United Fruit Co.

National Labor Relations Board - Board Decisions

Jun 1, 1937

2 N.L.R.B. 896 (N.L.R.B. 1937)

In the Matter of UNITED FRUIT COMPANY and RICHARD SCHUIDT and
Gus CARLSON
Case No. C-159.-Decided June 1, 1937
Water Transportation industry-Discrimina tion: charges of not sustained,
complaint dismissed.
Mr. David A. Moscovita for the Board.
Mr. William K. Jackson and Mr. John L. Warren, of Boston,
Mass., for respondent.
Mary Lemon-Schleifer , of counsel to the Board.
DECISION
STATEMENT OF CASE
" On December 8, 1936, Richard Schuidt filed a charge with the
Regional Director for the Second Region (New York, New York),
alleging that United Fruit Company, New York, New York, here-
inafter referred to as the respondent, had engaged in and was en-
gaging in unfair labor practices within the meaning of the National
Labor Relations Act, 49 Stat. 449, hereinafter referred to as the
Act. On January 6, 1937, the Regional Director duly issued and
served upon the parties a complaint and notice of hearing. The
complaint alleged that the respondent had violated Section 8, sub-
division (2) of the Act, by dominating and interfering with the
administration of an organization known as the Cargo Handlers'
Association and by contributing financial and other support to it;
had violated Section 8, subdivision (3) of the Act by discharging and
refusing to reinstate Richard Schuidt on or about November 16, 1936,
because of his union activities and because he had refused to join
the Cargo Handlers' Association; had violated Section 8, subdivision
(1) of the Act because of the above mentioned violations of Sec-
tion 8, subdivisions (2) and (3), and by other Acts; and that the
aforesaid unfair labor practices were unfair labor practices affecting
commerce within the meaning of Section 2, subdivisions (6) and (7)
of the Act. On January 9, 1937, the respondent filed an answer
denying, in respect to the alleged unfair labor practices, the allega-
tions of fact and the conclusions therefrom set forth in the complaint.
On January 12, 1937, the Regional Director issued and duly served
notice on the parties, that pursuant to an amended charge filed that
day, the National Labor Relations Board, hereinafter referred to as
the Board, would move at the hearing that the complaint be amended
896
DECISIONS AND ORDERS 897
to include the additional allegation that the respondent had violated
Section 8, subdivisions (1) and (3) of the Act by discharging and
refusing to reemploy Gus Carlson on or about November 27, 1936.
Pursuant to an amended notice of hearing issued and duly served
upon the parties a hearing was begun on February 2, and continued
on February 3 and 4, 1937 , in New York City before A. Howard
Myers, the Trial Examiner duly designated by the Board. The
respondent was represented by counsel and participated in the hear-
ing. Full opportunity to be heard, to examine and cross-examine
witnesses and to introduce evidence bearing on the issues was af-
forded all parties. The Trial Examiner in the absence of any ob-
jection by the parties allowed the Board's motion to amend the
complaint . Counsel for the respondent then filed an answer deny-
ing the allegations set forth in the amended complaint concerning
Gus Carlson . Counsel for the respondent also moved that the com-
plaint be dismissed because the persons named in the complaint
were not employees within the meaning of the Act and on the fur-
ther grounds that the Act is unconstitutional generally and as ap-
plied to the respondent. The Trial Examiner denied the motion
during the course of the hearing . Near the close of the hearing
counsel for the respondent moved to dismiss the complaint on the
ground that no evidence had been adduced to sustain the allegations.
The Trial Examiner reserved ruling on the motion. Objections
were made by counsel for the respondent and by counsel for the
Board to the introduction of evidence . The Board has reviewed
the rulings of the Trial Examiner and finds that no prejudicial
errors were committed . The rulings on motions and objections are
hereby affirmed.
-On March 16, 1937, the Board, acting pursuant to Article II,
Section 37 , of National Labor Relations Board Rules and Regula-
tions-Series 1, as amended , ordered the case to be transferred to
and continued before it.
On April 28, 1937, Richard Schuidt and Gus Carlson requested
permission to withdraw the charge which alleged that the respond-
ent had committed unfair labor practices within the meaning of
Section 8 , subdivision (2) of the Act . The Board hereby consents
to the withdrawal.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE RESPONDENT 'S BUSINESS
The respondent , a New Jersey corporation with its principal office
and place of business in Boston , Massachusetts , is engaged, by it-
self and through various wholly-owned and controlled subsidiaries,
898 NATIONAL LABOR RELATIONS BOARD
in the growth, purchase, transportation, sale, and distribution of
bananas and other tropical products; in the operation of a line of
steamships for the transportation of passengers, freight, and mail,
in addition to the transportation of bananas and other tropical
products ; in the operation of a system of communication, including
telephone and telegraph lines and radio systems; and in the opera-
tion of railway and tramway systems.
The bananas and other tropical products handled by the respond-
ent are grown or purchased in tropical countries in Central and
South America and the West Indies. In such countries, the re-
spondent by itself or through its subsidiaries, employs approximately
48,000 employees; owns 3,430,000 acres of land, of which approxi-
mately 435,000 acres are under cultivation ; leases 65,000 acres
of land, of which 14,000 acres are cultivated; operates approximately
1,800 miles of railway lines, 450 miles of tramways, and 3,600 miles
of telephone and telegraph lines ; and maintains a chain of high
powered radio and telegraph stations located in Colombia, Costa
Rica, Honduras, Nicaragua, and Panama, the United States ter=
minals being located at New Orleans, Louisiana; Boston, Massachu-
setts ; and Hialeah, Florida.
The respondent's steamships, approximately 50 in number, carry
passengers, mail, and freight between the Atlantic ports of Boston,
Massachusetts; New York, New York; Philadelphia, Pennsylvania;
Baltimore, Maryland; Charleston, South Carolina; Mobile, Ala-
bama ; New Orleans, Louisiana ; and Cuba, Jamaica, and the At-
lantic ports of Central America and Colombia, South America, and
through the connecting lines of the Panama Canal with the west
coast ports of South America. These steamships carry annually
approximately 50,000 passengers and 890,000 tons of freight, in ad-
dition to transporting the respondent's fruit and products. Ap-
proximately 31,000,000 stems of bananas are carried on these ves-
sels annually.
The respondent imports bananas and other tropical products
through various ports of the United States, including the port of
New York. At Piers 3, 7, and 9, New York City, such products
are immediately unloaded from the ships into trucks or railroad cars
for distribution. The Fruit Dispatch Company, a wholly-owned
subsidiary of the respondent with approximately 50 branch offices
throughout the United States, acts as the selling agent of the re-
spondent in the United States and is in charge of the products of
the respondent from the point of importation to the point of des-
tination.'
All the above facts concerning the respondent's business are taken from a stipulation
which was introduced in evidence at the hearing.
DECISIONS AND ORDERS 899
We find that the respondent is engaged in trade, traffic, transpor-
tation, and commerce among the several States, and between the
United States and foreign countries, and that the employees of the
respondent engaged in the unloading of bananas and other prod-
ucts on the New York piers of the respondent are directly engaged
in such trade, traffic, transportation, and commerce.
II. THE LABOR ORGANIZATIONS INVOLVED
International Longshoremen's Association, hereinafter referred
to as I. L. A., is a labor organization affiliated with the American
Federation of Labor. Local No. 856, I. L. A., of which Richard
Schuidt and Gus Carlson are members, has jurisdiction over long-
shoremen engaged in handling deep sea cargo on the New York
piers. On January 31, 1936, I. L. A., as representative of the em-
ployees of the respondent on the New York piers, entered into a
contract with the respondent. This contract expired on October 31,.
1936, and no contract has been signed by the respondent since that
time- either with I. L. A. or with any other labor organization.
The Cargo Handlers' Association, hereinafter referred to as the
Association, was organized among the respondent's employees on
Pier Number 7, New York City, during October and November,,
1936. The evidence shows that while the respondent has made no
contract with the Association, a committee selected by the Associa-
tion members has met with Charles C. Baldwin, superintendent of
navigation and manager of pier operations, and other officials of the
respondent. At these meetings working conditions were discussed
and some adjustments or changes were made because of the de-
mands of the Association. We find, therefore, that the Associa-
tion is a labor organization.
III. THE RESPONDENT 'S EMPLOYEES
Pier Number 7 of the respondent is used almost exclusively for the
unloading of bananas from ships coming from tropical countries.
The time of arrival of each ship is posted on the pier and longshore-
men desiring to secure work congregate in the street outside the pier
prior to the docking of the ship. The respondent determines how
many men will be needed to unload each ship and out of the long-
shoremen on the street selects the required number by a process
called "shaping". One or more representatives of the respondent
called "shapers" go out into the street in front of the pier, select the
men they wish, and give them a small paper disk. The men so se-
lected line up on the pier and pass to the paymaster's office, where
they give their names and receive a metal disk or pass in exchange
for the paper disk. Their time of beginning work is recorded and
5727-37-vol "-58
900 NATIONAL LABOR RELATIONS BOARD
they go on down the pier to work. When the ship has been un-
loaded 2 the worker again goes to the paymaster's office, surrenders
his metal disk, and receives payment for that particular job.3 He
secures his next job only by being selected or "shaped*," in the same
manner.
The number of men required to unload a ship varies from 275 to
525, depending on the size of the ship and its construction. Ships
arrive at the pier every day in the week including Sunday. It is
apparent that either because they cannot be used or because they do
not wish to work every day, these longshoremen do not have contin-
uous and regular employment in the same sense that an employee
has in the ordinary industrial plant. However, the respondent ad-
mits and the records of employees who testified show, that there is in
the main a regular and continuous reemployment of the same long-
shoremen. We think that such longshoremen, including Carlson
and Schuidt, who are constantly reemployed for such work, are em-
ployees of the respondent even though, because of the nature of the
work, they are not "shaped" for every ship.
IV. THE ALLEGED DISCRIMINATORY DISCHARGES
Gus Carlson has been employed by the respondent on Pier Number
7 for about six to eight years. He unloaded bananas, and on occa-
sion , other cargo from the ships. In addition, he acted as a rigger.
i. e., an employee who goes on the ship immediately upon its arrival
and puts in the machinery necessary, to unload it and removes the
machinery after unloading is completed. Carlson is a member of
Local No. 856, I. L. A. He refused to join the Association when
solicited to do so.
Carlson's employment record from January 1, 1936, to December 1,
1936, as submitted by the respondent, is as follows :
No. of hours employed No of hours employed
January_________________ 147/ hours July --------------------- 157 hours
February---------------- 1221/2 hours August ------------------ 153 hours
March___________________ 801/2 hours September --------------- 134 hours
April____________________ 1051/2 hours October------------------ 931/2 hours
May --------------------- 1211/2 hours November --------------- 1381/2 hours
June-------------------- 1131/ hours
The employment records of 15 employees selected at random were
requested by the Trial Examiner for the purpose of securing a cross
2 The average time of unloading is about 10 hours
' Daily payment was one of the problems discussed by the Association with respondent.
At the Association 's request to have all men paid weekly , the respondent agreed to
make weekly payments to those men who wished it Baldwin testified that very few
employees had requested to be paid weekly
DECISIONS AND ORDERS 901
section of the regularity of employment of these longshoremen.'
These records show the-following:
Greatest Greatest
number Least num- number Least num-
Month of hours ber of hours Month of hours ber of hoursworked
by any of worked
worked
by any of worked
the 15 the 15
January------------------ 220,5 29 July--------------------- 176 59
February----------------- 193 27 August ------------------- 190 57
arch-------------------M 221 44 September --------------- 16431 57
p
;jMay--------------------- 194 46 November ---------------- 188
61June--------------------- 182 8
From a comparison of Carlson's working hours with these figures
it is apparent that for whatever cause Carlson did not work as many
hours in any month as some other employees worked. It may be
that the explanation is, as Breuh, head stevedore of the respondent,
testified, that when he "shaped" he frequently did not select Carlson.
Or it may be that Carlson did not seek work at all available times
and that he was, as he testified, "shaped" every time he went to
work. It is significant that Carlson, in addition to handling bananas
and other cargo during the working day, also acted for about an
hour both before unloading commenced and after it was completed,
as a rigger. It would seem that if Carlson had worked at all times
his number of working hours would have exceeded those of other
,workmen who were not riggers.
A summary of the evidence concerning Carlson's alleged discharge
shows "that on December 3, 1936, about one month after the election
of officers of the Association and while the Association was making
a concerted drive to secure members, John Dugan, president of the
Association, and Lefty Russo, an active member of the Association,
told Carlson at noon time that if he did not join the Association he
could not continue to work; that the next morning Carlson was not
selected in either the first or a subsequent "shaping"; that he went
to Breuh after the second "shape" and complained, stating he had
not been selected because the respondent. had instructed the men
in charge of "shaping" to select only members of the Association ;
that Breuh denied the charge, stating he would investigate the situa-
tion and instructed Carlson to return later in the day; that Carlson
returned that afternoon and Breuh informed him he had discussed
the matter with the men in charge of "shaping" that morning and
they stated they had nothing against Carlson and had not selected
him solely because they had not seen him; that Breuh instructed
Carlson to come back to work on Monday morning; that Carlson
did not get to work on Monday in time for the first "shaping", which
902 NATIONAL LABOR RELATIONS BOARD
by his own admission is the one he had always been selected for
prior to this time ; that Carlson stayed for the second "shaping" but
was not selected; and that he made no effort to see any official of
the respondent at that time, nor did he go back to the pier to secure
work from that day until approximately two months later, four
days before the hearing in this case.
We do not feel, in the light of Carlson's employment record, that
we are justified on this evidence alone in holding either that the
respondent refused employment to Carlson or that if it did, it was
for the purpose of encouraging or discouraging membership in a
labor organization.
Richard Schuidt has unloaded bananas and other cargo on Pier
Number 7 for about five or six years. He is a member of Local No.
856, I. L. A., and did not join the Association.
Schuidt's employment record for 1936 is as follows :
No. of hours employed No. of hours employed
January ----------------- 581/2 hours June_____________________ 59Y hours
February_________________ 591/2 hours July --------------------- 60 hours
March ------------------- 75 hours August___________________ 771/2 hours
April -------------------- 21 hours SepterAber --------------- 841/2 hours
May --------------------- 83 hours October ------------------ 85 hours.
Schuidt explains this record in the following manner :
"Q. And after the settlement of the strike (December, 1935),,
did you work steadily for the company as you had before the
strike ?
"A. Well, for a time, for about a few weeks I did, and we
had a little rumpus down there on Pier 3, outside of the dock
there, .. .
"Q. I see, all right now. When did you shape up, next, after
that?
"A. Why, after that I shaped up, but I was not put on for
quite a while after that, for about two months.
"Q. And then what happened?
"A. They had to . . . I had to see my delegate.
"Q. Yes, what?
"A. I had to get my delegate to go up to the office .. .
"Q. And then did you shape?
"A. I shaped.
"Q. And did you get work?
"A. I got the regular four hours.
* * * * * * *
"Q. All right, before this new shaping that took place as a
result of Mr. Giblen's J. L. A. delegate) conversation with Mr.
DECISIONS AND ORDERS 903
Smith, had you been in your regular shapes working more than
four hours?
"A. No, four hours, five hours and off and on like that, that
is all, and sometimes I would make maybe two ships a week.
"Q. Did you ever work more than four hours after that?
"A. Well, I worked four hours sometimes and sometimes, why
I would get a little more and then you would be cut down, then
a little more again and cut down, so I went to see Mr. Giblen
again.
* * * * *
"Q. Now, after that, did you continue working for the com-
pany?
"A. Yes, for a while until I had another argument with a
fellow ... After that I got two more months off.
* * * * * * *
Now, did anything happen after that in so far as your
employment was concerned, were you shaped up continuously
after that?
"A. Well, not continuously. You would get one ship and
maybe I would be left out on a Thursday and get another ship
on Friday ..."
On October 30, 1936, the Association held a meeting for the nomi-
nation of officers. The meeting was held off the pier after working
hours. Schuidt testified that although not a member of the Associa-
tion, he went to the meeting and tried to make a speech, but that he
got into an argument and was forced to leave. Either at that meet-
ing or a meeting held on November 2, 1936, for the election of officers
of the Association, Schuidt testified he stood in the hall below and
urged the men to vote for "Filly" who was "not implicated in any
way with the bosses". He further testified in regard to his activities :
"A. I meant that I got a shellacking, that is what I meant.
"Trial Examiner Myers: What does that mean?
"A. I -ot a beating.
"Trial Examiner Myers: By whom?
"A. About two-it was two aft men
"Trial Examiner Myers : You got a beating, you mean a physi-
cal beating?
"A. A physical beating in the paymaster's room of the United
Fruit Company.
"Trial Examiner Myers : Well, what was that caused by?
"A. That was caused because I was standing outside of this
place there and telling the men to vote for Fiffy.
904 NATIONAL LABOR RELATIONS BOARD
"Q.. . . You did have a fight with the men there out, on the
pier? .. .
"A. I didn't have no fight, I walked in to cash a check and one
of them threw something at me and the other rapped me
"Q. What did you say to them?
"A. I didn't say anything to them, I called a cop."
Apparently, the day of the fight in the paymaster's room or the
day before, was the last day on which Schuidt was selected. He tes-
t ified that he was at the pier every day for the following three weeks
but that he was never "shaped".
As distinguished from Carlson, the record indicates that Schuidt
was refused employment by the respondent. Schuidt feels he was
the unfortunate victim of unprovoked assaults by fellow employees,
but by his own admission such altercations in the past resulted in the.
respondent's refusal to "shape" him for a certain length of time. It
may be that the failure of the respondent to "shape" Schuidt for
three weeks after the fight in the paymaster's office was due to the
fight in the office. In any event, whatever reason the respondent had
for refusing to "shape" Schuidt, we cannot find on the evidence be-
fore us that the refusal was for the purpose of encouraging or dis-
couraging membership in a labor organization.,
We find that the respondent has not discriminated in regard to hire
and tenure of employment of Richard Schuidt and Gus Carlson for
the purpose of encouraging or discouraging membership in a labor
organization.
We find that the respondent has not interfered with, restrained, or
coerced its employees in the exercise of the rights of self-organiza-
tion, to form, join, or assist labor organizations, to bargain collec-
tively through representatives of their own choosing, and to engage
in concerted activities, for the purposes of collective bargaining and
other mutual aid and protection.
CONCLUSIONS OF LAW
Upon the basis of the foregoing findings of fact and upon the entire
record in the proceeding, the Board makes the following conclusions
of law :
1. The operations of the respondent, United Fruit Company, occur
in commerce, within the meaning of Section 2, subdivision (6) of the
Act.
2. Local No. 856, International Longshoremen's Association, is a
labor organization, within the meaning of Section 2, subdivision (5)
of the Act.
3. Cargo Handlers' Association is a labor organization, within the
meaning of Section 2, subdivision (5) of the Act.
DECISIONS AND ORDERS 905
4. At the time of the events set forth in Section IV above, Rich-
ard Schuidt and Gus Carlson were employees of the respondent
within the meaning of Section 2, subdivision (3) of the Act.
5. The respondent has not discriminated in regard to the hire and
tenure of employment of Richard Schuidt and Gus Carlson and
thereby encouraged or discouraged membership in a labor organiza-
tion, within the meaning of Section 8, subdivision (3) of the Act.
6. The respondent has not interfered with, restrained or coerced its
employees in the exercise of the rights guaranteed in Section 7 of the
Act, within the meaning of Section 8, subdivision (1) of the Act.
ORDER
Upon the basis of the above findings of fact and conclusions of law,
and pursuant to Section 10, subdivision (c) of the National Labor
Relations Act, the National Labor Relations Board hereby grants
the respondent's motion to dismiss on the grounds that the evidence
does not sustain the allegations of the complaint.