Luckenbach Steamship Company, Inc.

National Labor Relations Board - Board Decisions

May 27, 1939

12 N.L.R.B. 1333 (N.L.R.B. 1939)

In the Matter of LUCKENBACH STEAMSHIP COMPANY, INC. and MARI-
TIME OFI'IcE EMPLOYEES ASSOCIATION, INTERNATIONAL LONGSHORE-
MEN'S AND WAREHOUSEMEN'S UNION, LOCAL 1-44
Cases Nos . C-475 and R-591.Decided May 27, 1939
Water Transportation Industry-Interference , Restraint , and Coercion : insti'
gation of employee to question other employees concerning their membership in
Union ; information obtained communicated to company officials ; threat to'
remove certain departments from their present location to another office, made'
for purpose of hindering union in its bargaining efforts-Discrimination : legiti=
mate reduction in force due to changed business policy found to have "beeip
used as means to discharge four known Union members in order to curb
growth and activity of Union-Ordered : employees to be rehired in the event
employment should become available for them under such system of seniority
or other procedure as has heretofore been followed by the respondent-Collec-
tive Bargaining : charges of refusal to bargain collectively dismissed, upon
failure of proof of current majority representation-Investigation of representa-
tives: controversy concerning representation of employees : controversy con-
cerning appropriate unit, majority status disputed by employer-Unit Appro-
priate for Collective Bargaining: dock-office employees exclusive of executives
having the power to hire and discharge, the claims agent, the pier superintend-
ent, the assistant to the Pacific Coast Marine Superintendent , the superintend-
ent of stevedoring, and the paymaster-Representatives : proof of current ma-
jority representation found insufficient-Election Ordered: election to be con-
ducted at such time as the Board shall in the future direct.
Mr. John P. Jennings, for the Board.
Brobeek, Pheleger d Harrison, by Mr. Gregory Harrison, of San
Francisco, Calif., for the respondent.
Mr. Howard S. Friedman, of counsel to the Board.
DECISION
ORDER
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
On October 23, 1937, Maritime Office Employees Association, Inter-
national Longshoremen's and Warehousemen's Union, Local 1-44,
herein called the Union, filed with the Regional Director for the
Twentieth Region (San Francisco, California) a petition alleging
12 N. L. R. B., No. 130.
1333
1334 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that a question affecting commerce had arisen concerning the rep-
resentation of employees of the Luckenbach Steamship Company,
Inc.,' San Francisco, California, herein called the respondent, and
requesting an investigation and certification of representatives pur-
suant to Section 9 (c) of the National Labor Relations Act, 49 Stat.
449, herein called the Act. An amended petition was filed by the
Union on January 27, 1938.
On November 8, 1937,,the Union filed charges with the Regional
Director alleging that the respondent had engaged in and was en-
gaging, in unfair labor practices affecting commerce within the
meaning of 'Section 8 (1), (3), and (5) and Section 2 (6) and'(7)
of the Act.
On January 12, 1938, ,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 1, as amended, ordered an
investigation of the question concerning representation and author-
ized the Regional Director to conduct it and to provide for an ap-
propriate hearing upon due notice, and acting pursuant to Article
III, Section 10 (c) (2), and Article II, 'Section -37 (b), of said Rules
and Regulations further ordered that the representation case be con-
solidated for the purpose of hearing with the case involving the
charges filed by the Union.
Upon the charges, as amended on January 26, 1938, the Board, by
Alice M. Rosseter, the Regional Director for the Twentieth Region,
issued its complaint dated January '27, 1938, against the respondent,
alleging that the respondent had engaged in and was engaging in
unfair labor practices affecting commerce, within the meaning of
Section 8 (1), (3), and (5) and Section 2 (6) and (7) of the Act.
Copies of the complaint and notice of hearing thereon were duly
served upon the respondent and the Union.
With respect to the unfair labor practices, the complaint alleged
in substance (1) that the respondent had interfered with, restrained,
and coerced and is interfering with, restraining, and coercing its
employees in the exercise of the rights guaranteed in Section 7 of
the Act, by many and sundry acts, including inquiries concerning
the union affiliation of its employees, informing employees in its
claims department that due to the confidential nature of their work
they were not eligible to join or be represented by the Union, threat-
ening to move certain work then performed in the dock offices of the
respondent to the uptown offices if the Union insisted in its claim
to represent the dock-office employees as a unit, and questioning em-
ployees at the uptown offices of the respondent as to whether they
1 The respondent was incorrectly designated in the petition variously as Luckenbach
S. S. Co. and as Luckenbach Gulf S. S. Co.
LUCKENBACH STEAMSHIP COMPANY, INC. 1335
had received union circulars; (2) that the respondent on or about
November 15, 1937, discharged R. J. Winters, R. F. Macedo, B.
O'Connell, and Claude A. Brown from the dock offices at San Fran-
cisco and has refused to reemploy them, because they joined or
assisted the Union and engaged in concerted activities for the pur-
pose of collective bargaining or other mutual aid or protection; and
(3) that, although the Union on and before October 1, 1937, and at
all times thereafter represented a majority of the employees of the
respondent within an appropriate unit, the respondent on or about
October 4 and November 4 and 17, 1937, and at other times, refused to
bargain collectively with the Union as the exclusive bargaining rep-
resentative of the employees in the said unit.
On February 1, 1938, the respondent filed an answer to the amended
petition in which it denied that the unit which the Union requested
was appropriate and that the Union represented any of the em-
ployees of the respondent and on the same date filed an answer to
the complaint, denying that the respondent had engaged in the
alleged unfair labor practices and setting forth certain affirmative
matter.
Pursuant to notice, a hearing upon the petition and the complaint
was held at San Francisco, California, on February 7 and 8, 1938,
before Waldo C. Holden, the Trial Examiner duly designated by
the Board. The Board and the respondent were represented by
counsel and participated in the hearing. Full opportunity to be
heard, to examine and cross-examine witnesses, and to introduce evi-
dence bearing upon 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 these rulings and finds that no prejudicial errors
were committed. The rulings are hereby affirmed.
Pursuant to permission granted by the Trial Examiner, counsel
for the respondent filed a brief on February 16, 1938.
On March 12, 1938, the Trial Examiner filed his Intermediate
Report, copies of which were duly served upon the parties, in which
he found that respondent had engaged in and was engaging in unfair
labor practices within the meaning of Section 8 (1) and (3) of the
Act by discharging and refusing to reemploy the persons named in
the complaint and that the respondent had not engaged in any unfair
labor practice within the meaning of Section 8 (5) of the Act. He
recommended that the respondent be ordered to cease and desist from
its unfair labor practices and to take certain affirmative action to
effectuate the policies of the Act.
Thereafter, the respondent and the Union filed exceptions to the
Intermediate Report and the respondent filed a brief in support of
its exceptions.
1336 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Although the Board on May 6, 1938, notified the respondent and
the Union that they were entitled to request oral argument before
the Board in Washington, D. C., the parties have not availed them-
selves of this opportunity.
The Board has considered the exceptions filed by the respondent
and by the Union and finds them without merit except as they are
consistent with the findings, conclusions, and order set forth below.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The respondent is a Delaware corporation with its principal office
in Wilmington, Delaware. It is engaged in the transportation of
freight, passengers, and mail by water between ports in the State of
California and other States of the United States and foreign countries,
owning and operating as common-carriers vessels for this purpose.
In the conduct of its business, the respondent maintains, among other
facilities, dock offices in San Francisco at piers 29 and 31, herein called
the dock offices, and offices at 100 Bush Street, San Francisco, herein
called the uptown offices. The present proceedings involve only the
employees of the respondent at the said offices in San Francisco.
II. THE ORGANIZATION INVOLVED
Maritime Office Employees Association, International Longshore-
men's and Warehousemen's Union, Local 1-44, is a labor organization
affiliated with the Committee for Industrial Organization and the
Maritime Federation of the Pacific, admitting to its membership all
maritime office employees in the San Francisco Bay area, except
executives having authority to hire and fire.
III. THE UNFAIR LABOR PRACTICES
A. Interference, restraint, and coercion
On October 4, 19371 the Union sent to the respondent a letter stating
that it represented a majority of the dock-office employees of the
respondent and requesting that the respondent meet with the Union to
discuss a collective-bargaining agreement. The respondent made no
reply to this letter.
R. J. Winters, employed at the time as a timekeeper in the dock
office, testified that a few days after October 4, J. W.. Davis , secretary
to W. G. Perow, superintendent in charge of the respondent's dock
office, came to the office where the timekeepers were working and stated
that the office workers were asking for bargaining. He testified further
LUCKENBACH STEAMSHIP COMPANY, INC . 1337
that about half an hour or an hour later Davis returned to the office
and asked him and Macedo, another timekeeper, whether or not they
belonged to the Union; that when neither he nor Macedo replied to
this question, Davis again made such inquiry and stated that he had
to know; that when he and Macedo reluctantly admitted that they
were members of the Union Davis asked what other employees be-
longed and that he was informed that O'Connell and Bird, two other
employees, were' also members. Macedo testified that Winters' testi-
mony was accurate. It was stipulated that Brown, another employee,
would, if called, testify "that a few days subsequent to October 4,
1937, he was asked, along with several other men, by Davis, whether
or not he belonged to the Union, which question at the time he
answered in the affirmative."
Davis admitted at the hearing that he had asked Winters, Macedo,
and Brown, as to whether they belonged to the Union and that he
had questioned most of the other employees concerning their affilia-
tion with the Union, but stated that he did not recall anything else
that occurred on the morning of October 4. He testified that he had
asked the questions as to union membership solely upon his own ini-
tiative and for his own benefit, without any solicitation on the part
of any of the respondent's officials; that "if they have a bargaining
agency they will bargain for me . . . so naturally . . . I would like
to have a voice in the matter"; and that the information which he
obtained was not communicated to any officer of the respondent or to
anyone else.
The respondent contends that it did not seek or receive any infor-
mation as to the membership in the Union of its employees and that
it did not know of and is not responsible for any acts of Davis.
Although Davis' duties involve primarily the handling of Perow's
correspondence, he also aids in assisting new men at the dock office
and frequently delivers orders from Perow. That the employees con-
sidered that Davis' position was such as to relate him closely with
the management is indicated by their reluctance to disclose their
union affiliation to him. The questioning by Davis took place shortly
after the Union's demand to the respondent for recognition and, as
we note in subsection B below, was followed soon thereafter by the
discriminatory discharge of employees questioned by Davis.
In view of the foregoing, we conclude that Davis in questioning
employees did not do so on his own initiative but at the instigation of
the respondent, and also that the information which he obtained was
communicated to officials of the respondent. We further conclude
that even if Davis had questioned the employees on his own initiative
that his position with the respondent was such as to make it respon-
sible for his acts. The questioning of employees concerning their
1338 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
membership in the Union constituted an interference with the rights
guaranteed employees by the Act.
About October 14, 1937, Williams, organizer and business agent of
the Union, communicated by telephone with J. G. Euson, Pacific Coast
manager of the respondent, and the latter agreed to confer with Wil-
liams on October 18. Euson refused, however, to allow a representative
of the Pacific Coast Labor Bureau to be present at the meeting. When
Williams and Euson conferred on October 18, Eusol refused to bar-
gain with the Union, stating that the Union did not represent a major-
ity of the employees in the unit which the Union claimed was appro-
priate and that, in addition, such unit was not in fact appropriate.
Euson further stated that if the Union was too insistent upon the inclu-
sion of the workers in the claims department who the respondent claims
are confidential employees in the one unit with other employees at the
dock offices, it would be possible for the respondent to move the claims
department and certain other departments from the dock offices to the
uptown offices. When viewed in the light of undisputed evidence that
the said departments had been at the dock offices for 7 years without
any change, that the respondent had effected a saving of $800 to $900
per month by maintaining the departments at the dock offices, and that
shortly prior thereto the respondent's president had given orders that
the overhead be cut down, we think it clear that Euson's statement rela-
tive to the removal of the departments was for the purpose of hinder-
ing the Union in its efforts to bargain with the respondent and that it
constituted an interference with the rights guaranteed employees by
the Act.
We find that the respondent, by virtue of the aforesaid activities of
Davis and the statement of Euson, has interfered with, restrained, and
coerced its employees in the exercise of the rights guaranteed in Section
7 of the Act.
B. The discharges
The complaint alleges that the respondent on or about November 15,
1937, discharged R. J. Winters, R. F. Macedo, B. O'Connell, and Claude
A. Brown, and refuses to reinstate them, for the reason that the said
employees joined and assisted the Union, and engaged in concerted
activities for the purpose of collective bargaining or other mutual aid
and protection. The facts surrounding the discharges of Winters,
Macedo, and O'Connell are substantially similar and we shall therefore
consider their cases together. We shall then consider the discharge
of Brown.
1. R. J. Winters , R. F. Macedo, and B . O'Connell
Winters was first employed by the respondent in 1933 and assigned
to inventory work. In November 1934, he was transferred to the cargo-
LUCKENBACH STEAMSHIP COMPANY, INC. 1339
book department, where he did typing, made up cargo books, sorted
bills of lading, and operated a so-called ditto machine. From Decem-
ber 1935 to the time of his discharge on November 15, 1937, Winters'
duties consisted of work as a timekeeper and the performance of vari-
ous miscellaneous tasks. Winters joined the Maritime Office Employees
Association in December 1936 and attended meetings of the Union
whenever his duties permitted.
Macedo was employed by the respondent as a timekeeper from July
1934 to the date of his discharge on November 15, 1937. After the first
6 or 8 months of his employment, Macedo's duties consisted principally
of making up the pay rolls at the office. He joined the Maritime Office
Employees Association in December 1936 and attended meetings of the
Union whenever his duties permitted.
O'Connell was employed by the respondent from 1923 to the date of
his discharge on November 15, 1937. During this period, he worked
variously as a watchman, in the inventory department, and as a time-
keeper. During the last few years of his employment his work was
principally that of a timekeeper, but he also did incidental clerical
work. He joined the Union in January 1937 and paid dues to it.
The respondent states as the reason for the discharge on November
15, 1937, of the three men in question that the work of the three men
duplicated the work of the gang bosses who kept time sheets and also
that a curtailment in the operations of the respondent necessitated a
reduction in personnel. It calls attention, in this connection, to a series
of events which took place between- 1928 and the hearing date.
About 1928 the respondent concluded that the time reports of the
longshoremen were not kept accurately and accordingly employed a
number of timekeepers to check the individual longshoremen in and
out of the docks. Subsequent to the maritime strike in San Fran-
cisco in 1934, a procedure was, however, generally adopted on the
San Francisco waterfront whereby the time of longshoremen in San
Francisco was recorded by the foreman of each gang upon forms
which, when completed, were approved by the walking bosses of the
steamship companies or other employers of longshoremen. This pro-
cedure and a form for the purpose were approved by the Joint Labor
Relations Committee established under the longshore agreement of
February 4, 1937, to which the respondent was a party. The Joint
Labor Relations Committee held that in the event of any dispute the
timesheets maintained by the gang foremen and approved by the
walking bosses would be controlling. Although the timesheets kept
by the gang foremen were sent to the respondent beginning about
July 1935, the respondent continued to pay on the basis of the time-
sheets kept by its own timekeepers. During or shortly prior to the
summer of 1937, Mr. Gregory, of the Joint Labor Relations Com-
mittee, informed W. G. Perow, Pacific Coast Marine Superintendent
1340 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for the respondent, that complaints were being made concerning the
payments by the respondent to longshoremen and advised Perow
that, in case of any dispute, payment should be on the basis of the
gang foremen's timesheets. About May 1937, and thus about the time,
of the communication from Gregory to Perow, the respondent de-
cided to curtail its service by reducing the sailings between North
Atlantic and Pacific Coast ports from every 5 days to every 7 days.
Edgar F. Luckenbach, the respondent's president, shortly thereafter
sent to J. G. Euson, the respondent's Pacific Coast manager, a letter
stating that the curtailment in sailings would result in a reduction
in revenue and asking Euson to conduct a survey of the effect of
the curtailment on the work of the dock and office forces and to
report with respect to any expenses that might be eliminated. There-
after Euson discussed with Perow the matter of a reduction in the
personnel at the dock offices, but it was decided to defer any such
reduction until after the summer-vacation period. When the matter
was again discussed by Euson and Perow in September 1937, a deci-
sion was made further to defer any final action because of the strike
among teamsters then existing in San Francisco. Sometime prior to
October 8, 1937, Euson and Perow had a further conference at which
a decision was reached to change the system of timekeeping and to
eliminate three timekeepers employed by the respondent. On Oc-
tober 8, 1937, Euson wrote Perow a letter stating that a "Central Pay
Office" was to be established and that Euson should arrange to have
the gang foremen take care of the timesheets. The "Central Pay
Office" had not been established at the time of the hearing and the
respondent conceded that there was no direct connection between
the plans therefor and the termination of employment of the time-
keepers.
By letter dated October 19, 1937, Perow notified W. B. Nobman, the
respondent's paymaster at the dock office, that the change in the time-
keeping system would be effective November 1, 1937, and that due
to the curtailment in operations the positions of Timekeepers Winters,
Macedo, and O'Connell would be eliminated. In accordance with
instructions set forth in the letter, Nobman notified the three men
on October 19, 1937, that their positions were being eliminated and
that payment would be made them until November 15, 1937.
Since November 15, 1937, Winters has on occasion done longshore
work at the respondent's dock and is on the "preferred gang." His
earnings from November 15, 1937, to the date of the hearing for such
work were $115. The respondent secures its men for such work
through the Longshore Hiring Hall in San Francisco. It was stipu-
lated that the respondent had the authority to reject persons so em-
ployed but that when Winters was dispatched to the respondent's
LUCKENBACH STEAMSHIP COMPANY, INC. 1341
dock the respondent accepted him. Since November 15, 1937, Macedo
has also been dispatched by the Longshore Hiring Hall to do long-
shore work for the respondent and for other companies, but he is not
upon the preferred gang. His earnings from November 15, 1937, to
the date of the hearing were approximately $60. Since November
15, 1937, O'Connell has done work as a "Casual" at the respondent's
dock and from November 15 to the date of the hearing had earned
$154.91.
We conclude on the basis of the foregoing that the respondent's
decision to eliminate the positions of the three timekeepers was based
on business considerations. We are convinced, however, that the
respondent timed the carrying out of its decision so as to discourage
membership in the Union and to hinder the Union in its bargaining
efforts. It is to be noted in this connection that Euson's letter to
Perow instructing him to make the changes in the system of time-
keeping was dated October 8, 1937, and thus only 4 days after the
Union had by letter requested the respondent to enter into bargain-
ing negotiations. It was about October 6, 1937, moreover, that J. W.
Davis, secretary to Perow, questioned Winters and Macedo about
their affiliation with the Union and was informed that they and
O'Connell were in fact members of the Union. The respondent states
that it decided about May 1937 to curtail its sailings and that about
this same time it was informed that the timesheets of the gang fore-
men were to be controlling. It contends that the delay in taking any
final action was due to the fact that the summer-vacation period was
approaching and to the existence of the teamsters' strike in Sep-
tember. Under all the circumstances here presented,- we do not, how-
ever, believe that such constitutes any adequate explanation for the
promptness with which the respondent acted upon being faced with
demands by the Union and upon ascertaining that the timekeepers
were affiliated with the Union.
Under the circumstances, we find that the respondent has discrim-
inated against Winters, Macedo, and O'Connell in regard to their
hire and tenure of employment, thereby discouraging membership in
a labor organization. We find that thereby the respondent has inter-
fered with, restrained, and coerced its employees in the exercise of
the rights guaranteed in Section 7 of the Act.
2. Claude A. Brown
Brown was employed by the respondent in 1927 and assigned to
duties in the purchasing department. In 1929, he was transferred to
the office of the Port Engineer where he assisted with clerical and
other duties. In 1931, the Port Engineer was transferred to Seattle,
Washington, and such of his work as continued at San Francisco was
1342 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
carried on by Mr. Head, assistant Pacific Coast Marine Superintend-
ent. Brown continued in the same office and assisted the purchasing
agent in handling supplies for the engineering department, station-
ery, and other articles.
Brown joined the Union in March 1937 and thereafter paid dues
and attended union meetings.
The respondent states that Brown's position was abolished on
November 15, 1937, in conformance with the respondent's efforts to
reduce expenses and after it was ascertained that his duties were of
little value to the respondent and could well be absorbed by other
employees in view of the diminished volume of business. The facts
set forth below are pertinent in connection with this contention.
As we have found in subsection A, above, J. W. Davis, secretary
to Perow, the respondent's superintendent at the dock office, a few
days after October 4, 1937, questioned Brown as to whether he
belonged to the Union and received an affirmative reply. On October
7, 1937 (and thus about the same time as the questioning by Davis),
W. L. Green, engineering manager at Seattle, wrote a letter to Euson,
stating that the work which Brown had been doing for him during
the past year was a duplication of work being done in Seattle and
that the engineering department did not need a clerical employee in
San Francisco. The letter suggested that Brown be transferred to
whatever department had been using his services most. Upon receipt
of the letter on October 9, 1937, Euson consulted with Perow and
instructed the latter to abolish Brown's position. On October 11,
1937, Perow by letter informed C. A. Kumle, assistant purchasing
agent, of Green's letter and stated that Brown's position would be
eliminated on Deeember 1, 1937. Perow's letter also stated that the
management had heard that Brown had been under the influence of
liquor while on duty and that Kumle had been previously informed
that Brown was to be replaced if he appeared for work in such
condition. Perow forwarded a copy of the letter to Euson. The
latter thereafter informed Perow that he did not want any letter to
be mailed which referred to intoxication and instructed him to have
the letter to Kumle destroyed. The stipulated testimony of Brown
denies that he had been intoxicated while at work as alleged.
Subsequent to October 11, 1937, Brown was informed that his dis-
charge would be effective as of November 1, 1937, and then later that
the correct date was November 15, 1937. The discharge actually be-
came effective as of the latter date.
From the date of his discharge to February 5, 1938, at which time
he was injured, Brown on occasion did longshore work through the
Longshore Hiring Hall in San Francisco. His earnings during this
period were $25.
LUCKENBACH STEAMSHIP COMPANY, INC. 1343
Under the circumstances, we conclude that the respondent abol-
ished Brown's position because of business considerations. We are
convinced, however, that the respondent abolished Brown's position
at the particular time it was so abolished so as to hinder the Union
in its activities and to discourage membership therein.
We find that the respondent has discriminated against Brown in
regard to his hire and tenure of employment, thereby discouraging
membership in a labor organization. We find that thereby the re-
spondent has interfered with, restrained, and coerced its employees
in the exercise of the rights guaranteed in Section 7 of the Act.
C. The alleged refusal to bargain collectively
The complaint alleges that all the employees of the respondent at
its dock office, Piers 29 and 31, San Francisco, except executives hav-
ing the power to hire and discharge, constitute an appropriate unit;
that on and before October 1, 1937, and at all times thereafter, the
Union represented a majority of the employees in said unit; and
that on or about October 4, November 4 and 17, 1937, and at all
times thereafter, the respondent has refused to bargain collectively
with the Union, either as the exclusive representative of the employees
in said unit or at all.
We have noted above that on October 4, 1937, the Union sent to
the respondent a letter stating that it represented a majority of the
employees of the respondent at its dock office and requesting the
respondent to meet with the Union to discuss a collective bargaining
agreement. The respondent did not reply to this letter. Thereafter,
at a conference on October 18, 1937, between Euson, the respondent's
Pacific Coast Manager, and Williams, business agent of the Union,
Euson refused to enter into bargaining negotiations, stating that the
Union did not represent a majority of the employees in the unit
which it claimed was appropriate and that, in addition, such unit
was not in fact appropriate. The Union made further unsuccessful
attempts on November 4 and 17, 1937, to enter into bargaining ne-
gotiations with the respondent.
The record shows that on the dates of the respondent's refusals
to bargain with the Union there were approximately 30 employees
in the unit alleged in the complaint to be appropriate. The Union
submitted in evidence in support of its claim that it represented a
majority of such employees 19 application cards. The cards had
printed at the heading thereof the words "International Longshore-
men's Association, Local 38, I. L. A., Maritime Office Employees
Association," but all the heading except "Maritime Office Employees
Association" was crossed out. Each card also had stamped thereon
the words "Maritime Office Employees Ass'n, C. I. 0." and a few
1344 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the cards bore the words " I. L. W. U." There was no evidence
presented as to the date or dates on which the changes in the cards
were made. Moreover, except as might be implied from the fore-
going, there was no showing as to any connection between Interna-
tional Longshoremen's Association, Local 38, and the Union here
involved which was chartered on October 5, 1937. In its exceptions
to the Intermediate Report, the Union asserts that prior, to October
1937 the members of International Longshoremen's Association,
Local 38, voted to change their affiliation to the International Long-
.shoremen's and Warehousemen's Union and that Local 38 and the
Union are in fact one and the same labor organization.
Even if it be assumed, however, that sufficient showing had been
made with respect to the relationship between Local 38 and the
Union, the evidence introduced is insufficient to prove that the Union
represented a majority of the employees in the alleged appropriate
unit at the time of the refusals to bargain. At least 6 of the 19
application cards were signed in 1936 and thus a considerable time
before the Union requested the respondent to bargain. If these 6
are deducted, the remaining 13 do not constitute a majority.
Since we conclude that the evidence does not sufficiently establish
that the Union had a majority status on the dates in question, it
becomes unnecessary to discuss at this time the appropriateness
of the unit alleged in the complaint to be appropriate. We shall
dismiss the complaint in so far as it alleges that the respondent has
engaged in an unfair labor practice within the meaning of Section
8 (5) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondent set forth in Section III above,
occurring in connection with the operations of the respondent de-
scribed in Section I above, have a close, intimate, and substantial
relation to trade, traffic, and commerce among the several States, and
tend to lead to labor disputes burdening and obstructing commerce
and the free flow of commerce.
V. THE REMEDY
Having found that the respondent has engaged and is engaging
in unfair labor practices, we will order it to cease and desist there-
from and to take certain affirmative action designed to effectuate
the policies of the Act and to restore as nearly as possible the con-
-dition which existed prior to the commission of the unfair labor
practices.
We have found that the respondent abolished the positions held
by Winters, Macedo, O'Connell, and Brown, because of business con-
LUCKENBACH STEAMSHIP COMPANY, INC. 1345
siderations, but that the respondent timed the abolition of the posi-
tions so as to discourage membership in the Union and to hinder
the Union in its bargaining efforts. In view of the respondent's
unfair labor practices, we think there is danger that the respond-
ent will not give employment to these four individuals even if sub-
stantially equivalent positions become open. In order to effectuate
the policies of the Act, we will order the respondent to refrain from
discriminating against Winters, Macedo, O'Connell, and Brown, and
to give employment to said individuals in the event employment
should become available for them under such system of seniority or
other procedure as has heretofore been followed by the respondent.
VI. THE QUESTION CONCERNING REPRESENTATION
We have pointed out above that on various occasions during
October and November 1937, the respondent refused to bargain
collectively with the Union as the exclusive bargaining representa-
tive of the employees of the respondent at its San Francisco dock
offices, exclusive of executives with the authority to hire and dis-
charge. The respondent admits that it refused to bargain with the
Union as such representative, but asserts in justification of its refusal
that the bargaining unit sought by the Union is not appropriate and
that the Union does not represent a majority of such employees.
We find that a question has arisen concerning the representation of
employees of the respondent.
VII. THE EFFECT OF THE QUESTION CONCERNING REPRESENTATION UPON
COMMERCE
We find that the question concerning representation which has
arisen, occurring in connection with the operations of the respondent
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.
VIII. THE APPROPRIATE UNIT
The petition alleges that all the employees of the respondent at its
dock offices, Piers 29 and 31, San Francisco, California, excepting
executives with the power to, hire and discharge, constitute an appro-
priate bargaining unit. At the hearing, the Union took the position
that seven employees in addition to the persons having the authority
to hire and discharge exercise supervisory functions and should be
excluded from the bargaining unit.
1346 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The respondent maintains uptown offices in San Francisco in addi-
tion to the dock offices. It contends that the employees at the uptown
offices should be included in one unit with the employees at the
dock offices. It also contends that the employees in the claims de-
partment at the dock offices should be excluded from the unit on
the ground that they are confidential employees.
The dock offices of the respondent are located at a distance of
approximately a mile and a half from the uptown offices. Although
many of the employees at the uptown offices do work of a character
similar to that done by the clerical employees at the dock offices,
there is little contact between the employees working at the two
offices. Transfers of employees from one office to the other are in-
frequent. One of the respondent's officials testified that there had
not been any transfers in a number of years. A second official
testified that there had been one transfer during the past year and
15 or 16 within the past 17 years. It appears, moreover, that the
so-called transfers are not in the nature of an interchange of em-
ployees but are rather in the nature of promotions of young em-
ployees of promise from the dock offices to the uptown offices when
vacancies occur at the uptown offices. The respondent states that
some of the departments located at the dock offices were formerly
located at the uptown offices and refers to the possibility of a re-
transfer of such departments. The said departments have, how-
ever, been located at the dock for some 7 years and during such
period there have been no transfers of departments between the two
offices. The evidence shows, moreover, that considerable savings
have been effectuated by the respondent in maintaining the depart-
ments at the dock offices. The indications from the record are that
the possibility of a transfer of departments is a remote one. The
evidence further shows that the Union attempted to organize em-
ployees at the uptown offices as well as employees at the dock offices,
but that it was unsuccessful in its attempts as regards employees at
the uptown offices.
Under all the circumstances, we conclude that a unit limited to
employees at the dock offices is an appropriate one. We do not in
reaching this conclusion necessarily decide that one unit composed
of employees at both the uptown and the dock offices would be in-
appropriate. We do not, however, think that the employees at the
dock offices should be denied the right to bargain collectively merely
because the employees at the uptown offices have not been organized.2
s See Matter of Gulf Oil Corporation and International Brotherhood of Boilermakers,
Iron Shipbuilders, Welders & Helpers of America, 4 N L. R . B. 133; Matter of Associated
Press and The American Newspaper Guild, 5 N L. R. B 43.
LUCKENBACH STEAMSHIP COMPANY, INC . 1347
We have noted above that the respondent objects to the inclusion
of the seven employees in the claims department at the dock offices
on the ground that they are confidential employees. There is, how-
ever, little showing in the record that the duties are of a particularly
confidential nature. There is no showing, moreover, that inclusion
of the employees in the claims department in the unit would be in-
consistent in any wise with the best interests of the respondent. We
shall include the employees in the claims department in the bar-
gaining unit.
All parties agree that J. G. Euson, the respondent's Pacific Coast
Manager, and W. G. Perow, the respondent's Pacific Coast Marine
Superintendent, are supervisory employees with the authority to hire
and discharge and should be excluded from the unit. The Union
claims that E. S. Adams, W. W. Conradi, I. Head, J. H. Weller,
W. B. Nobman, J. Hamilton, and C. A. Kumle should also be ex-
cluded from the unit as supervisory employees notwithstanding the
fact that they do not have authority to hire and discharge. Adams
holds the position of claims agent and supervises the work of the
employees in the claims department. Conradi is pier superintendent
and supervises the employees engaged in the handling of cargo at the
dock. Head, as assistant to the Pacific Coast Marine Superintendent,
exercises general supervisory functions and takes over the functions
of his superior when the latter is absent from the dock. Weller
superintends the stevedoring and is in general charge of the foremen
of the longshoremen. The respondent concedes that Adams, Con-
radi, Head, and Weller exercise supervisory functions. Under the
circumstances, we shall exclude them from the bargaining unit.
The respondent denies that Nobman, Hamilton, and Kumle have
any supervisory powers or duties. Nobman holds the position of pay-
master and, under the supervision of Mr. Clifford of the respondent's
uptown Cashier's Department, handles the payment of the longshore-
men at the dock. In making up the pay rolls, Nobman is assisted
by two other employees assigned to the paymaster's office on the dock.
It is to be noted in connection with the functions performed by
Nobman that Perow discussed with him the elimination of the posi-
tions of the timekeepers and that the timekeepers were notified of
their discharges through Nobman. Hamilton holds the position of
assistant port steward and his duties involve the securing of supplies
such as vegetables and meats and having them loaded on the boats.
Although a stenographer is assigned to assist Hamilton, he apparently
does not possess any general supervisory authority. Kumle holds
the position of assistant purchasing agent and his duties consist prin-
cipally of making purchases after requisitions have been approved
169134-39-vol. 12-86
1348 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by Perow. Kumle works under the supervision of Perow and does
not himself apparently have any general supervisory authority.
Under the circumstances, we conclude that Hamilton and Kumle
should be included within the unit and that Nobman should be
excluded therefrom.
We find that the employees of the respondent at its San Francisco
dock offices, excluding executives having the power to hire and dis-
charge, the claims agent, the pier superintendent, the assistant to the
Pacific Coast Marine Superintendent, the superintendent of stevedor-
ing, and the paymaster, constitute a unit appropriate for the pur-
poses of collective bargaining and that said unit will insure to
employees of the respondent the full benefit of their right to self-
organization and to collective bargaining and otherwise effectuate the
policies of the Act.
IX. THE DETERMINATION OF REPRESENTATIVES
In view of the facts set forth in Section III, subdivision C, above,
we find that the question which has arisen concerning representation
of employees of the respondent can best be resolved by means of an
election by secret ballot.
We shall not, however, now fix the date for the holding of the
election since the election should not be held until sufficient time has
elapsed to permit a free choice of representatives unaffected by the
respondent's unfair labor practices. We shall, at the time we specify
the date on which the election is to be held, also specify the date on
the basis of which eligibility to vote in the election shall be determined.
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. Maritime Office Employees Association, International Longshore-
men's and Warehousemen's Union, Local 1-44, is a labor organization,
within the meaning of Section 2 (5) of the Act.
2. By discriminating in regard to the hire and tenure of employ-
ment of R. J. Winters, R. F. Macedo, B. O'Connell, and Claude A.
Brown, thereby discouraging membership in a labor organization,
the respondent has engaged in and is engaging in unfair labor prac-
tices, within the meaning of Section 8 (3) of the Act.
3. The respondent, by interfering with, restraining, and coercing
its employees in the exercise of the rights guaranteed in Section 7
of the Act, has engaged in and is engaging in unfair labor practices,
within the meaning of Section 8 (1) of the Act.
LUCKENBACH STEAMSHIP COMPANY, INC . 1349
4. The aforesaid unfair labor practices are unfair labor practices
affecting commerce, within the meaning of Section 2 (6) and (7)
of the Act.
5. The respondent has not engaged in unfair labor practices within
the meaning of Section 8 (5) of the Act.
6. A question affecting commerce has arisen concerning the repre-
sentation of employees of the respondent within the meaning of
Section 9 (c) and Section 2 (6) and (7) of the Act.
7. The employees of the respondent at its San Francisco dock offices,
exclusive of executives having the power to hire and discharge, the
claims agent, the pier superintendent, the assistant to the Pacific
Coast Marine Superintendent, the superintendent of stevedoring, and
the paymaster, constitute a unit appropriate for the purposes of
collective bargaining, within the meaning of Section 9 (b) of the
Act.
ORDER
Upon the basis of the above findings of fact and conclusions of
law, and pursuant to Section 10 (c) of the National Labor Relations
Act, the National Labor Relations Board hereby orders that the re-
spondent, Luckenbach Steamship Company, Inc., San Francisco,
California, and its officers, agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Discouraging membership or activity in Maritime Office Em-
ployees Association, International Longshoremen's and Warehouse-
men's Union, Local 1-44, or any other labor organization of its em-
ployees, by discriminating in regard to hire and tenure of employment
or any term or condition of employment;
(b) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right of self-organization, to form,
join, or assist labor organizations, to bargain collectively through
representatives of their own choosing, or to engage in concerted ac-
tivities, for the purpose of collective bargaining or other mutual aid
or protection, as guaranteed in Section 7 of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Give employment to R. J. Winters, R. F. Macedo, B. O'Connell,
and Claude A. Brown in the event employment should become avail-
able for them, under such system of seniority or other procedure
as has heretofore been followed by the respondent;
(b) Immediately post and keep posted for a period of at least
sixty (60) consecutive days from the date of posting, notices to its
employees in a conspicuous place at its dock offices, San Francisco,
California, stating that the respondent (1) will cease and desist in the
1350 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
manner set forth in paragraph 1 of this Order, and (2) will take the
affirmative action set forth in paragraph 2 (a) of this Order;
(c) Notify the Regional Director for the Twentieth Region in
writing within ten (10) days from the date of this Order what steps
the respondent has taken to comply herewith.
AND IT IS FURTHER ORDERED that the complaint be, and it hereby is,
dismissed in so far as it alleges that the respondent has engaged in
an unfair labor practice within the meaning of Section 8 (5) 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 Re-
lations Act, 49 Stat. 449, and pursuant to Article III, Section 8,
of National Labor Relations Board Rules and Regulations-Series
1, 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 Luckenbach Steamship Company, Inc., San Francisco, Califor-
nia, an election by secret ballot shall be conducted at such time as
the Board shall hereafter direct, under the direction and super-
vision of the Regional Director for the Twentieth 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 employees of Luckenbach Steamship Company, Inc., at
its San Francisco dock offices, employed by said respondent during a
pay-roll period which the Board shall in the future specify, exclud-
ing executives having the power to hire and discharge, the claims
agent, the pier superintendent, the assistant to the Pacific Coast
Marine Superintendent, the superintendent of stevedoring, and the
paymaster, and excluding also those employees who have after the
eligibility date quit or been discharged for cause, to determine whether
or not they desire to be represented by Maritime Office Employees
Association, International Longshoremen's and Warehousemen's
Union, Local 1-44, for the purposes of collective bargaining.
MR. DONALD WAKEFIELD SMITH took no part in the consideration
of the above Decision, Order, and Direction of Election.