A. & S. Transportation Co.

National Labor Relations Board - Board Decisions

Sep 7, 1956

116 N.L.R.B. 1025 (N.L.R.B. 1956)

A. & S. TRANSPORTATION CO. 1025
A. & S. Transportation Co. and Seafarers International Union
of North America, Atlantic & Gulf District, AFL-CIO, Peti-
tioner. Case No. 2-RC-83f1. September 7, 1956
DECISION AND DIRECTION OF ELECTION
-Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before Nathan Cohen, hearing offi-
cer. The hearing officer's rulings made at the hearing are free from
prejudicial error and are hereby affirmed.
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of the
Act.
2. The labor organizations involved claim to represent certain em-
ployees of the Employer.'
3. 'A question affecting commerce exists concerning the representa-
tion of employees of the Employer within the meaning of Section 9
(c) (1) and Section 2 (6) and (7) of the Act.
4. The parties agree that the appropriate unit consists of all per-
sons employed by the Employer in the operation of vessels that it owns
or operates in the movement of sludge in the Port of Newark area to
sea, who are concerned with the management, navigation, and opera-
tion of vessels and also the combination relief and dockmen in the
Employer's employ, excluding guards, watchmen, professional em-
ployees, and supervisors as defined in the Act. They disagree, how-
ever, as to the unit placement of three individuals.
At present, the Employer operates only 1 nonself-propelled barge
and employs only a single 8-man crew, including the 3 individuals in
dispute. When the barge leaves the dock, it is lashed alongside of a
tug for approximately the first half of its journey, but is hauled by the
tug on a line tow when it reaches the open sea. After the sludge is
pumped out at sea, the same procedure is followed in returning to the
dock. Loading the barge takes about 14 hours and the round trip at
sea lasts approximately the same length of time.
The captain: The Employer and the Petitioner contend that the cap-
tain of the barge should be excluded from the unit as a supervisor
within the meaning of the Act, while the Intervenor would include
him. The record shows that the captain is the master in full charge
of the vessel and the crew and that he has the authority to hire, dis-
charge, direct, and discipline employees. We find that the captain is
a supervisor and shall exclude him from the unit.
' Local 333, United Marine Division , National Maritime Union, AFL-CIO, was per-
mitted to intervene upon the basis of a showing of interest.
116 NLRB No. 125
405448--57-vol 116 06
1026 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The assistant captain:. The Employer would also exclude the "as-
sistant captain" as a supervisor. The Petitioner and the Intervenor
contend that he should be included in the unit.'
The assistant captain takes charge of the barge at regular intervals
whenever the captain is off duty, e. g., when the latter is asleep. When
he is in command, the assistant captain has the same duties as the
captain in providing for the safety of the vessel and the crew and in
running the ship. In such capacity, the assistant captain exercises in-
dependent judgment in responsibly directing the members of the crew
in the performance of their duties, including the wheelsman in steering
the barge. As the assistant captain exercises supervisory authority
for regular and substantial periods of time, we find that he is a super-
visor within the meaning of the Act and shall exclude him from the
unit.'
The clerk : The Petitioner contends that the clerk should be ex-
cluded from the unit on the alternative grounds that (a) her interests
are allied with management; (b) she is an office clerical employee; or
(c) she is a confidential employee. The Employer and the Inter-
venor would include her in the unit. The clerk, Mrs. Van Doren, is
the captain's wife and lives and works -aboard the barge. Among
her duties are the making and keeping of the records for the barge,
including loading and payroll records, as well as the ship's log. She
and the captain share responsibility for buying supplies and materials
used in the Employer's business which may total as much as $18,000.
per month. She does not perform any manual labor and does not
work in conjunction with any other crew member. In view of the
foregoing, including the fact that she is authorized to make substan-
tial purchaser for the Employer's account, and upon the record as a
whole, we find that the interests of the clerk are allied with manage-
ment and shall exclude her from the unit.4
We find that the following employees constitute a unit appropriate
for the purposes of collective bargaining within the meaning of Sec-
tion 9 (b) of the Act :
All persons employed by the Employer in the operation of vessels
that it owns or operates in the movement of sludge in the Port of,
Newark area to sea, who are concerned with the management, naviga-
tion, and operation of vessels and also the combination relief and
dockmen in the Employer's employ, excluding the captain, assistant
captain, clerk, guards, watchmen, professional employees, and super-
visors as defined in the Act.
2In the alternative , the Intervenor asserts that, if the Board finds the captain to be
a supervisor , the assistant captain should also be excluded , as his duties are identical
with those of the captain.
3 Seas 8 , Roebuck d Company , 112 NLRB 559 at 562
a Swift cC Company, 115 NLRB, 752
NON-CORROSIVE PRODUCTS COMPANY OF TEXAS 1027
5. The Employer requests, because of the high turnover rate among
the employees in the bargaining unit, that the Board direct the use
of a payroll eligibility date as close as possible to the date of the elec-
tion. However, we see no reason to depart from our usual practice as
set forth in the Direction of Election, which we believe provides for
a sufficiently current payroll eligibility date.
[Text of Direction of Election omitted from publication.]
MEMBER MURDOCK took no part in the consideration of the above
Decision and Direction of Election.
Non-Corrosive Products Company of Texas, Petitioner and Local
130, Brotherhood of Painters , Decorators and Paperhangers
of America, AFL-CIO. Case No. 39-H1t1-50. September 11,
1956
DECISION AND ORDER
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before Clifford W. Potter, hearing
officer. The hearing officer's rulings made at the hearing are free from
prejudicial error and are hereby affirmed.
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of the
Act.
2. The labor organizations involved claim to represent employees
of the Employer.
3. No question affecting commerce exists concerning the representa-
tion of employees of the Employer within the meaning of Section 9 (c)
(1) and Section 2 (6) and (7) of the Act, for the following reasons :
The Union contends that the petition is barred by a contract.between
it and the Employer, executed September 10, 1955, effective until July
19 1956, and from year to year thereafter, absent notice of termination
given by either party to the other 60 days prior to the anniversary
date. The Employer asserts that, although it did not give the required
notice to the Union and did not file the present petition until after the
automatic renewal date of the contract, proper notice of termination
was given by the Houston Chapter, Painting and Decoration Contrac-
tors of America, (hereinafter called PDCA), and, therefore, the con-
tract is not a bar to a present determination of representatives.
PDCA is a multiemployer association of painting and decorating
contractors in the Houston, Texas, area, and, although the Employer is
engaged in painting and decorating, it is not a member of the associ-
ation. For many years PDCA has bargained for its members with the
116 NLRB No. 126.