Lihue Plantation Co., Ltd.

National Labor Relations Board - Board Decisions

Jan 8, 1940

19 N.L.R.B. 130 (N.L.R.B. 1940)

In the Matter of LIHUE PLANTATION COMPANY, LTD. and AHIIHINI
TERMINAL AND WATERFRONT WORKERS' ASSOCIATION, LOCAL No.
21744
In the Matter of LIHUE PLANTATION COMPANY, LTD. and INTERNA-
TIONAL LONGSHOREMEN 'S AND WAREHOUSEMEN 'S UNION, LOCAL No.
1-35
Cases Nos. R-1590 and R-1591, respectively.Decided January 8,1940
Stevedoring Industry-Investigation of Representatives : controversy concern-
ing representation of employees ; rival organizations ; employer refuses to recog=
nize either organization until determination of which represents employees in
appropriate unit- Unit Appropriate for Collective Bargaining : prior agreement
covering regular terminal employees and casuals ; casuals constitute integral
part of stevedore operations ; inclusion of casuals , working foremen , and em-
ployees who devote less than half their time to clerical work ; exclusion of
supervisory employees above rank of working foremen, employees who devote
more than half their time to clerical work, and timekeepers-Election •Ordered:
eligibility of casuals limited.
Mr. William A. Babcock, Jr., for the Board.
Smith, Wild, Beebe d Cades, by Mr. Arthur E. Smith, of Honolulu,
T. H., for the Company.
Mr. R. F. McCarthy, of Honolulu , T. H., for Local No. 21744.
Mr. Louis E. Welch, of Honolulu , T. H., for the I. L. W. U.
Mr. Albert J. Hoban, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
On July 14, 1938, and June 1, 1939, Ahukini Terminal and Water-
front Workers' Association, Local No. 21744, herein called Local No.
21744, affiliated with the American Federation of Labor, and Inter-
national Longshoremen's & Warehousemen's Union, Local No. 1-35,
Unit 2, herein called the I. L. W. U., affiliated with the Congress of
Industrial Organizations, respectively, filed with the Regional Di-
rector for the Twentieth Region (San Francisco, California) separate
petitions, alleging that questions affecting commerce had arisen con-
19 N. L. R. B., No. 19-
130
. LIHT E PLANTATION COMPANY, LTD. 131
cerning the representation of employees of The Lihue Plantation
Company, Limited,' Kauai, Territory of Hawaii, herein called the
Company, and requesting an investigation and certification of repre-
sentatives pursuant to Section 9 (c) of the National Labor Relations
Act, 49 Stat. 449, herein called the Act.2
On July 31, 1939, the National Labor Relations Board, herein called
the Board, acting pursuant to Section 9 (c) of the Act and Article
III, Section 3, and Article II, Section 10 (c) (2), of National Labor
Relations Board Rules and Regulations-Series 2, ordered an investi-
gation in each case and authorized the Regional Director to conduct
it and to provide for an appropriate hearing upon due notice and
further ordered that the cases be consolidated for the purposes of
hearing.
On September 21, 1939, the Regional Director issued a notice of
hearing, copies of which were duly served upon the Company, upon
Local No. 21744, and upon the I. L. W. U. On September 27, 1939,
the Regional Director issued a notice of postponement of hearing,
copies of which were duly served upon the afore-mentioned parties.
Pursuant to notice, a hearing was held from October 9 to 12, 1939, at
Lihue, Kauai, Territory of Hawaii, before Thomas H. Kennedy, the
Trial Examiner duly designated by the Board. The Board and the
Company were represented by counsel, and Local No. 21744 and the
1. L. W. U., by representatives, all of whom 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 afforded
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 the rulings of the Trial Ex-
aminer and finds that no prejudicial errors were committed. The
rulings are hereby affirmed. On October 23 and November 13, 1939,
the I. L. W. U. and the Company, respectively, filed briefs with the
Board.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
The Lihue Plantation Company, Limited, is a corporation or-
ganized under and existing by virtue of the laws of the Territory of
Hawaii. - It is engaged at Lihue, Island of Kauai, Territory of
Hawaii, in the cultivation and harvesting of sugar cane, the produc-
Incorrectly referred to in the notice of hearing as Lihue Plantation Company, Ltd.
The petition of Local No. 21744 was amended on March 15, 1939, on May 29, 1939,
and at the hearing on October 10, 1939.
132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion of raw sugar and molasses , and the storage , sale, and shipment
of sugar, molasses, and other products.
At the Port of Ahukini, Island of Kauai, the Company owns and
operates a private terminal at which it is engaged in storing, ship-
ping, receiving , and handling cargo and freight for itself and for
other persons and firms on the Island. At the Port of Nawiliwili,
also situated on. the Island of Kauai, approximately 5 miles from the
Port of Ahukini , the Company uses the facilities of a public wharf
for shipping and receiving its own freight and in loading and un-
loading cargo for others . During 1938 the Company handled 106,905
tons of outgoing freight at the Ports of Ahukini and Nawiliwili,
consisting of raw sugar , molasses , pineapples , and general freight.
Except for raw sugar , which is shipped to refineries located in the
United States, all outgoing freight is shipped to ports in the United
States and foreign countries . During the same year , 26,403 tons of
incoming freight, consisting principally of such materials as ferti-
lizer, jute bags, lime, steel , stock feed, and fuel oil, were handled by
the Company . The bulk of the incoming freight handled by the
Company is shipped to Ahukini and Nawiliwili from other ports in
the Territory of Hawaii , from States and Territories of the United
States, and from foreign countries . In its stevedoring operations,
with which this proceeding is concerned , the Company employs ap-
proximately 297 persons.
We .find that the Company in its operations described above, is
engaged in trade, traffic , transportation , and commerce within the
Territory of Hawaii and between the Territory of Hawaii and the
several States of the United States and foreign countries and that
the terminal workers employed by the Company are directly engaged
in such trade , traffic, transportation , and commerce.
H. THE ORGANIZATIONS INVOLVED
Ahukini Terminal and Waterfront Workers' Association, LocalNo.
21744, is a labor organization affiliated with the American Federation
of Labor, admitting to membership all terminal workers at the ports
of Ahukini and Nawiliwili, exclusive of foremen with the right to
hire and discharge and supervisory officials of higher rank.
International Longshoremen's & Warehousemen's Union, Local No.
1-35, Unit 2, is a labor organization affiliated with the Congress of
Industrial Organizations, admitting to membership all persons em-
ployed at terminal work in or about the ports of Ahukiiini and
Nawiliwili, excluding foremen who have the power to hire or dis-
charge and supervisory officials of higher rank than such foremen,
timekeepers, and office workers.
LIHUE PLANTATION COMPANY, LTD.
III. THE QUESTION CONCERNING REPRESENTATION
133
On October 22, 1937, the Company entered into. a written agree-
ment with Ahukini Longshoremen's Industrial Association, herein
called the Association, in which it recognized the Association as the
"sole collective bargaining agency for all its employees at the port
of Ahukini, Kauai, T. H., while engaged in activities coming under
the provisions of the Wagner Act." The agreement was to remain in
effect to September 30, 1938, and from year to year thereafter in the
absence of a written notice of a desire to terminate given by one of
the parties at least 60 days prior to the expiration date. On July 16,
1938, Local No. 21744 notified the Company that it had filed a petition
with the Board requesting an investigation and certification of rep-
resentatives and asked that the Company refrain from renewing any
agreements or entering into new agreements with other labor organi-
zations. More than 60 days prior to the date of the expiration of its
agreement with the Association, the Company notified the Associa-
tion, which had meanwhile obtained a charter from the International
Longshoremen's & Warehousemen's Union as Local No. 1-35, Unit 2,
that the agreement would terminate on September 30, 1938. Since
that date the Company has refused to bargain with Local No. 21744
or with the I. L. W. U. until the Board has determined which organi-
zation represents its employees in an appropriate unit or units.
We find that a question has arisen concerning the representation
of the terminal employees 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
In its stevedoring activities at the ports of Ahukini and Nawili-
wili the Company employs three groups of employees : regular ter-
minal employees who devote their time exclusively to work in and
about the terminals; Lihue Plantation casual employees, herein called
Lihue Plantation casuals, who are engaged principally in agricultural
work on the Company's plantation at Lihue, but spend a substantial
part of their time at stevedore work; and casual labor procured from
the village of Kapaa herein called Kapaa casuals, a group of persons
not otherwise employed by the Company, who assist the regular ter-
minal employees and the Lihue Plantation casuals in loading and
unloading ships.
As amended at the hearing, the petition of the I. L. W. U., alleges
that "all terminal 'employees and Lihue Plantation Casuals who work
in and about the ports of Ahukini and Nawiliwili, exclusive of execu-
tives, office workers, timekeepers, foremen as distinguished from work-
ing foremen or gang leaders, and supervisory employees with the
283030-41-vol. 19=10
134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
right to hire and fire," constitute a unit appropriate for the purposes
of collective bargaining. The petition of Local No. 21744 alleges that
the appropriate unit consists of "all regular terminal employees who
work in and about the ports of Ahukini and Nawiliwili exclusive of
those having the right to hire and fire, and real foremen (as contrasted
with working foremen)." At the hearing, Local No. 21744 further
contended that if the Board should find that Lihue Plantation casuals
should be included within the appropriate unit with regular terminal
employees, then the Kapaa casuals should also be included. The
Company agreed substantially with the contentions of Local No. 21744.
Regular terminal employees.-The Company ordinarily employs for
terminal work at the ports of Ahukini and Nawiliwili approximately
90 regular workers who engage exclusively in longshore work, main-
tenance of terminal facilities, and warehousing. They are able to load
and unload the cargo of approximately 40 per cent of the ships which
stop at Ahukini and Nawiliwili without outside assistance. The regu-
lar terminal employees live in a Company camp adjacent to Ahukini,
but perform no agricultural labor. As noted above, they were covered
by the 1937 contract between the Company and the Association. All
parties agree, and we find, that the regular terminal employees should
be included within the appropriate unit.
The Lihue Plantation Casuals.-Approximately 67 workers Who
perform agricultural labor on Lihue Plantation devote 25 per cent
of their time to assisting the regular terminal employees in loading
and unloading cargo. From January 1 to September 1, 1939, the
Lihue Plantation casuals spent an average of 481 hours on longshore
work. Their assistance is required by the regular terminal employees
on 60 per cent of the ships handled by the Company at b.th ports
and, as noted above, they were covered by the 1937 contract between
the Association and the Company. Under the circumstances we can-
not agree with Local No. 21744 that the Lihue Plantation casuals,
should be excluded from the appropriate unit because they are not
steady workers. We find that the Lihue Plantation casuals are prop-
erly within the- appropriate unit.
Kapaa Casuals.-When the regular terminal employees assisted by
the Lihue Plantation casuals are unable to handle the longshore work
at Ahukini and Nawiliwili, the Company obtains from the village of
Kapaa, Island of Kauai, a number of workers not otherwise employed
by the Company. Since September 1937 the Company has maintained
a list of Kapaa casuals, numbering about 140 names at the time of the
hearing, from which it selects a gang of approximately 35 men who are
transported by the Company from the village to the port when they
are needed. During the first 8 months of 1939 the Kapaa casuals
averaged 91 hours of employment with the Company. When cargo
is being handled the work of the regular terminal employees, the Lihue
LIHUE PLANTATION COMPANY, LTD. 135
Plantation casuals, and the Kapaa casuals is almost identical and all
are paid at the same hourly rate.
According to its terms, the agreement of October 22, 1937, covered
all employees at the port of Ahukini "while engaged in activities com-
ing under the provisions of the Wagner Act." In practice the wages
and hours set forth in the contract were applied to regular terminal
employees, Lihue Plantation casuals, and Kapaa casuals while engaged
in longshore work at either Ahukini or Nawiliwili.
While there is no evidence that either the I. L. W. U. or Local 21744
has attempted to organize the Kapaa casuals, they were covered by the
contract and we believe that they constitute an integral part of the
stevedore labor used by the Company at its terminals. Accordingly
we find that. the Kapaa casuals should be included within the appropri-
ate unit.'
Foremen.-Both unions agree that foremen, as distinguished from
working foremen, and supervisory employees with the right to hire
and discharge should be excluded from the appropriate unit. Clearly
within the class excluded are J. W. Bertrand, port superintendent, and
F. X. Thiel, port captain. However, the I. L. W. U. objected to the
inclusion of Henry Rente, master mechanic, on the ground that he is
the "roundhouse foreman." Rente is in charge of a crew of approxi-
mately eight men who repair locomotives. He performs some of the
more difficult mechanical jobs himself. The record shows that the
Company has hired at least one employee upon Rente's recommenda-
tion. During the period in which the collective bargaining agree-
ment with the Association was in effect, the only foremen not paid time
and a half for overtime were Bertrand, Thiel, and Rente. We find
that the supervisory status of Rente is superior to that of a working
foremen and we shall exclude him from the appropriate unit.
The exclusion of Y. Murakami, truck gang foreman; S. Kama, gen-
eral working foreman; and K. Omoto, tarpaulin' foreman; was also
requested by the I. L. W. U. on the ground that these employees exer-
cise a degree of supervisory authority which distinguished them from
the other working foremen. The record shows that the above-named
employees had no right to hire and discharge or to recommend the
hiring or discharge of employees. Each performs manual labor along
with the employees whose work he directs. There is nothing in the
testimony or in the pay-roll records submitted by the Company which
distinguishes their authority from that of the other working foremen
whom both unions desire to have included. We find, therefore, that Y.
Murakami, S. Kama, and K. Omoto should be included within the
appropriate unit.
"Cf. Matter of Southern California Gas Company and Utility Worker8 Organizing
Committee, Local No. 1.48, 10 N. L. R. B. 1123.
136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Clerks.-During the hearing the parties stipulated that Shigeo
Miyoshi, chief clerk, should be excluded. We find nothing in the
record which would lead us to depart from the desires of the parties
in this respect and we shall exclude Shigeo Miyoshi from the ap-
propriate unit. The I. L. W. U. desires the exclusion of J. Sousa,
S. Ono, Ferdnando de la Cruz, and L. I?apozo, all of whole are
classified by the Company as clerks. The time of these employees
is divided between clerical work and manual labor. Sousa checks
freight at Ahukini. Bertrand, the port superintendent, estimated
that the majority of Sousa's work was office work. One spends 90
per cent of his time doing clerical work at Nawiliwili. De la Cruz
checks freight at Nawiliwili for the Inter-Island Steam Navigation
Company, for whom the Company acts as agent, but is sometimes
recalled to Ahukini to do various jobs. Rapozo, who is used at both
Ahukini and Nawiliwili selling tickets and doing clerical work for
the Inter-Island Company, devotes less than 25 per cent of his time
to stevedoring. There are other employees classified as clerks by
the Company to whose inclusion none of the parties objects. It
appears that clerical employees, as such, were not covered byy the
1937 contract.4 Under the circumstances, all clerks upon the pay
roll of the Company who devote most of their time to office work
shall be excluded from the appropriate unit.
Employees assigned to Standard Oil Company plant.-The I. L.
W. U. desires the exclusionexclusion of S. Ishida and S. Fujii, clerks ; N:
Kashhna, a gas and oil tank tender; and S. Sugibayasi, a clerk and
gas and oil tank tender. These employees are on the pay roll of the
Company but are assigned to work at a plant of the Standard Oil
Company located at the Ahukini terminal. There is no justification
for their exclusion merely because they work upon the property of
another corporation. Except for clerks it would appear that these
employees were covered by the 1937 contract with the Association.
With respect to the clerical employees we shall treat them as we have
treated other employees of the Company designated as clerks. There
is some evidence, however, that at least one of these employees de-
votes most of his time to clerical work. Those employees engaged
at the Standard Oil plant who devote most of their time to clerical
work shall be excluded from the appropriate unit.
Miscellaneous Employees.-The I. L. W. U. desires the exclusion
of Makoto Moroika, the timekeeper. We shall adhere to our practice
of excluding such an employee where one union desires the exclusion.°
* The contract set wage rates for such employees as hatch tenders, winch drivers, jitney
drivers, stevedores, longshoremen , sugar-shute men, and "other employees handling cargo
on steamer days."
GMatter of The Connor Lu,10er S Laud Co. and International 1Poodroorke,:s of Aou;rica,
Local No. 125 (C. I. 0.), 11 N. L. R. B. 776.
LIHUE PLANTATION COMPANY, LTD. 137
The contention of the I. L. W. U. that Modesto Ser2'ano is a camp
boss is.not supported by the evidence. Nor do we believe that Tokiji
Kurosaki, a camp cleaner, should be excluded from the appropriate
unit because he acts as "yard boy" for Bertrand. Both are available
as stevedore workers and as such were covered by the 1937 contract.
We find that Modesto Serrano and Tokiji Kurosaki should be in-
cluded within the appropriate unit.
We find that all regular terminal employees, Lihue Plantation
casuals, and Kapaa casuals employed by the Company at the ports
of Ahukini and Nawiliwili, including working foremen and em-
ployees who devote less than half their time to clerical work, but
excluding supervisory employees above the rank of working foreman,
employees who devote more than half their time to clerical work, and
the timekeeper, constitute 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.
V. THE DETERMINATION OF REPRESENTATIVES
At the date of the hearing there were approximately 89 regular
terminal workers, excluding Bertrand, Thiel, and Rente, employed
by the Company. The names of 46 of these regular terminal workers
appeared on a list of its members introduced in evidence by Local
No. 21744. The names of 30 regular terminal employees appeared
on authorization cards introduced by the I. L. W. U. During the
hearing, the Company furnished a list of 67 Lihue Plantation casuals
who had been employed at longshore work between January 1 and
September 1, 1939. Local No. 21744 introduced no evidence of mem-
bership in this group, but the I. L. W. U. introduced authorization
cards purportedly signed by 58 Lihue Plantation casuals. Neither
organization offered evidence of membership among the Kapaa
casuals.
We find that the question concerning representation which has
arisen can best be resolved by the conduct of an election by secret
ballot. However, among the employees other than regular terminal
employees, and particularly among Kapaa casuals, there are such
great differences in the number of hours worked that we feel it
necessary to limit participation in the election to those casuals who
have a substantial interest, in the conditions of employment at
Ahukini and Nawiliwili. Accordingly, those employees eligible to
vote in the election shall be the regular terminal employees within
the appropriate unit employed by the Company during the pay-roll
138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
period next preceding the date of this Direction and those Lihue
Plantation casuals and Kapaa casuals who were employed by the
Company at longshore work for at least 200 hours from January 1
to September 1, 1939.
Upon the basis of the above findings of fact and the entire record
of the case, the Board makes the following :
CONCLUSIONS OF LAW
1. A question affecting commerce has arisen concerning the repre-
sentation of employees of the Lihue Plantation Company, Ltd., Lihue,
Island of Kauai, Territory of Hawaii, within the meaning of Section
9 (c) and Section 2 (6) and (7) of the National Labor Relations
Act.
2. The regular terminal employees, the Lihue Plantation casuals
and the Kapaa casuals employed by the Company at the ports of
Ahukini and Nawiliwili, including working foremen and employees
who devote less than half their time to clerical work, but excluding
supervisory employees above the rank of working foremen, clerks
who devote more than half their time to clerical work, and the time-
keeper, constitute a unit appropriate for the purposes of collective
bargaining, within the meaning of Section 9 (b) of the 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, it is hereby
DIRECTED that, as part of the investigation authorized by the Board
to ascertain representatives for the purposes of collective bargaining
with The Lihue Plantation Company, Limited, Lihue, Island of
Kauai, Territory of Hawaii, an election by secret ballot shall be con-
ducted as early as possible but not later than 45 days from the date
of this Direction of Election under the direction and supervision of
the Regional Director for the Twentieth 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 regular termi-
nal employees employed by The Lihue Plantation Company, Lim-
ited, during the pay-roll period next preceding the date of this Direc-
tion, including working foremen, employees who devote less than
half their time to clerical work, employees who did not work during
such pay-roll period because they were ill or on vacation, and employees
who were then or have since been temporarily laid off, and among all
Lihue Plantation casuals, and Kapaa casuals, who were employed by
LIHUE PLANTATION COMPANY, LTD. 139
the Company at longshore work for at least 200 hours from January
1 to September 1, 1939, but excluding supervisory employees above the
rank of working foremen, employees who devote more than half their
time to clerical work, the timekeeper, and any employees who have
since quit or been discharged for cause, to determine whether they
desire to be represented by Ahukini Terminal & Waterfront Workers'
Association, Local No. 21744, affiliated with The American Federation
of Labor, or by International Longshoremen's & Warehousemen's
Union, Local 1-35, Unit 2, affiliated with the Congress of Industrial
Organizations, for the purposes of collective bargaining, or by neither.