Luckenbach-Gulf Steamship Co.

In the Matter of LUCKENBACH-GULF STEAMSHIP Co. and NAT'L. ORG. MASTERS, MATES & PILOTS OF AMERICA, LOCAL No. 17, INC. In the Matter of LUCKENBACH STEAMSHIP CO., INC. and NAT'L. ORG. MASTERS, MATES & PILOTS OF AMERICA, LOCAL No. 17, INC. Cases Nos. R-1806 and R-1827.-Decided July 13, 1940 Jurisdiction : water transportation. Investigation and Certification of Representatives : existence of question where employer refuses to accord recognition to union ; election necessary. Unit Appropriate for Collective Bargaining : pilots engaged in piloting the Company's vessels on the Columbia and Willamette Rivers. Practice and Procedure : petition dismissed as to Company having no employees in the appropriate unit. Mr. Thomas P. Graham, Jr., for the Board. Mr. Gunther F. Krause, of Portland, Oreg., for the Company. Mr. Ashby C. Dickson, of Portland, Oreg., for Local No. 17. Mr. Ben Anderson, of Portland, Oreg., for the C. I. O. Mr. Edwin L. Swope, of counsel to the Board. DECISION DIRECTION OF ELECTION AND ORDER STATEMENT OF THE CASE On December 1, 1939, National Organization, Masters, Mates & Pilots of America, Local No. 17, Inc., herein called Local No. 17, filed with the Regional Director for the Nineteenth Region (Seattle, Washington), separate petitions alleging that questions affecting commerce had arisen concerning the representation of employees of Luckenbach-Gulf Steamship Co., herein referred to as Luckenbach, and of Luckenbach Steamship Company, Inc., herein referred to as the Company. They are both located in Portland, Oregon. The petitions requested 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 April 10, 1940, the National 25 N L R B, No 50. 372 LUCKENBACH-GULF STEAMSHIP CO. 373 Labor Relations Board, herein called the Board, acting pursuant to Section 9 (c) of the Act,. and Article III, Section 3, and Article III, Section 10 (c) (2 ), of National Labor Relations Board Rules and Regulations-Series 2, as amended , ordered an investigation upon the petitions and authorized the Regional Director to conduct it and to provide for an appropriate hearing on due notice , and further ordered that for the purposes of hearing the two cases be consolidated. Ou April 17 , 1940, the Regional Director issued a notice of hearing, copies of which were duly served upon the Company , upon Lucken- bach, upon Local No. 17 , and upon Licensed Marine Deck Officers, L. I. Union, Local 998, herein called Local 998, a labor organization claiming to represent employees directly affected by the investigation. Pursuant to notice , a hearing was held on May 6 and 7, 1940, at Portland , Oregon, before Thomas S. Wilson, the Trial Examiner duly designated by the Board. The Board, the Company, Lucken- bach, Local No. 17, and Local 998 , were represented by counsel and participated in the hearing . Full opportunity to be heard, to examine and cross -examine witnesses , and to introduce evidence bearing upon the issues was afforded all parties. At the commencement of the hearing, the parties stipulated that certain exhibits and testimony which were introduced in evidence in another case entitled Matter of McCormick Steamship Company and Nat'l. Org. of Masters , Mates c Pilots of America, Local No. 17, Inc.; Matter of McCormick Steamship Company, agents for Paci f e- Argentine-Brazil Line and Nat'l. Org. of Masters , Mates cC Pilots of America, Local No. 17 , Inc.,' together with all objections thereto, be made a part of the record in the present case. The Trial Examiner received said exhibits and testimony in evidence . During the hearing counsel for the Board moved without objection that the petition concerning Luckenbach be dismissed for the reason that said Com- pany had no employees in the unit claimed to be appropriate. The Trial Examiner did not rule upon the motion . We hereby grant it and will dismiss the •petition concerning Luckenbach . During the course of the hearing the Trial Examiner made several other rulings on motions and on objections to the admission of evidence. The Board lhas reviewed the rulings of the Trial Examiner and finds that no prejudicial errors were committed . The rulings are hereby af- firmed. After the hearing the Company , Local No. 17, and Local 998 filed briefs with the Board. i Cases Nos R-1828 and R-1829 253e3(i-4 2-vo1 25--25 374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF TIIE COMPANY 2 The Company is organized under the laws of the State of Dela- ware and has its principal office, which it maintains jointly with Luckenbach, in New York City. The stock of the corporation is almost wholly owned or controlled by members of the Luckenbach family. The Company is engaged with Luckenbach in the trans- portation of passengers and freight, operating a fleet of approximately 22 vessels, in the intercoastal trade and between the Gulf of Mexico and Atlantic and Pacific ports. The vessels sail upon regular sched- ules and make scheduled stops to take on and discharge cargo and passengers in substantially all of the major coastal ports of the United States. The Company has joint offices with Luckenbach in New Orleans, Louisiana; Oakland, San Francisco, and Los Angeles, Cali- fornia; and in Seattle, Washington. It operates jointly with Luck- enbach waterfront freight terminals at the major ports. Counsel for the Company conceded that the Company was engaged exclusively in interstate commerce. II. THE ORGANIZATIONS INVOLVED National Organization, Masters, Mates & Pilots of America, Local No. 17, Inc., is a labor organization affiliated with the American Federation of Labor. It admits to membership masters, mates, and pilots of river vessels, operators of gas boats, and pilots of ocean- going vessels navigating the Columbia and Willamette Rivers and their tributaries. Licensed Marine Deck Officers, L. I. Union, Local No. 998, is a labor organization affiliated with the Congress of Industrial Organiza- tions. It admits to membership the same persons as Local No. 17. III. TFIE QUESTION CONCERNING REPRESENTATION On about September 14, 1939, Local No. 17 advised the Company by letter that it represented a majority of the Company's employees engaged in piloting their vessels on the Columbia and Willamette 2 At the hearing the parties stipulated that the findings of fact made by the Board in the section designated as "The business of the respondent" in another case entitled "Matter of Luckenbach Steamship Company , Inc , and Luc'.enbach Gulf Steamship Com- pany, Inc and Maritime 0/71ce Employees Inteinational Longshotemei's and TVarehouse- men's Union, Local No. 1-$7, 8 N L R B 1280 , were propel findings of fact concerning the business of the two Companies involved in the instant case LUCKENBACH-GULF STEA1bISHIP Co. 375 Rivers, and requested a collective bargaining conference . On Sep- tember 22 , 1939, the Company replied as follows : This will acknowledge receipt of your recent letter, no date. We have not been informed by the men who' have been en- gaged in piloting our vessels that they have designated you or any other agency as their representative for collective bargaining purposes . If and when the majority of our employees do desig- nate such a representative , we shall be prepared to negotiate with such representative for the purpose of arriving at an agreement as to their wages, hours and working conditions. We find that a question has arisen concerning 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, occurring in connection with the operations of the Company described in Section 1, 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. TILE APPROPRIATE UNIT Local No. 17 contends that the pilots engaged in piloting the Company's vessels from Astoria to Portland and Vancouver, Wash- ington, and from- Vancouver, Washington, and Portland to Astoria on the Columbia and Willamette Rivers, and its tributaries and inter- mediate points, constitute a unit appropriate for the purposes of collective bargaining. Local No. 17 asserts, however, that two of the four pilots now engaged in piloting the Company's vessels should not be included in the unit for the reason that they are temporary employees who have been hired by the Company for the purpose of destroying Local No. 17's majority. The Company and Local 998& contend that all four pilots are permanent employees of the Company and that they all should be included in the unit. In April 1930 the Company hired Captain George F. Campbell to pilot its vessels on the Columbian River. Thereafter, in June 1938, the Company employed another pilot, Captain Charles E. Wiley, to assist Campbell. Both Campbell and Wiley are members of Local No. 17. On July 1. 1938, the Company hired another pilot, Captain F. Al. Ring, on a part-time basis to handle vessels Campbell and 376 DECISIONS OF NA1IONAL LABOR RELATIONS BOARD Wiley were unable to handle." Subsequently, in the spring of 1939, Ring became a full-time employee of the Company. In January 1940, because of the illness of Captain Wiley and because of the "bunching up" of the Company's vessels in the Columbia River due to labor disturbances in other ports, the Company hired a fourth pilot, Captain J. L. Jacobsen, on a part-time basis.4 After 3 weeks' absence, Wiley returned to work; however, the Company decided to retain Captain Jacobsen in its employ to handle extra vessels. ,In 1939 Campbell made 112 trips and Wiley moved 79 ships, while Ring piloted between 24 and 30 ships; in 1940, until May, Campbell made 32 trips and Wiley made 19 trips, despite 3 weeks' illness, while Ring and Jacobsen both made about 10 trips. Campbell, Wiley, and Ring are paid on a monthly salary basis, plus additional compensa- tion if the number of vessels handled by them in any one month exceeds a certain number, while Jacobsen is paid a stipulated sum for each vessel he pilots for the Company. The nature of the work performed by the four pilots is the same, although the volume of their work varies. Campbell, Wiley, and Ring are paid on the same basis. Although Jacobsen is paid by the job and was hired by the Company to do extra work there is no showing that his employment on that basis is temporary. On the contrary, the Company asserts that his status is that of a regular employee to handle such additional jobs as the other three pilots are unable to handle. Under all the circumstances, we find that the four pilots should be included in the unit.' We find that the pilots engaged in piloting the Company's vessels from Astoria to Portland and Vancouver, Washington, and from Vancouver, Washington, and Portland to Astoria on the Columbia and Willamette Rivers, and its tributaries and intermediate points, constitute a unit appropriate for the purposes of collective bargain- ing 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. ' Prior to June 104R whenever Campbell had been unable to handle all the Company's vessels, the Company had utilized the services of Columbia River Pilots , an association of pilots who offer their services to steamship companies engaged in piloting ocean-going vessels upon the Columbia and Willamette Rivers and their tributaries {Local No 17 asserts that the Company ceased using Columbia Rivet Pilots for its extra work at this time and gave Ring and Jacobsen their present status fit order to de- sti oy its position as majority representative of the employees in the unit The record does not establish that the Company 's reasons for the additions to its staff were other than those assigned by it and discussed below 'Our practice has been to include part-tine employees in the unit when they are regu- larly employed by the Company See Matter of Weekly Publications, Inc, and News- paper Guild of New York, 8 N L R B 76; Matter of Daily Mirror, Inc, and The News- paper Guild of New York , 5 N. L. R B. 362 ; Matter of TVillianis Dimond it Company et at , and Port Watchmen, Local No 147, 2 N L R B 859 ; Maftet of Flexo Products Corporation and International Brotherhood of Electrical Workers, Local B-713, 7 N L 11 B. 1163 LIICKENBACH-GULF STEAMSIIIP CO. VI. THE DETERMINATION OF REPRESENTATIVES 377 Captain Campbell testified- that he is a member of Local No. 17; Captain Wiley testified thaCh e was once a member of Local No. 998, but is now a member of Local No. 17; Captain Ring testified that he is a member of Local No. 998; and, Captain Jacobsen testified that he was once a member of Masters, Mates & Pilots of America, Local No. 88 of New York,° but is now a member of Local No. 998. Under all the circumstances we find that an election by secret ballot is necessary to resolve the question concerning representation. We shall, therefore, direct that an election be conducted among, the employees in the appropriate unit who were on the pay roll of the Company during the pay-roll period next preceding the date of this Direction to determine whether they desire to be represented by Local No. 17, by Local No. 998, or by neither. 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 Luckenbach Steamship Company, Inc., Portland, Oregon, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the National Labor Relations Act. 2. The pilots engaged in piloting the Company's vessels from Astoria to Portland and Vancouver, Washington, and from Vancou- ver, Washington, and Portland to Astoria on the Columbia and Wil- lamette Rivers, and its tributaries and intermediate points, 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, 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 collective bargaining with Luckenbach Steamship Company, Inc., Portland, Oregon, an election shall be con- ducted as early as possible, but not later that thirty (30) days from- the date of this Direction, under the direction and supervision of 6 This Local and Local No 17 are affiliated with the same international organization. 378 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Regional Director of the Nineteenth 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 the four pilots engaged in piloting the Company's vessels from Astoria to Portland and Vancouver, Washington, and from Vancouver,, Wash- ington, and Portland to Astoria on the Columbia and Willamette Rivers, and its tributaries and intermediate points, to determine whether they desire to be represented by National Organization, Mas- ters, Mates & Pilots of America, Local No. 17, Inc., or by Licensed Marine Deck Officers, L. I. Union, No. 998, for the purposes of collective bargaining, or by neither. ORDER By virtue of an 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 ORDERED that the petition concerning Luckenbach- Gulf Steamship Co., be, and it hereby is, dismissed. MR. WILLIAM M. LEISERSON took no part in the consideration of the above Decision, Direction of Election, and Order.