Castle & Cooke Terminals, Ltd.

In the Matter Of CASTLE & COOKE TERMINALS, LTD. and INTERNA- TIONAL LONGSHOREMEN'S & WAREHOUSEMEN'S UNION, LOCAL 1-37, UNIT # 2 In the Matter of CASTLE & CooKE TERMINALS, LTD. and INTERNA- TIONAL LONGSHOREMEN'S & WAREHOUSEMEN'S UNION, LOCAL 1-37 Cases Nos. R-0129 and R-P130.Decided December 12, 1940 Jurisdiction : stevedoring industry. Investigation and Certification of Representatives : existence of question: re- fusal to accord recognition to union and request that certification be obtained ; elections necessary. Units Appropriate for Collective Bargaining : separate units: (1) longshoremen including and excluding employees in stated categories; (2) scalers exclud- ing the foremen and any permit men. So-called "permit men," to whom cards are issued privileging them to work during. specified periods (usually during seasonal peak of business, or to fill abnormal vacancies in ranks of regular employees) at the end of which employment relation ceases, excluded from units. Stanley, Vitousek, Pratt & Winn, by Mr. Montgomery E. Winn, of Honolulu, T. H., for the Company. Mr. Jack H. Kawano, and Mr. Frederick Kamahoahoa, of Hono- lulu, T. H., for Local 1-37. Mr. Florentino Das, of Honolulu, T. H., for Unit #2. Miss Mary E. Perkins, of counsel to the Board. DECISION AND DIRECTION OF ELECTIONS STATEMENT OF THE CASE On May 16, 1940, International Longshoremen's & Warehousemen's Union, Local 1-37, Unit #2, herein called Unit #2, and on June 19, 1940, International Longshoremen's & Warehousemen's Union, Local 1-37, herein called Local 1-37, filed with the Regional Director for the Twentieth Region (San Francisco, California) petitions alleg- ing that a question affecting commerce had arisen concerning em- ployees of Castle & Cooke Terminals, Ltd., Honolulu, Territory of Hawaii, herein called the Company, and requesting an investigation and certification of representatives pursuant to Section 9 (c) of the 28 N. L. R. B., No. 75. - 1 493 494 DECISIONS OF NATIONAL LABOR RELATIONS BOARD National Labor Relations Act, 49 Stat. 449, herein called the Act.' On September 9, 1940, the National 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 the National Labor Relations. Board Rules and Regulations-Series 2, as amended, ordered an investigation in each case and authorized the Regional Director to conduct it and to provide for an appropriate hearing upon due notice and further ordered that the cases be consolidated. On September 27, 1940, the Regional Director issued a notice of consolidated hearing, copies of which were duly served upon the Company, and upon Unit #2 and Local 1-37. - Pursuant to the notice and amendments thereto, a hearing was held on October 15 and 16, 1940, at Honolulu, Territory of Hawaii, before Arnold L. Wills, the Trial Examiner duly designated by the Board. The Com- pany was represented by counsel and Unit #2 and Local 1-37 by their representatives; all participated in the hearing. Full oppor- tunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues was afforded 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. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT I. THE BUSINESS, OF THE COMPANY Castle & Cooke Terminals, Ltd.. is a corporation existing under the laws of the Territory of Hawaii .- The principal office and place of business of the Company is located in Honolulu , Territory of Hawaii. The Company is engaged in the business of loading and unloading freight and cargo shipped on Matson Navigation Company and Oce- anic Steamship Company boats between the Territory of Hawaii and the continental United States and between the Territory of Hawaii and foreign countries . The Company handles all the longshore work in the port of Honolulu in connection with vessels of those companies, and of the Isthmian Steamship Company whose 1 On June 26, 1940, Local 1-37 amended its petition in respects not here material. CASTLE' & COOKE TERMINALS, LTD. 495 operations are not disclosed by the record. During 1939 the Com- pany handled approximately 1,400,000 tons of cargo and had a gross income amounting to approximately $1,681,000. The Company ad- mits that it is engaged in trade, traffic, and commerce within the meaning of Section 2 (6) and (7) of the National Labor Relations Act. At the time of the hearing the Company employed approximately 920 persons. II. THE ORGANIZATIONS INVOLVED International Longshoremen's & Warehousemen's Union, Local 1-37, is a labor organization affiliated with the Congress of Indus- trial Organizations, admitting to membership longshoremen and stevedores in the employ of the Company and of other employers similarly engaged in Honolulu, Territory of Hawaii. ' International Longshoremen's & Warehousemen's Union, Local 1-37, Unit #2, is a labor organization affiliated with the Congress of Industrial Organizations, admitting to membership scalers in the employ of the Company and of other employers similarly engaged in Honolulu, Territory of Hawaii. It is a separate division of Local 1-37, has its own officers and holds separate meetings. III. THE QUESTIONS CONCERNING ' REPRESENTATION By letter dated April 24, 1940, addressed to Randolph Sevier, presi- dent of the Company, Unit #2 claimed to represent a majority of the scalers in the Company's employ and requested recognition as their representative. A meeting was held on April 30, 1940, between the negotiating committee of Unit #2 and Churchill Carmalt, Em- ployees' Relations Director of the Company. In the course of this meeting and subsequent discussions, the Company refused to recog- nize Unit #2 as exclusive bargaining representative for scalers in the Company's, employ, suggesting that Unit #2 first obtain Board certification. At a meeting on May 28, 1940,, Local 1-37, through its negotiating committee, requested of Sevier that the Company recognize it as exclusive bargaining agent for the longshoremen in the employ of the Company. Sevier, at both this and a subsequent meeting, re- fused to accept as adequate proof of Local 1-37's majority, the evi- dence submitted by Local 1-37. From a statement of the Trial Examiner introduced in evidence ii appears that Local 1-37 and Unit #2 have each been designated 496 DECISIONS OF NATIONAL LABOR RELATIONS BOARD as bargaining agent by a substantial number of the employees of the Company in the units they respectively claim to represent.2 We find that questions have arisen concerning the representation of employees of the Company. IV. THE EFFECT OF THE QUESTIONS CONCERNING REPRESENTATION UPON COMMERCE We find that the questions concerning representation which have arisen, occuring in connection,with the operations of the Company described in Section I above, have a close, intimate, and substantial relation to trade, traffic, and commerce between the Territory of Hawaii and the'several States, and between the Territory of Hawaii and foreign countries, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE APPROPRIATE UNITS The Company and the unions are in substantial agreement that the longshoremen and the scalers employed by the Company con- stitute separate appropriate bargaining units. Longshoremen of the Company handle cargo, while the scaler gang is engaged exclusively in maintenance work and cleaning. The longshoremen and the scal- ers have organized separately. Under these circumstances we find that the longshoremen and the scalers properly constitute separate bargaining units. A. The longshoremen's unit The Company and Local 1-37 are agreed that the longshoremen's unit should include all regular or "basic" employees of the Company in the following categories : members of the ship gangs and of the wharf gangs, including leading men 3 and gang foremen; members of the gear (or cooper) gang,) including the gang foreman; mem- bers of the Makule--gang; and machine (or jitney) operators. The Company employs approximately 550 such persons, all of whom are regularly engaged in stevedoring work. We shall include them in the unit. 2 The Trial Examiner reported that 17 scalers whose names appear on the Company's pay roll of October 11, 1940, appear to have signed a petition designating Unit #2 as their representative . The scalers ' unit hereinafter found appropriate , contained approximately 30 employees at the time of the hearing. The Trial Examiner further reported that 324 persons whose names appear on the Com- pany's pay roll of October 11, 1940, appear to have signed one or the other of two petitions designating Local 1-37 as their bargaining agent The longshoremen's unit, hereinafter found appropriate, contained approximately 550 employees at the time of the hearing. 3 Each of the 26 wharf gangs is directed by a leading man who receives 10 cents an hour additional pay. They are analogous to "working foremen " CASTLE & COOKE TERMINALS, LTD.' 497 The Company and Local 1-37 further agree that the department heads, consisting of the General Superintendent of all Operations, the Port Captain, the Safety Manager, the Employees' Relations Director, the Employment Office Manager, the Equipment Superin- tendent,4 and the Claim Agent; the head timekeeper; the clerks in charge of terminals; the watchmen; the paymaster; the ship, wharf, and dock foremen; and the office employees should be excluded from the longshoremen's unit. We shall exclude these employees, all of whom perform supervisory or clerical work, from the unit. The parties disagree concerning the inclusion in the longshore- men's unit of so-called "permit men" and of wharf clerks, sorters, timekeepers, and machine shop employees. Local 1-37 desires the exclusion of these groups and the Company desires their inclusion. Pe?vjnit men. The Company's employees are classified as "basic" or "permit." The "basic" group consists of all 'monthly paid em- ployees, and that number of weekly, daily, and hourly paid men for whom past records have indicated that there would be adequate and reasonably steady work over the course of each year. It is the present policy of the Company to guarantee the basic stevedores a minimum of 40 hours straight time employment per week. The basic men are in addition given annual vacations with pay. Other benefits, including group insurance and a sick benefit plan, are avail- able to them. The "permit" group consists of that number of men which past records and estimates indicate will be needed to work during seasonal and other abnormally busy periods or to fill, tem- porary and unforeseen vacancies. "Permit cards" are issued to those chosen and they are privileged to work only when work is available and only within the period specified on the cards. Their employee status ceases at the end of the specified period, unless a new card is issued or unless they are promoted to the basic group. The 40-hour- a-week guarantee,5 vacations, and other benefits are not applicable to them. Their pay rates appear to be the same as those of the comparable basic employees. Permit men were employed by the Company • in 1940 during the months between March and September and the Company-anticipates that, because of unusual vacancies in stevedore ranks due to an epidemic, and according to estimates of anticipated business, no lay- offs will be made before January 1941. The average length of em- ployment for individual permit men was not made clear, however: About one-half of the 48 permit men laid off in November 1939,were * Hawkinson , described as a monthly foreman and assistant to the Equipment Superin- tendent, should be excluded. 6 From: an exhibit introduced in evidence by the Company it would appear that, during a 27-week period in 1940 in which permit men were employed , they were offered approxi- mately th`e' same number of hours of work per week as were basic employees. 498 DECISIONS OF NATIONAL LABOR RELATIONS BOARD offered reemployment in 1940. Twenty-two out of the 25 reemployed had been advanced to fill permanent vacancies in the ranks of the basic group at the time of the hearing, but it is not clear just what proportion they constituted of the total permit group which was em- ployed in 1940. At the time of the hearing, the Company had in its employ 48 stevedores still classified as "permit" employees. With two exceptions occurring in the past, Local 1-37 has not admitted' permit men to membership. None are at present members of that union. In view of the relatively small number of permit men, the tem- porary and seasonal nature of their employment, and the practice of Local 1-37 of excluding them from membership, we shall exclude them from the longshoremen's unit. Wharf Clerks, Sorters, Timekeepers, and Machine Shop Employ- ees. It has been the custom of Local 1-37 to exclude from its mem- bership, because of the differences in their problems, workers other than regular longshoremen engaged in the handling of cargo. Where it has been possible these groups have in the past been organ- ized into separate units, as the scalers have been, and Local 1-37 contemplates the prospect of thus organizing some of the groups here involved. The wharf clerks, sorters, and timekeepers do not handle cargo. They are all engaged at clerical work involving varying degrees of training and aptitude. They are paid by the week, whereas all of tie employees which Local 1-37 contends should be included are paid by the hour. While there have been several instances of steve- dores working as wharf clerks and vice versa, and of leading men performing some of the less clerical duties of sorters, they are not sufficient to erase the differences in interest arising from the nature of the work as a whole. We shall exclude the wharf clerks, sorters, and timekeepers from the unit. The machine shop employees, while not all skilled workers, are engaged in the mechanical work involved in the maintenance of the machines, rigging, slings, gang planks, and other equipment, used by the men handling cargo. Stevedores are seldom transferred to the shop, except temporarily on account of injuries suffered while handling cargo, or unless they display some aptitude for mechanical work. Local 1-37 intends to set up a separate unit for the shop employees if they can be organized. We shall exclude the shop employees also. We find that all regular, or "basic" employees of the Company, in the following categories: members of the ship gangs .and of the wharf gangs, including leading men and the gang foremen; mem- bers of the gear (or cooper) gang, including the gang foreman'; CASTLE & COOKE TERMINALS, LTD.' 499 members of the Makule gang; and machine (or jitney) operators; excluding department heads,'the head timekeeper, clerks in charge of terminals, watchmen, the paymaster, ship, wharf, and dock fore- men, office employees, wharf clerks, sorters, timekeepers, machine shop employees, and all permit employees, constitute a unit appro- priate for the purposes of collective bargaining and that such'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. B. The scalers' unit The'scalers comprise a gang of approximately 30 men employed, under the supervision of a foreman, to do maintenance and clean-up work on vessels in port. As we have stated, they do not handle cargo. As regards the proposed scalers' unit, Unit #2 desires to exclude the foreman of the scalers' gang and such permit men as may from time to time be assigned to it, while the Company contends that both should be included. The foreman typically divides the scalers' daily, or for each job, into several small gangs of four to eight men and appoints a member of each sub-gang to act as leading man for that group, while he himself acts as general supervisor of the work of the several sub-gangs. The foreman receives more pay than the members of the gang, acts as timekeeper of the men, and seldom works with them himself. His functions are icle-arly supervisory. We shall exclud'e` him from the unit. At the time of the hearing the Company employed no permit scalers; as the pressure of work increases or as temporary vacancies occur from time to time in the future, permit scalers may be em- ployed, however. For the reasons underlying our exclusion of permit employees from the longshoremen's unit, we shall exclude them from the scalers' unit also. We find that all regular or "basic" scalers employed by the Com- pany, excluding the foreman and any permit men who may from time to time be assigned to the work of scalers, constitute a unit appropriate for the purposes of collective bargaining and that such 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 We find that the questions concerning representation which have arisen can best, be'resolved by elections by secret ballot. We shall direct that employees in the units hereinabove found appropriate who 413597-42-vol. 28-33 500 DECISIONS OF NATIONAL LABOR RELATIONS BOARD were employed by the Company during the pay-roll period last pre- ceding the date of this Direction of Elections, including any such employees who did not work during said pay-roll period because 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, shall be eligible to vote., 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. Questions affecting commerce have arisen concerning the repre- sentation of employees of Castle & Cooke Terminals, Ltd., Hono- lulu, Territory of Hawaii, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the National Labor Relations Act. 2. All regular or "basic" employees of the Company in the follow- ing categories: members of the ship gangs and of the wharf gangs, including leading men and the gang foremen; members of the gear .(or cooper) gang, including the gang foreman; members bf the Makule gang; and machine (or jitney) operators; excluding depart- ment heads, the head timekeeper, clerks in charge of terminals, watch- men, the paymaster, ship, wharf, and dock foremen, office employees, ,wharf clerks, sorters, timekeepers, machine shop employees, and all permit employees, constitute a unit appropriate for the purposes of collective bargaining within "the meaning of Section 9 (b) of the Act. 3. All the regular or- "basic" scalers employed by the Company, excluding the foreman and any permit men who may from time to time be assigned to the work of scalers, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) -of the Act. DIRECTION OF ELECTIONS 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 authorized by the Board to ascertain representatives for the purposes of collective bargaining with Castle & Cooke Terminals, Ltd., Honolulu, Territory of Hawaii, elections_by secret ballot shall be conducted as early as possible but not later than thirty (30) days from the date of this Direction of Elections, under the direction and supervision of the Regional Di= CASTLE & COOKE TERMINALS, LTD. 501 rector for the Twentieth Region, acting in this matter as agent for the National Labor Relations Board and subject to Article III, Sec- tion 9 of said Rules and Regulations: ( 1) Among all regular or "basic" employees of the Company in the following categories : members of the ship gangs and of the wharf gangs, including leading men and the gang foremen; members of the gear ( or cooper ) gang, including the gangforeman ; members of the Makule gang ; and machine (or jitney ) operators ; who were employed by the Company during the pay-roll period last preceding the date of this Direction of Elections , including any such employees whQ did not work during said pay-roll period because they were ill or on vacation and employees who were then or have since been temporarily laid off, but excluding department heads, the head time- keeper, clerks in charge of terminals , watchmen, the paymaster, ship, wharf, and dock foremen , office employees, wharf clerks, sorters, timekeepers , machine shop employees, all permit employees , and those who have since quit 'or been discharged for cause , to determine whether or not they desire to be represented by International Long- shoremen's & Warehousemen's Union, Local 1-37, affiliated with the Congress of Industrial Organizations , for the purposes of collective bargaining; and (2) Among all the regular or "basic" scalers employed by the Company during the pay-roll period last preceding the date of this Direction of Elections , including any employees who did not work during said pay-roll period because they were ill or on vacation and employees who were then or have since been temporarily laid off, but excluding the foreman and any permit men who may have been assigned to the work of scalers , and those who have since quit or been discharged for cause , to determine whether or not they desire to be represented by International Longshoremen 's & Warehouse- men's Union , Local 1-37, Unit #2, affiliated with the Congress of Industrial Organizations, for the purposes of collective bargaining. CHAIRMAN HARRY A. MiLLis took no part in the consideration of the above Decision and Direction of Election. [SAME TITLE] AMENDMENT TO DIRECTION OF ELECTIONS January 7, 1941 • - On December 12, 1940, the National Labor Relations Board, herein called the Board , issued a Decision and Direction of Elections, in the above-entitled proceedings, the elections to be conducted as early as 502 DECISIONS OF NATIONAL LABOR RELATIONS BOARD possible but not later than thirty (30) days from the date of the Direction, under the direction and supervision of the Regional Di- rector for the Twentieth Region (San Francisco, California). The Board, having been informed by the Regional Director for the Twen- tieth Region that a longer period within which to hold the election is necessary, hereby amends. the Direction of Elections issued on De- cember 12, 1940, by striking therefrom the words "not later than thirty (30) days from the date of this Direction of Elections" and substituting therefor the words "not later than forty-five (45) days from the date of this Direction of Elections." 28 N. L. R. B., No. 75a.