M. & J. Tracy, Inc.

National Labor Relations Board - Board Decisions

May 13, 1939

12 N.L.R.B. 936 (N.L.R.B. 1939)

In the Matter of M. & J . TRACY, INC. and INLAND BOATMEN'S UNION
Case No. B-760.-Decided May 13, 1939
Shipping Industry-Investigation of Representatives: controversy concerning
representatives of employees : recognition of union, employer's refusal to grant,
on ground of a subsisting contract with another union; substantial doubt as
to majority status, overlapping membership, lack of authentication of signa-
tures; rival organizations-Contract: prior collective contract with rival organ-
ization no bar to investigation and certification-Unit Appropriate for Collec-
tive Bargaining: employer association, with no legal power to contract for its
members as ; barge captains, stipulation as to-Election Ordered
Mr. Richard J. Hickey and Mr. Gordon T. O'Hanlon, for the
Board.
Phillips, Mahoney d Fielding, by Mr. William E. Goldman and
Mr. J. A. Bell, Jr., of New York City, for the Company.
Mr. Wm. L. Standard and Mr. Maw Lustig, of New York City,
for I. B. U.
Mr. Louis Waldman and Mr. David I. Ashe, of New York City,
for Local 933-1 and for I. L. A.
Mary Lemon Schleifer, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
On December 12, 1937, Inland Boatmen's Union, herein called
1. B. U., filed with the Regional Director for the Second Region
(New York City), a petition alleging that a question affecting com-
merce had arisen concerning the representation of the men employed
on barges, scows, and other craft of similar nature, and tugs oper-
ated by M. & J. Tracy, Inc., New York City, herein called the Com-
pany, and requesting an investigation and certification of representa-
tives, pursuant to Section 9 (c) of the National Labor Relations
Act, 49 Stat. 449, herein called the Act. On February 15, 1938, 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 1,
12 N. L. R. B., No. 96.
936
M. & J. TRACY, INC. 937
as amended, ordered an investigation and authorized the Regional
Director to conduct it and to provide for an appropriate hearing
upon due notice.
On March 8, 1938, the Regional Director issued a notice of hearing,
copies of which were duly served upon the Company, I. B. U.,
Marine Division International Longshoremen's Association, Interna-
tional Seamen's Union of America, and the Harbor Carriers of the
Port of New York.' On March 11, 1938, copies of the notice of hear-
ing were also served on Locals No. 996, No. 933-4, No. 933-3, and
No. 933-1, International Longshoremen's Association 2
Pursuant to the notice, a hearing was begun in New York City
on March 14, 1938, before Herman A. Gray, the Trial Examiner
duly designated by the Board. The hearing was adjourned on March
14 and reconvened on April 12, 1938. The Board, the Company,
I. B. U., Local 933-1, and International Longshoremen's Associa-
tion, herein called I. L. A., were represented by counsel and par-
ticipated in the hearing.
At the opening of the hearing, counsel for the Company filed a
written "Plea in Abatement," which constituted, in effect, a motion
to dismiss on the ground that the Board had no jurisdiction to certify
a collective bargaining representative because of a subsisting contract
between the Company and Tidewater Boatmen's Union, Local 933-1,
I. L. A., herein called Local 933-1. Counsel for Local 933-1 and for
I. L. A. joined in the motion to dismiss. No ruling was made by the
Trial Examiner concerning the Plea in Abatement, which, regarded as
a motion to dismiss, is hereby denied. Counsel for all of the parties
stipulated that the evidence adduced in a case previously heard 8
should be considered as having been introduced in evidence in the
instant case. The Trial Examiner granted a motion by counsel for
I. B. U. that the petition be amended so as to request an investiga-
tion and certification of representatives for only the employees
engaged on the barges operated by the Company.
During the course of the hearing, the Trial Examiner reserved
decision on motions by counsel for the Company and counsel for
Local 933-1 and for I. L. A. to dismiss the petition for the reasons
set forth in the Plea in Abatement and for the further reason that
the averments contained in the petition, necessary to the granting of
the relief sought, had not been established by competent legal evi-
dence. The motions are hereby denied.
1 The interest of the latter groups will appear hereafter.
2 As hereafter appears, of the parties served on March 11, 1938, only Local 933-1 has
any interest in the proceedings.
8 Matter of M. & J. Tracy, Inc. and Inland Boatmen's Union, Case No. C-594, 12
N. L. R. B. 916.
938 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On May 28, 1938, the Board ordered the record reopened for the
introduction of further evidence and on June 9, 1938, issued an order
dismissing objections which had been filed by the Company to the
reopening of the record.
Pursuant to notice served upon the parties a supplemental hearing
was held in New York City on August 4, 1938, before Herman A.
Gray. All of the parties who appeared at the original hearing were
represented by counsel and participated in the supplemental hearing.4
Again at the supplemental hearing, the Trial Examiner reserved
decision on a motion by counsel for the Company, in which counsel
for Local 933-1 and for I. L. A. joined, to dismiss the petition. The
motion is hereby denied.
Full opportunity to be heard, to examine and cross-examine wit-
nesses, and to introduce evidence bearing on the issues was afforded
all parties at both hearings. In addition to the rulings already dis-
cussed, numerous other rulings on motions and objections to the
introduction of evidence were made by the Trial Examiner during
the course of the hearings. The Board has reviewed these rulings
and finds that no prejudicial errors were committed. The rulings
are hereby affirmed.
On November 3, 1938, a hearing was held before the Board in
Washington, D. C., for the purpose of oral argument in Matter of
M. ct; J. Tracy, Inc. and Inland Boatmen's Union, Case No. C-594.
Because of the confusion which had arisen concerning the consolida-
tion of the two cases, counsel for Local 933-1 and for I. L. A. ap-
peared at the oral argument and was granted permission by the
Board to argue the issues involved in the instant case and to file a
brief. The brief filed by the Company in Case No. C-594, covered
the instant case also. The Board has considered the briefs of the
Company and of Local 933-1 and I. L. A.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
M. & J. Tracy, Inc., a New York corporation, is engaged in the
transportation of coal and bulk commodities by water routes. The
Company operates deep-sea colliers, barges, and tugs between ports
in the State of New York and ports in other States of the United
States.
A The supplemental hearing covered both the instant case and also Matter of M. cE J.
Tracy, Inc. and Inland Boatmen's Union, Case No. C-594, 12 N. L. R. B. 916. Counsel
for Local 933-1 and for I. L A, objected to the consolidation of the two cases at the
hearing on August 4, 1938. The objection is without merit for although only one record
was made for the two cases heard on August 4, the Board has never consolidated the cases.
M. & J. TRACY, INC. 939
The controversy which has arisen involves only those employees
of the Company who are engaged in the operation of barges. A
barge is an unpropelled harbor craft which is towed by a tug. Only
one employee, designated as a barge captain, is employed on each
barge. The Company owns 229 such barges, approximately 169 of
which were in operation at the time of the hearing. These barges are
operated in the New York harbor between ports in the State of New
York and ports in the State of New Jersey.
The deep-sea colliers operated by the Company are operated be-
tween ports in the State of New York and ports in Virginia, in the
New England States, and on the Gulf of Mexico.
We find that the Company is engaged in traffic, transportation,
and commerce among the several States of the United States.
II. THE LABOR ORGANIZATIONS INVOLVED
Inland Boatmen's Union is, properly, International Inland Boat-
men's Union, having been granted a charter in that name by the
Committee for Industrial Organization on November 17, 1937. In-
ternational Inland Boatmen's Union, is the successor of Inland Boat-
men's Division of the National Maritime Union, which was likewise
affiliated with the Committee for Industrial Organization. Inter-
national Inland Boatmen's Union has subordinate locals having juris-
diction over various types of employees in the New York harbor.
United Boatmen's Local No. 2, having jurisdiction over employees on
unpropelled water craft, is one such subordinate local. Some of the
barge captains employed by the Company are members of United
Boatmen's Local No. 2. International Inland Boatmen's Union and
United Boatmen's Local No. 2 are labor organizations within the
meaning of the Act.
Tidewater Boatmen's Union, Local 933-1, a labor organization, is
a local of International Longshoremen's Association, affiliated with
the American Federation of Labor. Local 933-1 has jurisdiction over
employees on water craft carrying coal and other freight through
the Barge Canal.
III. THE QUESTION CONCERNING REPRESENTATION
During 1937, I. B. U. made several requests to officials of the Com-
pany that the Company bargain collectively with I. B. U. concerning
the wages and working conditions of the barge captains. The Com-
pany refused these requests on the ground that a subsisting contract
between the Company and Local 933-1 prevented it from bargaining
collectively with I. B. U.
In its petition I. B. U. claimed that a majority of the barge cap-
tains employed by the Company wished I. B. U. to represent them for
940 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the purposes of collective bargaining. In substantiation of this claim,
I. B. U. submitted membership and pledge cards signed by some of the
barge captains employed by the Company for examination by the Trial
Examiner and the Board. I. B. U. refused to submit these cards to coun-
sel for the Company, and counsel for Local 933-1 and for I. L. A. for
examination on the ground that, in view of the contract between the
Company and Local 933-1, such an examination might result in the dis-
missal of its members. We have frequently held that we will not com-
pel unions to submit their membership rolls under such circumstances.5
The Trial Examiner checked the cards offered by I. B. U. against a
signed pay roll furnished by the Company, and the result of the check
was admitted in evidence at the hearing on August 4,1938. This check
shows that a substantial number, though less than a majority of the
barge captains employed by the Company, have apparently designated
I. B. U. to represent them by becoming members of that organization.
In addition, Stuart McDonald, a delegate for I. B. U., testified that
he had talked with practically all of the barge captains employed by
the Company and that all but 15 of these employees had orally pledged
themselves to join I. B. U. In view of the contract which exists be-
tween the Company and Local 933-1, discussed hereafter, it is clear
that many employees, even though wishing I. B. U. to represent them,
would hesitate to join the organization for fear of discharge by the
Company.
I. L. A. submitted 159 cards, in which the signer designated Local
933-1 and I. L. A. to represent him, for examination by the Trial
Examiner and the Board. At the hearing on August 4, 1938, the
Trial Examiner stated that he had also checked these cards against the
pay roll of the Company and had sent the result of this check to the
parties, but the record does not show the result of this check. Al-
though these cards are in the possession of the Board, the pay roll
submitted to the Trial Examiner by the Company was not made part
of the record, and the Board is unable to authenticate the signatures
on the cards. In addition, many employees have signed cards in both
organizations and many of the cards submitted by both organizations
are not dated.
The Company and I. L. A. deny the power of the Board to hold an
election or to certify representatives because of the subsisting con-
tract between the Company and Local 933-1. This contract was
entered into on or about March 10, 1937, and does not terminate until
March 31, 1940. By the terms of the contract the Company is re-
quired to allow only members of Local 933-1 to work so long as Local
6 See Matter of Samson Tare and Rubber Corporation and United Rubber Workers of
America, Local No. 44, 2 N . L. R. B. 148; Matter of Cherry Cotton Mills and Local No. 1824,
United Textile Workers of America, 4 N. L. R. B. 731.
M. & J. TRACY, INC. 941
933-1 is able and willing to furnish members to work. We find that
this contract is within the proviso of Section 8 (3) of the Act.,,
Since, however, over 2 years of the term of the contract have already
expired, we conclude, in conformity with prior decisions,7 that it can-
not preclude us from determining and certifying the organization
which a majority of the barge captains now wish to represent them.
In view of the claim of I. B. U. that it represents a majority, and
in view of the uncertainty which exists as to which organization a ma-
jority of the barge captains employed by the Company wish to repre-
sent them, we find that a question has arisen concerning the representa-
tion of the barge captains employed by the Company.
We find that the question concerning representation which has
arisen, tends to lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
IV. THE APPROPRIATE UNIT
During the hearing counsels for the Company, I. B. U., and Local
933-1 and I. L. A. stipulated that the barge captains employed by the
Company constituted a unit appropriate for the purposes of collective
bargaining. We see no reason against finding such a unit appro-
priate."
The contract to which the Company and Local 933-1 claim to be
parties purports to be that of the Coal Carrying-Division of Harbor
Carriers of the Port of New York, a membership association of em-
ployers. Although we have held in certain cases that where a group
of employers deal jointly through an employer's association, the
employees of all members of the association should constitute an
appropriate unit,9 such a conclusion has not been reached where the
S As the evidence adduced in Case No C-594 was made part of the record in the instant
case, we hereby incorporate by reference those findings in Case No . C-594, which are
applicable to this case
7Matter of Metro -Goldwyn-Mayer Studios and Motion Picture Producers Assn, et al.
and Screen Writers Guild, Inc., 7 N. L. It . B. 662; Matter of Hubinger Company and
Corn Products Union No. 19931 and Hubinger Company Employees Representation Plan,
3 N. L. R B. 802 and 4 N. L It. B. 428.
S Although harbor workers , including barge captains, and deep-sea workers employed by
the Company were held to constitute an appropriate unit in Matter of International
Freighting Corp. and International Seamen's Union of America, 3 N. L. It . B. 692, this
decision was subsequently amended upon the request of all parties to exclude harbor
workers from the unit. Ibid. 4 N. L. It. B. 111.
9 Matter of Shvpowner's Association of the Pacific Coast , et al. and International Long-
shoremen's Association and Warehousemen's Union, District No. 1, 7 N. L. It. B. 1002;
Matter of Mobile Steamship Association et al and International Longshoremen's and
Warehousemen's Union, 8 N L. It. B. 1297 ; Matter of Admiar Rubber Company and
American Federation of Labor on behalf of Employees of Company, 9 N. L. It . B. 407;
Matter of Monon Stone Company et al and Quarry Workers' International Union of North
America, 10 N. L. R. B . 64; and Matter of Hyman-Michaels Company, United Com-
mercial Company Division and International Union of Mine , Mill and Smelter Workers,
Local No. 50, C. I. 0, 11 N . L. R. B. 798.
942 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
association, as the one here involved,10 has no legal power to contract
for its members and exercises no employer functions."
We find that the barge captains employed by the Company con-
stitute a unit appropriate for the purposes of collective bargaining
and that said unit will insure to these employees of the Company the
full benefit of their right to self-organization and to collective bar-
gaining and otherwise effectuate the policies of the Act.
V. THE DETERMINATION OF REPRESENTATIVES
It is apparent from what has been stated previously that the cards
submitted by I. B. U. and I. L. A. cannot serve as the basis for cer-
tifying either organization. They were not offered for inspection by
opposing counsel or the Company, many are undated, most of the sig-
natures on the cards submitted by I. L. A. were not authenticated,
and many barge captains have signed cards in both organizations.
The question concerning representation which has arisen can only
be resolved, therefore, by an election. We shall, accordingly, direct
an election to be held.
Because of the length of time which has elapsed since the filing of
the petition, we shall direct that the employees eligible to vote in
the election shall be those barge captains employed by the Company
during the pay-roll period immediately preceding the date of this
Decision and Direction of Election, excluding those who have since
quit or been discharged for cause. Nevertheless, despite the provi-
sions of the existing contract, any barge captain who is discharged
pursuant to the terms of the contract subsequent to the date of this
Decision shall be entitled to vote.
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. A question affecting commerce has arisen concerning the repre-
sentation of the barge captains employed by the Company, within
the meaning of Section 9 (c) and Section 2 (6) and (7) of the
National Labor Relations Act.
2. The barge captains employed by the Company constitute a unit
appropriate for the purposes of collective bargaining, within the
meaning of Section 9 (b) of the National Labor Relations Act.
m Footnote 6, supra.
n Matter of Aluminum Line et al. and International Longshoremen and Warehousemen's
Union, 8 N L R B. 1325; and Matter of F E Booth & Company et al. and Monterey Bay
Area Fish Workers Union No. 23, 10 N. L. R. B. 1491.
Al. & J. TRACY, INC. 943
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 Relations
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 M. & J. Tracy, Inc., New York City, an election by secret ballot
shall be conducted within thirty (30) days from the date of this Direc-
tion under the direction and supervision of the Regional Director
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 the barge captains employed by M. & J.
Tracy, Inc., designated as eligible to vote in Section V above, to deter-
mine whether they wish to be represented by United Boatmen's Local
No. 2, Inland Boatmen's Union, affiliated with the Committee for
Industrial Organization, or by Local 933-1, Tidewater Boatmen's
Union, International Longshoremen's Association, affiliated with the
American Federation of Labor, for the purposes of collective bar-
gaining, or by neither.
MR. EDWIN S. SMITH, concurring :
I am unable to agree with the interpretation of the contract between
the Company and Local 933-1 placed upon it by the majority.12 How-
ever, I concur in the decision that the contract is no bar to this inves-
tigation of representatives.
'a See the dissenting opinion in Matter of M. & J . Tracy, Inc . and Inland Boatmen's
Union, Case No C-594, 12 N. L. R B. 916.