Graham Transportation Co.

National Labor Relations Board - Board Decisions

Sep 17, 1959

124 N.L.R.B. 960 (N.L.R.B. 1959)

960 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
5. Evidence is insufficient to sustain allegations of the complaint as to the termina-
tion of employment of Carl Laymon , Gene Guldenpfennig , and Willard Cooley.
[Recommendations omitted from publication.]
Graham Transportation Company, Petitioner and Brotherhood
of Marine Engineers , AFL-CIO.' Case No. 4-RM-322. Sep-
tember 17, 1959
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before Alan R. Kaye, hearing
officer. The hearing officer's rulings made at the hearing are free
from prejudicial error and are hereby affirmed.
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the Act.
2. BME asserts that it is not a labor organization within the mean-
ing of Section 2(5) of the Act because it exists primarily for the pur-
pose of representing supervisors. It alleges that its membership con-
sists principally of licensed supervisory marine engineers employed
aboard oceangoing vessels, and that its constitution limits its member-
ship to supervisory employees.a BME does not deny, however, that
it is attempting to organize and to represent the Employer's engineers,
both licensed and unlicensed. As we find, in paragraph 4 below, that
none of the Employer's engineers are supervisory employees, it fol-
lows that BME is seeking to represent individuals who are "em-
ployees" within the meaning of Section 2(3) and who would be
eligible for membership in BME either because they hold Coast Guard
licenses or are designated as engineering officers . It is not a require-
ment of the Act that a "labor organization" be comprised exclusively
of "employees." Supervisors may, in fact, join and participate in
the activities of a labor organization without affecting its status, sub-
ject only to the qualifications of Section 14(a).1 We find, therefore,
that BME is a labor organization within the meaning of Section 2(5)
because it is in fact an organization in which employees may par-
Hereinafter called BME.
a Article IV , section 2, reads : "A candidate for membership shall be an American Citizen,
holding a United States Merchant Marine officer's license , issued by the United States
Coast Guard A candidate for apprentice membership shall be an American Citizen em-
ployed as an engineering officer on diesel or steam-powered craft for which no Coast
Guard license is required."
3 Section 14(a) provides • "Nothing herein shall prohibit any individual employed as a
supervisor from becoming or remaining a member of a labor organization , but no employer
subject to this Act shall be compelled to deem individuals defined herein as supervisors as
employees for the purposes of any law, either national or local, relating to collective
bargaining "
124 NLRB No. 131.
GRAHAM TRANSPORTATION COMPANY 961
ticipate and which exists for the purpose of dealing with employers
concerning grievances, wages, and other conditions of work.4
3. BME refused to stipulate that a question concerning representa-
tion exists. On April 21, 1959, BME informed the Employer that a
majority of the latter's marine engineers had designated BME as
their exclusive bargaining agent. The next day the Employer refused
recognition and suggested to BME that it seek a Board-conducted
representation election. During the following 2 days, BME and the
Employer again exchanged correspondence, reiterating their respec-
tive positions. On April 24, 1959, the Employer filed the instant
petition, and the following day BME commenced picketing the Em-
ployer's home office-and the docks where its boats were tied up. BME
also distributed organizational leaflets to the Employer's engineers
and explanatory leaflets to employees of other companies. At the
date of the hearing, the picketing was still in progress and the Em-
ployer had still refused to recognize BME. From the foregoing it is
clear, and we so find, that a question exists concerning the representa-
tion of certain employees of the Employer, within the meaning of
Section 9(c) (1) and Section 2(6) and (7) of the Act.
4. The Employer contends that a unit of its 15 licensed and un-
licensed marine engineers is appropriate. It asserts that the only
supervisor on any of its vessels or tugs is the captain, a deck officer,
that none of the engineers are supervisors as they have none of the
indicia of authority set forth in Section 2(11) of the Act, and more-
over, have no employees to supervise. BME urges that the proposed
unit is inappropriate as it is composed predominantly of supervisory
personnel.
The Employer is a Delaware corporation engaged in the transpor-
tation of petroleum products in and through the inland waterways of
Delaware, Pennsylvania, New Jersey, and Maryland. It owns four
barges, three motor vessels, and three tugboats.-' Due to the relatively
small size 6 of the tugs and motor vessels, the 1 5i engineers in the pro-
posed unit comprise the Employer's entire engineroom personnel, with
the exception of 1 wiper assigned to the Sylvia. Although three engi-
neers are assigned to each ship, there are only two aboard at any time,
as the Employer's off-shore employees are on a 20-day-on and 10-day-
off schedule. The two engineers alternate 6-hour watches when on
duty, but the wiper works only during the day.
4N.L.R.B. v. Edward G. Budd Manufacturing Company, 169 F. 2d 571 (C.A. 6) ; National
Maritime Union (Standard Oil Company), 121 NLRB 208; Ravenna Arsenal, Inc., 98
NLRB 1; American Broadcasting Company, Inc., 93 NLRB 1410; Di Giorgio Wine Com-
pany, 87 NLRB 720, 721.
6 There are no engineers employed aboard the barges. At the time of the hearing, only
the tug Arnold was in operation. The tugs Cramp and Spartan were tied up because of
lack of business.
See Appendix A.
525543-60-val. 124--62
,962 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
BME contends that the three engineers assigned to the Sylvia are
supervisors as they all have the authority to recommend discipline
and direct the work of the one wiper. In the absence of evidence that
these engineers possess authority to direct other than routine work,
or that their disciplinary recommendations, if any, are effective, we
find that the three engineers assigned to the Sylvia are not supervisors
within the meaning of Section 2 (11) of the Act.'
BME's second contention is that the chief and relief chief engineers
.are supervisors because they are at all times in overall charge of the
engineroom and equipment. We find this contention without merit,
even if it were proved. Responsibility for the maintenance of physical
property does not, of itself, establish the existence of supervisory au-
thority. As it is clear that the chiefs and relief chiefs have no em-
ployees to supervise, we find that they are not supervisors and shall,
therefore, include them in the unit.8
We also find no merit in BME's final contention that some of the
,engineers involved herein are supervisors because they are licensed by
the United States Coast Guard. In determining the supervisory
.status of marine engineers, whether or not they are licensed, we have
always utilized the same tests which are applicable in other industries.
'Thus, where it has been clearly established that marine engineers have
the authority expressed in Section 2(11), we have found them to be
supervisors,' but where they possessed no such authority, we have
found them to be nonsupervisors.10 To be sure, the Board has custom-
arily treated licensed marine engineers as supervisors, but in those
cases, it was clear from the size of the ship and crew that there were
other engineroom personnel for the engineers to supervise. The fact
that a marine engineer possesses a Coast Guard license does not alone
support a finding of supervisory status."
We therefore find that the following employees constitute a unit
appropriate for purposes of collective bargaining within the meaning
of Section 9 (b) of the Act : All licensed and unlicensed marine engi-
neers employed aboard the Employer's tugs and vessels', including the
standby engineers,12 but excluding all other employees, guards, and
supervisors as defined in the Act.
[Text of Direction of Election omitted from publication.]
7 American Radiator d Standard Sanitary Corporation, 119 NLRB 1715, 1718.
8 General Foods Corporation, 110 NLRB 1088.
9 The Cleveland Cliffs Iron Company, 117 NLRB 668; General Foods Corporation, supra ;
Hutchinson d Co., et al., 101 NLRB 90; Globe Steamship Company, et al., 85 NLRB 475;
Charles Zubick, 74 NLRB 356.
10 Standard Oil Company, 121 NLRB 208; General Foods Corporation, supra ; Wilson
Transit Company, 75 NLRB 181; Central Barge Company, 61 NLRB 784.
11 Central Barge Company, 64 NLRB 1059, footnote 9.
12 These engineers had formerly been assigned to the tug Cramp, but since its deactiva-
tion, they have been engaged primarily in the maintenance of the several engines. As the
Employer substitutes these standby engineers for the regular off-shore engineers when one
of the latter category is ill or cannot make a trip, and as no valid reason is given for their
exclusion, we find they have a sufficient community of interest to warrant their inclusion.
MISSION VALLEY INN, INC.
APPENDIX A*
Ship Horsepower Length Draft
MV Buffaloe ---------------------------------- 450 188'5" 11'
MV Herron------------------------------------ 500 188'5" 11'
MV Sylvia---------------------- 900 208'8" 12'6"
Tug Arnold------------------------------------ 200 80'2" 9'
Tug Cramp ---------------------------------- 200 69' 7'
Tug Spartan ---------------------------------- 65' 7'
This data was supplied by the Employer after the hearing.
963
Complement
one captain.
one mate.
one cook.
two deckhands.
three engineers.
eight total.
same as MV Buff aloe.
Do.
Do.
one captain.
one cook.
two deckhands.
two engineers.
six total.
same as tug Cramp.
Mission Valley Inn, Inc. ' and The Local Joint Executive Board
of San Diego , Comprising Waiters and Bartenders Local 500
and Cooks and Waitresses Local 402, Affiliated With Hotel and
Restaurant Employees and Bartenders International Union,
Petitioner. Case No. 21-RC-5653. September 17, 1959
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before Fred W. Davis, hearing
officer. The hearing officer's rulings made at the hearing are free from
prejudicial error and are hereby affirmed.
Upon the entire record in this case, the Board finds:
1. The Employer operates a motel, restaurant, and bar in San Diego,
California. It offers 112 rooms for rental to travelers. Approxi-
mately 90 percent of its guests reside in the State of California. In
addition to the 112 rooms of its Mission Valley Inn, the Employer
rents out 48 rooms in the Mission Valley Lodge, which is adjacent to
the Inn. The Mission Valley Lodge is a separate corporation. It has
no employees of its own, and all services furnished to guests are per-
formed by employees of the Employer. The Employer received total
gross revenues of $925,000 during the fiscal year ending September
30, 1958. Of this amount $308,000 was received from the rental of
rooms,2 $392,000 was received from the sale of food, and $225,000 was
I The Employer' s name appears as corrected at the hearing.
2 The Employer ' s president testified that he did not know whether this figure included
revenue received from the rental of rooms in the Mission Valley Lodge.
124 NLRB No. 129.