Delaware-New Jersey Ferry Co.

National Labor Relations Board - Board Decisions

Nov 20, 1936

2 N.L.R.B. 385 (N.L.R.B. 1936)

In the Matter of DELAWARE-NEW JERSEY FERRY COMPANY and
MARINE ENGINEERS' BENEFICIAL ASSOCIATION No. 13
Case No. C-4
Collective Bargaining : refusal to negotiate with representatives after Board
order requiring respondent to cease and desist from refusing to bargain col-
lectively-Interference , Restraint or Coercion : representatives : circulation of
petition among employees designating non-union representatives ; denial of
right of employees to be represented by non-employees ; interference with free-
dom of choice-Representatives : effect of designation of when not result of
free choice by employees-Collective Agreement : effect of , with representatives
not freely chosen by employees-Order of Board : reaffirmed.
Mr. Samuel G. Zack and Mr. Jerome Irving Macht for the Board.
Lewis, Wolff & Gourlay, by Mr. Otto Wolff, Jr., of Philadelphia.
Pa., for respondent.
Mr. I. S. rporfman, of counsel to the Board.
SUPPLEMENTAL DECISION
November 00, 1936
On December 30, 1935, after a hearing, the National Labor Re-
lations Board, hereinafter called the Board, issued a decision' in
the above matter, which found that Delaware-New Jersey Ferry Co.,
Wilmington, Delaware, a corporation, hereinafter called respondent,
by refusing to bargain collectively with Marine Engineers' Ben-
eficial Association No. 13, hereinafter called the Association, as the
representative of the licensed engineers employed in that capacity
by respondent, had engaged in and was engaging in an unfair labor
practice within the meaning of Section 8, subdivision (5), and Sec-
tion 2, subdivisions (6) and (7) of the National Labor Relations
Act, 49 Stat. 449, hereinafter called the Act, and ordered respondent
to cease and desist from refusing to bargain collectively with the
Association as the exclusive representative of the licensed engineers
employed by it in that capacity. Pursuant to Section 10 (e) of the
Act, the Board on April 25, 1936, petitioned the United States Cir-
cuit Court of Appeals for the Third Circuit, hereinafter called the
Court, for the enforcement of this order. On October 29, 1936,
respondent filed a petition with the Court alleging in substance that
subsequent to the date of the decision herein, and on and since April
1, 1936. a committee consisting of George L. Biddle, Paul Gibbons
11 N. L. R. B. 85.
385
386 NATIONAL LABOR RELATIONS BOARD
and Edgar Russel, licensed engineers employed by respondent, had
superseded the Association as the exclusive representative of the
licensed engineers employed by it, for purposes of collective bar-
gaining; that therefore the enforcement of the order of the Board,
dated December 30 , 1935, no longer- presents an, issue for the de-
termination of the Court; and asking 'leave to adduce additional-,
evidence in support of the allegations set forth in its petition. On
November 2; 1936; • the Court ordered that respondent have leave, to
adduce additional ' evidence in support of'the allegations made in its
petition; that the Board have leave to adduce additional'evidence in
support of the allegations in its complaint herein, or in reply to the
additional . allegations made by respondent ; and that such additional
evidence shall, be - taken before the Board, its member, , agent or
agency, and shall ' be made a part of the transcript of- record in. this
cause.
Pursuant , to notice , duly, served upon . the parties , a hearing on the
issues set forth in the order of the Court was held in Philadelphia,
Pennsylvania , on November 11, 1936, before Benedict Wolf, Trial
Examiner duly designated by the Board. Full opportunity to be
heard, to examine and cross -examine' witnesses , and. to introduce evi-
dence bearing upon the issues was afforded to the parties. The
rulings of the Trial Examiner on objections to the introduction of
evidence are: hereby affirmed.
Upon the entire record in the case, the stenographic report of the
hearings and all , the, evidence , - including oral testimony and other
evidence offered and received , the Board , in addition to the findings
already made in its decision of December , 30, 1935, makes the fol-
lowing:,,. „ , •
FINDINGS OF FACTS
Since the decision of the Board in this matter , a, written contract
has been entered into between respondent and a committee of, three,
licensed engineers employed by respondent , covering wages, hours
and working conditions of engineers , oilers, coal firemen and oil fire-
men employed on respondent 's vessels. Whether this committee has
superseded the Association as the exclusive representative of, the
license' engineers 'employed by respondent we ' shall now, consider.
The events leading , up to the execution of the agreement were as
follows : In October or November , 1935 , more than two months after
all 12 licensed engineers then employed by` respondent had author-
ized the Association 'to represent them for purposes 'of collective bar-
gaining, and after, respondent had notified the Association that it'
would Iiot' bargain' with an outside representative 'of its employees,
respondent , through William Trundle , its marine superintendent, at
that time, asked each of its licensed engineers individually whether
DECISIONS AND ORDERS 387
the Association represents him before this Board; whether he signed
an agreement in that connection ; whether he belonged to the Asso-
ciation; and whether he requested the Association to negotiate u_
wage adjustment. At the same time Trundle informed each of them-
that respondent was willing to grant a wage increase on condition-
that the , employees - form an organization ' among ' themselves and- that
they be represented in negotiations by a committee of employees.
The engineers rejected that proposal , hoping to retain the Associa-
tion and to gain their ends through it.
Effective January 1 , 1936, William Trundle resigned from, his_
position as marine superintendent . That position had been first
created by respondent about 1933, and William Trundle, as well as
his only predecessor in office, Mr . Railsback , had been graduated
from the United ' States Naval Academy prior to the appointment
as marine superintendent. When William Trundle resigned, how-
ever, Ludolph A. K. Josendale, a• chief engineer employed' by
respondent to whom other licensed engineers looked for leadership;
was elevated to the position of marine superintendent. Iii the latter
part of March, 1936, when Josendale reported to Lehman-H. Garri-
son, general manager of respondent , that the , men were ' dissatisfied;
Garrison replied : "They know'what they 'can do. They know what
to do. If they 'ill appoint' three men to represent them, 'wliy, we
will meet them. The door is open all the time." Josendale prom;
iced to see that such a committee was appointed. He then dictated, ,
and Mr. McAndrew, treasurer of respondent, typed, a document
worded as follows :
"We the undersigned engine room personnel of the Del-New
Jersey Ferry Co. hereby appoint the following chief engineers,
to represent us in negotiating with our officials in regard to come
to a better understanding about wages and working conditions
on the ferries.
Mr. George Biddle 'Mr. Paul Gibbons Mr. Edgar Russell."
It will be noted that the names of the members of the committee were
typed on the document. , ,
Josendale then approached individually each of the engineers,
oilers, coal firemen and oil firemen, and' generally said :''.'I was talk-
ing to the Captain today, and you, know if you appoint, a committee
among yourselves , you- can go up there and I believe you can get
what you want." Garrison, when asked on cross-examination
whether he had promoted Josendale to the position of marine super-
intendent in order- to more . easily sway the licensed engineers to
appoint a collective bargaining: committee from-among themselves,;,
replied that he had been training, Josendale for the-position since 1931.,
5727-37-vol n-26
388 NATIONAL LABOR RELATIONS BOARD
It will be-remenmbered that the position was not created until 1933,
and that two men preceded Josendale in that position in the interim
between 1931 and 1936. Also the appointment was a surprise to
Josendale. Twenty-two employees signed the authorization circu-
lated by Josendale, including 11 licensed engineers. No meeting was
called for the purpose of nominating or electing the designated rep-
resentative, nor were the candidates consulted as to their availability
to serve on the committee. Josendale alone then delivered the signed
document to Garrison, who thereafter, on April 11, 1936, by letter
notified the members of the committee that a meeting for the pur-
pose of discussing wages and general working conditions would be
held on April 14, 1936. Incidentally, a similar document was cir-
culated among the deck officers of respondent, and Garrison, with-
out consulting either committee, scheduled his meeting with both
committees to take place at the same place and time. At the first
meeting the committee representing the engineers and engine room
employees presented nothing in the way of demands. At a second
meeting the committee presented a proposed wage scale, and at a
third meeting an agreement was entered into 'between respondent
and the committee, which provided for an increase in wages, decrease
in working hours, and for other working conditions more favorable
than had existed theretofore, effective April 1, 1936, for a period of
one year.
The mere recital of events in chronological order brings into bold
relief the obvious machinations of respondent to dictate terms from
-the top, despite its ludicrously transparent effort to simulate the
process of collective bargaining. In going through the motions of
collective bargaining, incidentally, respondent completely ignored
the previous finding of the Board that licensed engineers alone con-
titute an appropriate unit. The absurdity of respondent's conten-
tion that the committee of three engineers has superseded the As-
sociation as the freely chosen representative of the licensed en-
gineers is further 'apparent in the following facts : At all times
herein considered, both prior to and after the decision of the Board,
it was the position of respondent that it would deal only with such
representatives of its employees as were acceptable to it, and that
it would not negotiate with an outside representative of its em-
ployees. This was known to the licensed engineers. Respondent
had been ready to increase the wages of the licensed engineers since
July, 1935, but refused to grant such an increase through the As-
sociation. When Josendale circulated the authorization among the
men, respondent let it be known that an increase in wages and de-
crease in hours of work could then be obtained, but only through a
committee of employees, and not through the Association. The
DECISIONS AND ORDERS 389
-licensed engineers were tired of waiting for improvements in work-
ing conditions, and were thus impelled to sign the authorization in
•>tirder to obtain the immediate benefits they had good reason to
believe would follow. In the words of a recent decision of the
United States Supreme Court: "The power to confer or withhold
unlimited benefits is the power to coerce or destroy . . . - This is
coercion by economic pressure. The asserted- power of choice is
-illusory." 2 Some of the licensed engineers, respondent's own wit-
nesses, testified that despite the appointment of the committee, they
still desired in the future to be represented by the Association, and
that the men discussed means of accomplishing this among them-
selves.
We conclude, therefore, that the designation of the committee, con-
sisting of George Biddle, Paul Gibbons and Edgar Russel, was not
the result of a free choice on the part of the licensed engineers, and
hence that it has not superseded the Association as the representa-
tive of the licensed engineers, employed in that capacity by re-
spondent, for purposes of collective bargaining.
In coming to this conclusion, we do not pass judghient on the
validity of the contract entered into between respondent and the
committee. We merely hold that Marine Engineers' Beneficial As-
sociation No. 13, despite the intervening events since the date of our
last decision, still is the representative of the licensed engineers em-
ployed in that capacity by respondent, for purposes of collective
bargaining. Assuming the contract is valid, it does not preclude
further bargaining between respondent and the Association with ref-
erence to extension, modification or termination of the agreement
upon its expiration date, April 1, 1937.
At the hearing of October 31, 1935, respondent questioned the
authority of the Association to represent the licensed engineers on
the ground that the employees signed cards authorizing the national
organization and not the local Association to represent them. At
the hearing of November 11, 1936, this misunderstanding was cor-
rected. The licensed engineers had authorized Marine Engineers'
Beneficial Association No. 13 to represent them.
We see no reason for modifying the order of the Board, dated
December 30, 1935, and hereby reaffirm it.
2 United Mates v. Butler et al., Receivers of Hoosac Mills Corporation, 297 U. S. 1, 71.