Toledo Overseas Terminals, Inc.

National Labor Relations Board - Board Decisions

Mar 23, 1960

126 N.L.R.B. 1283 (N.L.R.B. 1960)

TOLEDO OVERSEAS TERMINALS, INC. 1283
an arrangement are employers, and musicians employees within the
meaning of the Act, the motion is hereby denied.'
Accordingly, we find that a question affecting commerce exists con-
cerning the representation of certain employees of the Employer,
within the meaning of Section 9(c) (1) and Section 2(6) and (7) of
the Act.
4. The appropriate unit :
The Petitioner and Intervenor agree to the composition of the unit.
The Employer took no position. The Intervenor contends, however,
that (1) a unit limited to musicians in Los Angeles County is inap-
propriate, and (2) the unit should not be a multiemployer unit. As
to (1), the record shows that the Employer scores all of its motion
pictures in Los Angeles County and utilizes the services of musicians
from that area. Accordingly, we find a unit limited to that area
appropriate. In regard to (2), in view of the facts discussed in para-
graph 1, above, we find that the three corporations likewise constitute
a single Employer for unit purposes.
Accordingly, we find the following unit appropriate for purposes
of collective bargaining within the meaning of Section 9(b) of the
Act :
All musicians employed by the Employer or its successors in Los
Angeles County, California, including conductors, leaders, arrangers,
orchestrators, copyists, proofreaders, librarians, recording and side-
line musicians, but excluding composers and supervisors as defined
in the Act.
5. In accordance with our voting eligibility formula for musicians
in the motion picture industry, we find that all musicians who have
been employed in the unit herein for 2 or more days during the year
preceding this decision are entitled to vote in such unit .7
[Text of Direction of Election omitted from publication.]
6 Independent Motion Picture Producers Association, Inc, 123 NLRB 1942.
' See Independent Motion Picture Producers Association, Inc., supra.
Toledo Overseas Terminals , Inc. and United Mine Workers of
America, District 50, Petitioner . Case No. 8-RC-3684. March
23, 1960
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9(c) of the National Labor
Relations Act, a hearing was held before Norman R. Prusa, hearing
officer. The hearing officer's rulings made at the hearing are free from
prejudicial error and are hereby affirmed.
126 NLRB No. 152.
1284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Chairman Leedom and Members Bean and Fanning].
Upon the entire record in this case, the Board finds:
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The labor organizations involved claim to represent certain
employees of the Employer.'
3. A question affecting commerce exists concerning the representa-
tion of employees of the Employer within the meaning of Section
9(c) (1) and Section 2(6) and (7) of the Act.
4. Petitioner seeks a unit of all employees employed at the Em-
ployer's stevedoring operation at the port of Toledo, Ohio, with the
usual exclusions. The parties are in disagreement as the unit place-
ment of the checkers whom the Employer would exclude, contending
that they are more closely allied with management and, unlike the
other employees, perform clerical duties.
The record discloses that the duties of a checker are to tally the
cargo being loaded, unloaded, or warehoused, measure the cargo, mark
the warehouse location, see that the cargo is properly handled, and
report any damage he may find to the supervisor. The checkers are
under the same supervision as the cargo handlers, and like them are
hourly paid, and work outside on the dock all day. The duty of the
checkers to report damaged cargo does not accord them the status of
supervisors within the meaning of the Act,2 and there is nothing in
the record to indicate that they possess any of the other statutory
indicia of supervisory authority or that they perform other than
routine clerical duties. Accordingly, we find that they are not allied
with management, and we shall include them in the unit.3
We find, accordingly, that all employees at the Employer's stevedor-
ing operation at the Toledo, Ohio, port, including checkers, but ex-
cluding office clerical employees, professional employees, watchmen,
guards, and supervisors as defined in the Act, constitute a unit ap-
propriate for the purposes of collective bargaining within the mean-
ing of Section 9(b) of the Act.
5. The record discloses that the normal shipping season at the
port of Toledo, Ohio, extends from approximately April 25 through
November 25; that the Employer operated from October 12, 1959,
through November 24, 1959; and during this period engaged in
'International Longshoremen 's Association , AFL-CIO, and International Union of
Operating Engineers , Local 18, AFL-CIO , intervened upon adequate showings of interest.
Subsequent to the hearing , the Operating Engineers requested permission to withdraw.
As none of the parties have objected to this request , it is hereby granted.
2 See Arl4ngton Hotel Company, Inc, 126 NLRB 400 (inspectresses).
8 Cf. San Juan Mercantile Corporation, 117 NLRB 8.
TOLEDO OVERSEAS TERMINALS, INC. 1285
stevedoring operations for a total of 26 days, or approximately 10
percent of the entire season. During this 26-day period, a total of
229 individuals were employed, of whom about 45 percent worked on
5 or more different days and more than 50 hours.
The Employer asserts that this short history of operations does not
afford the Board a sufficient basis for making a determination as to
whether its employees have sufficient continuity of employment to be
considered a part of any unit the Board might find appropriate and to
vote in an election and, on this ground, moves to dismiss the petition
as premature. We do not agree with the contentions of the Employer,
and the motion to dismiss is therefore denied. It has been the ex-
perience of the Board in the stevedoring industry that a substantial
number of employees do return from year to year to the same operation
for employment. Thus, in a recent case involving a similar operation
in this same port,4 the Board determined, on the basis of evidence
correlating hours worked with continuity of employment, that em-
ployees who had work 50 hours or more during the preceding season,
who comprised about 30 percent of the total work force, had a sub-
stantial continuing interest in their employment conditions, and that
selection of this 50-hour figure would insure a representative vote.
In the instant case, as noted, about 45 percent of the total work force
employed during only part of a season worked more than 50 hours.
Under these circumstances, we conclude that utilization of the 50-hour
figure herein will enfranchise those employees who have a substantial
continuing interest in their employment conditions and will insure a
representative vote. Accordingly, we find that all those employees
who worked 50 hours or more for the Employer at any time from the
start of the Employer's operations in 1959 to the payroll period im-
mediately preceding the issuance of the notice of election, as herein-
after provided, are eligible to vote. However, to insure that they are
still in the industry, we shall further require that their names shall
have appeared on at least one daily payroll during the 1960 season
preceding the eligibility date established hereby.
As the Employer's operations are seasonal, with the next season
beginning approximately on April 24, 1960, we shall, in order to
make the franchise available to the largest number of voters, direct
that the election be held during the Employer's next season, when a
representative complement of stevedores shall have been employed, on
a date to be determined by the Regional Director, among the em-
ployees in the unit found appropriate.
[Text of Direction of Election omitted from publication.]
' Toledo Marine Terminals, Inc., 123 NLRB 583.