International Mercantile Marine Co.

National Labor Relations Board - Board Decisions

Mar 21, 1936

1 N.L.R.B. 384 (N.L.R.B. 1936)

In the Matter Of INTERNATIONAL MERCANTILE MARINE COMPANY AND
ITS SUBSIDIARIES AND AFFILIATES ^ AMERICAN MERCHANT LINE, PAN-
AMA PACIFIC LINE AND UNITED STATES LINES and INTERNATIONAL
UNION OF OPERATING ENGINEERS, LOCAL No. 3
Case No. R-24.-Decided March 21,1936
Water Transportation Indu8trvy-Unit Appropriate for Collective Bargaining:
community of interest ; craft; history of collective bargaining relations; li-
censed personnel ; occupational differences-Election Ordered: question affecting
commerce : confusion and unrest among employees strike threatened-contro-
versey concerning representation of employees : majority status disputed by em-
ployer ; rival organizations ; substantial doubt as to majority status-individual
bargaining , place on ballot.
Mr. David A. Moscovitz for the Board.
Mr. A. V. Cherbounier for the Company.
Mr. Isaiah S. Dorfman, of counsel to the Board.
DECISION
STATEMENT OF CASE
On November 6, 1935, Local No. 3 of the International Union of Op-
erating Engineers, hereinafter called local No. 3, filed with the Re-
gional Director for the Second Region a petition alleging that a ques-
tion 'affecting commerce had arisen concerning the representation of
the marine and electrical engineers of the International Mercantile
Marine Company, New York City, New York, and requesting an inves-
tigation and certification of representatives pursuant to Section 9 (c)
of the National Labor Relations Act, approved July 5, 1935. On No
vember 12, 1935, the National Labor Relations Board, hereinafter
called the Board, authorized the Regional Director for the Second
Region to conduct an investigation and provide for an appropriate
hearing upon due notice. On February 3, 1936, the Regional Director
issued a notice setting the hearing for February 13, 1936. Notice of
hearing was duly served on the International Mercantile Marine Com-
pany and its subsidiaries and affiliates, the American Merchant Line,
Panama Pacific Line and United States Lines, hereinafter collectively
called the company, local No. 3, the Marine Engineers' Beneficial Asso-
ciation, Local No. 3, hereinafter called the MEBA, and the United
Licensed Officers of the United States of America, hereinafter called
the United. Hearings were held in New York City, New York, on
February 13, 14 and 18, 1936, before a Trial Examiner designated by
384
DECISIONS AND ORDERS 385
order of the 'Board dated February 10, 1936. All who were served
with notice were represented by counsel and participated in the hear-
ing. In the course of the hearing the Master Mates & Pilots of
America, Local 88, hereinafter called Local 88, was given leave to in-
tervene and was represented by counsel and participated in the hear-
ing thereafter. Full opportunity to be heard, to examine and to
cross-examine witnesses and to introduce evidence bearing upon the
issues was afforded to all parties who participated in the hearing.
A brief was submitted on behalf of the company.
Upon the evidence adduced at the hearing and from the entire
record before it, including the pleadings filed, the transcript of the
hearing, exhibits introduced, and brief submitted, the Board makes
the following :
FINDINGS OF FACT
1. International Mercantile Marine Company is and has been
since June 6, 1893, a corporation organized and existing under the
laws of the State of New Jersey, and is, and at all times since said
date, has been engaged in the general cargo and passenger business.
It has its general offices in New York City, New York.
2. International Mercantile Marine Company, through its above
named subsidiaries and affiliates, owns and operates 14 vessels having
a gross tonnage of about 182,946 tons. The company, which is one
of the largest American companies in this business, owns the leases
and operates piers 58 to 62, North River, New York, and a pier at
San Pedro Port, Terminal Island, Los Angeles.
3. The vessels of the company carry freight, passengers and mail.
Outgoing freight is normally brought by truck primarily from the
eastern seaboard and nearby states, and is loaded onto the vessels by
stevedores in the employ of the company. The vessels sail according
to a fixed posted schedule from New York to Liverpool, Plymouth,
Manchester, Le Havre, Hamburg, Havana, Cristobal, Balomar, San
Diego, Los, Angeles, and return. The ports on the west coast are
reached by the vessels only after stops at foreign countries.
4. The company is engaged in traffic and commerce among the
several States and between the United States and foreign countries,
and the engineers employed by the company are directly engaged
in such traffic and commerce.
HAS A QUESTION CONCERNING THE REPRESENTATION OF EMPLOYEES
ARISEN'?
5. William Gallagher, President and business agent of local No. 3,
petitioner in this matter, testified that local No. 3 is a labor organiza-
tion which was organized in the fall of 1934 and that about 85 of
386 NATIONAL LABOR RELATIONS BOARD
the total of approximately 120 engineers employed on the vessels of
the above named subsidiaries of the International Mercantile Marine
Company were members of local No. 3. In support of this statement
he submitted for examination by the Trial Examiner and the Board
only a number of cards alleged to have been signed by employees
of the company authorizing local No. 3 to represent the signers for
collective bargaining. The Trial Examiner denied the company
the privilege of inspecting these cards. Although the company did
not at the hearing object to the introduction of the cards in evidence,
it does in its brief complain of the ruling of the Trial Examiner in
denying it the privilege of inspecting the said cards. As the cards and
Mr. Gallagher's testimony are used merely for the purpose of show-
ing that a question concerning representation has arisen, we do not
think that the company's contention is well founded. We therefore
sustain the ruling of the Trial Examiner in this regard.
6. Captain John Milliken, Treasurer of the United testified that
the United was the result of a union in 1934 of two well established
labor organizations, the Neptune Association and the Ocean Associa-
tion of Marine Engineers, and that he believes that a majority of
the engineers employed by the company are members of the United.
7. William S. Brown, President of the National Marine Engineers'
Beneficial Association, testified that the National Marine Engineers'
Beneficial Association is a labor organization which is in the sixty-
second year of its existence. Joseph F. Lahey, business manager of
the MEBA, testified that in August, 1935, about 82 per cent of the
engineers of the company were members of the MEBA; that a good
many employees signed authorizations for representation by two
unions, local No. 3 and the MEBA; and that he stopped soliciting
authorizations in August or September, 1935, when the company
asked its engineers to sign a pledge which read as follows : "I hereby
pledge my loyalty to the company and renounce all previous pledges
made heretofore," for fear that employees who signed union
authorizations thereafter would be discharged.
8. The question of representation was definitely raised by the
company when it was on separate occasions approached by repre-
sentatives of local No. 3 and the MEBA for the purpose of negotiating
an agreement covering wages, hours and working conditions of the
engineers of the company. The company, through its Vice-Presi-
dent, in July, 1935, informed the representative of the MEBA that
the company would not enter into an agreement with that organiza
tion because "it didn't represent the men at the time." On July 12
1935, the same officer of the company in reply to a request for an
agreement from local No. 3, replied that he was not familiar with the
union, but if he were shown that the employees authorized local No. 3
DECISIONS AND ORDERS 387
to represent them he would take the matter up further. On August
13, 1935, Mr. Gallagher offered to show the Vice-President of the
company authorizations signed by a number of engineers, but he was
nevertheless met with an expression of doubt regarding the authority
of local No. 3 to represent the engineers employed by the company.
9. Throughout the hearing and in its brief the company empha-
sized its willingness to bargain with any organization which could
demonstrate that it represented its employees. In the circumstances
of this case we believe that an election by secret ballot is the only
feasible method by which to ascertain said representatives.
10. We find, therefore, that a question concerning the representa-
tion of the engineers employed by the company has arisen.
WHETHER THE QUESTION CONCERNING REPRESENTATION WHICH HAS
ARISEN IS A QUESTION AFFECTING COMMERCE?
11. The question concerning their representation has created a
state of confusion, uncertainty and unrest among the engineers. The
failure of the company to enter into an agreement with any of the
unions purporting to represent the engineers, and the circulation
among them of the authorization cards of the respective unions and
the pledge of loyalty to the company, as described in paragraph No. 7
hereof, has aggravated the situation. Hovering over this atmosphere
of uncertainty and tension is the possibility of a strike expressed
by William Gallagher as follows :
"Some of the important vessels of this company are one hun-
dred per cent organized and the engineers employed thereon have
been demanding action for more than four months. With the
example of the Radio Telegraphers in this line before them,,
they feel that if they were to walk off the vessel immediately
prior to sailing, the same results we are attempting to receive
through the Regional Labor Board would be obtained within
24 hours."
12. The company in its brief asserts that the only controversy
here is between the respective labor organizations and cannot be con-
strued to involve a question affecting commerce. It is Inanifest, how-
ever, that should the unrest described above result in a strike it
would most certainly impair the efficiency, safety and operation of
the vessels, instrumentalities of foreign and interstate commerce, and
materially restrain the flow of goods in the channels of commerce.
13. We conclude that the question concerning representation which
has arisen is a question in commerce, and tends to lead to labor dis-
pntes burdening and obstructing commerce and the free flow of
commerce.
388 NATIONAL LABOR RELATIONS BOARD
THE APPROPTIATE UNIT FOR THE PURPOSES OF COLLECTIVE BARGAINING AND
EMPLOYEES ELIGIBLE TO PARTICIPATE IN ELECTION
14. The petition filed in this matter sets forth that the unit should
consist of approximately 120 marine engineers and 50 electrical
engineers employed on vessels of the company operating in and out
of the port of New York. At the hearing William Gallagher, on
behalf of the petitioner, local No. 3, stated that the electrical engineers
had since the filing of the petition formed their own union, and them-
selves requested that they be not included in the unit. Neither the
company nor any of the unions represented objected to this. We
hold therefore that electrical engineers shall not be included in the
unit in question here.
15. The company contends that for reasons of discipline the chief
engineers should be in one unit, the assistant engineers in another
and the junior engineers in a third, and not all grouped together in a
single unit. No evidence was introduced in support of this view.
On the other hand, the testimony was unanimous that in the labor
relations of the shipping industry the chief, assistant, and junior
engineers have for many years been considered a homogeneous group
and treated as a unit. It is also worthy of note that all three unions
admitting engineers to membership, claimed to have chief engineers
among their members as well as assistant and junior engineers. Rep-
resentatives of each of the three unions testified that whenever a
contract is entered into between a shipping company, employing all
three classes of engineers, and one of the said unions, the contract
invariably covers wages and working conditions of the chief, assist-
ants and junior engineers. An award, dated August 23, 1935, by a
Board of Arbitration appointed by agreement between the MEBA
and the American Mail Line and eighteen other shipping companies
as a postlude to the Pacific Coast general strike of 1934, was intro-
duced in evidence. It set wages, hours and other working conditions
for chiefs, assistants and licensed junior engineers as a single class,
although providing, of course, for differences in wage rates and some
minor working conditions.
16. In terms of qualifications there is little distinction between
the three classes of engineers. Only the chief and the first three
assistant engineers are required by law to be licensed as such by the
Steamboat Inspection Service of the United States Department of
Commerce. However, it is plain that only licensed engineers are
now hired for the position of junior engineer by this and other steam-
ship companies, and that individuals capable of acting as chief
engineers are often employed as assistant or junior engineers. Eco-
Ilomic necessity has forced licensed engineers to accept junior posi-
tions. Counsel for the company stated at the hearing that practically
everyone who now applies for a job as engineer does in fact have a
DECISIONS AND ORDERS 389
license, but that some "old' timers" without licenses have been
retained as junior engineers. There is testimony in the record that
unlicensed engineers belong to the International Brotherhood of
Firemen and Oilers. For that reason and also because an unlicensed
junior may not be promoted to assistant or chief engineer, we are of
the opinion that unlicensed junior engineers should not be included
in the unit in question. Hereinafter, therefore, any reference to
junior engineers will connote licensed junior engineers only.
17: The degree of authority and the duties of the three classes, of
course, vary to a certain extent. The chief engineer is in charge of
the entire engine department and is responsible to the master of the
ship. The first assistant, except on the very largest vessels, stands
watch or supervises the engine room during certain hours. The
second ' and third assistant and junior engineers also stand watch
during other hours, but in addition have certain 'special duties to
perform. On large ships where engines are located in several parts
of the vessel, the junior is very likely to be in complete charge of one
division very much like the first assistant.
18. From the viewpoint of economic interest all three classes are
vitally interdependent and realistically one. All engineers must
sign new articles of agreement for every round trip voyage. The
company recognizes no seniority rights. A chief engineer on one
voyage may be an assistant, a junior or even unemployed on the fol-
lowing voyage. Similarly, an engineer employed as a junior on one
occasion may be an assistant or a, chief when next he signs ships'
articles. This condition is enhanced by the transfer of men among
the various vessels of the company. Since the status of the engineer
,is subject to change upon such short notice within the range of all
three classes, it is patent that each of the engineers has an economic
interest in the wage rate and working conditions of all who are
employed as engineers regardless of rank.
19. The United requested that the Board define the appropriate
unit for collective bargaining so as to include licensed deck officers
of the company as well as engineers. Since the petition herein filed
and the notice of hearing issued referred only to marine and elec-
trical engineers, it was moved that the notice of hearing be amended
to include licensed deck officers in the suggested unit. The Trial Ex-
aminer allowed evidence to be introduced on the motion and reserved
judgment.
20. In support of its motion the United introduced testimony to
the effect that both licensed engineers and licensed deck officers must
pass certain examinations as a prerequisite to the obtaining of
licenses; that licensed deck officers below the grade of master and
licensed engineers below the grade of chief generally receive about
equivalent salaries for comparable grades; that the period of service
390 NATIONAL LABOR RELATIONS BOARD
for both groups is about the same; and that members of the. United
at one time voted 8 to 1 in favor of admitting to membership en-
gineers as well as deck officers.
21. Captain Edward P. Pinchin, business manager of local 88
testified that local 88 admitted only deck officers to membership;,,that
it represents about 75 per cent of the deck officers employed by.the
.company; and that it desires to protest against the inclusion of deck
officers and engineers in a single unit:
22. It appears that while both licensed deck officers and licensed
engineers must pass examinations given by "the Steamboat Inspection
Service, the substance of the examinations and experience required
differs greatly due to the difference in respective duties.' Deck
officers navigate the ship, stand deck watches and check cargo in and
out of the vessel. As was indicated above, engineers confine their
activities to the engine department. The chief engineer is sub-
ordinate to and takes orders from the master, and receives a lower
wage rate than the master. We find, therefore, that the qualifica-
tions; responsibilities and duties of the licensed engineers differ in
kind from those of licensed deck officers.2
23. In passing upon this motion we also take into consideration
the fact that there are already in this field two well established labor
organizations, the MEBA and local No. 3, whose membership is lim-
ited to engineers, and a third established labor organization, the
Masters, Mates & Pilots, restricted to deck officers. In the light of
this situation; in the absence of proof of a present desire on the
part of engineers and deck officers to combine in one unit; and in
view of the marked difference in qualifications, responsibilities and
duties between the engineers and deck officers, we are of the opinion
that the policy of the Act would be best served here by not requiring
that deck officers and engineers be combined in one unit for purposes
of collective bargaining. We therefore deny the motion of the
United Licensed Officers.
24. We find that all chiefs, assistants and licensed junior engineers
employed as engineers on the vessels of the company operating out
of the port of New York, constitute a unit appropriate for the
purposes of collective bargaining.
THE ELECTION AND THE BALLOT
25. The company in its brief contends that if the Board should
order an election, the voters should be given the privilege of ex-
1 As to qualifications for service as a licensed deck officer see R. S § 4131 ; U. S C Title
46 § 221; R. S. § 4439; U. S. C. Title 46 § 226; R. S. § 4440; U. S. C. Title 46 § 228.
Minimum requirements for licensed engineers are cited in R. S. § 4441 ; U. S. C. Title
46 § 229.
2 For a similar previous ruling by the Board see In the Matter of Delaware -New Jersey
Ferry Co. and M. E. B. A. No. 13-decided December 30, 1935.
DECISIONS AND ORDERS 391
pressing on the , ballot a preference for individual bargaining. Sec-
tion 7 of the Act provides in part that employees shall have the
right to bargain collectively through representatives of their own
choosing . Section 9 ( a) provides that, "Representatives designated
or selected for the purposes of collective bargaining by the majority
of employees in a unit appropriate for such purposes shall be the
exclusive representatives of all the employees in such unit for the
purposes of collective bargaining . . ." Thus both Section 7 and
9 (a) unmistakably indicate that it is for the purposes of collec-
tive bargaining that the Act gives employees the right to designate
or select representatives . The secret ballot provided for in Section
9 (c) is merely one of the devices which this Board is authorized
to employ in ascertaining such representatives for purposes of col-
lective bargaining . It is not our function to hold elections in order
to determine whether employees desire individual rather than collec-
tive bargaining with their employer. Employees who desire indi-
vidual bargaining may either refrain from voting or cast a blank
ballot. The ballot to be used in' this election will therefore not
provide for a place in which a preference for individual bargaining
may be expressed . It will contain the names of the three labor organ-
izations which claim to represent the engineers of the company.
26. In holding this election we must take into consideration that
the various vessels of the company have different sailing dates; that
new ships ' articles are signed for every round trip voyage; that em-
ployees normally sign said articles 2 days before sailing, but in some
instances not until the day of sailing, making it impossible to know
the names of the personnel of a given vessel sufficiently in advance
of sailing time to permit a well ordered election ; that a round trip
.of a vessel may take as long as 2 or 3 months; and that between
sailings the employees may be in port only 2 or 3^ days.
27. In view of these circumstances and in accordance with the
suggestions concurred in by all parties at the hearing , notice of the
election will be posted as soon as is convenient on each vessel of the
company before it leaves the port of New York on the first trip, if
possible, next following the date of the issuance of this decision,
and remain in view until the election is held. Such notice of elec-
tion will be accompanied by a sample ballot and list of engineers
eligible to vote in the election. The ballots will be cast in the
presence of a representative of this Board upon the return of each
vessel to the port of New York at the time and place that 'the
engineers are paid by the company.
28. Due to the peculiar circumstances of this case we find it neces*
sary to limit the right to vote to those engineers within the unit above
described who were employed as engineers on any vessel operated by
the company at any time between November 7, 1935, the date of the
97571-36-vol. i-26
392 NATIONAL LABOR RELATIONS BOARD
filing of the petition, and the date of the direction of election in this
matter and who also make the round trip voyage on the respective
vessels of the company from New York and return at the conclu-
sion of which the election is to be held.
CONCLUSIONS OF LAW
Upon the basis of the above findings, the following conclusions ,of
law are made by the Board :
1. The chief engineers, assistants and licensed junior engineers em-
ployed as engineers on the vessels of the company operating out of
the port of New York constitute a unit appropriate for the purposes
of collective bargaining, within the meaning of Section 9 (b) of the
National Labor Relations Act.
2. A question affecting commerce has arisen concerning the repre•
sentation of chief engineers, assistants and licensed junior engineer,;
employed on the vessels of the International Mercantile Marine Com-
pany and its subsidiaries and affiliates, the United States Lines, the
American Merchant Line and the Panama Pacific Line, within the
meaning of Section 9 (c) 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 Rela-
tions Act, approved July 5, 1935, and pursuant to Article III, Section
8, of National Labor Relations Board Rules and Regulations-Series
1, it is
DIRECTED that, as part of the investigation authorized by the
Board to ascertain representatives for collective bargaining with the
International Mercantile Marine Company and its subsidiaries and
affiliates, the United States Lines, the American Merchant Line and
the Panama Pacific Line, New York City, New York, an election
by secret ballot shall be conducted as soon as convenient, and begin-
ning as promptly as is practicable after the date of this decision, based
on sailing dates of vessels, subject to the suggestions for the adminis-
tration of this election contained hereinabove, under the direction
and supervision of the Regional Director for the Second Region;
acting in this matter as agent of the National Labor Relations Board.
and subject to Article III, Section 9 of said Rules and Regulations,
among the chief engineers, assistant engineers and licensed junior en-
gineers employed as engineers on the vessels of the said United States
Lines, American Merchant Line and Panama Pacific Line operating
out of the port of New York, to determine whether they desire to be
represented by the International Union of Operating Engineers, local
No. 3, or`by the Marine Engineers Beneficial Associaion, local No. 3, or
by the United Licensed Officers of the United States of America.