Associated Banning Co.

National Labor Relations Board - Board Decisions

Dec 16, 1954

110 N.L.R.B. 1644 (N.L.R.B. 1954)

1644 DECISIONS OF, NATIONAL LABOR RELATIONS BOARD
ASSOCIATED BANNING COMPANY; CRESCENT WHARF AND WAREHOUSE
COMPANY; JONES STEVEDORING COMPANY; MARINE TERMINALS
CORPORATION OF Los ANGELES; METROPOLITAN STEVEDORE COMPANY;
OUTER HARBOR DOCK AND WHARF COMPANY; SEABOARD STEVEDORING
CORPORATION; WEST COAST TERMINALS, INC.; SCRIM LUMBER COM-
PANY and INDEPENDENT UNION OF OPERATING ENGINEERS, PETI-
TIONER and INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL
501, AFL. Case No. 21-RC--3579. December 16, 195 .
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 Norman H. Greer, 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 Employers are engaged in commerce within the meaning
of the Act. •
2. The labor organizations involved claim to represent employees
of the Employers.'
3. A question affecting commerce exists concerning the representa-
tion of employees of the Employers within the meaning of Section 9
(c) (1) and Section 2 (6) and (7) of the Act.'
4. The firms hereinabove entitled the Employers have establish-
ments in and around the Los Angeles area, and are engaged in steve-
doring operations, with the exception of Scrim Lumber Co., which is
engaged in the import and sale of lumber. Of these 9 firms, 7 are
members of Master Contracting Stevedores Association of Southern
California, herein called the Association ; Jones Stevedoring Com-
pany and Scrim Lumber Company, herein called Jones and Scrim,
respectively, although nonmembers of the Association, are associated
with it in collective bargaining. Since its inception in 1946, the Asso-
ciation has represented its members in collective bargaining with the
Intervenor.
The Petitioner seeks a single multiemployer unit, more particularly
described below, of employees who operate loading and unloading
IThe Intervenor's motion to dismiss the petition on ilie ground that 4 of the above-
entitled firms have no employees in the unit herein sought by the Petitioner is denied for
reasons hereinafter set forth
2 The Petitioner deals with employers concerning wages and other conditions of employ-
ment and is therefore a labor organization as defined in the Act.
a The Intervenor sought to litigate during the hearing the status• of the Petitioner's
compliance with Section 9 (h) of the Act and its status as a "front" for a noncomplying
union. For reasons set forth in Coca Cola Bottling Company of Louisville, Inc., 108
NLRB 490, it is the expressed policy of the Board not to litigate such matters in repre-
sentation proceedings . Moreover , in this instance we are administratively advised that
the Petitioner is in compliance We also find without merit the Intervenor's contention
that the Petitioner is "fronting" for a noncomplying union, the Intervenor having failed
to adduce credible evidence to support its contention.
110 NLRB No. 221.
ASSOCIATED BANNING COMPANY 1645
machinery and equipment and of maintenance employees, excluding
employees engaged in manual stevedoring operations. This unit has
been the bargaining unit in the contracts negotiated by the Employers
and the Intervenor since 1946. The Employers adopt the Petitioner's
unit position. The Intervenor opposes the unit sought by the Peti-
tioner solely on the basis of its multiemployer character and contends
that separate single units, at each of the 9 establishments involved,
are alone appropriate.
Bargaining between the Association and the Intervenor is con-
ducted for the Association by a negotiating committee chosen by its
membership, and since 1946 has resulted in separate identical con-
tracts, which have been accepted by the members and by Jones and
Scrim as well. Jones and Scrim currently maintain a policy of adopt-
ing without modification whatever contracts the Association
liegotiates 4
Under these circumstances, and in view of the substantial history of
collective bargaining on a multiemployer basis by all of the 9 firms
herein, we find that the multiemployer unit sought by the Petitioner
is appropriate at this time.'
We find that all crane operators, operators of bulk loading facilities,
pump operators, truck crane drivers, oilers, maintenance engineers,
stationary engineers, carrier operators, stacker operators, and engi-
neers and helpers at the establishments of the Employers in and around
Los Angeles, California, excluding lumber workers, longshoremen,
warehousemen, sailors, mechanics, machinists, welders, gearmen. elec-
tricians, truckdrivers, sales employees, office clerical employees, watch-
men, guards, and supervisors as defined in the Act, constitute a unit
appropriate for the purposes of collective bargaining within the mean-
ing of Section 9 (b) of the Act.'
4In some of its past negotiations with the Intervenor, the Association has expressly
represented Jones. Scrim has recently expressly authorized the Association to negotiate
in its behalf, and its president testified to his belief that contracts negotiated by the As-
sociation were not subject to further negotiation by Scrim.
6 Cleveland Bunlders Supply Co., et at., 90 NLRB 923.
6 The unit , represented by the Intervenor and its predecessor for the past 18 years, ex-
cludes those employees currently and historically represented by International Longshore-
men's and Warehousemen's Union ; by International Association of Machinists , AFL ; and
by International Brotherhood of Teamsters , Chauffeurs , Warehousemen and Helpers of
America, AFL.
Although 3 of the Association members and Jones have no employees in the job cate-
gories herein sought by the Petitioner , and Scrim has only one such employee, these Em-
ployers have bargained continuously on a multlemployer basis along with the other firms
herein ; are engaged in essentially the same type of work ; and regularly "borrow" the
employees of Association members to perform the particular type of stevedoring work
for which those employees are qualified . Under these circumstances, we find without merit
the Intervenor 's contention that the 3 aforementioned Association members and Scrim
are not entitled to participate in bargaining in the multiemployer unit herein found ap-
propriate . Cf. C. C. Mayrose Planing Mill , 89 NLRB 959.
we find without merit the Intervenor 's contention that the American Potash doctrine
bars the unit . The doctrine applies only to severance situations , not herein involved.
Campbell Soup Company, 107 NLRB 160.
1646 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
5. The Petitioner contends that the eligibility of employees to vote
in the election herein directed should be determined by whether or not
within the year prior to the election they worked 600 hours or more,
or any other minimum number of hours the Board considers reason-
able under the circumstances. The Intervenor contends that all em-
ployees who worked for the Employers during the 13 weeks preceding
the hearing, regardless of the number of hours they worked, should
be eligible to vote in the election herein directed. The Employers are
neutral on the issue.
The problem thus raised concerns the selection of a yardstick which
will permit a representative number of employees having a substan-
tial interest in their employment to vote in the election. The char-
acterization of employees by the Employers as "regular," "part-time,"
"casual," and otherwise is not a reliable basis for determining their
eligibility, inasmuch as the Employers have interpreted these terms
to suit various individual employer needs. The following facts are
of value, however : (1) The current contract between the Employers
and the Intervenor provides vacations for so-called regular employees
who have been employed by one Employer for 6 months or longer ;
(2) the health and welfare sections of the contract provide that so-
called part-time employees must work at least 18 hours per month in
order to participate in the Employer's welfare fund and that, for so-
called part-time employees who work 72 hours per month or more,
the Employer is to pay into the fund the same amount that he is
required to pay for so-called regular employees; and (3) payroll
figures for the 13-week quarterly period preceding the hearing reveal
that, of the 30 employees in the unit who worked during that time,
approximately 20 percent worked full time or more, 60 percent worked
an average of 72 hours or more per month, and 73 percent worked an
average of 18 hours or more per month.
Under the above circumstances, and in further view of evidence in
the record, that a considerable number of employees work for the
Employers for only a few days at a time, and then only infrequently,
we do not find merit in the Intervenor's contention that all employees
who worked during the aforementioned 13-week period should be
found eligible to vote; such a provision would, in our opinion, en-
franchise those who have no substantial interests in their employ-
ment with these Employers. We likewise find that the establishment
of a minimum figure of 600 hours for the current year, as suggested
by the Petitioner, is inadequate, because it would disenfranchise a
large number of employees who appear to have substantial interests
in their employment.
Accordingly, and having in mind the facts that there is approxi-
mately only a 13-percent differential between the number of employees
PACIFIC MARITIME ASSOCIATION 1647
who work 72 hours or more per month, as against 18 hours or more per
month, that those who work 18 hours per month commence to receive
benefits from their employment not accorded employees who work a
lesser number of hours; that the Employers establish vacations and
other employee benefits on monthly or half-yearly bases, and that
fluctuations in the size of the unit are relatively moderate, we find that
all those employees of the Employers who have worked for the Em-
ployers an average of 18 hours per month (a total of 108 hours) or
more during the past 6 months and whose names have appeared at
least once in each month on any weekly payrolls of the Employers
during that period are entitled to vote in the election herein directed.
[Text of Direction of Election omitted from publication.]
'Cf. Seaboard Terminal and Refrigeration Company, 108 NLRB 1192, and cases cited
therein.
PACIFIC MARITIME ASSOCIATION AND ITS MEMBERS COMPANIES 1 and
SEAFARERS INTERNATIONAL UNION OF NORTH AMERICA, PACIFIC DIS-
TRICT, COMPRISING MARINE FIREMEN'S UNION, SAILORS' UNION OF
THE PACIFIC AND MARINE COOKS & STEWARDS, AFL' AND INTER-
NATIONAL LONGSHOREMEN'S AND WAREHOUSEMEN'S UNION,3 PETI-
TIONERS. Cases Nos. 20-RC-2651 and 2O-RC-2675. December 16,
1954
Decision and Direction of Election
Upon separate petitions duly filed under Section 9 (c) of the Na-
tional Labor Relations Act, a consolidated hearing was held before
Louis S. Penfield, 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 : 5
1. The Employers are engaged in commerce within the meaning of
the Act.
2. The labor organizations involved • claim to represent certain
employees of the Employers.6
3. A question affecting commerce exists concerning the representa-
tion of employees of the Employers within the meaning of Section 9
i Hereinafter referred to as PMA.
s Hereinafter referred to as SIU. The three Unions above -named as comprising the
Pacific District of the SIU, are hereinafter referred to respectively, as the MFU, SUP,
and MCS.
8 Hereinafter referred to as ILWU.
* ILWU's motion after the hearing to correct the record in certain minor respects is
hereby granted.
6ILWU's request for oral argument is hereby denied as the record adequately presents
the issues and positions of the parties.
6 National Union of Marine Cooks and Stewards , Independent , hereinafter referred to as
NUMCS, intervened herein.
110 NLRB No. 254.