Detroit & Cleveland Navigation Co.

In the Matter of DETROIT & CLEVELAND, NAVIGATION COMPANY and NATIONAL ORGANIZATION OF MASTERS, MATES AND PILOTS OF AMERICA,, A. F. OF L., AND GREAT LAKES OFFICERS ASSOCIATION, (C. I. 0.) Case No. RE-16.-Decided January 24, 1941 Jurisdiction : water transportation industry. Investigation and Certification of Representatives : existence of question: con- flicting claims of rival representatives ; election directed to be held within two. months of the expiration date of existing contracts. Contracts renewed for a one year period at a time when a union had, been designated as exclusive bargaining representative of a majority of employees in an appropriate unit will not be disturbed during that one year period in the interest of that stability and certainty in labor relations which the_ Act contemplates. ' Unit Appropriate for Collective Bargaining : all licensed deck officers, excluding captains, employed on all boats owned or operated by the Company. Mr. Oscar Grossman, for the Board. Angell, Turner, Dyer and Meek, of Detroit, Mich., by Mr. A. D. Ruegsegger for the Company. Mr. James H. Blake and Mr. David V. Martin, of Detroit, Mich., for the M. M. P. Mr. William L. Standard, of New York City, by Mr. Max Lustig, for the Association. Mr. Louis S. Penfield, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE On August 1, 1940, Detroit & Cleveland Navigation Company,' Y)e- troit, Michigan, herein called the Company, filed a petition with the Regional Director for the Seventh Region (Detroit, Michigan) alleg-. ing that a question affecting commerce had arisen concerning the rep- resentation of employees of 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 1 Incorrectly designated in some of the formal papers as "Detroit & Cleveland Navigation Company, a Michigan corporation." The Trial Examiner ordered that the designation "a Michigan corporation " be stricken from the caption. 29 N. L. R. B., No 33. 176 DETROIT & CLEVELAND NAVIGATION COMPANY 177 the Act. - On August 15, .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 August, 27, 1940, the Regional Director issued a notice of, hearing, copies of which, together with copies of the petition, were duly served upon the Company, upon National Organization of Masters, Mates, and Pilots of America, A. F. of L.,2 herein called the M. M. P., and Great Lakes Officers Association (CIO), herein called the Association, labor organizations claiming to represent employees directly affected by the investigation. Pursuant to no- tice, a hearing was held on September 5, 1940, before James C. Paradise, the Trial Examiner duly designated by the Board. The Board, the Company, the M. M. P. and the Association appeared, were represented by counsel, and otherwise participated in the hear- ing. Full opportunity to be heard, to examine and cross- examine witnesses, and to introduce evidence bearing on the issues was af- forded all parties. During the course of the hearing the Trial Examiner made several rulings on motions and 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. On December 6, 1940, a hearing, pursuant to notice served upon the parties, was held before the Board in Washington, D. C., for the purpose of oral argument. The M. M. P. and the Association were represented by counsel, presented oral argument, and other- wise participated in the hearing. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT I. THE BUSINESS OF THE COMPANY Detroit & Cleveland Navigation Company is a Michigan corpora- - tion with its principal place of business in Detroit, Michigan. ,It owns and operates upon the Great Lakes certain combination passen- gerand freight boats and operates under charter certain freight boats owned by others. In the course of its business the Company- operates these boats between Detroit, Michigan, Buffalo,_New York, Cleveland, Ohio, Mackinac Island, Sault Ste. Marie, Michigan, and 2 Incorrectly designated in some of the formal papers ! as "Masters, Mates and Pilots Association." The 'Trial Examiner ordered that-the caption , the stipulation , and other formal p'apers,in the proceeding he-corrected to show the correct name as "National Organi- zation of Masters, Mates , and Pilots of America , A. F. of L." 178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Midland, Ontario. During the 1939 shipping season gross revenues received from the operation of the combination passenger and freight boats amounted to $1,451,531.91 for the passenger business, and, $756,964.53 for the freight business. During the same period the gross revenues received from the operations of the exclusively freight boats amounted to $664,026.01. Approximately 1,200 persons were employed in the operation of these boats on July 31, 1940. We find that. the Company is engaged in traffic, trade, trans- portation, and commerce among the several States and with foreign countries, and that the licensed deck officers employed on boats owned or operated by the Company are directly engaged in such I raffic, trade, transportation, and commerce. II. THE ORGANIZATIONS INVOLVED National Organization of Masters, Mates and Pilots of America, A. F. of L., is a labor organization affiliated with the American Federation of Labor. It admits to membership licensed masters, mates, and pilots of ocean, coastwise, lake, bay, sound, and river steamers. Great Lakes Officers Association (C. I. 0.), is a labor organization affiliated with the National Maritime Union and the Congress of In- dustrial Organizations. It admits to membership all licensed deck officers, excluding captains, employed on self-propelled vessels on the Great Lakes. III. THE QUESTION CONCERNING REPRESENTATION In April 1937 the Company and the M. M. P. entered into certain collective bargaining agreements 3 respecting all the licensed deck offi- cers employed on boats operated by the Company. The Company therein agreed, inter alia, to hire only members of the M. M. P., when such were available. By their terms these agreements were to remain . . . thereafter for a period in effect until March 31, 1938, "and of one (1) year and from year to year, thereafter, unless notice of ter. mination or amendment is given by either party to the other, thirty (30) days or more prior to March 31 in each year." Neither party gave the requisite notice of "termination or amendment," prior to March 31, 1940. 8 These agreements , three in number , contain substantially similar terms . Two were signed by the M. M. P. and the Company, one covering the licensed deck officers on pas- senger boats , and the other such officers on freight boats, owned or operated by the Company. A third, signed by the M. M P. and Detroit & Cleveland Steamship Company, herein called the Steamship Company, covers licensed deck officers on freight boats owned or operated by the Steamship Company The Steamship Company is a wholly owned subsidiary of ,the Company and owns one freight boat chartered and operated by the Company. For purposes of this proceeding, we will consider this agreement as though it were between the Company and the M M P. DETROIT & CLEVELAND NAVIGATION COMPANY 179 In May 1940 the Association began to organize among the licensed deck officers of the Company. On'June 20 the Association informed the Company that these employees had designated it as representative and requested a meeting to negotiate a collective agreement on their behalf. The Company first declined to meet with the Association for the reason that it was operating under the aforesaid collective agree- ments with the M. -M. 'P. However, on July 30 the Company met with the Association and negotiated and initiated a collective agree- ment providing, inter alia, that the Company would recognize the Asso- ciation as sole collective bargaining agent of the licensed deck officers, that when employing new or additional licensed deck officers the Com- pany would employ only members of the Association, when available, but that the agreement would not go into effect until an election was held by the Board and won by the Association. On August 1 the Al. M. P. informed the Company that if the agree- ments with it were not respected it would establish a picket line, and thereafter, on the same day, the Company filed the petition herein. Evidence was introduced to show that on the March 31, 1940, renewal date a majority of the licensed deck officers were members of the M. M. P. The claim of the Association to have cards -dated between May 17 and August 9, 1940, and signed by a majority of the licensed deck officers was not challenged. The record shows that since the inception of the afore-mentioned contracts a number of minor griev- ances have been adjusted between the Company and the M. M. P. and that these two parties last met in June or July 1940 to discuss an alleged violation of a seniority clause in one of the contracts. Since the contracts which were renewed March 31, 1940, consti- tuted the M. M. P. as exclusive representative and defined other terms and conditions of employment, for a 1-year period, at a time when the Al. M. P. had been designated by a majority in the appro- priate unit and when its status as such representative was unchal- lenged, their operation for the 1-year period, in the interest of that stability and certainty in labor relations which. the Act contem- plated, should not be disturbed. We will therefore not hold an elec- tion until these contracts approach the close of the 1-year period.4 ' Matter of The National Sugar Refining Company/ of New Jersey, and Local 11176, Sugar Refinery Workers, etc., 10 N. L R B. 1410; Matter of Eton Mfg. Co. and Int'l Union, United Automobile Workers of America, etc, 29 N L. R' B 53 Cf Matter of Wads- worth Watch Case Company and International Assn of Machinists, District #34, 21 N. L R. B. 476; Matter of Amer scan Hair it Felt Company and Jute Hair & Felt Workers Local #1G3, t etc , 15 N - L R' B 572 ; Matter o f Oppenheimer Casing Company a corporation and United Packinghouse Workers of America, Local No. 75, through Packinghouse Workers Organizing Committee, affiliated with the Congress of Industrial Organizations, 13 N. L. R. B. 500, 15 N L. R: B 671; Matter of North American Aviation, Inc and United Auto- mobile Workers of America Local No 228 (C I. 0.), 13 N L R B 1134;'Matter of Ansley Radio Corporation and Local 1221 United Electrical it Radio Workers of ,America, C. I 0., 18 N L R B 1028 - ' 41 3 602-4 2-vol 29--13 180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD At the same time, in order to protect the employees' right to bargain through representatives of their own choosing, we must afford them an opportunity to determine which organization, if any, should represent them in negotiations with the Company, for a contract for the period commencing April 1, 1941. We find that a question has arisen concerning the representation of employees of the Company which needs to be determined shortly before March 31, 1941, and that the existing contracts between the Company and the M. M. P; do not constitute a bar to such deter= mination, in the manner set forth below. IV. THE APPROPRIATE UNIT All parties agreed, and we find, that a single unit of all licensed deck officers is appropriate for the purposes of collective bargaining. Both the Company and the Association agree that captains should be excluded from the bargaining unit of licensed deck officers. The position taken by the M. M. P. at the hearing is not entirely clear but its contracts have never purported to cover captains. We be- lieve that captains should not be included in the bargaining unit. We find that all the licensed deck officers, excluding captains, em- ployed on all boats owned or operated by the Company constitute a unit appropriate for collective bargaining and, that such unit will insure to employees of the Company the full benefit of their, rights to self-organization and to collective bargaining and otherwise effec- tuate the policies of the Act. V. THE DETERMINATION OF REPRESENTATIVES We find that the question concerning representation can best be resolved by, and we'shall accordingly direct, an election by secret ballot. To allow for a period '.prior to the expiration of the present contracts within which the new bargaining representative, if one is chosen, may negotiate, we will direct that an election begin as promptly as is practicable after February 1, under the direction and supervision of the Regional Director, who shall determine in his dis- cretion the exact, time, place, and procedure for giving notices of election and for balloting, provided, however, that each boat shall be posted with a notice of election. We shall direct that those eligible to vote in the election shall be all employees within the appropriate unit who were employed on any boat' owned or operated by the Company during the,pay-roll period immediately preceding our Direction, including employees who did not work during 'such pay-roll period because they were DETROIT & CLEVELAND NAVIGATION COMPANY 181 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 Detroit & Cleveland Navigation Company, Detroit, Michigan, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the Act. 2. All the licensed deck officers, excluding captains, employed on all boats owned or operated by the Company constitute a unit ap-, propriate for the purposes of collective bargaining, within the mean- ing of Section 9 (b) of the 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 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 ordered by the Board to ascertain ' representatives for the purposes of collective bargain- ing with Detroit &.Cleveland Navigation Company, Detroit, Mich- igan, an election by secret ballot shall be conducted as promptly as is practicable after February 1, 1941, in conformity with the rules set forth in Section V above 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 licensed deck officers, excluding captains, employed on all boats owned or operated by the Company during the pay-roll period next preceding the date of this Direc- tion, including those who did not work during such pay-roll period because they were ill, on vacation, or temporarily laid off, but ex- cluding those who have since quit or been discharged for cause, to determine whether they desire to be represented by National Or- ganization of Masters, Mates and Pilots of America, A. F. of L., or by Great Lakes Officers Associations (C. I. 0.), for the purposes of collective bargaining, or by neither. MR. EDWIN S. SMITH, concurring : Since June 20, 1940, the Association has been-attempting to secure recognition as exclusive representative of the Company's licensed deck officers and it appears that the Association has been designated 182 ' DECISIONS OF NATIONAL LABOR RELATIONS BOARD by a majority of such employees. The Company has met and nego- tiated with the Association a collective agreement to go into effect if and when the Association wins an election directed by the Board. It is clear, therefore, that a question has arisen concerning the repre- sentation of the Company's licensed deck officers. I am of the opinion that the contract between the Company and ,the M. M. P., renewed March 31, 1940, cannot constitute a bar to a determination of the question concerning representation. The Com- pany has now had contractual relations with the M. M. P. for more than 4 years. To deny employees an opportunity, under these cir- cumstances, to change their bargaining representative would be to suppress that freedom of choice which the Act intended to guarantee to employees.5 In the American Hair and Felt case, Mr. Leiserson, . while concurring in the dismissal of a petition "on the ground that the petitioner did not present evidence showing that the employees wanted the C. I. 0. Local as their representative in place of the A. F. of L. Local", expressed the view that such dismissal "should be with- out prejudice to the right of the C. I. 0. Local to request an election and certification whenever it can present authorizations from a ma- jority of the employees stating that they desired the C. I. 0. Local to represent them." [Italics supplied.] Mr. Leiserson stated the fol- lowing in this connection : Neither the termination date of the working agreement' (July 1940) nor the termination date of its wage provisions (December 1939) seem to me to have, any connection with the question of representation . . . Congress has made it the duty of the Board to conduct an investigation and to certify representatives "whenever a question affecting commerce arises concerning the representation of em- ployees" (Section 9 (c^). Such 'a question arose among the em- ployees of this company early in 1938, and the Board conducted an election in April of that year. More than a year has elapsed since that election, and I can see no reason for denying the employees the right given them by Congress to change their representatives at any time that a majority of them indicate'they want another organization to represent them. It is not for the Board to create representation disputes at the expiration dates of agreements or of any provisions contained in agreements. Its duty is to investigate questions of representation whenever they arise. 5 See my separate opinions in Matter of The National Sugar Refining Co , etc., and Local 11,76, Sugar Refinery Workers, etc, 10 N L R. B 1410; Matter of American (lair and Felt Co and Jute Hair and'Felt Workers, Local #16.4, etc, 15 N L R B. 572; Matter of Utica Knitting Co. and Textile Workers Federal Labor Union No. 21500, A. F. of L., 23 N. L A B. 55 ; Matter of Eton Mfg . Co and Int'l. Union, United Automobile Workers of America, etc, 29 N . L. it. B..53. DETROIT & CLEVELAND NAVIGATION COMPANY 183, In the Utica Knitting case it was contended that a renewal contract constituted a bar to a determination of representatives. Mr. Leiser- son, concurring in the overruling of this contention and in the'direc- tion of an election, stated : It is clear that there is a real dispute as to representation here, and I am of the opinion that it is the duty of the Board to direct an election so that the dispute may be settled in accordance with the provisions of the Act. In the present case, as in the American Hair and Felt and Utica Knitting cases, I do not find the contracts a bar to resolving the dis- pute concerning representation. An election without regard to the renewal contracts between the Company and the M. M. P. will not disturb the "stability and cer- tainty in labor relations which the Act contemplated." I have pointed out in Matter of Pennsylvania Greyhound Lines and Brotherhood of Railroad Trainmen 6 that the selection by employees of a new statutory representative and the certification of that representative in proceedings under Section 9 (c) result merely in the termination by operation of law of the' outstanding collective contract or its terms where they conflict with action by the certified representative as, rep- resentative, and not in a termination of all substantive terms of the contract otherwise valid.' For the foregoing reasons, I agree that an election should be directed in this case. SAME TITLE] AMENDMENT TO DECISION February 7, 1941 On January 24, 1941, the National Labor Relations Board, herein called the Board, issued a Decision and Direction of Election in the above-entitled proceeding.' The Board hereby amends the Decision by striking from the first sentence of the sixth paragraph of Section III thereof the words "shortly before February 28, 1941," and substituting therefor the words "before March 31, 1941." 622 N. L. R B 111. 7 See also my separate opinions in Matter of Ansley Radio Corp . and Local 1221, United Electrical and Radio Workers of America, C I. 0., 18 N. L4 R. B 1028; and inL cases cited in footnote 5, supra; Cf. Matter of New England Transportation Co. and International Association of Machinists . 1 N. L. It. B. 130. 29 N. L. R. B., No. 33a.