E. W. Coslett & Sons

National Labor Relations Board - Board Decisions

Jan 15, 1959

122 N.L.R.B. 961 (N.L.R.B. 1959)

E. W. COSLETT & SONS 961
confusion and fear of reprisal which rendered a free election im-
possible.'
The Regional Director recommended that the objections be over-
ruled. He concluded that Feyler's conduct was not of such an
aggravated nature that it created a general atmosphere of fear of
reprisal rendering a free expression of choice of a representative
impossible.
The Employer, in its exceptions, contends that the findings of the
Regional Director are not supported by the evidence. In support
of its position, it refers to one of several affidavits which it sub-
mitted to the Regional Director purporting to show that four of
the voting employees were intimidated by Feyler's remarks.
We find no merit in the contention of the Employer. In evaluat-
ing preelection conduct, the Board concerns itself with whether the
specific act reasonably tends to interfere with a free choice of rep-
resentatives, and not with the subjective reaction of employees to
the alleged interference, and it accords less weight in this connec-
tion to conduct by a nonparty to the case than to conduct of the
parties.2 In the circumstances of this case, we find, contrary to the
Employer, that Feyler's remarks did not engender an atmosphere
of confusion or fear of reprisal which interfered with the election.'
Accordingly, we overrule the Employer's objections as recommended
by the Regional Director.
As we have found that the Employer's objections do not raise
material or substantial issues affecting the conduct of the election,
we hereby overrule them. Because the Petitioner has obtained a
majority of the valid votes cast, we shall certify it as the exclusive
representative of the employees in the stipulated unit.
[The Board certified Local 25, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of America as
the designated collective-bargaining representative of the employees
in the appropriate unit described in paragraph 4.]
It is not contended that Feyler was an agent of either party to this proceeding.
s Orleans Manufacturing Co., 120 NLRB 630; Shovel Supply Company, 118 NLRB 315.
$ The Employer requests a hearing if the Board finds that its exceptions raise substan-
tial and material factual issues. We find that no such issues are raised by the exceptions.
Harry Coslett, E. W. Coslett and Edward W. Coslett, Jr., d/b/a
E. W. Coslett & Sons and Local 1332, International Long-
shoremen 's Association (Independent ). Case No. 4-RC-3685.
January 15, 1959
DECISION AND DIRECTION OF ELECTION
Upon it petition duly filed under Section 9(c) of the National
-Labor Relations Act, a hearing was held before Seymour X. Alsher,
122 NLRB No. 115.
505395-59-vol. 122-62
962 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
hearing officer. The hearing officer's rulings made at the hearing
are free from prejudicial error and are hereby affirmed.
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 organization involved claims to represent certain
employees of the Employer.
3. The Employer executed a contract covering the employees
herein involved on July 1, 1957, effective from May 16, 1957, until
September 30, 1959. The contract contains a union-security clause,
and names as parties the Employer and "the employees represented
by the Brotherhood." It was negotiated and signed, for the Broth-
erhood, by the general chairman, Reading Company Systerii Board
of Adjustment, a subordinate unit of the Brotherhood herein called
the System Board, and by the chairman of the Protective Commit-
tee of Local Lodge 6297. The Brotherhood has been in continuous
compliance with Section 9(f), (g), and (h) of the Act; the Sys-
tem Board took no steps to comply until after the petition was filed,
on July 25, 1958, and achieved compliance on August 15, 1958;
Local Lodge 6297 has never been in compliance. The Intervenor
contends that the petition should be dismissed because (a) its filing
violates an alleged "no raid" agreement to which the Petitioner
and the Intervenor are parties, and (b) it is barred by the Inter-
venor's contract with the Employer.
As to (a), it is established Board policy that a union's noncompli-
ance with a no-raid agreement, if one exists, is not a reason for
dismissal of its petition for representation. We find that sufficient
reason has not been advanced to justify a departure from that pol-
icy. Accordingly, the motion to dismiss because of the alleged no-
raid agreement is denied 2
As to (b), the Petitioner contends that the contract is not a bar
because of noncompliance at all relevant times with Section 9(f),
(g), and (h) of the Act by the System Board and Local Lodge
6297, both of which executed the contract, which contains a union-
security clause. The Intervenor contends that Local Lodge 6297 is
merely an "administrative arm" of the Brotherhood and is there-
fore not required to comply. The record shows, however, that Lo-
cal Lodge 6297 is a local union of the Brotherhood, organized under
1 The request of the Intervenor , Brotherhood of Railway and Steamship Clerks , Freight
Handlers, Express and Station Employees , AFL-CIO, herein called the Brotherhood, for
oral argument is denied . The record , including the briefs , adequately presents the issues,
and the positions of the parties.
2 North American Aviation , Inc., 115 NLRB 1090, footnote 3, and Los Angeles Period
Furniture Company, 43 NLRB 327. See also The Steck Company, 122 NLRB.12.
E. W. COSLETT & SONS 963
the Brotherhood's constitution. Local Lodge 6297 has its own offi-
cers, admits employees to membership and, through the chairman
of its Protective Committee, deals with the Employer regarding
working conditions, participating in contract negotiations. It is
therefore a labor organization affiliated with the Brotherhood, and
is required to comply with Section 9(f), (g), and (h) of the Act.
As the contract contains a union-security clause, and as neither the
Local, nor the System Board, whose agents negotiated and signed
the contract, have achieved compliance within an appropriate time
as set forth in Keystone Coat, Apron d Towel Supply Company,
et al., 121 NLRB 880, we find that the contract is not a bar and
the Intervenor's motion to dismiss is denied.
4. The Employer is engaged in loading and unloading freight,
and transferring it from railroad cars to piers, warehouses, or onto
lighters for transmission to ships lying offshore. The Petitioner
requested a unit consisting, in substance, of all employees engaged
in loading, unloading, and handling freight and in duties con-
nected therewith. The Employer and Intervenor are in substan-
tial agreement therewith except that they would include gang
bosses, whom the Petitioner would exclude as supervisors.
Foreman Sullivan, who the parties agree is a supervisor, inter-
views all applicants for jobs and assigns a number to those whom
he approves for employment. Some of these employees are as-
signed as regular members of working gangs. Each gang is di-
rected by a gang boss. Fifty to sixty employees, including the
regular gang members, report for work each morning, to fill from
30 to 35 jobs. Depending on the amount of work to be done, Sulli-
van designates which gang bosses are to work their gangs that day.
Each gang boss so designated then selects from those who have
reported that day such of his regular men as are present plus any
others needed to substitute for absent regulars. The gang boss
uses his own discretion in choosing which employees will work
with his gang as substitutes, subject only to Sullivan's right to
disapprove any employee he considers not to be a good worker.
In view of the considerable discretion exercised by the gang bosses
in hiring substitutes for their regular men, we find that they are
supervisors, and exclude them from the unit.
The following employees of the Employer constitute a unit ap-
propriate for purposes of collective bargaining within Section 9(b)
of the Act:' All employees engaged in loading, unloading, trans-
ferring, storing, piling, stowing, bagging, and other miscellaneous
8 The unit description conforms with that requested by the Petitioner and is the same
unit, in substance, as that which appears in the contract and is requested by the Inter-
venor. The Petitioner would exclude sweepers, clerks (other than office clerical em-
ployees ), and checkers . As the Employer at present has no such employees , we do not
pass on their unit placement.
964 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
duties in connection with the loading, unloading and transferring of
railroad cars, and lighters, and also the use of mechanical equip-
ment in connection therewith, in the Employer's operations at Port
Richmond Terminal and Piers, Philadelphia, Pennsylvania; ex-
cluding gang bosses, mechanics,4 office clerical employees, guards,
professional employees, and supervisors as defined in the Act.
5. The Petitioner contended that all employees who worked at
least 700 hours during the year preceding the hearing, which was
held in mid-September 1958, should be eligible to vote in the election.
The Employer and the Intervenor agree to the 700-hour require-
ment but contend that the period covered should be from October 1,
1957, to September 30, 1958, to conform with the contract qualifi-
cation for 1 week's vacation pay. The Employer proposed also that
in addition to the 700 hours, each voter must have worked at least
20 hours a month since September 30, 1958. The Intervenor would
require that each voter must have worked 20 hours a month since
becoming entitled to vacation pay.
The eligibility requirement of 700 hours conforms with that pre-
viously used by the Board in elections among employees in a re-
lated industry.5 We agree with the Employer and Intervenor that
the period covered should conform with that provided in the con-
tract for entitlement to vacation pay. We also agree with the
Employer and the Intervenor as to the desirability of a further
requirement which will limit eligibility to those who have con-
tinued to perform some work for the Employer since September 30,
1958.6 We believe that the proposal advanced by the Employer is
adequate for this purpose, and therefore provide that all voting
employees, in addition to working for the Employer at least 700
hours during the period October 1, 1957, to September 30, 1958,
must have worked at least 20 hours in each full month between
September 30, 1958, and the date of this Direction.
[Text of Direction of Election I omitted from publication.]
4 The excluded mechanics are those the Employer hires from outside on a contract
basis. One employee , Ben Clark , works part time servicing and driving forklift trucks
and jitneys , and part time as a gang boss. As he regularly performs the duties of gang
boss and is regarded as such by all the parties, we shall exclude him as supervisor.
5 New York Shipping Association , etc., 107 NLRB 364, 374.
6 See Seaboard Terminal and Refrigeration Company, 109 NLRB 1094, 1096.
We find no merit in the Petitioner 's contention that the name of the Intervenor may
not appear on the ballot because the Intervenor is allegedly a company -dominated union.
This is in effect an unfair labor practice contention . The Board does not litigate such
contentions in a representation proceeding , and no charges based on such a contention
have been filed. Nor does the fact that Local Lodge 6297 has not complied with Sec-
tion 9 ( f), (g), and (h) prevent our including the name of the Brotherhood on the ballot.
Concrete Joists & Products Co., Inc., 120 NLRB 1542 . However, if the Brotherhood wins
the election , it will be certified only if Local Lodge 6297 has achieved compliance prior
to the date when certification would issue . Intermedico Corporation , 121 NLRB 1596.
Absent such compliance , the Board will certify only the arithmetical results of the election.