Wyandotte Transportation Co.

In the Matter Of WYANDOTTE TRANSPORTATION COMPANY and NATIONAL MARITIME UNION (C. I. 0.) Case No. R-1785.-Decided July 193, 1940 Jurisdiction : water transportation industry. Question concerning representation was one affecting commerce at time of bearing since, despite seasonal cessation of operations, it related to em- ployees in connection with operations which, while prospective, nevertheless involved interstate commerce Investigation and Certification of Representatives : existence of question: de- nial of employment relationship ; refusal to accord recognition to union . election necessary Contention of employer that it did not have in its employ at the time of the hearing the persons, viz the unlicensed seamen, concerning whom the petition alleged a question concerning representation had arisen held with- out foundation where work of said employees merely suspended pending commencement of ensuing navigation season Petition of union, which did not participate in hearing, to be accorded place on ballot granted where rival union withdrew charge of employer domination of petitioner filed following order to show cause why petition should not be granted. Unit Appropriate for Collective Bargaining : unlicensed seamen employed by the Company on its lake steamers. Mr. Arthur Charles O'Connor, for the Board. Lewis & 1Faticins, by Mr. Leonard A. Keller, `of Detroit, Mich., for the Company. Mr. Ralph D. Rogers, of Cleveland, Ohio, for the N. M. U. Mr. Frank L. Amprin and Mr. Frank P. Darin, of Wyandotte, Mich., for the Seamen's Union. 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 a petition with the Regional Director for the Seventh Region (Detroit, Michigan), alleging that a question affecting com- merce had arisen concerning the representation of employees of Wyan- dotte Transportation Company, Wyandotte, Michigan, herein called 25 N. L. R. B., No. 45. 336 WYANDOTTE TRANSPORTATION COMPANY 337 the Company, and requesting an investigation and certification of representatives pursuant to Section 9 (c) of the National Labor Rela- tions Act, 49 Stat. 449, herein called the Act. On March 5, 1940, the National Labor Relations Board, herein called the Board, acting pur- suant 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 con- duct it and to provide for an appropriate hearing upon due notice. On March 26, 1940, the Regional Director issued a notice of hearing, copies of which, together with copies of the petition, were duly served upon the Company and upon the N. M. U. Pursuant to the notice, a hearing was held on April 3, 1940, at Detroit, Michigan, before John T. Lindsay, the Trial Examiner duly designated by the Board. The Board, the Company, and the N. M. U. appeared and were represented by counsel or by a representative. All parties participated in the hear- ing and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues. At the hearing the Company moved to dismiss the petition for want of jurisdiction of the subject matter, for the reasons, among others, that the Company had not engaged in commerce or in any activity affecting commerce within the meaning of the Act since on or about December 14, 1939, and had not had in its employ since that date the employees, viz., the unlicensed seamen, concerning whom the petition alleged a question concerning representation had arisen. Rul- ing on this motion was reserved for the Board. 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 prejudicial errors were committed. The rulings are hereby affirmed. For reasons appearing hereinafter, the motion to dismiss the petition is denied. Subsequent to the hearing Down River Seamen's Union, herein called the Seamen's Union, lodged with the Board a petition, sup- ported by certain affidavits and other annexed exhibits, together with proof of service of a copy of said petition upon the Company and upon the N. M. U., in which it represented certain matters, on the basis of which it prayed that it be accorded a place on the ballot in the event that the Board directed an election in the instant case among the unlicensed seamen, or that it be given an opportunity to be heard on the matters presented in the petition. The Board hereby orders that the petition, the affidavits and exhibits in support thereof, and proof of service in connection therewith, be filed instanter as part of -the record herein. On April 25, 1940, the Board duly served notice upon the parties that unless sufficient cause to the contrary as shown, on May 1, 1940, or as soon thereafter as would be convenient, it 338 DECISIONS OF NATIONAL LABOR RELATIONS BOARD would accord the Seamen's Union a place on the ballot in the event that the Board directed an election herein. By letter dated April 29,. 1940, the N. M. U. filed its objections thereto, in which it represented that it had evidence which "leads us to believe that the formation and administration of the said [Seamen's] Union has been aided by the financial and other support of the Company in violation of Section 8 (2) of the Act," requested that the Board hold a hearing to determine whether the Seamen's Union was a "bona fide labor organization" and whether it had any members among the Com- pany's employees, "so as to entitle it to a place on the ballot," and further requested, in the event the Board denied "this motion" for a hearing, that the Board hold in abeyance any order according the Seamen's Union a place on the ballot in order that the Union might determine whether or not to file charges against the Company under Section 10 (b) of the Act. On April 30, 1940, the Union filed a charge with the Regional Director alleging that the Company had engaged in and was engaging in unfair labor practices affecting com- merce, within the meaning of Section 8 (1) and (2) of the Act, in that the Company had contributed financial and other support and aid to the formation of the Seamen's Union. Thereafter, the N. M. U. withdrew the charge with the consent of the Regional Director. In view of the withdrawal of the charge and the fact that no showing has been made warranting the conduct of a hearing upon the' matters set forth in said objections of the N. M. U., we hereby overrule said objections and deny the said request of the N. M. U. for a hearing. No sufficient cause appearing why the proposed action should not be taken, we shall direct that the Seamen's Union be accorded a place on the ballot in the election directed herein. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT I. THE BUSINESS OF THE COMPANY Wyandotte Transportation Company,'' a Michigan corporation with its principal office in Detroit, Michigan, is engaged as a common carrier in the transportation for hire by vessel of general bulk freight on the Great Lakes. 'It maintains docks at Wyandotte, Michigan, for the unloading of cargoes of coal, stone, and coke carried by its ships. Each year during the navigation season, generally from on or about April 1 to on or about December 1, the Company regularly operates on the Great Lakes four steamships, which it owns and which have a combined carrying capacity of 9,406 tons. At the close of 1 The Company is a wholly owned subsidiary of the Michigan Alkali Company , a Michigan corporation WYANDOTi'E TRANSPORTATION COMPANY 339 the season it lays up these steamships , at Wyandotte. The Company's operations in 1939, from on or , about April 1 to on or about December 13, were representative of its operations each year . It then trans- ported for hire on its steamships from the State of Ohio to Wyandotte, Michigan, 1,647,379 tons of coal , which constituted approximately 70 per cent of the total tonnage transported in that period . The Com- pany employed on its four steamships in 1939 approximately 34 licensed officers and 104 unlicensed seamen. As stated above, the Company at the hearing moved to dismiss the petition upon jurisdictional grounds . One of the reasons urged was that the Company had not engaged in commerce or in any activity affecting commerce, within the meaning of the Act , since on or about December 14, 1939. At the time the petition was. filed the Company was engaged in, and employed persons , including unlicensed seamen, to carry on its interstate operations on the Great Lakes . It is ,plain, therefore , that at that time the Company and these employees were engaged in business, and activities constituting and affecting com- merce, within the meaning of the Act, and, accordingly, the question concerning representation which, as stated in Section III, infra, had then arisen was one affecting such commerce , within the meaning of Section 9 (c). At the time of the hearing the Company contemplated that its interstate operations would be resumed in a week with the sailing of one vessel , and that by May 1, 1940 , its interstate operations would be fully carried on , with the sailing of its remain ing , vessels.2 We find below in Section III, that the Company follows the business practice of recalling to work in each navigation season the unlicensed seamen employed during the previous season and that at the time of the hearing approximately 90 persons, of whom at least 81 had been in the Company 's employ as unlicensed seamen in the 1939 navigation season, occupied the status of employees awaiting recall to work on board the ships to commence sailing on or before May 1, 1940. Under these circumstances, we find that the above -mentioned question which has arisen concerning representation was at the time of the hearing likewise one affecting commerce , within the meaning of Section 9 (c) of the Act, for it related to employees in connection with opera- tions of the Company which , while prospective, nevertheless involved interstate commerce and hence was a question tending to lead to a labor dispute burdening or obstructing such commerce or the free flow of commerce.3 2 As stated in Section V, infra, the Company has since begun to operate its steamships 8 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 Saginaw, Dock & Terminal Company and National Maritime Union (C I 0 ), 23 N L R B 630; Matter of Merrimac Manufacturing Company and American Federation of Labor, et al, 9 N. L. R. B. 173. 340 DECISIONS OF NATIONAL LABOR RELATIONS BOARD We find that prior to, at the time of , and since the filing of the petition in the instant case, the Company engaged in trade, traffic, transportation, and commerce among the several States, and that all the unlicensed seamen employed by the Company on its lake steamers have been and are directly engaged in such trade, traffic, transporta- tion, and commerce. H. THE ORGANIZATIONS INVOLVED National Maritime Union is a labor organization affiliated with Congress of Industrial Organizations, a labor organization. Down River Seamen's Union is a labor organization unaffiliated with any national or other labor organization. Both of these labor organisa- tions admit to membership unlicensed seamen employed by the ,Company. III. THE QUESTION CONCERNING REPRESENTATION On September 25, 1939, and at times thereafter , the N.-M. U. in- formed the Company that it claimed to be designated by a majority of the Company 's unlicensed seamen as their .representative for pur- poses of collective bargaining in regard to wages, hours of service, and other working conditions, and, therefore, was entitled to recognition by the Company of itself as the exclusive representative of all its unlicensed seamen for such purposes. The Company refused to grant recognition or otherwise bargain collectively with the N. M. U. as such exclusive bargaining agency until the N. Al. U. was certified as such representative by the Board. The Company contended at the hearing that no question concerning representation affecting commerce then existed because neither at that time nor since on or about December 14, 1939, was it or had it engaged in interstate operations, and because it did not have in its employ since on or about December 14, 1939, persons such as those described is its employees in the petition. In so far as its claim of not engaging in interstate operations is concerned , what has been said above in Section I on that subject is a sufficient answer and need not be reiterated. In respect of the contention that the Company did not have. in its employ since on or about December 14, 1939, the persons, viz., the unlicensed seamen, concerning whom the petition alleged a question concerning representation had arisen, the record shows, and we find, that the Company follows the business practice of, recalling for work on its ships at the beginning of each navigation season the various unlicensed seamen employed by it in the previous season. In accordance with this practice, the Company in March 1940 recalled to work approximately 81 unlicensed seamen employed by it in November 1939, and they, together with nine additional unlicensed seamen then WYANDOTTE TRANSPORTATION COMPANY 341 hired, were directed to prepare, or "fit out," the Company's steam- ships for navigation in 1940. Hence, it is plain that during this period of preparation- the Company had in its employ the employees con- cerning whom the petition alleged a question concerning representation had arisen. At the hearing Gettleman, manager of industrial relations for the Company, testified that the unlicensed seamen engaged in fitting out the ships were "laid off" on March 30, 1940, upon the com- pletion of this work. However, we find that the relationship of employment between the Company and its unlicensed seamen was not then severed, and that despite their lay-off these employees continued to occupy the status of employees, within the meaning of the Act.4 The fact that they were then "paid off" and not under shipping articles is not determinative.5 The Company, follows the business practice of putting to work during the ensuing navigation season the unlicensed seamen who have fitted out its vessels, and, as we have found above, the Company proposed to be fully carrying on its interstate operations within 1 month after the lay-off. Indeed, Gettleman testified that had it not been for ice on the lakes, one of its ships would have been engaged in interstate operations at 'the date of the hearing. Inasmuch as the Company employed only 90 unlicensed seamen for fitting out its steamships, as compared with 104 normally employed in navigating the steamships, we are satisfied, and find, that if not all of the 90, at least the substantial part thereof would have been and were recalled to work about May 1.6 Under these circumstances we find that the afore- mentioned "lay-off" was merely a suspension of work of unlicensed seamen occasioned by business exigency and in accordance with estab- lished business practice, and that at the date of the hearing the Com- pany employed approximately 90 persons who could and would per- 4 North Whittier Heights Citrus Association, a Corporation v. N. L. R. B , 109 F. (2d) 76 (C C A 9, cert denied 310 U S 632, enf'g North Whittier Heights Citrus Association and Citrus Packing House Workers Union, Local No. 21001, 10 N. L R B. 1269; Matter of West Kentucky Coal Company and Inland Boatman's Union, C 1. 0., 17 N. L R B 724 and cases therein cited in footnote 2. -National Labor Relations Board v Waterman Steamship Corporation, 309 U S 206, iev'g 103 F (2d) 157 (C C A 5) and enf'g Matter of Waterman Steami.ship Corporation and National Maritime Union of America, Engine Division, Mobile Branch, Mobile, Alabama, 7 N L. R B 237 6It appears that more unlicensed seamen would have been and were recalled Gettleman testified that, in addition to the 90 unlicensed seamen employed for fitting out the steam- ships, it was "quite possible" that some of the 24 unlicensed seamen employed in November 1939 who had not yet been recalled for work on the ships in 1940 would be employed during the 1940 navigation season. He further testified that nine unlicensed seamen not emploled in 1949 were employed on the steamships in March 1940 when asked whether lie had "any idea" as to how many other unlicensed seamen not employed in 1939 would be employed in 1940, he replied, "I doubt if this total of nine would be increased by more than two or three." Accordingly, it appears that additional unlicensed seamen empleied in 1939 would have been and were recalled, since approximately 14 unlicensed seamen in addition to the 90 employed in fitting out the vessels would have been necessary to fill out the complement of 104 normally employed for navigation. 283036-42-vol. 25-23 342 DECISIONS OF NATIONAL LABOR RELATIONS BOARD form work as unlicensed seamen when the navigation season began.' It follows that the Company's motion to dismiss the petition, to the extent that it rests upon the contention that the Company did not have in its employ since on or about December 14, 1939, the persons concerning whom the petition alleged a question concerning representa- tion had arisen, is without foundation. We find that a question has arisen concerning representation of em- ployees 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 agreed, and we find, that all unlicensed seamen employed by the Company on its lake steamers, the Wyandotte, Conneaut, Alpena, and Huron, constitute a unit appropriate for the purposes of collective bargaining and that said unit will insure to the 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. V. THE DETERMINATION OF REPRESENTATIVES From a report of the Regional Director- introduced in evidence it appears that a substantial number of the Company's employees within the unit above found to be appropriate have designated the N. M. U. as their representative for the purposes of collective bargaining in respect to wages, rates of pay, hours of service, and other working conditions. The N. M. U. desires that an election be held to resolve the question concerning representation. We find that the question which has arisen concerning the representation of employees of the Company can best be resolved by holding an election by secret ballot. . We shall direct that the election begin as promptly as is practicable after this Direction of Election, under the direction and supervision of the Regional, Director, 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. ' In view of the recall in March 1940 of unlicensed seamen employed in 1939, we need not consider whether the employment relationship of unlicen ,ed seamen employed in 1939 terminated after the close of the 1939 navigation season by virtue of the cessation of operations from on or about December 13, 1939, to on or about March 4, 1940 Cf. Matter of Saginaw Dock & Terminal Company and National Maritime Union (C 1 0 ), 23 N L. R B 630; Matter of Alaska Packers Association and Alaska Cannery WVoik crs Union Local No 5, Committee for Industrial Organization , 7 N L. R B 141 ; .Matter of American Fruit Growers, Inc et al and Fruit & Vegetable Workers Sub Local of #191, UCAPAWA. C. 1 0 , 10 N L R B 316, Matter of George G Aierrll, et at and Fresh Fruit & Vegetable Workers Union, Local 78, C. 1 0 , 13 N. L. R. B. 411. WYANDOTTE TRANSPORTATION COMPANY 343 The N. M. U. contends that the persons eligible to vote in the elec- tion should be the unlicensed seamen who were employed by the Com- pany during the last pay-roll period in the 1939 navigation season. The Company contends that the persons eligible to vote in the election should be the unlicensed seamen employed by the Company during the pay-roll period following the first operation of all the Company's steamships in the 1940 navigation season. We have been informed by the Regional Director that since the hearing the Company has begun to operate its entire fleet of steamships. Accordingly, we see no reason for varying from our customary procedure of selecting the pay-roll period immediately preceding the date of the Direction of Election as determinative of eligibility to vote.8 We shall direct that the em- ployees eligible to vote in the election shall be all unlicensed seamen employed by the Company on its lake steamers, the Wyandotte, Con- neaut, Alpena, and Huron, during the pay-roll period immediately preceding the date of the Direction of Election, including employees who did not work during such pay-roll period because they were ill, on vacation, or temporarily laid off, but excluding employees 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 repre- sentation of employees of Wyandotte Transportation Company, Wy- andotte, Michigan, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the National Labor Relations Act. 2. All the unlicensed seamen employed by the Company on its lake steamers, the Wyandotte, Conneaut, Alpena, and Huron, 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 Relations 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 Wyandotte Transportation Company, Wyandotte, Michigan, an 8 Compare Matter of Saginaw Dock & Terminal Company and National Maritime Union (C. 1 .0.), 23 N. L. R. B. 630. 344 DECISIONS OF NATIONAL LABOR RELATIONS BOARD election by secret ballot shall be conducted as soon as convenient and beginning as promptly as is practicable after the date of this Direction of Election in conformity with the rules set forth hereinabove for the conduct of such election, under the direction and supervision of the Regional Director for the Seventh 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 unlicensed seamen employed by the Company on its lake steamers, the Wyandotte, Conneaut, Alpena, and Huron, during the pay-roll period immediately preceding the date of this Direction, including such employees who did not work during said pay-roll period because they were ill, on vaca- tion, or temporarily laid off, but excluding such employees who have since quit or been discharged for cause, to determine whether they de- sire to be represented by National Maritime Union, affiliated with Congress of Industrial Organizations , or by Down River Seamen's Union, for the purposes of collective bargaining, or by neither.