Castle & Cooke Terminals, Ltd.

National Labor Relations Board - Board Decisions

Feb 12, 1946

65 N.L.R.B. 989 (N.L.R.B. 1946)

In the Matter of CASTLE &, COOKE TERDIINALS , LTD. and INTERNATIONAL
LONGSHOREMEN 'S & WAREHOUSEMEN 'S UNION, LOCAL 137 (CIO)
Case No. 20-R-425 (R-2130)
SUPPLEMENTAL DECISION
February 12, 1946
On March 20, 1941, the Board certified International Longshore-
men's & Warehousemen's Union, Local 137 (CIO), herein called the
Union, as the exclusive bargaining representative of certain em-
ployees of Castle &; Cooke Terminals, Ltd., (herein called the Com-
pany), including gang foremen and leadingmen.' On October 6,
1944, the Company moved the Board to amend its certification to
exclude the above-mentioned categories of employees. Inasmuch as
the Company at that time gave the Board no basis for the requested
action other than a broad allegation that its gang foremen and lead-
ingmen were supervisory employees, the Board on November 17, 1944,
issued an Order summarily denying the motion. Thereafter, on
January 5 , 1945, the Company filed a motion requesting the Board to
reconsider its Order of November 17, 1944, and accompanied the mo-
tion with an affidavit setting out facts upon which the Company based
its allegation. The Union filed an answer to the motion, stating (1)
that the gang foremen and leadingmen employed by the Company
are not supervisory employees, and (2) that if they are to be con-
sidered supervisory employees , they are, by custogm in the industry,
that type of supervisory employee included in bargaining units to-
gether with non-supervisory employees under the doctrine enunciated
in Matter of Maryland Drydockc Conrpany.2
On February 2, 1945, the Board issued an Order reopening the
record in the proceeding for the purpose of hearing evidence to re-
solve the dispute raised by the parties' conflicting allegations, and
provided for an appropriate hearing upon due notice before A. L.
Wills, Trial Examiner . Said hearing was held at Honolulu, Terri-
tory of Hawaii, on April 25, 26, 27, 28, and May 2, 3, 4, 7, 8, 10, 1945,
and at San Francisco, California, on July 27, 1945. The Company
and the Union appeared and participated, and were afforded full
opportunity to be heard , to examine and cross -exanrine witnesses, and
to introduce evidence bearing on the issues . The Trial Examiner's
'30NLRB475
249N L.R B 733
65 N. L. R. B, No. 175.
989
990 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
rulings made at the hearing are free from prejudicial error and are
hereby affirmed. All parties were afforded opportunity to file briefs
with the Board.
Upon'the entire record in the case, the Board finds that gang fore-
men and leadingmen employed by the Company exercise some super-
visory functions; that in the exercise of these supervisory functions,
they are themselves closely supervised by ship foremen; that they
differ to some extent from supervisors of comparable standing em-
ployed in ports of the West Coast of the United States, in that they,
as well as the members of gangs with whom they work, are permanent
employees of the Company, whereas the West Coast supervisors,
and the gangs with whom they work, are hired for particular jobs
through a union hiring hall. We further find that it is a well-es-
tablished custom in the industry on the West Coast to include these
minor supervisors in bargaining units together with non-supervisory
employees, and that, despite the variance on other subjects between
practice in the Islands and on the Coast, contracts on the Islands
have, since the inception of collective bargaining in the industry there,
followed the custom established on the Coast and have included in
the bargaining unit minor supervisors of the grade corresponding
to the Company's gang foremen and leadingmen.
Accordingly, we hereby deny the Company's motion to amend the
certification of March 20, 1941.
MR. GERARD D. REILLY, dissenting :
I am constrained to disagree with the refusal of my colleagues to
amend the certification to exclude all supervisory employees from
the appropriate bargaining unit.
The majority decision concedes that the employees whom the Com-
pany seeks to exclude are supervisory within the Board's customary
definition of the term, and apparently that the custom in the industry
on the West Coast waterfront is not determinative because of impor-
tant differences in employment practices followed by the West Coast
and the Island industries. Evidently the only basis for the majority
opinion is that, since the inception of collective bargaining in the
industry, minor supervisors have been included in the bargaining
unit. According to the record, the history of collective bargaining
among longshoremen in the Islands began in 1941, and since that
time only five collective bargaining contracts have been executed.
Even assuming that supervisory employees such as gang foremen
and leadingmen have been included in the units covered by these five
contracts, an assumption not clearly supported by the record,' this
'It appears that each of the Companies involved in these contracts has supervisory
hierarchies sturcturally different from those of the others , and that job titles are not
always descriptive of the actual job duties throughout the industry.
CASTLE & COOKE TERMINALS, LTD. 991
does not constitute a history or tradition which the Board has hereto-
fore held sufficient to warrant departure from its general rule that
supervisory employees are not entitled to a voice in the selection of a
bargaining representative or to participate in the affairs of the rank
and file employees whom they supervise . In the Matter of Shell Pe-
troleum Corporation ,' a union contended that in substantially all
collective bargaining contracts between employees and companies in
the petroleum refining industry , certain supervisory employees clas-
sified as stillmen and treaters had been included in bargaining units,
and requested the Board to approve their inclusion in the unit in
that case . The Board noted that "the history of trade union organi-
zation in the industry , itself of recent origin, fails to show a long
practice antedating the National Labor Relations Act and reflecting
general acceptance and accommodation by employers , of including
supervisory employees under collective bargaining contracts," and
denied the request. In the Shell case, decided by the Board on
May 5, 1944 , the first exclusive bargaining contract in the industry
had been signed about 1934, and the entire history of effective col-
lective bargaining consisted of about 10 years ' experience. In the
Islands, collective bargaining among longshoremen began not more
than 5 years ago. Thus , in the Islands ' ship -loading industry, any
custom which conceivably might exist of including supervisory em-
ployees in rank and file units has been formulated during a period
when the Board, in dealing with the formation of collective bargain-
ing units in other industries , has consistently held that supervisory
employees must be excluded from such units and has frequently ap-
plied sanctions to enforce that policy . 3 The Board 's recognition of
the practice of the printing trade unions in.admitting foremen to
membership and including them in collective bargaining contracts
was predicated upon the fact that the practice arose long before the
adoption of the National Labor Relations Act 4 Recognition of such
a practice by the Board in this case can only be justified upon the
proposition that persistence will legitimize conduct which is other-
wise illegal.
256N L R B 318, 324, 325, 326.
2 For example, in Matter of Brown Company, 65 N L R. B. 208, the Board ordered
an employer to disestablish a labor organization as the representative of any of its em-
ployees where the sole evidence of the illegality of the organization consisted of the fact
that certain supervisory employees had signed a petition calling for the formation of the
organization
4 See Matter of Maryland Drydock Company, 51 N. L. R. B. 640.
673100-46-vol. 65-64