The Riverside and Fort Lee Ferry Co.

In the Matter of THE RIVERSIDE AND FORT LEE FERRY COMPANY and UNITED MARINE DIVISION, LOCAL 333, I. L. A., A. F. OF L. Case No. B-1756.-Decided May 1, 1940 Water Transportation Industry-Investigation of Representatives : controversy concerning representation of employees : rival organizations ; refusal. of em- ployer to recognize petitioning union without proof of majority status; con- tention that no question concerning representation has arisen in view of exist- ing contract between intervening union and the employer : contract in effect over one year held no bar to investigation-Unit Appropriate for Collective Bargaining : all marine employees , including captains, engineers, oilers, fire- men, quartermasters , and deckhands ; contract not conclusive since not in con- formity with previous consent election ; difference in character of activities of marine and shore groups ; agreement of parties on marine unit as appropriate for purpose of consent election ; ( Smith , dissenting ) recognition of larger unit is result of natural development of process of collective bargaining ; functional coherence of enterprise would be disrupted by splitting employees into two separate units-Claimed Jurisdictional Dispute: no bar to investigation of rep- resentatives when intervening union making claim fails to show substantial membership in its proposed unit-Election Ordered: union having no sub- stantial interest in proceeding excluded from ballot. Mr. D. R. Dimick, for the Board. Mr. William H. Speer, Mr. George W. Grimm, Jr., and Mr. Joseph V. Sitter, of Newark, N. J., for the Company. McElroy and Lucey, by Mr. Timothy J. McElroy, of St. George, Staten Island, N. Y., for the I. L. A. Mr. Milton A. Schreiber and Miss Margaret Schreiber, of Edge- water, N. J., for the Association. Capt. John J. Scully, of New York City, for the M. M. P. Miss Grace MeEldowney, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE On May 8, 1939, United Marine Division, Local 333, I. L. A., A. F. of L., herein called the I. L. 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 representa- 23 N. L. R. B., No. 37. 493 494 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tion of employees of The Riverside and Fort Lee Ferry Company,' Newark, New Jersey, 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 December 18, 1939, 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 investigation and author- ized the Regional Director to conduct it and to provide for an appro- priate-bearing upon due notice. On March 1, 1940, the Regional Director issued a notice of hearing, copies of which were duly served upon the Company and the I. L. A., and upon the Riverside and Fort Lee Ferry Association, herein called the Association, and the National Organization Masters, Mates and Pilots of America, herein called the M. M. P., both labor organ- izations claiming to represent employees directly affected by the investigation. Pursuant to the notice, a hearing was held on March 11 and 12, 1940, at New York City, before Joseph L. Maguire, the Trial Examiner duly designated by the Board. The Board, the Company, the I. L. A., and the Association were represented by counsel, and the M. M. P. by its representative, all of whom partici- pated in the hearing. 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 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 prej- udicial errors were committed. The rulings are hereby affirmed. At the close of the hearing both the Company and the Association moved to dismiss the petition. The Trial Examiner reserved his ruling on these motions, and they are hereby denied. Pursuant to a request therefor by the Company, the I. L. A., and the Association, and upon notice to all the parties, a hearing was held before the Board in Washington, D. C., on April 2, 1940, for the purpose of oral argument. The Company, the I. L. A., and the Association appeared and participated in the argument. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT I. THE BUSINESS OF THE COMPANY The Riverside and Fort Lee Ferry Company is a New York cor- poration with its principal office at the Ferry House, Foot of West ' Designated as Riverside & Fort Lee Ferry Co. in the petition and notice of hearing. ` THE RIVERSIDE AND FORT LEE FERRY COMPANY 495 125th Street, New York City. It is a wholly owned subsidiary of New Jersey and Hudson River Railway and Ferry Company, and is engaged in the operation of a ferry for the transportation of passen- gers and vehicles between 125th Street, New York City, and Edge- water, New Jersey. Its six ferry boats average 292 trips daily. The Company employs approximately 145 persons, the pay roll being practically constant throughout the year. Its gross revenue in 1939 was approximately $1,000,000. We find that the Company is engaged in traffic, commerce, and transportation among the several States, and that the marine em- ployees of the Company are directly engaged in such traffic, commerce, and transportation. II. THE ORGANIZATIONS INVOLVED United Marine Division, Local 333, I. L. A., is a labor organization affiliated with the A. F. of L. It admits to membership masters, mates, pilots, marine engineers, deckhands, firemen, oilers, cooks, and all persons employed on petroleum carriers in New York Harbor and vicinity, and all waters connecting thereto. The Riverside and Fort Lee Ferry Association is a labor organi- zation admitting to membership all employees of The Riverside and Fort Lee Ferry Company at the Edgewater, New Jersey, and New York City terminals, and on its vessels, with the exception of super- visory employees. The National Organization Masters, Mates and Pilots of America, is a labor organization affiliated with the A. F. of L., admitting to membership licensed masters, mates, and pilots. III. THE QUESTION CONCERNING REPRESENTATION Early in March 1939, Captain William IT. Bradley, president of the I. L. A., which had been conducting an organizational drive at the 125th Street ferry, approached officials of the Company with a view to securing recognition for the I. L. A. as the bargaining repre- sentative of the Company's marine employees. He was told by Boylan, the vice president in charge of operations, that the Company was willing to negotiate an agreement with them if they could "get straightened out with the head of the other union [the Association]." On March 7, 1939, the I. L. A. and the Association agreed to hold an election among the captains, quartermasters, engineers, deckhands, oilers, and firemen. Although the M. M. P. was not a party to this agreement, it was included on the ballot. The election, which was held on March 13, and in which only the marine personnel voted,2 ' At the request of the I. L. A., approximately 12 employees who were listed on the pay roll as deckhands or firemen were excluded from voting because they were employed in the yard adjacent to the ferry slip at the time of the election. _496 __ DECISIONS OF NATIONAL LABOR- RELATIONS BOARD resulted in 54 votes for the Association, 26 for the I. L. A., 1 for the M. M. P., and 2 for "No union." On March 17, 1939,8 the Company and the Association entered into an exclusive bargaining contract for an initial period of 3 years, and with a provision for automatic renewal from year to year thereafter, unless either party should give notice of a desire to terminate it. The contract covered all employees paid on an hourly basis at the Edgewater and New York terminals and yards, and on the ferry boats of the Company, except supervisory employees. A week after the election, Bradley again asked Boylan to nego- tiate an agreement with the I. L. A. on the ground that the Association was not living up to the agreement it had made with the I. L. A. prior to the election.' Boylan said he did not know about the agree- ment between the unions, but that if the I. L. A. could prove it repre- sented the men, the Company would make an agreement with it. The I. L. A. then filed its petition with the Board on May 8, 1939.5 Later Bradley again asked the Company to bargain collectively with the I. L. A., but Boylan said he was waiting to see what action the Board would take. The Company and the Association both contend that by reason of the Association's contract, no question concerning representation has arisen. Under the circumstances set forth above, however, we do not regard the contract as an obstacle to the holding of an election at this time 6 We find that a question has arisen concerning the representation of employees of the Company. IV. THE APPROPRIATE UNIT The I. L. A. contends that all marine employees of the Company, including captains ,7 engineers, oilers, firemen, quartermasters," and e Although the contract was dated March 17, 1939, Captain John J. McCabe, former president of the Association, testified that it was signed on March 21. 4 Bradley testified that under the agreement both organizations were to take their dele- gates off the ferries and were not to have meetings or coach the men as to what to do ; and that if the winning union should make a contract for 1 year , "the other party was to hold onto their membership and not to have any trouble as far as the company was con- cerned. " He claimed that in spite of the agreement, the I . L. A. members were being told that if they did not join the Association within a certain length of time, the initiation fees and dues would be raised , and there would be a closed shop. 6 Although the petition was filed within 2 months of the consent election , we do not regard this as a bar to our proceeding in this matter in view of the subsequent lapse of time. ' We have previously held that a contract which has been in effect for at least a year does not constitute a bar to an investigation or certification of representatives . Matter of Metro-Goldwyn-Mayer Studios, and Motion Picture Producers Assn, et at. and Screen Writers' Guild, Inc, 7 N. L. R. B . 662; Matter of Columbia Broadcasting System, Inc and American Communications Association, 8 N. L. R. B. 508, 511. 7 Sometimes known as pilots or masters. 8 Sometimes known as wheelsmen. THE RIVERSIDE AND FORT LEE FERRY COMPANY 497 deckhands, constitute a unit appropriate for collective bargaining? These are the employees who participated in the consent election on March 13, 1939. The Association contends that all employees of the Company, ex- cept clerical and supervisory employees, constitute the appropriate unit. This group includes, in addition to the unit sought by the, I. L. A., vehicle collectors, turnstile collectors, porters, and mainte- nance men, and is the group for which the Association is now acting as bargaining representative under the contract of March 17, 1939. The Company agrees with the Association as to the appropriate unit to The M. M. P. desires a unit of all licensed deck personnel working under their licenses," and objects to the inclusion of this group, over which it claims exclusive jurisdiction in the A. F. of L., in the unit sought by the I. L. A. It has been the Board's practice to make no determination of the merits of a jurisdictional conflict between two affiliates of the same parent labor organization. 12 In this case, however, the M. M. P. has made no credible showing of substantial membership in the unit which it urges to be appropriate,18 and has admitted that its last contact with the Company as a representative of its employees was in 1924. Its mere claim to jurisdiction over employees in the unit proposed by the I. L. A. does not amount to a jurisdictional conflict of a sort which should bar the Board from determining the merits of this case. Since the M. M. P. does not represent a substantial number of employees in its proposed unit, we find it unnecessary to decide whether that unit is appropriate for the purposes of collective bargaining.l" o The description of the unit claimed by the I. L. A. to be appropriate was amended at the hearing. In the petition the unit was described as "those actually engaged in work on employer's ferry boats, I. e., Captains, Engineers, Oilers, Firemen, Quartermasters, and Deck-hands." to The Company described the appropriate unit as "all employees paid on an hourly basis," excluding clerical and supervisory employees. "According to the Company's general manager in charge of trafc, Arthur T. Warner, the Company does not require quartermasters to be licensed, but some of them have licenses. 12 Matter of Aluminum Company of America and Aluminum Workers Union No. 19104, 1 N. L. R. B. 530; Matter of Axton-Fisher Tobacco Company and International Association of Machinists, Local No. 681, and Tobacco Workers' International Union, Local No. 16, 1 N. L. R. B. 604. 13 Captain John J. Scully, secretary of the M M P., testified that it claimed as members two-thirds of the 20 or 22 captains and quartermasters employed by the Company Only four or five of these men were active members up to the end of 1939, but the M M P.'s claim was based on the fact that others in the group had at one time joined the organization and had never resigned, been suspended, or expelled. At the consent election of March 13, 1939, only one vote was cast for the M. M. P, and Scully admitted at the hearing that its membership on the Company's boats had not increased since that time. 14 Cf Matter of Allis-Chalmers Manufacturing Company and International Union, United Automobile Workers of America, Local 248, 4 N L. It. B. 159, 168; Matter of Southwestern Engineering Co and International Brotherhood of Boilermakers, Iron Ship Builders, Weld- ers, and Helpers of America, Local 92, A. F. L., 14 N L. R B 104, 107; Matter of Federal Shipbuilding and Dry Dock Company and Industrial Union of Marine & Shipbuilding Workers of America, Local No. 16, 19 N. L. It. B. 313. 498 DECISIONS OF NATIONAL LABOR RELATIONS BOARD There is no evidence of collective bargaining between the Company and representatives of its employees except the contract with the Association. Under the circumstances of the case, however, we do not consider the contract as being conclusive of the desires of the employees in regard to the unit. The contract clearly does not con- form to the bargaining unit' contemplated by the consent election which preceded it, and which was held as a result of negotiations between the I. L. A. and the Association. While the I. L. A. has never bargained with the Company, it has contracts with several other ferry companies, covering the unit sought in this proceeding.15 The basis of the distinction urged by the I. L. A. is the relation- ship of the employees to the actual operation of the boats. The so-called marine personnel are the members of the crew, the captain and other employees regularly working on the boats under his direct control. Their hours of work and other conditions of employment differ from those of the shore personnel. The latter are engaged in collecting fares, directing traffic, cleaning, repair work, and other activities incidental but not essential to the operation of the ferries. At times the porters and maintenance men work on the boats, but they are not carried on the muster list and do not participate in. fire or boat drills. Although some of the marine personnel of the Company are em- ployed at maintenance work on shore during the slack season in order to eliminate lay-offs, and the shore personnel at times work on the boats while they are in operation, we believe that the differ- ence in the character of the activities of the two groups makes a separate unit for the marine personnel appropriate. The parties themselves so agreed for the consent election. We find that all marine employees of the Company, including captains, engineers, oilers, firemen, quartermasters, and deckhands,16 constitute a unit appropriate for the purposes of collective bargaining, and that said 15 These companies include Electric Ferry Company of New York, Yonkers Ferry Co., and Nyack Ferry Co Maintenance employees of these companies are represented by a different local union. Although the contract of the I. L. A with the Electric Ferry Company in- cludes ticket agents and bridgemen, testimony at the hearing indicated that this was done because the men originally joined the organization as deckhands and were later promoted. A closed-shop provision of this contract is not enforced so far as the ticket agents and bridgemen are concerned . These employees are not admitted to membership in the I. L. A. 19 At the hearing the parties were unable to agree on the proper classification of seven employees , Cgar, Cuoco, Bogushevich , Nenmeyer, Weber, Wallace, and Walters , who were listed on the pay roll of February 29, 1940, as oilers, firemen , or deckhands , but who actu- ally spent most, if not all, of their time on shore doing maintenance work or handling traffic. We believe that inclusion in the appropriate unit should be governed by the func- tions performed by the employees rather than by their pay-roll listing. We find that the seven employees in question should be excluded from the appropriate unit. The I. L. A. and the Association agreed that P. McGowan , who was listed as a turnstile collector, but a substantial pact of whose duties were on board the boats , should be considered a marine employee, and we so find. 7 THE RIVERSIDE AND FORT LEE FERRY COMPANY 499' unit will insure to employees of the Company the full benefit of their rights to self-organization and to collective bargaining and otherwise effectuate the policies of the Act. Since the Association is set up as an industrial union, our finding in this respect is not to prevent the possibility of the expansion of the unit if a majority of the employees involved select the Association 17 V. THE DETERMINATION OF REPRESENTATIVES The I. L. A. claimed 65 members, of whom 60 were in good standing, among 91 employees in the unit which we have found to be appropri- ate. It was unwilling, however, to submit its membership cards in evidence. The Association claimed 110 members in good standing among 145 employees in its proposed unit, without indicating how many were in the appropriate unit. We find that the question con- cerning representation can best be resolved by means of an election by secret ballot. Since the M. M. P. has not shown a substantial interest in this proceeding, we shall exclude it from the ballot.18 The I. L. A. requests that the pay roll of February 29, 1939, be used for determining the eligibility of the employees to participate in the election. The Association requests that eligibility be deter- mined by- the pay roll next preceding the election. The company has no preference. We see no reason in this case to depart from our usual practice, and shall direct that the employees eligible to vote shall be those within the appropriate unit during the pay-roll period immediately preceding the Direction of Election herein. Upon the basis of the foregoing findings of fact and upon the entire record in the proceedings, the Board makes the following : CONCLUSIONS OF LAW 1. A question affecting commerce has arisen concerning the repre- sentation of employees of The Riverside and Fort Lee Ferry Com- pany, Newark, New Jersey, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the National Labor Relations Act. 2. All marine employees of the Company, including captains, engi- neers, oilers, firemen, quartermasters, and deckhands, but excluding clerical and supervisory employees, constitute a unit appropriate for the purposes of collective bargaining, within the meaning of Section 9 (b) of the National Labor Relations Act. " Matter of Great Lakes Engineering Works and Detroit Metal 'Trades Council, 3 N. L. R. B. 825, 830. 18 Matter of Southern California Gas Company and Utility Workers Organizing Commit- tee, Local No. 132, 10 N. L. R B. 1123, 1143. 500 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 National Labor Relations Board Rules and Regulations-Series 2, 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 The Riverside and Fort Lee Ferry Company, Newark, New Jersey, an election by secret ballot shall be conducted as early as possible but not later than thirty (30) days from the date of this Direction of Election, 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 all marine em- ployees of the Company, including captains, engineers, oilers, fire- men, quartermasters, and deckhands, who were employed during the pay-roll period immediately preceding the date of this Direction of Election, including employees who did not work during such pay- roll period because they were ill or on vacation and employees who were then or shall have since been temporarily laid off, but excluding clerical and supervisory employees, and any employees who shall have since quit or been discharged for cause, to determine whether they desire to be represented by United Marine Division, Local 233, I. L. A., or by the Riverside and Fort Lee Ferry Association, for the purposes of collective bargaining, or by neither. MR. EDWIN S. SMITH, dissenting : I cannot- agree with the conclusion of the majority that a unit composed solely of marine employees of the Company is appropriate for the purpose of collective bargaining. The views expressed in my dissenting opinions in the Allis-Chalnners 19 and subsequent cases are equally applicable here. Furthermore, the present factual situa- tion weighs most heavily against the contention of the I. L. A. The contract between the Association and the Company was exe- cuted after a majority of the marine employees had freely chosen the Association by secret ballot as their representative. There is no indication that the marine employees were unaware that the Associa- tion was organized as an industrial union or did not know that at the time of the balloting the Association had members in both the marine and shore groups. It is not claimed that the Association did 19 Matter of Allis-Chalmers Manufacturing Company and International Union, United Automobile Workers of America, Local 2118, 4 N. L. R. B 159. THE RIVERSIDE AND FORT LEE FERRY COMPANY 501 not represent a majority of the employees in the larger unit at the time it negotiated its contract. Under the contract the Association has successfully dealt with the Company as representative of both marine and shore personnel. The I. L. A., on the other hand, has engaged in no collective bargaining with the Company. These cir- cumstances point to a natural development in the process of collec- tive bargaining, resulting in the recognition of the larger unit as being more appropriate than the marine unit. ._ To split off the marine employees from the.genera.l body, of hourly paid employees can serve only to weaken the collective bargaining effectiveness of both group S.20 There being but minor differences between the skill, hours of work, wages, and-other conditions of em- ployment of the two groups,. these factors in themselves cannot be said to justify recognition of the unit urged by the I. L. A.21 Indeed, it would be a more realistic view that the functional coherence of the Company's enterprise engenders a community of interest among all the employees which can only be disrupted by splitting them into two separate bargaining units.22 SD See my dissenting opinions in Matter of Briggs Manufacturing Company and Briggs Indiana Corporation and International Union, United Automobile Workers of America, affiliated with the C. I. 0., etc, 13 N. L. R. B. 1326, 1334, and Matter of Federal Shupbuild- ing and Dry Dock Company and Industrial Union of Marine d Shipbuilding Workers of America, Local No. 16, 20 N. L. R. B. 270. m Many of the marine employees , including even the captains , are engaged in mainte- nance work during the slack season , while the shore personnel often work on board the boats. 22 See my dissenting opinions in Matter of Colorado Builders' Supply Company (Denver and Pueblo, Colo ) and International Association of Bridge, Structural and Ornamental Iron Workers, Shopmen's Local Union No. 507 (A. F. L.), 18 N. L R. B. 29, and Matter of Allied Laboratories, Inc. (Pitman-Moore Division ) and Indianapolis Specialty Union #465, affiliated with the International Printing Pressmen and Assistants' Union Affiliated withA.F L, 23 N. L. R. B. 184. 283054-41-vol. 23-- 33