Wyandotte Transportation Co.

National Labor Relations Board - Board Decisions

Jul 12, 1940

25 N.L.R.B. 336 (N.L.R.B. 1940)

In the Matter Of WYANDOTTE TRANSPORTATION COMPANY and NATIONAL
MARITIME UNION (C. I. 0.)
Case No. R-1785.-Decided July 193, 1940
Jurisdiction : water transportation industry.
Question concerning representation was one affecting commerce at time
of bearing since, despite seasonal cessation of operations, it related to em-
ployees in connection with operations which, while prospective, nevertheless
involved interstate commerce
Investigation and Certification of Representatives : existence of question: de-
nial of employment relationship ; refusal to accord recognition to union . election
necessary
Contention of employer that it did not have in its employ at the time of
the hearing the persons, viz the unlicensed seamen, concerning whom the
petition alleged a question concerning representation had arisen held with-
out foundation where work of said employees merely suspended pending
commencement of ensuing navigation season
Petition of union, which did not participate in hearing, to be accorded place
on ballot granted where rival union withdrew charge of employer domination
of petitioner filed following order to show cause why petition should not be
granted.
Unit Appropriate for Collective Bargaining : unlicensed seamen employed by
the Company on its lake steamers.
Mr. Arthur Charles O'Connor, for the Board.
Lewis & 1Faticins, by Mr. Leonard A. Keller, `of Detroit, Mich., for
the Company.
Mr. Ralph D. Rogers, of Cleveland, Ohio, for the N. M. U.
Mr. Frank L. Amprin and Mr. Frank P. Darin, of Wyandotte, Mich.,
for the Seamen's Union.
Mr. Robert F. Koretz, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
On November 22, 1939, National Maritime Union, herein called the
N. M. U., filed a petition with the Regional Director for the Seventh
Region (Detroit, Michigan), alleging that a question affecting com-
merce had arisen concerning the representation of employees of Wyan-
dotte Transportation Company, Wyandotte, Michigan, herein called
25 N. L. R. B., No. 45.
336
WYANDOTTE TRANSPORTATION COMPANY 337
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 March 5, 1940, 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 2, as amended,
ordered an investigation and authorized the Regional Director to con-
duct it and to provide for an appropriate hearing upon due notice.
On March 26, 1940, the Regional Director issued a notice of hearing,
copies of which, together with copies of the petition, were duly served
upon the Company and upon the N. M. U. Pursuant to the notice, a
hearing was held on April 3, 1940, at Detroit, Michigan, before John
T. Lindsay, the Trial Examiner duly designated by the Board. The
Board, the Company, and the N. M. U. appeared and were represented
by counsel or by a representative. All parties participated in the hear-
ing and were afforded full opportunity to be heard, to examine and
cross-examine witnesses, and to introduce evidence bearing on the
issues. At the hearing the Company moved to dismiss the petition
for want of jurisdiction of the subject matter, for the reasons, among
others, that the Company had not engaged in commerce or in any
activity affecting commerce within the meaning of the Act since on
or about December 14, 1939, and had not had in its employ since that
date the employees, viz., the unlicensed seamen, concerning whom the
petition alleged a question concerning representation had arisen. Rul-
ing on this motion was reserved for the Board. During the course of
the hearing the Trial Examiner made several rulings on objections to
the admission of evidence. The Board has reviewed the rulings of the
Trial Examiner and finds that no prejudicial errors were committed.
The rulings are hereby affirmed. For reasons appearing hereinafter,
the motion to dismiss the petition is denied.
Subsequent to the hearing Down River Seamen's Union, herein
called the Seamen's Union, lodged with the Board a petition, sup-
ported by certain affidavits and other annexed exhibits, together with
proof of service of a copy of said petition upon the Company and
upon the N. M. U., in which it represented certain matters, on the basis
of which it prayed that it be accorded a place on the ballot in the event
that the Board directed an election in the instant case among the
unlicensed seamen, or that it be given an opportunity to be heard
on the matters presented in the petition. The Board hereby orders
that the petition, the affidavits and exhibits in support thereof, and
proof of service in connection therewith, be filed instanter as part of
-the record herein. On April 25, 1940, the Board duly served notice
upon the parties that unless sufficient cause to the contrary as shown,
on May 1, 1940, or as soon thereafter as would be convenient, it
338 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
would accord the Seamen's Union a place on the ballot in the event
that the Board directed an election herein. By letter dated April 29,.
1940, the N. M. U. filed its objections thereto, in which it represented
that it had evidence which "leads us to believe that the formation
and administration of the said [Seamen's] Union has been aided
by the financial and other support of the Company in violation of
Section 8 (2) of the Act," requested that the Board hold a hearing
to determine whether the Seamen's Union was a "bona fide labor
organization" and whether it had any members among the Com-
pany's employees, "so as to entitle it to a place on the ballot," and
further requested, in the event the Board denied "this motion" for a
hearing, that the Board hold in abeyance any order according the
Seamen's Union a place on the ballot in order that the Union might
determine whether or not to file charges against the Company under
Section 10 (b) of the Act. On April 30, 1940, the Union filed a
charge with the Regional Director alleging that the Company had
engaged in and was engaging in unfair labor practices affecting com-
merce, within the meaning of Section 8 (1) and (2) of the Act, in
that the Company had contributed financial and other support and aid
to the formation of the Seamen's Union. Thereafter, the N. M. U.
withdrew the charge with the consent of the Regional Director. In
view of the withdrawal of the charge and the fact that no showing has
been made warranting the conduct of a hearing upon the' matters
set forth in said objections of the N. M. U., we hereby overrule said
objections and deny the said request of the N. M. U. for a hearing.
No sufficient cause appearing why the proposed action should not be
taken, we shall direct that the Seamen's Union be accorded a place
on the ballot in the election directed herein.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
Wyandotte Transportation Company,'' a Michigan corporation with
its principal office in Detroit, Michigan, is engaged as a common
carrier in the transportation for hire by vessel of general bulk freight
on the Great Lakes. 'It maintains docks at Wyandotte, Michigan,
for the unloading of cargoes of coal, stone, and coke carried by its
ships. Each year during the navigation season, generally from on
or about April 1 to on or about December 1, the Company regularly
operates on the Great Lakes four steamships, which it owns and which
have a combined carrying capacity of 9,406 tons. At the close of
1 The Company is a wholly owned subsidiary of the Michigan Alkali Company , a Michigan
corporation
WYANDOTi' E TRANSPORTATION COMPANY 339
the season it lays up these steamships , at Wyandotte. The Company's
operations in 1939, from on or , about April 1 to on or about December
13, were representative of its operations each year . It then trans-
ported for hire on its steamships from the State of Ohio to Wyandotte,
Michigan, 1,647,379 tons of coal , which constituted approximately 70
per cent of the total tonnage transported in that period . The Com-
pany employed on its four steamships in 1939 approximately 34
licensed officers and 104 unlicensed seamen.
As stated above, the Company at the hearing moved to dismiss the
petition upon jurisdictional grounds . One of the reasons urged was
that the Company had not engaged in commerce or in any activity
affecting commerce, within the meaning of the Act , since on or about
December 14, 1939. At the time the petition was. filed the Company
was engaged in, and employed persons , including unlicensed seamen,
to carry on its interstate operations on the Great Lakes . It is , plain,
therefore , that at that time the Company and these employees were
engaged in business, and activities constituting and affecting com-
merce, within the meaning of the Act, and, accordingly , the question
concerning representation which, as stated in Section III, infra, had
then arisen was one affecting such commerce , within the meaning of
Section 9 ( c). At the time of the hearing the Company contemplated
that its interstate operations would be resumed in a week with the
sailing of one vessel , and that by May 1, 1940 , its interstate operations
would be fully carried on , with the sailing of its remain ing , vessels.2
We find below in Section III, that the Company follows the business
practice of recalling to work in each navigation season the unlicensed
seamen employed during the previous season and that at the time of
the hearing approximately 90 persons , of whom at least 81 had been
in the Company 's employ as unlicensed seamen in the 1939 navigation
season, occupied the status of employees awaiting recall to work on
board the ships to commence sailing on or before May 1, 1940. Under
these circumstances , we find that the above -mentioned question which
has arisen concerning representation was at the time of the hearing
likewise one affecting commerce , within the meaning of Section 9 (c)
of the Act , for it related to employees in connection with opera-
tions of the Company which , while prospective , nevertheless involved
interstate commerce and hence was a question tending to lead to a
labor dispute burdening or obstructing such commerce or the free flow
of commerce.3
2 As stated in Section V, infra, the Company has since begun to operate its steamships
8 Section 2 (7) of the Act provides that the term "affecting commerce" means "in com-
merce, or burdening or obstructing commerce or the free flow of commerce, or having led
or tending to lead to a labor dispute burdening,or obstructing commerce or the free flow
of commerce Cf Matter of Saginaw, Dock & Terminal Company and National Maritime
Union (C I 0 ), 23 N L R B 630; Matter of Merrimac Manufacturing Company and
American Federation of Labor, et al, 9 N. L. R. B. 173.
340 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We find that prior to, at the time of , and since the filing of the
petition in the instant case, the Company engaged in trade, traffic,
transportation, and commerce among the several States, and that all
the unlicensed seamen employed by the Company on its lake steamers
have been and are directly engaged in such trade, traffic, transporta-
tion, and commerce.
H. THE ORGANIZATIONS INVOLVED
National Maritime Union is a labor organization affiliated with
Congress of Industrial Organizations, a labor organization. Down
River Seamen's Union is a labor organization unaffiliated with any
national or other labor organization. Both of these labor organisa-
tions admit to membership unlicensed seamen employed by the
,Company.
III. THE QUESTION CONCERNING REPRESENTATION
On September 25, 1939, and at times thereafter , the N.-M. U. in-
formed the Company that it claimed to be designated by a majority
of the Company 's unlicensed seamen as their . representative for pur-
poses of collective bargaining in regard to wages, hours of service, and
other working conditions, and, therefore, was entitled to recognition
by the Company of itself as the exclusive representative of all its
unlicensed seamen for such purposes . The Company refused to grant
recognition or otherwise bargain collectively with the N. M. U. as
such exclusive bargaining agency until the N. Al. U. was certified as
such representative by the Board.
The Company contended at the hearing that no question concerning
representation affecting commerce then existed because neither at
that time nor since on or about December 14, 1939, was it or had it
engaged in interstate operations, and because it did not have in its
employ since on or about December 14, 1939, persons such as those
described is its employees in the petition. In so far as its claim of
not engaging in interstate operations is concerned , what has been said
above in Section I on that subject is a sufficient answer and need not
be reiterated. In respect of the contention that the Company did not
have. in its employ since on or about December 14, 1939, the persons,
viz., the unlicensed seamen, concerning whom the petition alleged a
question concerning representation had arisen, the record shows, and
we find, that the Company follows the business practice of, recalling
for work on its ships at the beginning of each navigation season the
various unlicensed seamen employed by it in the previous season. In
accordance with this practice, the Company in March 1940 recalled to
work approximately 81 unlicensed seamen employed by it in November
1939, and they, together with nine additional unlicensed seamen then
WYANDOTTE TRANSPORTATION COMPANY 341
hired, were directed to prepare, or "fit out," the Company's steam-
ships for navigation in 1940. Hence, it is plain that during this period
of preparation- the Company had in its employ the employees con-
cerning whom the petition alleged a question concerning representation
had arisen. At the hearing Gettleman, manager of industrial relations
for the Company, testified that the unlicensed seamen engaged in
fitting out the ships were "laid off" on March 30, 1940, upon the com-
pletion of this work. However, we find that the relationship of
employment between the Company and its unlicensed seamen was not
then severed, and that despite their lay-off these employees continued
to occupy the status of employees, within the meaning of the Act.4
The fact that they were then "paid off" and not under shipping articles
is not determinative.5 The Company, follows the business practice of
putting to work during the ensuing navigation season the unlicensed
seamen who have fitted out its vessels, and, as we have found above,
the Company proposed to be fully carrying on its interstate operations
within 1 month after the lay-off. Indeed, Gettleman testified that had
it not been for ice on the lakes, one of its ships would have been engaged
in interstate operations at 'the date of the hearing. Inasmuch as the
Company employed only 90 unlicensed seamen for fitting out its
steamships, as compared with 104 normally employed in navigating
the steamships, we are satisfied, and find, that if not all of the 90, at
least the substantial part thereof would have been and were recalled to
work about May 1.6 Under these circumstances we find that the afore-
mentioned "lay-off" was merely a suspension of work of unlicensed
seamen occasioned by business exigency and in accordance with estab-
lished business practice, and that at the date of the hearing the Com-
pany employed approximately 90 persons who could and would per-
4 North Whittier Heights Citrus Association, a Corporation v. N. L. R. B , 109 F. (2d)
76 (C C A 9, cert denied 310 U S 632, enf'g North Whittier Heights Citrus Association and
Citrus Packing House Workers Union, Local No. 21001, 10 N. L R B. 1269; Matter of West
Kentucky Coal Company and Inland Boatman's Union, C 1. 0., 17 N. L R B 724
and cases therein cited in footnote 2.
-National Labor Relations Board v Waterman Steamship Corporation, 309 U S 206,
iev'g 103 F (2d) 157 (C C A 5) and enf'g Matter of Waterman Steami.ship Corporation
and National Maritime Union of America, Engine Division, Mobile Branch, Mobile, Alabama,
7 N L. R B 237
6It appears that more unlicensed seamen would have been and were recalled Gettleman
testified that, in addition to the 90 unlicensed seamen employed for fitting out the steam-
ships, it was "quite possible" that some of the 24 unlicensed seamen employed in November
1939 who had not yet been recalled for work on the ships in 1940 would be employed
during the 1940 navigation season. He further testified that nine unlicensed seamen not
emploled in 1949 were employed on the steamships in March 1940 when asked whether
lie had "any idea" as to how many other unlicensed seamen not employed in 1939 would
be employed in 1940, he replied, "I doubt if this total of nine would be increased by more
than two or three." Accordingly, it appears that additional unlicensed seamen empleied
in 1939 would have been and were recalled, since approximately 14 unlicensed seamen in
addition to the 90 employed in fitting out the vessels would have been necessary to fill
out the complement of 104 normally employed for navigation.
283036-42-vol. 25-23
342 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
form work as unlicensed seamen when the navigation season began.'
It follows that the Company's motion to dismiss the petition, to the
extent that it rests upon the contention that the Company did not
have in its employ since on or about December 14, 1939, the persons
concerning whom the petition alleged a question concerning representa-
tion had arisen, is without foundation.
We find that a question has arisen concerning representation of em-
ployees of the Company and that such question tends to lead to labor
disputes burdening and obstructing commerce and the free flow of
commerce.,_
IV. THE APPROPRIATE UNIT
The N. M. U. and. the Company stipulated and agreed, and we find,
that all unlicensed seamen employed by the Company on its lake
steamers, the Wyandotte, Conneaut, Alpena, and Huron, constitute a
unit appropriate for the purposes of collective bargaining and that said
unit will insure to the employees of the Company the full benefit of
their right to self-organization and to collective bargaining and other-
wise effectuate the policies of the Act.
V. THE DETERMINATION OF REPRESENTATIVES
From a report of the Regional Director- introduced in evidence it
appears that a substantial number of the Company's employees within
the unit above found to be appropriate have designated the N. M. U. as
their representative for the purposes of collective bargaining in respect
to wages, rates of pay, hours of service, and other working conditions.
The N. M. U. desires that an election be held to resolve the question
concerning representation. We find that the question which has arisen
concerning the representation of employees of the Company can best
be resolved by holding an election by secret ballot. .
We shall direct that the election begin as promptly as is practicable
after this Direction of Election, under the direction and supervision
of the Regional, Director, who shall determine in his discretion the
exact time,-place, and procedure for giving notices of election and for
balloting, provided, -however, that each vessel shall be posted with a
notice of election.
' In view of the recall in March 1940 of unlicensed seamen employed in 1939, we need
not consider whether the employment relationship of unlicen ,ed seamen employed in 1939
terminated after the close of the 1939 navigation season by virtue of the cessation of
operations from on or about December 13, 1939, to on or about March 4, 1940 Cf.
Matter of Saginaw Dock & Terminal Company and National Maritime Union (C 1 0 ),
23 N L. R B 630; Matter of Alaska Packers Association and Alaska Cannery
WVoik crs Union Local No 5, Committee for Industrial Organization , 7 N L. R B 141 ;
.Matter of American Fruit Growers, Inc et al and Fruit & Vegetable Workers Sub Local
of #191, UCAPAWA. C. 1 0 , 10 N L R B 316, Matter of George G Aierrll, et at and
Fresh Fruit & Vegetable Workers Union , Local 78, C. 1 0 , 13 N. L. R. B. 411.
WYANDOTTE TRANSPORTATION COMPANY 343
The N. M. U. contends that the persons eligible to vote in the elec-
tion should be the unlicensed seamen who were employed by the Com-
pany during the last pay-roll period in the 1939 navigation season.
The Company contends that the persons eligible to vote in the election
should be the unlicensed seamen employed by the Company during the
pay-roll period following the first operation of all the Company's
steamships in the 1940 navigation season. We have been informed by
the Regional Director that since the hearing the Company has begun
to operate its entire fleet of steamships. Accordingly, we see no reason
for varying from our customary procedure of selecting the pay-roll
period immediately preceding the date of the Direction of Election as
determinative of eligibility to vote.8 We shall direct that the em-
ployees eligible to vote in the election shall be all unlicensed seamen
employed by the Company on its lake steamers, the Wyandotte, Con-
neaut, Alpena, and Huron, during the pay-roll period immediately
preceding the date of the Direction of Election, including employees
who did not work during such pay-roll period because they were ill,
on vacation, or temporarily laid off, but excluding employees who have
since quit or been discharged for cause.
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 Wyandotte Transportation Company, Wy-
andotte, Michigan, within the meaning of Section 9 (c) and Section
2 (6) and (7) of the National Labor Relations Act.
2. All the unlicensed seamen employed by the Company on its lake
steamers, the Wyandotte, Conneaut, Alpena, and Huron, constitute a
unit appropriate for the purposes of collective bargaining, within the
meaning of Section 9 (b) of the National Labor Relations Act.
DIRECTION OF ELECTION
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,
49 Stat. 449, and pursuant to Article III, Section 8, of National Labor
Relations Board Rules and Regulations-Series 2, as amended, it is
hereby
DIRECTED that, as part of the investigation ordered by the Board
to ascertain representatives for the purposes of collective bargaining
with Wyandotte Transportation Company, Wyandotte, Michigan, an
8 Compare Matter of Saginaw Dock & Terminal Company and National Maritime Union
(C. 1 .0.), 23 N. L. R. B. 630.
344 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
election by secret ballot shall be conducted as soon as convenient and
beginning as promptly as is practicable after the date of this Direction
of Election in conformity with the rules set forth hereinabove for the
conduct of such election, under the direction and supervision of the
Regional Director for the Seventh Region, acting in this matter as
agent for the National Labor Relations Board, and subject to Article
III, Section 9, of said Rules and Regulations, among all the unlicensed
seamen employed by the Company on its lake steamers, the Wyandotte,
Conneaut, Alpena, and Huron, during the pay-roll period immediately
preceding the date of this Direction, including such employees who did
not work during said pay-roll period because they were ill, on vaca-
tion, or temporarily laid off, but excluding such employees who have
since quit or been discharged for cause, to determine whether they de-
sire to be represented by National Maritime Union, affiliated with
Congress of Industrial Organizations , or by Down River Seamen's
Union, for the purposes of collective bargaining, or by neither.