Merchants & Miners Transportation Co.

National Labor Relations Board - Board Decisions

Dec 31, 1941

37 N.L.R.B. 1165 (N.L.R.B. 1941)

In the Matter Of MERCHANTS & MINERS TRANSPORTATION CO. and
NATIONAL ORGANIZATION MASTERS, MATES & PILOTS OF AMERICA,
LOCAL #9
Case No. R-3,098.-Decided December 31, 1941
Jurisdiction : water transportation industry.
Investigation and Certification of Representatives : existence of question : dis-
pute as to appropriate unit; refusal to accord union recognition; conflicting
claims of rival representatives ; prior certification four years before filing of
petition, of a rival representative which has never attempted to bargain for
the employees involved, no bar to ; union certified on the basis of the record,
notwithstanding desire of the Company for an election, where all employees
in the appropriate unit have authorized the petitioner in writing to represent
them.
Unit Appropriate for Collective Bargaining : all licensed deck officers aboard the
Company's tug Apollo held to constitute an appropriate unit notwithstanding
the desire of a union previously certified by the Board to retain them in a
unit with all other licensed personnel, where that union has never attempted
to bargain for tugboat personnel, where their wages and working conditions
are different from those of personnel on ocean-going vessels, where it is cus-
tomary in the shipping industry to treat them as separate units for the purpose
of collective bargaining, and in view of the fact that all employees in the unit
found appropriate have designated the petitioner as their representative.
Mr. J. Walter Hands, of Baltimore, Md., for the Company.
Mr. Bayard T. Hurst, of Norfolk, Va., for the M. M. P'.
Mr. Robert C. Moore, of counsel to the Board.
DECISION
AND
CERTIFICATION OF REPRESENTATIVES
STATEMENT OF THE CASE
On July 1, 1941, ' National Organization Masters, Mates & Pilots
of America, Local #9, herein called the M. M. P., filed with the
Regional Director for the Fifth Region (Baltimore, Maryland) -a
petition alleging that a question affecting commerce had arisen con-
cerning the representation of employees of Meichants & Miners
Transportation, Company, Baltimore, Maryland, herein called the
-37 N. L. R. B., No. 198. - -
1165
1166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Company, and requesting an investigation and certification of repre-
sentatives pursuant to Section 9 (c) of the' National Labor Relations
Act, 49 Stat. 449, herein called the Act. On October 30, 1941, the
National Labor Relations Board, herein called the Board, acting pur-
suant ,to Section 9, (c) of the Act, and Article III, Section 3, of
National Labor Relations Board.Rules and Regulations-Series 2, as
amended, ordered an investigation and authorized the Regional Direc-
tor to conduct it and to provide for an appropriate hearing'' upon due
notice. I _
On November 4, 1941, the Regional Director issued a notice of
hearing, copies of which were duly served upon the Company, 'the
M. M. P., and United Licensed Officers'of America, herein called the
U. L. 0., an unaffiliated labor organization claiming to represent the
employees affected by the investigation. Pursuant to notice, a hearing
.was held'on November 17, 1941, at Baltimore, Maryland, before Earle
K. -Shawe, the Trial Examiner duly designated by the Chief Trial
Examiner. The Company and the M. M. P. were represented by
.their official representatives and participated in the hearing. The
U: L. O. did not appear.. Full opportunity to be heard, to examine
and cross-examine witnesses and to introduce evidence bearing upon
the issues-was afforded all parties. The Board has reviewed the rul-
ings of the Trial Examiner, none of which was objected to, and finds
,that no prejudicial errors were committed. The rulings are hereby
affirmed. None of the parties filed briefs or requested oral argument.
Upon the entire record of the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
The Company is a Maryland corporation having its principal place
of business in Baltimore, Maryland. It operates a fleet of vessels
transporting passengers and freight for hire between ports on the
eastern coast of the United States. The Company owns 15 vessels
and two tugs. At the time of the hearing 8 of the 15 vessels were in
operation by the Company while the remaining 7 were chartered to
other companies. The two tugs are employed to assist the docking
dnd undocking of vessels and in towing barges to and from railroad
terminals. One of the tugs, the Apollo, is operated in the Norfolk,
Virginia, harbor, while the other is operated in the Baltimore,
Maryland, harbor.
For the purpose of these proceedings the Company agrees that it
is engaged in interstate commerce within the meaning of the Act.
We find that the Company is engaged in trade, traffic, transportation,
and commerce among the several States and that the licensed deck
^.., MERCHANTS & MWER9,TR.ANSPORTATION_ CO., 1167
officers employed by the Company aboard its tug Apollo are directly
engaged in such trade, traffic, transportation, and commerce.
H. THE ORGANIZATION INVOLVED
National -Organization Masters, Mates & Pilots of America, Local
#9, affiliated with the American Federation of Labor, is a labor
organization admitting to membership certain employees of the
Company.:
• III. THE QUESTION CONCERNING REPRESENTATION
On April 28, 1941, the M. M. P. requested a conference with the
Company for the purpose of bargaining in behalf of the licensed deck
officers of the tug Apollo, operated by the Company in Norfolk har-
bor. This request was refused by the Company upon the ground
that the Board had previously certified the U. L. O. as the exclusive
bargaining agent of all the Company's licensed deck officers, includ-
ing those on the tug Apollo
The evidence discloses that, although the U. L. O. had been certi-
fied by the Board as the exclusive bargaining agent for all the Com-
pany's licensed deck officers, and although it had yearly executed
collective bargaining contracts with the Company covering "the
licensed personnel employed on board its vessels," the U. L. O. has
never bargained with the Company in behalf of the licensed deck
officers of the tug Apollo and has not acted in a representative capacity
for such employees. The contracts entered into by the U. L. O. and
the Company have not mentioned employees engaged on tugs and the
current contract contains no provisions respecting the working con-
ditions or the rates of pay of -tug employees. Although the U. L. O.
has not represented the licensed deck officers on the tug Apollo, it has
refused to relinquish jurisdiction over them.2
We find that a question has arisen concerning the representation
of the employees of the Company and that such question tends to
lead to labor disputes burdening and obstructing commerce and the
free flow of commerce.
IV. THE APPROPRIATE UNIT
- The M. M. P. requests a unit composed of the licensed deck officers
employed on the tug Apollo. The Company takes no position with
' On April 30, 1937 , the Board , after appropriate proceedings including elections by
secret ballot , certified that the U . L. 0. was the exclusive representative for the purposes
of collective bargaining of all the Company's licensed deck officers , on its vessels and tugs.
Matter of Merchants and Mtiners Transportation Company and United Licensed Officers,
2 N. L. R. B. 747, 757.
2 The two licensed deck officers of the tug Apollo, being all the employees in the unit
hereinafter found to be appropriate for the purposes of collective bargaining, have author-
ized the M . M. P. to represent them in collective bargaining with the Company.
1168 DE'CISQONS` OF NATIONAL LABOR RELATIONS' -BOARD
respects to the propriety of proposed unit, but feels constrained
to recognize the U. L. O. as the exclusive bargaining agent for these
employees in view of'.the Board's certification, of that organization
as the exclusive representative of all the Company's licensed deck
officers, including the employees here sought by the M. M. P. -
The evidence shows that the working conditions and rates of pay
of licensed deck officers employed on tugs are different from those of
personnel employed aboard ocean-going vessels. The Company's
representative testified to this effect and also testified that if tugboat
personnel were included in the same unit with personnel of ocean-
going vessels it would be necessary to negotiate separate contracts
or to insert special provisions to cover each type of personnel. It
also appears that it is customary in the shipping industry to treat
licensed personnel aboard tugs as separate units for the purposes of
collective bargaining apart from units comprising personnel em-
ployed on ocean-going vessels, Hurst, secretary and business manager
for the M. M. P.. since October 1, 1929, testified that he knew of no
instance other than in the case of the employees here involved, in
which these two classes of employees had been combined to form a
single unit.
That tugboat personnel may constitute a distinct collective bar-
gaining unit, apart from personnel of ocean-going vessels,'is strikingly
illustrated by the facts developed in this proceeding. The working
conditions of the two groups are dissimilar; the U. L. O. has bargained
with` the Company for ocean-going personnel but has taken no steps
toward securing, an agreement for tugboat personnel. It further ap-
pears that the propriety of the inclusion of both classes of personnel
in a single unit was not questioned or considered in any detail in the
previous proceeding.3 - Moreover, the employees here involved: do not
now desire to be represented by the U. L. O. and apparently have
never expressed such desire by becoming members of the U. L. O.
From the above it is apparent that the deck officers of the tug Apollo
have not been included, as a matter of fact, in the collective bargain-
ing unit previously determined by the Board to be apppropriate and
have not been represented by the organization certified as the exclu-
sive representative for that unit. Under these circumstances, we are
of, the opinion that licensed tugboat personnel may properly con-
stitute a separate unit.
An additional question concerning the appropriate unit -arises out
of the fact that on November 7, 1941, one of the two licensed deck offi-
cers normally employed on the tug Apollo (i.-e. the night master) was
laid off. At the time of the hearing, therefore,' only one licensed
3 Matter of Merchants and Miners Transportation Company and United Licensed Officers,
2 N. L. R B. 747, 750.
,MERCHANT'S '& MINER 'S' TRANSPORTATION CO. 1.169-
deck officer in-the proposed unit was actively employed by the Com-
pany.. The Board has consistently held that a single employee does
not, constitute a unit for collective bargaining and has refused to
certify a representative for a single employee.4 In this case, how-
ever , the reason for the la-y-off of the night master, was that the
tug had been la-id up for extensive repairs. The Company's repre,
sentative testified that the tug would be laid up for a month or more;
also, that it was possible that the tug would not be operated day
and night in the future, in which case the night master would not
be needed. • He testified that without question the night 'master
would be recalled in the event day and _ night operations were re-
sumed. ,The-evidence, shows that Captain Ware, the night master,
has been employed by the Company for approximately 25 years and
that .it is customary to lay off the night crew whenever the *,tug is
laid up for any, substantial period of time. After such •periods
the night crew has always been recalled. In these circumstances we
are of the opinion that -the normal situation requiring two licensed
deck officers to operate the tug Apollo has not materially changed,
and that there are presently two persons in the unit proposed by the
M. M. P5
' We find that the licensed deck officers employed by, the Company
for'duty aboard- the tug Apollo in Norfolk harbor constitute a unit
appropriate for the purposes of collective bargaining and that said
unit -will, iusure,;to the' employees of the Company the full benefit
of. their right to self-organization and to collective bargaining and
otherwise will effectuate the policies of the Act.
V. THE DETERMINATION OF REPRESENTATIVES
On April 28, 1941, and again on September 5, 1941, the two licensed'
deck officers in the unit hereinbefore found to be appropriate, being
the only-employees in said unit, authorized the M. M. P.-in writing
to represent them' in collective bargaining with the Company. The
M. M: P. therefore 'desires certification without an election. The
Company takes the position that an election should be held, because of
4 Matter of Luckenbach Steamship Company, Inc , et al . and Gatemen, Watchmen and
Miscellaneous Waterfront Workers Union, Local 38-124; International Longshoramen's
Association, 2 N. L R . B. 181 ; Matter of Schick Dry Shaver Company and Lodge No 1557,
International Association of Machinists , 4 N L. R. B 246 , Matter of Joseph S Finch &
Co., Inc. and United Distillery Workers Union , Local No . 3, 10 N L . R B 896.
6 This is consistent with the well-established policy of the Board that employees who
have been temporarily laid off are eligible to vote in an election to, determine representa-
tives. See Matter of Lincoln Mills of Alabama and Textile Workers Organizing Committee,
12 N. L. R. B 1285; Matter of Standard Oil Company of New Jersey and Esso Tanker
Men's Association , 23 N L R B 860 ; Matter of American Steel Scraper Company and
Local -,' 1408 International Association of Machinists , A. F. of L., 21 N . L. R. B, 218;
Matter of Pressed Steel Car Company, Inc. and Steel Workers Organizing Committee, 18
N. L. R. B. 700; Matter of National Can Co. and Steel Workers. Organizing Committee,
Lodge No 1670 , 13 N. L . R. B. 1242.
1170 DECISIONS OF NATIONAL LABOR-- RELATIONS BOARD
the conflicting claims. This apparently refers to the conflicting
claims between the two unions arising out of the refusal- of the,
U. L. O. to relinquish jurisdiction over tugboat employees., Such
controversy, however, is material only in reference to whether these'
employees should constitute an appropriate bargaining unit. It is
plain that'these employees have indicated their desire to be repre-
sented by the M. M. P. and that aiI election, therefore, is unnecessary.
We find that the M. M. P. has been designated and' selected by all
the employees in the unit herein found to be appropriate as their'
representative for the purposes' of collective bargaining. The,
M. M. P. is therefore the, exclusive representative of all employees in
such unit for the purposes of collective bargaining, and we will so
certify.
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 employees of Merchants & Miners Transportation Com-
pany, Baltimore, Maryland, within the meaning of Section 9 (c)
and Section 2 (6) and (7) of the National Labor Relations Act.
2. All licensed deck officers employed by the Company in connec-
tion with the operation of its tug Apollo in Norfolk harbor, consti-
tute a unit appropriate for the purposes of collective bargaining,
within the meaning of Section 9 (b) of the National Labor Relations
Act.
3. National Organization Masters, Mates & Pilots of America,
Local #9, A. F. L., is the exclusive representative of all the employees
in such unit for the purposes of collective bargaining, within the,
meaning of Section 9 (a) of the National Labor Relations Act.
CERTIFICATION OF REPRESENTATIVES
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, Sections 8 and 9, of National
Labor Relations Board Rules and Regulations-Series 2, as amended,
IT IS HERESY CERTIFIED that National Organization Masters, Mates
& Pilots of America, Local #9, A. F. L., has been designated arid
selected by a majority of the licensed deck officers employed in con-
nection with the operation of the tug Apollo in Norfolk harbor by
Merchants & Miners Transportation Company, Baltimore, Maryland,
as their representative for the purposes of collective bargaining, and
that pursuant to Section 9 (a) of the Act, National^ Or('Yanmzation
MERCHANTS & MINERS ' TRANSPORTATION CO. 1171
Masters, Mates & Pilots of America, Local 4$9, A. F. L., is the ex-
clusive representative of all such employees for the purposes of
collective bargaining in respect to rates of pay, wages, hours of em-
ployment, and other conditions of employment.
MR. GERARD D. REilLY took no :part in the consideration of the
above Decision and Certification of Representatives.