Pacific Maritime Association

National Labor Relations Board - Board Decisions

Dec 16, 1954

110 N.L.R.B. 1647 (N.L.R.B. 1954)

PACIFIC MARITIME ASSOCIATION 1647
who work 72 hours or more per month, as against 18 hours or more per
month, that those who work 18 hours per month commence to receive
benefits from their employment not accorded employees who work a
lesser number of hours; that the Employers establish vacations and
other employee benefits on monthly or half-yearly bases, and that
fluctuations in the size of the unit are relatively moderate, we find that
all those employees of the Employers who have worked for the Em-
ployers an average of 18 hours per month (a total of 108 hours) or
more during the past 6 months and whose names have appeared at
least once in each month on any weekly payrolls of the Employers
during that period are entitled to vote in the election herein directed'
[Text of Direction of Election omitted from publication.]
'Cf. Seaboard Terminal and Refrigeration Com,panry, 108 NLRB 1192, and cases cited
therein.
PACIFIC MARITIME ASSOCIATION AND ITS MEMBERS COMPANIES 1 and
SEAFARERS INTERNATIONAL UNION OF NORTH AMERICA, PACIFIC Dis-
TRICT, COMPRISING MARINE FIREMEN'S UNION, SAILORS' UNION OF
THE PACIFIC AND MARINE COOKS & STEWARDS, AFL' AND INTER-
NATIONAL LONGSHOREMEN 'S AND WAREHOUSEMEN'S UNION,' PETI-
TIONERS. Cases Nos. 20-RC-2651 and 20-RC-2675. December 16,
1954
Decision and Direction of Election
Upon separate petitions duly filed under Section 9 (c) of the Na-
tional Labor Relations Act, a consolidated hearing was held before
Louis S. Penfield, hearing officer. 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,4 the Board finds : 5
1. The Employers are engaged in commerce within the meaning of
the Act.
2. The labor organizations involved • claim to represent certain
employees of the Employers.6
3. A question affecting commerce exists concerning the representa-
tion of employees of the Employers within the meaning of Section 9
i Hereinafter referred to as PMA.
8 Hereinafter referred to as SIU. The three Unions above-named as comprising the
Pacific District of the SIU , are hereinafter referred to respectively, as the MFU, SUP,
and MCS
a Hereinafter referred to as ILWU.
ILWU's motion after the hearing to correct the record in certain minor respects is
hereby granted
6ILWU's request for oral argument is hereby denied as the record adequately presents
the issues and positions of the parties.
6 National Union of Marine Cooks and Stewards, Independent, hereinafter referred to as
NUMCS, intervened herein
110 NLRB No. 254
1648 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) (1) and Section 2 (6) and (7) of the Act, for the following
reasons:'
ILWU and NUMCS moved to dismiss the SIU petition on the
basis of alleged discriminatory membership policies against Negroes
by the MFU and SUP." The hearing officer properly rejected an offer
of proof by ILWU and NUMCS, which were supported in such offer
by the National Association for the Advancement of Colored People,"
concerning such alleged discriminatory practices.
Even assuming such'discrimination has-existed-in the past as alleged
in the offer of proof, the Board, while not condoning such practice,
has no express authority to pass on eligibility requirements for mem-
bership in a labor organization 10 However, the Board will police its
certification of a statutory bargaining agent to see to it that it repre-
sents equally all employees in the bargaining unit regardless of race,
color, or creed. Should the certified bargaining agent fail to do so,
the Board may revoke its certification.1' Moreover, there are avail-
able those remedies which exist by virtue of the unfair labor practices
provisions in the Act.
Finally, we note that the MFU, SUP, and MCS formally stated at
the hearing that, if certified, they would not discriminate against any
employee in the bargaining unit on the basis of race, creed, or color
and will negotiate and administer collective-bargaining contracts in
the same nondiscriminatory manner. However, should it later be
shown, by appropriate motion, that equal representation has, in fact,
been denied to any employee in the unit because of his color, the Board
will consider revoking any certification which may issue herein.
Accordingly, we deny the motion of ILWU and NUMCS to dismiss
the SIU petition on the above ground.
4. In Case No. 20-RC-2651, the SIU seeks to represent a unit of all
unlicensed personnel on PMA ships, comprising engine , deck, and
steward personnel. PMA supports the SIU position. In Case No.
20-RC-2675, ILWU seeks a unit limited to steward department per-
7 We find no merit to ILWU's contention that the SIU petition should be dismissed be-
cause the Pacific District is not in compliance . In effect, the MFU, SUP, and MCS are
seeking to represent the employees herein as joint petitioners , merely designating them-
selves as the Pacific District of the SIU. Board precedent has fully estab ' ished the pro-
priety of two or more labor organizations acting jointly as bargaining representatives for
a single group of employees . Win. Cameron & Co., Inc., 98 NLRB 969, at 973 . Because
the Pacific District , as such, has no charter , no constitution or bylaws , no offices or treas-
ury of its own, and no officers except for the heads of the three constituent unions which
have fully complied , we find that it is not required to comply separately with the provi-
sions of Section 9(f), (g), and ( h) of the Act . See Rock Hill Printing & Finishing
Company, 82 NLRB 932, footnote 5, at 934; Kilber- Camp Phosphate Enterprise, 107
NLRB 1068.
There is no allegation of discriminatory practices by the MCS.
5 Hereinafter referred to as the N . A A. C. P. The Board has considered the amicus
curiae brief filed by the N A. A C. P., which appeared at the hearing, and its accompany-
1ng motion to file such brief is hereby granted.
to Hughes Tool Company, 104 NLRB 318 , at 321; Veneer Products , Inc., 81 NLRB 492,
at 493.
11 Hughes Tool Company, 104 NLRB 318, at 322
PACIFIC MARITIME ASSOCIATION 1649
sonnel, or, in the alternative, should the Board find the broader unit
appropriate, a self-determination election among the stewards. The
NUMCS joins in the self-determination election among the stewards.
The NUMCS joins in the unit position taken by ILWU. All parties
agree that whatever unit is found appropriate it should be association-
wide in scope.
PMA is a nonprofit California corporation which bargains on be-
half of its members. PMA members operate vessels in what is termed
the offshore, intercoastal, Alaska, and coastwise trades, commonly re-
ferred to collectively as the Pacific offshore trade. All seagoing ves-
sels such as the type operated by the members of PMA, are required by
law to be manned by a minimum number of employees, broadly classi-
fied into licensed and unlicensed personnel. The unlicensed personnel
with whom we are concerned comprise the deck department, engine
department, and the stewards. The deck department is responsible
for the operation and maintenance of the ship on deck. The engine
department employees work in the hold of the ship and perform vari-
cus functions relating to the operation and maintenance of the ma-
chinery which drives the ship. The steward department employees
operate the hotel or housekeeping section of the ship. Strongly sup-
porting the finding of the overall unit herein is the fact that the
interests of all unlicensed offshore personnel are closely related. The
work of the three departments is functionally integrated, and each is
dependent upon the other in the performance of the common task of
operating the vessel. The employees in the three departments live,
eat, and work in close conjunction and share a close and common
interest in the working conditions aboard ship. The common inter-
ests of unlicensed personnel on shipboard has long been recognized
by the Federal Government, as evidenced by that fact that it has
regulated many of their working conditions for years.12 Moreover,
the record shows, as contended by PMA and the SIU, that the pattern
of separate bargaining for each department which has existed on the
Pacific Coast since 1937, is not consistent with the bargaining pattern
in the remainder of the maritime industry. For example, the balance
of the American Merchant Marine Fleet (75 to 80 percent of all ves-
sels) operating in the East Coast, Gulf, and Great Lakes areas bar-
gains on an overall or industrial basis for its unlicensed personnel.13
11 See Title 40 of the U S. Code.
is PMA and the SIU contend that the establishment of an overall unit of unlicensed
personnel herein would contribute substantially to industrial peace on the Pacific Coast
by tending to eliminate the "whipsaw " tactics and jurisdictional disputes which have
disrupted relations between the three departments in the past , and point to the favorable
experience of the balance of the maritime industry in this respect . The possibility of
"whipsaw" tactics have derived , so it is urged , from the fact that there have been sepa-
rate contracts for the deck , engine, and stewards personnel , which frequently expire at
different dates, and which provide that whenever more favorable conditions were given
one department , the same conditions must be given to others.
338207-55-vol. 110-105
1650 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We also note that bargaining for the Pacific offshore trade was on
an overall basis prior to 1937, under the Pacific district of the now
defunct International Seamen's Union of America (hereinafter re-
ferred to as the ISU).14 Thus, in 1934, the National Longshoremen's
Board appointed by the President of the United States under Public
Resolution No. 44, found that the entire unlicensed personnel on Pa-
cific Coast vessels, who were eligible for membership in the district
unions of the ISU constituted the appropriate unit, and so certified
the ISU, after it won the election.
Finally, we note that there is no serious contention that a unit of
all unlicensed seagoing personnel, as described above, is not appro-
priate, and the Board has, in the past, directed elections in such over-
all units.15
There remains the question as to whether the Board should direct
a self-determination election among steward department employees.
The strongest factor advanced by ILWU and NUMCS in support of
a self-determination election is the fact that there has been separate
bargaining for the deck, engine, and steward departments on the Pa-
cific Coast since 1937. However, the bargaining history with respect
to the stewards is tainted with illegal assistance." PMA was ordered
by the Board to cease recognition of the NUMCS as representative of
the stewards, unless and until certified by the Board. Thereafter, on
June 19, 1952, a consent decree was entered in the United States Court
of Appeals for the Ninth Circuit, proceeding No. 13386, similarly
providing for the termination of the bargaining relationship between
PMA and NUMCS unless and until such time as certified by the
Board. The consent decree further provided for registering and dis-
patching employees in the steward department through a central reg-
istration office under the supervision of a court-appointed referee.
Subsequently, on September 23, 1952, the Board directed an election
among steward department personnel on PMA ships. By agreement,
the unit was limited to stewards and no party urged the appropriate-
ness of an overall unit of unlicensed personnel. Pacific Maritime As-
sociation, 100 NLRB 1259. In the election conducted between Feb-
ruary and May, 1954, no participating union received a majority of
the votes cast, the NUMCS receiving only 14 ballots out of over 2,000
votes counted, with the result that the stewards continue unrepre-
14 The SUP, MFU, and NUMCS formerly were affiliated with and formed the Pacific
district of the ISU After the revocation, in 1938, of the ISU charter by the AFL, which
then chartered the SIU in its place, the SUP affiliated with the SIU, the MFU remained
independent , and the NUMCS affiliated with the CIO. However, the NUMCS were subse-
quently expelled from the CIO and in October 1953, the MFU affiliated with the SIU
15 International Mercantile Marine Company, 2 NLRB 971 ; American France Line, et
at., 3 NLRB 64 ; Standard Oil Company of New Jersey, et at., 23 NLRB 860; Midland
Steamship Line, Inc., 70 NLRB 1124.
19 The Board so found in its decision in Pacific American Shipowners Association et at.
( predecessor to PMA ), 98 NLRB 582, issued on March 12, 1952.
PACIFIC MARITIME ASSOCIATION 1651
sented and to the present have continued to be dispatched through the
court-supervised central registration office.
Our appraisal of the foregoing facts, and upon consideration of the
entire record in this case, persuade us that the separate bargaining
history of the steward department is not entitled to controlling weight.
Therefore, we shall not predicate a unit finding on the bargaining
history of an illegally assisted union" Moreover, we are of the
opinion that the interests of the steward department personnel and
of all other unlicensed seagoing employees will be best served if they
are represented for collective-bargaining purposes in a single overall
unit. In these circumstances, we shall direct one election, in the
overall unit of unlicensed seagoing employees, and shall not provide
for a self-determination election in the steward department.18
Accordingly, we find that all unlicensed seagoing employees 19 on
vessels operated by members of the Pacific Maritime Association, a
nonprofit California corporation,20 excluding all licensed employees,
staff officers, radio officers, concessionaires and their employees,21
musicians, doctors, doctors' assistants, nurses, hospital attendants,
food controllers, auditors of supplies, together with their assistants
and apprentices, animal tenders, nut-turners, and all supervisors as
defined in the Act, constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section 9 (b) of the Act.22
5. Because of the turnover and resulting labor pool in the maritime
industry, the ILWU and NUMCS urge the Board to depart from its
usual eligibility formula and to include any employee who has sailed
once in the 15-month period immediately preceding the date of the
Direction of Election herein. The SIU contends that, because there
is no way of knowing whether a particular individual in the labor
pool will continue to go to sea, the Board should use its customary
eligibility rules. The PMA takes no position.
17 Pacifio Telephone and Telegraph Company, 80 NLRB 107, at 112; Albert 's Incorpo-
rated, 91 NLRB 522, at 524 ; see Southwest Truck Body Company, 93 NLRB 1341 , at 1343;
Meyer's Bakery of Little Rock, Inc, 97 NLRB 1095 , at 1097.
18ILWU contends that, under Section 9 ( c) (3) of the Act , no election can be held now
because of an election conducted in the steward department between February and May
1954, or less than 12 months ago Because the election directed herein is in a unit which
is not the same "bargaining unit or any subdivision" thereof, under Section 9 (c) (3),
we find no merit to this contention . Vacuum Cooling Company, 105 NLRB 795.
19 Because their working conditions , including their duties , quarters , mess, and type of
supervision are essentially different from those employees in the unit , we shall exclude
the printers and their assistants , painter -joiners , and the deck yeoman on the passenger
vessel, S . S. Lwrline , all of whom have formerly been excluded from contract coverage.
23 Included are the unlicensed personnel on ships operated by the members of PMA
under General Agency Agreements with the National Shipping Authority . See Pacific
Maritime Association , 100 NLRB 1259 , footnote 21 at 1264.
21 Among others , this classification covers tailors , barbers, beauty operators, photograph-
ers, hairdressers , shopping-center attendants , shop attendants, and valets.
22 Excluded as supervisors are the chief stewards on passenger vessels and freighters
as well as associate chief stewards on passenger vessels . Pacific Maritime Association, 100
NLRB 1259 , at 1264.
1652 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We are, of course, aware of the substantial turnover and the work-
sharing practices in the shipping industry on the Pacific Coast. How-
ever, despite contentions in prior cases that we should, in view of these
factors, broaden the base of eligibility, we have held, and the election
results have confirmed our view, that use of our usual maritime elec-
tion eligibility rules result in a representative vote and avoid uncon-
trollable difficulties that would otherwise arise. We are not persuaded
that there are in this case any reasons warranting a departure from
the Board's usual policy in this respect. We shall therefore apply
the customary rules in determining eligibility to vote.23
Accordingly, those employees who were employed during the pay-
roll period immediately preceding the date of the issuance of the notice
of election and who are still employed at the time of balloting will
be eligible to vote in the election directed herein.
It is generally Board practice in directing elections among em-
ployees on seagoing vessels to leave the method of voting to the dis-
cretion of the Regional Director. We shall therefore follow this
practice in the instant case. Consistent with such practice, we hereby
vest in the Regional Director discretion to determine the exact time,
place, and procedure for conducting the election.
[Text of Direction of Election omitted from publication.]
23 Pacific Maritime Association , 100 NLRB 1259, at 1205. In view of our above deter-
mination concerning eligibi lity, we shall exclude from voting all those employees, including
the trip-off men in the steward department , who have left their jobs under the spread-
the-work programs in the three departments . Also, standbys who fill in only when a ship
is in port and are carried on the shoreside payroll are clearly ineligible to vote under the
Board 's customary eligibility tests . Because of the inadequacy of the record , the eligibil-
ity of employees who have been sailing on a ship in drydock on the eligibility date, can
best be resolved by challenges.
DRFDEN RUBBER DIVISION, SHELLER MANUFACTURING CORPORATION i
and LOCAL 437, INTERNATIONAL CHEMICAL WORKERS UNION, AFL,
PETITIONER. Case No. 18-RC-2332. December 16, 1954
Decision and Direction of Election
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held on September 22, 1954, before
Clarence A. Meter, hearing officer. The hearing officer's rulings made
at the hearing are free from prejudicial error and hereby affirmed 2
1 The petition and other formal papers were amended at the hearing to show the correct
name of the Employer as indicated above.
2 The hearing officer referred to the Board the motion of the Intervenor , United Rubber,
Cork, Linoleum and Plastic Workers of America, CIO, to dismiss the petition on the
grounds that : ( a) Its contract bars this proceeding; (b) the Petitioner 's parent organiza-
tion , International Chemical Workers Union , AFL, has requested withdrawal of the instant
petition ; and (c ) the Petitioner is not a labor organization within the meaning of the Act.
For the reasons stated infra, this motion is denied.
110 NLRB No. 248.