James McWilliams Blue Line, Inc.

In the Matter of JAMES MCWILLIAMS BLUE LINE, INC. and INLAND BOATMEN'S DlvlsioN, NATIONAL MARITIME UNION, C. I. 0., AND LOCAL 933-1, INTERNATIONAL LONGSHOREMEN'S ASSOCIATION Case No. RE-6.-Decided March 11, 1940 Marine Transportation Industry-Investigation of Representatives : contro- versy concerning representation of employees : claim of majority by rival union after certification by Board of one union ; Company refusal to negotiate with latter union because of question concerning representation ; certification over a year old at time of investigation ; petition filed by employer-Unit Ap- propriate for Collective Bargaining : coal-barge and stake-boat captains of the Company ; stipulation as to by the labor organizations involved-Representa- tives: unopposed preference of one union as to eligibility date given effect- Election Ordered Mr. Albert Ornstein, for the Board. MacLin, Brown, Lenahan d Speer, by Mr. R. F. Lenahan, of New York City, for the Company. Mr. William L. Standard, by Mr. Max Lustig, of New York City, for the N. M. U. Mr. J. F. Matthews, of New York City, for the I. L. A. Mr. Bertram Diamond, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE On November 21, 1939, and on December 22, 193,9, James McWil- liams Blue Line, Inc., New York City, herein called the Company, 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 employees of 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 January 3, 1940, 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 2, ordered -an 21 N L R B., No 42 470 JAMES McWILLTAMS BLUE LINE, INC. 471 investigation and authorized the Regional Director to conduct it and to provide for an appropriate hearing upon due notice. On January 31, 1940, the Regional Director issued a notice of hearing, copies of which were duly served upon the Company and upon Inland Boatmen's Division, National Maritime Union, C. I. 0., herein called the N. M. U., and Tidewater Boatmen's Union, Local 933-1, International Longshoremen's Association, A. F. of L., herein called the I. L. A., labor organizations claiming to represent em- ployees directly affected by the investigation. Pursuant to notice, a hearing was held on February 13, 1940, at New York City, before Joseph L. Maguire, the Trial Examiner duly designated by the Board. The Board, the Company, the N. M. U., and the I. L. A. were represented by counsel or official representative, and participated in the hearing. Full opportunity to be heard, to examine and cross- examine witnesses, and to introduce evidence bearing on the issues was afforded to 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. The Trial Examiner reserved decision on two motions to dismiss the petition made at the hearing by•the N. M. U. For reasons stated in the succeeding por- tions of this Decision and Direction of Election we hereby deny these motions. Upon the entire record in the case, the Board makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY James McWilliams Blue Line, Inc., is a New Jersey corpora- tion with its principal place of business at New York City. It is engaged in the business of transportation of oil, coal, sand; crushed stone; clay, and scrap iron by tugs and barges. The Company trans- ports oil principally from New York City and New Jersey to Con- necticut, Rhode Island, and Massachusetts; it obtains oil from ocean- going tankers and transports it to these New England States. The coal which it carries originates in Pennsylvania, Virginia, West Vir- ginia, Kentucky, and also in Russia. It is transported by the Company from New Jersey, Connecticut, and ocean-going freighters to Rhode Island, Connecticut, and Massachusetts. The Company transports sand and clay from New Jersey and New York to Connecticut ; crushed stone, from Connecticut to Rhode Island and Massachusetts; scrap it n, from Connecticut to New York principally, as well as 472 DECISIONS OF NATIONAL LABOR RELATIONS BOARD from Massachusetts and Rhode Island to New York. These com- modities are transported on the waters of Long Island Sound, the New York State Barge Canal, the East River, the Hudson River, and connecting inland waterways. The Company owns 39 coal barges, 4 stake boats, 4 oil barges, and 6 tug boats. At the date of the hear- ing it was operating all these vessels, with the exception of two tug boats. The capacity of the coal barges varies from 850 to 1550 tons. The oil barges have a capacity of from 500,000 to 600,000 gallons. II. THE ORGANIZATIONS INVOLVED Inland Boatmen's Division, National Maritime Union, is a labor organization affiliated with the Congress of Industrial Organizations. Tidewater Boatmen's Union, Local 933-1, International Longshore- men's Association, is a labor organization affiliated with the American Federation of Labor. Both organizations admit to membership employees of the Com- pany in the unit hereinafter found to be appropriate. III. THE QUESTION CONCERNING REPRESENTATION On June 15, 1938, Inland Boatmen's Union of the Atlantic and Gulf, Local No. 2, to which the N. M. U. is successor , was certified by the Board as the exclusive bargaining representative of all the, company's unlicensed personnel employed on coal and oil barges.' On November 16 , 1938, it concluded an exclusive bargaining contract with the Company for its coal-barge and stake-boat employees. Thereafter , during the life of the agreement , the Company was ap- proached about half a dozen times by representatives of the I. L. A. The I. L. A. claimed to represent a majority of the men covered by the existing contract , and it was understood by the parties that the I. L. A. would seek to make effective its claim when that contract expired. • While the contract was in force the Company was faced on several occasions with the refusal of stevedores, hoistermen, and other members of A. F . L. unions to work with , or on, barges not manned by members of the I . L. A. On October 13 , 1939, the Com- pany gave notice of its desire to terminate the agreement , which, in accordance with its provisions , thereafter expired on November 16, 1939. The Company subsequently refused the request of the N. M. U. to negotiate a new agreement on the ground that it was going to petition for a settlement of the question of representation. About the same time it received a letter from the I . L. A. claiming the member- 'Matter of James McTVillianis Blue Line, Tne and Inland Boatmen's Union of the Atlantic and Gulf, 7 N. L. R B 923 JAMES MCVVILLIAMS BLUE LINE, INC. 473 ship of a majority of the Company's employees 2 and asking the Company to deal with it as the collective bargaining agency. At the hearing the I. L. A. asserted that it represented a majority of the employees involved. The N. M. U. relied on its prior certification for proof of majority. That certification is more than a year old. 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, occuring 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 com- merce and the free flow of commerce. V. THE APPROPRIATE UNIT At the time of the hearing the Company employed on its vessels approximately 110 employees of whom about 39 worked on its coal barges and about 4 worked on its stake boats.- There is only one employee on each stake boat and coal barge; he is known as a coal- barge or stake-boat captain. The I. L. A. and the N. M. U. stipulated that all the employees of the Company who are engaged as coal-barge and stake-boat captains constitute a unit appropriate for the purposes of collective bargain- ing. The Company took no position with respect to the appropriate unit. We see no reason to depart from the unit agreed upon by both labor organizations. We find that all the employees of the Company engaged as coal- barge and stake-boat captains 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. VI. THE DETERMINATION OF REPRESENTATIVES The question concerning representation which has arisen can best be resolved by an election by secret ballot. 2 Since the Company has closed-shop contracts with a sister local of the I. L. A. for its tug boats and oil barges, and since the jurisdiction of the local herein involved does not extend to these vessels , we understand this assertion to mean a majority among the coal-barge and stake-boat employees of the Company. 474 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The N. M. U., the only party which has expressed a preference for a particular pay-roll date for determining eligibility to vote, suggests January 31, 1940. No objections to this preference were made. The stake-boat men are employed continuously throughout the year. There is a dull period with respect to the coal barges in the winter but practically all of the coal-barge men are retained at a nominal wage by the Company during this time. Over a period of years the labor turn-over among the barge men is very slight. In view of these facts, and of the recency of the date urged by. the N. M. U., we shall select January 31, 1940, as the appropriate date. We shall direct that all employees within the appropriate unit who were on the pay roll on January 31, 1940, including 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 tem- porarily laid off, but excluding those who have since quit, or,-been dis- charged for cause, be eligible to participate in the election. On the basis of the above findings of fact and upon the entire record in the proceeding, the Board makes the following: CONCLUSIONS OF LAW 1. A question affecting commerce has arisen concerning the rep- resentation of employees of James McWilliams Blue Line, Inc., New York City, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the National Labor Relations Act. 2. The coal-barge and stake-boat captains of the Company con- stitute 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 Re- lations Act, and pursuant to Article III, Section 8, of National Labor Relations Board Rules and Regulations-Series 2, as amended, it is hereby DIRECTED that, as part of the investigation ordered by the Board to ascertain representatives for the purposes of collective bargaining with James McWilliams Blue Line, Inc., New York City, an election by secret ballot shall be conducted as soon as convenient and begin- ning-as promptly as is practicable after the date of this Direction of Election, under the direction and supervision of the Regional Di- rector 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 all the coal-barge and stake- JAMES McWILLIAMS BLUE LINE, INC. 475 boat captains of the Company who were employed on January 31, 1940, including employees who did not work during such period be- cause they were ill or on vacation, and employees who were then or have since been temporarily laid off, but excluding those who have since quit or been discharged for cause, to determine whether they desire to be represented by Inland Boatmen's Division, National Maritime Union, C. I. 0., or Tidewater Boatmen's Union, Local 933-1, International Longshoremen's Association, A. F. L., for the purposes of collective bargaining, or by neither.