Castle & Cooke Terminals, Ltd.

National Labor Relations Board - Board Decisions

Dec 12, 1940

28 N.L.R.B. 493 (N.L.R.B. 1940)

In the Matter Of CASTLE & COOKE TERMINALS, LTD. and INTERNA-
TIONAL LONGSHOREMEN'S & WAREHOUSEMEN'S UNION, LOCAL 1-37,
UNIT # 2
In the Matter of CASTLE & CooKE TERMINALS, LTD. and INTERNA-
TIONAL LONGSHOREMEN'S & WAREHOUSEMEN'S UNION, LOCAL 1-37
Cases Nos. R-0129 and R-P130.Decided December 12, 1940
Jurisdiction : stevedoring industry.
Investigation and Certification of Representatives : existence of question: re-
fusal to accord recognition to union and request that certification be obtained ;
elections necessary.
Units Appropriate for Collective Bargaining : separate units: (1) longshoremen
including and excluding employees in stated categories; (2) scalers exclud-
ing the foremen and any permit men.
So-called "permit men," to whom cards are issued privileging them to
work during. specified periods (usually during seasonal peak of business,
or to fill abnormal vacancies in ranks of regular employees) at the end
of which employment relation ceases, excluded from units.
Stanley, Vitousek, Pratt & Winn, by Mr. Montgomery E. Winn,
of Honolulu , T. H., for the Company.
Mr. Jack H. Kawano, and Mr. Frederick Kamahoahoa, of Hono-
lulu, T. H., for Local 1-37.
Mr. Florentino Das, of Honolulu, T. H., for Unit #2.
Miss Mary E. Perkins, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTIONS
STATEMENT OF THE CASE
On May 16, 1940, International Longshoremen's & Warehousemen's
Union, Local 1-37, Unit #2, herein called Unit #2, and on June 19,
1940, International Longshoremen's & Warehousemen's Union, Local
1-37, herein called Local 1-37, filed with the Regional Director for
the Twentieth Region (San Francisco, California) petitions alleg-
ing that a question affecting commerce had arisen concerning em-
ployees of Castle & Cooke Terminals, Ltd., Honolulu, Territory of
Hawaii, herein called the Company, and requesting an investigation
and certification of representatives pursuant to Section 9 (c) of the
28 N. L. R. B., No. 75. -
1 493
494 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
National Labor Relations Act, 49 Stat. 449, herein called the Act.'
On September 9, 1940, the National Labor Relations Board, herein
called the Board, acting pursuant to Section 9 (c) of the Act and
Article III, Section 3, and Article III, Section 10 (c) (2) of the
National Labor Relations. Board Rules and Regulations-Series 2,
as amended, ordered an investigation in each case and authorized the
Regional Director to conduct it and to provide for an appropriate
hearing upon due notice and further ordered that the cases be
consolidated.
On September 27, 1940, the Regional Director issued a notice of
consolidated hearing, copies of which were duly served upon the
Company, and upon Unit #2 and Local 1-37. - Pursuant to the
notice and amendments thereto, a hearing was held on October 15
and 16, 1940, at Honolulu, Territory of Hawaii, before Arnold L.
Wills, the Trial Examiner duly designated by the Board. The Com-
pany was represented by counsel and Unit #2 and Local 1-37 by
their representatives; all participated in the hearing. Full oppor-
tunity to be heard, to examine and cross-examine witnesses, and to
introduce evidence bearing on 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 Examiner and finds
that no prejudicial errors were committed. The rulings are hereby
affirmed.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS, OF THE COMPANY
Castle & Cooke Terminals, Ltd.. is a corporation existing under
the laws of the Territory of Hawaii .- The principal office and place
of business of the Company is located in Honolulu , Territory of
Hawaii.
The Company is engaged in the business of loading and unloading
freight and cargo shipped on Matson Navigation Company and Oce-
anic Steamship Company boats between the Territory of Hawaii
and the continental United States and between the Territory of
Hawaii and foreign countries . The Company handles all the
longshore work in the port of Honolulu in connection with vessels
of those companies , and of the Isthmian Steamship Company whose
1 On June 26, 1940, Local 1-37 amended its petition in respects not here material.
CASTLE' & COOKE TERMINALS, LTD. 495
operations are not disclosed by the record. During 1939 the Com-
pany handled approximately 1,400,000 tons of cargo and had a gross
income amounting to approximately $1,681,000. The Company ad-
mits that it is engaged in trade, traffic, and commerce within the
meaning of Section 2 (6) and (7) of the National Labor Relations
Act.
At the time of the hearing the Company employed approximately
920 persons.
II. THE ORGANIZATIONS INVOLVED
International Longshoremen's & Warehousemen's Union, Local
1-37, is a labor organization affiliated with the Congress of Indus-
trial Organizations, admitting to membership longshoremen and
stevedores in the employ of the Company and of other employers
similarly engaged in Honolulu, Territory of Hawaii. '
International Longshoremen's & Warehousemen's Union, Local
1-37, Unit #2, is a labor organization affiliated with the Congress
of Industrial Organizations, admitting to membership scalers in the
employ of the Company and of other employers similarly engaged
in Honolulu, Territory of Hawaii. It is a separate division of Local
1-37, has its own officers and holds separate meetings.
III. THE QUESTIONS CONCERNING ' REPRESENTATION
By letter dated April 24, 1940, addressed to Randolph Sevier, presi-
dent of the Company, Unit #2 claimed to represent a majority of
the scalers in the Company's employ and requested recognition as
their representative. A meeting was held on April 30, 1940, between
the negotiating committee of Unit #2 and Churchill Carmalt, Em-
ployees' Relations Director of the Company. In the course of this
meeting and subsequent discussions, the Company refused to recog-
nize Unit #2 as exclusive bargaining representative for scalers in
the Company's, employ, suggesting that Unit #2 first obtain Board
certification.
At a meeting on May 28, 1940,, Local 1-37, through its negotiating
committee, requested of Sevier that the Company recognize it as
exclusive bargaining agent for the longshoremen in the employ of
the Company. Sevier, at both this and a subsequent meeting, re-
fused to accept as adequate proof of Local 1-37's majority, the evi-
dence submitted by Local 1-37.
From a statement of the Trial Examiner introduced in evidence
ii appears that Local 1-37 and Unit #2 have each been designated
496 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
as bargaining agent by a substantial number of the employees of
the Company in the units they respectively claim to represent.2
We find that questions have arisen concerning the representation of
employees of the Company.
IV. THE EFFECT OF THE QUESTIONS CONCERNING REPRESENTATION UPON
COMMERCE
We find that the questions concerning representation which have
arisen, occuring in connection,with the operations of the Company
described in Section I above, have a close, intimate, and substantial
relation to trade, traffic, and commerce between the Territory of
Hawaii and the'several States, and between the Territory of Hawaii
and foreign countries, and tend to lead to labor disputes burdening
and obstructing commerce and the free flow of commerce.
V. THE APPROPRIATE UNITS
The Company and the unions are in substantial agreement that
the longshoremen and the scalers employed by the Company con-
stitute separate appropriate bargaining units. Longshoremen of the
Company handle cargo, while the scaler gang is engaged exclusively
in maintenance work and cleaning. The longshoremen and the scal-
ers have organized separately. Under these circumstances we find
that the longshoremen and the scalers properly constitute separate
bargaining units.
A. The longshoremen's unit
The Company and Local 1-37 are agreed that the longshoremen's
unit should include all regular or "basic" employees of the Company
in the following categories : members of the ship gangs and of the
wharf gangs, including leading men 3 and gang foremen; members
of the gear (or cooper) gang,) including the gang foreman; mem-
bers of the Makule--gang; and machine (or jitney) operators. The
Company employs approximately 550 such persons, all of whom are
regularly engaged in stevedoring work. We shall include them in
the unit.
2 The Trial Examiner reported that 17 scalers whose names appear on the Company's
pay roll of October 11, 1940, appear to have signed a petition designating Unit #2 as their
representative . The scalers ' unit hereinafter found appropriate , contained approximately
30 employees at the time of the hearing.
The Trial Examiner further reported that 324 persons whose names appear on the Com-
pany's pay roll of October 11, 1940, appear to have signed one or the other of two petitions
designating Local 1-37 as their bargaining agent The longshoremen's unit, hereinafter
found appropriate , contained approximately 550 employees at the time of the hearing.
3 Each of the 26 wharf gangs is directed by a leading man who receives 10 cents an hour
additional pay. They are analogous to "working foremen "
CASTLE & COOKE TERMINALS, LTD.' 497
The Company and Local 1-37 further agree that the department
heads, consisting of the General Superintendent of all Operations,
the Port Captain, the Safety Manager, the Employees' Relations
Director, the Employment Office Manager, the Equipment Superin-
tendent,4 and the Claim Agent; the head timekeeper; the clerks in
charge of terminals; the watchmen; the paymaster; the ship, wharf,
and dock foremen; and the office employees should be excluded from
the longshoremen's unit. We shall exclude these employees, all of
whom perform supervisory or clerical work, from the unit.
The parties disagree concerning the inclusion in the longshore-
men's unit of so-called "permit men" and of wharf clerks, sorters,
timekeepers, and machine shop employees. Local 1-37 desires the
exclusion of these groups and the Company desires their inclusion.
Pe?vjnit men. The Company's employees are classified as "basic"
or "permit." The "basic" group consists of all 'monthly paid em-
ployees, and that number of weekly, daily, and hourly paid men
for whom past records have indicated that there would be adequate
and reasonably steady work over the course of each year. It is the
present policy of the Company to guarantee the basic stevedores a
minimum of 40 hours straight time employment per week. The
basic men are in addition given annual vacations with pay. Other
benefits, including group insurance and a sick benefit plan, are avail-
able to them. The "permit" group consists of that number of men
which past records and estimates indicate will be needed to work
during seasonal and other abnormally busy periods or to fill, tem-
porary and unforeseen vacancies. "Permit cards" are issued to those
chosen and they are privileged to work only when work is available
and only within the period specified on the cards. Their employee
status ceases at the end of the specified period, unless a new card is
issued or unless they are promoted to the basic group. The 40-hour-
a-week guarantee,5 vacations, and other benefits are not applicable
to them. Their pay rates appear to be the same as those of the
comparable basic employees.
Permit men were employed by the Company • in 1940 during the
months between March and September and the Company-anticipates
that, because of unusual vacancies in stevedore ranks due to an
epidemic, and according to estimates of anticipated business, no lay-
offs will be made before January 1941. The average length of em-
ployment for individual permit men was not made clear, however:
About one-half of the 48 permit men laid off in November 1939,were
* Hawkinson , described as a monthly foreman and assistant to the Equipment Superin-
tendent, should be excluded.
6 From: an exhibit introduced in evidence by the Company it would appear that, during a
27-week period in 1940 in which permit men were employed , they were offered approxi-
mately th è' same number of hours of work per week as were basic employees.
498 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
offered reemployment in 1940. Twenty-two out of the 25 reemployed
had been advanced to fill permanent vacancies in the ranks of the
basic group at the time of the hearing, but it is not clear just what
proportion they constituted of the total permit group which was em-
ployed in 1940. At the time of the hearing, the Company had in its
employ 48 stevedores still classified as "permit" employees. With
two exceptions occurring in the past, Local 1-37 has not admitted'
permit men to membership. None are at present members of that
union.
In view of the relatively small number of permit men, the tem-
porary and seasonal nature of their employment, and the practice
of Local 1-37 of excluding them from membership, we shall exclude
them from the longshoremen's unit.
Wharf Clerks, Sorters, Timekeepers, and Machine Shop Employ-
ees. It has been the custom of Local 1-37 to exclude from its mem-
bership, because of the differences in their problems, workers other
than regular longshoremen engaged in the handling of cargo.
Where it has been possible these groups have in the past been organ-
ized into separate units, as the scalers have been, and Local 1-37
contemplates the prospect of thus organizing some of the groups
here involved.
The wharf clerks, sorters, and timekeepers do not handle cargo.
They are all engaged at clerical work involving varying degrees
of training and aptitude. They are paid by the week, whereas all
of tie employees which Local 1-37 contends should be included are
paid by the hour. While there have been several instances of steve-
dores working as wharf clerks and vice versa, and of leading men
performing some of the less clerical duties of sorters, they are not
sufficient to erase the differences in interest arising from the nature
of the work as a whole. We shall exclude the wharf clerks, sorters,
and timekeepers from the unit.
The machine shop employees, while not all skilled workers, are
engaged in the mechanical work involved in the maintenance of
the machines, rigging, slings, gang planks, and other equipment, used
by the men handling cargo. Stevedores are seldom transferred to
the shop, except temporarily on account of injuries suffered while
handling cargo, or unless they display some aptitude for mechanical
work. Local 1-37 intends to set up a separate unit for the shop
employees if they can be organized. We shall exclude the shop
employees also.
We find that all regular, or "basic" employees of the Company,
in the following categories: members of the ship gangs .and of the
wharf gangs, including leading men and the gang foremen; mem-
bers of the gear (or cooper) gang, including the gang foreman';
CASTLE & COOKE TERMINALS, LTD.' 499
members of the Makule gang; and machine (or jitney) operators;
excluding department heads,'the head timekeeper, clerks in charge of
terminals, watchmen, the paymaster, ship, wharf, and dock fore-
men, office employees, wharf clerks, sorters, timekeepers, machine
shop employees, and all permit employees, constitute a unit appro-
priate for the purposes of collective bargaining and that such'unit
will insure to the employees of the Company the full benefit of their
right to self-organization, and to collective bargaining and other-
wise effectuate the policies of the Act.
B. The scalers' unit
The'scalers comprise a gang of approximately 30 men employed,
under the supervision of a foreman, to do maintenance and clean-up
work on vessels in port. As we have stated, they do not handle cargo.
As regards the proposed scalers' unit, Unit #2 desires to exclude
the foreman of the scalers' gang and such permit men as may from
time to time be assigned to it, while the Company contends that both
should be included. The foreman typically divides the scalers' daily,
or for each job, into several small gangs of four to eight men and
appoints a member of each sub-gang to act as leading man for that
group, while he himself acts as general supervisor of the work of the
several sub-gangs. The foreman receives more pay than the members
of the gang, acts as timekeeper of the men, and seldom works with
them himself. His functions are icle-arly supervisory. We shall
exclud'e` him from the unit.
At the time of the hearing the Company employed no permit
scalers; as the pressure of work increases or as temporary vacancies
occur from time to time in the future, permit scalers may be em-
ployed, however. For the reasons underlying our exclusion of
permit employees from the longshoremen's unit, we shall exclude
them from the scalers' unit also.
We find that all regular or "basic" scalers employed by the Com-
pany, excluding the foreman and any permit men who may from
time to time be assigned to the work of scalers, constitute a unit
appropriate for the purposes of collective bargaining and that such
unit will insure to 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.
VI. THE DETERMINATION OF REPRESENTATIVES
We find that the questions concerning representation which have
arisen can best, be'resolved by elections by secret ballot. We shall
direct that employees in the units hereinabove found appropriate who
413597-42-vol. 28-33
500 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
were employed by the Company during the pay-roll period last pre-
ceding the date of this Direction of Elections, including any such
employees who did not work during said pay-roll period because
they were ill or on vacation and employees who were then or have
since been temporarily laid off, but excluding those who have since
quit or been discharged for cause, shall be eligible to vote.,
Upon the basis of the above findings of fact and upon the entire
record in the case, the Board makes the following :
CONCLUSIONS OF LAW
1. Questions affecting commerce have arisen concerning the repre-
sentation of employees of Castle & Cooke Terminals, Ltd., Hono-
lulu, Territory of Hawaii, within the meaning of Section 9 (c) and
Section 2 (6) and (7) of the National Labor Relations Act.
2. All regular or "basic" employees of the Company in the follow-
ing categories: members of the ship gangs and of the wharf gangs,
including leading men and the gang foremen; members of the gear
.(or cooper) gang, including the gang foreman; members bf the
Makule gang; and machine (or jitney) operators; excluding depart-
ment heads, the head timekeeper, clerks in charge of terminals, watch-
men, the paymaster, ship, wharf, and dock foremen, office employees,
,wharf clerks, sorters, timekeepers, machine shop employees, and all
permit employees, constitute a unit appropriate for the purposes
of collective bargaining within "the meaning of Section 9 (b) of the
Act.
3. All the regular or- "basic" scalers employed by the Company,
excluding the foreman and any permit men who may from time to
time be assigned to the work of scalers, constitute a unit appropriate
for the purposes of collective bargaining within the meaning of
Section 9 (b) -of the 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 Re-
lations Act, and pursuant to Article III, Section 8 of National 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 purposes of collective bargaining
with Castle & Cooke Terminals, Ltd., Honolulu, Territory of Hawaii,
elections_by secret ballot shall be conducted as early as possible but
not later than thirty (30) days from the date of this Direction of
Elections, under the direction and supervision of the Regional Di=
CASTLE & COOKE TERMINALS , LTD. 501
rector for the Twentieth Region, acting in this matter as agent for
the National Labor Relations Board and subject to Article III, Sec-
tion 9 of said Rules and Regulations:
( 1) Among all regular or "basic" employees of the Company in
the following categories : members of the ship gangs and of the
wharf gangs , including leading men and the gang foremen; members
of the gear ( or cooper ) gang, including the gangforeman ; members
of the Makule gang ; and machine (or jitney ) operators ; who were
employed by the Company during the pay-roll period last preceding
the date of this Direction of Elections , including any such employees
whQ did not work during said pay-roll period because they were ill
or on vacation and employees who were then or have since been
temporarily laid off, but excluding department heads, the head time-
keeper, clerks in charge of terminals , watchmen , the paymaster, ship,
wharf, and dock foremen , office employees , wharf clerks , sorters,
timekeepers , machine shop employees , all permit employees , and those
who have since quit 'or been discharged for cause , to determine
whether or not they desire to be represented by International Long-
shoremen's & Warehousemen's Union, Local 1-37, affiliated with the
Congress of Industrial Organizations , for the purposes of collective
bargaining; and
(2) Among all the regular or "basic" scalers employed by the
Company during the pay-roll period last preceding the date of this
Direction of Elections , including any employees who did not work
during said pay-roll period because they were ill or on vacation and
employees who were then or have since been temporarily laid off,
but excluding the foreman and any permit men who may have been
assigned to the work of scalers , and those who have since quit or
been discharged for cause , to determine whether or not they desire
to be represented by International Longshoremen 's & Warehouse-
men's Union , Local 1-37, Unit #2, affiliated with the Congress of
Industrial Organizations , for the purposes of collective bargaining.
CHAIRMAN HARRY A. MiLLis took no part in the consideration of the
above Decision and Direction of Election.
[SAME TITLE]
AMENDMENT TO DIRECTION OF ELECTIONS
January 7, 1941 • -
On December 12, 1940, the National Labor Relations Board, herein
called the Board , issued a Decision and Direction of Elections, in the
above-entitled proceedings , the elections to be conducted as early as
502 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
possible but not later than thirty (30) days from the date of the
Direction, under the direction and supervision of the Regional Di-
rector for the Twentieth Region (San Francisco, California). The
Board, having been informed by the Regional Director for the Twen-
tieth Region that a longer period within which to hold the election is
necessary, hereby amends. the Direction of Elections issued on De-
cember 12, 1940, by striking therefrom the words "not later than
thirty (30) days from the date of this Direction of Elections" and
substituting therefor the words "not later than forty-five (45) days
from the date of this Direction of Elections."
28 N. L . R. B., No. 75a.