James McWilliams Blue Line, Inc.

National Labor Relations Board - Board Decisions

Mar 11, 1940

21 N.L.R.B. 470 (N.L.R.B. 1940)

In the Matter of JAMES MCWILLIAMS BLUE LINE, INC. and INLAND
BOATMEN'S DlvlsioN, NATIONAL MARITIME UNION, C. I. 0., AND
LOCAL 933-1, INTERNATIONAL LONGSHOREMEN'S ASSOCIATION
Case No. RE-6.-Decided March 11, 1940
Marine Transportation Industry-Investigation of Representatives : contro-
versy concerning representation of employees : claim of majority by rival
union after certification by Board of one union ; Company refusal to negotiate
with latter union because of question concerning representation ; certification
over a year old at time of investigation ; petition filed by employer-Unit Ap-
propriate for Collective Bargaining : coal-barge and stake-boat captains of the
Company ; stipulation as to by the labor organizations involved-Representa-
tives: unopposed preference of one union as to eligibility date given effect-
Election Ordered
Mr. Albert Ornstein, for the Board.
MacLin, Brown, Lenahan d Speer, by Mr. R. F. Lenahan, of New
York City, for the Company.
Mr. William L. Standard, by Mr. Max Lustig, of New York City,
for the N. M. U.
Mr. J. F. Matthews, of New York City, for the I. L. A.
Mr. Bertram Diamond, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
On November 21, 1939, and on December 22, 193,9, James McWil-
liams Blue Line, Inc., New York City, herein called the Company,
filed with the Regional Director for the Second Region (New York
City) a petition alleging that a question affecting commerce had
arisen concerning the representation of employees of 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 January 3, 1940, 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 Regulations-Series 2, ordered -an
21 N L R B., No 42
470
JAMES McWILLTAMS BLUE LINE, INC. 471
investigation and authorized the Regional Director to conduct it and
to provide for an appropriate hearing upon due notice.
On January 31, 1940, the Regional Director issued a notice of
hearing, copies of which were duly served upon the Company and
upon Inland Boatmen's Division, National Maritime Union, C. I. 0.,
herein called the N. M. U., and Tidewater Boatmen's Union, Local
933-1, International Longshoremen's Association, A. F. of L., herein
called the I. L. A., labor organizations claiming to represent em-
ployees directly affected by the investigation. Pursuant to notice, a
hearing was held on February 13, 1940, at New York City, before
Joseph L. Maguire, the Trial Examiner duly designated by the
Board. The Board, the Company, the N. M. U., and the I. L. A.
were represented by counsel or official representative, and participated
in the hearing. Full opportunity to be heard, to examine and cross-
examine witnesses, and to introduce evidence bearing on the issues
was afforded to all parties. During the course of the hearing the
Trial Examiner made several rulings on motions and on objections
to the admission of evidence. The Board has reviewed the rulings
of the Trial Examiner and finds that no prejudicial errors were
committed. The rulings are hereby affirmed. The Trial Examiner
reserved decision on two motions to dismiss the petition made at the
hearing by•the N. M. U. For reasons stated in the succeeding por-
tions of this Decision and Direction of Election we hereby deny
these motions.
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
James McWilliams Blue Line, Inc., is a New Jersey corpora-
tion with its principal place of business at New York City. It is
engaged in the business of transportation of oil, coal, sand; crushed
stone; clay, and scrap iron by tugs and barges. The Company trans-
ports oil principally from New York City and New Jersey to Con-
necticut, Rhode Island, and Massachusetts; it obtains oil from ocean-
going tankers and transports it to these New England States. The
coal which it carries originates in Pennsylvania, Virginia, West Vir-
ginia, Kentucky, and also in Russia. It is transported by the Company
from New Jersey, Connecticut, and ocean-going freighters to Rhode
Island, Connecticut, and Massachusetts. The Company transports
sand and clay from New Jersey and New York to Connecticut ;
crushed stone, from Connecticut to Rhode Island and Massachusetts;
scrap it n, from Connecticut to New York principally, as well as
472 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
from Massachusetts and Rhode Island to New York. These com-
modities are transported on the waters of Long Island Sound, the
New York State Barge Canal, the East River, the Hudson River, and
connecting inland waterways. The Company owns 39 coal barges,
4 stake boats, 4 oil barges, and 6 tug boats. At the date of the hear-
ing it was operating all these vessels, with the exception of two tug
boats. The capacity of the coal barges varies from 850 to 1550 tons.
The oil barges have a capacity of from 500,000 to 600,000 gallons.
II. THE ORGANIZATIONS INVOLVED
Inland Boatmen's Division, National Maritime Union, is a labor
organization affiliated with the Congress of Industrial Organizations.
Tidewater Boatmen's Union, Local 933-1, International Longshore-
men's Association, is a labor organization affiliated with the American
Federation of Labor.
Both organizations admit to membership employees of the Com-
pany in the unit hereinafter found to be appropriate.
III. THE QUESTION CONCERNING REPRESENTATION
On June 15, 1938, Inland Boatmen's Union of the Atlantic and
Gulf, Local No. 2, to which the N. M. U. is successor , was certified
by the Board as the exclusive bargaining representative of all the,
company's unlicensed personnel employed on coal and oil barges.' On
November 16 , 1938, it concluded an exclusive bargaining contract
with the Company for its coal-barge and stake-boat employees.
Thereafter , during the life of the agreement , the Company was ap-
proached about half a dozen times by representatives of the I. L. A.
The I. L. A. claimed to represent a majority of the men covered by
the existing contract , and it was understood by the parties that the
I. L. A. would seek to make effective its claim when that contract
expired. • While the contract was in force the Company was faced
on several occasions with the refusal of stevedores , hoistermen, and
other members of A. F . L. unions to work with , or on, barges not
manned by members of the I . L. A. On October 13 , 1939, the Com-
pany gave notice of its desire to terminate the agreement , which, in
accordance with its provisions , thereafter expired on November 16,
1939. The Company subsequently refused the request of the N. M. U.
to negotiate a new agreement on the ground that it was going to
petition for a settlement of the question of representation. About the
same time it received a letter from the I . L. A. claiming the member-
'Matter of James McTVillianis Blue Line, Tne and Inland Boatmen 's Union of the
Atlantic and Gulf , 7 N. L. R B 923
JAMES MCVVILLIAMS BLUE LINE, INC. 473
ship of a majority of the Company's employees 2 and asking the
Company to deal with it as the collective bargaining agency. At the
hearing the I. L. A. asserted that it represented a majority of the
employees involved. The N. M. U. relied on its prior certification
for proof of majority. That certification is more than a year old.
We find that a question has arisen concerning the representation of
employees of the Company.
IV. THE EFFECT OF THE QUESTION CONCERNING REPRESENTATION UPON
COMMERCE
We find that the question concerning representation which has
arisen, occuring in connection with the operations of the Company
described in Section I above, has a close, intimate, and substantial
relation to trade, traffic, and commerce among the several States,
and tends to lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
V. THE APPROPRIATE UNIT
At the time of the hearing the Company employed on its vessels
approximately 110 employees of whom about 39 worked on its coal
barges and about 4 worked on its stake boats.- There is only one
employee on each stake boat and coal barge; he is known as a coal-
barge or stake-boat captain.
The I. L. A. and the N. M. U. stipulated that all the employees of
the Company who are engaged as coal-barge and stake-boat captains
constitute a unit appropriate for the purposes of collective bargain-
ing. The Company took no position with respect to the appropriate
unit. We see no reason to depart from the unit agreed upon by
both labor organizations.
We find that all the employees of the Company engaged as coal-
barge and stake-boat captains constitute a unit appropriate for the
purposes of collective bargaining and that said 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.
VI. THE DETERMINATION OF REPRESENTATIVES
The question concerning representation which has arisen can best
be resolved by an election by secret ballot.
2 Since the Company has closed-shop contracts with a sister local of the I. L. A. for its
tug boats and oil barges, and since the jurisdiction of the local herein involved does not
extend to these vessels , we understand this assertion to mean a majority among the
coal-barge and stake -boat employees of the Company.
474 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The N. M. U., the only party which has expressed a preference
for a particular pay-roll date for determining eligibility to vote,
suggests January 31, 1940. No objections to this preference were
made. The stake-boat men are employed continuously throughout
the year. There is a dull period with respect to the coal barges in
the winter but practically all of the coal-barge men are retained at
a nominal wage by the Company during this time. Over a period
of years the labor turn-over among the barge men is very slight. In
view of these facts, and of the recency of the date urged by. the
N. M. U., we shall select January 31, 1940, as the appropriate date.
We shall direct that all employees within the appropriate unit who
were on the pay roll on January 31, 1940, including employees who
did not work during such pay-roll period because they were ill or
on vacation, and employees who were then or have since been tem-
porarily laid off, but excluding those who have since quit, or,-been dis-
charged for cause, be eligible to participate in the election.
On the basis of the above findings of fact and upon the entire
record in the proceeding, the Board makes the following:
CONCLUSIONS OF LAW
1. A question affecting commerce has arisen concerning the rep-
resentation of employees of James McWilliams Blue Line, Inc., New
York City, within the meaning of Section 9 (c) and Section 2 (6)
and (7) of the National Labor Relations Act.
2. The coal-barge and stake-boat captains of the Company con-
stitute a unit appropriate for the purposes of collective bargaining,
within the meaning of Section 9 (b) of the National Labor Relations
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 Re-
lations 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 ordered by the Board
to ascertain representatives for the purposes of collective bargaining
with James McWilliams Blue Line, Inc., New York City, 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 Direction of
Election, under the direction and supervision of the Regional Di-
rector for the Second 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 the coal-barge and stake-
JAMES McWILLIAMS BLUE LINE, INC. 475
boat captains of the Company who were employed on January 31,
1940, including employees who did not work during such period be-
cause they were ill or on vacation, and employees who were then or
have since been temporarily laid off, but excluding those who have
since quit or been discharged for cause, to determine whether they
desire to be represented by Inland Boatmen's Division, National
Maritime Union, C. I. 0., or Tidewater Boatmen's Union, Local
933-1, International Longshoremen's Association, A. F. L., for the
purposes of collective bargaining, or by neither.