Seaboard Terminal and Refrigeration Co.

National Labor Relations Board - Board Decisions

Oct 28, 1955

114 N.L.R.B. 754 (N.L.R.B. 1955)

754 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the valid votes cast, we shall certify it as the bargaining representa-
tive of the employees in the appropriate unit.
[The Board certified Warehouse and Mail Order Employees Union,
Local 743, AFL, as the designated collective-bargaining representa-
tive of the employees engaged in warehousing and related operations
at the Employer's warehouse.]
MEMBER MuRDOCK took no part in the consideration of the above
Decision and Certification of Representatives.
Seaboard Terminal and Refrigeration Company and Interna-
tional Brotherhood of Longshoremen, AFL
Seaboard Terminal and Refrigeration Company and Interna-
tional Longshoremen's Association, AFL (now known as Inter-
national Brotherhood of Longshoremen , AFL), Petitioner.
Cases Nos. 2-CA-4071 and 2-R"496. October 28, 1955
DECISION, ORDER, AND CERTIFICATION OF
REPRESENTATIVES
On April 26, 1955, Trial Examiner C. W. Whittemore issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had not engaged in the unfair labor practices alleged in
the complaint and recommending that the complaint be dismissed in
its entirety, as set forth in the copy of the Intermediate Report at-
tached hereto. The Trial Examiner also recommended that the ob-
jections to conduct affecting the results of the election held on Sep-
tember 23, 1954, in Case No. 2-RC-6496 be found without merit.
Thereafter, the General Counsel, the International Brotherhood of
Longshoremen, AFL (hereinafter called IBL-AFL), and Local 976,
International Longshoremen's Association, Independent, (hereinafter
called ILA) filed exceptions to the Intermediate Report and support-
ing briefs. The Respondent filed a brief.
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.)
The Board has considered the Intermediate Report, the exceptions and
briefs,_and the entire record in this case, and hereby adopt the findings,
conclusions, and recommendations of the Trial Examiner with the fol-
iowing additions and modifications.
1 We find that Baffa's affidavit , as contended by the , General Counsel , was erroneously
rejected by the Trial Examiner. Such affidavit, to the extent it contained prior incon-
sistent statements , was admissible as tending to discredit Baffa's testimony at the hearing.
N L. R. B . v Quest-Shon Mark Brassiere Cd., Inc., 185 F. 2d 285 , 289 (C. A . 2). In the
circumstances present here , however, we do not deem the Trial Examiner 's error as
prejudicial , nor does it affect the result reached herein.
114 NLRB No. 127.
SEABOARD TERMINAL AND REFRIGERATION COMPANY 755
The Trial Examiner has found, in effect, and we agree, that the
Respondent did not render unlawful assistance to the incumbent ILA
shortly before the election conducted on September 23, 1954. In reach-
ing such conclusion, we note, in the first instance, that it is undisputed
that the ILA, by virtue of its status as representative of the employees
involved, had a right of access to all of the Respondent's piers in order
to administer its contract, while the Petitioner had no such right. It
is well established that although employers must maintain neutrality
during the pendency of a question concerning representation, an em-
ployer may not infringe upon the rights of an incumbent union to ad-
minister its contract. Thus, such disparity of treatment with respect
to right of access, in itself, clearly involves no violation of the Act but
rather derives from the incumbent status of one of the competing
unions.
The question remains as to whether the actual conduct of the ILA on
the piers warrants the conclusion that the Respondent permitted the
ILA to campaign on the piers but denied the IBL-AFL access for
the same purpose. The record shows that both unions engaged in in-
tensive electioneering at the pier entrances (on public property) as
the day of the election approached. The record also shows that the
ILA representatives, in exercising their right of access, visited on the
piers more frequently and in increased numbers during this period.
However, in appraising the actual conduct of the ILA on the Re-
spondent's piers, we note that the alleged electioneering by ILA rep-
resentatives consisted largely of sporadic oral solicitation of support
and the wearing of ILA buttons.' IBL-AFL stewards were similarly
engaged in such conduct on behalf of their organization on the piers
.during their working hours. We further'note that when the activity
of both unions extended beyond such display of buttons and occasional
remarks, as set forth in the Intermediate Report attached hereto, the
Respondent promptly issued instructions forbidding such activities
on the part of either union.
Despite the fact that the ILA may have taken somewhat more than
normal advantage of its greater opportunity to contact.the employees
as a result of its incumbent status, under all the circumstances, we do not
believe that the deviations by the ILA were so flagrant or substantial
as to warrant finding that the Respondent unlawfully assisted the ILA
during the period shortly before the election by permitting the ILA
access to campaign and denying such access to the IBL-AFL. Simi-
larly, we are satisfied that the record as a whole does not establish such
interference with the conduct of the election, or the exercise of a free
'a The record indicates that, at most, only a few hundred employees are employed daily
The 1,900 figure adverted to by the Trial Examiner is the approximate number of different
employees employed each year due to considerable turnover in the industry.
- 387644-56-vol. 114-49
756 - DECISIONS OF NATIONAL LABOR RELATIONS BOARD,
choice of representatives, as would 'warrant setting aside the election.
Accordingly, we are in agreement. with the Trial Examiner's recom-
mendations, and shall dismiss the complaint in Case No. 2-CA-4071
in its entirety and overrule-the objections filed by the IBL-AFL in
Case No. 2-RC-6496. Having found.no . merit to the IBL-AFL's
objections filed in Case No. 2-RC-6496, they are^hereby overruled and
we shall,. on the basis of the election results, certify the ILA as the
exclusive bargaining' representative' of the. employees within the unit
found: appropriate in the representation proceeding.
[The Board dismissed the complaint in Case No. 2-CA-4071 and
certified Local 976, International Longshoremen's Association, Inde-
pendent, as the designated collective=bargaining representative of the
employees in the unit heretofore found appropriate.]
MEMBER MURDOCK took no part in the consideration of the above De-
cision, Order, and Certification of Representatives.
t •. INTERMEDIATE REPORT,
STATEMENT OF THE CASE
This proceeding arises, from separate representation and unfair labor practice
cases involving employees' of Seaboard Terminal and Refrigeration Company, here-
in called the, Respondent, Employer. The two cases were ordered consolidated by
the Regional Director for the Second Region of the National Labor Relations Board
on February 7, 1955. ' ' ' •
,,,Upon a- charge duly filed, the General Counsel issued his complaint on December
20, 1954, alleging, in substance that during a period before a Board-conducted elec-
tion -in September 1954, the' Respondent Employer had violated Section 8 (a) (1)
of the-,National Labor Relations Act, as amended, by permitting Local 976, Interna-
tional Longshoremen's Association, Independent (the Intervenor in these proceed-
ings) to electioneer on company time and property while denying similar privileges to
the Charging Union.
The representation proceeding stems from objections to the conduct of a Board-
conducted election filed by the Petitioner (the Charging Party in the complaint
case). On 'February 2, 1955, the, Board ordered that a hearing be held before
a Trial Examiner "to receive evidence on the issues raised b ' the said objections,"
and directed the Trial Examiner to prepare and serve "a report containing resolu-
tions of credibility of witnesses, findings of fact, and recommendations" as to the
disposition of said objections.
On December 23, 1954, the Respondent Employer filed its answer in the com-
plaint case, denying the commission of any unfair labor practices, and the same day
filed a request for a bill of particulars. An order ruling upon this iequest was
issued on December 30 by Trial Examiner Stephen S. Bean, and the order was
complied with by General Counsel on January 12, 1955. ,
On February 8 and 11, 1955, respectively, the Respondent Employer and the in-
tervening Local 976 moved for a bill of particulars relating to the report on ob-
jections previously issued by the Regional Director for the Second Region and which
preceded the issuance of the Board's order above described. On February 21
Trial Examiner Thomas N. Kessel issued his order upon said motions. General
Counsel complied with said ruling on March 1. . -
-Pursuant to due notice, a hearing on the consolidated cases was opened March
7, 1955, in New York, New York, before Trial Examiner Sidney Lindner. At
its opening a motion was granted to continue the hearing until March 23.
On March 23 the hearing resumed before Trial Examiner C. ,W-, Whittemore,
and sessions were held on March 23, 24, 28, 30, 31, and April 1, 1955. All parties
were represented at and participated in the hearing. All were afforded full oppor-
tunity to be heard, to examine and cross-examine witnesses, and to. introduce
SEABOARD TERMINAL AND REFRIGERATION COMPANY 757
relevant evidence. At the close of the hearing General Counsel and counsel for
the Charging Union argued orally, upon the record. Briefs have been received
from all parties except General Counsel.
Upon the entire record and from his observation of the witnesses the Trial Ex-,
aminer makes the following:
FINDINGS OF_ FACT
1. THE BUSINESS OF THE RESPONDENT EMPLOYER
Seaboard Terminal and Refrigeration Company is a New Jersey corporation hav-
ing its principal office and place of business in Chicago, Illinois, and maintaining
a branch office, plants, and warehouse in Jersey City, New Jersey. It is engaged
in the business of manufacturing and selling ice and refrigeration, icing railroad cars,
and operating a cold storage warehouse. I -
Under contract with the Erie Railroad Company, it is engaged also in the busi-
ness of handling railroad freight being transported in interstate commerce by said
railroad on piers 19, 20, 21, and 48, North River, New York, New York. It is
this operation with which the events herein described are concerned.
During the year preceding the issuance of the complaint the Respondent Em-
ployer had caused to be produced, sold, and delivered products valued at more
than $1,000,000, of which total-products valued at more than $50,000 were shipped
from its plants in New Jersey directly in interstate commerce to States other than
New Jersey. During the same period, in the course of its freight handling opera-
tions, the Respondent Employer furnished services valued at more than $200,000
to the Erie Railroad, an instrumentality and channel of commerce having a gross
a inual revenue of more than $1,000,000.
The Respondent Employer is engaged in commerce within the meaning of the Act.
H. THE LABOR ORGANIZATIONS INVOLVED
Local 976, International Longshoremen 's Association , Independent, and Interna-
tional Brotherhood of Longshoremen , AFL, are labor organizations admitting to
membership employees of the Respondent Employer.
M. THE ALLEGED UNFAIR LABOR PRACTICES
. . A. Relevant events and issues
The major issue of this consolidated proceeding is determination of the question as
to whether or not the conduct of certain agents of Local 976 on the Employer' s piers
during a 3-week period before an election on September 23, 1954, was of its intrinsic
nature and because of its disparate setting-IBL-AFL agents during the same period
having been denied access to the piers-sufficiently coercive to warrant a cease-and-
desist order and setting aside the election. , The legality of the Board-conducted elec-
tion is attacked: directly by the IBL-AFL objections and indirectly by the complaint.
As illegal conduct on the part of the Employer the 1 item claimed in the.complaint
(based upon an IBL-AFL charge filed nearly 2 months after the election and a,week
before the Regional Director's report upon IBL-AFL objections) rel'ate's-to dif-
ferent treatment accorded by the Employer to the 2 labor organizations competing in
the election. - • .:
. The ,scene of the material events, where some 1,900 employees of Seaboard work,
consists of 4 piers .jutting out into the North River several hundred feet from the
public street skirting,the river. While the operations at each pier or platform are not
in all details alike, in general they cover the loading and unloading,- to and from
trucks and freight cars, of various types of merchandise and produce, both inbound
and outbound from New York. Employees engaged in this work are hired daily at
"shapes" conducted at different hours, according to the shift and nature of the work,
by employer representatives. In substance, the "shape" is the gathering of men at
some customary point on the company premises near the hiring boss -who calls out
the identity of gangs or individuals he needs at that shift. •
Since 1937 the Respondent Employer and Local 976 have been parties to a collec-
tive-bargaining agreement. The 1954 contract was in existence and under per-
formance at the period here. material. , That contract, by a clarifying clause dated
March 15, 1954, specifically reaffirmed a union-security provision, which the parties
agreed gave "effect to their understanding and agreement which leas been in practice
for many years." No claim is made by GeneraiCounsel that this contract is-illegal
or that its effectiveness was in any way affected by the pending election.
Credible evidence establishes-and indeed General Counsel does not seriously
challenge the fact-that it has been the practice since 1937 for the Respondent Em-
758 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployer to permit representatives of Local 976 to be present on the piers at the con-
ducting of the "shapes." Substantial and credible testimony, uncontradicted, also
shows that both before and after the "shapes," on the piers and during working hours,
such representatives have been accustomed to discuss grievances with the employees
and management representatives. As General Counsel points out, no language in the
contract spells out such access to the piers by Local 976 agents, yet the clause cover-
ing adjustment of disputes, as well as the long practice, plainly implies employer per-
mission. The pertinent clause states, in part: ". . . the parties . shall make
every effort to settle the same amicably. Such dispute or grievance shall in the first
instance be taken up for adjustment between a representative of the Union and of the
Employer."
On the other hand, equally credible evidence points to the fact that at no time since
organization of the rival longshoremen's union-the IBL-AFL-has the Respond-
ent Employer permitted that organization's representatives similar access to the
piers. The testimony of Christopher Porter, organizer for the IBL-AFL since Octo-
ber 1953 and before then secretary of Local 976, and of Vice-President and Gen-
eral Manager John G. Hollmeyer is in accord that since the first of 1954 Porter
repeatedly sought access to the piers and consistently was denied permission. Ac-
cording to Porter he was told by Hollmeyer that "he was going to permit the ILA on
the piers so that they might service their contracts."
It appears that soon after the representation hearing in May 1954, both labor or-
ganizations intensified their campaigns to enlist supporters in the election which the
Board finally ordered on August 30. Overt campaigning by both unions was con-
ducted at the pier entrances, on public property.
There is small dispute in the record, and it is found, that after May and particularly
during the last month or so before the election in September, an increasing numb $r
of Local 976 representatives and agents appeared on the piers and at the "shapes"
and that those who previously had occasionally attended now showed up more fre-
quently. There is a good deal of dispute between the parties as to the purpose and
performance of such agents while on the piers, and this matter will be discussed in a
later section.
On September 1 counsel for the IBL-AFL, Howard Schulman, telephoned to coun-
sel for the Respondent Employer, Lionel Popkin, told him that he had been advised
that Local 976 agents were campaigning on the piers, and requested that: (1) Such
campaigning by Local 976 agents be prevented, or (2) IBL-AFL agents be given
equal access to the piers, or (3) agents of both organizations be barred from the piers
altogether. Although there is some difference in the recollection of the two attor-
neys as to what Counsel Popkin said in reply, there is no question but that IBL-AFL
agents were denied access and that Local 976 agents continued to attend the "shapes."
Because of Porter's testimony, quoted above, to the effect that on a number of occa-
sions before Sepember 1 Hollmeyer had told him that Local 976 agents had access
in order to service the existing contract, it seems reasonable to the Trial Examiner
that Counsel Popkin, as he testified, similarly explained the situation to Counsel
Schulman. It is so found.
This question of access to the piers is clearly the major issue in the consolidated
cases; it is the only one alleged in the complaint.
The objections filed by the IBL-AFL raise certain subsidiary issues in addition to
the disparity of treatment in the matter of access. These lesser issues include: (1)
Alleged electioneering by claimed supervisors;, (2) an assembly for campaign pur-
poses of employees in a locker room on September 19, a few days before the election;
and (3) the alleged direction by the Employer that employees pay dues to Local 976.
In support of point (3) no testimony at all, so far as the Trial Examiner is aware,
was elicited, nor is the point raised either in the oral argument or the brief of counsel
for IBL-AFL. It would seem appropriate, then, for the Trial Examiner to recom-
mend here that the Board find no merit to this specific objection, which is identified as
paragraph 2 e of the objections.
Evidence as to the two remaining points raised in the objections will be reviewed
below.
B. The disparity of treatment
As found above, the Respondent Employer has permitted pier access to Local 976
and denied it to the IBL-AFL. That this difference of treatment existed is undis-
puted. It is not urged, either by General Counsel or counsel for the IBL-AFL,
that the disparity of granting permission alone constituted a violation of the Act
or illegal interference with the election. Both the complaint and the objections
cite the activities of union agents on the piers as the real point at issue. In substance
both claim that agents of Local 976 were allowed to electioneer on the premises and
those of IBL-AFL were not given the same privileges. -
SEABOARD TERMINAL AND REFRIGERATION COMPANY 759
Turning to the question of fact as to whether or not Local 976 agents actually
electioneered while on, the piers.` It is undisputed that some, if not all, such agents
wore election campaign buttons at various times while on the pier, and occasionally
handed extra buttons to employees. This display of buttons urging employees to vote
for the ILA, the credible evidence that on various occasions Local 976 agents were
seen talking with employees on the pier, and the uncontradicted evidence that as elec-
tion day approached more such agents appeared at the "shapes," when considered in
the circumstances of the heated campaign rivalry being conducted at the pier entrances,
all lead to the reasonable conclusion that such agents did engage in some solicitation
of "support and assistance" from the Respondent Employer's employees, on the
piers and during working hours. It would be inconsistent with natural human be-
havior had they not done so.
The preponderance of credible evidence likewise supports the claim of General
Counsel and the IBL-AFL that, in effect, the Respondent Employer permitted, by
condonation, such activities on the part of Local 976 agents. At least on September
I counsel for the Employer was plainly put on notice that the IBL-AFL was pro-
testing and claiming such activities, and no evidence was offered to show any sub-
sequent investigation on the part of management.
The Trial Examiner therefore concludes and finds that substantial credible evi-
dence sustains the factual allegations that the Respondent Employer permitted agents
of Local 976 to solicit election support on the company's time and premises and
denied similar permission to the IBL-AFL.
It is another question, however, as to whether or not such factual disparity of
treatment constituted either a violation of the Act requiring a cease-and-desist order
or conduct warranting the setting aside of the election. It seems to the Trial Exam-
iner that the affirmative conclusion sought in the complaint and objections is re-
quired neither by broad Board policy nor by cogent reasoning.
Certain relevant factors should be fully appraised, the Trial Examiner believes,
including- (1) The circumstances of the disparate access, and (2) the actual conduct
of Local 976 agents on the piers.
In the first place it must be found that the Respondent Employer's policy of
permitting agents of Local 976 on the pier and denying access to agents of IBL-AFL
long preceded any order of election. Since 1937 Local 976 agents had been present
at "shapes." And General Counsel offered to prove that from the very beginning
of Porter's organization of the rival organization, in' October 1953, he had been
denied access. Porter testified that since January 1954, he had been barred from
the piers. These facts clearly prohibit an inference that the Respondent Employer
inaugurated a disparate policy specifically designed for the purpose of coercing
employees to vote for Local 976, or to vote against IBL-AFL, at an election in Sep-
tember 1954. Thus there would seem to arise the question as to whether or not
a policy and practice, born in innocence, acquired sin when continued beyond the
date of the Board order of an election. Although in its order (109 NLRB 1094)
the Board found that the contract was not a bar to an election because it contained
a preferential hiring clause exceeding provisions permitted under Section 8 (a) (3)
of the Act, nothing in that order would appear to have placed the Respondent Em-
ployer on notice that it must nullify its long-existing grievance procedure or prac-
tice and deny Local 976 agents access to the piers, or must immediately put into
effect a new policy, and permit IBL-AFL agents on the piers.
Bearing in mind the specific request of IBL-AFL, made through its counsel on
September 1, for access in order to campaign for the forthcoming election, and the
Respondent Employer's rejection of that request, can it be reasonably concluded
that either the purpose or effect of that rejection was violative of the Act or restraint
of free choice at the election?
While it has been found above that some of the Local 976 agents did in fact
engage in some "electioneering" while on the piers and the inference has been drawn
that management must have seen the buttons and by condoning the wearing in effect
permitted such electioneering, the Trial Examiner finds insufficient credible evi-
dence in the record to warrant the conclusion that management's failure to order
removal of buttons from these agents or to permit the access of rival agents wear-
ing rival buttons was coercive or reasonably likely to effect the outcome of the elec-
tion. Insofar as the billboard effect of buttons is concerned, the record establishes
that IBL-AFL shop stewards employed on the piers, as well as employees, wore
AFL buttons whenever -they wished to, without restriction by management.
As to the increased number of agents on the piers as well as their conduct while
there. Credible evidence warrants the finding that the number of grievances in-
creased during the summer of 1954. "It is, of course," said General Counsel in
it oral argument, "possible that the number of grievances rose somewhat during
760 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1954.. . ' It appears that this increase developed from ' the' establishment of a
new hiring, or seniority , list which went into effect sometime in August . Plainly, then,
the number of agents and their visits cannot , alone , be determinative of the major
Issues.
"But," continued General Counsel , "certainly no amount of grievances could
justify the tremendous activity of the ILA 'officials and supporters during the weeks
preceding the election ." It does not appear to the -Trial Examiner , from the evi-
dence in the record , that the characterization "tremendous activity" is justified.
The wearing of a button , surely, is an activity of no startling or tremendous nature
along New York's waterfront. There is evidence, credible and uncontradicted, that
on some occasions some of the Local 976 agents said something to some employee
working on the pier . But there is a remarkable paucity of evidence as to what was
said . Witness after witness called by General Counsel said he saw ' this or that agent
talk to somebody else, but did not hear what the conversation was about. Since
the witnesses did not know, the Trial Examiner , is hardly in a position to determine,
as a fact, what was said under such circumstances.
Even where specific remarks are quoted, their nature is notably mild. For ex-
ample, John Behan, an IBL-AFL steward , testified that he spoke to a Local 976 agent
on the pier one day shortly before the election, and:
I knew Mike because . I had worked with Jersey Contracting when he was the
shop steward over there, and so I said hello to him and he said hello back to
me and said, ` ,`Johnny, I see you are wearing the wrong button ." And I told
him I wasn 't wearing the wrong button , "You are." He told me I would be
sorry. ' -
That was all there was to the conversation ., Immediately after the testimony quoted
above, the following colloquy occurred:
TRIAL EXAMINER : Enlighten me, please. Just what is that supposed to indi-
cate? Interference? '
Mr. RICHMAN : No, sir . That, is supposed to'indicate that union officials
were not there to service the contract. -
Later General Counsel admitted that Monroe 's remark Wa's"not a threat , and was not
a violation of Section 8 (a) (1) of the Act.
Another witness, Piscopo, said : "On one occasion I actually heard him (a Local
976 agent on the, pier ) telling them about to vote for ILA and it was a good union
and all : . ." ' The same witness later said that on another occasion, at the
"shape," he overheard a local 976 agent ask an employee " if he was drunk , wearing
that button :" That Is'all that was said , but just asked "if he was"drunk , wearing
that AFL button."
, ,Another witness , Rice, said that shortly before the election and while he was
wearing an AFL button, a Local 976 agent passed by and asked him if he had
changed his mind yet. When he replied , "No, I am still the same way," the agent
said , "You should have wised up by now."
Another witness; Gonda, testified that a Local 976 agent had told him "the ILA
had been very nice" to him , and again "more or less stated that I should side in
with the ILA." Gonda also said that on another occasion another Local 976 agent
had asked him, "What have you got against the ILA?" and added, "I don't see
why .you shouldn't go along with us." Gonda also testified that oh one occasion
he saw the president of Local 976, Sherman, on the pier, and heard him say "Hello"
to some of the workers.
Still another witness, Spratley, testified that once a Local 976 agent said to him,
"Charlie, you going to be with us?" and no more was said after he told the agent
that he had been AFL all his life and "I will continue to be one. .
It would seem to the Trial Examiner that the foregoing quotations from the
testimony fully dissipate any warranty for concluding that the activity of Local
976 was "tremendous ," coercive , or reasonably likely to interfere with the election.
In summary , Local 976 agents wore ILA buttons and handed them out on the
piers. AFL stewards did the same with AFL buttons. Local 976 agents orally
solicited some support for their organization, while on the pier . Stewards for the
AFL did the same.
None of such "tremendous " activity , so far as the record reveals , interfered in
any way with work on the busy New York piers . Nor is there persuasive evidence
that management officials were present when the above -quoted casual remarks were
made. That management did act promptly, however, when the campaign in working
areas extended beyond the display of buttons and passing remarks, is made clear
by Christian Haeni , superintendent of freight handling. Upon arriving at pier
SEABOARD TERMINAL AND REFRIGERATION COMPANY 761
48• one day shortly before the, election, he said, he saw both ILA and AFL stickers
plastered on posts, desks , and scales-"a real advertising campaign had gone on."
Haeni had the stickers , labels, and chalk marks ' removed at once, went to the public
address system, and informed employees generally that he would not tolerate any
such activities on the part of either union, and would fire anyone found guilty of
doing it again . He gave similar instructions to both AFL and ILA stewards on the
piers.
It does not appear to the Trial Examiner that the conduct of Local 976 agents,
while on the piers pursuant to practice and for a legitimate -purpose, was sufficiently
open and flagrant and widespread to warrant the conclusion that they were per-
mitted access to campaign while AFL agents were denied access , for the same
purpose. It does appear to the Trial Examiner that the situation here is quite like
that in Phelps Dodge Copper Products Corporation, et al., 63 NLRB 686 at p. 703,
where it was found:
It is clear that such advantages as the A. F. of L. had here were those which
derived from the continued functioning of the stewards and their handling of
complaints and grievances . It may be assumed that those ' advantages were
substantial, largely because of the prestige which thereby accrued to the
A. F. of L. The respondent contends that it was a practical necessity for it to
continue to maintain its established system of handling complaints and 'griev-
ances, in order to maintain production uninterrupted during the period when
the representation of the employees was in question , and that any advantages
which may have accrued to the A. F: of L. were coincidental and unavoidable.
As has been stated , the complaint does not allege that the continuance
of the steward system, as an institution , constituted an unfair labor practice.
The, Trial Examiner therefore concludes and finds that the preponderance of
credible evidence will not sustain the allegations of the complaint that the Respond-
ent Employer violated Section 8 (a) (1) of the Act by permitting agents of Local
976 to campaign on company time and premises and refusing to permit agents of
IBL-AFL to engage in similar activities. .
,Since the complaint alleges no other unfair labor practice on the part of the
Respondent Employer, it will be ' recommended that the complaint be dismissed in
its entirety. • •
The Trial Examiner also concludes and finds that whatever "electioneering" was
done,by Local 976•agents•on company premises was,of a minor and sporadic nature,
and cannot reasonably be held to have affected the- results of a free election. It will,
therefore, be recommended that the Board dismiss the relevant portions of the
objections filed by.IBL-AFL.
C. The meeting of September 19
One of the objections filed by IBL-AFL claims that the Respondent Employer
"condoned and permitted".a'Local 976 campaign meeting in a locker room on one
pier on September 19.
There is credible evidence that such a meeting did take'place, before working
hours and the "shape," and that a high official of the ILA did speak to the employees,
gathered there as usual to dress for their work. But there is no credible evidence
that the meeting was attended by any supervisors, that it was previously announced
so that management in any way could have been aware of its pendency and so
"permitted" it, or that any other meeting of this nature was held, before or after.
Furthermore, reducing the minor incident to something approaching absurdity
is the fact that in winding up his speech, this ILA official loudly advised all present
to vote "AFL all the way."
Under the circumstances, the Trial Examiner recommends that the Board find
no merit to this objection.
D. Remarks of supervisors and alleged supervisors
The other objection filed by IBL-AFL claims that the Employer permitted its
supervisors to campaign on behalf of Local 976 and against IBL-AFL.
As to individuals conceded by the Employer to have been supervisors within the
meaning of the Act. Three are involved: Norman Bevan, George Striflfer, and
Constantine Kirkowski. All are and then were foremen. Remarks attributed to
Striffler and Kirkowski were, in a general way, denied by them. Bevan was not
called as a witness and the remark attributed to him is unrefuted.. The Trial
Examiner credits the employees' testimony and finds as follows:
762 'DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(a) On the Tuesday before the election employee Julian Rice was wearing
a large, 4-inch AFL button while at work . While in a group of 2 or 3 other em-
ployees, with Kirkowski also present , 1 of the employees asked Rice why he _was
wearing the button. His reply, if any, is not revealed . Then Kirkowski said, ac-
cording to Rice, "that he didn't know why I was wearing the button , because I
should know what side of my bread it was buttered on." There was no more to this
conversation.
(b) On the day before the election employee William Rawluk was, wearing 3
AFL buttons on the pier, 1 large and the others small. As he passed by Foreman
Striflier the following occurred , according to Rawluk's testimony:
Mr. Striffler asked me, "What are you wearing that button for?" And he
said , "What's the AFL done for you?" And I asked him what the ILA
had done for him, and he said "A lot." And he made a funny face, and that's
all, and I walked away.
(c) In September Foreman Bevan said to employee Michael Brenjo , an active
AFL steward who admitted distributing AFL buttons on the pier, according to
Brenjo's testimony , "He just told me what did Porter (AFL organizer previously
identified ) ever give me, and stuff like that, you know and why did I go with them."
The Trial Examiner is unable to conclude that the above -cited remarks did have,
or could have had, the slightest influence on the voting of the three employees.
They were isolated, trivial , and, considering the locale , New York's rugged water-
front , so tame as almost to be ridiculous.
The following alleged supervisors were said by employees to have been seen wear-
ing ILA buttons on the piers and/or heard to make some pro-ILA statement: S.
J. Firko, John Broadley, James Coleman , Fred Weiring , Stanley Gorlaski, James
Hurst, Charles Bailman , Fred Ehlers, and Homechuk . None of these employees,
according to the uncontradicted testimony of Superintendent Haeni , had or ex-
ercised any power to hire, fire, or discipline employees . Some of them (Coleman,
Weiring, Hurst, Homechuk , i and Gorlaski) are called "float foremen" or "float
traffic directors"-with similar duties they seem to have different titles at different
piers. They are paid, by contract with the ILA, employees' wages according to
scale of checkers or carmen . While on occasions they direct the work of employees,
the evidence is clear that they are simply transmitting orders received from super-
visors.
Baliman, Firko, and Broadley are classified as and perform the duties of clerks.
Occasionally , it appears , when a foreman is off the pier for lunch , or leaves early,
1 of the clerks checks to see that his orders are carried out , but there is no sub-
stantial evidence that any of the 3 exercise independent judgment in such matters.
All of these individuals were on the eligibility list prepared and furnished by the
Employer pursuant to the Board's order for an election . Their votes, however,
were challenged at the polls by IBL-AFL.
On the basis of evidence in the record , the Trial Examiner is unable to find that
any of the individuals above named are supervisors within the meaning of the Act.
It will , therefore , be recommended that the Board dismiss this objection to the
election.
(Recommendations omitted from publication.]
I E, mploSee Busti thus identified Homechuk "As f,u as I know he was supposed to be
like a float boss."
Sears Roebuck and Co. and Local No. 1032, International Broth-
erhood of Electrical Workers, Petitioner . Case No. 19-RC-
1618. October 28,1955
SUPPLEMENTAL DECISION AND CERTIFICATION
OF REPRESENTATIVES
Pursuant to a Decision and Direction of Election dated April 22,
1955, an election by secret ballot was conducted on May 11, 1955, under
114 NLRB No. 121