The Kinsman Transit Co.

National Labor Relations Board - Board Decisions

Jul 1, 1948

78 N.L.R.B. 78 (N.L.R.B. 1948)

In the Matter of THE KINSMAN TRANSIT COMPANY, EMPLOYER and
SEAFARERS INTERNATIONAL UNION OF NORTH AMERICA, GREAT LAKES
DISTRICT (AFL), PETITIONER
Case No. 8-R-,0660
SUPPLEMENTAL DECISION
AND
CERTIFICATION OF REPRESENTATIVES
July 1,1948
On November 14 and November 24, 1947, pursuant to a Board De-
cision and Direction of Election,' an election by secret ballot was con-
ducted under the direction and supervision of the Regional Director
for the Eighth Region among the employees in the unit found appro-
priate in the Decision and Direction. Two unions appeared on the
ballot : the Petitioner, and an intervening union, Lake Sailors' Union.
Upon completion of the election, a Tally of Ballots was served by the
Regional Director upon the parties concerned. The Tally shows that
there were approximately 70 eligible voters ; that 29 valid votes were
cast for the Petitioner; that 37 valid votes were cast for the Intervenor;
that 3 ballots were cast for the "none" choice; and that there was 1
challenged ballot.
On December 1, 1947, the Petitioner filed Objections to the Conduct
of the Election, in which, on five counts, it requested that the election
be set aside and that a new election be directed. After an investigation,
the Regional Director, on March 12, 1948, issued his Report on Objec-
tions, in which he concluded that the objections were not supported by
sufficient and substantial evidence and that they did not raise material
issues with respect to the conduct of the election, or the results thereof,
and for which reasons he recommended that the objections be over-
ruled. On March 18 and 22, 1948, the Petitioner filed Exceptions to
the Regional Director's Report on Objections.
The Petitioner's Objections
Objection 1: The Petitioner alleges that , contrary to a Board elec-
tion notice which stated that balloting would take place aboard the
175 N. L. R. B. 150.
78 N. L. R. B., No. 13.
78
THE KINSMAN TRANSIT COMPANY 79
Employer's vessel, E. C. Collins, immediately upon its arrival at its
lower lake destination on or after November 14, 1947, the Employer
refused to permit balloting on the E. C. Collins, when the vessel docked
.at Buffalo, New York, on November 14, 1947, and that the Employer
-thereby interfered with the conduct of the election.
The Regional Director found that, according to the records of the
Harbor Master of the City of Buffalo, the E. C. Collins arrived at
-Buffalo at 6: 20 p. m. on November 12, 1947, and cleared the port at
-5:45 p. m. on November 13, 1947. The Regional Director further
found that the E. C. Collins did not again arrive at a lower lake port
-until November 24, 1947, on which date the election was held. Excep-
tion was not taken by the Petitioner to the Regional Director's findings
with respect to its first objection. Accordingly, we hereby adopt the
Regional Director's findings, and the Petitioner's first objection is
hereby overruled.
Objections 0 and 3: The Petitioner alleges in substance that through
statements, promises, and threats made shortly before the election by
the Chief Engineer of the E. C. Collins, the Employer interfered with
the orderly conduct of the election and influenced and coerced em-
ployees into voting against the Petitioner and for the Intervenor.
The Regional Director found that the Chief Engineer of the E. C.
Collins, on or about November 14, 1947, addressed a meeting of em-
ployees working under him, and said that it was his personal belief
that the Intervenor was the better organization; that the Intervenor
could get higher wages and a more favorable contract as judged by a
contract it had with another steamship concern; that companies had
less trouble with the Intervenor; that the Intervenor was a lake union,
whereas if the Petitioner won the election, salt water sailors might take
the jobs of crewmen; and that he favored the Intervenor. The Re-
gional Director further found that no coercive threat of reprisal or
force, or promise of benefit was made by the Employer in connection
with the statements made by the Chief Engineer at the meeting, and
he was of the opinion that the Chief Engineer did not exceed the
bounds of permissible expression.
The Regional Director also reported that several employees on the
E. C. Collins alleged that the Chief Engineer questioned them prior
to the election as to how they intended to vote. Prior to such alleged
questioning, however, the Employer had notified supervisors on all
its ships that, as its representatives, they should take an impartial
position concerning the election and, under no circumstances, in any
way threaten, coerce, or make promises to the voters. At the same time
each non-supervisory employee was advised by personal letter that "the
officers had been instructed `as company representatives aboard the
80 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
vessels, they must maintain an impartial attitude regardless of their
own personal opinions,' that it was `your own private business' how
employees voted, and that `whatever the results of the election, we
should all accept the will of the majority."' The Regional Director
found that there was no evidence that the Employer authorized or
ratified the activities of the Chief Engineer of the E. C. Collins, and
also found that there was no evidence of similar activity on any other
boat in the Employe'r's fleet. The Regional Director concluded that,
in view of the Employer's notice given the employees as to its official
position on the election, the impact of the questioning was not of
sufficient weight to have seriously endangered the freedom of voting.
In its Exceptions, the Petitioner asserts that the Regional Director
did not appraise the true significance of the meeting at which the Chief
Engineer addressed the crew members of the E. C. Collins. It contends
that attendance at the meeting was compulsory; that, because the
incident occurred aboard an isolated ship, from which crew members
could not leave and to which the Petitioner's representatives had no^
access, the incident is of greater magnitude than a similar one occurring
in the usual plant or factory ; that the statements of the Chief Engineer
were in effect "the commands of a superior officer," not protected by
constitutional guarantees of free speech; and that, contrary to the
finding of the Regional Director, the statement that the Intervenor
could get better wages and a more favorable contract was clearly a
promise of benefit. The Petitioner further contends that since the
Regional Director found that questioning of crew members occurred,
a prima facie case has been established, and only a hearing, at which
all facts can be ascertained, including the effects of the Employer's
letters, will enable the Board to ascertain its impact.
In the light of the crystal-clear meaning of the afore-mentioned'
letter transmitted by the Employer to each of the unlicensed personnel
in its employ, we do not construe the afore-mentioned statement con-
cerning better wages and a more favorable contract as a promise of
economic benefit. Under all the circumstances, we find that the afore-
mentioned conduct of the Chief Engineer of the E. C. Collins does
not warrant the setting aside of the election.2 Accordingly, the Peti-
tioner's second and third objections are hereby overruled.
Objections 4 and 5: The AFL alleges that the Chief Engineer on
the E. C. Collins discharged James Devine, a coal passer, on November
23, 1947, about 4 hours before voting was to commence, in order to
prevent Devine, an outstanding adherent of the Petitioner, from vot-
ing in the election, and as a coercive warning of reprisals in the event
that the Petitioner won the election.
2 See Matter of The Babcock & Wilcox Co., 77 N. L. It. B. 577.
THE KINSMAN TRANSIT COMPANY g1
Upon all the facts revealed by his investigation the Regional Di-
Tector concluded that Devine quit his job, and that he was not dis-
charged on November 23, 1947.
The alleged discharge of Devine was the subject matter, among
-other things, of an unfair labor practice charge filed by the Petitioner
in Case No. 8-CA-18, in which it was alleged that Devine was discrimi-
iiatorily discharged in violation of Section 8 (a) (3) of the Act. Upon
investigation of the charge, the Regional Director refused to issue
n complaint; and, upon appeal, the General Counsel of the Board, on
April 22, 1948, sustained the Regional Director's action. We shall
-accept the General Counsel's determination, as he advised the parties,
that there is insufficient evidence to warrant further proceedings in
the matter. Accordingly, we hereby overrule the Petitioner's fourth
and fifth objections.
As the Tally of Ballots shows that the Intervenor secured a ma-
jority of the valid votes cast in the election, irrespective of Devine's
challenged ballot, we shall certify the Intervenor as the bargaining
representative of employees in the appropriate unit.
CERTIFICATION OF REPRESENTATIVES
IT Is HEREBY CERTIFIED that Lake Sailors' Union has been designated
and selected by a majority of all unlicensed personnel on all boats
owned and/or operated by The Kinsman Transit Company, Cleveland,
Ohio, excluding stewards and other supervisors, as their representative
for the purposes of collective bargaining and that, pursuant to Section
9 (a) of the Act, as amended, the said organization is the exclusive
representative.of all such employees for the purposes of collective
bargaining with respect to rates of pay, wages, hours of employment,
and other conditions of employment.