A. H. Bull Steamship Co.

In the Matter of A. H. BULL : STEAMSHIP COMPANY AND BALTIMORE. INSULAR LINE, INC. and UNITED STATES MERCHANT MARINE OFFICERS ASSOCIATION, INC., FEDERAL LABOR UNION #22745, A. F. OF L. In the Matter of A. H. BULL STEAMSHIP COMPANY AND BALTIMORE- INSULAR LINE, INC. and UNITED LICENSED OFFICERS OF THE UNITED STATES OF AMERICA, UNITED STATES MERCHANT MARINE OFFICERS ASSOCIATION, NATIONAL MARINE ENGINEERS BENEFICIAL ASSOCIA- TION,, AND NATIONAL ORGANIZATION OF MASTERS, MATES' & PILOTS OF AMERICA Cases Nos. R-2885 and RE-28, respectively.Decided October 13,1941 Jurisdiction : marine shipping industry. Investigation and Certification of Representatives : existence of question: Com- pany refused to accord petitioner recognition because of contract with rival union and requested in view of conflicting claims of rival representatives that Board "certify the proper bargaining agent" ; existing contract which has been in existence for more, than one year held no bar to a determination of repre- sentatives ; Company directed to afford equal treatment to the agents of.all three labor organizations involved either by denying or granting equal number of passes to all three organizations from the date of service of Decision and Direction of Elections upon the parties until the completion of the voting there- under ; elections necessary. Units Appropriate for Collective Bargaining : separate units comprising all - licensed deck officers, including masters and mates ; and all licensed engineers. Mr. John Penello and Mr. L. M. Levin, for the Board. Mr. A. V. Ch,erbonnier and Mr. Robert A. Lilly, of New York City, for the Company. Mr. O. L. Pont f oy and Mr. 7'. II. Gato, of Baltimore, Md., for the U. L. O. Mr. S. J. Hogan and-Mr. Edward P. Trainor, of New York City, for the M. E. B. A. Mr. Joseph A. Padway by Mr. Robert A. Wilson and Mr. Murray Mac Nabb, of Washington, D. C., for the M. M: O. A. Mr. Ralph S. Clifford, of counsel to the Board. 36 N. L. R. B.,No.14.. 99 100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD DECISION AND DIRECTION OF ELECTIONS STATEMENT OF THE CASE On June 10, 1941, United States Merchant Marine Officers Associa- tion, Inc., Federal Labor Union #22745, herein called the M. M. O. A.,1 filed with the Regional Director for the Fifth Region (Baltimore, Maryland), a petition and on July 18, 1941, an amended petition alleg- ing that a question affecting commerce had arisen concerning the rep- resentation of employees of A. H. Bull Steamship Company 2 and Baltimore-Insular Line, Inc., New York City, herein jointly called the Company, and requesting an investigation and certification of representatives pursuant to. Section 9 (c) of the National Labor Re- lations Act, 49 Stat. 449, herein called the Act. On July 1, 1941, the Company filed a similar petition with the Regional Director for the Second Region (New York City). On July 23, 1941, the National Labor Relations Board, herein called the Board, acting pursuant to Section 9 (c) of the Act and Article III, Section 10 (c) (3), of National Labor Relations Board Rules and Regulations-Series 2, as amended, ordered the case in the Second Region transferred to the Fifth Region. On July 25, 1941, the Board, acting pursuant to Section 9 (c) of the Act and Article III, Section 3, of said Rules and Regulations, ordered an investigation and authorized the Regional Director to conduct it and to provide for an appropriate hearing upon due notice, and, act- ing pursuant to Article III, Section 10 (c) (2) of said Rules and Regu- lations, ordered that the cases be consolidated. On August 4, 1941, the Acting Regional Director issued a notice of hearing, copies of which were duly served upon the' Company and the M. M. O. A., and also upon United Licensed Officers of the United States of America,3 herein called 'the U. L. 0., and National Marine Engineers Beneficial Association, affiliated with the Congress of In- dustrial Organizations, herein called the M. E. B. A., labor organi- zations claiming to represent employees directly affected by the investigation.4 1Incorrectly designated in the notice of hearing as "U. S. Merchant Marine Officers Association." 2 Incorrectly designated in the notice of hearing as "A. H. Bull Steamship Co." 3 Incorrectly designated in the notice of hearing as "United Licensed Officers of the U. S. A." 4 Notice of hearing was also served upon the National Organization of Masters, Mates & Pilots, affiliated with the American Federation of Labor . This organization, however, did not appear or take any part in this proceeding. The record discloses that an agent of the Board was notified by a representative of the National Organization of Masters. Mates & Pilots that the said organization had no interest in the proceeding. A. H. BULL STEAMSHIP COMPANY 101 Pursuant to notice, a hearing was held on August 11 and 12, 1941, at Baltimore, Maryland, before J. J. Fitzpatrick, the Trial. Examiner -duly designated by the Chief Trial Examiner. The Board, the Com- pany, the U. L. 0., the M. M. O. A., and the M. E. B. A., were repre- sented by counsel or other representatives 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. 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 Ex- aminer and finds that no prejudicial errors were committed. The rulings are hereby affirmed. Pursuant to requests granted by the Board, briefs were filed by the M. E. B. A. and the M. M. O. A. on August 16 and 28, 1941, respectively, which the Board has considered. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT I. THE BUSINESS OF THE COMPANY A. H. Bull Steariiship Company and Baltimore-Insular Line, Inc., New York City, are engaged in the General shipping business, carry- ing passengers and merchandise for hire in interstate and foreign commerce. The two lines are operated as a single enterprise, having the same operating manager. The Company admits that it is engaged in interstate and foreign commerce within the meaning of the Act. We find that the Company is engaged in trade, traffic, transportation, and commerce among the several States and that its licensed per- sonnel, including both licensed deck officers and licensed engineers, are directly engaged in such trade, traffic, transportation, and commerce. II. THE ORGANIZATIONS INVOLVED United States Merchant Marine Officers Association, Inc., Federal Labor Union #22745, affiliated with the American Federation of Labor, is a labor organization admitting to membership all licensed officers employed by the Company. United Licensed Officers of the United States of America, unaffil- iated, is a labor organization admitting to membership all licensed officers employed by the Company. National Marine Engineers Beneficial Association, affiliated with the Congress of Industrial Organizations, is a labor organization admitting to membership licensed engineers employed by the Company. 102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD III. THE QUESTION CONCERNING REPRESENTATION The M. M. 0. A., claiming to represent a majority of the Com- pany's employees, has requested the Company to bargain with it. The Company contends, however, that it* "can only deal with the U. L. 0." because of a closed-shop agreement with that organization, but that it wishes the Board "to certify the proper bargaining agent". in view of the conflicting claims of membership of the labor organi- zations involved herein. The U. L. 0. claims that the existing closed-shop contract between itself and the Company, covering the licensed personnel of the Com- pany, constitutes a bar to this proceeding. During the hearing, counsel for the Board introduced a copy'of this agreement into evi- dence, but stated that he could not "swear" that it was a conformed copy. No other copy of this agreement was. introduced into evidence by any of the parties, nor was it established during the hearing whether the document introduced by counsel for the Board was a true and correct copy of the contract. The copy of the contract introduced into evidence indicated that the agreement was executed on July 20, 1940. No expiration date is provided in the body.of the copy of the contract. There is, however, a copy of a supplemental agreement dated March 17, 1941, attached to the copy of the contract introduced into evidence which provides, inter alia, that the contract "shall be and hereby is extended until September 30, 1941." In view of the fact that this contract has now expired and the petitions were filed shortly before its expiration date, we find that it constitutes no bar to this proceeding.5 From a report prepared by the Acting Regional Director it appears that both the M. M. 0. A. and the M. E. B. A. represent a substan- tial" number of employees of the Company in the unit each claims to be appropriate.° The U. L. 0. did not submit evidence of repre- 6 See Matter of Black Diamond Steamship Corporation and Marine Engineers Beneficial Association Local No. 33, 2 N. L. It. B . 241; Matter of Atlantic Footwear Company, inc. and United Shoe Workers of America of the C. I. 0., 5 N. L. R. B. 252 ; Matter of Ship- owners' Association of the Pacific Coast, et at. and International Longshoremen's and Warehousemen's Union, District No. 1, 7 N. L. It. B. 1002 ; Matter of H. Cohen & Co., Inc. and Steel Workers Organizing Committee, Local No. 2237, affiliated with the C. I. 0., 30 N. L.. R. B., No. 4. e The Acting Regional Director's report discloses that the M . M. 0. A. submitted 86 application cards dated as follows : 17 in April, 43 in May, 10 in June , 13 in July, and 2 in August 1941, and 1 undated. All of the 86 signatures affixed to the cards appear to be genuine signatures and are the names of persons whose names are on the Company's pay roll of July 1, 1941. The unit proposed by the Al. M. O. A. includes approximately 294, employees. - At the hearing 6 additional cards were submitted by the M. M. 0. A. The Al. E. B. A. submitted 30 authorization cards dated as follows : 5 in April, 1 in May, 8 in June , 8 in July, and 8 in August of 1941 , and 1 undated. All the 30 signatures affixed to the cards appear to be genuine and are the names of persons whose names are on the Company's pay roll of July 1, 1941 . The unit proposed by the M. E. B. A. includes approximately 146 employees. A. H.' BULB STEAMSHIP COMPANY, 103 sentation, relying. upon'the existing contract between- itself and the Company. We find that, a question has arisen concerning the representation of employees 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 Company and the Al. M. 0; A. contend that the appropriate unit should consist of all licensed officers, which includes the masters, mates, and engineers, employed on the Company's ships. Although the position of the U. L. 0. with respect to the.appropriate unit is not clearly disclosed by. the record, the closed-shop contract between the U. L. 0. and the Company, above mentioned,' covers all licensed officers. The M. E. B. A: contends that the licensed engineers em- ployed on the Company's ships constitute a separate appropriate bargaining unit. The record shows that the responsibilities and duties of licensed deck officers differ in kind from those of the licensed engineers. Deck officers navigate the ship,, stand deck watches, and are in general command of the ship, while the licensed engineers are responsible for the operations and maintenance of the engines and boilers of the ship. While both licensed deck officers and licensed engineers must pass examinations given by the Steamboat Inspection Service, the substance of the examinations and experience required differs greatly, due to the difference in respective duties.' We have' repeatedly held, in the light of the difference in qualifications, responsibilities,, and duties between the licensed deck officers and licensed engineers, that each constitutes a separate appropriate unit.,, We see no reason for departing from this holding herein. - We find, accordingly, that 'all licensed deck officers employed by the Company, including masters and mates, constitute a unit appro- 1 See R . S. 4131; U. S. C. Title 46 § 221; R. S. § 4439 ; U. S. C. Title 46 § 226; R. S. § 4440 ; U. S. C. Title 46 § 228 ; as to qualifications for service as a licensed deck officer, and R. S.• § 4441; U. S. C. Title 46 § 229, as to minimum requirements for licensed engineers. 8 See Matter of International Mercantile Marine Company et al and International Union of Operating Engineers, Local No. 3, 1 N. L. R. B. 384; Matter of Lykes Brothers Steam- ship Company, Inc., et at. and National Marine Engineers Beneficial Association, et at., 2 N: L. R. B. 102; Matter of Black Diamond Steamship Corporation and Marine Engineers Beneficial Association, Local No. 33, 2 N. L. R. B. 241; Matter of Panama Railroad, Com- pany and Marine Engineers Beneficial Association, 2 N. L. R . B. 290 ; Matter of Grace Line Inc., et al . and National Marine Engineers Beneficial Association , Local . No. 33, 2 N. L. R. B. 369; Matter of Tide-Water Association Oil Company and United Licensed Officers of the U. S. A. etc., 9 N. L. R. B. 823; Matter of Cities Service Oil Company and' United Licensed Officers of the U. S. A., 10 N. L. R. B.-954 ; Matter of The Texas Company and Texas Tankers Officers Association, 23 N. L. R. B., No. 110; Matter of United States Lines Company and National Organization of Masters , Mates & Pilots, etc., 28 N. L. R.-B., No. 135. 104 DECISIONS OF NATIONAL - LABOR- RELATIONS BOARD priate for the purposes of collective bargaining. We also find that, all licensed engineers employed by the Company constitute a unit appropriate for the purposes of collective bargaining, and that said units will insure to such 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. V. THE DETERMINATION OF REPRESENTATIVES We find that the question which has arisen concerning the repre-. :sentation of the Company's employees can best be resolved by means. of elections by secret ballot. We shall direct that such elections be held. The M. M. 0. A. and the M. E. B. A. request that each be issued. two passes to go on' board the Company's vessels. The record dis-, closes that at the present time there are four passes outstanding, all four of which are held by the U. L. 0. The Company does not wish to issue any passes to the M. M. 0. A. and the M. E. B. A. and desires to withdraw the passes now held by. the U. L. 0., in the, event an election is ordered by the Board. We are of the opinion that in' order for the elections to reflect the true desires of the em- ployees, the Company must afford equal treatment to the agents of all three labor organizations, either by denying passes to the U. L. 0. as well as to the M. M. 0. A. and M. E. B. A., or by granting an equal number of passes to all three organizations from the date of :service of this Decision and Direction of Elections upon the parties until the completion of the voting thereunder.9 The Company requests an immediate election, the M. M. 0. A. requests that a reasonable time be granted before the election, and the M. E. B. A. requests that one month be granted before an election. We shall direct that elections on the Company's ships shall be con- -ducted as soon as possible under the direction and supervision of the Regional Director for the Fifth Region, who shall determine, in. his discretion, the exact time and place and procedure for posting notices of election and for balloting on each ship, provided, however, that each ship shall be posted with a notice of election, a sample ballot, a list of employees. eligible to vote, and a notice of time and place where balloting will be conducted, at some port of call prior to the port where balloting is to be conducted, or, in the event that a ship is to be posted and voted in the same port without an inter- vening trip, at least 24 hours before balloting is conducted.10' ° See Matter of Isthmian Steamship Company and Marine Engineers' Beneficial Asso- ciation, 19 N. L. R. B. 16. "Hatter of United Staten Lines Company and National Organization Masters, Mates c6 Pilots, etc., 28 N. L. R . B., No. 135. A. H: BULL STEAMSHIP COMPANY: 105' The Company and the M. M. O. A. desire eligibility to be deter- mined on the basis of the pay roll of July 1, 1941, because that pay roll was submitted to the Acting Regional Director during the in- vestigation. The Al. E. B. A. contends that. eligibility should be fixed by the pay roll next preceding the Direction of Elections. We shall direct that eligibility to vote in the elections shall be determined on the basis of the pay-roll period last preceding the date of this. Direction of Elections. On July 1, 1941, there were approximately 24 licensed masters and mates and 28 licensed engineers on sick leave, leave of absence, or vacation. Both the M. M. O. A. and the M. E. B. A. desire that em- ployees on sick leave and leave of absence should not be allowed to vote. In addition, the M. E. B. A. desires that employees on vaca- tion should not be allowed to vote. The M. M. O. A. on the other hand, contends that such employees should be allowed to vote. In accordance with our usual practice, we shall include among those eligible to vote employees who did not work during the pay-roll period last preceding the date of this Direction of Elections because they were ill or on vacation and employees who were then temporarily laid off,11 subject to such other limitations and additions as are set forth in the Direction. Upon the basis of the above findings of fact and upon the entire record in the case, the Board makes the following: CONCLUSIONS or LAW 1. A question affecting commerce has arisen concerning the repre- sentation of employees of A. H Bull Steamship Company and Balti- more-Insular Line, Inc., New York City, within the meaning of .Section 9 (c) and Section 2 (6) and (7) of the Act. 2. All licensed deck officers employed by the Company, including masters and mates, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the National Labor Relations Act. 3. All licensed engineers employed by the Company 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 ELECTIONS By virtue of and pursuant to the power vested in the National! Labor Relations Board by Section 9 (c) of the National Labor Rela-- tion Act and pursuant to Article III, Section 8, of National; n See Matter of The Texas Company and Texas Tanker Officers, Association, 23; N. L. R. B., No. 110. 106 DECISIONS OF NATIONAL . LA•BOR RELATIONS BOARD 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 purpose of collective bargaining with A. H. Bull Steamship Company and Baltimore -Insular Line, Inc., New York City, elections by secret ballot shall be conducted as soon as convenient and begininng as promptly as practicable after the date of, this Direction in conformity with the instructions set forth in Section V above, for the conduct of the elections , under the ,direction and supervision of the Regional Director for the Fifth -Region , acting in this matter as agent for the National Labor Rela- tions Board , and subject to Article III, Section 9, of said Rules and Regulations , among the employees of A. H . Bull Steamship Company ,and Baltimore-Insular Line, Inc., within the two groups described below, who were employed on the vessels operated by A. H. Bull ,Steampship Company and Baltimore-Insular Line, Inc., during the pay-roll period last preceding the date of this Direction of Elections, including those who ,did not work during such period because they -were ill or on vacation or in the active military service or training of :the United- .States or temporarily laid off, but excluding those who have since quit or been discharged for cause : (a) all licensed deck ,officers employed by the Company ,- including masters and mates, to determine whether they desire to be represented for the purposes of collective bargaining by United States Merchant Marine Officers Association, Inc., Federal Labor Union #22745, affiliated with the A. F. of L., or by United Licensed Officers . of the United States of America , unaffiliated, or by neither ; (b) all licensed engineers employed by the Company to determine whether they desire to be represented for the , purposes of collective bargaining by United States Merchant Marine Officers Association , Inc., Federal Labor Union #22745, affiliated with the A. F. of L., by United Licensed Officers of the United States of America, unaffiliated, by National Marine Engineers Beneficial Association , affiliated with the Congress of Industrial Organizations , or by none of these three organizations. MR. GERARD D. REILLY took no part in the consideration of the above Decision and Direction of Elections.