Wilmington Transportation Co.

National Labor Relations Board - Board Decisions

Dec 31, 1937

4 N.L.R.B. 750 (N.L.R.B. 1937)

In the Matter Of WILMINGTON TRANSPORTATION COMPANY and INLAND
BOATMEN'S UNION OF THE PACIFIC, SAN PEDRO DIVISION
Case No. B-399.-Decided December 31, 1937
Water Tiansportation Industry-Investigation of Representatives : contro-
versy concerning representation of employees : rival organizations ; controversy
as to appropriate bargaining units-Unit Appropriate for Collective Bargaining:
rival unions each contend for different unit ( 1) employees on tugboats and
barges, excluding masters, mates , and engineers ; ( 2) employees on tugboats and
barges and unlicensed personnel on passenger and freight ships; where other
considerations determinative of appropriate unit are such that either of two
contentions is valid, decisive factor is the desire of the employees involved ; ma-
jority of employees express desire for unit ( 1)-Representatives : proof of choice:
majority of employees indicate preference for representative-Certification of
Representatives . upon proof of majority representation.
Iltr. David Persinger, for the Board.
Gibson, Dunn & Crutcher, by Mr. J. Stuart Neary, of Los Angeles,
Cal., for the Company.
Mr. H. Christolfersen, of San Pedro, Cal., for Sailors ' Union.
Mr. Paul R. Benson and Mr. Paul Baker, of San Pedro, Cal., for
Boatmen's Union.
Mr. Victor A. Pascal, of counsel to the Board.
DECISION
AND
CERTIFICATION OF REPRESENTATIVES
STATEMENT OF THE CASE
On September 11, 1937, Inland Boatmen's Union of the Pacific, San
Pedro Division, herein called the Boatmen's Union, filed with the
Regional Director for the Twenty-First Region (Los Angeles, Cali-
fornia) a petition alleging that a question affecting commerce had
arisen concerning the representation of employees of Wilmington
Transportation Company, of Wilmington, California, herein called
the Company, and requesting an investigation and certification of
representatives pursuant to Section 9 (c) of the National Labor Rela-
tions Act, 49 Stat. 449, herein called the Act. On October 12, 1937, the
National Labor Relations Board, herein called the Board, acting pur-
suant to Section 9 (c) of the Act and Article III, Section 3, of National
Labor Relations Board Rules and Regulations-Series 1, as amended,
750
DECISIONS AND ORDERS 751
ordered an investigation and authorized the Regional Director to
conduct it and to provide for an appropriate hearing upon due
notice.
On October 22, 1937, the Regional Director issued a notice of hear-
ing, copies of which were duly served upon the Company, upon the
Boatmen's Union , and upon the Sailors ' Union of the Pacific, herein
called the Sailor's Union , a labor organization claiming to represent
employees directly affected by the investigation. Pursuant to the
notice, a hearing was held on November 4, 1937, at Los Angeles, Cali-
fornia, before George Rochester , the Trial Examiner duly designated
by the Board. The Board and the Company were represented by coun-
sel and the Boatmen's Union and the Sailors' Union were both repre-
sented by their agents. All participated in the hearing. Full oppor-
tunity to be heard, to examine and to cross-examine witnesses, and to
introduce evidence bearing on the issues was afforded all parties. Dur-
ing the course of the hearing the Trial Examiner made several rulings
on motions. The Board has reviewed the rulings of the Trial Ex-
aminer and finds that no prejudicial errors were committed. The
rulings are hereby affirmed.
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
I. TILE BUSINESS OF TIDE COMPANY
The Company , a California corporation, is a subsidiary of the Santa
Catalina Island Company , likewise a California corporation, whose
articles of incorporation were filed October 17, 1894. The Company
has freight. offices at Wilmington and Avalon. The business of the
Company is divided into two parts, its passenger and freight business
and its tugboat and barge business.
In connection with its passenger and freight business , the Company
operates two ships between Wilmington and Avalon and one ship be-
tween Wilrington, the Isthmus and Avalon. No other company oper-
ates ships hauling freight and passengers between these points. The
Company likewise owns four pleasure boats which are leased to the
Santa Catalina Island Company.
The tugboats and barges operate mostly in the waters of the harbor
of San Pedro, assisting the intercoastal or foreign ships to or from
the wharves or piers. Occasionally a boat will go to Santa Barbara or
San Diego.
II. THE ORGANIZATIONS INVOLVED
Inland Boatmen's Union of the Pacific, San Pedro Division, is a
labor organization now affiliated with the Committee for Industrial
Organization , admitting to its membership unlicensed personnel em-
ployed on the tugboats and barges of the Company.
752 NATIONAL LABOR RELATIONS BOARD
Sailors' Union of the Pacific is a labor organization. The record
in this case does not clearly show either its affiliation or who is
eligible for membership in it.
III. THE QUESTION CONCERNING REPRESENTATION
The Boatmen's Union claims to represent the majority of the em-
ployees of the Company who are employed on its tugboats and barges,
excluding masters, mates, and engineers. $
The Sailors' Union claims that such employees of the Company
form part of a larger unit which should include also the unlicensed
deck personnel on the Company's passenger and freight ships and
that it is the bargaining representative of this larger unit.
We find that a question has arisen concerning representation of
employees of the Company.
IV. THE EFFECT OF THE QUESTION CONCERNING REPRESENTATION UPON
COMMERCE
We find that the question concerning representation which has
arisen, occurring in connection with the operations of the Company
described in Section I above, has a close, intimate, and substantial
relation to trade, traffic, and commerce among the several States, and
tends to lead to labor disputes burdening and obstructing commerce
and the free flow of commerce.
V. THE APPROPRIATE UNIT
In its petition, the Boatmen's Union alleges that the employees on
the tugboats and barges of the Company, with the exception of
masters, mates, and engineers, constitute the appropriate unit. It
emphasizes that collective bargaining among such employees in the
past has been upon the basis that they constitute a separate and dis-
tinct unit. It asserts that, from October 1, 1935, until September 30,
1937, it had agreements with the Company recognizing it as the bar-
gaining representative of these employees. The last agreement,
dated June 10, 1937, was for an indefinite term, subject to modifica-
tion or termination as of September 30, 1937, or thereafter by either
party giving thirty days' notice.
The Sailors' Union contends that the employees which the Boat-
men's Union claims to represent and the unlicensed deck personnel
on the Company's passenger and freight ships should jointly be con-
sidered as one unit for the purposes of collective bargaining. The
Boatmen's Union asserts that the present contention of the Sailors'
Union is inconsistent with the position previously taken by it, inas-
much as the Sailors' Union had established an Inland Division to
organize those persons employed on tugboats and inland craft. The
DECISIONS AND ORDEUS 753
Sailors' Union states that the reason this Inland Division was estab-
lished was that those persons employed on the tugboats and inland
craft were so loosely organized that it was necessary for them to go
through a period of organization before they could be admitted to
full membership in the Sailors' Union.
Under the circumstances we could find either the smaller or the
larger unit to be appropriate for collective bargaining. In this situa-
tion we will be governed by the wishes of the employees themselves.
As we sliall see, the evidence in this case shows that the employees on
the tugboats and barges (excluding masters, mates, and engineers)
wish to be represented by the Boatmen's Union in a separate unit. We
find, therefore, that the employees of the Company employed on its
tugboats and barges, excluding masters, mates, and engineers, consti-
tute a unit appropriate for the purposes of collective bargaining and
that said unit will insure to employees of the Company the full benefit
of their right to self-organization and to collective bargaining and
otherwise effectuate the policies of the Act.
VI. THE DETERMINATION OF REPRESENTATIVES
At the direction of the Trial Examiner, the Company prepared a
list of all employees on its tugboats and barges as of November 4, 1937.
None of the parties raised any objection to the accuracy of this list,
although given an opportunity to do so. This list shows that 22 men
are employed as deckhands and extra deckhands . These men consti-
tute all the employees in what we have found to be the appropriate
unit.
At the hearing, 19 men testified that they desired the-Boatmen's
Union to represent them for the purposes of collective bargaining.
Of these, 18 admittedly were included in the list of 22 which com-
pose the appropriate unit and there is a question as to whether or not
the nineteenth man was included in it. The Sailors' Union failed to
introduce any evidence tending to prove that any of these 22 men
desired it as their agent for the purposes of collective bargaining.
The Sailors' Union introduced into evidence an agreement between
it and the Company dated October 23, 1937, which the Sailors' Union
contends recognizes it as the exclusive bargaining representative of
all the Company's unlicensed deck personnel, including the employ-
ees in the unit urged by the Boatmen 's Union.
It is apparent from the record, however, that the parties to that
agreement did not intend it to be applicable to employees on tugboats
and barges . Even if construed as applicable to these employees; the
agreement does not preclude the Board from designating the Boat-
men's Union as the exclusive bargaining representative of the unit
ii hich we have found to be appropriate, especially since the agree-
754 NATIONAL LABOR RELATIONS BOARD
ment was entered into subsequent to the time that the petition in this
case was filed with the Regional Director and subsequent to the time
when notice of hearing was served upon all parties.'
We find that the Boatmen's Union has been designated and se-
lected by a majority of the employees in the appropriate unit as their
representative for the purposes of collective bargaining. It is, there-
fore, the exclusive representative of all the employees in such unit
for the purposes of collective bargaining, and we will so certify.
Upon the basis of the above findings of fact and upon the entire
record in the case, the Board makes the following :
CONCLUSIONS OF LAW
1. A question affecting commerce has arisen concerning the repre-
sentation of employees of Wilmington Transportation Company, Wil-
mington, California, within the meaning of Section 9 (c) and Sec-
tion 2 (6) and (7) of the National Labor Relations Act.
2. The employees of the Company employed on the tugboats and
barges, excluding masters, mates, and engineers, constitute a unit
appropriate for the purposes of collective bargaining, within the
meaning of Section 9 (b) of the National Labor Relations Act.
3. Inland Boatmen's Union of the Pacific, San Pedro Division, is
the exclusive representative of all the employees in such unit for
the purposes of collective bargaining, within the meaning of Section
9 (a) of the National Labor Relations Act.
CERTIFICATION OF REPRESENTATIVES
By virtue of and pursuant to the power vested in the National
Labor Relations Board by Section 9 (c) of the National Labor
Relations Act, and pursuant to Article III, Section 8, of National
Labor Relations Board Rules and Regulations-Series 1, as amended,
IT IS HEREBY CERTIFIED that Inland Boatmen's Union of the Pacific,
San Pedro Division, has been designated and selected by a majority
of the employees of Wilmington Transportation Company, Wilming-
ton, California, employed on its tugboats and barges, excluding mas-
ters, mates, and engineers, as their representative for the purposes
of collective bargaining and that, pursuant to the provisions of Sec-
tion 9 (a) of the Act, Inland Boatmen's Union of the Pacific, San
Pedro Division, is the exclusive representative of all such employees
for the purposes of collective bargaining in respect to rates of pay,
wages, hours of employment, and other conditions of employment.
' See Matter of North, op, Corpo,ation and United Automobile Workers , Local No 229,
Case No. R-185 , decided October 6, 1937, 3 N L R . B. 228.