Isthmian Steamship Co.

National Labor Relations Board - Board Decisions

Jun 11, 1947

74 N.L.R.B. 64 (N.L.R.B. 1947)

In the Matter of ISTHMIAN STEAMSHIP COMPANY and S EAFARERS' Ix-
TERNATIONAL UNION
Case No. 29-R-6030.-Decided June 11, 1947
Mr. Alan F. Perl, for the Board.
Messrs. A. V. Cherbonnier, F. T. Coughlin, and W. W. Long, of New
York City, appearing specially for the Company.
Mr. Benjamin B. Sterling, of New York City, and Messrs. Henry
Kaiser and Janes A. Glenn, of Washington, D. C., for the Seafarers'
International Union.
Mr. William Standard, by Messrs. Herman Rosenfeld and Edward
J. Malament, of New York City, for the National Maritime Union.
DECISION
AND
CERTIFICATION OF REPRESENTATIVES
On March 19, 1946, the National Labor Relations Board, herein
called the Board, issued an Order Directing Election in the above-
entitled proceeding. Pursuant to' the Order, as thereafter amended,
an election by secret ballot was conducted during the period between
March 20 and November 18, 1946, under the direction and supervision
of the Regional Director for the Second Region (New York City).
Upon the conclusion of the election, a Tally of Ballots was furnished
the parties in conformity with the procedures prescribed in the Rules
and Regulations of the Board. The Tally, as revised, showed the
following results :
Approximate number of eligible voteis--------------------- 2, 646
Void ballots---------------------------------------------- 25
Votes cast foi• Seafarers' International Union--------------- 1, 251;
Votes cast for National Maritime Union-------------------- 813
Votes cast for neither------------------------------------- 89
Valid votes counted--------------------------------------- 2,13S
Challenged ballots---------------------------------------- 171
Valid votes counted plus challenged ballots----------------- 2, 3M.
On January 14, 1947, the National Maritime Union, herein called
the NMU, and the Isthmian Steamship Company, herein called the
Company, each filed Objections to conduct affecting the results of the
74 N. L. R. B., No. 17.
64
ISTHMIAN STEAMSHIP COMPANY 65
election. On February 10, 1947, the Regional Director issued and
duly served upon the parties his Report on Objections , recommending
that the Company's Objections be dismissed and that a hearing be
held on the Objections filed by the NMU. The Company failed to
file Exceptions to tlhe Regional Director's report within the time pro-
vided by the Board's Rules and Regulations. Accordingly, its Ob-
jections are hereby dismissed . On February 24, 1947 , the Board or-
dered that a hearing be held only on the NMU Objections.
Pursuant to notice a hearing was held on the NMU Objections
between March 19, 1947, and April 7, 1947, before Arthur Leff, hear-
ing officer. All parties were afforded full opportunity to be heard, to
examine and cross-examine witnesses, and to introduce evidence bear-
ing on the issues raised by said Objections. The NMU and the Sea-
farers' International Union, herein called the SIU, appeared gen-
erally and participated in the hearing. The Company appeared spe-
cially for the purpose of making a motiop for leave to present proof
in support of its Objections, and, when its said notion was denied,
announced that it had no interest in the Objections filed by the NMU,
and thereafter refrained from appearing generally or participating
in the hearing. The rulings of the hearing officer made at the hearing
are free from prejudicial error and are hereby affirmed . Since the
record and briefs, in our opinion, adequately present the issues and
positions of the parties , the NMU's request for oral argument before
the Board is hereby denied.
Upon the entire record in this case , including the record previously
made. the Board makes the following:
FINDINGS OF FACT
In all, 86 vessels were balloted in the election which was conducted
over a period of 8 months at 19 different ports located on the Atlantic
seaboard , the Gulf area , the Pacific Coast and Honolulu . The NMU
Objections allege in substance that before and after the commencement
of the election , the Company :
(a) Entered into an agreement with the. SIU under which the SIU
would be permitted to furnish crew members for company vessels and
NMU members would be denied employment;
(b) Discriminated against NMU members while giving preferential
treatment, to SIU nienibers with respect to employment on company
vessels, and generally established and made known a preferential em-
ployment policy in favor of the SIU;
(c) Discharged N''IU iiieuibers with a view toward influencing; the
employees' choice of a bargaining agent; and
(d) Otherwise assisted tbc^ SIU.
66 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The NMU made no effort to establish, nor does the record other-
wise show, the existence of an express agreement between the Company
and the'SIU for preferential hiring of SIU members. Instead, the
NMU sought to establish inferentially, by reference lo specific ' in-
cidents of alleged discriminatory hiring, that the Company pursued
a company-wide policy designed to influence the outcome of the
election by favoring the SIU and discriminating against the NMU in
its employment practices.
A considerable portion of the proof relied upon by the NMU in
that connection relates to incidents alleged to have occurred after
March 18, 1946, the voting eligibility date fixed in the Order Directing
Election. Such proof we regard, in the particular circurcistances of
this case, as having negligible probative value. Obviously, any pref-
erential hiring of SIU seamen occurring after the eligibility date
could not' directly have affected the results of the election by adding
to the score of SIU votes. or could it indirectly have influenced the
votes of others on the particular vessel for which they were hired.
The election procedure generally followed was to vote each ship on the
first available post-eligibility date after it reached a domestic port and
before it set out upon another voyage. Thus, employees hired after the
eligibility date could have shipped out only on vessels already voted.
The possibility that post-eligibility preferential hiring might have
had an interfering impact upon seamen on other vessels not yet voted
(because they were still on a voyage and had not yet reached a domestic
port) is not only indirect but is, in our opinion, so exceedingly remote
as to be discounted. It is true, as the NMU contends, that the question
concerning representation remained unresolved after the eligibility
date. But the primary issue in this case is not whether the Company
engaged in unfair labor practices generally, but whether by its conduct
in claimed respects it improperly influenced the results of a particular
election.
To support its claim that the Company engaged in discriminatory
hiring practices, the NMU offered evidence relating to the following
ports:-New York City, Baltimore, Norfolk, Savannah, Mobile, Los
Angeles, San Francisco, New Orleans, and Galveston.
At New York City, the Company's hone and principal port, no
proof was submitted to show any preferential hiring prior to the
eligibility date, and even such evidence as the NMU did offer relating
to the post -eligibility period failed to substantiate the all'egations of
its objections. Credible evidence, largely documented, was adduced
by the SIU establishing that the only means employed by it in placing
men on company vessels at this port was to flood the company office
with SIU seamen who were instructed to conceal their union affilia-
ISTHMIAN STEAMSHIP COMPANY 67
tion, and that only a small percentage of such seamen were actually
hired. The New York evidence, viewed as a whole, not only fails to
,support, it persuasively refutes, the NMU contention that the Com-
pany followed a preferential employment policy in favor of the SIU
on a national scale.
At Baltimore, the NMU relied upon the testimony of two witnesses,
William Shikes and James Watkins, to support its claim of prefer-
ential hiring during the preeligibility period.' Shikes testified that
in January 1946 he overheard Isthmian Representative Flynn make a
telephone call to one whose name he could not identify but whom he
then knew to be an SIU organizer and order a number of seamen for a
vessel. Shikes' testimony, however, is not viewed as reliable. His
cross-examination reflects that he did not really know to whom Flynn
spoke and that his identification of the person as an SIU organizer
was based on hypothesis. His testimony, moreover, fails to rule out
the possibility that Flynn was requesting men for one of the non-
Isthmian ships which, the record shows, the Company serviced at
Baltimore. Watkins testified that in December 1945, while waiting at
the Isthmian office for an assignment slip, he overheard the boatswain
of an Isthmian vessel then in port tell Flynn i.hat he was going to the
.SIU hall and ask Flynn what replacements were required, informa-
tion which Flynn supplied. There is no evidence, however, that Flynn
during that period refused to supply similar information upon re-
quest to a member of the NMU; nor is there any evidence that the
Company at Baltimore ever denied a qualified NMU seaman a job
when one was available. We find that the evidence relied upon by
the NMU does not supply a sufficient basis upon which to predicate
a finding that the Company at Baltimore engaged in discriminatory
hiring practices during the period here viewed as criticar.
At Norfolk, there is likewise no reliable, substantial, and probative
evidence to support the NMU Objections. One witness, Morris
Kamelhaar, testified that on December 8, 1945, at the office at Norton
Lilly & Co., Isthmian agents at Norfolk, to which he had been sent by
the New York Isthmian office for placement on the Isthmian vessel,
Baton Rouge, he observed a person whom he identified as Bill Higgs, an
SIU organizer, cross check with an Isthmian representative a list con-
taining the names of 20 seamen who later boarded the Baton Rouge
with him.2 Higgs, called as a witness by the SIU, was positive in his
3 A third witness , Robert Clarke , testified that he obtained a job on a company vessel in
October 1945, after presenting a note from the SIU office That, however, was prior to the
date the representation petition was filed , when no question concerning representation
existed.
2 The vote on the Baton Rouge was NMU-21, SIU-14.
68 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
denial that he was in Norfolk at the time. Kamelhaar's identification
of Higgs was indefinite, and his testimony is not credited.
At Savannah and at Mobile, the only evidence offered by the NMU
related to the period after the eligibility date.
At Los Angeles, the NMU relied upon a single witness, Morton
Halpern, who testified that in February 1946, after calling with a
friend, who wore an NMU button, at the Isthmian office where he
was told there were no jobs, he had boarded the Isthmian Sea Fiddler,
then in port, and had there been hired by the First Engineer to whom
he had been introduced by the SIU ship organizer. Halpern's testi-
mony, although undenied, is not viewed as sufficient to support an
inference that the Company followed a policy of preferential hiring
in the Los Angeles area. It shows at most that an individual officer
on the Sea Fiddler, sympathetic to the SIU, cooperated with an SIU
organizer in placing a single seaman whom he supposed to be an SIU
seaman on that vessel. The record contains no evidence indicating
similar conduct on the, part of other Isthmian ship officers. Indeed,
Halpern's own testimony shows that, although the First Engineer
was "violently anti-NMU," there were other officers on the vessel who
were sympathetic to the NMU. The record reflects that a majority
of the crew on the Sea Fiddler was hired at the time Halpern secured
his job, and that, when the vessel was voted at the end of its voyage,
the NMU received 44 votes as against 14 for the SIU.
At San Francisco, also, there is no reliable, probative, and substan-
tial evidence to support a finding that the Company engaged in dis-
criminatory hiring practices during the period which we view as criti-
cal. The testimony of three NMU witnesses related directly to that
period. That of one, Irwin Trenhath, is not credited 3 That of an-
other, Thoihas Flook, serves, if anything, to refute the NMU conten-
tion. Flook testified merely that, after visiting the Isthmian office
daily for a period of about 2 week in February 1946, he was placed on
the Isthmian David W. Field.i h by Burns who did not question him
concerning his union membership. That of the third, Morris Klopot,
is inconclusive, self-contradictory, and unreliable. Klopot, a seaman
employed aboard the Isthmian Alamo Victory, testified that on March
1, 1946, when that vessel was docked at Alameda, he observed SIU
8 Trenhath testified that in January 1946, after being advised at the Isthmian office
that there were no openings , he was taken by an SIU friend to the SIU office where Organ-
izer Banks gave his friend a note to Isthmian Personnel Manager Burns , who, upon receipt
of the note , immediately gave him a job on an Isthmian vessel, although many others, some
of them NMU members, were in the Isthmian office at that time seeking employment.
Banks denied that, except on one occasion long later , he had ever given any seaman it note
to Burns . Trenhath on cross-examination was unable to state the name of his SIU friend
Nsho had taken him to see Banks , and his testimony was vague , indefinite , and evasive
concerning other relevant details We consider his testimony to be unreliable
'The Fields voted NMU-13; SIU-8.
ISTHMIAN STEAMSHIP COMPANY 69
Organizer Turner board the vessel ; that shortly thereafter the First
Mate came out and made a telephone call; and that, after making the
call, .the First Mate advised the watchman that he expected replace-
ments from the SIU hail who were to be sent to the deck as soon as
they arrived. But it appears from Klopot's further testimony that
of the 10 replacements taken on at Alameda, some were NMU, some
were non-union, and some were SIU.5 Principal reliance at San
Francisco was placed by the NMU upon the testimony of Enid Connor,
the wife of an NMU member and former organizer, and herself a
former NMU employee at Seattle, who, front August to November
1946, occupied the position of secretary to Burns, Isthmian personnel
manager at that port. Coimor testified at some length concerning the
Company's hiring practices at that office during the period of her em-
ployment. We find it unnecessary to dwell upon her testimony or to
pass upon its credibility, for her testimony relates wholly to a period
long after the commencement of the election, when, as already in-
dicated, discriminatory hiring practices could have had no substantial
effect upon the outcome of the•election. Standing alone and unsup-
ported by substantial proof showing that like practices were followed
during an earlier period when it might have had such effect, her testi-
mony, even though credited, can be accorded no probative weight. We
conclude that the NMU has failed to support its objections in the San
Francisco area.
Only at New Orleans and at Galveston is there evidence tending to
support the NMU objection regarding preferential hiring. Uncon-
tradicted evidence establishes, and we find, that beginning about Janu-
ary 9, 1946,6 the Isthmian office at New Orleans, at tunes at least, placed
calls for seamen directly with the SIU hall, although qualified sea-
men could have been hired at such times from among applicants at the
Isthmian hall or through the neutral recruitment facilities of the War
Shipping Administration; that as a result qualified NMU applicants
for employment who had satisfactorily served on Isthmian ships be-
fore, such as Ignacio Reyes and James Watkins, were denied employ-
ment; and that it was intimated to two applicants for employment
(Jameson and Kapilowitz) by Isthmian hiring representatives (Bayer-
5 The Alamo Victory nhich was balloted the following month voted 24 for the NMU and
14 for the SIU.
° On January 9, 1946 , the William D. Hoard paid off at New Orleans , and the NMU
pressed through a Goveinment agency certain overtime and loggings grievances for sea-
men on that vessel. William Chondor , NMU organizer at New Orleans, testified that the
NMU, prior to the time the Hoard paid off, experienced no unusual difficulty and had
reasonable success in placing NMU seamen on Isthmian ships through the usual channels-
direct application at the Isthmian hall and registration with the War Shipping Admin-
istration This situation changed after the Hoard paid off, according to Chondor, and
thereafter the NMU , although it continued to follow the same placement procedures, found
it next to impossible to place ,any of its men on Isthniian vessels at New Oritans
'70 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
alin and Johnny Babeck) that the Company was obtaining its seamen
at New Orleans directly from the SIU hall .7 The evidence at Galves-
ton is in part related to that at New Orleans but involves a single vessel,
the Norman Mack. The credible evidence reflects, and we find, that the
Norman Mack, while in drydock at Galveston in early March 1946, was
manned by seamen recruited directly from the SIU.s
As for the remaining allegations of the NMU objections, there is
little record support. The record does show that Ignacio Reyes, a
chief steward, had succeeded in having himself placed through the
SIU on the Norman Mack in Galveston by simulating an interest in the
SIU; that, when his NMU allegiance was discovered, he was severely
beaten by SIU members of the crew ; and that on April 14, 1946, the
day preceding the election on that vessel, he was discharged by its
master with the statement, "I don't want two unions fighting on the
ship, and besides I stay with the majority." But apart from this iso-
lated occurrence, the NMU came forward with no proof to substantiate
its allegation that the Company discharged NMU members with a
view toward influencing the employees' choice of a bargaining agent .9
Although the record discloses a few isolated instances of anti-NMU
and pro-SIU statements and conduct by certain ships' officers, they are
not such as to establish a pattern or a design. It appears that while
certain ships' officers expressed themselves in favor of the SIU, others
indicated their favor toward the NMU, and it cannot reasonably be
concluded that the officers on the Company's vessels eiigaged in a
general course of conduct dleslgned to assist the SIU.
T
This finding is based upon uncontradicted testnnony concei nuig specific incidents by
IsMU witnesses Louis Jameson, Mardv Errara, Benjamin ICapiloivitz, James Watkins,
and Wiliam Chondor, and the partially denied but credited testimony of Ignacio Reyes.
A number of SIU witnesses denied generally that there was any collusive hiring arrange-
ment between the SIU and the Company at New Orleans But the SIU made no attempt
to meet and refute the specific evidence of particular incidents adduced by EMU wit-
iicsses-evidence which, although susceptible of diiect contradiction, was allowed to stand
undenied and unexplained True, with the exception of Paul Warren (an SIU official
who did not testify although directly implicated), those who might have contradicted
the testimony of the NMU witnesses were company employees not within the control of the
SIU But none of them was shown to be unavailable and there is nothing in the record
to establish that they would not have responded to subpoena The cumulat ive weight of
the undenied specific testimony , in our opinion, is moie than sufficient to overcome and
successfully refute the general evidence adduced by the SIU.
"According to NMU Organizer Clionder' s testimony , about S Isthmian ships called at
New Orleans during January, February and eaily March 1946, Some of then taking on
substantially full crews, and others only replacements Chondor and other NMU wit-
nesses, however, were able to identity only 6 of then by name The vote on the identified
vessels was SIU-136, NMU-28 So far as the record discloses, the ou13 vessel which
crewed up at Galveston during the preeligibility period was the Norman Mack on which
the vote was SIU-12. NMU-0 Only one other vessel was voted at Galveston, the
Steel Engineer on May 9, 1946, and on that the vote was NMIU-17, SIU-8
8
The NMU in its bill of particulars specifically named 11 persons as having been dis-
criminated against . Of these, 6, in addition to Reyes, testified-James Ahnada, Thomas
Flook, Moiton Halpern, Irwin Trenhath, and William Chondor-but even their own
testimony does not remotely suggest a basis for any such finding
ISTHMIAN STEAMSHIP COMPANY 71
In sum, then, the record fails to substantiate the allegations of the
NMU Objections, save for the proof of preferential hiring at New
Orleans and Galveston, and the discharge of Ignacio Reyes from the
Norman Mack at Galveston. But, so far as the record establishes, or
as may reasonably be inferred therefrom, the Company's preferen-
tial hiring, during the period we regard as critical, was confined to,
the two ports mentioned and did not extend to others. When the
preferential hiring shown is considered in conjunction with other rele-
vant factors-the restricted area of its application, the geographical
separation of the ports, the nature of the maritime industry, and the
organizing techniques employed by the unions therein, among
others-, we do not believe it would be realistic in this case for us
to assume that such conduct had, except on those vessels for which
seamen were hired at New Orleans and Galveston, any impact upon
the election results or the employees' freedom of choice. Nor do we
believe that the deleterious effects of Reyes' discharge, isolated as it
was, may reasonably be interpreted in the special circumstances of
this- case, to have extended beyond the confines of the vessel on which
Reyes was employed. We are satisfied that the record considered
as a whole does not establish such interference as to warrant our
setting aside the election.
Accordingly, we overrule the NMU Objections. Inasmuch as the
SIU has secured a majority of the valid votes cast plus challenged
ballots, we shall certify it as the collective bargaining representative
of the employees in the unit heretofore found appropriate for the pur-
poses of collective bargaining.
CERTIFICATION OF REPRESENTATIVES
IT IS HEREBY CERTIFIED that Seafarers' International Union, affili-
ated with the American Federation of Labor, has been designated by
a majority of all unlicensed personnel in the deck, engineering, and
steward's departments, including chief stewards, on the vessels owned
and/or operated by the Isthmian Steamship Company, whether as
general agent for the War Shipping Administration or as owners,
but excluding all radio operators, cattlemen, veterinarians, hygien-
ists, super-cargo, pharmacist's mates, clerk-typists and all other em-
ployees of the Staff Department as defined in the Staff Officers' Act of
1939, as amended, as their representative for the purposes of collec-
tive bargaining, and that the aforesaid organization is the exclusive
representative of all such employees for the purposes of collective
bargaining, with respect to rates of pay, wages, hours of employment,
and other conditions of employment.