No. 1-35, Unit 2, that the agreement would terminate on September 30, 1938. Since that date the Company has refused to bargain with Local No. 21744 or with the I. L. W. U. until the Board has determined which organi- zation represents its employees in an appropriate unit or units. We find that a question has arisen concerning the representation of the terminal employees of the Company and that such question tends to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. IV. THE APPROPRIATE UNIT In its stevedoring activities at the ports of Ahukini and Nawili- wili the Company employs three groups of employees : regular ter- minal employees who devote their time exclusively to work in and about the terminals; Lihue Plantation casual employees, herein called Lihue Plantation casuals, who are engaged principally in agricultural work on the Company's plantation at Lihue, but spend a substantial part of their time at stevedore work; and casual labor procured from the village of Kapaa herein called Kapaa casuals, a group of persons not otherwise employed by the Company, who assist the regular ter- minal employees and the Lihue Plantation casuals in loading and unloading ships. As amended at the hearing, the petition of the I. L. W. U., alleges that "all terminal 'employees and Lihue Plantation Casuals who work in and about the ports of Ahukini and Nawiliwili, exclusive of execu- tives, office workers, timekeepers, foremen as distinguished from work- ing foremen or gang leaders, and supervisory employees with the 283030-41-vol. 19=10 134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD right to hire and fire," constitute a unit appropriate for the purposes of collective bargaining. The petition of Local No. 21744 alleges that the appropriate unit consists of "all regular terminal employees who work in and about the ports of Ahukini and Nawiliwili exclusive of those having the right to hire and fire, and real foremen (as contrasted with working foremen)." At the hearing, Local No. 21744 further contended that if the Board should find that Lihue Plantation casuals should be included within the appropriate unit with regular terminal employees, then the Kapaa casuals should also be included. The Company agreed substantially with the contentions of Local No. 21744. Regular terminal employees.-The Company ordinarily employs for terminal work at the ports of Ahukini and Nawiliwili approximately 90 regular workers who engage exclusively in longshore work, main- tenance of terminal facilities, and warehousing. They are able to load and unload the cargo of approximately 40 per cent of the ships which stop at Ahukini and Nawiliwili without outside assistance. The regu- lar terminal employees live in a Company camp adjacent to Ahukini, but perform no agricultural labor. As noted above, they were covered by the 1937 contract between the Company and the Association. All parties agree, and we find, that the regular terminal employees should be included within the appropriate unit. The Lihue Plantation Casuals.-Approximately 67 workers Who perform agricultural labor on Lihue Plantation devote 25 per cent of their time to assisting the regular terminal employees in loading and unloading cargo. From January 1 to September 1, 1939, the Lihue Plantation casuals spent an average of 481 hours on longshore work. Their assistance is required by the regular terminal employees on 60 per cent of the ships handled by the Company at b.th ports and, as noted above, they were covered by the 1937 contract between the Association and the Company. Under the circumstances we can- not agree with Local No. 21744 that the Lihue Plantation casuals, should be excluded from the appropriate unit because they are not steady workers. We find that the Lihue Plantation casuals are prop- erly within the- appropriate unit. Kapaa Casuals.-When the regular terminal employees assisted by the Lihue Plantation casuals are unable to handle the longshore work at Ahukini and Nawiliwili, the Company obtains from the village of Kapaa, Island of Kauai, a number of workers not otherwise employed by the Company. Since September 1937 the Company has maintained a list of Kapaa casuals, numbering about 140 names at the time of the hearing, from which it selects a gang of approximately 35 men who are transported by the Company from the village to the port when they are needed. During the first 8 months of 1939 the Kapaa casuals averaged 91 hours of employment with the Company. When cargo is being handled the work of the regular terminal employees, the Lihue LIHUE PLANTATION COMPANY, LTD. 135 Plantation casuals, and the Kapaa casuals is almost identical and all are paid at the same hourly rate. According to its terms, the agreement of October 22, 1937, covered all employees at the port of Ahukini "while engaged in activities com- ing under the provisions of the Wagner Act." In practice the wages and hours set forth in the contract were applied to regular terminal employees, Lihue Plantation casuals, and Kapaa casuals while engaged in longshore work at either Ahukini or Nawiliwili. While there is no evidence that either the I. L. W. U. or Local 21744 has attempted to organize the Kapaa casuals, they were covered by the contract and we believe that they constitute an integral part of the stevedore labor used by the Company at its terminals. Accordingly we find that. the Kapaa casuals should be included within the appropri- ate unit.' Foremen.-Both unions agree that foremen, as distinguished from working foremen, and supervisory employees with the right to hire and discharge should be excluded from the appropriate unit. Clearly within the class excluded are J. W. Bertrand, port superintendent, and F. X. Thiel, port captain. However, the I. L. W. U. objected to the inclusion of Henry Rente, master mechanic, on the ground that he is the "roundhouse foreman." Rente is in charge of a crew of approxi- mately eight men who repair locomotives. He performs some of the more difficult mechanical jobs himself. The record shows that the Company has hired at least one employee upon Rente's recommenda- tion. During the period in which the collective bargaining agree- ment with the Association was in effect, the only foremen not paid time and a half for overtime were Bertrand, Thiel, and Rente. We find that the supervisory status of Rente is superior to that of a working foremen and we shall exclude him from the appropriate unit. The exclusion of Y. Murakami, truck gang foreman; S. Kama, gen- eral working foreman; and K. Omoto, tarpaulin' foreman; was also requested by the I. L. W. U. on the ground that these employees exer- cise a degree of supervisory authority which distinguished them from the other working foremen. The record shows that the above-named employees had no right to hire and discharge or to recommend the hiring or discharge of employees. Each performs manual labor along with the employees whose work he directs. There is nothing in the testimony or in the pay-roll records submitted by the Company which distinguishes their authority from that of the other working foremen whom both unions desire to have included. We find, therefore, that Y. Murakami, S. Kama, and K. Omoto should be included within the appropriate unit. "Cf. Matter of Southern California Gas Company and Utility Worker8 Organizing Committee, Local No. 1.48, 10 N. L. R. B. 1123. 136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Clerks.-During the hearing the parties stipulated that Shigeo Miyoshi, chief clerk, should be excluded. We find nothing in the record which would lead us to depart from the desires of the parties in this respect and we shall exclude Shigeo Miyoshi from the ap- propriate unit. The I. L. W. U. desires the exclusion of J. Sousa, S. Ono, Ferdnando de la Cruz, and L. I?apozo, all of whole are classified by the Company as clerks. The time of these employees is divided between clerical work and manual labor. Sousa checks freight at Ahukini. Bertrand, the port superintendent, estimated that the majority of Sousa's work was office work. One spends 90 per cent of his time doing clerical work at Nawiliwili. De la Cruz checks freight at Nawiliwili for the Inter-Island Steam Navigation Company, for whom the Company acts as agent, but is sometimes recalled to Ahukini to do various jobs. Rapozo, who is used at both Ahukini and Nawiliwili selling tickets and doing clerical work for the Inter-Island Company, devotes less than 25 per cent of his time to stevedoring. There are other employees classified as clerks by the Company to whose inclusion none of the parties objects. It appears that clerical employees, as such, were not covered byy the 1937 contract.4 Under the circumstances, all clerks upon the pay roll of the Company who devote most of their time to office work shall be excluded from the appropriate unit. Employees assigned to Standard Oil Company plant.-The I. L. W. U. desires the exclusion exclusion of S. Ishida and S. Fujii, clerks ; N: Kashhna, a gas and oil tank tender; and S. Sugibayasi, a clerk and gas and oil tank tender. These employees are on the pay roll of the Company but are assigned to work at a plant of the Standard Oil Company located at the Ahukini terminal. There is no justification for their exclusion merely because they work upon the property of another corporation. Except for clerks it would appear that these employees were covered by the 1937 contract with the Association. With respect to the clerical employees we shall treat them as we have treated other employees of the Company designated as clerks. There is some evidence, however, that at least one of these employees de- votes most of his time to clerical work. Those employees engaged at the Standard Oil plant who devote most of their time to clerical work shall be excluded from the appropriate unit. Miscellaneous Employees.-The I. L. W. U. desires the exclusion of Makoto Moroika, the timekeeper. We shall adhere to our practice of excluding such an employee where one union desires the exclusion.° * The contract set wage rates for such employees as hatch tenders, winch drivers, jitney drivers, stevedores, longshoremen, sugar-shute men, and "other employees handling cargo on steamer days." GMatter of The Connor Lu,10er S Laud Co. and International 1Poodroorke,:s of Aou;rica, Local No. 125 (C. I. 0.), 11 N. L. R. B. 776. LIHUE PLANTATION COMPANY, LTD. 137 The contention of the I. L. W. U. that Modesto Ser2'ano is a camp boss is.not supported by the evidence. Nor do we believe that Tokiji Kurosaki, a camp cleaner, should be excluded from the appropriate unit because he acts as "yard boy" for Bertrand. Both are available as stevedore workers and as such were covered by the 1937 contract. We find that Modesto Serrano and Tokiji Kurosaki should be in- cluded within the appropriate unit. We find that all regular terminal employees, Lihue Plantation casuals, and Kapaa casuals employed by the Company at the ports of Ahukini and Nawiliwili, including working foremen and em- ployees who devote less than half their time to clerical work, but excluding supervisory employees above the rank of working foreman, employees who devote more than half their time to clerical work, and the timekeeper, 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 otherwise effectuate the policies of the Act. V. THE DETERMINATION OF REPRESENTATIVES At the date of the hearing there were approximately 89 regular terminal workers, excluding Bertrand, Thiel, and Rente, employed by the Company. The names of 46 of these regular terminal workers appeared on a list of its members introduced in evidence by Local No. 21744. The names of 30 regular terminal employees appeared on authorization cards introduced by the I. L. W. U. During the hearing, the Company furnished a list of 67 Lihue Plantation casuals who had been employed at longshore work between January 1 and September 1, 1939. Local No. 21744 introduced no evidence of mem- bership in this group, but the I. L. W. U. introduced authorization cards purportedly signed by 58 Lihue Plantation casuals. Neither organization offered evidence of membership among the Kapaa casuals. We find that the question concerning representation which has arisen can best be resolved by the conduct of an election by secret ballot. However, among the employees other than regular terminal employees, and particularly among Kapaa casuals, there are such great differences in the number of hours worked that we feel it necessary to limit participation in the election to those casuals who have a substantial interest, in the conditions of employment at Ahukini and Nawiliwili. Accordingly, those employees eligible to vote in the election shall be the regular terminal employees within the appropriate unit employed by the Company during the pay-roll 138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD period next preceding the date of this Direction and those Lihue Plantation casuals and Kapaa casuals who were employed by the Company at longshore work for at least 200 hours from January 1 to September 1, 1939. Upon the basis of the above findings of fact and the entire record of the case, the Board makes the following : CONCLUSIONS OF LAW 1. A question affecting commerce has arisen concerning the repre- sentation of employees of the Lihue Plantation Company, Ltd., Lihue, Island of Kauai, Territory of Hawaii, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the National Labor Relations Act. 2. The regular terminal employees, the Lihue Plantation casuals and the Kapaa casuals employed by the Company at the ports of Ahukini and Nawiliwili, including working foremen and employees who devote less than half their time to clerical work, but excluding supervisory employees above the rank of working foremen, clerks who devote more than half their time to clerical work, and the time- keeper, constitute a unit appropriate for the purposes of collective bargaining, within the meaning of Section 9 (b) of the 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 Relations Act, 49 Stat. 449, and pursuant to Article III, Section 8, of National. 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 The Lihue Plantation Company, Limited, Lihue, Island of Kauai, Territory of Hawaii, an election by secret ballot shall be con- ducted as early as possible but not later than 45 days from the date of this Direction of Election under the direction and supervision of the Regional Director for the Twentieth 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 all regular termi- nal employees employed by The Lihue Plantation Company, Lim- ited, during the pay-roll period next preceding the date of this Direc- tion, including working foremen, employees who devote less than half their time to clerical work, employees who did not work during such pay-roll period because they were ill or on vacation, and employees who were then or have since been temporarily laid off, and among all Lihue Plantation casuals, and Kapaa casuals, who were employed by LIHUE PLANTATION COMPANY, LTD. 139 the Company at longshore work for at least 200 hours from January 1 to September 1, 1939, but excluding supervisory employees above the rank of working foremen, employees who devote more than half their time to clerical work, the timekeeper, and any employees who have since quit or been discharged for cause, to determine whether they desire to be represented by Ahukini Terminal & Waterfront Workers' Association, Local No. 21744, affiliated with The American Federation of Labor, or by International Longshoremen's & Warehousemen's Union, Local 1-35, Unit 2, affiliated with the Congress of Industrial Organizations, for the purposes of collective bargaining, or by neither.