Higman Towing Co.

National Labor Relations Board - Board Decisions

May 27, 1941

32 N.L.R.B. 102 (N.L.R.B. 1941)

In the Matter Of HIGMAN TOWING COMPANY and INLAND BOATMEN'S
DIVISION OF NATIONAL MARITIME UNION
Case No. R-9455.Decided May 27, 1941
Jurisdiction : water transportation industry.
Investigation and Certification of Representatives : existence of question : re-
fusal to accord union recognition until it is certified by the Board ; election
necessary.
Unit Appropriate for Collective Bargaining : all members of the crews of the
towboats operated by the Company, excluding captains: captains excluded
over objection of sole union involved upon a finding that captains have complete
supervisory powers over such crews.
Mr. L. J. Benckenstein, of Beaumont, Tex., for the Company.
Mandell and Wright, by Mr. Elias Gatoura, of Houston, Tex., for
the N. M. U.
Mary M. Persinger, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
On January 30, 1941, Inland Boatmen's Division of National Mari-
time Union, herein called the N. M. U., filed with the Regional
Director for the Sixteenth Region (Ft. Worth, Texas) a petition
alleging that a question affecting commerce had arisen concerning
the representation of employees of Higman Towing Company, Orange,
Texas, 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
March 12, 1941, 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 Regula-
tions-Series 2, as amended, ordered an investigation and authorized
the Regional Director to conduct it and to provide for an appropriate
hearing upon due notice.
On March 14, 1941, the Regional Director issued a notice of hearing,
and on March 17, 1941, an order postponing the date of hearing, copies
32 N. L. R. B., No. 19.
102
HIGMAN TOWING COMPANY 103
of both of which were duly served upon the Company and the N. M. U.
Pursuant to notice, a hearing was held on April 7, 1941, at Orange,
Texas, before E. P. Davis, the Trial Examiner duly designated by the
Chief Trial Examiner. The Company and the N. M. U. were repre-
sented by counsel and participated in the hearing. Full opportunity
to be heard, to examine and cross-examine witnesses, and to introduce
evidence bearing upon the issues was afforded all parties. During
the course of the hearing the Trial Examiner made several rulings on
motions and objections to the admission of evidence. The Board has
reviewed the rulings of the Trial Examiner and finds that no preju-
dicial errors were committed. The rulings are hereby affirmed.
Pursuant to leave to file briefs granted to all parties, the N. M. U.,
on April 18, 1941, submitted a letter in lieu of a brief, which the Board
has considered.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
Higman Towing Company is a Texas corporation engaged in the
ownership, maintenance, and operation of eight towboats in the Intra-
coastal Canal connecting various Texas and Louisiana ports and cities.
The towboats are used to move barges in the Canal between these ports
and cities. On the barges are transported various products, principally
petroleum. In 1940 the Company did a gross business totaling more
than $50,000.
We find that the Company is engaged in traffic, commerce. and trans-
portation among the several States, and that the employees of the
Company employed on its towboats are directly engaged in such traffic,
commerce, and transportation.
II. THE ORGANIZATION INVOLVED
Inland Boatmen's Division of National Maritime Union is a labor
organization, affiliated with the Congress of Industrial Organizations,
admitting to membership members of the crews employed by the Com-
pany.
III. THE QUESTION CONCERNING REPRESENTATION
On January 24 and February 27, 1941, the N. M. U. asked the Com-
pany to recognize it as the exclusive bargaining agent for the Com-
pany's employees. The Company replied that it could not legally
recognize the N. M. U. until the Board had certified it as the exclusive
bargaining agency for the Company's employees in an appropriate
unit.
104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A statement prepared by a'Field Examiner of the Board and intro-
duced into evidence discloses that the N. M. U. represents a substantial
number of the Company's employees in the unit hereinafter found to be
appropriate!
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 APPROPRIATE UNIT
N. M. U. contends that the appropriate unit for the purposes of
collective bargaining consists of all members of the crews of the tow-
boats operated by the Company, including captains. The N. M. U.
asserts that captains should be included in the unit because from the
nature of their work they, as distinguished from masters of sea-going
vessels, are in close contact with and do much the same work as the
crews, and because they are not required to hold master's certificates
from the United States Government, as masters of sea-going vessels are. _
The Company has taken no position in regard to the appropriate unit.
While it is true that the captains do much the same work as their
crews and are in close physical contact with them during voyages, it,
is clear that their supervisory powers over the crews are of such a
nature that they should be excluded from the unit. The captains have
the right to hire and discharge their crews, and only rarely are their
actions in this respect reversed by the Company. They are in full
command of their crews during voyages. Under these circumstances
we shall exclude the captains from the appropriate unit.
We find that all members of the crews of the towboats operated by
the Company, excluding captains, constitute a unit appropriate for
the purposes of collective bargaining, and that such unit will insure
to 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.
V. THE DETERMINATION OF REPRESENTATIVES
We find that the question concerning representation which has arisen
can best be resolved by an election by secret ballot. We shall direct
that all employees in the appropriate unit who were employed by the
' The Field Examiner stated that the N . M. U. had submitted for his examination 28
authorization cards, 27 of which bore dates between November 30, 1940, and February 8,
1941 , and one of which was undated ; and that all the cards bore apparently genuine signa-
tures of persons whose names appeared on a Company pay roll for February 1, 1941. At
the hearing an organizer for the N. M . U. testified that he had in his possession 37
authorization cards, and that be had personally witnessed the signing of 32 of such cards.
There are approximately 44 employees in the appropriate unit.
-HIGMAlN TOWING COMPANY 105
Company during the pay-roll period immediately preceding the date
of our Direction of Election, subject to such limitations and additions
as are set forth in said Direction, shall be eligible to vote.
In conducting the election the Regional Director shall determine
in his discretion the exact time, place, and procedure for giving notice
of the election and for balloting on each of the Company's towboats,
provided, however, that each towboat shall be posted with a notice of
election.
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 employees of Higinan Towing Company, Orange, Texas,
within the meaning of Section 9 (c) and Section 2 (6) and (7) of the
Act.
2. All members of the crews of the towboats operated by the
Company, excluding captains, constitute a unit appropriate for the
purposes of collective bargaining within the meaning of Section 9
(b) of the 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
Relations Act, and pursuant to Article III, Section 8, of National
Labor Relations Board Rules and Regulations-Series 2, 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 Higman Towing Company, Orange, Texas, an
election by secret ballot shall be conducted as early as possible, but
not later than thirty (30) days from the date of this Direction, in
conformity with the rules set forth in Section IT, above, for the conduct
of such election, under the direction and supervision of the Regional
Director for the Sixteenth 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 all members of the
crews of the towboats operated by Higmiin Towing Company, who
were employed by the Company during the pay-roll period imme-
diately preceding the date of this Direction, including employees
who did not work during such pay-roll period because they were ill
or on vacation or in the active military service or training of the
United States, or temporarily laid off, but excluding captains and
those who have since quit or been discharged for cause, to determine
106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
whether or not they desire to be represented by Inland Boatmen's
Division of National Maritime Union for the purposes of -collective
bargaining.
MR. EDWIN S. SMITH, dissenting :
I dissent from that portion of the Board's decision which excludes
captains from the appropriate unit. In the water-transportation
industry, supervisory employees have long been organized and have
bargained collectively through labor unions. While such officers as
captains are frequently organized in unions of their own, such as,
for example, The National Organization Masters, Mates and Pilots
of America, it has not been unusual in the Board's experience for
them to be included in units together with members of their crews.
They have participated in consent elections, been included in units
with other members of the crew in Board decisions, been covered
by contracts, and bargained collectively on this basis.- Where such
officers have been separately organized, it has normally been by an
organization admitting to membership only licensed officers. The
captains employed by the Company, however, are unlicensed. In
such a case, it is particularly clear that to deny them representation
by the only labor organization which presently seeks to represent
them together with members of their crews would virtually be to
deny them representation altogether. That the captains desire such
representation is shown by the fact that five of the Company's nine
captains have joined the N. M. U. That the other employees desire
their inclusion in the unit, despite their supervisory status, is clear
from the unit sought to be established by the N. M. U., the only
labor organization seeking to represent the respondent's employees.
Nor has the Company objected to such unit. Under these circum-
stances, I am of the opinion that we should, as we have done in
other cases,3 include the captains in the unit.
2 See, for example , Matter of Mexican Petroleum Corp and Mexpet-American Oil Marine
Employees Association of New Jersey, Inc, 25 N. L R B 862; Matter of The Riverside
and Fort Lee Ferry Company and United Marine Division Local 333, I. L. A, A. F. L,
23 N L R B 493; Matter of Delaware-New Jersey Ferry Company and United Marine
Division, Local No. 333, affiliated walla the A. F. L. and the I L. A , 30 N L R B 820.
s See Matter of Mexican Petroleum Corp. and Mexpet -American Oil Marine Employees
Association of New Jersey, Inc., 25 N. L R B 862; and Matter of The Riverside and
Fort Lee Ferry Company and United Marine Division Local 333, I. L. A, A. F of L.,
23 N. L R B. 300 See also Matter of Delaware-Nero Jersey Ferry Company and United
Marine Division , Local No 333, affiliated with the A. F. of L. and the I L. A , 30 N L R B
820.