Saginaw Dock & Terminal Co.

In the Matter Of SAGINAW Doc$ & TERMINAL COMPANY and NATIONAL MARITIME UNION (C. I. 0.) Case No. R-1783.-Decided May 7, 19 0 Water Transportation Industry-Investigation of Representatives: contro- versy concerning representation of employees: doubt expressed by employer as to majority designation-Employee Status: seasonal employment: employer= employee relationship continues after navigation season where company cus- tomarily reemploys large percentage of unlicensed seamen; relationship not severed by termination of formal contracts of employmen t-Jurisd let ton: sus- tained : question concerning representation affects commerce where at time of hearing company contemplates renewal of operations of ships laid up for winter but engaged in interstate commerce during navigation season which normally extends from April 15 to December 1--Unit Appropriate for Collectwe Bargamnavg: all members of the crew occupying unlicensed positions on the various ships of the company, excluding all others, stipulation as to-Repre- sentattves: eligibility to participate in choice : pay roll as of date when com- pany's ships last in operation during 1939 navigation season used inasmuch as full fleet then in operation with normal personnel and in view of customary reemployment of unlicensed seamen ; current pay roll rejected where com- pany's full fleet not presently in operation and unlicensed positions, therefore, likely to be filled temporarily by licensed seamen-Election Ordered Mr. Harry N. Casselman and Mr. Andrew J. Toth, for the Board- 111r. H. S. Taylor, of Cleveland, Ohio, for the Company. Mr. Ralph D. Rogers, of Cleveland, Ohio, for the N. M. U. Mr. Robert F. Koretz, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE On November 22, 1939, National Maritime Union,' herein called the N. M. U., filed with the Regional Director for the Seventh Region, (Detroit, Michigan) a petition alleging that a question affecting commerce had arisen concerning the representation of employees of Saginaw Dock & Terminal Company, Saginaw,-Michigan, herein called the Company, and requesting an investigation and certification of representatives pursuant to Section 9 (c) of the National Labor 'It is apparent from the record that the correct name of the petitioning union is Na- tional Mautime Union of America. 23 N. L R. B, No. 52 630 SAGINAW DOCK & TERMINAL COMPANY 631 Relations Act, 49 Stat . 449, herein called the Act . On March 18, 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, 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 25, 1940, the Regional Director issued a notice of hear- ing, copies. of which were duly served upon the Company and upon the N. M. U. Pursuant to the notice, a hearing was held on April 1, 1940, at Saginaw, Michigan, before John T. Lindsay, the Trial Examiner duly designated by the Board. The Board and the Com- pany were represented by counsel and the N. M. U. by a duly author- ized representative ; all parties 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 all parties. At the beginning of the hearing, the Company filed a motion with the Trial Examiner to dismiss the petition for investigation, and certification of representatives and the proceedings held thereon on the grounds (1) that no questions affecting commerce had arisen concerning the representation of employees ; (2) tliat the Company's steamers, Saginaw, Carrollton, and ' Frank J. Peterson were not then and had not been since December 3, 1939, engaged in interstate com- merce; (3) that the Company did not then employ and had not, since said steamers were taken out of commerce , employed any unlicensed seamen; and (4) that the proceedings in this matter were without authority and contrary to the provisions of the Act. The Trial Examiner reserved ruling on this motion . The Board hereby denies the motion for reasons hereinafter appearing. During the course of the hearing , the Trial Examiner made several rulings on objections to the admission of evidence . The Board has reviewed the rulings of the Trial Examiner and finds that no prejudi- cial errors were committed. The rulings are hereby affirmed. On April 15, 1940, pursuant to leave granted by the Board, the Company filed a brief in support of its contentions which has been considered by the Board. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT I. THE BUSINESS OF THE COMPANY Saginaw Dock & Terminal Company, a Delaware corporation with its principal office in Wilmington, Delaware , and its operating office in Saginaw, Michigan , is engaged in the business of transporting gen- eral bulk freight on the Great Lakes. The Company owns and oper- 632 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ates a fleet of three steamships, the Frank J. Peterson, the Saginaw, and the Carrollton, and maintains docks at Saginaw, Michigan, for the unloading of cargo from said steamships. The Great Lakes are normally open to navigation from on or about April 15 to on or about December 1. During this period the Com- pany operates its fleet on the Great Lakes, and at the close thereof it lays up its fleet at Saginaw, Michigan, and other ports. During the 1939 navigation season, which was fairly representative of the usual and ordinary course of the business of the Company, the Company commenced the operation of its steamships on or about April 15, terminated its operations on or about December 1, employed on its three steamships approximately 84 men of whom 21 are licensed officers and 63 are unlicensed seamen, and transported on its steam- ships a total of 230,322 gross tons, consisting principally of pig iron, steel, and scrap iron, all of which was transported from ports on the Great Lakes to ports in other States bordering the Great Lakes. We find that the Company is engaged in trade, traffic, transporta- tion, and commerce among the several States, and that all members of the crew occupying unlicensed positions on the ships of the Com- pany are directly engaged in such trade, traffic, transportation, and commerce. Inasmuch as the Company contemplated the resumption of operations on April 15, 1940, the question which, as stated in Sec- tion III, infra, has arisen concerning representation is one "affecting commerce" within the meaning of the Act, irrespective of whether the Company was operating its steamships at the time of the hearing herein.2 II. THE ORGANIZATION INVOLVED National Maritime Union is a labor organization affiliated with the Congress of Industrial Organizations. It admits to membership unlicensed seamen employed by the Company. III. THE QUESTION CONCERNING REPRESENTATION' By letter dated October 16, 1939, Stone, a representative of the N. M. U., wrote to the Company stating that he had been requested by members of the N. M. U. employed on the Company's three ships "to write you for an immediate appointment to discuss wages, work- ing conditions and living conditions as affecting our members who are employed by you on the above-named boats on the Great Lakes." On 2 Section 2 (7) of the Act provides that the term "affecting commerce" means "in com- merce, or burdening or obstructing commerce or the free flow of commerce, or having led or tending to lead to a labor dispute burdening or obstructing commerce or the free flow of commerce." Cf Matter of Merrimac Manufacturing Company and American Federation of Labor, et al, 9 N L R. B. 173. As stated in Section V, Infra, the Company is now operating a part of its fleet. SAGINAW DOCK & TERMINAL COMPANY 633 November 3, 1939, a meeting was held at which Rogers and Stone, rep- resentatives of the N. M. U., presented to Alaniva, the manager of the Company, a proposed contract providing for recognition of the N. M. U. "as the sole collective bargaining agent for the unlicensed personnel employed on vessels owned, operated, leased or chartered by the Company." Rogers and Stone asked Alaniva whether he had authority to negotiate a contract, stated that the N. M. U. had been designated by a majority of the unlicensed seamen on the Company's ships, and outlined methods by which any doubt on the part of the Company as to majority designation could be resolved. Alaniva re- plied that he had no authority to negotiate a contract at that time and that he had no way of knowing whether or not the N. M. U. had been designated by a majority of unlicensed seamen employed by the Company. We find that the N. M. U. sought to bargain with the Com- pany as the exclusive representative of all unlicensed seamen employed by the Company. Another meeting was held on November 21, 1939, at which Alaniva sought to question the representatives of the N. M. U. concerning cer- tain clauses of the proposed contract. Alaniva brought a public reporter to the meeting for the purpose of recording questions and answers. The representatives of the N. M. U. would not accede to this procedure and it was agreed that Alaniva would submit in writing a questionnaire which the N. M. U. would answer by mail. On the next day, however, the N. M. U. filed its petition for investi- gation and certification of representatives and the Company was advised of the filing. The Company contends that no question concerning the repre- sentation of employees of the Company has arisen because the Com- pany did not dispute the N. M. U.'s claim of majority designation. The existence of a question concerning representation does not de- pend upon the denial by an employer of majority designation. An admission by an employer that he does not know whether a particular labor organization has been designated by a majority of its employees as their exclusive representative for the purposes of collective bar- gaining is evidence that such a question exists.a The Company also claims that no question concerning representa- tion has arisen for the reason that at the time of the hearing the Company employed no unlicensed seamen and no arrangements had been made for rehiring any unlicensed seamen. However, it is the practice of the Company to seek to reemploy men who worked during 8 Matter of The Raleigh Hotel Company and Hotel and Restaurant Employees Alliance, Local No 80, 7 N. L. R B . 353; Matter of New York and Cuba Mast Steamship Company and United Licensed Officers of the United States of America, 2 N. L. R. B. 595 : Matter of Richards-Wilcos, Manufacturing Company and Federal Labor Union No. 18589, 2 N. L. R B. 97. 634 DECISIONS OF NATIONAL LABOR RELATIONS BOARD previous navigation seasons on the bases of seniority and ability, and at least 50 per cent of the unlicensed seamen employed during a previous navigation season by the Company return to work the following season. We find that an employer-employee relationship exists between the unlicensed seamen employed during the 1939 navi- gation season as a group and the Company,4 and we further find that this relationship is not severed by reason of the fact that the formal contracts of employment between the Company and its em- ployees, known as shipping articles, had terminated prior to the hearing.5 ' In its petition and at the hearing, the N. M. U. claimed that 60 of the 63 unlicensed seamen employed by the Company had desig- nated it as their representative for the purposes of collective bargain- ing. There was introduced in evidence at the hearing a statement by the Board's Regional Director which reveals that the N. M. U. had submitted to him, in substantiation of the claim of the N. M. U., 31 membership cards signed by unlicensed personnel whose names ap- pear on the Company's November 1939 pay roll and two petitions signed by 37 members of the crews of the Frank J. Peterson and the Carrollton whose names appear on the Company's November 1939 pay roll. 5a We find that a question has arisen concerning the representation of 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 The N. M. U. and the Company stipulated, and we fin4l, that all members of the crew occupying unlicensed positions on the various ships of the Company, excluding all others, constitute a unit appro- priate 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 effec- tuate the policies of the Act. 4Cf Matter of Alaska Packers Association and Alaska Cannery Workers Union Local No 5, Committee for Industrial Organization , 7 N L R B. 141, Matter of American Fruit Growers, Inc. et al . and Fruit and Vegetable Workers Sub-Local of #191, UCAPAWA, C. I. 0, 10 N L R . B. 316; Matter of George G Averill et al and Fresh Fruit if Vege- table Workers Union, Local 78, C 1 0., 13 N L R B 411 E National Labor Relations Board v. Waterman Steamship Corporation, 60 Sup. Ct 493, rev'g 103 F. ( 2d) 157 (C C. A. 5 ) and enf'g Matter of Waterman Steamship Corporation and National Maritime Union of America, Engine Division, Mobile Branch, Mobile, Ala- bama, 7 N L R B 237, Matter of West Kentucky Coal Company and Inland Boatmen's Union, C I. 0, 17 N . L R B 724 , and cases therein cited in footnote 2 '-Fourteen of the 37 names were of persons who had signed membership cards in addition. SAGINAW DOCK & TERMINAL COMPANY 635 V. THE DETERMINATION OF REPRESENTATIVES We find that the question concerning representation which has arisen can best be resolved by the holding of an election by secret ballot. We shall direct that this election begin as promptly as is practi- cable after this Direction of Election under the direction and super- vision of the Regional Director for the Seventh Region who shall determine in his 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 N. M. U. contends that the persons eligible to vote in the election should be those employees in the appropriate unit who are listed on the shipping articles of each steamship while last in opera- tion during the 1939 navigation season. In support of its position, the N. M. U. asserts that it is the practice of the Company to rehire unlicensed seamen employed by the Company during previous years and that if the Company operates only a part of its fleet, licensed officers would be placed in unlicensed positions. The Company con- tends that the persons eligible to vote in an election should be the employees on the ships of the Company at the time of the election, and in support of its position , asserts that there is a substantial change in employee personnel on its ships each season. We have been informed by the Regional Director that at the present time the Company is operating only a part of its fleet and that it has no immediate expectation of operating its full fleet of steamships, although, as stated in Section I, supra, it may reasonably be expected that its full fleet will be in operation subsequently during the 1940 navigation season. Accordingly, it is clear that the Com- pany does not presently employ a normal complement of unlicensed seamen. Moreover, Alaniva, the Company's manager, testified that "... a man may have a license , be a licensed man, yet be holding an unlicensed position." It is, therefore, probable and we may infer, as contended by the N. M. U., that when the Company operates only a part of its fleet, licensed officers who would normally be employed in licensed positions are placed in unlicensed positions. Under these circumstances we believe that the desires of the usual complement of unlicensed seamen employed by the Company will not be accu- rately ascertained if eligibility to participate in the election is deter- mined upon the basis of a current pay roll. Finally, since the Com- pany seeks to reemploy unlicensed seamen who were employed during the previous navigation season, and normally reemploys at least 50 per cent of the unlicensed seamen who have been employed 636 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in previous years," and in view 'of the fact that at the close of the 1939 navigation season the Company operated its full fleet of three steamships with a usual complement of unlicensed seamen, we are of the opinion that eligibility to vote in the election as of that period will provide a more accurate basis upon which to ascertain the desires of the usual employee personnel within the appropriate unit than a current pay roll. Accordingly, we shall direct that the employees of the Company eligible to vote in the election shall be all members of the crew occupying unlicensed positions on the various ships of the Company, excluding all others, who are listed on the shipping articles of each of the Company's steamships while last in operation during the 1939 navigation season, including employees who did not work during such pay-roll period because they were ill or on vaca- tion or temporarily laid off, but excluding those who have since quit or been discharged for cause. 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 rep- resentation of employees of Saginaw Dock & Terminal Company, Saginaw, Michigan, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the National Labor Relations Act. 2. All members of the crew occupying unlicensed positions on the various ships of the Company, excluding all others, 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 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 Saginaw Dock & Terminal Company, Saginaw, Michigan, an election by secret ballot shall be conducted as soon as convenient and beginning as promptly as is practicable after the date of this Direc- tion of Election in conformity with the rules set forth hereinabove 11 Of the 63 unlicensed seamen last employed on the Company 's ships In 1939, 12 were employed by the Company in 1936, 33 in 1937, and 24 in 1938. In 1936 and 1938 the Company operated only two steamships. SAGINAW DOCK & TERMINAL COMPANY 637 for the conduct of such election, under the direction and supervision of the Regional Director for the Seventh 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 all members of the crew occupying unlicensed positions on the various ships of the Company, excluding all others, who are listed on the shipping articles of each of the Company's steamships while last in operation during the 1939 navigation season, including employees who did not work during such pay-roll period because they were ill or on vacation or temporarily laid off, but excluding those who have since quit or been discharged for cause, to determine whether or not they desire to be represented by National Maritime Union, affiliated with the Congress of Industrial Organizations, for the purposes of collective bargaining.