American-Hawaiian Steamship Co.

National Labor Relations Board - Board Decisions

Apr 19, 1938

6 N.L.R.B. 678 (N.L.R.B. 1938)

In the Matter of AMERICAN-HAWAIIAN STEAMSHIP COMPANY and
NATIONAL ORGANIZATION, MASTERS, MATES AND PILOTS OF AMERICA,
WEST COAST LOCAL No. 9O
In the Matter of OCEANIC & ORIENTAL NAVIGATION COMPANY-and
NATIONAL ORGANIZATION, MASTERS, MATES AND PILOTS OF AMERICA,
WEST COAST LOCAL NO. 90
In the Matters of AMERICAN-HAWAIIAN STEAMSHIP COMPANY, OCEANIC
ORIENTAL NAVIGATION COMPANY, AND WILLIAMS STEAMSHIP
CORPORATION and NATIONAL ORGANIZATION, MASTERS, MATES &
PILOTS OF AMERICA, WEST COAST LOCAL No. 90
Cases Nos. CD28, C--0'39, R-61, R-60, and R-63. Decided
April 19, 19,38
Water Transportation Industry-Collective Bargaining: charges of refusal
not sustained , complaint dismissed , decision in representation cases amended,
and certification of representatives set aside.
Mr. Bertram Edises', for the Board.
Brobeek, Phleger cO Harrison, by Mr. Moses Laskey, of San Fran-
cisco, Calif., for the respondents.
Mr. Harry A. Sellery, Jr., of counsel to the Board.
DECISION
AMENDMENT TO DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon separate charges duly filed by National Organization, Mas-
ters, Mates and Pilots of America, West Coast Local No. 90, herein
called the Union, the National Labor Relations Board, herein called
the Board, by Alice M. Rosseter, Regional Director for the Twentieth
Region (San Francisco, California), duly issued and served its com-
plaint dated July 29, 1937, against the respondents, American-
Hawaiian Steamship Company, San Francisco, California, herein
called the American-Hawaiian, and Oceanic & Oriental Navigation
678
DECISIONS AND ORDERS 679
Company, San Francisco, California, herein called the Oriental, al-
leging that the respondents had engaged in and were engaging in
unfair labor practices affecting commerce within the meaning of
Section 8 (1) and (5) and Section 2 (6) and (7) of the National
Labor Relations Act, 49 Stat. 449, herein called the Act. In respect
to the unfair labor. practices, the complaint alleged in substance
(1) that the Board, pursuant to Section 9 (c) of the Act and Ar-
ticle III, of National Labor Relations Board Rules and Regulations-
Series 1, as amended, on December 12, 1936, found that the licensed
deck officers employed as such on the vessels owned and operated by
the respondents constitute a unit appropriate for the purposes of
collective bargaining, within the meaning of Section 9 (b) of the
Act, that the Union had been designated by a majority of the licensed
deck officers employed by the respondents as their collective bar-
gaining representative, that it was therefore the exclusive bargaining
representative of all, such officers, and that the Board had certified
the Union as such; 1 and (2) that about January 23, 1937, and at all
times thereafter, the respondents, and each of them, refused to bar-
gain collectively with the Union as the exclusive representative of
their licensed deck officers.
On August 9,1937, the respondents filed their answer in which they
denied the substantial allegations of the complaint, except those
relating to their corporate existence and relationship. The respond-
ents further affirmatively alleged in substance (1), that the hearing
on August 6, 1936, in the cases in which the Board issued its cer-
tification was terminated pursuant to a stipulation, that the stipula-
tion provided for an election to be held under the Board's auspices
and in accordance with rules of procedure to be laid down by
it or its agents, and that if the Union was designated by a majority
of such officers and the Board so certified officially, then the respond-
ents would recognize the Union as the sole bargaining representative
of the licensed deck officers employed as such on their vessels; (2)
that about September 10, 1936, the Regional Director issued a notice
of election which was distributed to all such officers; (3) that about
September 11, 1936, T. G. Plant, vice president of the American-
Hawaiian and in charge of all the respondents' vessels, prepared and
1 Matters of American,-Hawavian Steamship Compangj, Oceanic & Oriental Navigation Com-
pany, and Williams Steamship Corporation and National Organization , Masters, Mates f
Pilots of America, West Coast Local No. 90, 2 N. L. R B 424. This certification did not
include the licensed deck officers on the Oriental' s nine vessels operating between ports on
the Pacific Coast and Australasia. Such vessels were not involved in that proceeding, and
are not involved in this proceeding.
It was stipulated at the hearing in this proceeding that Williams Steam ship Corpora-
tion, a wholly owned subsidiary of the American -Hawaiian , has been dissolved since the
conclusion of the representation proceeding , and-its assets , including its vessels , trans-
ferred to the American -Hawaiian , which now owns and operates such vessels.
80618-38-VOL VI44
680 NATIONAL LABOR RELATIONS BOARD
delivered to all such officers, the Regional Director, and the Union,
a notice stating in part as follows :
The wish of a majority of those eligible will determine the
election result; that is, if a majority of those eligible to vote ask
to be represented by the Masters, Mates and Pilots then that or-
ganization will represent all of the Deck Officers for the purpose
of collective bargaining. If a majority do not vote for the
Masters, Mates and Pilots then none of the licensed deck officers
will be represented by that organization for the purpose of
collective bargaining.
(4) that no objection to the notice or its form was made by the
Regional Director or anyone else; (5 ) that thereafter the Regional
Director issued her Intermediate Report on the conduct of the ballot ;
(6) that thereafter the respondents excepted to the report in that it
failed to include any reference to the conditions upon which the
election was held; (7) that thereafter the Board certified the Union
as the sole bargaining representative of the licensed deck officers;
and (8) that the Board's certification is invalid and void. The answer
concluded by a motion to dismiss the complaint. The Trial Examiner
did not rule on this motion. The motion will be disposed of by our
order in these cases.
Pursuant to the notice of hearing, a hearing was held in San
Francisco, California, on August 11 and 12, 1937, before Clifford D.
O'Brien, the Trial Examiner duly designated by the Board. The
Board and the respondents were represented by counsel. Full oppor-
tunity to be heard, to examine and cross-examine witnesses, and to
introduce evidence bearing upon the issues was afforded to all parties.
During the course of the hearing, the Trial Examiner made several
rulings on motions and on objections to the admission of evidence.
The Board has reviewed such rulings of the Trial Examiner and
finds that no prejudicial errors were committed. The rulings are
hereby affirmed. After the hearing, counsel for the respondents sub-
mitted a brief to the Trial Examiner in behalf of the respondents.
On September 2, 1937, the Trial Examiner duly filed his Interme-
diate Report, which was served upon the parties. He found that the
respondents had engaged in and were engaging in unfair labor prac-
tices affecting commerce, within the meaning of Section 8 (1) and
(5) and Section 2 (6) and (7) of-the Act, and recommended that the
respondents cease and desist from these violations, and that the
respondents bargain collectively with the Union. Counsel for the
respondents filed exceptions to the. Intermediate Report and the con-
duct .of the hearing and a brief in behalf 'of the respondents. 'We
have considered the exceptions to the Intermediate Report and the
conduct of the hearing and the briefs submitted, but, save for the
DECISIONS AND ORDERS 681
exceptions which are consistent with the findings and conclusions set
forth below, we find the exceptions to be without merit.
Upon the entire record in the cases, the Board makes the following
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENTS
American-Hawaiian Steamship Company, incorporated in New
Jersey, operates steam vessels and motorships for the transportation
of freight between the Pacific Coast ports of Los Angeles, Oakland,
and San Francisco, California, Astoria and Portland, Oregon,,,and
Seattle and Tacoma, Washington, and the Atlantic Coast ports of
Charleston, South Carolina, Norfolk, Virginia, Baltimore, Mary-
land, Philadelphia, Pennsylvania, Port Newark, New Jersey, New
York City, and Boston, Massachusetts, and between the said Pacific
Coast ports and Puerto Rico. In twelve ports it has offices at which
it receives and delivers cargo, and it employs agents on a commis-
sion basis at others. In addition, it has offices in four interior cities,
and agents in Liverpool, England, and Honolulu, Territory of
Hawaii.
Oceanic & Oriental Navigation Company, incorporated in Dela-
ware, is a corporation in which 50 per cent of the capital stock is
owned by the American-Hawaiian. The Oriental owns 17 vessels,
and eight of its vessels are operated by the American-Hawaiian, as its
managing agent, between Pacific Coast ports and the Orient. It is
engaged in the transportation of freight between ports in the United
States and foreign countries.
II. THE UNION
National Organization, Masters, Mates and Pilots of America,
West Coast Local No. 90, is a labor organization , affiliated with the
American Federation of Labor . It was organized in 1933, and its
jurisdiction includes Pacific Coast ports from Nome, Alaska, to
San Diego , California.
III. THE UNFAIR LABOR PRACTICES
A. The alleged refusal to bargain collectively
On December 12, 1936, following a hearing on August ^ 6, 1936, the
Board issued its decision and certification of representatives certify-
ing, as stated above, that the Union was the , exclusive representative
for the purposes of collective bargaining in respect to rates of pay,,
wages; hours of employment, and other conditions , of employment of
682 NATIONAL LABOR RELATIONS BOARD
the licensed deck officers employed as such on the vessels owned and
operated by the respondents.
At the hearing in those cases, a stipulation was entered into by
the parties thereto in respect to the holding of an election. The
terms of the stipulation were as follows :
That there be an immediate election under the auspices of the
National Labor Relations Board, in accordance with the rules
of procedure to be laid down or determined by the Board, or
its agent; and it,is agreed, on behalf of the companies ... that
if . . . Local No. 90 of the Masters, Mates and Pilots, is desig-
nated by a majority of the deck officers of these companies, or
any of them, which the Board shall certify is a fact officially,
the company will recognize the union as the agent of their deck
officers for the purpose of collective bargaining.
Thereafter the Board authorized the Regional Director to conduct
an election by secret ballot of the licensed deck officers employed on
vessels owned and operated by the respondents.
Prior to the election and on August 14 and 19, 1936, represent-
atives of the respondents and the Union attended conferences at the
Regional Director's office at which details for the conduct of the
election and the form of the notice of election to be issued by the
Regional Director were discussed. There is some discrepancy be-
tween the testimony of the witnesses for the respondents and for
the Union concerning the position adopted by the Regional Director
in respect to the stipulation. At these conferences the respondents
contended that the correct interpretation of the phrase, "majority
of the deck officers", in the stipulation was that a majority of those
eligible to vote was required for certification by the Board. The
notice of election does not contain the phrase, "majority of the deck
officers", nor any interpretation of it.
The testimony is uncontroverted, however, that it was subse-
quently agreed that the respondents would forward a copy of the
notice of election to each of their vessels for exhibition to the li-
censed deck officers. In a letter dated September 10, 1936, the Re-
gional Director forwarded to Plant, vice president of the American-
Hawaiian and operating manager for the respondents, a typewritten
copy of the notice of election.
In a letter dated September 11, 1936, and signed by Plant, copies
of the typewritten notice of election were forwarded to the masters
of the vessels owned and operated by the respondents. Plant's letter
instructed each master to give the licensed deck officers on that vessel
an opportunity to read the letter and the notice.
We have previously quoted the extract' from Plant's letter which
appears in the respondents' answer and in which it is stated that the
DECISIONS AND ORDERS 683
wish of the majority of those eligible will determine the result of
the election. Plant testified that it was agreed that he would prepare
a letter to the masters of the respondents' vessels which would supple-
ment the notice of election; and that he was to send copies to the
Regional Director and E. B. O'Grady, secretary of the Union, who
said they would advise him immediately if the letter was not in
accordance with the understanding reached at the conferences as to
the interpretation of the stipulation. Plant mailed a copy of his
letter to the Union and the Regional Director. According to Plant's
testimony, about September 11, 1936, by telephone he asked the
Regional Director if she had received a copy of his letter, and if it
set forth the understanding correctly. The Regional Director stated
that she had received a copy of his letter, and that it was correct.
He stated that all masters whom he had interviewed had received a
copy of his letter and had made it available to the officers serving
under them.
Following the election the Regional Director filed an Intermediate
Report, which was duly served upon the parties. With respect to the
election the Regional Director reported as follows :
Total number eligible to vote____________________________ 222
Total votes cast for the Union --------- ----------------- 106
Total votes cast against the Union____________________ 05
Total votes challenged___________________________________ 2
203
The Union thus received a majority of the votes cast, but not the
votes of a majority of those eligible to vote.
Since the Union received a majority of the votes cast, the Board
on December 12, 1936, issued a decision and certification of representa-
tives certifying the Union. As a precedent for its decision and
certification of representatives, the Board cited Matter of R. C. A.
Manufacturing Company, Inc. and United Electrical & Radio Work-
ers of America,2 in which the Board ruled that in Section 9 (a) of
the Act the phrase, "majority of the employees", refers to a majority
of the eligible employees voting in an election, and that the organiza-
tion receiving a majority of the votes cast is to be certified as the
exclusive representative.
Following the Board's decision and certification of representatives,
the Union in two letters dated December 23, 1936, and May 22, 1937,
respectively,3 requested the respondents to bargain collectively with
it. In two letters dated January 6 and June 9, 1937, respectively 4
the respondents refused to do so. They stated that the ground for
2 2 N. L R B. 168.
2 Board Exhibit Nos. 7 and 9, respectively
4 Board Exhibit Nos. 8 and 11, respectively.
684 NATIONAL LABOR RELATIONS BOARD
their refusal was the invalidity of the Board's decision and certifica-
tion of representatives. As reason for its invalidity they stated that
it was contrary to the stipulation and the notice. The January 6
letter stated that copies of the notice of September 11, 1936, had been
promptly given to the Regional Director and the Union and that
neither had raised any objection.
As we indicated in the decision in the representation cases, we are
of the opinion that the phrase in the stipulation, "designated by a
majority of the deck officers", should, in the absence of other con-
siderations, be interpreted to mean a majority of the deck officers
voting.
We do not feel that this interpretation can be maintained in these
cases, however, in view of the respondents' letter of September 11,
1936. Article IV, Section 1 (b), of National Labor Relations Board
Rules and Regulations-Series 1, as amended, designates the Regional
Director as the Board's agent to investigate concerning the repre-
sentation of employees, in accordance with Section 9 (c) of the Act.
While the Regional Director was acting as such agent she received
a copy of this letter, and stated that it was correct. Her failure to
object to the language of the letter under the circumstances must
be deemed to constitute assent of the Board to it. The facts concern-
ing the distribution of the respondents' letter, its receipt by the
Regional Director, and her agreement to it were not before the Board
at the time it issued the decision and certification of representatives.
With such facts now in the record, we find it necessary to dismiss
the complaint, to amend the decision in the representation cases, and
to, set aside the certification of representatives.
Our conclusion that the respondents have not refused to bargain
collectively, within the meaning of the Act, is based on such evidence
as appears in the record. It does not preclude the possibility that
new evidence or another election might establish an obligation on the
part of the respondents to negotiate with the Union as the exclusive.
representative of their employees in the appropriate unit.
CONCLUSIONS OF LAW
Upon the basis of the foregoing findings of fact and upon the
entire record in both representation and complaint cases, the Board
makes the following conclusions of law:
1. The operations of the respondents, American-Hawaiian Steam-
ship Company and Oceanic & Oriental Navigation Company, occur
in commerce, within the meaning of Section 2 (6) of the Act.
2. National Organization, Masters, Mates and Pilots of America,
West Coast Local No. 90, is a labor organization, within the meaning
of Section 2 (5) of the Act.
DECISIONS AND ORDERS 685
3. National Organization, Masters, Mates and Pilots of America,
West Coast Local No. 90, is not the exclusive representative for the
purposes of collective bargaining in respect to rates of pay, wages,
hours of employment, and other conditions of employment of the
licensed deck officers employed as such on the vessels owned and
operated by the respondents.
4. The respondents have not engaged in and are not engaging in
unfair labor practices, within the meaning of Section 8 (1) and
(5) of the Act.
ORDER
Upon the basis of the foregoing findings of fact and conclusions,
of law, and pursuant to Section 10 (c) and (d) of the National Labor
Relations Act, the National Labor Relations Board hereby amends
its decision of December 12, 1936, in the Matters of American-
Hawaiian Steamship Company, Oceanic & Oriental Navigation
Company, and Williams Steamship Corporation and National
Organization, Masters, Mates cC Pilots of America, West Coast Local
No. 90, supra, by striking therefrom the last sentence of Section V
of the findings of fact and the last paragraph of the conclusions of
law therein.
It is further ordered that the Board's Certification of Representa-
tives heretofore made in the aforesaid cases be, and it hereby is,
set aside.
And it is further ordered that the complaint be, and it hereby is,
dismissed.