Ocean Tow, Inc.

National Labor Relations Board - Board Decisions

Feb 13, 1952

98 N.L.R.B. 77 (N.L.R.B. 1952)

OCEAN TOW, INC. 77
The Board has held that a supervisor cannot act as a representative
of employees to decertify a union .4 Nor can an employer's super-
visor represent its employees for purposes of collective bargaining s
Accordingly, the Intervenors' motion to dismiss the petition for this
reason is hereby granted.
Order
IT IS HEREBY ORDERED that the petition in this case be, and it hereby
is, dismissed.
s Clyde 1) i1cri is, 77 NLRB 1375
s Douglas .4i waft Company, Inc, 553 NLI113 486
OCEAN Tow, INC., PETITIONER and SEAFARERS INTERNATIONAL UNION
or NORTH AMERICA and PACIFIC COAST MARINE FIREMEN, OILERS,
WATERTENDERS AND WIPERS ASSOCIATION. Case No. 19-RM-77.
February 13,19-62
Decision and Direction of Elections
Upon a petition duly filed under Section 9 (c) of the National
Labor Relations Act, a hearing was held before Donald D. McFeely,
hearing officer. The hearing officer's rulings made at the hearing are
free from prejudicial error and are hereby affirmed.
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-mem-
ber panel [Chairman Herzog and Members Houston and Murdock].
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of the
Act.
2. The labor organizations involved claim to represent certain em-
ployees of the Employer.
Pacific Coast Marine Firemen, Oilers, Watertenders and Wipers
Association, herein called the Marine Firemen, contends that a mem-
orandum of agreement which it signed with the Employer on March
20, 1951, is a bar to this proceeding. Seafarers International Union
of North America, Atlantic and Gulf Districts, affiliated with the
American Federation of Labor, herein called the SIU, joins the
Employer in opposing the Marine Firemen's motion to dismiss the
petition on this ground.
The Employer is engaged in operating freight vessels. It started
business in January 1951, with the purchase of two vessels, the Alaska
Cedar and the Alaska Spruce. At that time, the Employer intended
to joinQthe R acific Amerce z Shipowners 4ssociation, now known as,
98 NLRB No. 23.
78 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Pacific Maritime Association, and herein called PMA. For this
reason it sent letters to each of the unions representing employees of
PMA members, indicating its intention to join PMA and to operate
under the "PMA pattern." The Alaska Cedar was outfitted first,
and by March 20 a full complement of four unlicensed engine-room
employees had been hired for it and one other for the Alaska $'pruce.
,On that date, the Employer and the Marine Firemen signed a "Mem-
orandum of Agreement," providing that the Employer would observe
the terms and conditions of a master agreement between PMA and
-the Marine Firemen. The Pacific Maritime agreement is limited to
unlicensed engine-room personnel (firemen, oilers, and wipers), the
,only employees involved in this proceeding.
On April, 26, 1951, the Employer entered into a contract with the
SIU, covering, among others, the engine-room employees previously"
affected by the PMA agreement. At about this same time, it dis-
charged four members of the Marine Firemen then working on the
Alaska Cedar.' Thereafter both vessels made voyages. The record
-does not show affirmatively whether the Employer operated under the
terms of the PMA agreement or its contract with the SIU. At the
time of the hearing, both vessels were in drydock, and the exact date
for resumption of sailings was unknown.
The coexistence of agreements with separate unions covering the
same group of employees during the first year of this Employer's
operations requires an examination of all the circumstances, in order
to determine whether or not the first of these agreements constitutes
a bar. There is much in the record indicating that the memorandum
of agreement was no more than a "binder," used to set wages , hours,
and working conditions on a stopgap basis until the Employer should
become a full-fledged PMA member. We also note that in July, after
the Employer ' established contractual relations with the SIU, the
Pacific Maritime agreement was substantially modified, and that the
Employer's promise (a one-page document) to Marine Firemen to
abide by PMA conditions does not clearly show an intent also to adhere
to future material changes in these conditions.
Without determining the precise character of the agreement with
Marine Firemen, we believe that the peculiar facts of this case raise
a serious question as to whether that agreement is still in existence.
Certainly the record as a whole clouds the Marine Firemen's conten-
i On April 18, 1951 , the Marine Firemen filed a charge alleging the discriminatory dis-
,charges of these four employees . On July 19, 1951 , the Employer and the Marine Firemen
executed a settlement agreement in that case , providing for back pay to these four em-
ployees , reinstatement to three of them , and an offer of reinstatement to the fourth
(Irwin Brockway ), provided either the Marine Firemen or Brockway notified the Employer
'of his availability for employment within 5 days of his discharge from another vessel
then on a voyage.
OCEAN TOW, INC. 79
tion that the memorandum of agreement is now binding upon the
original parties. We are convinced, therefore,,that these employees
should not now be denied the right to select a bargaining representa-
tive of their own choosing.2 For this reason, the Marine Firemen's
motion to dismiss the petition on the grounds of contract bar is denied.
Accordingly, we find that a question affecting commerce exists con-
cerning the representation of employees of the Employer within the
meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act.
4. The Employer and SIU contend that all unlicensed engine-room
employees on ships presently owned by the Employer or that may later
be acquired comprise a single bargaining unit. The Marine Firemen
contends that the employees of each ship should constitute a separate
appropriate unit.
The record shows that working conditions on the two vessels are
substantially similar, and that the pattern of bargaining in this
industry has been on a fleet, rather than single vessel, basis. These
facts indicate the feasibility of a single unit comprising the two vessels
of the -Employer. However, as the Board has often held, absent a
significant bargaining history on a multivessel basis,3 and with no
evidence of transfer or interchange of employees among vessels, a
separate unit for each vessel could also be appropriate.4 Accordingly,
we shall not make any final unit determination at this time, but shall
first ascertain the desires of these employees as expressed in the elec-
tions herein directed. We shall direct that separate elections by secret
ballot be held among the following groups of the Employer's em-
ployees :
(a) All unlicensed engine department employees on the ship Alaska
Cedar, excluding all other employees and all supervisors as defined in
the Act.
(b) All unlicensed engine department employees on the ship Alaska
Spruce, excluding all other employees and all supervisors as defined
in the Act.
5. The determination of representatives :
The Marine Firemen contends that no election should be conducted
at this time because the ships, at the time of the hearing at least, were
not in operation. The Employer urges that any election herein di-
rected be held at the first port available after the unlicensed engine
s See La Follette Shirt Company, 65 NLRB 952.
' We deem the short and confused "bargaining history" among these employees of little
weight in determining the appropriate unit. See Liggett & Myers Tobacco Company, 74
NLRB 513.
1 See Nicholson Transit Company, 85 NLRB 955. In view of our finding herein , and also
in accord with Board precedent, we shall not"include in any unit found appropriate person.
nel on any additional ships which the Employer may acquire in the future . American
Steel and Wire Company of New Jersey, 63 NLRB 1244.
80 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
department employees are all on board. The SIU apparently takes no•
position on this issue.
In view of the uncertainties surrounding this type of election and
the time normally consumed in voting personnel assigned to seagoing-
vessels, we shall vest in the Regional Director for the Nineteenth
Region discretion to determine the exact time, places, and procedure
for holding the elections, except that balloting shall be completed no
more than 120 days from the date the first ballots were cast.'
The Marine Firemen apparently also urge that Irwin Brockway, an
employee discharged in the spring of 1951, be held eligible to vote.
As the record does not show whether or not Brockway is entitled to
reinstatement, we shall make no determination at this time as to his
eligibility, but shall permit him to vote subject to challenge.
[Text of Direction of Election omitted from publication in this
volume. ]
5 American Export Lines, Inc., 84 NLRB 134.
WESTERN GEAR WORKS and INTERNATIONAL ASSOCIATION OF MACHIN-
ISTS, DISTRICT LODGE No. 94, LOCAL No. 311, PETITIONER. Case No..
21-RC-2149. February 14, 1952
Decision and Direction of Election
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before Daniel J. Harrington, hear-
ing officer. The hearing officer's rulings made at the hearing are free
from prejudicial error and are hereby affirmed.
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 [Chairman Herzog and Members Houston and Murdock].
Upon the entire record of this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of the
Act.
2. The labor organization involved claims to represent certain
employees of the Employer.
3. Since 1943 when the Petitioner, after a consent election, was
certified as the representative of the Employer's production and main-
tenance employees, it has represented those employees under a series of
contracts. The Employer contends that the current contract, effective
by its terms from July 31, 1950, to September 2, 1955, constitutes a bar
to this proceeding. Admittedly, however, the plant clerical employees
whom the Petitioner now seeks to represent are not covered by the
contract; nor does it appear that the Petitioner had expressly agreed
98 NLRB No. 20.