Ohio Barge Line, Inc.

National Labor Relations Board - Board Decisions

Nov 8, 1944

59 N.L.R.B. 154 (N.L.R.B. 1944)

In the Matter of OHIO BARGE LINE, INC., and NATIONAL ORGANIZATION,
MASTERS, MATES AND PILOTS OF AMERICA, LOCAL 25, AFL
Case No. 6 -R-1001.-Decided November 8, 1944
Messrs. Paul J. Winschel and Edward J. Resler, of Pittsburgh, Pa.,
for the Company.
Messrs. Zeno Fritz and W. H. Griffith, of Pittsburgh, Pa., for the
Union.
Miss Ruth E. Blie field, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon a petition duly filed by the National Organization, Masters,
Mates and Pilots of America, Local 25, AFL, herein called the Union,
alleging that a question affecting commerce had arisen concerning
the representation of employees of Ohio Barge Line, Inc., Pittsburgh,
Pennsylvania, herein, called the Company, the National Labor Rela-
tions Board provided for an appropriate hearing upon due notice
before W. G. Stuart Sherman, Trial Examiner. • Said hearing was
held at Pittsburgh, Pennsylvania, on September 6, 1944. The Com-
pany and the Union appeared and participated. All parties were
afforded full opportunity to be heard, to examine and cross-examine
witnesses, and to introduce evidence bearing on the issues.
At the close of the hearing the Company moved to dismiss the
petition on the ground that, the bargaining unit requested by the
Union is inappropriate because all the employees therein are repre-
sentatives of management charged with the responsibility for the
safety of the Company's valuable property and the masters and mates
perform supervisory services of the highest character; and upon the
further ground that the pilots sought to be included in the unit are
independent contractors in their relationship to the Company. For
the reasons hereinafter indicated, the motion is denied. The Trial
Examiner's rulings made at the hearing are free from prejudicial
59 N. L. R. B., No. 34.
154
OHIO BARGE LINE, INC. 155
error and are hereby affirmed.' All parties were afforded opportu-
nity to file briefs with the Board.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
Ohio Barge Lines, Inc., is a Pennsylvania corporation with its office
and principal place of business in Pittsburgh, Pennsylvania. It is a
subsidiary of, and wholly owned by the United States Steel Corpora-
tion of New Jersey, herein called the Corporation. The Company is
engaged in the regular operation of two river boats and towing barges
for the transportation of raw materials from New Orleans, Louisiana,
and intermediate points, to plants of the Corporation located in the
Pittsburgh, Pennsylvania, area, and the transportation of finished and
semi-finished products from the Pittsburgh plants to New Orleans and
intermediate points. During 1943 it transported by its river boats a
total of approximately 87,953 net tons, of which approximately 25
percent represented raw materials' which were transported to the
Corporation's plants in the Pittsburgh area from points outside Penn-
sylvania, and approximately 75 percent represented finished and semi-
finished products sold and shipped from the Corporation's, plants in the
Pittsburgh area to points outside Pennsylvania.
The Company stipulates that it is engaged in commerce within the
meaning of the National Labor Relations Act.
II. THE ORGANIZATION INVOLVED
National Organization Masters, Mates and Pilots of America, Local
25, affiliated with the American Federation of Labor, is a labor organ-
ization admitting to membership employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
It was stipulated at the hearing that a question concerning represen-
tation arose on July 11, 1944, when the Union requested recognition as
exclusive bargaining representative of employees in the unit claimed
herein by the Union to be appropriate. The Company refused the
s During the course of the hearing the Company, offered to prove that the Union and
maritime unions operating in the Pittsburgh District act in concert in making-demands on
various employers and collaborate very closely, arguing that the allowance of the present
petition will not effectuate the purposes of the National Labor Relations Act insofar as the
petition seeks to compel the Company to bargain with supervisory employees, because a
necessary result will be that the Company will not be able to bargain effectively with non-
supervisory employees The Trial Examiner rejected the offer of proof as immaterial, and
his ruling is hereby upheld. In view of our determination, infra,,that the supervisory em-
ployees in question constitute an appropriate bargaining unit, it is immaterial that they
may be represented by organizations which also represent non-supervisory employees com-
prising other appropriate units. See Matter of Packard Motor Car Co., 47 N. L. R. B.
932 ; Matter of Soss Mfg Co , 56 N. L. R. B. 348.
P
156' DECISIONS OF NATIONAL LABOR RELATIONS BOARD
request, alleging that the claimed unit was inappropriate and stating
that it would not deal with the Union until an election had been held
and the Union certified by the Board in an appropriate unit.
A statement of the Field Examiner introduced into evidence at the
hearing indicates that the Union represents a substantial number of em-
ployees in the unit hereinafter found appropriate.2
We find that a question affecting commerce has arisen concerning the
representation of employees of the Company within the meaning of
Section 9 (c) and Section 2 (6) and (7) of the Act.,
IV. THE APPROPRIATE UNIT
The Union requests a unit composed of all masters, mates, and pilots
employed by the Company on its river towboats.
The Company seeks to exclude masters on the grounds that they are
supervisory employees, and direct representatives of management, hav-
ing almost unlimited supervisory and managerial powers. A witness
for the Company testified that the masters have sole authority to hire
and discharge employees, and that the hiring of employees is not done
through a personnel department, as is the case with other riverboat
companies. The evidence also indicates that the masters are in com-
plete charge of the Company's property and merchandise, and are
responsible for the proper maintenance of the vessel at all times. Ac-
cepting this evidence as true, we perceive no reason to- differentiate
between the masters in the Company's employ, and other ship and boat
masters, or to depart from our usual practice of approving the inclusion
of masters in units such as the one herein proposed. Employees are
not, of course, debarred from collective bargaining merely because they
may be entrusted with the care of valuable property of their employer,
or otherwise charged with heavy responsibility. So far as the super-
visory status of the masters is concerned, the Company here appears
to be invoking, mistakenly, the doctrine enunciated in the Maryland
Drydock case.3 Maritime supervisors, despite the fact that they char-
acteristically bear great responsibility and exercise authority over sub-
ordinate personnel, which in many situations is almost absolute, are
excepted from the application of that doctrine,4 and the inclusion of
masters is approved wherever they seek to bargain in the conventional
unit of masters, mates and pilots.,' We shall include the masters in the
8 The Field Examiner reported that the Union submitted eight authorization cards, two
of which were dated June 1944 and six were dated July 1944, and there are eight employees
in the appropriate unit.
' See Matter of Maryland Drydock Company, 49 N. L. R. B. 733.
' See Matter of Jones & Laughlin Steel Corporation, 47 N. L It. B. 366, 47 N. L. R. B.
1272, and 54 N. L R B 679 ; Matter of Midland Steamship Company, 53 N. L. R. B. 727;
Matter of Cleveland Cliffs Iron Co., Marine Dept, 58 N. L R B. 708.
5 Matter of Seas Shipping Co., 8 N. L. R. B. 422 ; Matter of Tidewater Assoc., Oil Co.,
9 N. L It . B 823 ; Matter of Campbell Transportation Co., 36 N L . R B. 1030 ; Matter of
Jones & Laughlin Steel Corp , 37 N. L. It. B. 366; Matter of Carnegie Illinois Steel Corpo-
ration, 37 N L. R B 19; Matter of Tidewater Associated Oil Co., 38 N. L. It. B. 582;
Matter of Drava Corp ., Keystone Sand Division , 39 N. L . R. B. 846.
OHIO BARGE LINE, INC. 157
unit. The mates, who are subordinate supervisory employees, will
likewise be included for the same reasons.
The Company also seeks to exclude the pilots on the ground that they
are "contract pilots," and in the nature of independent contractors.
The testimony shows that the pilots are hired on a trip basis under an
oral contract or understanding, the terms of which are not set forth
in the record, and are free to accept employment with other riverboat
companies when not actually engaged in the. Company's service. It
further appears that the Company regularly engages the four pilots,
whom the Union seeks to include in the unit, that these pilots generally
hold themselves available for work with the Company and that three of
them devoted a substantial part of a pilot's normal annual working time
to the Company's, service in 1943.6 It also appears that there has-been
no turn-over in the pilot force during the past 3 months. The pilots
perform duties and have the functions usually associated with the
position on other river boats operating in the area. We find that the
pilots regularly employed by the Company are its employees within
the meaning of the Act, and we shall include them in the unit:
We find that all masters, mates and all regular pilots employed'by
the Company on its river boats constitute a unit appropriate for the
purposes of collective bargaining, within the meaning of Section 9
(b) of the Act.
V. THE DETERMINATION OF REPRESENTATIVES
We shall direct that the question concerning representation which
has arisen be resolved by an election by secret ballot among the em-
ployees in the appropriate unit who were employed between the date
of the filing of the petition and the date of the Direction of Election
herein, subject to the limitations and additions set forth in the
Direction.
DIRECTION OF ELECTION
By virtue of and pursuant to the power vested in the National Labor
Relations Board by Section 9 (c) of the National Labor Relations
Act, and pursuant to Article III, Section 9, of National Labor Rela-
tions Board Rules and Regulations-Series 3, as amended, it is hereby
DIRECTED that, as part of the investigation to ascertain representa-
tives for the purposes of collective bargaining with Ohio Barge Line,
"The record shows that the Company has used the service of four pilots almost ex-
clusively during the past 2 years. Three of the pilots, who are still in the Company's
employ, worked the following number of days during the year 1943 for the Company :
Louis E. Bradford, 116 days, Wm. McCune Howder, 248 days, Harry A. Hamilton, 1101/
days. A fourth pilot, Wm. F. Edwards, worked a total of 69 days for the Company during
1943,-and has since entered the Government service. The usual contract providing for the
exclusive services of a pilot embraces a working period of 220 days a year, and 125 days
of rest.
* See Matter of Jones ct Laughlin Steel Corporation, 47 N. L. R. B. 1272.
158 DECISIONS , OF NATIONAL LABOR RELATIONS BOARD
Inc., Pittsburgh, Pennsylvania, an election by secret ballot shall be
conducted as early as possible, but not later than thirty (30) days from
the date of this Direction, under the direction and supervision of the
Regional Director for the Sixth Region, acting in this matter as agent
for the National Labor Relations Board, and subject to Article III,
Sections 10 and 11, of said Rules and Regulations, among the em-
ployees in the unit found appropriate in Section IV, above, who were
employed between the date of the filing of the petition and the date
of this Direction, including employees who did not work during the
said period because they were ill or on vacation' or temporarily laid
off, and including employees in the armed forces of the United States
who present themselves in person at the polls, but excluding those
employees who have since quit or been discharged for cause and have
not been rehired or reinstated prior to the date of the election, to de-
termine whether or not they desire to be represented by the National
Organization, Masters, Mates and Pilots of America, Local 25, AFL,
for the purposes of collective bargaining.
CHAIRMAN MILLIs took no part in the consideration of the above
Decision and Direction of Election.