Bethlehem Transport Corp.

National Labor Relations Board - Board Decisions

May 11, 1945

61 N.L.R.B. 1110 (N.L.R.B. 1945)

In the Matter of BETHLEHEM TRANSPORTATION CORPORATION and NA-
TIONAL MARITIME UNION Or AMERICA
Case No. 8-C-1693.-Decided May 11, 1915
DECISION
AND
ORDER
On December 29, 1944, the Trial Examiner issued his Intermediate
Report in the above -entitled proceeding , finding that the respondent
had not engaged in the unfair labor practices alleged in the com-
plaint, and recommending that the complaint be dismissed . There-
after, National Maritime Union of America and counsel for the
Board filed exceptions to the Intermediate Report and briefs in sup-
port of their exceptions ; and the respondent filed a brief. Oral
argument was held before the Board at Washington , D. C., on May
1, 1945, and was participated in by counsel for the respondent and
counsel for the National Maritime Union of America.
The Board has reviewed the rulings of the Trial Examiner made
at the hearing , and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the In-
termediate Report, the exceptions and briefs, and the entire record,
and hereby adopts the findings, conclusions , and recommendations
of the Trial Examiner.
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the complaint herein against Bethlehem
'Transportation Corporation , Cleveland , Ohio, be, and it hereby is,
dismissed.
MR. JOHN M. HouSTON took no part in the consideration of the
above Decision and Order.
INTERMEDIATE REPORT
Mr. Frank L. Danello, for the Board
Cravath, Swaine and Moose , by^M?. John H. Morse, of New York City, for
the respondent.
61 N. L R. B No. 185.
1110
BETHLEHEM TRANSPORTATION CORPORATION 1111
Mr. William L. Standard, by Mr. Herman Rosenfeld, of New York City, and
Mr. Frank Jones, of Cleveland, Ohio, for the Union.
STATEMENT OF THE CASE
Upon a charge duly filed on August 9, 1944, by National Maritime Union of
America, herein called the Union, the National Labor Relations Board, herein
called the Board, by the Regional Director for the Eighth Region (Cleveland,
Ohio), issued its complaint dated November 13, 1944, against Bethlehem Trans-
portation Corporation, herein called the respondent, alleging that the respondent
had engaged in, and was engaging in unfair labor practices within the meaning
of Section S (1) and (5) and Section 2 (6) and (7) of the National Labor Rela-
tions Act, 49 Stat..449, herein called the Act. Copies of the complaint and notice
of hearing thereon were duly served upon the respondent and the Union.
With respect to the unfair labor practices, the complaint alleged in sub-
stance that: (1) on or about November 13, 1943, and on or about May 18, 1944,
and at all times thereafter, the respondent refused and continues to refuse to
bargain collectively with the Union as the exclusive representative of its em-
ployees in an appropriate unit consisting of the unlicensed personnel on all
the steamships operated by the respondent on the Great Lakes, although the
Union since November 13, 1943, has been the exclusive representative of all
the employees in said unit; and (2j by said act, the respondent has interfered
with, restrained, and coerced its employees in the exercise of the rights guar-
anteed in Section 7 of the Act.
On November 2S, 1944, the respondent filed its answer wherein it denied
that it had refused to bargain with the Union or that the Union represented a
majority of the employees in or had requested the respondent to bargain within
the unit alleged in the complaint, but it admitted the receipt from the 'Union
of a letter dated November 4, 1943,' and a telegram 2 about May 18, 1944, copies
of which it attached to the answer. The answer admitted that the respondent
had informed the Union that it did not "feel that it would be warranted in
dealing with the Union as the exclusive representative of the unlicensed per-
sonnel" on the two newly acquit'ed steamships "unless and until" the Union
was certified as such representative by the Board
Pursuant to notice a hearing was held at Cleveland, Ohio, on November 30,
1944, before J. J. Fitzpatrick, the undersigned Trial Examiner duly designated
by the Chief Trial Examiner' The Board, the respondent, and the Union were
' The letter stated that the Union , as a result of a consent election held in 1941 , had b-en
and was the exclusive bargaining agent of all unlicensed personnel employed by the re-
spondent on thirteen vessels it was then operating ; that recently the respondent had come
into possession of and was operating two new steamships , "the unlicensed employees of
which do not as yet come within the bargaining unit. " It suggested that the Union and
the respondent agree tb include the unlicensed personnel aboard the two additional vessels
in the bargaining unit.
2 The telegram is as follows
BETHLEHEM TRANSPORTATION CORP
2600 TERMINAL TOWER CLEVE
ON NOVEMBER THIRTEENTH LAST YEAR THE NATIONAL MARITIME
UNION FILED PROOF OF MAJORITY REPRESENTATION AMONG UNLI-
CENSED CREWS OF YOUR TWO NEW VESSELS STEELTON AND LEHIGH.
WE REQUESTED THAT YOU AGREE TO INCLUSION OF THESE TWO VES-
SELS IN THE UNIT ESTABLISHED BY NLRB ELECTION IN NINETEEN
FORTY ONE. WE AGAIN MAKE SUCH REQUEST FAILING TO HEAR FROM
YOU IN REASONABLE LENGTH OF TIME MAY MAKE IT NECESSARY FOR
UNION TO FILE CHARGE WITH NLRB FOR REFUSAL TO BARGAIN. WE
HOPE THAT THIS STEP WILL NOT BE NECESSARY
FRANK JONES, AGENT NATIONAL MARITIME UNION.
1112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
represented by counsel All participated in the hearing and were granted full
opportunity to be heard, to examine and cross-examine witnesses and to introduce
evidence bearing upon the issues At the conclusion of the Board's case the
respondent moved to dismiss the complaint for failure of proof. The motion was
denied At the conclusion of the hearing, the respondent again moved to dis-
miss the complaint on the grounds that no substantial evidence had been adduced
to support the allegations in the complaint that (1) the unlicensed personnel em-
ployed on all the steamships operated by the respondent constituted an ap-
propriate unit; (2) that the Union on November 13, 1943, had been designated
by a majority of the employees in the alleged appropriate unit, and (3) that
since November 13, 1943, the Union has been the representative of a majority
of the employees within the alleged appropriate unit The motion was taken
under advisement. The motion to dismiss is now granted as will hereinafter
appear. At the conclusion of the hearing Board's counsel moved to conform the
pleadings to the proot in foi ina] matters The motion was granted over the
objection of the respondent's counsel All 'parties waived oral aigument but
were given until December 12, 1944, to file briefs with the undersigned. Briefs
have been received from the respondent, Boai d's counsel, and the Union
Upon the entire record thus made and from his observation of the witnesses,
the undersigned makes the following:
FINDINGS OF FACT
I THE BUSINESS OF THE RESPONDENT
The respondent, the Bethlehem Transportation Corporation, is a Delaware
corporation, engaged in the transportation of iron ore, coal, limestone, and grain
in substantial quantities on the Great Lakes and connecting tributary waters
wheie it operates 15 steamships.'
Ii THE ORGANIZATION INVOLVED
The National Maritime Union of America, affiliated with the Congress of In-
dustrial Organizations, is a labor organization admitting to membership employees
of the respondent.
III THE ALLEGED UNFAIR LABOR PRACTICES
A The alleged i efusal to bargain
1. The issues
'Llie complaint alleges in substance that the i espondent on or about November.
13, 1943, and on or about May 18, 1944 , and at all times thereafter refused to
bargain collectively with the Union as the exclusive ' bargaining representative
of the unlicensed personnel employed on all the respondent's steamships
The respondent 's answer denies the appropriateness of the unit alleged in the
complaint,' and on information and belief denies that the Union represents a
majority of the employees included therein It alleges in effect that it will not
deal with the Union as the exclus i ve representative of the unlicensed personnel
employed on its two additional vessels, which the Union now seeks to include
in the established unit, until the Union is certified by the Board as such repre-
sentative
3 The above finding is based upon a stipulation of the parties.
BETHLEHEM TRANSPORTATION CORPORATION 1113
2. Events giving rise to the issues
In the fall of 1941, the respondent was operating 13 vessels on the Great Lakes
named as follows: Bethlehem, Saucon, Lebanon, Lackawanna, Maiyland, Lehigh,
Cambria, Steelton, William H. Donner, Leonard C. Hanna, Powell Stackhouse,
Daniel J Morrell, and Edward Y Towsend.
On November 6th of that year the Union tiled a petition for investigation and
certification of representatives pursuant to Section !) (c) of the Act wherein it
alleged that the appropriate bargaining unit consisted of the unlicensed personnel
employed by the respondent on the above-described vessels which were specifically
named in the petition On November 12, 1941, the respondent and the Union
signed 'run agreement for a consent election wherein it was agreed that the appro-
priate unit should consist of the unlicensed personnel employed on the 13 named
vessels This agreement was approved by the Regional Director, who certified
to the parties on December 16, 1941, following an election in said unit that the
Union had been designated by a majority of the employees and that nn accordance
with the terms of the consent election agreement, the respondent hlid agreed to
bargain with the Union as the exclusive representative of the employees tit said
described unit. Since the above certification the respondent has recognized and
bargained with the Union as the exclusive representative of the emplo.Nees in
the agreed unit, although the record is not clear whether they operated under a
contract tip to the summer of 1943 However, at that time the Union and the
respondent began negotiations relative to the ternis of ;i wiitten contract concern-
ing the employees on the 13 named steamships. The negotiators could not agree
on certain provisions and the dispute went to the War Labor Board, and pursuant
to its Directive Order dated June 9, 1944, a contract was signed by the Union
and the respondent on August 1, 1944, covering the unlicensed employees on the
13 steamships. This contract is effective to January 31, 1945, and from year to
year thereafter unless notice be given by either party not less than 30 days piior
to January 31, 1945, or January 31 of any J ear thereafter, of a desire to terminate,
modify or amend the agreement.
In the meantime, in the fall of 1943, before this contract was signed and while
negotiations were in progress, the respondent began the operation of two ste;nn-
ships turned over to it by the United States Maritime Commission The new
vessels were mimed the Leh iqh and the Steelton 4
On November 4, 1943, Frank Jones, the Cleveland port agent for the Union,
wrote the respondent the letter referred to tit the iespondeut's answer" and
suggested that the respondent and the Union agree to include the unlicensed
personnel employed on the two additional vessels within the bargaining unit
Not hearing from the respondent relative to this suggestion, Jones again wrote
to the respondent on November 13, 1943, as follows :
NOVEMBER 13, 1943.
BETHLEHEM TRANSPORTATION CORD,
2600 Teiannal Tower Bldq., Cleveland, Ohio
GENTLEMEN : On November 4th the undersigned sent you a letter requesting
that the corporation and the Union jointly agree to include the two new
vessels acquired by your company, and named the S S. Lehigh and the
S. S Steelton, in the collective bargaining unit.
To date we hate heard no void from you on this matter
We have been designated the collective bargaining agent by the majority
of the unlicensed personnel employed aboard the above named two vessels
4 The old Lehigh and Steelton , operated by the respondent, had previously been renamed,
respectively, the Johnstown and the Cornwall
5 See footnote 1, supra
1114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and in view of your choosing to ignore our letter on the subject, we are
accordingly filing a petition for certification with the National Labor Rela-
tions Board. You will undoubtedly hear from then shortly
The same day the Union filed a petition for investigation and certification of
representatives wherein it alleged that the appropriate unit consisted of "all
unlicensed personnel on the Company's vessels known as and named the steam-
ships Lehigh and Steelton " The petition further recited : "The petitioning union
is the recognized bargaining agent for all other vessels of the Company's Lake
Fleet to the extent of 13 vessels There is at present a case before the National
War Labor Board between the petitioning union and the Company for a contract
covering all the vessels of the Company's fleet with the exception of these two
vessels namely, S. S. Lehigh and S. S. Steelton, which were acquired by the
Company after the case went to the War Labor Board." The petition also referred
to the fact that in early November 1943, the Union had requested the respondent
to include the unlicensed employees on the two additional vessels within the
established bargaining unit but that the respondent had made no reply to the
request.
In the hearing before the War Labor Board, which involved several Great
Lakes transportation companies in addition to the respondent, the Union con-
tended that it was common practice for the respondent, as well as the other com-
panies involved, to operate the steamships as a fleet with no division either
administratively or functionally among the vessels ; that there was no valid
reason why the respondent should not deal with the Union as the exclusive
representative of the unlicensed personnel on all the 15 vessels and, in effect,
asked the War Labor Board to so direct the respondent. On the other hand, the
respondent argued that the unit had already been established by the National
Labor Relations Board through the certification emanating from its Regional
Office ; that the War Labor Board did not have the authority to change the unit
and that until and unless the National Labor Relations Board enlarged or changed
the unit, the respondent would continue to deal with the Union as the exclusive
representative only of the unlicensed employees on the 13 vessels. The War
Labor Board refused to change the existing unit but directed the respondent to
sign a contract with the Union covering the employees on the original 13 steam-
ships As heretofore found such contract was executed as of August 1, 1944.
In the meanwhile in the spring of 1944, before the Directive Order of the War
Labor Board had been issued, the Union secured permission from the Regional
Director of the Board, to withdraw its petition for representation wherein it
alleged that an appropriate unit would consist of the unlicensed employees of
the two newly acquired boats, and about May 18, 1944, sent to the respondent
the wire heretofore set forth 9 wherein it claimed the Union had "filed proof of
majority representation" in the unlicensed employees of the 2 new vessels' and
again requested that the respondent agree "to inclusion of the new vessels in the
unit established by N. L. R. B. election in 1941", and suggested that a charge
of refusal to bargain might be filed with the Board if the request was not granted.
On May 29th, the respondent replied to this telegram by letter, stating that it
had been advised by the Board that the Union had withdrawn its petition for
certification as the exclusive representative of the unlicensed employees on the
6 See footnote 2, supra.
T No showing of representation by the Union among the approximately 50 unlicensed em-
ployees on the 2 new steamships was made at the hearing . The Union relied on a cross-
check of the unlicensed employees on the 13 vessels made in August 1944, by the Union
and the respondent . The check showed that'of a total of 352 unlicensed employees on
those boats 221 were members of the Union.
BETHLEHEM TRANSPORTATION CORPORATION 1115
two new vessels and that because of that fact, the respondent did not understand
"upon what basis" the Union claimed to represent such unlicensed personnel.
The letter concluded :
In any case, we do not feel that we should be warranted in dealing with such
union as the exclusive collective bargaining representative of such unlicensed
personnel unless and until it shall be duly certified as such by the National
Labor Relations Board.
Oa August 9, 1944, the Union filed a charge that the respondent had refused
to bargain with it as the representative of the unlicensed employees "aboard the
S S Lehigh and the S S. Steelton.". Having been advised of that fact, the re-
spondent, on August 24th in a letter to the Regional Director reiterated its
previous position relative to its willingness to deal with the Union as the exclu-
sive bargaining representative in the Unit covering the unlicensed personnel on
the 13 vessels pursuant to the 1941 agreement. The letter called attention to the
Union's petition filed the previous fall alleging that the unlicensed personnel of
the two new vessels constituted an appropriate unit, and the conferences between
the Company and the Union and the Board representatives resulting therefrom
wherein respondent explained that because of the short period remaining before
the season closed, it would be impractical to arrange for the holding of an election
in that unit before the fall lay-offs ; and that the following spring the respondent
had been notified by the Regional Office that the union petition had been with-
drawn. On October 12, 1944, the respondent in response to an inquiry from a
Regional Office Field Examiner wrote that it had no infsrmation as to whether
or not the Union represented a majority of the unlicensed personnel employed
on the two additional vessels, or that the Union was then claiming such majority;
that under the circumstances, the respondent took no position as to whether the
Union (lid or did not represent a majority of such employees; that the only exist-
ing appropriate unit was the one established by agreement in 1941 and approved
by the Director ; and that if the Union demonstrated in an election held under
Board auspices that it represented a majority of the unlicensed personnel on the
two new vessels the respondent was prepared and willing to include such em-
ployees in the existing unit.
Conclusions
It is obvious from the record in its entirety that the real issue in dispute is the
question of an appropriate unit. The respondent is and has been bargaining with
the Union as the exclusive representative of the employees in the established
unit consisting of the. unlicensed employees on the 13 named vessels. The po-
sition of counsel for the Board in effect is that an appropriate unit may consist
of all unlicensed personnel employed on an entire fleet of vessels operated by such
a company ; that the 13 vessels named in the agreed unit made up the respondent's
entire fleet of vessels in 1941; and that the respondent having since enlarged its
fleet by the addition of 2 vessels it should be required to include the employees
on the new boats in the unit and bargain on a fleet-wide basis. The respondent
takes the position that the Board having in effect approved as appropriate the
unit consisting of the employees on the original 13 vessels, it will not bargain
with the Union in a fleet-wide unit until and unless in a representation proceed-
ing the Board finds such larger unit appropriate and certifies the Union as the
exclusive bargaining agency for the employees therein. I .
It is the opinion of the undersigned that in the circumstances as they appear
in this case the respondent is entitled to have the issue, of the appropriateness
of a larger unit resolved by a representation proceeding before the Board. The
1116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
record will not sustain a finding that in 1941 the parties had in mind an ex-
panding fleet-wade unit When the respondent began operating the 2 additional
vessels the Union admitted the unlicensed personnel thereon were not in the
bargaining unit then established and sought to have the respondent agree to
include them as part of the appropriate unit Failing in this the Union filed a
petition for investigation and certification of representatives alleging that the
unlicensed employees on the two new boats constituted an appropriate unit It
later withdrew this petition and sought, also without success, to have the War
Labor Board enlarge the original unit Even the charge upon which the com-
plaint herein is based does not allege that the respondent refused to bargain in
a 15 vessel unit, but charges that it refused to bargain for the employees only
aboard the 2 additional vessels.
It cannot be said that the respondent's position herein, which has been con-
sistent throughout, reflects had faith ; or that it is a rejection of the principle
of collective bargaining Under the circumstances the respondent was not re-
quired to decide the issue of the unit at its peril The Act provides the repre-
sentation procedure for determination of the unit question This procedure was
available to the Union, but not to the respondent as there was no other union
involved. The Union chose not to use the representation procedure Until the
appropriateness of the fleet-wide unit is resolved and established the respondent's
refusal to recognize or deal with the Union as the exclusive representative of
the employees in that unit does not constitute an unlawful refusal to bargain
within the meaning of the Act In view of the foregoing, it is unnecessary to
make any determination in this Intermediate Report as to the appropriate bar-
gaining unit or as to representation by the Union of a majority within such
unit.'
It is therefore found that the respondent has not refused to bargain collectively
with the Union as the exclusive repiesentative of the unlicensed personnel on
its present fleet of 15 vessels, and has not interfered with, restiained or coerced
its employees in the exercise of the i ights guaranteed in Section 7 of the Act s
Upon the basis of the foregoing findings of fact and upon the entire record in
the case, the undersigned makes the following:
CONCT.USIONS O L.\ w'
1 The operations of the respondent, Bethlehem Transportation Corporation,
Cleveland, Ohio, occur in commerce within the meaning of Section 2 (6) of the
Act.
2. National Maritime Union of America is a labor oi•gtuuzation within the
meaning of Section 2 (5) of the Act
8'I'here is no question but what a fleet-wide unit would be found appropriate under numer-
ous Board decisions and the August 1, 1944, check of union members on the 13 vessels
referred to in footnote 7, supra, is probably adequate to show a fleet-wide majority as of
that time because there were only 402 unlicensed employees aboard all 15 vessels waiving
the question as to whether an overall majority in August is adequate to prove majority
the previous May and November when the alleged refusal to bargain took place, such ma-
jority, showing in no event discloses the desires of the employees particularly affected-the
unhi-ensed employees aboard the Lehigh and the Steelton Neither these ships nor the.
employees thereon were in contemplation when the unit was established in 1941 Where
a new plant and new employees are involved, even where there is an existing contract and
no dispute as to the unit, the Board requires the eniplovees not in existence at the time
the contract was executed to decide the issue as to their representation (In re Menasha
lVooden ]Pare Corporation, etc , 48 N 1. It h -145 In re The Ptosperity Conipanil, Inc,
etc , 55 N. L It B 350 )
9 Cf In re Bonafide Mills, Inc . 38 N 1, It R 660 In re Spicer Manufactui nig Cor-
poration, etc, 51 N L R B 679 In re Faiecr Company. Inc , etc , 59 N L R. B. 547,
BETHLEHEM TRANSPORTATION CORPORATION 1117
3. The respondent has not engaged in unfair labor practices within the mean-
ing of Section 8 (1) and (5) of the Act.
RECOMMENDATIONS
Upon the basis of the above findings of fact and conclusions of law, and upon
the entire record in the case, the undersigned recommends that the complaint
against the respondent, Bethlehem Transportation Corporation, Cleveland, Ohio,
be dismissed.
As provided in Section 33 of Article II of the Rules and Regulations of the
National Labor Relations Board, Series 3, as amended, ettective November 26,
1943, any party or counsel for the Board may within fifteen (15) days from the
date of the entry of the order transferring the case to the Board, pursuant to
Section 32 of Article II of said Rules and Regulations file with the Board,
Rochambeau Building, Washington, D. C., an original and four copies of a state-
ment in writing setting forth such exceptions to the Intermediate Report or to
any other part of the record or proceeding (including rulings upon all motions
or objections) as he relies upon, together with the original and four copies of a
brief in support thereof. Immediately upon the filing of such statement of ex-
ceptions and/or brief, the party or counsel for the Board filing the same shall
serve a copy thereof upon each of the other parties and shall file a copy with the
Regional Director As further provided in said Section 33, should any party
desire permission to argue orally before the Board, request therefor must be
made in writing within ten (10) days from the date of the order transferring
the case to the Board
J J F`ITZPATRICK,
Ti ial Examinee.
Dated December 29, 1944.
639678-45-vol. 61-72