Gowanus Towing Co., Inc.

National Labor Relations Board - Board Decisions

Aug 5, 1938

8 N.L.R.B. 820 (N.L.R.B. 1938)

In the Matter of GOWANUS TowII. o Co., INc. and ASSOCIATED MARINE
WoilKEIls
Case No. R-634.-Decided August 5, 1938
Towing Industry-Investigation of Representatives : controversy concerning
representation of employees-Contract: No bar to investigation , where period
to terminate by giving notice is almost at hand-Unit Appropriate for Collec-
tive Bargaining : history of collective bargaining relations with employer;
eligibility to membership in both of rival organizations ; no controversy as to-
Election Ordered-Certification of Rep esentatives
Mr. Richard J. Hickey, for the Board.
Burlingham, Veeder, Clark d Hupper, by Mr. A. Howard Neely
and Mr. B. H. White, of New York City, for the Company.
Phillips, Mahoney c<; Fielding, by Mr. William Goldman and Mr.
John A. Bell, Jr., of New York City, for I. L. A.
Mr. Herbert J. De Varco and Mr. Max Lustig, of New York City,
for I. B. U.
Mary Lemon Schleifer, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
On January 17, 1938, Associated Marine Workers, Local No. 1,
Inland Boatmen's Union, herein called I. B. U., filed with the Re-
gional Director for the Second Region (New York City ) a petition
alleging that a question affecting commerce had arisen concerning
the representation of the employees on propelled towboats and self-
propelled lighters operated by Gowanus Towing Co., Brooklyn, New
York, herein called the Company , and requesting an investigation
and certification of representatives pursuant to Section 9 (c) of the
National Labor Relations Act, 49 Stat. 449, herein called the Act.
On February 15, 1938, the National Labor Relations Board, herein
called the" Board, acting pursuant to Section 9 (c) of the Act and
Article III, Section 3, of National Labor Relations Board Rules
and Regulations-Series 1, as amended , ordered an investigation
and authorized the Regional Director to conduct it and to provide
for an appropriate hearing upon due notice.
8 N. L. R . B., No. 99.
820
DECISIONS AND ORDERS 821
On March 8, 1938, the Regional Director issued a notice of hear-
ing, copies of which were duly served upon the Company, I. B. U.,_
Harbor Towboatmen's Union, Local No. 933-3, International Long-
shoremen's Association, herein called Local 933-3, and Local No.
333, International Longshoremen's Association, herein called Local
333.' Pursuant to the notice, a hearing was begun on March 14, 1938,
before Paul Davier, the Trial Examiner duly designated by the
Board, but was then adjourned to and completed on March 15, 1938.
The Board, the Company, I. B. U., and International Longshoremen's
Association, herein called I. L. A., were represented by counsel and
participated in the hearing. Full opportunity to be heard, to ex-
amine and cross-examine witnesses, and to introduce evidence bear-
ing on the issues was afforded all parties.
During the course of the hearing the Trial Examiner- granted a
motion to amend the name of the Company as it appeared in the
pleadings to Gowanus Towing Co., Inc. Twice during the course of
the hearing, counsel for I. L. A. moved to dismiss the petition, coun-
sel for the Company joining in the motions, on the ground the Board
was without jurisdiction. The Trial Examiner reserved decision on
both motions. For the reason hereinafter stated, the motions are
hereby denied. The Trial Examiner likewise reserved decision on a
motion by counsel for I. L. A. that the petition be dismissed on the
ground that there was no proof that I. B. U. was a labor organiza-
tion. This motion is likewise denied. Various rulings on motions
and on objections to the introduction of evidence were made by the
Trial Examiner during the course of the hearing. The Board has
reviewed the rulings and finds that no prejudicial errors were com-
mitted. 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
A stipulation signed by the Company, I. B. U., and I. L. A., which
was made part of the record in the case, provides in part :
1. Gowanus Towing Company, Inc., was incorporated under
the laws of the State of New York on April 18, 1916, and main-
tains an office at the foot of Smith Street, Brooklyn, N. Y., and
is engaged solely in the towing business. .
2. The Company owns eight (8) tugs, of which, at the present
time five (5) are operated, .. .
1 The interests of Local 933 -3 and Local 333 in the proceeding are discussed hereafter.
822 NATIONAL LABOR RELATIONS BOARD
3. Gowanus Towing Company, Inc., in the course of its towing
business, tows boats and barges owned by other companies from
piers on the New Jersey and New York shores to destinations in
Gowanus Canal, Brooklyn, N. Y. At least 70% of the cargoes
carried by said- boats and barges originate without the State of
New York and are loaded on said boats and barges in the State
of New Jersey for delivery in New York. The balance of the
cargoes (about 30%) originate within the State of New York.
We find that the Company is engaged in traffic, transportation, and
commerce among the several States.
II. THE LABOR ORGANIZATIONS INVOLVED
Associated Marine Workers, Local No. 1, Inland Boatmen's Union,
is a labor organization, affiliated with the Committee for Industrial
Organization.
Local No. 333, International Longshoremen's Association, is a labor
organization, affiliated with the American Federation of Labor.
The jurisdiction of I. B. U. and Local 333 are apparently coexten-
sive, their membership consisting of both licensed and unlicensed sea-
men employed on self-propelled towboats and lighters in the port of
New York.
III. THE QUESTION CONCERNING REPRESENTATION
The Associated Marine Workers, admitting to membership masters,
mates, pilots, marine engineers, oilers, firemen, deckhands, cooks,
floatmen, and all barge men employed on self-propelled towboats and
lighters in the port of New York, was formed in 1922. During 1937,
Associated Marine Workers affiliated with I. L. A., which in turn was
affiliated with the American Federation of Labor. In November 1937,
the Associated Marine Workers severed their affiliation with I. L. A.
and affiliated with the Inland Boatmen's Union, an affiliate of the
Committee for Industrial Organization.
Harbor Towboatmen's Union, Local 933-3, was, until sometime in
1937, a local of I. L. A., affiliated with the American Federation of
Labor. According to a letter written on June 24, 1937, by Joseph
P. Ryan, president of I. L. A., Local 933-3 had been united some
time prior to that date with the Associated Marine Workers and
Railroad Marine Workers, Local 933-5, I. L. A. The amalgamated
union was designated by Ryan as International Longshoremen's
United Marine Division.2 At some later date, not fixed by the tes-
2 At the hearing counsel for I L. A stated that this organization should be designated
as United Marine Division of the International Longshoremen 's Association . The differ-
ence between the two designations seems immaterial
DECISIONS AND ORDERS 823
timony, International Longshoremen's United Marine Division, be-
came Local No. 333, I. L. A.
During June and July 1937, a committee composed of seven mem-
bers of the Associated Marine Workers (then affiliated with I. L. A.)
and seven members of Harbor Towboatmen's Union, Local 933-3,
I. L. A. negotiated with a committee selected by certain owners and
operators of towboats and self-propelled lighters of the port of New
York. The 'negotiations culminated in the signing of a written
agreement on August 3, 1937, relating to wages and working condi-
tions of employees on certain types of harbor equipment, including
employees on tugs. The contract was signed by 14 persons desig-
nated as a "Committee Representing Owners and Operators of Tug-
boats and Self-propelled Lighters of the Port of New York and
Vicinity" and by 15 persons designated as a "Committee Represent-
ing United Marine Division International Longshoremen's Associa-
tion." The contract provides, inter alia, that members of United
Marine Division International Longshoremen's Association, desig-
nated as the contracting party, shall be given preference in employ-
ment and that the agreement shall be effective from August 16, 1937,
to September 30, 1938, and shall be automatically renewed from year
to year thereafter, unless within 30 days before the expiration date
designated or the expiration date of any renewal period, written
notice of termination is given by registered mail by either party to
the other. Although the contract makes no specific mention of
Gowanus Towing Co., Inc., or of any other company, the stipulation
previously mentioned as introduced in evidence, provides that the
Company authorized the committee representing the owners and
operators to sign the agreement on behalf of the Company and that
the Company has adopted and acted under the contract and considers
itself bound thereby.
One of the signers of the contract was William A. Maher, a mem-
ber of the committee representing the employees. Maher is secre-
tary-treasurer of the Associated Marine Workers. Maher testified
at the hearing that on November 27, 1937, the Associated Marine
Workers changed their affiliation from I. L. A. and the American
Federation of Labor to affiliation with Inland Boatmen's Union,
affiliated with the Committee for Industrial Organization. In addi-
tion, Maher introduced in evidence certain union records for the
purpose of showing that the men employed on the tugs operated by
the Company had authorized and acknowledged this change of affili-
ation. Although, as hereinafter stated, we do not believe these rec-
ords are sufficient as a basis for certifying I. B. U. as the collective
bargaining representative of the employees of the Company, the
records coupled with Maher's testimony concerning the change of
824 NATIONAL LABOR RELATIONS BOARD
affiliation, are sufficient to show that a question exists as to which
of these organizations a majority of the employees of the Company
wish to represent them.
We find that a question has arisen concerning the representation
of employees of the Company, and that such question tends to lead
to labor disputes burdening and obstructing commerce and the free
flow of commerce.
IV. THE EXISTING CONTRACT
The Company and I. L. A. urge that the Board has no jurisdiction
to investigate the question concerning representation and to certify
a collective bargaining representative because of the existence of the
contract now in effect between the Company and I. L. A. I. B. U.,
I. L. A. and the Company agreed at the hearing that a majority
of the employees of the Company had designated I. L. A. to repre-
sent them at the time this contract was made. In this respect at
least, the contract appears to have been valid at its inception. With-
out determining whether or not this contract would prevent the
Board from certifying representatives other than those party to the
contract during its existence," the Board's power to do so in this
instance is clear. The termination date set by the contract is Sep-
tember 30, 1938. However, the written notice required to terminate
the contract must be given within 30 days prior to that date. If a
majority of the employees of the Company wish to be represented by
I. B. U., this fact should be established by August 30, 1938, so that
the right to terminate the contract, if desired, shall be established by
that time. The right of free choice of representatives guaranteed
by the Act must prevent, at least, the renewal of a contract, even
though valid during its term, if a majority of the employees wish
to be represented by another collective bargaining representative at
the time such renewal might become effective.
V. THE APPROPRIATE UNIT
I. B. U. claims that all of the employees on the tugs operated by
the Company, including both licensed and unlicensed personnel, con-
stitute a unit appropriate for the purposes of collective bargaining.
Neither the Company nor any person or labor organization denied
that such a unit is appropriate.
8 At the time this contract was signed , the Board was investigating questions concerning
the representation of the unlicensed personnel on all types of water craft, including tug-
boats, of some of the companies who became pasties to this contract : See Matter of Inter-
national Freighting Corp, et at and International seamen's Union of America, 3
N. L R. B. 692 and amendment thereto, 4 N. L. R B 111. Gowanus Towing Co, Inc,
was not one of the companies involved Cf. Matter of Te inessee Electric Power Company
and Brotherhood of Electrical Workeia , 7 N. L R. B. 24
DECISIONS AND ORDERS 825
The record clearly establishes the fact that I. B. U. admits all
such persons to membership . There is no direct evidence in the
record concerning the jurisdiction of Local 333. However, since
I. L. A. failed to deny that such a unit was appropriate and since
the contract which expires September 30, 1938, contains provisions
relating to all such classifications of employees , it is a reasonable
inference that Local 333 likewise admits all such employees as
members.
Since there was no objection to such a unit , since prior collective
bargaining contracts concerning these employees included provisions
for all such classifications , and since both labor organizations ap-
parently admit all such persons as members, we will find the ap-
propriate unit in accordance with the allegation of I. B. U.
We find that the employees on the tugs operated by the Company
constitute a unit appropriate for the purposes of collective bargain-
ing and that said unit will insure to the'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
The records introduced by I. B . U. consisted of two sets of cards
offered as union records . One set contained a record of the payments
of dues by persons employed by the Company . Most of the cards
show payments of dues by these persons from 1935 to March 1938.
Maher explained this, by stating that the records of dues payments
to the Associated Marine Workers had been made on the same cards
after affiliation with Inland Boatmen's Union as had been used when
the Associated Marine Workers had been affiliated with I. L. A.
The cards themselves contain no name of any organization. It is
apparent that these cards contain no proof of any change of affilia-
tion of these employees.
The second set of cards are designated "Personal Description,"
and provide "I hereby subscribe to membership in the Inland Boat-
men's Union , C. I. 0., and designate it as my sole and exclusive collec-
tive bargaining agency." Although a card of this type was submitted
for every employee included in the list of employees furnished by the
Company, there was no proof of the authenticity of the signatures
on these cards . Moreover , it is apparent that many of these cards
have been written in the same handwriting . Under these circum-
stances the cards are insufficient proof on which to base a certifica-
tion. We find that the question which has arisen concerning repre-
sentation can best be resolved by the holding of an election by secret
ballot.
826 NATIONAL LABOR RELATIONS BOARD
Since the election to be held in this case is for the purpose of deter-
mining rights concerning negotiations for a contract to begin at the
conclusion of the present contract, those eligible to vote will be the
employees of the Company during the pay-roll period immediately
preceding the date of this Direction of Election, except those who
resign or are discharged for cause between the date of said pay-roll
period and the date on which the election is held.
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. A question affecting commerce has arisen concerning the repre-
sentation of the employees on the tugs operated by Gowanus Towing
Co., Inc., within the meaning of Section 9 (c) and Section 2 (6) and
(7) of the National Labor Relations Act.
2. The employees on the tugs operated by Gowanus Towing Co.,
Inc., constitute a unit appropriate for the purposes of collective bar-
gaining, within the meaning of Section 9 (b) of the National Labor
Relations Act.
DIRECTION OF ELECTION
By virtue of and pursuant to the power vested in the National
Labor Relations Board by Section 9 (c) of the National Labor Rela-
tions Act, and pursuant to Article III, Section 8, of National Labor
Relations Board Rules and Regulations-Series 1, 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 Gowanus Towing Co., Inc., Brooklyn, New York, an election
by secret ballot shall be conducted within fifteen (15) days from
the date of this Direction, under the direction and supervision of the
Regional Director for the Second Region, acting in this matter as
agent for the National Labor Relations Board, and subject to Article
III, Section 9, of said Rules and Regulations, among the employees
on the tugs operated by Gowanus Towing Co., Inc., Brooklyn, New
York, during the pay-roll period immediately preceding the date of
this Direction, except those who resign or are discharged for cause
between the date of said pay roll and the date on which the election
is held, to determine whether they wish to be represented by Associ-
ated Marine Workers, Local No. 1, Inland Boatmen's Union or by
Local No. 333, International Longshoremen's Association, for the
purposes of collective bargaining, or by neither.
DECISIONS AND ORDERS 827
SAME TITLE]
CERTIFICATION OF REPRESENTATIVES
September 12, 1938
On August 5, 1938, the National Labor Relations Board, herein
called the Board, issued a Decision and Direction of Election in the
above-entitled case. The Direction of Election directed that an elec-
tion by secret ballot be conducted within fifteen (15) days from the
date of the Direction among the employees on the tugs operated by
Gowanus Towing Co., Inc., Brooklyn, New York, during the pay-roll
period immediately preceding the date of the Direction, except those
who resigned or were discharged for cause between the date of said
pay roll and the date of the election, to determine whether they de-
sired to be represented by Associated Marine Workers, Local No. 1,
Inland Boatman's Union or by Local No. 333, International Long-
shoremen's Association, for purposes of collective bargaining, or by
neither.
Pursuant to the Direction, an election by secret ballot was con-
ducted under the direction and supervision of Elinore Morehouse
Herrick, the Regional Director for the Second Region (New York
City), on August 19, 1938. Full opportunity was accorded to all the
parties to this investigation to participate in the conduct of the secret
ballot and to make challenges. On August 22, 1938, the said Regional
Director, acting pursuant to Article III, Section 9, of National
Labor Relations Board Rules and Regulations-Series 1, as amended,
issued and duly served upon the parties an Intermediate Report on
the election. No objections or exceptions to the Intermediate Report
have been filed by any of the parties.
As to the balloting and its results, the Regional Director reported
as follows :
Total number eligible to vote----------------------------- 20
Total number of ballots cast------------------------------- 19
Total number of ballots counted--------------------------- 18
Total number of votes in favor of-
Local No. 333, International Longshoremen 's Association,
affiliated with the A. F. of L------------------------- 16
Associated Marine Workers, Local No. 1, Inland Boat-
men's Union, affiliated with the C. I. 0--------------- 1
Neither union----------------------------------------- 1
Total number of blank votes ------------------------------ 0
Total number of void ballots ------------------------------- 0
Total number of challenged votes-------------------------- 1
828 NATIONAL LABOR RELATIONS BOARD
By virtue of and pursuant to the power vested in the National
Labor Relations Board by Section 9 (c) of the National Labor Rela-
tions Act, 49 Stat. 449, and pursuant to Article III, Sections 8 and 9,
of National Labor Relations Board Rules and Regulations-Series 1,
as amended,
IT Is HEREBY CERTIFIED that Local No. 333, International Long-
shoremen's Association, affiliated with the ,American Federation of
Labor, has been selected by a majority of the employees on the tugs
operated by Gowanus Towing Co., Inc., Brooklyn, New York, as
their representative for the purposes of collective bargaining, and
that, pursuant to Section 9 (a) of the National Labor Relations Act,
Local No. 333, International Longshoremen's Association, affiliated
with the American Federation of Labor, is the exclusive representa-
tive of all such employees for the purposes of collective bargaining
in respect to rates of pay, wages, hours of employment, and other
conditions of employment.
. MR. EDWIN S. SMITH took no part in the consideration of the above
Certification of Representatives.
8 N. L. R. B, No. 99a.