Hudson Waterways Corp.

National Labor Relations Board - Board Decisions

Sep 27, 1971

193 N.L.R.B. 378 (N.L.R.B. 1971)

378 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Hudson Waterways Corporation and Seatrains Lines
Inc.' and Transportation Employees Association,
affiliated with District 2, MEBA , AFL-CIO,
Petitioner . Case 2-RC-15542
September 27, 1971
DECISION AND DIRECTION OF
ELECTION
By CHAIRMAN MILLER AND MEMBERS JENKINS
AND KENNEDY
Upon a petition duly filed under Section 9(c) of the
National Labor Relations Act, as amended, a hearing
was held before Hearing Officer Nathaniel H. Janes.
Following the hearing and pursuant to Section 102.67
of the National Labor Relations Board Rules and
Regulations and Statements of Procedure, Series 8, as
amended, the Regional Director for Region 2 trans-
ferred this case to the National Labor Relations
Board for decision. Briefs have been filed by the
Employer and the Petitioner.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-member
panel.
The Board has reviewed the Hearing Officer's
rulings made at the hearing and finds that they are
free from prejudicial error. The rulings are hereby
affirmed.
Upon the entire record in this case, including the
briefs filed by the parties, the Board finds:
1. The Employer is engaged in commerce within
the meaning of the Act and it will effectuate the
purposes of the Act to assert jurisdiction herein.
2. The Petitioner is a labor organization which
claims to represent certain employees of the Employ-
er.
3. The Employer is engaged in the worldwide
maritime portage of cargo and owns and operates for
that purpose a fleet of ships. It is a multicorporate
organization composed of a parent company, Hudson
Waterways Corporation, a New York corporation
with principal offices in New York, New York, and
two wholly owned subsidiaries- Seatrains Lines,
Inc., a Delaware corporation with principal offices in
Weehawken, New Jersey, and Seatrain of California,
a California corporation with principal offices in
Oakland, California. The latter was only recently
established.
This proceeding involves those employees of the
Employer who are called ships paymasters, hereinaft-
er paymasters, and whose principal function is to
facilitate port clearance of the Employer's vessels and
to pay the crewmembers of those vessels. The
Employer has three paymasters who work out of the
New York City offices, two who work out of the
Weehawken, New Jersey, offices, and two who work
out of the Oakland, California, offices. Paymasters at
all three offices are under the ultimate supervision of
Chief Paymaster George Reilly, whose office is in
New York City, and who as the parties agreed, is a
supervisor within the meaning of the Act. Although
other employees of the Employer are currently
covered by collective-bargaining contracts, the pay-
masters have no history of collective bargaining.
The Petitioner seeks to represent a unit confined to
the paymasters who work out of the Employer's New
York, New York, and Weehawken, New Jersey,
facilities. The Employer opposes the petition on the
grounds that the paymasters are either confidential,
managerial, or supervisory employees who should not
therefore be granted bargaining rights under the Act.
The Employer further contends that, in any event, the
requested unit is inappropriate because it would
exclude the paymasters at the Oakland, California,
facility.
We deal first with the Employer's primary conten-
tion that the paymasters are either confidential,
managerial, or supervisory employees. This conten-
tion is grounded on the character of the responsibili-
ties delegated to the paymasters, as below described,
in fulfilling the wage obligations of the Employer in
accord with the provisions of its bargaining contracts
with one or more of the maritime unions representing
its seagoing crews.
The particular tasks which paymasters regularly
perform in paying off a vessel's crew begin when,
some days before a ship is due to arrive in port, the
master of the vessel forwards the payroll figures by
telegram to the appropriate port office of the
Employer. The chief paymaster then assigns the
payoff responsibilities with respect to the arriving
vessel to a particular paymaster. Following estab-
lished procedures, the paymaster studies the master's
payroll and other office records about the vessel's
current voyage and past voyages with a view to
determining the existence of actual or potential areas
of dispute about such matters as the hours actually
worked by individual crewmembers and the computa-
tions of the amounts of overtime pay due. If, as is
sometimes the case, the paymaster's study reveals
actual or potential pay disputes, the paymaster then
confers with the chief paymaster to determine how the
Employer wishes the dispute handled at the point of
payoff. This determination is made, in part, by
reference to the relevant bargaining agreements which
I The name of the Employer appears as amended at the hearing
193 NLRB No. 58
HUDSON WATERWAYS CORP. 379
the Employer has with one or more of the maritime
unions, including M EBA, which represents its vessels'
crews.2 Then, just before the vessel is due in port, the
paymaster compiles the payroll sheets, pulls from the
office files copies of the relevant bargaining contracts
and places them in his portfolio, makes arrangements
for the money to be delivered to the vessel's berth on
the date set for the payoff, and notifies the individuals
whose attendance is necessary at the payoff of the
date and time the vessel is due. Among those
customarily notified are the agents of unions repre-
senting the vessel's crew, the shipping commissioner,
and the local port agent.
The "on-board" portion of the paymaster's tasks
begins when he audits the master's payroll list upon
arriving at the vessel. This audit procedure requires,
inter alia, a review of the supporting documents and a
check for arithmetic errors. This review discloses the
existence, nature, and cause of any pay claims in
dispute arising out of the voyage about such matters
as overtime, late sailings, or inadequate or substan-
dard working conditions. It will also direct the
paymaster's attention to the applicable bargaining
contract provisions. If, on the basis of the information
he has gathered at the vessel, the prior instructions he
may have received at the preparatory stage, and/or
his reference to the relevant provisions of the
bargaining contract, the paymaster believes the claim
has merit, he so advises the master and tries to obtain
the master's agreement to payment of the claim. If the
master refuses agreement, the paymaster withholds
approval and payment of the claim pending either (a)
further discussion of the matter between the master,
the employee's supervisor, the employee, and his
union representative, or (b) reference of the claim to
the chief paymaster for instructions.
After the disputed items have been settled or set
aside, the paymaster prepares the payroll, divides the
cash that has been sent to the ship into pay envelopes,
and distributes the moneys to the ship's crew.3 The
paymaster then audits and settles the master's
accounts, including such items as the moneys received
and the disbursements made while the vessel is away
from port, and the "slop chest" purchases made. At
the request of the master, the paymaster then
performs any other duties necessary to clear the vessel
for further voyage. In order to facilitate the vessel's
clearance from port, the paymaster may, inter alia,
have to place an order with the port agent or the union
hall for the replacements needed for crewmembers
who have left the ship; arrange for the master to be
transported to the port agent's office, or to the office
of the shipping commissioner; type the voyage
articles; and arrange for reproduction of the crew list.
Thereafter, the paymaster returns to the Employer's
offices, makes a final audit of the payroll, prepares a
paymaster's "Voyage Report" and an "Overtime
Analysis" report.4
In contending that paymasters are either confiden-
tial, supervisory, or managerial employees within the
meaning of relevant Board criteria,5 the Employer
asserts that the paymasters' function in settling
disputed pay claims is, in essence , a "grievance-
adjustment" function; that, in performing this func-
tion paymasters obtain or have access to information
of a confidential character about the Employer's
labor relations policies; and that, moreover, if the
paymasters become represented by a union, the
Employer would be exposed to the risk that paymas-
ters would be influenced by their prounion sympa-
thies in "negotiating" settlements of pay disputes with
all maritime unions in general, and by loyalty to their
own union, when dealing with it in particular, thus
confronting the Employer with a "conflict of inter-
2 All crewmembers on ships operated by Hudson Waterways
Corporation and Seatrains Lines , inc , are represented by one or another of
the various maritime unions Seatram of California has no labor
agreements with any union
3 The total amount of moneys paid out depends on the length of the
voyage The record shows that although a payoff may involve a sum as
small as $ 10,000, or one slightly in excess of $100,000 , the average payroll
is usually between $30,000 and $40,000 Moreover , the record discloses
that, on the average , 20 payoffs a month take place for the Employer's
ships.
4 In the "Voyage Report," the paymaster gives some description of the
disputes which arose at the payoff and of their resolution He also may
comment on such matters as the condition of the ship , the conduct of the
payoff, the reasons for any delay in the arrival or departure of the vessel,
and the captain 's performance of his administrative and maritime duties it
is clear from a review of all copies of the reports adduced in evidence that
the object of these ieports is to provide an office record of the conduct of,
and the circumstances connected with, the actual payoff for future
reference There is no uniformity in the paymaster 's various comments
about extraneous matters such as the condition of the ship and the master's
performance of his administrative or maritime duties , except where
individual paymasters have established a personal pattern of reporting
Moreover, there is no evidence that the Employer either relies on these
reports as the basis for corrective action, or takes such action without
independent investigation
5 As the Employer recognizes , the standard which the Board first
enunciated in B F Goodrich Company, 115 NLRB 722, 724, and has since
consistently followed , is that where a party seeks to exclude employees on
the grounds of "confidential " status, it must establish that such employees
"assist and act in a confidential capacity to persons who formulate,
determine , and effectuate management policies in the field of labor
relations" As the Goodrich case makes clear , the quoted criteria are to be
assessed in the conjunctive A similar standard applies to employees sought
to be excluded from the ambit of the Act on the grounds that they are
"managerial" employees However, while "managerial" employees may
properly be excluded from units composed of other employees on the basis
of a "lack of community of interest ," the Board recently held that
"managerial" employees are entitled to the protection and benefits of the
Act See North Arkansas Electric Cooperative, Inc, 185 NLRB No. 83
Subsequently , in circumstances where the entire unit sought was composed
of "managerial" employees, the Board found the unit appropnate and
directed an election therein Bell Aerospace Company, Division of Textron,
Inc, 190 NLRB No 66 The indicia of "Supervisory " status are, of course,
those set out in Section 2(11) of the Act.
380 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
est." We find that the objective facts depicted by the
record do not support the Employer's position.6
In the first place, it seems plain from the record as a
whole that the situations in which paymasters pay
employee wage claims which differ in amount from
those recorded on the payroll lists are confined to
these which are susceptible to resolution in a limited
number of ways. Initially, the paymaster's authority
to resolve pay claims is limited by the provisions of
the applicable collective-bargaining agreement, and
by his knowledge of the Employer's interpretation of
these provisions. Furthermore, with respect to certain
specific claims, the paymaster's discretion is circum-
scribed both by the previous instructions given him by
the chief paymaster and by the past records of like
disputes settled with employer approval. We note, in
this regard, that the paymasters contact the chief
paymaster for further instructions if the claim is
atypical in nature, or cannot be settled to the union's
satisfaction, and that all paymasters carry the home
and office telephone numbers of both the chief
paymaster and the vice president in charge of labor
relations for this purpose. Indeed, no showing was
made that paymasters have ever paid wage claims
which involve some judgment independent of the
decisions or rules already formulated by the Employ-
er and made binding on all concerned. We are thus
unable to conclude that the paymasters' alleged
"authority" to pass upon the merits of an employee's
wage claim goes beyond minor disputes, or that, as a
practical matter, such "authority" involves more than
the performance of a ministerial act within well-
defined and predetermined limits. This kind of
authority falls far short of that envisaged either by the
Act's definition of the "authority.. .to adjust griev-
ances," or by the Board's definition of one who
"formulates, determines or effectuates labor relations
policy," or who acts in a confidential capacity to
others who formulate, determine, or effectuate labor
relations policy.7
Furthermore, and in view of our finding that the
latitude afforded paymasters to "settle" or to pay
disputed wage claims is circumscribed, we believe that
the Employer overstates the fear which it expresses
8 In reaching this conclusion , we rely on the record evidence of the
paymasters ' authority as it has been , and is, exercised by them, and we
have given little weight to the conflicting , self-serving , and generalized
testimony of both Petitioner 's and the Employer's witnesses with respect to
the scope of that authority
r We note , in this regard , the Employer's claim, as elicited in
generalized testimony given by its witnesses, that management officials
seek the opinions of the paymasters on certain questions for the developing
of positions with respect to collective-bargaining negotiations, or the
formulation of future labor relations policies . This type of consultation,
however, does not impute a confidential or managerial status to employees
absent evidence , not present here , that the employees thus consulted are
actually privy to management 's exchanging of views about labor policy in
the performance of their regular duties Indeed , it appears here that the
information the paymasters acquire by virtue of these consultations
that, in the event that the paymasters obtain repre-
sentation rights, they might be tempted to favor
employee claims. It asserts that paymasters are
particularly capable of undermining the Employer's
position and prejudicing its best interests where a
dispute involves an employee represented by the same
union as the paymaster.8 The Board was recently
faced with a similar expression of employer concern
in Bell Aerospace Company, a Division of Textron, Inc.9
There, the Board held that it would not deny
employees the right of representation simply on the
basis of speculative apprehensions. We here note,
moreover, that the Employer possesses, in the
"Paymaster's Voyage Report," the management tool
with which to evaluate the character of the paymas-
ter's performance of his duties, and that substantial
deviations from established policy with regard to the
payment of claims would be readily apparent from
that document. The Employer always possesses, of
course, the means to take corrective action. As stated
in Bell Aerospace Company, supra,
The Employer would still retain the power to
discipline or discharge employees for improper
performance of duty, subject only to such limita-
tions as he might agree to during negotiations.
Experience under the Act indicates no reason to
believe that employers generally lightly bargain
away their disciplinary control over employees.
On all the foregoing facts, we conclude that the
paymasters are employees within the meaning of the
Act who are entitled to be represented by the
Petitioner, or any other union, if they so desire, and
that a question affecting commerce therefore exists
with respect to the representation of employees within
the meaning of Sections 9(c)(1) and 2(6) and (7) of the
Act.
4. There remains for consideration the Employer's
objection to the Petitioner's proposed limitation of the
unit to the paymasters employed at the two east coast
facilities of the Employer and the exclusion, accord-
ingly, of paymasters who are employed at the
Oakland, California, facility.
The Employer claims, contrary to the Petitioner,
pertains solely to wage policy, and this information is, or will be , ultimately
made available to the union representatives . This type of information will
nct confer a confidential status on an employee . Cf. Weyerhaeuser
Company, 173 NLRB 1170, 1173; Chrysler Corporation, 173 NLRB 1046,
1047-48.
6 The Employer could support this contention in the record only by
testimony bordering on conjecture . Its witnesses could not relate any
instance wherein any paymaster had failed to represent the best interests of
the Employer in recent payoffs, although it must be obvious to the
Employer that the Petitioner has the support of at least some of its
paymasters. Indeed, the import of the Employer's testimony is that the
paymasters have continued to perform their duties diligently and
admirably. We will not, therefore , presume that a change in this state of
affairs will follow , ipso facto, from our direction of an election herein.
9 Fn. 5, supra.
HUDSON WATERWAYS CORP. 381
that only an overall unit extending, in scope, to all
three of the facilities can be appropriate in the
circumstances of this case. In support of its unit
position, the Employer relies on the undisputed facts
that all its paymasters have the same functions and
responsibilities, work under substantially the same
conditions, share the same benefits and are under the
same overall supervision of the chief paymaster.
Although these facts plainly support the appropriate-
ness of an overall unit, we do not find that they negate
the appropriateness of the less extensive unit sought
by the Petitioner. We note in this regard that the
proposed exclusion of the Oakland, California,
facility is supported by its geographic separation of
over 3,000 miles from the other facilities; that there is
no regular interchange between the east coast pay-
masters and those located on the west coast; that
there is no history of collective bargaining with
respect to the unit sought by the Petitioner; and that
no union is presently seeking to represent the
Employer's paymasters on an overall unit basis.10
We find on the basis of the foregoing that the
following employees of the Employer constitute a unit
appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act:
All ships paymasters employed in the New York,
New York, office of Hudson Waterways Corpora-
tion and in the Weehawken, New Jersey, office of
Seatrains Lines, Inc., excluding all ships paymas-
ters employed in the Oakland, California, office of
Seatrain Lines of California; production and
maintenance employees; plant and office clerical
employees; guards, the chief paymaster and all
other supervisors as defined in the Act.
(Direction of Electionll omitted from publication.)
10 Cf. Sea-Land Service, Inc, 137 NLRB 546 In Adams Drug Co, 164
NLRB 594, 595, the Board stated that "in the absence of any history of
collective bargaining, where no labor organization is seeking a broader
appropriate unit, the Board has long held that the petitioning labor
organization needs only to establish that the group of employees it has
attempted to organize and seeks to represent is 'an' appropriate unit "
(Citation omitted )
11 In order to assure that all eligible voters may have the opportunity to
be informed of the issues in the exercise of their statutory right to vote, all
parties to the election should have access to a list of voters and their
addresses which may be used to communicate with them Excelsior
Underwear Inc, 156 NLRB 1236, N L R B v Wyman-Gordon Co, 394 U S
759 Accordingly, it is hereby directed that an election eligibility list,
containing the names and addresses of all the eligible voters, must be filed
by the Employer with the Regional Director for Region 2 within 7 days of
the date of this Decision and Direction of Election The Regional Director
shall make the list available to all parties to the election No extension of
time to file this list shall be granted by the Regional Director except in
extraordinary circumstances Failure to comply with this requirement shall
be grounds for setting aside the election whenever proper objections are
filed