Pacific Far East Line, Inc.

National Labor Relations Board - Board Decisions

Mar 13, 1969

174 N.L.R.B. 1168 (N.L.R.B. 1969)

1 168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pacific Far East Line, Inc. and Marine Staff
Officers , affiliated with Seafarers ' International
Union of N.A., Pacific District , AFL-CIO,
Petitioner , and Pacific Far East and Maritime
Employees ' Association , Intervenor No. 1, and
Local 71, Steamship Employees Union , affiliated
with Marine Engineers Beneficial Association,
AFL-CIO, Intervenor No. 2. Case 20-RC-8289
March 13, 1969
DECISION AND DIRECTION OF
ELECTION
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND BROWN
Upon a petition duly filed under Section 9(c) of
the National Labor Relations Act, as amended, a
hearing was held before Hearing Officer Donald E
Twohey on November 4, 8, 12, 13, and 14, 1968.
Subsequent to the hearing, the Petitioner, Employer,
and both Intervenors filed briefs with the National
Labor Relations Board.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel
The Board has reviewed the Hearing Officer's
rulings made at the hearing and finds that they are
free from prejudicial error. They are hereby
affirmed.
Upon the entire record in this case, including the
briefs, 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. Petitioner and Pacific Far East and Maritime
Association (herein called the Association) are labor
organizations claiming to represent certain
employees of the Employer. Petitioner contends that
Local 71, Steamship Employees Union, affiliated
with Marine Engineers Beneficial Association,
AFL-CIO (herein called Local 71), is not a labor
organization because other locals of its parent
organization, Marine Engineers Beneficial
Association (herein called MEBA) represent
supervisors and MEBA is seeking to represent the
Employer's port engineers who, it asserts, are
supervisors.
The Board has held that if employees are
admitted to membership in a union in whose affairs
they may participate and which deals with
employers concerning grievances, wages, and other
conditions of employment, the union is a "labor
organization" within the meaning of Section 2(5) of
the Act, despite the fact that it may also admit
supervisors in substantial numbers.'
'International Organization of Masters, Mates & Pilots of America, Inc
The record herein establishes that Local 71 is an
organization which undertakes to act in the manner
and for the purposes set forth in the statute. The
Board has previously determined that MEBA is a
labor organization within the meaning of Section
2(5) of the Act.' Accordingly, we reject these
contentions and find that MEBA and its Local 71
are labor organizations under Section 2(5) of the
Act.
3. The question concerning representation
The Association has been a party to several
collective-bargaining contracts with the Employer
In 1965 the Association and Employer entered into
a contract effective from March 1, 1965 to March 1,
1968. On April 5, 1968, the parties signed an
agreement extending the contract to March 1, 1969
The Employer and Association take the position
that the latter agreement is a bar to the
representation petition filed on August 2, 1968. The
Board does not dismiss as untimely petitions which
have been processed if a hearing has been held
thereon and the Board decision will issue on or after
the 90th day preceding the expiration date of the
contract urged as a bar.' In the circumstances
herein, we find that the existing contract does not
constitute a bar.
4. The Association was certified on June 10, 1959,
in Case 20-RC-3848 in a unit of all office employees
and salesmen working in and from the office of the
employer at 141 Battery Street and Piers 27, 29, 31,
and 33, San Francisco and 600 16th Street,
Oakland, excluding confidential employees, all
division executives. department heads and other
supervisors as defined in the Act. Petitioner seeks an
election in this unit, and the parties are in
agreement that the historical unit is appropriate,
except that Local 71 contends that salesmen should
be excluded. As salesmen have been included in the
unit historically and as Local 71 has shown no
compelling reason to exclude them, we find that
salesmen are part of the appropriate unit
In addition, one or more of the parties questioned
the inclusions or exclusions of certain positions
contending these should be changed to reflect the
respective duties Upon the basis of the evidence
adduced at the hearing, we find that the historical
unit should be adhered to with the following
exceptions:
Secretary to the Secretary Treasurer
The Petitioner would include and all others would
(Chicago Calumet Stevedoring Co, Inc ), 144 NLRB 1172, 1177, affd 351
F 2d 771 (C A D C ). International Paper Company , Southern Kraft
Division , 172 NLRB No 100; Graham Transportation Company, 124
NLRB 960, see also NLRB v Edward G Budd Manufacturing
Company , 169 F 2d 571, 576-577
'See National Maritime Union , AFL-CIO, National Marine Engineers
Beneficial Association (Standard Oil Company ), 121 NLRB 208. 210, and
274 F 2d 167 (C A 2)
'Deluxe Metal Furniture Company, 121 NLRB 995, Water Tower Inn,
139 NLRB 842, 847, Royal Crown Cola Bottling Co of Sacramento, 150
NLRB 1624, 1625
174 NLRB No. 172
PACIFIC FAR EAST LINE, INC.
exclude this employee, who was formerly excluded
as a confidential employee. The work of the
Secretary Treasurer relates primarily to the financial
affairs of the Employer He does not participate
directly in labor relations such as contract
negotiations or grievance procedures. He may have
some responsibility limited to the Employer's
participation in a multiemployer unit represented by
the seagoing unions However, we find that he does
not formulate, determine, or effectuate the
Employer's general labor policy.' In these
circumstances we find that the secretary to the
Secretary Treasurer should not be excluded from the
unit as a confidential employee
Financial Analyst (Tax and Subsidy Accounts
Supervisor)
The Petitioner would include and all others would
exclude this employee who was formerly excluded
because his work "involves . the company's
ability to make a profit." The record reveals that
this employee is involved in, and consults with
management about, corporate financial matters such
as tax and subsidy matters. His work does not
involve labor relations, employee representation, or
collective bargaining, nor does he serve in a
confidential capacity to a person doing such work.
Thus, there is no basis for excluding him as a
confidential employee. The parties do not contend
that he is a managerial employee and there is no
showing that he formulates, determines, or
effectuates management policies.' Finally, the record
indicates that he exercises no supervisory authority.
On these facts we find no basis to exclude this
employee from the unit
1169
Employer. We find that they are not managerial
employees. Nor do they possess supervisory
authority. Accordingly, we shall include them in the
unit.
Supervisor, Cost Analyst Section, Head
Booking Clerk, and Cargo Coordinator
These positions were formerly excluded as
managerial.6 The Employer and Local 71 would
continue to exclude all three positions, Petitioner
would include all three, and the Association would
include the first two. The supervisor, cost analyst
section, makes analyses and estimates of the voyage
revenue, taking into account all expenses that may
be incurred The head booking clerk is responsible
for scheduling and allocating vessels in such a way
that voyage revenue is maximized. He must make
commitments to shippers and assign vessels to
specific voyages. The cargo coordinator allocates the
ships between commercial and military assignments
and sets ship schedules All three are responsible to
the assistant to the vice-president of traffic In
making their decisions all three exercise some
judgment, but within established limits set up by
higher management. It does not appear that they
play any part in the formulation or determination of
the Employer's policy or that their decision-making
involves more than routine matters We conclude,
therefore, that these employees are not managerial
and shall include them in the appropriate unit
5. Accordingly, we find that the following
employees of the Employer constitute a unit
appropriate for the purpose of collective bargaining
within the meaning of Section 9(b) of the Act:
All office employees and salesmen working in and
from the Employer's office at 141 Batter StreetCargo Supervisors y
and Piers 27, 29. 31, and 33, San Francisco and
600 16th Street Oakland excluding confidentialThe Petitioner and Employer would exclude and
, ,
employees all division executives department
Local 71 and the Association would include these
, ,
h d d th i d fi d i h Aemployees who were formerly excluded as
ea s an o er superv sors as nee n t e ct
managerial employees . The record discloses that [Text of Direction of Election ' omitted from
these employees act as liaison in overseeing the publication.]
loading and unloading of ship cargo and to that end
deal with the representatives of the stevedoring
contractors. Their immediate superiors are the
manager of cargo operations, who makes out a
projected plan as to how cargo is to be stowed, and
the operations superintendent.
While the cargo supervisors deal with the cargo
contractors on behalf of their Employer, in so doing
they exercise only limited discretion. They carry out
the Employer's established policy, much of which is
formulated by their immediate chiefs. They neither
formulate nor determine any policies for the
'Gulf States Telephone Company, 118 NLRB 1039, 1042, Ethyl
Corporation, 118 NLRB 1369, 1371 Cf National Cash Register
Company, 168 NLRB No 130
'Eastern Camera and Photo Corp, 140 NLRB 567, 571, Newark Stove
Co, 143 NLRB 583, 586
MEMBER BROWN, dissenting-
I would find that the petition, which was untimely
filed, should be dismissed for the reason set forth in
my concurring opinion in Sperry Gyroscope Co.,
Division of Sperry Rand Corporation, 147 NLRB
988, 996
'No party contended that the men were supervisors , and the record
establishes that they did not direct any employees in the unit
'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 20 within 7 days after 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 Excelsior Underwear Inc , 156 NLRB
1236