Moore-McCormack Lines, Inc.

National Labor Relations Board - Board Decisions

Mar 4, 1970

181 N.L.R.B. 510 (N.L.R.B. 1970)

510 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Moore-McCormack Lines, Incorporated' and
Professional , Office & Industrial Union affiliated
with District No. 1 - Pacific Coast District,
Marine Engineers Beneficial Association,
AFL-CIO, Petitioner.' Case 2-RC-15160
March 4, 1970
DECISION AND DIRECTION OF
ELECTION
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND JENKINS
Upon a petition duly filed under Section 9(c) of
the National Labor Relations Act, as amended, a
hearing was held before Bertram T. Kupsinel,
Hearing Officer. Following the hearing and pursuant
to Section 102.67 of the National Labor Relations
Board Rules and Regulations and Statements of
Procedure, Series 8, as amended, and by direction of
the Regional Director for Region 2, this case was
transferred to the National Labor Relations Board
for decision. Briefs have been timely filed by the
Petitioner; International Longshoremen's
Association, AFL-CIO, Intervenor;3 and by the
Employer.
Pursuant to the provisions of Section 3(b) of the
Act, the Board has delegated its powers in
connection with this case to a three-member panel.
Upon the entire record in this case, the Board
finds:
The Hearing Officer's rulings made at the hearing
are free from prejudicial error and are hereby
affirmed.
Upon the entire record in this case, the Board
finds:
1. The Employer is engaged in commerce within
the meaning of the Act, and it will effectuate the
purposes of the Act to assert jurisdiction herein.
2. The labor organizations involved claim to
represent certain employees of the Employer.
3. A question affecting commerce exists
concerning the representation of employees of the
Employer within the meaning of Section 9(c)(1) and
Section 2(6) and (7) of the Act, for the reasons
described below.
The Petitioner is seeking an election in a unit of
all employees of the Employer who perform any
office or clerical functions at various locations where
the Employer employs these categories of employees
The name of the Employer appears as amended at the hearing
The name of the Petitioner appears as amended at the hearing
'International Longshoremen 's Association , AFL-CIO, was permitted to
intervene , without objection , at the hearing, based on its claim that its
contract with the New York Shipping Association covered certain
employees in the unit sought by the Petitioner Local 153, Office &
Professional Employees International Union, AFL-CIO , was also
permitted to intervene at the hearing , on the basis of a showing of interest
Local 1814, International Longshoremen ' s Association , AFL-CIO, which
was permitted to intervene at the hearing, based on a showing of interest,
was subsequently permitted to withdraw by the Regional Director
in its operations in the New York City metropolitan
area. The record shows that locations at which such
employees are presently employed are 2 Broadway
and 69 West 14th Street, Manhattan, and 23rd
Street Pier, Brooklyn, in New York City; and Pier
70-72, Port Elizabeth, Newark, New Jersey.
The International Longshoremen's Association,
AFL-CIO, contends that its collective-bargaining
agreements with the New York Shipping
Association, of which the Employer is a member,
covering checkers and clerks "in the Port of Greater
New York and vicinity," constitute a bar to an
election in this proceeding. The Employer disagrees.
Although the contracts on which ILA relies do not
specifically refer to employees requested herein, and
ILA concedes that these employees were never
covered by its agreements before 1969, ILA asserts
that it was the intention of the parties to expand the
scope of the contracts, as a part of its 1969 strike
settlement agreement with the New York Shipping
Association, to encompass certain employees of the
Employer who perform checking or clerical
functions relating to containerized cargo or ships'
stores, although it has not had time since the 1969
strike settlement agreement to represent them. The
crucial question presented thus appears to be
whether, as asserted by ILA, its 1969 strike
settlement agreement clearly expanded its contract
coverage to include any of the Employer's clericals.
We find that it did not, for the following reasons:
The preamble to the 1969 ILA Checkers'
Agreement with the Association, on which ILA
relies, covers, inter alia , employees of "Contracting
Stevedores and Checking and Clerking Contractors"
who do "work pertaining to the tallying and
checking of all deepwater cargo, including mail and
baggage, in the Port of Greater New York and
vicinity." This contract provides that: '
Checkers (or Clerks) shall have the work of
preparing data from which truck loading billings
are made but such work must be performed in
connection with such an employee's other duties.
The employer-members of the Association
agree that they will not directly perform work
done on a pier or terminal or contract out such
work which historically and regularly has been
and currently is performed by employees covered
by ILA craft agreements unless such work on
such pier or terminal is performed by employees
covered by ILA agreements.
The preamble to the Clerking Agreement entered
into by the same parties at the same time covers
employees of the above employers and deepwater
steamship companies in the same geographical area
employed as "cargo receiving and delivery clerks
and timekeepers and their immediate assistants."
This agreement also contains provisions that
employees covered thereby shall have the work of
181 NLRB No 76
MOORE-MCCORMACK LINES 511
preparing data from which truck loading billings are
made, but such work must be performed in
connection with (covered employees') other duties,
and provisions similar to those of the Checkers'
Agreement with respect to the employer-members'
agreement not to perform or contract out covered
work. Both agreements have continued in effect
without change As indicated above, it is conceded
that these contracts did not cover any of the
Employer's clerical employees requested herein.
Under the terms of the 1969 agreement settling
the ILA strike in the Port of Greater New York,
there is the following reference to an "addition" to
the Checkers' and Clerks' Agreements:
The preamble shall be amended by adding
thereto the following: Clerks (or checkers) shall
have the work of checking and making record of
containers received or delivered at piers or
terminals in the Port of Greater New York.
ILA also relies on the "Rules on Containers" also
agreed to in 1969 which provide:
(c) Each employer-member shall keep records of
each container supplied to a consolidator or other
non-owner of cargo, located within the agreed
geographical area, and such shall be available to
the committee provided in (g) below. With respect
to all containers received at or delivered from the
waterfront facility, (pier or dock) a record of the
same shall be made by ILA Checkers or Clerks.
However, the introduction to the Rules on
Containers states:
The following provisions are intended to protect
and preserve [underline supplied] the work
jurisdiction of longshoremen and all other ILA
crafts at deepsea piers and terminals. To assure
compliance with the collective bargaining
provisions the following rules and regulations
shall be applied.
The record shows that the work referred to in
these provisions has always been performed by ILA
members who are employed by stevedoring
companies on the docks, including docks of the
Employer, and that similar work performed by the
Employer's own employees has never been
considered to be ILA work. Moreover, the
testimony of the chief ILA and Association
negotiators in the 1969 Port of New York sessions
is uncontradicted that the strike settlement
agreement was intended only to preserve, and not to
expand, ILA jurisdiction, under the
collective-bargaining agreements
Under all the circumstances, we find the
ILA-Association contracts and agreements do not
clearly apply to employees of the Employer who
perform checking or clerical functions relating to
containerized cargo or ships' stores.4 The Board has
consistently held that "to serve as a bar, a contract
must clearly by its terms encompass the employees
sought." We see no reason to depart from this
policy in this case. We, therefore, find that the
ILA's contracts with the New York Shipping
Association are not a bar to the election R. C A
Communications, Inc , 154 NLRB 34, 37.
4. There is no dispute as to the scope of the
requested unit, and we find that the requested unit
of all of the Employer's office and clerical
employees at its offices at 2 Broadway, 69 West
14th Street, Manhattan, and 23rd Street Pier,
Brooklyn, New York City, and Pier 70-72 Port
Elizabeth, Newark, New Jersey, excluding all other
employees, confidential and managerial employees,
guards, professional employees and supervisors, as
defined in the Act, constitutes an appropriate unit
for the purposes of collective bargaining within the
meaning of Section 9(b) of the Act.'
The unit placement of the following categories of
employees is in dispute:6
Managerial employees: The Petitioner argues, as
did Local 153 at the hearing, that Edward Hoffman,
who has the title of passenger vessel coordinator,
and is engaged in correspondence and
documentation at 69 West 14th Street, should be
included in the unit. The Employer argues to the
contrary, principally on the ground that he is
managerial because he pledges the Employer's
credit, and also that he is a supervisor because he
directs company agents abroad. The ILA takes no
position. The record indicates that he performs work
comparable to that of included clerk typists in the
same department; that his pledging of credit is
perfunctory as it is limited by prior company
guidelines; and that his direction of others is routine
and is subject to the approval of ships' captains.
We, therefore, find that he is neither managerial nor
supervisory, and shall include him in the unit.
The Employer contends that cargo supervisors
Anthony Quinto, Lester Francis. John R. Boros.so,
Lars Lund, and Nicholas C Lagudis should be
excluded as supervisors ILA apparently contends
that they are not supervisors The Petitioner and
Local 153 took no position at the hearing and, in its
brief, the Petitioner makes no contention as to these
employees. The only possible indicia of supervisory
authority exercised by cargo supervisors is that they
'There is no language in either the contracts or the strike settlement
agreement pertaining to ships' stores We agree with the Employer that
ships' stores are not containerized cargo, and thus find that the provisions
of the ILA contracts clearly do not cover this type of work
'Since the transfer of the instant case to the Board, all the parties have
filed with the Board a Stipulation and Motion to Expunge , in which they
stipulate that chief container clerk Dochnal , container clerk Pimpanella,
and container inspectors Krone, Dubessiere , Smith, Shields , and Kelly
should be excluded from the unit because their function in connection with
the inspection of containers establishes a separate community of interest,
and move the Board to expunge from the record all testimony or other
references to the above-named individuals As the stipulation is not
violative of any clearly established Board policy, it is accepted , and these
employees are excluded from the unit However, the Motion to Expunge is
denied
`For the reasons given above , we find no merit in ILA's contention that
some of the employees discussed below should be excluded because covered
by its contracts
512 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
direct work. The only work directed, however, is
that of employees of stevedoring companies who are
independent contractors; to some extent, they also
direct the work of one another. However, their
duties involving the planning and execution of plans
for cargo loading are of a managerial nature. In
addition, it does not appear that they perform any
functions similar to those of the employees in the
unit, and, unlike them, do not punch a timeclock.
We find that the cargo supervisors do not have
sufficient employment interests in common with the
clerical employees in the unit to warrant their
inclusion.
Confidential employees.' The Petitioner contends
that Carol Herr, Sandra Gonzalez, and Rose
Alperin, the three clerk typists in the Employers
Marine Labor Relations, Personnel, and Medical
Department, should be included in the unit. The
Employer disagrees, on the ground that they are
confidential employees who handle or prepare a
wide variety of confidential labor relations data The
record shows that they all work interchangeable for
the industrial relations director, the director of labor
relations, and their subordinate staff, including the
assistant director of labor relations and the marine
personnel manager. As it appears that a substantial
amount of their time is spent on confidential labor
relations matters for labor relations officials of the
Employer, we shall exclude them National Cash
Register Co, 168 NLRB No 130
The Employer also contends that the following
are confidential employees: Helen Lockhart is the
executive secretary to Vice President William T.
Moore, Jr., whose principal function is studying
whether and how to use the corporate assets most
profitably, particularly in relation to acquisitions,
mergers, and sales of ships. He is also a member of
the board of directors which discusses labor
relations policy formulation; and also of its
executive committee, which initiates such policy,
upon recommendation of subordinate officers. The
record shows with respect to Lockhart's duties that
she and Moore's secretary, who the parties
stipulated should be excluded as a confidential
employee, are the sole employees comprising the
administration staff at 2 Broadway; that Lockhart
opens and disposes of Moore's mail, including
agendas and minutes of board meetings, has access
to information and documents relating to the
company's labor relations policy and planning
before the information becomes public or is given to
the unions with which the Company deals.
Lockhart's position appears to be similar to that of
Pissuto, who is the executive secretary to Executive
Vice President Buser, also a member of the board of
directors' executive committee, and who the parties
stipulated should be excluded as confidential.
'The Employer would exclude the following as confidential employees B
Pissuto, personal secretary to Executive Vice President Buser , C Kovach,
employee benefits administrator , and B Madory , executive secretary to
Secretary and Corporate Counsel Robert Carr As there appears to be no
dispute over their status , we shall exclude them
Mary Ares is one of two executive secretaries in
the Treasury Department at 2 Broadway . She works
solely for the vice president and treasurer , Bisceglia,
who presumably is also a member of the board of
directors . Bisceglia is an expert in the field of
subsidies in relation to what wages seamen's may be
reimbursed by the government . He reviews the cost
and impact on the company of proposals by union's
representing personnel employed at sea, and
company counter -proposals , and recommends
changes therein to the extent they may be financially
unfeasible or may contain sums not reimbursed by
the government . It appears that Bisceglia advises the
board of directors and its executive committee on
such matters where relevant to the formulation of
labor relations policies. Ares prepares Bisceglia's
responses to requests from highereauthority . for
advice as to the effect of union proposals , and as to
claims of overtime by marine engineers .- She also
has access to earnings projections , profit and loss
information , information regarding prospective
mergers, acquisitions, sales of corporate assets, and
plans for construction of new vessels or their sale,
before such information is made available to the
public or to unions with which the Company deals.
Joanne Mazza is the sole secretary to Salary
Administrator Sbordone , who is in the Personnel
Department at 2 Broadway . There is some
indication that he attends meetings of the board of
directors or its executive committee , and advises
them as to the formulation of labor relations
policies. He is in charge of administration of salary
rate ranges for all employees exempt from the
federal wage and hour law who are employed on
shore, including certain clericals in the requested
unit. He has complete authority to dispose of
grievances by such employees and, in this
connection , dictates to Mazza file memoranda as to
the reasons for disposition of two or three
grievances a month , which in some instances are not
disclosed to employees . Mazza also types the papers
signed by Sbordone in connection with his role,
together with the vice president for administration
and finance and other senior management officials,
in determining the amount of money that will be
allotted for salary increases ., to incumbent
employees . Mazza also types memos to the files
concerning Sbordone ' s reasons for denying or
granting such increases to particular employees, in 5
to 10 percent of these cases, which are placed in the
employees ' personnel files She also types
Sbordone ' s memoranda to supervisors and to the
vice president for administration and finance
suggesting several promotions a year, and one or
two transfers a month , of employees Some of these
memoranda are confidential in nature because not
adopted . Mazza has typed memoranda for Sbordone
concerning the Petitioner's organizing campaign,
reflecting Sbordone ' s views, as well as the views of
the company's personnel director, as to what should
be said to employees
MOORE-MCCORMACK LINES 513
ILA and the Petitioner make no contention as to
the above three individuals. However, at the hearing,
Local 153 asserted that they should all be included.
We find that all of them assist officers and
executives in confidential labor matters, and shall
exclude them.'
The Employer would also exclude B Linden, who
is the single confidential tab operator in the
Electronic Data Processing Department. Although
she supplies company officials outside the
department with labor relations information, she
works for the head of the Electronic Data
Processing Department who has no responsibility for
effectuating or carrying out labor relations policies.
Other tab operators, who are in the unit, perform
similar work, under the same supervision. However,
the record does not reveal to what extent, as the
Employer offered to prove by evidence rejected by
the Hearing Officer, she would assume special
responsibilities in the labor relations area should this
election result in a majority vote for a union. We
shall leave her status to challenged ballot.'
Supervisors: The Petitioner would include the
following individuals in the unit; the Employer
asserts that they are supervisors who should be
excluded: Vincent Sullivan, chief clerk, and Alfred
J Langenstein. Jr , marine personnel representative
in the Marine Labor Relations, Personnel, and
Medical Department. They do not punch a clock
and do not receive overtime pay, as do unit
employees, and spend a substantial amount of their
time, i.e., 90 and 30 percent respectively, in
interviewing seamen dispatched from union hiring
halls, and deciding whether to accept or reject them
for employment. Where information indicates some
disciplinary action has been taken against an
applicant in the past, they evaluate the severity
thereof in deciding whether to accept the referral.
Although they may decide in certain instances to
have the head of the Marine Personnel Department
make the decision, their recommendation is usually
followed. As they exercise independent judgment in
job referrals and effectively recommend hiring, we
find they are supervisors and shall exclude them.
Thomas Brady and Platon Picos are senior
purchasing agents in the Purchasing Department,
supervising three and five purchasing agents,
respectively. The record shows that Brady
responsibly directs subordinate purchasing agents in
soliciting bids and may reassign them to various
kinds of purchase items. He has the authority, and
has exercised it, effectively to recommend salary
increases for them and other clerical employees in
the Purchasing Department, and has the authority
effectively to recommend time off with pay for the
subordinate agents; he also disposes of minor
grievances and recommends disposition of major
grievances. Picos has the authority to change and
has changed the responsibilities of subordinate
purchasing agents He has the authority to
recommend increases for such employees, and
certain clerical employees, and generally such
recommendations have been accepted. He has the
same authority as Brady with respect to grievances
and time off with pay. In the circumstances, we
conclude that both the foregoing individuals exercise
supervisory authority and shall, therefore, exclude
them.
Al Sulzoma and John Beck, whom the ILA would
exclude at the hearing, and as to whom Local 153
took no position, are the sole individuals in charge
of the Employer's Office Service Department at
Brooklyn. They are both classified as chief clerks.
Neither punches a time clock; Sulzoma earns twice
as much, and Beck one-and-one-quarter times as
much, as employees under them.'° Both have
authority, and have exercised it, responsibly to
recommend the hiring of and increases for
subordinate employees and effectively to recommend
time off with pay. Sulzoma has the authority also to
discharge employees for insubordination and to
recommend discharges in other cases. Beck is
authorized to and has adjusted grievances of
employees under him. We find that Sulzoma and
Beck exercise supervisory authority, and shall
exclude them.
Frank Wellock, whom Local 153 and ILA would
exclude at the hearing, is a chief clerk in the
General Files & Record Section of the Legal
Department. He supervises one regular employee,
and on occasion, during busy periods, a number of
temporary employees. He has hired temporary
employees and was instrumental in having the
permanent employee transferred to his operation
rather than' being discharged. He has the authority,
which he has exercised, responsibly to recommend
increases for employees and to discharge employees,
and has authority to grant time off with pay and
overtime. We shall exclude him as a supervisor
Raymond Baier , senior accountant in the Subsidy
Department, does not punch a clock and his
earnings are double the average earnings of most
clerical or administrative employees in the unit. He
supervises and responsibly directs the work of two
clerks under him, constituting all the clerks in the
department. He effectively recommends the hiring of
employees, their increases, the adjustment of their
grievances and their discipline. As he has various
indicia of supervisory authority, we shall exclude
him.
The Employer would exclude Thomas Adamski. a
supervisor in the Unitized Cargo Department in
Newark, New Jersey. The Petitioner takes no
position in its brief, and no position was stated as to
him at the hearing by any other party. He directs
The National Cash Register Company. 168 NLRB No 130, The
Grocers Supply Company , Inc, 160 NLRB 485, 488, Brotherhood of "There is no dispute as to the status of warehouse clerks Cohen and
Locomotive Firemen and Enginemen . 145 NLRB 1521, 1532 Larrieux , who work with Sulzoma Accordingly , in agreement with
'Cf Consolidated Papers, Inc, 179 NLRB No 21 Petitioner , we shall include them
514 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the work of three employees, and has the authority
responsibly to relieve them of their duties if they are
not performed properly, and to recommend
increases for them, and the resolution of their major
grievances. He may dispose, on his own, of minor
grievances. We shall exclude him as a supervisory
employee.
[Direction of Election" omitted from publication.]
"In order to assure that all eligible voters may have the opportunity to
be informed of the issues in the exercise of their statutory right to vote, all
parties to the election should have access to a list of voters and their
addresses which may be used to communicate with them Excelsior
Underwear Inc, 156 NLRB 1236, N L R B v Wyman-Gordon Company,
349 U S 759 Accordingly , it is hereby directed that an election eligibility
list, containing the names and addresses of all the eligible voters must be
filed by the Employer with the Regional Director for Region 2 within 7
days of the date of this Decision and Direction of Election The Regional
Director shall make the list available to all parties to the election No
extension of time to file this list shall be granted by the Regional Director
except in extraordinary circumstances Failure to comply with this
requirement shall be grounds for setting aside the election whenever proper
objections are filed