Midland Steamship Line, Inc.

National Labor Relations Board - Board Decisions

Mar 15, 1946

66 N.L.R.B. 836 (N.L.R.B. 1946)

In the Matter Of MIDLAND STEAMSHIP LINE, INC. and NATIONAL
MARITIME UNION OF AMERICA (CIO)
In the Matter of MIDLAND STEAMSHIP LINE, INC. and NATIONAL.
MARITIME UNION OF AMERICA (CIO)
Cases Nos. 8-0-1811 and 8-R-1°095, respectively.-
Decided March 15, 1946
Mr. George F. Hayes, for the Board.
Duncan, Leckie, McCreary, Schlita & Hinslea, of Cleveland, Ohio,
by Mr. Lucian Y. Ray, for the respondent.
Mr. Herman Rosenfeld, of New York City, and Mr. Frank Jones,
of Cleveland, Ohio, for the CIO.
Miss Grace McEldowney, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon a charge duly filed by National Maritime Union of America
(CIO), herein called the CIO, the National Labor Relations Board,
herein called the Board, by its Regional Director for the Eighth
Region (Cleveland, Ohio), issued its complaint, dated June 28, 1945,
against Midland Steamship Line, Inc., herein called 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) and (5) and Section 2 (6) and (7) of the National
Labor Relations Act, 49 Stat. 449, herein called the Act. Copies
of the complaint, accompanied by notice of hearing thereon, were
duly served upon the respondent and the CIO.
With respect to the unfair labor practices, the complaint alleged
in substance that the respondent, on or about October 19, 1944, and
at all times thereafter, refused to bargain collectively with the CIO
as the exclusive bargaining representative of the respondent's em-
ployees within an appropriate bargaining unit, although a majority
of the employees in said unit, in a secret election conducted under
the supervision of the Board on or about June 12, 1944, had designated
66 N. L . R. B., No. 102.
836
MIDLAND STEAMSHIP LINE, INC. 837
or selected the CIO as their representative for the purposes of col-
lective bargaining.
The respondent thereafter filed its answer , in which it admitted,
inter alia , that on October 17, 1944, the Board had certified the CIO
as the bargaining representative of employees in an appropriate
unit, and that on and after October 19, 1944, the respondent had
refused to bargain collectively with the CIO as such representative,
but denied that a majority of the employees in the unit had designated
and selected the CIO as their collective bargaining representative
and that the respondent had engaged in the unfair labor practices
alleged in the complaint. It also made certain affirmative allegations
with respect to the election which are hereinafter considered.
Pursuant to notice duly served upon the parties, a hearing was
held on July 17, 1945, at Cleveland, Ohio, before Sidney Lindner,
the Trial Examiner duly designated by the Chief Trial Examiner.
At the hearing, the Board, the respondent, and the CIO were repre-
sented by counsel. Full opportunity to be heard, to examine and
cross-examine witnesses , and to introduce evidence bearing on the
issues was afforded all parties. At the close of the hearing, counsel
for the respondent moved to dismiss the complaint on the ground
that the Board's certification of the CIO as the collective bargaining
representative of the respondent's unlicensed personnel was invalid.
The Trial Examiner reserved his ruling upon this motion, which lie
thereafter denied in his Intermediate Report. During the course
of the hearing, the Trial Examiner made rulings on other motions
and on objections to the admission of evidence. The Board has re-
viewed the rulings of the Trial Examiner and finds that no prejudi-
cial error was committed. The rulings are hereby affirmed.
Thereafter, the Trial Examiner issued his Intermediate Report,
copies of which were served upon the respondent and the CIO. In
the Intermediate Report, the Trial Examiner found that the re-
spondent had engaged in and was engaging in unfair labor practices,
within the meaning of Section 8 (1) and (5) of the Act, and recom-
mended that it cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act. Thereafter,
the respondent filed exceptions to the Intermediate Report and a
supporting brief.
Upon the request of the CIO, and pursuant to notice, the Board
held a hearing for the purpose of oral argument at Washington, D. C.,
on January 10, 1946. The respondent and the CIO were represented
by counsel and participated in the argument. Thereafter, pursuant
to permission granted at the hearing, the respondent and the CIO-
filed supplemental briefs.
The Board has considered the exceptions and briefs filed by the
respondent and the brief filed by the CIO and finds that the re-
838 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
spondent's exceptions, insofar as they are consistent with the findings,
conclusions, and order set forth below, have merit.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF TIIE RESPONDENT
Midland Steamship Line, Inc., is a Delaware corporation having
its principal office and place of business in Cleveland, Ohio. It is
engaged in the operation of bulk freight vessels on the Great Lakes
carrying bulk freight such as coal, ore, and grain to various ports
on the Great Lakes. The respondent admits that it is engaged in
commerce within the meaning of the Act,
II. THE ORGANIZATION INVOLVED
National Maritime Union of America is a labor organization
affiliated with the Congress of Industrial Organizations, admitting
to membership employees of the respondent.
III. THE UNFAIR LABOR PRACTICES
A. Certification of the CIO
On November 18, 1943, the Board, pursuant to a petition for in-
vestigation and certification of representatives filed by the CIO and
hearing duly held thereon, issued its Decision and Direction of
Election in Matter of Midland Steamship Line, Inc., Case No. 8-R-
1295,1 in which it found that all unlicensed personnel, including
stewards, on all the respondent's vessels constitute a unit appropriate
for the purposes of collective bargaining. The Direction of Election,
as subsequently amended,2 provided for an election by secret ballot
to be conducted among the employees within the appropriate unit,
under the direction and supervision of the Regional Director of the
Eighth Region, to determine whether they desired to be represented
by the CIO or by Seafarers' International Union of America, Great
Lakes District, AFL, herein called the AFL, for the purposes of
collective bargaining, or by neither.
Pursuant to the Direction of Election, as amended, an election
was held during the period from June 1 to 8, 1944, inclusive. Upon
153 N. L. R. B. 727.
Amendments to the Direction of Election (unpublished) were issued by the Board on
December 16, 1943, and May 5, 1944. On May 24, 1944, the Board Issued a Third
Amendment to Direction of Election (56 N. L. R. B. 839 ) which was subsequently cor-
rected by an Order ( unpublished ) dated May 25, 1944.
MIDLAND STEAMSHIP LINE, INC. 839
the conclusion of the balloting, the Regional Director furnished to
the respondent and the Unions a Tally of Ballots, which indicated
that a majority of the 157 votes and challenged ballots had been
cast for the CIO .9
On June 16 and 17, 1944, respectively, the respondent and the AFL
filed objections to the election, in which they contended, among other
things, that certain seamen who voted in the election were not em-
ployees of the respondent at the time when they cast their ballots.
On July 15, 1944, the Regional Director issued his Report on Ob-
jections, recommending that the objections be overruled and the
CIO certified in accordance with the Tally of Ballots. On July 20,
1944, the respondent and the AFL filed exceptions to the Regional
Director's Report on Objections, and on August 17, 1944, the Board
directed that the Regional Director issue a Supplemental Report
on Objections to the Election. This report was issued on September
22, 1944. On September 27, 1944, and on October 2, 1944, the re-
spondent and the AFL filed exceptions to said Supplemental Report.
On October 17, 1944, the Board issued its Supplemental Decision
and Certification of Representatives,4 overruling the objections to
the election and certifying the CIO as the exclusive representative
of the employees in the appropriate unit for the purposes of collective
bargaining. Thereafter, the respondent and the AFL filed motions
with the Board to set aside its Supplemental Decision and Certifica-
tion of Representatives, which motions were denied by the Board.5
B. The alleged refusal to bargain
The parties have stipulated that on or about October 19 and 27,
1944, and on other occasions thereafter, the CIO requested the re-
spondent to bargain collectively with it in respect to rates of pay,
wages , hours of employment, and other conditions of employment,
for all unlicensed personnel, including stewards, on all the respond-
ent's vessels ,6 and that on each such occasion the respondent refused
• The results of the balloting, as set forth in the Tally of Ballots, were as follows :
Approximate number of eligible voters ........ ................ . .... 165
Valid votes counted ............................. ............ .. .... 153
Votes cast for National Maritime Union of America (CIO) .. . ... ...... 79
Votes cast for Seafarers ' International Union of N. A., Great Lakes District
(AFL) ............................. ........... .................. 31
Votes cast against participating unions ................ . .............. . 43
Challenged ballots ............... ....... ........... ............ .... 4
Void ballots ......................................................... 1
' 58 N . L. It. B. 1091.
6 These motions were based upon substantially the same grounds that had previously
been urged by the respondent and the AFL, and which had been considered by the Board
in Its Supplemental Decision and Certification of Representatives.
• The respondent admits, as the complaint alleges, that such employees constitute a
unit appropriate for the purposes of collective bargaining , within the meaning of Section
9 (b) of the Act . As noted above , this is the unit found appropriate by the Board in
Case No . 8-R-1295.
840 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to do so . On June 20, 1945, the CIO filed its charge with the Board,
alleging that the respondent had thereby violated Section 8 (1)
and (5 ) of the Act.
C. Contentions of the parties
The respondent admits that it has refused, and is continuing to
refuse, to bargain collectively with the CIO, but contends that its
conduct is justified because five seamen who voted in the Board
election, on the basis of which the CIO was certified, cast their ballots
after their employment had terminated, and that the election and the
Board's certification of the CIO were therefore invalid. This conten-
tion is based on the facts, among others, that each of the five seamen
in question 7 performed his last work for the respondent on the day
before he voted, and that immediately after voting lie notified the
captain of his ship that he was quitting, was then paid off as of the
preceding day, and left his ship."
At the hearing before the Trial Examiner and an oral argument
before the Board, counsel for the respondent admitted that ordinarily
when seamen remain on their vessel, even after the expiration of
their shipping articles, their employment does not terminate, but
'Edward J. Conrady , Albert Leach, Swen Rodin, Stanley Seme, and Harry Gendel-
man.
The facts regarding the five men, as stipulated by the parties, are as follows :
Respondent's Steamer Hazen Butler arrived at the Cleveland, Ohio, Breakwater
at 12 :07 A. M., June 2, 1944. She docked at 12 -50 A. M., June 2, 1944 and the
election was held immediately thereafter.
Edward J. Conrady, Albert Leach, Swen Rodin and Stanley Seine were employed
on the Steamer Hazen Butler as members of her crew, Each of said persons had
stood his last watch and completed his work on said vessel on June 1, 1944 and
none of them stood a watch or did any work on said vessel on June 2, 1944 During
the balloting , immediately after the arrival of the vessel, each cast his vote in said
election. Immediately following the casting of their votes, each told the Captain of
said vessel he was leaving the employment of the respondent and requested his
money The Captain of said vessel iepoits that be is certain that the above men
did not tell him of their plans to leave the vessel until after they had voted.
The applicable pay roll of said vessel reveals that these men were paid off as of
June 1, 1944, inasmuch as they did no work on said vessel on June 2, 1944. None
of the parties to the election challenged the vote of any of the four individuals
at the time of the balloting, and their names appealed on the Company's pay-roll
voting list
Respondent's Steamer J H Alacoubrey arrived at the South Chicago Breakwater
on June 8, 1944 at 2 -51 A Al She was docked at the Norris Elevator at 4 20
A At June 8, 1944, and the election was held immediately thereafter.
Henry Gendelman was employed on the Steamer J H. Alacoubrey as a member
of hem crew On June 7, 1944 he advised the First Mate of said vessel that lie
intended to Ieace the respondent's employ upon the arrival of the vessel in South
Chicago. Gendelman stood his last watch and completed his work on said vessel on
June 7, 1944 When the vessel docked at 4 20 A M on June 8, 1944, Gendelman
was asleep and, after being awakened, lie voted and then requested his money His
vote was not challenged by any of the parties to the election at the time of the
balloting, and his name appeared on the Company's pay-roll voting list. He was
then paid off and, after packing his belongings, left the vessel. The pay roll of said
vessel reveals that he was paid off as of June 7, 1944 inasmuch as he had stood his
last watch and completed his work on that day.
MIDLAND STEAMSHIP LINE, INC. 841
continues under an implied agreement until new articles are signed.°
Ile argued, however, that this relationship arises only if their em-
ployment is not terminated by reason of other circumstances, and that
in the present case the termination is established by the fact that the
men had stopped work before voting, that they were paid off as of
the time when they stopped work, and that they intended to quit, as
shown by the fact that they left the ship immediately after voting.10
Counsel for the CIO contended, on the other hand, that so long
as a seaman remains on his ship, he is an employee, subject to the
lawful orders of the master of the ship, and that whether or not he
intends to quit does not affect his status.
D. Conclusions
In the Supplemental Decision and Certification of Representatives
in Case No. 8-R-1295, the Board held that Conrady, Leach, Rodin,
Seine, and Gendelman, as well as certain other seamen whose votes are
not now in question, voted prior to the termination of the course of
their employment and that their votes were therefore valid. The
Trial Examiner, in his Intermediate Report, rejected the respondent's
contention that the Board had erred in so finding; he therefore found,
on the basis of the Board's certification, that on October 17, 1944,
and at all times thereafter, the CIO had been, and that it still was,
the exclusive representative of the employees in the appropriate unit.
and that the respondent's refusal to bargain with the CIO as such
representative was violative of Section 8 (1) and (5) of the Act.
The holding in the Supplemental Decision and Certification that the
five seamen in question were still in the course of their employment
when they voted was based primarily on decisions of the Circuit
Court of Appeals for the Second Circuit in Sundberg v. Washington
Fish d Oyster Co.," and Wong Bar v. Suburban Petroleum Trans-
port, Inc.12 On examination of these cases, we find, as the respondent
points out in its brief, that in both the existence of the employer-
employee relationship was assumed, and the only question was whether
certain activities on the part of employees were within the scope or
course of their employment. In the present case, the question is
whether the employment relationship itself had terminated. For
U See S L R. B y Waterman S S Corp., 309 U. S 206.
10 Although he stated that the shipping articles are also a factor to be considered, he
admitted, and counsel for the CIO agreed, that on the Great Lakes the articles do not
plav an important part in determining the duration of employment . The record shows
that under the terms of the shipping articles, the term of service of Conrady , Leach.
Rodin, and Seine ended when their ship reached port on June 2, 1944, but that Gendel-
man's term of service had not yet ended when he left his ship on June 8, 1944.
138 F. ( 2d) 801.
119 F ( 2d) 745.
842 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
this reason, the rationale of the Sundberg and Wong Bar cases is not
apposite to the situation before us. We have therefore reviewed the
conclusions of the Board in the representation case in the light of the
authorities cited in this case, and are of the opinion that insofar as
Gendelman is concerned, the previous determination13 that his em-
ployment had not terminated was erroneous.
It is conceded that Gendelman, on the day preceding the election,
had stood his last watch and performed his last work for the respond-
ent. So far as the record shows, he was free to leave the ship as soon
as it docked on the morning of June 8. That such was the case is
indicated by the fact that Gendelman, after being awakened upon the
arrival of the vessel, requested and received his pay, packed his be-
longings, and left the vessel; apart from these acts, he took time only
to vote in the election. Before the arrival of the vessel he had notified
the first mate of his intention to quit as soon as the ship reached port.
By so doing, he apparently had taken all possible steps in furtherance
of his intention to quit. That he had not deviated from his expressed
intention at the time of casting his ballot is manifest from his subse-
quent conduct. In these circumstances, it is unnecessary for us to
determine whether an employee's mere intention to quit, not com-
municated to his employer, is sufficient to disqualify him from voting
in an election conducted by the Board. In this instance it was so
communicated to the first mate. Gendelman did no work thereafter.
At the oral argument before the Board, all parties in effect con-
ceded that had this occurred in a plant on shore, the man's employ-
ment status would have terminated when he stopped work, and that
he would not thereafter have been eligible to vote in a Board election.
even though he had not yet received his pay. There is nothing in the
record, nor have we been shown any authority, to satisfy us that the
present case is so different as to require a different conclusion. In
the circumstances of the case before us, we are satisfied and find that
Gendelman had quit the respondent's employ before casting his ballot,
and that his vote was therefore invalid.
Because a difference of one vote would place in question the CIO's
majority, it is unnecessary for us to pass in detail upon whether the
votes of the other four named seamen were also invalid. It appears,
however, that the Trial Examiner was correct in holding that they
were entitled to vote, the facts being different from those in Gendel-
man's case.
Since the record fails to show that a majority of the employees in
the appropriate unit selected the CIO as their bargaining represen-
2a Although neither of us participated in the Supplemental Decision and Certification,
we should be inclined as a matter of administrative policy to regard that holding as
"the rule of the case" and therefore controlling here, if it were not for the fact that the
prior decision turned upon a determination of a question of law, which we believe can-
not be supported.
MIDLAND STEAMSHIP LINE, INC. 843
tative, we do not find that the respondent has refused to bargain with
the CIO in violation of Section 8 (1) and (5) of the Act.
Having found that the respondent has not engaged in the unfair
labor practices alleged in the complaint, we shall dismiss the com-
plaint in its entirety.
Upon a reconsideration of the findings in Case No. 8-R-1295, we
have concluded that Gendelman was not an employee of the respond-
ent at the time when he cast his ballot in the election held as part of
the investigation to ascertain representatives for the purposes of col-
lective bargaining with the respondent. It follows that, contrary
to the Board's previous finding, the results of the balloting fail to
show that a majority of the employees in the appropriate unit se-
lected the CIO as their bargaining representative. Accordingly, we
shall set aside the Certification of Representatives in Case No.
8-R-1295. In view of the length of time that has elapsed since the
filing of the petition for investigation and certification of represen-
tatives therein, we shall also dismiss the petition filed by the CIO.
without prejudice to the right of the CIO to file a new petition if it
so desires.
Upon the basis of the foregoing findings of fact and upon the entire
record in the case, the Board makes the following :
CONCLUSIONS OF LAW
1. The operations of the respondent, Midland Steamship Line, Inc.,
Cleveland, Ohio, constitute trade, traffic, and commerce among the
several States, within the meaning of Section 2 (6) of the Act.
2. National Maritime Union of America (CIO) is a labor organiza-
tion, within the meaning of Section 2 (5) of the Act.
3. The respondent has not engaged in unfair labor practices,
within the meaning of Section 8 (1) and (5) of the Act, as alleged
in the complaint.
ORDER
Upon the basis of the foregoing findings of fact, conclusions of
law, and the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board orders that the complaint against the respondent, Midland
Steamship Line, Inc., Cleveland, Ohio, be, and it hereby is, dismissed.
AND IT IS FURTHER ORDERED that the certification dated October 17,
1944, of the National Maritime Union of America, affiliated with the
Congress of Industrial Organizations, as the exclusive bargaining
representative of all unlicensed personnel, including stewards, on
all vessels of Midland Steamship Line, Inc., in Case No. 8-R-1295, be,
and it hereby is, vacated and set aside.
844 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
AND IT Is FURTHER ORDERED that the petition for investigation and
certification of representatives of employees of Midland Steamship
Line, Inc., Cleveland, Ohio, in Case No. 8-R-1295, be, and it hereby
is, dismissed, without prejudice.
MR. JOHN M. HousTON, dissenting :
I do not agree with the dismissal of this complaint ; on the contrary,
I would affirm the Trial Examiner's Report. That Report is based
squarely upon the Board's supplemental decision as a result of which
the Union was certified. The record in that proceeding is essentially
the same as that before us now. The majority, however, upon recon-
sideration, has concluded that the respondent's contention that Gen-
delman was not an employee when he voted is entitled to decisive
significance. Because Gendelman's vote is dispositive of the Union's
majority status, my colleagues now find that the Union was not en-
titled to our certificate. I think the supplemental decision disposed
of all contentions properly and I find no warrant in anything before
us now for overturning any part of that decision.
In concluding that Gendelman was not an employee when he voted,
the majority has emphasized his statement of an intent to quit, com-
municated by him to his first mate before he voted. Apparently
finding that declaration to be substantiated by a course of conduct
consistent with its meaning , my colleagues now hold that Gendelman
did in fact terminate his employment before he voted. But in our
prior decision the Board considered precisely the same factual con-
text and stated :
It is evident, therefore, that although his pay stopped on June
7, 1944, he was still in the course of his employment at 4:20
a. m. on June 8, 1944, when lie voted prior to leaving his ship.
This finding was made by the Board in clear cognizance of the same
facts now construed by the majority to negative it. Moreover, the
Board in the prior decision stated further :
It is immaterial that on June 7, 1944, Gendelman announced
his intent to quit at the end of the voyage.
The factor, therefore, upon which the majority of the Board in the
present case depends most heavily was deemed immaterial in the
prior proceeding. Nothing has occurred since to cause me to attrib-
ute to our prior finding a different meaning.14 I would find that
Gendelman was an employee when he voted, and that the Union re-
ceived a majority vote. The respondent's admitted refusal is, there-
fore, in clear violation of the Act.
14 Identical factual contexts call for consistent application of law unless some over-
riding consideration of policy intervenes The Board, in the prior decision, found, as a
matter of law, that Gendelman's employment had not terminated when he voted. I find
nothing in the way of new legal authority in the decision of the majority beyond the
statement that the prior decision may not be supported . The "rule of the case" there-
fore should be the Board 's prior decision.