Nicholson Transit Co.

National Labor Relations Board - Board Decisions

May 11, 1950

89 N.L.R.B. 1278 (N.L.R.B. 1950)

In the Matter of NICHOLSON TRANSIT COMPANY, EMPLOYER and SEA-
FARERS' INTERNATIONAL UNION OF NORTH AMERICA, AFL, GREAT
LAKES DISTRICT , PETITIONER
Case No. 7-RC-419
SUPPLEMENTAL DECISION
AND
ORDER
May 11, 1950
Pursuant to a Decision and Direction of Elections issued herein on
August 29, 1949,1 elections by secret ballot were conducted under the
direction and supervision of the Regional Director for the Seventh
Region. Upon conclusion of the balloting, tallies of ballots were
issued and served upon the parties 2 hereto. The tallies show the
following results for each of the elections :
(a) The S. S. Sultana:
Approximate number of eligible voters-------------- 21
Votes for Petitioner------------------------------- 3
Votes for Intervenor------------------------------- 3
Votes against Petitioner and Intervenor------------- 7
Challenged ballots---------------------------------- 0
(b) The S. S. Sonora:
Approximate number of eligible voters-------------- 21
Votes for Petitioner------------------------------- 3
Votes for Intervenor------------------------------- 11
Votes against Petitioner and Intervenor------------ 1
Challenged ballots ------ --------------------------- 0
(c) The S. S. Penobscot:
Approximate number of eligible voters------------- 20
Votes for Petitioner------------------------------- 3
Votes for Intervenor----------------------------- 0
Votes against Petitioner and Intervenor------------- 6
Challenged ballots---------------------------------- 1
1 85 NLRB 692.
2 The Intervenor appearing on the ballot in each of these elections is the National
Maritime Unipn, C. I. O.
89 NLRB No. 155.
1278
NICHOLSON TRANSIT COMPANY 1279
(d) The S. S. Mataafa:
Approximate number of eligible voters-------------- 20
Votes for Petitioner-------------------------------- 1
Votes for Intervenor------------------------------- 1
Votes against Petitioner and Intervenor------------- 17
Challenged ballots---------------------------------- 0
Void ballots---------------------------------------- 1
On September 29, 1949, the Petitioner filed objections to conduct
affecting the results of the elections. Thereafter, in accordance
with the Board's Rules and Regulations, the Regional Director con-
ducted an investigation, and on November 23, 1949, issued and duly
served upon the parties his report on objections, recommending that
the objections be overruled. On December 9, 1949, the Petitioner filed
exceptions to report on objections.
Thereafter, on January 11, 1950, the Board 3 issued an order direct-
ing that a hearing be held on the issues raised by certain portions of
objections 2 and 4,4 and that the hearing officer prepare and serve upon
the parties a report resolving questions of credibility of witnesses and
containing findings of fact and recommendations to the Board as to
the disposition of these objections. The order provided for an op-
portunity to file exceptions.
A hearing was held on February 10, 1950, before Harold L. Hudson,
hearing officer duly designated by the Regional Director. On March
13, 1950, he issued and served upon the parties a report in which he
recommended that the Board overrule the Petitioner's objections. No
exceptions have been filed to the hearing officer's report.
The objections
1. The Petitioner objects to the conduct of the election on the S. S.
Penobscot, alleging that the Employer refused to permit the hold-
ing of the election on September 20, 1949, when the vessel docked
at Detroit, in disregard of the Board's notice which called for the
election to be held at such time. The Board's election notice pro-
vided for holding the election immediately upon the first docking
of the vessel at Detroit, Michigan, after midnight, September 18,
1949. The Regional Director's report finds that the vessel did not
dock at Detroit until September 23, 1949, and that the election was
held on that date. The report further finds that on September 20,
8 Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the
Board has delegated its powers in connection with this case to a three -member panel
[ Chairman Herzog and Members Reynolds and Styles].
4 Relative to the presence in the voting area of the captain of the S . S. Sultana during.
the balloting on that vessel.
1280 DECISIONS .OF NATIONAL LABOR RELATIONS BOARD
1949, the vessel did dock at Ecorse, Michigan, but not at Detroit, as
alleged in the objections. These findings are conceded by the Peti-
tioner's exceptions. The Petitioner nevertheless excepts to the fail-
ure to hold the election at Ecorse, alleging that balloting on the S. S.
Sonora took place when that vessel docked at Ecorse, despite the in-
struction in the Board's notice that the election should be held at
Detroit. We perceive no merit in these contentions. The election
on the S. S. Penobscot was held in accordance with the Board's in-
structions, and there is no evidence from the above circumstances of
any conduct by the Employer which deprived the voters of a fair
and free election.
2. The Petitioner contends that the Employer improperly election-
eered on all four vessels involved herein. In support of this objection
the Petitioner alleges that the Employer's marine superintendent
"rode" each of these vessels just before the elections and held meet-
ings with the crews ostensibly to influence their votes. No evidence
was presented which indicated that the marine superintendent made
any statements which intimidated, coerced, or in any manner pre-
vented the voters from freely expressing their choice in the elections.
We find no merit in this allegation.
As to the S. S. Mataafa, the Petitioner's evidence shows that the
marine superintendent was on board this vessel during the balloting
and talked to the voting crew members; that the Petitioner's ob-
server protested to the Board's agent against the presence of the
superintendent and his conversations with the crew members, but
that the Board's agent permitted this conduct to continue. No evi-
dence has been presented as to the nature of the superintendent's
statements, nor that he was in the voting area during the balloting
or in any position where voters going to or from the polls had to pass
him. The Petitioner nevertheless contends that a possibility of intim-
idation exists because of his presence on the vessel, and that the
election should therefore be invalidated. We do not agree. There
is no indication that there was any interference with the free choice
of the voters resulting from the mere presence of the marine super-
intendent on this vessel.'
Regarding the S. S. Sultana, the Petitioner alleges that the captain
and an engineer stood outside the voting area during the balloting,
and that the captain engaged in conversation with the voters as they
were lined up outside the voting place waiting to cast their ballots.
The hearing officer's report finds that before the election began, the
captain had escorted the Board's agent and the election observers
c Potlatch Forests, Inc ., 80 NLRB 613.
NICHOLSON TRANSIT COMPANY _ 1281
into the dining hall of the vessel where the balloting was to take
place. After the dining table had been cleared, the captain' was ad-
vised to leave the room and did so without protest. Thereafter, and
throughout the course of the balloting, the captain remained at the
starboard rail of the vessel at a point 14 to 20 feet from the door:
of the dining hall through which the voters entered, where he was
engaged in conversation with the chief cook. The voters approached
the door from the opposite or port side of the vessel. The area
outside the dining hall was dimly lighted, so that there is doubt
as to whether the voters were even aware of the captain's presence,
or that his presence on his own vessel had any significance for them.
As no exceptions have been- filed to the report, we adopt the findings
and recommendation contained therein. We find that the presence
of the captain did not interfere with the free choice of the voters
on the S. S. Sultan a.6
3. The Petitioner objects to all 4 elections herein on the ground
that the Employer's refusal to present payroll lists in advance of
the elections deprived the Petitioner of adequate opportunity to deter-
mine the eligibility of voters before they voted. The Employer had
presented lists of eligible voters more than a week before the elec-
tions. The Petitioner, however, asserts that because the voters were
at sea until just before the elections, it had no opportunity to meet
with them in order to ascertain their eligibility, and that under these
circumstances it should have been granted `access to the Employer's
payrolls in advance of the elections to make such inquiry. The
Petitioner neither contends nor submits any evidence that any ballot
was cast by an ineligible voter. The Petitioner nevertheless contends
that this procedure was so irregular as to warrant the invalidation
of the elections without specific proof that the Petitioner was prej-
udiced thereby. We do not agree. The Petitioner's exceptions admit
that it had an opportunity to compare the payroll lists when the
voting took place. No more than 20 employees voted in any of the
elections herein and the Petitioner would not have been unduly
burdened by making a check of the payroll records of so few em-
ployees before they voted. We perceive no prejudice to the Petitioner,
nor do we find that the foregoing circumstances constitute such gross
irregularity as to justify setting these elections aside without proof
that the elections do not represent the free expressions of the voters.
4. The Petitioner objects to the conduct of the election on the:
S. S. Mataafa because a representative of the Employer entered the
8 The objection relating to the presence of the captain on the S. S. Sultana discussed
under objection numbered 2 is reiterated in the Petitioner's objection numbered 4.
1282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pilot house where the voting was taking place before the poll was
closed. The Regional Director's report finds that the person who
entered the pilot house was one of the voting crew members, who
merely questioned the Board's agent as to whether all eligible voters'
had cast their ballots. This information was refused and he imme-
diately left the voting area. This incident occurred at a time when
the balloting was suspended pending the arrival of voters. The report
further finds that there is no proof that the election was affected by
this incident. The Petitioner does not except to these findings. In
the absence of exceptions, we shall affirm these findings in the Regional
Director's report.
5. The Petitioner alleges interference with the election on the S. S.
.Sultana because the Employer and the Intervenor had access to that
vessel when it docked at the Employer's coal dock at River Rouge
before it reached Detroit where the election was held. The Petitioner
did not have such access. The Regional Director's report finds that
the Intervenor had a right of access to all the Employer's docks by
virtue of its status as representative of the employees on 10 of the
Employer's vessels, and that passes for such purpose had been issued
to the Intervenor prior to the initiation of this proceeding. The re-
port finds that no proof has been submitted that either the Employer
or the Intervenor had taken advantage of their right of access, or if
in fact they had, that they had thereby attempted to influence the
voters. The Petitioner does not except to these findings, but contends
that the election should have been held when the vessel docked at
River Rouge in order to have eliminated even the possibility that the
Employer or Intervenor might have exercised their right of access for
the purpose of exerting influence on the voters. This contention is
without merit. The election was held at Detroit in accordance with
the Board's election notice. We find moreover that the Employer's
right of access to its own premises cannot be questioned, and in the
absence of proof that the Intervenor's right of access was unfairly
exercised to the prejudice of the Petitioner, that the election should
not be set aside.'
The Petitioner also excepts because its objections were investigated
by the field examiner who acted as the Board's agent in the conduct of
the elections. The Petitioner had protested his assignment to the
Regional Director after the filing of its objections, but the field ex-
aminer was nevertheless permitted to continue with the investigation.
7 Bauer-Schweitzer Hop & Malt Co., 78 NLRB 327.
NICHOLSON TRANSIT COMPANY 1283
We find that no prejudice to the Petitioner has resulted from the
manner in which the investigation was conducted."
CONCLUSION
As we have found no merit in the Petitioner's objections, we shall
direct that the objections be, and they hereby are, overruled.
In the Decision and Direction of Elections referred to herein, the
Board made no final determination of the appropriate unit or units,
but there stated :
If a majority of the employees in any of the * * * voting
groups select the Intervenor they will be taken to have indicated
a desire to be added to the bargaining unit presently represented
by the Intervenor.
Upon the basis of the entire record in the case, the Board makes the
following :
SUPPLEMENTAL FINDINGS OF FACT
We find that all unlicensed personnel on the vessel S. S. Sonora, of
the Nicholson Transit Company, Ecorse, Michigan, excluding all
licensed personnel, stewards, and all other supervisors as defined in the
Act, have selected the National Maritime Union, CIO, as their bar-
gaining representative. As this organization is now the recognized
exclusive bargaining representative of the unlicensed personnel in a
unit comprising 10 vessels of the Nicholson Transit Company, the
Employer herein, and the results of the election on the S. S. Sonora
show that the unlicensed personnel on that vessel have designated the
National Maritime Union, CIO, this organization may now bargain
for these employees as part of the unit which it currently represents.
ORDER
IT IS HERr.BY ORDERED that the petition for investigation and certifi-
cation of representatives of employees of Nicholson Transit Company,
Ecorse, Michigan, filed herein be, and it hereby is, dismissed as to
the employees on the Employer's vessels S. S. Sultana, S. S. Penobscot,
and the S. S.Mataafa. ' .
8 See The Ann Arbor Press, 88 NLRB No. 115 . The petitioner ' s contention that assign-
ment of the field examiner to this investigation violated Section 5 ( c) of the Adminis-
trative Procedure Act is without merit, as the provisions of Section 5 of the Act do not
apply to representation proceedings . Deep Oil Development Company, 74 NLRB 941.
892827-51-vol. 89-82