Farr Spinning & Operating Co., Inc.

In the Matter Of FARR SPINNING & OPERATING COMPANY, INC. and COMMERCIAL TELEGRAPHERS ' UNION, MARINE DIVISION , A. F. OF L. Case No. B-2054.-Decided February 17, 1941 Jurisdiction : water transportation industry. Investigation and Certification of Representatives : existence of question. con- flicting claims of rival representatives; permanent employees on leave of absence held eligible to vote, election necessary. Unit Appropriate for Collective Bargaining Because of collective bargaining history and prior consent elections, the Board found that radio operators on the boats of one of the several owner- companies operated by the same boat operating Company, the unit con- tended for by the petitioning union and the owner-company involved, rather than the radio operators on all boats under the management of the operating Company, the unit sought by the intervening union, consti- tute an appropriate unit. Kirlin, Campbell, Hickox, Keating di McGrann, by Mr. E. S. Mur- phy, of New York City, for Farr. Ornstein d Silverman, by Mr. Henry H. Silverman, of New York City, for the C. T. U. Boudin, Cohn cC Glickste'in, by Mr. Irving Robert Feinberg, of New York City, for the A. C. A. Miss Charlotte Anschuetz, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE On June 11, 1940, the Commercial Telegraphers' Union, Marine Division, A. F. of L., herein called the C. T. U., filed with the Re- gional Director for the Second Region (New York City) a petition alleging that a question affecting commerce had arisen concerning the representation of employees of Farr Spinning & Operating Com- pany, Inc.,' Holyoke, Massachusetts, herein called Farr, and request- ing an investigation and certification of representatives pursuant to Section 9 (c) of the National Labor Relations Act, 49 Stat. 449, 1 Incorrectly designated in the order directing investigation and hearing as Farr Spinning and Operating Co. 29 N. L. R. B., No. 117. 726 FARR SPINNING & OPERATING COMPANY, INC. 727 herein called the Act: On August 12, 1940, the National Labor Re- lations Board, herein called the Board, acting pursuant to Section 9 (c) of the Act and Article III, Section-3, of National Labor Rela- tions 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 15, 1940, the Regional Director issued a notice of hear- ing, copies of which were duly served upon Farr, the C. T. U., and the American Communications Association, Marine Division, C. I. O., herein called the A. C. A., a labor organization claiming to repre- sent employees directly affected by the investigation. Pursuant to notice, a hearing was held on September 5 and 13, 1940, at New York City, before Shad Polier, the Trial Examiner duly designated by the Board. 'The Company, the C. T. U., aid the A. C. A. were repre- sented by counsel and participated in the hearing. Full opportunity to be heard,- to examine and cross-examine witnesses, and to intro- duce evidence bearing on the issues was afforded all parties: During the courseof 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. Pursuant to notice, a-hearing was held before the Board on Decem- ber 13, 1940, at Washington, D. C., for the purpose of oral argument. Farr, the A. C. A., and the C. T. U. were represented and participated in the argument. The C. T. U. and the A. C. A. filed briefs which have been considered by the Board. Upon the entire record in the case, the Board makes the following:. - FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY Farr Spinning & Operating Company, a Delaware corporation with its principal office located in Holyoke, Massachusetts, is engaged in the business of transporting petroleum products by water. It is the owner of 10 ocean-going vessels which transport freight between North Atlantic and Gulf Ports in the United States, and occasionally between ,ports in the United States and ports in foreign countries. These 10 boats are operated for Farr by the C. D. Mallory Co., Inc., herein called Mallory Co., which also operates 2 boats owned by Seminole Steamship Company, herein called Seminole, 4 boats owned by Oldwood Corporation, herein called Oldwood, and 1 boat owned by C. D. Mallory Corporation, herein called Mallory Corp. 728 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Mallory Co. Operates the boats of each of these corporations under agency agreements terminable at will whereby Mallory Co. is vested with, full and complete power to operate the vessels in all respects, to conduct the business of transportation of freight, to select, change, and discharge both licensed and unlicensed members of the crews, and in all other respects to handle matters of labor relations. In return, the Mallory, Co. receives management fees as provided in the agency agreements. Until April 16, 1940, when Farr acquired them, 7 of its 10 boats were owned by Malston Company, Inc., herein called Malston, and 3 were owned by Ardmore Steamship Company, Inc., herein called Ardmore; all were operated by Mallory Co. Farr concedes that it is engaged in interstate commerce within the meaning of Section 2 (6) and (7) of the Act. We find that Farr is engaged in traffic, commerce, and trans- portation among the several States and between the United States and foreign countries, and that the marine employees of Farr are directly engaged in such traffic; commerce, and transportation. II. THE ORGANIZATIONS INVOLVED Commercial Telegraphers' Union, Marine Division, is a labor organization affiliated with the American Federation of Labor ad- mitting to membership' radio operators on ships. American Communications Association, Marine Division, is a labor organization affiliated with the Congress of Industrial Organ- izations admitting to membership radio operators on ships. III. THE QUESTION CONCERNING REPRESENTATION In May or the early part of June 1940, the C. T. U. demanded recog- nition as sole collective bargaining agent for the radio operators on the 10 ships owned by Farr and operated by Mallory Co. This request was made to Fred Barrett, personnel manager of Mallory Co., who informed the C. T. U. that it would be recognized as the exclusive bar- gaining agency only, upon certification by the National Labor Relations Board. Statements by the Regional Director and the Trial Examiner were introduced in evidence showing that the C. T. U.,and the A. C. A. each represent a substantial number of employees in the unit alleged in the petition to be appropriate.2 2 The Regional Director stated that the C. T U. submitted five membership application cards and one authorization card , each of which had a genuine original signature, and named an employee appearing on Farr's pay roll for June 11 , 1940. The Trial Examiner stated that the A C. A. submitted four applications for membership , each of which had a genuine original signature and named an employee on the same pay roll. FARR SPINNING & OPERATING COMPANY, INC. 729 We find that a question has arisen concerning the representation of ,employees of Farr. - IV. THE APPROPRIATE UNIT The C. T. U. and Farr agree that the appropriate unit should con- sist of all radio operators on the 10 boats owned by Farr. The A. C. A. contends, however, that the appropriate unit should include all radio operators on all the boats operated by the Mallory Co., a total of 17.3 The C. T. U. asserts that the previous elections conducted. among the radio operators on the vessels here involved and the history of col- lective bargaining, with respect to the radio operators with which we are here concerned and for other types of employees on the vessels here involved, conclusively demonstrates the appropriateness of the unit for which it contends. The C. T. U. and the A. C. A. have both participated in prior elections among radio operators employed on vessels operated by Mallory Co. 'In January 1939 the American Radio Telegraphists' Association, herein called the A. R. T. A., the predecessor of the A. C. A., filed separate petitions requesting an investigation and certification of representatives of the radio operators employed on boats owned by Ardmore and by Malston, and the C. T. U. filed similar petitions involving radio operators employed on vessels owned by Mallory Corp. and by Seminole. At the time the boats owned by each of these companies were being operated by Mallory Co. Pur- suant to the consent of the A. R. T. A., the C. T. U., and each of the - boat owning companies, elections were held - among the employees of each company, and the A. R. T. A. and the C. T. U. appeared on each ballot. The elections involving Mallory Corp. and Ardmore did not result in the selection of any representative, an equal number of votes being cast for each union. The Seminole election was won by the C. T. U., and a contract between the C. T. U. and Seminole was signed. , The Malston election was won by the A. R. T. A., but resulted in no contract.4 It is undisputed that Mallory Co. has never signed, as the employer, any labor contract for ships being operated by it. All collective bargaining contracts covering employees of any of the boat-owning companies here involved have been executed between the separate 8 On December 7, 1940, the A. C. A filed a petition requesting an investigation and certification of representatives for the approximately 25 radio telegraphers and radio operators employed on vessels operated by Mallory Co Apparently the A C. A. is in- eluding within this unit personnel on eight dry cargo vessels owned by Mallory Co. but operated by Mallory Transport Lines, Inc. No action has been taken on this petition. S After the election, the A C. A. petitioned the Board on October 13, 1939, to substitute its name for that of the A. R. T. A. as the certified representative. This was denied bye the Board on February 28, 1940. ' 730 DECISIONS OF NATIONAL LABOR RELATIONS BOARD boat-owning company and a union. Farr has three contracts with maritime unions covering appropriate personnel on the boats owned by it. It negotiated a contract with the National Organization Masters , Mates & Pilots of America ,5 herein called M. M. P., as an - original party, and, orally renewed contracts originally signed by Ardmore and Malston with the National Marine Engineers' Bene- ficial Association," herein called M. E. B. A., and with the National Maritime, Union,7 herein called N. M. U. Similar contracts are in existence between N. M. U., M. E. B. A., and M. M. P., and Seminole, Mallory Corp., and Oldwood, covering personnel on the boats owned by each of these companies. In addition, Seminole, as mentioned above, possessed at the time of the hearing the only existent con- tract with either of the two Unions involved in this proceeding." The A. C. A. takes the position that despite the collective bargain- ing history, the logical appropriate unit here consists of all boats operated by Mallory Co., contending that ownership of the vessels is technical only, and that full powers of management and control of the boats is in the operating company. Farr stipulated that Mallory Co. "was vested with full power and complete power to operate said vessels, [the 10 boats involved in this proceeding], including the power to conduct the business of transportation of freight and the power to select, change and dis- charge the ' licensed and unlicensed personnel of the crews of the aforesaid vessels, and in all other respects to handle matters of labor relations affecting said crews." There is also evidence that a majority of the principal officers and directors of all the corporations are the same. We find, however, on the basis of the collective bargaining history, the contracts with other labor organizations involving other employees of Farr, and the prior consent elections, that the appropriate unit should not consist of all boats operated by Mallory Co.' The indi- vidual ownership bargaining units have been established and main- tained for a period of many years. We find that all radio telegra- phers and radio operators on the ships owned by Farr constitute a unit appropriate for the purposes of collective bargaining, and that said unit will insure to employees of Farr the full benefit of their rights to self-organization and to collective bargaining and other- wise effectuate the policies of the Act. 6 Affiliated with the American Federation of Labor 8 Affiliated with the Congress of Industrial Organizations 4 Affiliated with the Congress of Industrial Organizations 8 This contract provided that It continue in effect until December 31, 1940, and there- after from year to year terminable at 30 days ' notice prior to the end of any year period. ' Cf Matter of United States Lines Company and National Organization Masters, Mates t Pilots, 28 N L ' R. B. 896. FARR SPINNING & OPERATING COMPANY, INC. 731 V. THE DETERMINATION OF REPRESENTATIVES We find that the question which has arisen concerning representa- tion can best be resolved by means of an election by secret ballot. The C. T. U. and the A. C. A. agree that only permanent radio telegraphers and radio operators who are employed upon boats actually in operation on the eligibility date should be allowed to vote. The A. C. A. contends, however, that the eligibility date should be set as of the date of the hearing, and that employees on vacation but not those on leave of absence without pay should be allowed to' vote. The C. T. U. and Farr urge that eligibility to participate in the election should be based upon a current date, and that all permanent employees on leave of absence should be en= titled to vote as well as those on vacation. As to the eligibility date, we shall follow our, usual practice in maritime cases as to the date of posting and balloting. Since Mallory Co.10 explained that leaves of absence were granted for reasonable lengths of time only, and that during this time these employees were considered permanent while persons taking their places were considered tem- porary employees, we shall permit permanent employees on leave to vote. We shall direct that an election be held as soon as possible under the direction and supervision of the Regional Director for the Second Region who shall determine in her discretion the exact time, place, and procedure for posting notices of election and for balloting on each vessel, provided, however,. that each vessel be posted with a notice of election, a sample ballot, a list of employees eligible to vote, and a notice of time and place when balloting will be con- ducted at least 48 hours in advance of said balloting. Those eligi- ble to vote will be all permanent radio telegraphers and operators who are employed on vessels owned by Farr and operated by Mal- lory Co. at the time the notice of election is posted and who are still so employed on vessels actually in operation at the time of the said posting and balloting, including persons permanently employed but on vacation or leave of absence, and excluding persons temporarily employed for the purpose of relieving permanent employees. 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 Farr Spinning & Operating Company, 10 As stated above , Mallory Co has charge of all personnel problems concerning these boats. 732 DECISIONS OF NATIONAL LABOR RELATIONS -BOARD Inc., Holyoke, Massachusetts, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the Act. 2. All radio telegraphers and radio operators on the ships owned by Farr Spinning & Operating Company, Inc., and operated by C. D. Mallory Co., Inc., constitute a unit appropriate for the pur- poses 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 Re- lations 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 authorized by the Board to ascertain representatives for the purposes of collective bargain- ing with Farr Spinning & Operating Company, I! ic., Holyoke, Massachusetts, an election by secret ballot shall be conducted as soon as convenient, and beginning as promptly as practicable after the date of this Direction of Election in conformity with the rules set forth hereinabove for the conduct of the election, under the direction and supervision of the Regional Director for the Second Region,, acting in the matter as agent for the National Labor Relations Board, and subject to Article III, Section 9, of said Rules and Regulations, among all permanent radio telegraphers and radio operators who are employed on vessels owned by Farr Spinning & Operating Company, Inc., and operated by, C. D . Mallory Co ., Inc., at the time the notice of election is posted and who are still so employed on vessels actually in operation at the time of said posting and ballot- ing, including persons permanently employed but on vacation or leave of absence , and excluding persons temporarily employed for the purpose of relieving permanent employees, to determine whether they desire to be represented for the purposes of collective bargain- ing by Commercial Telegraphers' Union, Marine Division , affiliated with the American Federation of Labor, by American Communica- tions Association, Marine Division , affiliated with the Congress of Industrial Organizations , or by neither. MR . EDWIN S. SMITH, dissenting : I dissent from the holding of the majority of the Board with respect to the appropriate bargaining unit. This case presents the situation where one company, Mallory Co., is vested with and exercises full power and control over the opera- tions and personnel of boats owned by a second company, Farr. FARR SPINNING & OPERATING COMPANY, INC. 733 Under the terms of the agreement between the companies complete management of these vessels is in Mallory Co., which has full power to "select, change and discharge the licensed and unlicensed personnel of the crews" of these vessels, and in all other respects handles "mat- ters of labor relations affecting said crews." It pays all the,oper- ating expenses, wages, and other items and controls all monies taken in through the operation of the vessels, accounting but once a month to Farr. Mallory Co. operates in a similar manner the vessels of 3 other corporations, Mallory. Corp., Seminole, and Oldwood, which, including Farr's vessels, makes a total of 17, all of which are oper- ated as one unit. Employees are transfered from one ship to another, without regard to ownership; their wages, hours,'and working con- ditions are similar. The record, moreover, indicates that all four corporations, as well as Mallory Co., have interlocking directorates; that F. Al. Bynum is vice president of them all; and that they all have the same personnel director, Fred Barrett. It is apparent that the interests of the radio operators on all 17 boats are the same, and that, whichever company owns the boat upon which any employee works, his representative must necessarily deal with the same-man- agement representatives in collective bargaining negotiations. The majority of the Board rested its determination of the appro- priate unit on the history of collective bargaining. While that is a factor entitled to weight in the determination of the appropriate bargaining unit it should not be relied upon to the exclusion of other factors." This is particularly true in a situation such as here pre- sented which permits the employer to alter the unit basis of collec- tive bargaining with his employees without any essential change in operations.12 Because of this power resting in the employer the units agreed upon in the consent elections have not remained fixed. Thus, although the radio operators employed on boats owned by Malston and the radio operators employed on boats owned by Ardmore were established as separate appropriate units by the consent elections, yet with the merger of Malston and Ardmore into Farr, an occurrence which did not affect the operation of the boats and with which the employees were not concerned, the employer, under the majority holding, created a new unit, based upon boat ownership, composed of the employees formerly in two separate units. In my opinion the policies of the Act will not be served if employers may, without u Based upon past collective bargaining on a boat ownership unit basis there was only one contract consummated covering radio operators between the C T U and Seminole. Since that contract by its terms was terminable as of December 31, 1940, it is now no bar to the establishment of an appropriate unit consisting of all the radio operators employed- on vessels operated by Mallory Co "For the purposes of this discussion I assume any such change is dictated by sound business considerations and not by a desire to alter the collective bargaining unit as such. 734 DECISIONS OF NATIONAL LABOR RELATIONS BOARD changing their operations and for reasons wholly unrelated to the question of collective bargaining, after the unit basis for collective bargaining with their employees. In brief, where, as here, the operation of the boats is in the hands of a single' employer, and the interests of radio operators on all such boats are identical, I am of the opinion that the effectuation of the policies of the Act will best be served if the radio operators on all boats, regardless of their ownership, are included within the appro- priate unit '13 and I would so find.14 '3 In Matter of United States Lines Company and National Organization, Masters, Mates, & Pilots, 28 N. L. R B 896, the Board found that an appropriate unit consisted of the employees of the operating company rather than the boat owning companies 14 In N. L R. B. v. Christian A Lund, doing business as C, A Lund Company and Northland Ski Manufacturing Company, 103 F. ( 2d) 815 (C. C. A 8), enf'g, and re- manding as to other issues , Matter of C. A. Lund Company and Novelty Workers Union, Local 1866 (A. F. of L ), successor, 6 N. L it. B 423, the Circuit Court of Appeals for the Eighth Circuit stated, "The inference to be drawn troni these decisions of the Supreme Court and from the language of the statute is that, within the meaning of the Act, who- ever as or in the capacity of an employer controls the employer-employee relations in an integrated industiy is the employer So inteipreted it can make no difference in determin- ingwhat , constitutes an appropriate unit for collectne bargaining whether there be two employers of one group of employees or one employer of two groups of emplyees Either situation hiving been established the question of appropi lateness depends upon other factors such as unity of interest , common control , dependent operation, sameness in character of work and unity of labor relations ." See also Matter of Ship Owners Association of Pacific Coast, et at and International Longshoremen's and Warehousemen's Union, District No 1, 7 N L. R. B. 1002.