Cities Service Oil Co. Of Pennsylvania

National Labor Relations Board - Board Decisions

Dec 2, 1949

87 N.L.R.B. 324 (N.L.R.B. 1949)

In the Matter Of CITIES SERVICE OIL CO. Or PENNSYLVANIA ( MARINE
DIVISION ), EMPLOYER and SEAFARERS INTERNATIONAL UNION OF
NORTH AMERICA ( AFL), PETITIONER
Case No. 2-RC-512
SUPPLEMENTAL DECISION
AND
CERTIFICATION OF REPRESENTATIVES
December O, 19419
Pursuant to a Decision and Direction of Election issued herein
on December 29, 1948,1 an election by secret ballot was conducted
under the direction and supervision of the Regional Director for
the Second Region (New York City).2 Upon conclusion of the
balloting, a Tally of Ballots was furnished the parties. The tally
shows that of approximately 225 eligible voters 176 cast ballots, of
which 98 were for the Petitioner, 12 were against the Petitioner, 5
were void and 66 were challenged.
On April 28, 1949, the Employer filed Objections to the Conduct
of the Election and to Conduct Affecting the Results of the Election.
Thereafter, in accordance with the Board's Rules and Regulations,
the Regional Director conducted an investigation, and on August 19,
1949, issued and duly served upon the parties his Report on Objections,
recommending that the objections be overruled. On September 2,
1949, the Employer filed Exceptions to Report on Objections and
Motions by Employer.
The Employer's numerous objections, more fully set forth below,
in substance are based on the following broad allegations : (1) that
the Employer was not given sufficient advance notice of the election
and therefore was deprived of an opportunity to have its observers
at the polling places; (2) that the employees were not properly advised
of the election; (3) that the Union's agents coerced employees into
voting for the Union; (4) that the Board agents improperly con-
ducted the election ; and (5) that the Board agents were uncooperative
and biased in favor of the Union.
' 30 NLRB 1512.
Wherever used herein, the term Regional Director means Acting Regional Director.
87 NLRB No. 60.
324
CITIES SERVICE OIL CO. OF PENNSYLVANIA 325
Except for certain events occurring at the polling of one of the
vessels, the facts as reported by the Regional Director are not in
dispute. -
Our Decision and Direction of Election delegated to the Regional
Director discretion as to the exact time, place, and procedure for poll-
ing the unlicensed maritime employees on the nine vessels included
in the appropriate unit described therein. On Wednesday, February
16, 1949, after a delay of more than 7 weeks from the date of our,
Direction (a delay occasioned in part by the Employer's motion to
the Board for reconsideration of our Decision), a conference was held
at the Regional Office, with all interested parties present, for the pur-
pose of planning the mechanics of the election. Forthwith, the Em-
ployer's representative announced that the -Employer would not co-
operate in the election unless the Board first consented to vacate two
outstanding Circuit Court of Appeals cease and desist orders directed
against the Employer based upon prior unfair labor practices,3 and
unless the Employer was permitted to use supervisors as election
observers. In accordance with established Board policy, these re-
quests were refused; whereupon the Employer asked and ieceived
a 24-hour postponement of the conference in order to reconsider its
determination not to cooperate.
The conference reconvened on the next day, Thursday, February
17. The Employer did not withdraw its demands ; instead, it added
new conditions to its willingness to cooperate, insisting that no vessels
be polled except at ports between Baltimore and Boston and that no
elections be held on Saturdays, Sundays, or holidays, or in any event,
before Wednesday, February 23, because the Employer intended to
operate its offices with a skeleton crew over the holiday week end
(Tuesday, February 22, being Washington's birthday). During this
conference, the parties knew that seven of the vessels involved were
scheduled to reach American ports and to depart again before Wednes-
day, February 23. In view of this fact and of the uncertainty sur-
rounding maritime employment generally,4 and because of the delays
already encountered, the Board agent advised the Employer that the
Regional Director would proceed with the election, if necessary, with-
out the Employer's cooperation. On that same day, the Regional
Director decided to poll the vessels when they next arrived at Ameri-
can ports.
3N. L. R. B. V. Cities Service Oil Co., 122 F. 2d 149 (C. A. 2) ; N. L. R. B. v. Cities
Service Oil Co., 129 F. 2d 933 (C. A. 2).
This same request had already been considered and denied in our original Decision and
Direction of Election and again in our Order denying the Employer' s motion for recon-
sideration.
-The Regional Director had reasonable cause to believe that substantial numbers of
eligible voters would be separated from the company's employ in the near future.
326 DECISIONS OF' NATIONAL LABOR RELATIONS BOARD
At noon the next day, Friday, February 18, the Regional Office
sent a telegram to the Employer, advising it that the election would
be held in the near future and that the Employer could use supervisors
as observers; and requesting the names of the observers. The Em-
ployer replied the same day that it would appoint observers when
advised of the time and place of the election. That same afternoon
telegrams were sent to the Employer and to its attorney advising that
each vessel would be balloted upon arriving in port. At 5: 15 p. in.,
the Regional Office telephoned the same advice to the Employer's port
steward at its New York office. Official notices of election were mailed
to the Employer. The Union notified the employees of the forthcom-
ing elections by radio messages sent each vessel while at sea,' and by
megaphone and public address equipment as the vessels approached
shore. When the first six ships docked, each at a different Atlantic or
Gulf Port, the Board agents requested, but were refused, permission
to conduct elections either on board ship or on the company's water-
front property. As a result, the Board agents set up election machin-
ery wherever feasible under the circumstances and as close as possible
to the debarkation points. In some instances, parked cars were used
a.s voting booths. Official notices of election were posted conspicu-
ously at and near the polling places. The Employer did nothing to
inform its employees of the scheduled election.
The employees were balloted as they disembarked. The first two
ships, the S. S. Fort Hoskins and the S. S. Winter Hill, were polled
on Sunday night, February 20, and early Monday morning, February
21, respectively. No company observers were present at the'balloting
of the first six vessels, and for this reason the Board agents chal-
lenged all the ballots from the first two ships. However, at the
polling of the next four vessels they ignored the absence of company
observers and challenged voters in the customary manner whenever
doubt arose as to eligibility. As the Employer, although requested
to do'so, had failed to furnish a pay-roll list for any of the six vessels,
the Board agents questioned all persons appearing; at the polls, asked
for identification papers, and required them to sign factual statements
before permitting them to vote.
Meanwhile, on the basis of the advice from the Regional Office
concerning the scheduled election, received by telephone Friday after-
noon and by telegram Saturday morning, the Employer on Monday,
February 21, instituted a proceeding in the District Court for the
Southern District of New York to enjoin the Board from proceed-
ing with the election. An ex parte temporary restraining order,
5 The Union sent 40 radio messages, 5 to each of 8 ships. No message was sent to the
S. S. Government Camp, which was being voted by mail.
-CITIES SERVICE OIL CO. OF PENNSYLVANIA 327
secured by the Employer in that suit, interrupted the election after
the first six vessels were balloted. Shortly thereafter , the injunction
proceeding was dismissed for lack of merit. However, during the
pendency of the temporary restraining order and at the request of
the Federal District Court judge, the Employer appointed observers
and participated in the balloting of the two remaining vessels.13
Although no company observers had been present at the balloting of
the first six vessels, the average turnout of crew members on those
vesels compared favorably with the average turn-out on the vessels
balloted later. Upon the completion of the balloting of all nine
vessels, the ballots were counted and the aforesaid tally prepared.
_one of the challenged ballots was opened.
Concerning the polling of the S. S. Winter Hill, at Braintree,
Massachusetts, where all the ballots were challenged by the Board
agent, the Employer takes issue with the Regional Director's report
on the facts. On the basis of his investigation, the Regional Director
reported that, upon being denied access to the vessel and. to the com-
pany-owned pier, the Board agent set up election equipment in It
parked automobile on a road near the pier; that due to the extreme
cold, the Board agent and the union observer waited for voters in
a nearby tavern, the only available shelter; that there was no drink-
ing by anyone connected with the election during the voting; that
no ballots were distributed, marked, or accepted in the tavern; and
that, the balloting took place, not in the tavern, but in the front section
of the automobile, where each voter marked his ballot privately while
the observer and other voters remained at the rear. The 'Employer
asserts that balloting was conducted inside the tavern, where voters
and union organizers drank together ; that organizers told crew mem-
bers that they could vote only for the Union and promised to each
a "full [Union] membership book" if he voted for the Union; and
that at least one of the eligible voters refrained from voting because
of the lack of secrecy in the balloting and the rowdy atmosphere of
the tavern.
1. Notice to the Ern ployer
The Employer 's principal objection to the conduct of the election is
grounded on the dispatch with which the Board agent acted in setting
election machinery in motion , once he was satisfied that further delay
meant a long postponement of the election and too great a change in
the vessels ' personnel. A proper review of the timing of the election
and of the mechanics of its execution must be made in the light of the
special problems incident to the polling of seagoing vessels and of the
6 The ninth vessel , the S . S. Government Camp, was balloted by mail in a foreign port.
328 DECISIONS OF NATIONAL LABOR RELATIONS BQARD
clearly dilatory attitude of the Employer in this case. Considering the
facts confronting the Regional Director on Friday, February 18, we
deem his decision to poll the vessels immediately as entirely reasonable.
The high turnover-rate normal among personnel in the shipping in-
dustry permits, indeed requires, swift decisions aimed at shortening
the time necessarily elapsing between our directions of election and the
polling of such employees. Particularly was expeditious action appro-
priate in this case, where the Employer's only response to the Board
agent's request for cooperation was continued and repeated insistence
on unacceptable and impossible conditions. Such insistence, coupled
with the Employer's general hostility towards the election, reveals
an unmistakable determination to prevent the Regional Director from
carrying out the Board's direction.
Moreover, the facts show that the Employer had sufficient notice of
the election and was afforded ample time to appoint election observers,
had it so desired. Thus, notwithstanding its assertion that notice on
Friday, by telephone to its port steward and by telegram to its attor-
ney, was not notice to the Employer and that skeleton operations over
the holiday week end made the designation of company observers im-
possible, the Employer had ample time to prepare the necessary plead-
ings, together with supporting documents, to institute an in-
junction proceeding on Monday, February 21. Further, the Employer
had already been advised that it could use supervisory personnel
as observers. Just as the Union was able to communicate with the
ships at sea to advise the employees of the pending election, the Em-
ployer could easily have designated any of its officers on board ship to
act as observers at the elections and to assist the Board agents in taking
all necessary precautions to assure proper eligibility. On these simple
and uncontroverted facts, we view the Employer's failure to have ob-
servers at the polling places as a deliberate refusal to participate in the
conduct of the election. Its belated complaint of being neglected and
wronged is not persuasive now.
In any event, the primary consideration in the conduct of any elec-
tion is whether the employees are afforded adequate notice and suffici-
ent opportunity to vote. Although the Employer is customarily ac-
corded the privilege of having its observers at the polls, their presence
is not required, nor is the Employer entitled to such representation as a
matter of right.7
Under the entire circumstances of this case, we agree with the
Regional Director's conclusion that the Employer received sufficient
4 Southern Steamship Company v . N. L. R. B., 310 U . S. 31 ; Burrows & Sanborn, Inc.,
84 NLRB 304.
CITIES SERVICE OIL CO. OF PENNSYLVANIA 329
notice of the election and that its objection in this respect should be
overruled."
2. Notice to the employees
The same reasons which lead us to believe that sufficient notice was
given to the Employer also dispose of its objection that the employees.
were not given sufficient advance notice of the election. Other than
having the Union advise ship personnel by radio, telegraph, and public
address equipment, giving the Employer an opportunity to do like-
wise, and posting the regular election notices at conspicuous places as
close as possible to the Employer's water-front property, we see nothing
further that the Board agents could have done to ensure widespread
publication of the scheduled balloting among the employees. There
is no substantial evidence to show that eligible voters did not receive,
or.were deprived of, adequate notice and opportunity to vote. On the
contrary, the favorable comparison between the average turn-out of
crew members on the first six vessels balloted and that of the vessels
polled with the Employer's belated cooperation and in the presence of
its observers is clear evidence that a representative number of em-
ployees voted in the election as a whole. Under these circumstances,
we believe that the employees were given and received adequate notice,
and we therefore adopt the Regional Director's recommendation that
this objection be overruled.9
3. Alleged coercion by union agents
The general allegations of coercion by union agents are based on
the assertion that employees were coerced, tricked, and bribed into
voting for the Union, and that balloting took place in inappropriate
places. The incidents referred to in this objection relate to the polling
of the S. S. Winter Hill at Braintree, Massachusetts. The facts rela-
tive to this part of the election, as they appear to us now from the
Regional Director's report and from the Employer's Objections and
Exceptions, are set forth in detail above and need not be restated.
We consider it unfortunate, but nonetheless justified, that the Board
agent, in the case of this vessel, was compelled, after being denied a
more conventional and desirable locale for conducting the election, to
hold the balloting in an automobile parked so close to a tavern (the
8 Hoague-Sprague Corporation, 80 NLRB 1699.
9 See Wilson Athletic Goods Manufacturing Co., Inc., 76 NLRB 315.
The Employer also contends that eligible voters who were ill , on vacation , or tem-
porarily laid off were not given notice of the election and, therefore , denied the right to
vote . We agree with the Regional Director that such employees are customarily not given
individual notices of election and, in the absence of a showing of prejudice to employees'
rights , we find no merit in this contention . Cerf Brothers Bag Company, 74 NLRB 1329.
330 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
closest point to the Employer's pier) in order to ensure maximum
opportunity for all eligible voters to cast ballots. As to the election-
eering allegedly carried on by union agents, we have long held such
activity not to be coercive 10 In any event, we deem it unnecessary to
resolve the seeming conflict between the Regional Director's report
and the Employer's assertion as to the facts respecting the balloting of
the S. S. Winter Hill. Under the circumstances of this case, con-
sidering the restricted area in which the alleged coercive conduct
occurred, the geographical separation of the vessel from the other ves-
sels that were polled in other ports extending from Massachusetts to the
Gulf of Mexico, the nature of the maritime industry, and particularly
the fact that the Board agent challenged all ballots cast at the voting
of the S. S. Winter Hill, we believe it would not be realistic to assume
that the alleged conduct had any impact upon the election results or
upon the freedom of choice exercised by the employees on the remain-
ing vessels as to warrant setting the election aside.-
The Employer also alleges as coercive the fact that notice of the
election was given to employees by the Union; that parked cars, par-
ticularly a union-owned automobile in one case, were used as voting
booths; and that union representatives and its attorney were present
at some of the polling areas. We do not believe that these facts, stand-
ing alone, show improper interference with the employees' free expres-
sion of choice. There is nothing improper in a union publicizing a
Board election. In fact, "getting out the vote" by notifying voters is
a traditional part of election procedure. The Employer was given
equal opportunity to publicize the election, but significantly failed to
do so. While if is true that in some instances parked cars were used as
voting booths, and that at the balloting of the S. S. Bent's Fort a
union-owned automobile bearing no distinguishing marks of owner-
ship was used, the Regional Director reported that in no case were
ballots marked in a car while any person other than the voter was
present. Further, absent a showing of improper electioneering, the
mere presence of union representatives at or near the polling area is
not prejudicial. In view of the foregoing considerations, we agree
with the Regional Director's conclusion that this objection raises no
substantial issue with respect to the conduct of the election. Accord-
ingly, we hereby overrule it.12
10 See National Sugar Refining Company of New Jersey, 4 NLRB 276.
11 Isthmian Steamship Company, 74 NLRB 64.
11 See Craddock- Terry Shoe Company, 80 NLRB 1239 ; General Plywood Corporation,
83 NLRB 197; and Mutual Distributing Company, 83 NLRB 463.
The Employer also alleges coercion because of the mail balloting of the S. S. Govern-
ment Camp, on the theory that the Union might have resorted to "strong -armed" tactics
in distant ports . As mail balloting was authorized in our Direction of Election, and as
the Regional Director found no evidence of improper conduct in connection with its use,
we find this argument to be without merit.
CITIES SERVICE OIL CO. OF PENNSYLVANIA 331
4. Alleged improper conduct of Board agents
We have already considered and rejected (in connection with other
objections) several grounds on which the Employer also charges that
the Board agents improperly conducted the election. These were the
dispatch with which the election was held, the limited advance notice
given to the Employer and to the employees, and the alleged coercive
conduct by union agents. We turn now to further allegations on
which the objection to Board agents' conduct is predicated.
(a) The Regional Director used an eligibility date different from
that established in our Direction of Election.
Unable to obtain pay-roll lists or pay-roll period dates, the
Employer having failed to furnish them on request, the Regional
Director set December 29, 1948, the date of the Board's Direction of
Election, as the eligibility date, although the Board's Direction estab-
lished it as the pay-roll period preceding the date of the election, which
fell on December 28. We have set forth above the detailed precau-
tions taken by the Board agents to ascertain the eligibility of each
voter. It has not been shown, nor is there any evidence indicating,
that the change of eligibility date prejudiced any eligible voter. On
the contrary, it is undisputed that no. employee actually working on
December 28 was denied a ballot for this reason, and that all persons
whose ballots were counted were in fact employed by the Employer on
December 28. Nor is there any showing that eligible employees were
thereby unable to vote. Under these circumstances, we deem the
Regional Director's use of December 29 as the eligibility date to be
entirely proper.13
(b) The Regional Director permitted aliens to vote.
The eligibility of aliens to cast ballots in Board elections is too well
established to warrant justification anew here.14
(c) More persons cast ballots at the polling of two of the vessels
than appear on the Employer's eligibility list for those vessels.
As the Employer's eligibility list undoubtedly reflects its erroneous
concept as to eligibility of aliens, we are unable to determine what
percentage of employees in fact eligible did cast ballots. In any event,
we are satisfied, from the uncontroverted facts as reported by the
Regional Director, that the Board agents were sufficiently careful in
testing eligibility.
(d) Secrecy of the ballot was not maintained.
The Employer asserts that the election results were made known
prematurely and that ballots were cast in automobile voting booths
Ia See New Era Shirt Company, 79 NLRB 213.
14 Azusa Citrus Association , 65 NLRB 1136 ; Logan and Paxton , 55 NLRB 310.
332 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in the presence of observers 15 The Regional Director's investigation
revealed no evidence to support this charge. On the contrary, we be-
lieve that, considering the. unfavorable conditions under which they
were compelled to conduct the balloting, the Board agents' diligence
in assuring a free expression of choice by the employees merits
commendation.
(e) The ballots from the first six vessels polled were commingled
with those cast later.
In the light of the logical requirement for counting all ballots cast
in a single election, we consider this objection to be frivolous and
without merit.
(f) Part of the election was conducted outside the regional jurisdic-
tion of the Regional Director.
All the balloting was conducted under the supervision of the Re-
gional Director for the Second Region. As the simultaneous polling
of vessels, both within and beyond the territorial limits of the Second
Region, was in accordance with our usual election procedures in mari-
time cases, and not in violation of our Direction of Election, we find
that the Regional Director acted properly in so doing.-
5. Alleged bias and lack of cooperation of Board agents
Finally, the Employer makes a general charge of bias and preju-
dicial lack of cooperation by Board agents. The Regional Director
reported that his careful investigation revealed no evidence whatever
supporting this allegation. - Most of the specific grounds allegedly
supporting the charge, urged also as bases for other detailed objec-
tions, have been considered above and found to be without merit. The
two assertions remaining to be considered are, that the Board agents
challenged voters "presumably at the instigation of the Union" and
that they "connived" with the Union to permit noncrew members to
vote in the balloting of the S. S. Lone Jack.
It is clear from the Employer's statement supporting its Exceptions
that the first objection refers primarily to the fact that all votes cast
from the two vessels first polled in the election were challenged by
Board agents. These were also the first two of the six vessels at which
company observers were not present; the Regional Director found
that the Board agents made these challenges because the Employer
had failed to designate observers. None of the challenged ballots was
opened, as they could not affect the results of the election. The chal-
15 This objection also adverts to the alleged illegal balloting inside a tavern at the
balloting of the S. S. Winter Hill, which we have considered above.
16 To the extent that the Employer in its Exceptions may have objected to those elections
held on the Washington's Birthday holiday, we find no merit therein. Danita Hosiery
Manufacturing Co. Inc., 72 NLRB 162.
CITIES SERVICE OIL CO. OF PENNSYLVANIA 333
lenges, therefore, could not have prejudiced any of the parties. Absent
any evidence supporting this serious accusation and in view of the
Regional Director's affirmative report as to the reason for the chal-
lenges, we will not presume improper motives on the part of any of the
participants in the election procedure.
The Employer's observers were present at the -polling of the
S. S. Lone Jack. Eight persons not on board ship, but claiming to be
employees, requested ballots; they were permitted to vote only
under challenge . These facts are not disputed . It is these eight
persons whom the Employer charges were "imported as ringers" by
the Union with the approval of Board agents. As stated above, the
Regional Director found no evidence showing connivance between
the Board agents and union observers, even assuming that the Union
was aware of the ineligible status of these eight voters. If the Board
agents had intended to allow noneligibles to vote, they would have
permitted them to cast unchallenged ballots. We therefore agree with
the Regional Director's conclusion that these facts do not prove mis-
conduct by Board agents.
Apparently, the Employer also views as prejudicial lack of coopera-
tion the Board agent's refusal to permit the Employer to challenge,
before the counting of the ballots but after the completion of the elec-
tion, all votes cast from the six vessels polled in. the absence of com-
pany observers. As the Employer had chosen not to challenge any of
the ballots when they were cast, the Board agent, under well-established
principles , was bound to reject its belated challenges . 17 His decision,
therefore , was clearly proper.
It thus appears that all of the Employer's objections to the election
are based either on ill-founded arguments or on factual assertions
which, according to the Regional Director's report, are entirely un-
supported by substantial evidence. Indeed, the very occasion for
most of its complaints would never have arisen had the Employer
elected to extend to the Board agents the cooperation which was
earnestly solicited to no avail. In the light of the Employer's refusal
to cooperate with an agency of the Government in carrying out its
statutory functions in the public interest, we believe that, apart from
other considerations, it ill behooves the Employer to file objections
stemming principally from its own recalcitrance.
In view of the foregoing and under all the circumstances , we find,
in agreement with the Regional Director, that the Employer's objec-
tions and exceptions do not raise substantial and material issues with
respect to the conduct of the election or to conduct affecting the re-
'7 A. J. Tower Company, 60 NLRB 1414 , affirmed N. L . R. B. v. A . J. Tower Company,
329 U. S. 324.
334 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
suits of the election. Consequently, we hereby deny the Employer's
motion to set aside the proceedings and to order a new hearing or a
new election herein, and we hereby adopt the Regional Director's
recommendation that the Employer's objections be overruled.
As the challenges can not affect the results of the election, and as
the Union has secured it majority of the valid votes cast, we shall cer-
tify it as the collective bargaining representative of the Employer's
unlicensed personnel in the unit heretofore found appropriate.
CERTIFICATION OF REPRESENTATIVES
IT is HEREBY CERTIFIED that Seafarers International Union of North
America (AFL) has been designated and selected by a majority of the
Employer's unlicensed personnel aboard the vessels S. S. Royal Oak,
S. S. Government Camp, S. S. Fort Hoskins, S. S. Salem Maritime,
S. S. Bent's Fort, S. S. Bradford Island, S. S. Winter Hill, S. S.
Archer's Hope, and S. S. Lone Jack of the Employer's Maritime Divi-
sion, including deck and engine employees, machinists, and pumpmen,
but excluding stewards, boatswains, pursers, radio operators, and
supervisors as defined in the Act, as their representative for the pur-
poses of collective bargaining and that pursuant to Section 9 (a) of
the Act, the aforesaid organization is the exclusive representative of
all such employees for the purposes of collective bargaining with re-
spect to rates of pay, wages, hours of employment and other conditions
of employment.
MEMBERS HOUSTON and MURDOCK took no part in the consideration
of the above Supplemental Decision and Certification of Representa-
tives.