American Export Lines, Inc.

National Labor Relations Board - Board Decisions

Mar 11, 1949

81 N.L.R.B. 1370 (N.L.R.B. 1949)

In the Matter of AMERICAN EXPORT LINES, INC., EMPLOYER and
AMERICAN MERCHANT MARINE STAFF OFFICERS' ASSOCIATION, AFL,
PETITIONER
Case No. 2-RC-750.Decided March 11, 1949
DECISION
AND
DIRECTION OF ELECTION
Upon a petition duly filed, a hearing was held before a hearing officer
of the National Labor Relations Board. The hearing officer's rulings
made at the hearing are free from prejudicial error and are hereby
affirmed?
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-man panel consisting of the undersigned Board
Members.*
Upon the entire record in this case, the Board finds: 2
1. The Employer is engaged in commerce within the meaning of
the National Labor Relations Act.
2. The Petitioner and the Intervenor are labor organizations claim-
ing to represent employees of the Employer.
3. The question concerning representation :
The Employer and the Intervenor executed a collective bargaining
agreement on November 17, 1947, effective until 1 year from the date
of execution, and renewable automatically each year thereafter in the
absence of written notice of intent to terminate at least 60 days prior
to the renewal date. As the instant petition was filed on October 6,
1 The Intervenor , Brotherhood of Marine Officers , Local 13212, District 50, United Mine
Workers of America, was allowed to intervene on the basis of its present contract with
the Employer
* Chairman Herzog and Members Houston and Murdock.
8 The Intervenor made a motion at the hearing to dismiss the instant petition on the
ground of an insufficient showing of interest in the requested unit The hearing officer
reserved for the Board a ruling on the motion . The motion is hereby denied as the prima
facie showing of interest is an administrative matter not subject to direct or collateral
attack Matter of Standard Printing Company, Inc ., 80 N L R B 338 The Employer's
motion to dismiss the petition on the ground that the unit described is Inappropriate, made
at the hearing and reserved for the Board , is denied for the reasons given below.
81 N. L. R. B., No. 224.
1370
AMERICAN EXPORT LINES, INC. 1371
1948, after the Mill-B date, and there was no notice by either party
to terminate the agreement, the Employer and the Intervenor contend
the contract, covering the employees herein petitioned for, is a bar
to the petition.'
The contract provides in pertinent part as follows :
Article II
The company agrees when vacancies occur necessitating the
employment of Staff Officers outside the Company's present em-
ployees, to give such employment to members of the Brotherhood
provided such members are, in the opinion of the Company,
qualified to fill such vacancies. In the event of failure or inability
of the Brotherhood to furnish satisfactory Staff Officers promptly
on the request of the Company, then the Company may secure
and employ such Staff Officers from whatever source available.
Article III
Although there is no requirement whatsoever that Staff Officers
of the company must be members of the Brotherhood of Marine
Officers, nevertheless, generally speaking, preference shall be
given, other applicable considerations being equal, to members of
the Brotherhood of Marine Officers in the selection of personnel
for promotion by the Company and in either employing new
personnel or in retaining in employment Staff Officer personnel.
In the event that at any time a reduction be made by the Company
of Staff Officers employed by it, preference shall be given to the
retention of Staff Officers who are members of the Brotherhood
of Marine Officers over Staff Officers who are not members of the
Brotherhood of Marine Officers, other considerations of personal
qualifications, ability, availability of personnel and other require-
ment (sic) being equal.
Article IV
The Company shall adhere to the policy of preferential promo-
tion from within the ranks of its employees who are members of
the Brotherhood of Marine Officers seniority shall prevail unless
in the judgment of the Company, exercised in good faith, neces-
sary qualifications for such promotions prevent the applications
(sic) of absolute seniority. A Staff Officer shall not lose seniority
• The Petitioner demanded recognition of the Employer by letter dated September 8, 1947.
X. reply was received.
1372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
because of absence due to illness or injury or layoff by the Com-
pany due to the layup of the vessel.
The clear effect of these provisions of the contract is to require
that the Employer give preferential treatment in the hire, retention,
and promotion of employees to those who are members of the Inter-
venor. These provisions go beyond the limited "union shop" per-
mitted, under certain conditions by Section 8 (a) (3) of the Act as
amended, and are thus illegal without regard to whether their execu-
tion was authorized by an election conducted under Section 9 (e) of the
Act. In these circumstances the contract cannot serve as a bar to
a present determination of representatives.'
We find that a question affecting commerce exists concerning the
representation of employees of the Employer, within the meaning of
Section 9 (c) and Section 2 (6) and (7) of the Act.
4. The appropriate unit :
The Petitioner requests a unit of all pursers, purser-pharmacist
mates, senior assistant pursers, senior assistant purser-pharmacist
mates, junior assistant pursers, junior assistant purser-pharmacist
mates and any other ratings registered under the Staff Officer's Act of
1939 on vessels owned and/or operated by American Export Lines,
Inc., whether as owner or general agent for the United States Mari-
time Commission, but excluding chief pursers.
The Employer and the Intervenor agree to this description of the
proposed unit but, in addition, they contend that employees of the cate-
gories described above who are presently awaiting assignment to a
vessel should also be included.' These temporarily unassigned em-
ployees are in the parlance of the industry referred to as "stand-bys."
They have the same ratings, qualifications, perform the same duties,
work for the same rate of pay under similar working conditions as
those the Petitioner seeks to represent. The only distinction is that
while on shore temporarily, usually not more than 3 or 4 months,6
awaiting reassignment to a vessel, they may do office work at a different
rate of pay. There is no intention that these employees shall remain
permanently ashore.
In these circumstances we are pursuaded that, as a group, the "stand-
bys" share a sufficient community of interest with those employees on
board ship to warrant their inclusion with the ship employees in a
4 See Matter of C. Hager & Sons Hinge Manufacturing ' Company , 80 N L R. B 163;
Matter of General Electric Company, 80 N. L. R. B. 169, Matter of Ball Brothers Company
of California, Inc., 80 N. L R . B. 1316
6 The Employer's motion to dismiss the petition on the ground that the unit described
is inappropriate , made at the hearing and reserved for the Board , is denied for the reasons
given below.
8 Others listed as "stand -bys" may either be on leave or sick but are classified in this
manner.
AMERICAN EXPORT LINES, INC. 1373
single unit for the purposes of collective bargaining. We are unable
to determine at this time, however, which employees included in the
specific list of "stand-bys" submitted by the Employer are appro-
priately so designated. Accordingly, we shall permit all employees of
the Employer within the job titles designated in the petition who are
classified as "stand-bys" to vote in the election hereinafter directed,
subject to challenge. If the challenges affect the result of the election
we shall resolve the individual eligibility issues in a supplemental
decision.
The following employees of the Employer constitute a unit appro-
priate for the purposes of collective bargaining within the meaning
of Section 9 (b) of the Act :
All pursers, purser-pharmacist mates, senior assistant pursers, senior
assistant purser-pharmacist mates, junior assistant pursers, junior
assistant purser-pharmacist mates, and any other ratings registered
under the Staff Officer's Act of 1939, but excluding chief pursers and all
other supervisors as defined in the Act.
DIRECTION OF ELECTION 7
As part of the investigation to ascertain representatives for the pur-
poses of collective bargaining with American Export Lines, Inc., New
York City, an election by secret ballot shall be conducted as early as
possible, but not later than 30 days from the date of this Direction,
under the direction and supervision of the Regional Director for the
Second Region and subject to Sections 203.61 and 203.62 of National
Labor Relations Board Rules and Regulations-Series 5, as amended,
among the employees in the unit found appropriate in paragraph num-
bered 4, above, who were employed during the pay-roll period imme-
diately preceding the date of this Direction of Election, including em-
ployees who did not work during said pay-roll period because they were
ill or on vacation or temporarily laid off, but excluding those employees
who have since quit or been discharged for cause and have not been
rehired or reinstated prior to the date of the election, and also exclud-
ing employees on strike who are not entitled to reinstatement, to deter-
mine whether or not they desire to be represented, for purposes of col-
lective bargaining, by American Merchant Marine Staff Officers'
Association, AFL.
7 Having failed to achieve compliance , or to initiate steps for compliance , with Section
9 (f), (g), and (h) of the Act, the Inteivenor will not be accorded a place on the ballot.
Matter of Wilson Transit Company , 75 N L R. B. 181.