Mac Towing, Inc.; Southern Ohio Towing Company, Inc.; American Barge Line Company; Inland Tugs Company, Inc.; American Commercial Lines, Inc.

National Labor Relations Board - Board Decisions

Jul 27, 1982

262 N.L.R.B. 1331 (N.L.R.B. 1982)

MAC TOWING, INC
Mac Towing, Inc.; Southern Ohio Towing Company,
Inc.; American Barge Line Company; Inland
Tugs Company, Inc.; American Commercial
Lines, Inc.; et al. and Seafarers International
Union of North America, Atlantic, Gulf, Lakes
and Inland Waters Distirct, Seafarers Interna-
tional Union of North America, AFL-CIO, Pe-
titioner. Case 9-UC-174
July 27, 1982
DECISION AND ORDER
BY MEMBERS JENKINS, ZIMMERMAN, AND
HUNTER
Upon a unit clarification petition duly filed by
the Petitioner under Section 9(b) of the National
Labor Relations Act, as amended, a hearing was
held on November 1, 13, 14, 15, 16, and 20 and
December 5, 1979, before Hearing Officer Mark M.
Reynolds.' On December 29, 1981, the Regional
Director for Region 9 issued an order transferring
this case to the Board for decision. 2 Thereafter,
I By telegram to the Hearing Officer dated November 19, 1979, Inland
Rivermen's Association moved to intervene in this proceeding, but
waived its right to appear at the hearing. This motion to intervene was
granted by the Hearing Officer.
t A review of the background of this case will serve to clarify the pro-
cedural setting of this proceeding, and identify the issues which are pres-
ently before the Board for determination
On February 16, 1979, petitions were filed by Russell H. Pannell, an
individual, in Cases 9-UD-145 (Southern Ohio Towing, Inc.), 9-UD-146
(American Barge Lines Co.), 9-UD-147 (Northern Towing Co.), and 9-
UD-148 (Inland Tugs Company, Inc.). These petitions sought elections in
units of all chief engineers, engineers, assistant engineers, and engineer
trainees on the Employers' boats, represented by the Seafarers Interna-
tional Union of North America, Atlantic, Gulf. Lakes and Inland Waters
District, Seafarers International Union of North America, AFL-CIO.
hereinafter SIUNA. The Petitioner withdrew these petitions on March 8,
1979.
On October 12, 1979, Hal Parnell, T. P. Ward, and Hugh Philpott
fied, respectively, petitions in Cases 9-RD-923, 9-RD-924, and 9-RD-
925. These petitions sought elections in basically the same units of engi-
neers represented by SIUNA as were outlined in the above UD petitions.
On October 30, 1979, SIUNA filed a petition in Case 9-RC-13147
seeking certification in a unit of all unlicensed seamen in the fleet of the
Employers, excluding masters, captains, guards, and supervisors as de-
fined in the Act. Also on October 30, 1979, SIUNA filed a petition in
Came 9-UC-174 seeking unit clarification of a unit not previously certi-
fied consisting of all unlicensed seamen in the fleet of the Employers, ex-
cluding masters, captains, guards, and supervisors as defined in the Act.
In effect, SIUNA filed the UC petition seeking to consolidate units of un-
licensed seamen into one fleetwide unit. On November 2, 1979, SIUNA
filed "Amended Alternative" petitions in Cases 9-RC-13147 and 9-UC-
174, changing the alleged approximate number of employees in the unit
from 300 to 510 and stating that SIUNA desires "unit clarification or al-
ternatively certification under the Act."
The hearing herein was conducted with respect to Cases 9-RD-923, 9-
RD-924, 9-RD-925, 9-RC-13147, and 9-UC-174. On July 16, 1981, in
light of several pending related 8(aX5) allegations, the petitions for decer-
tification were dismissed by the Regional Director for Region 9 because
no question concerning representation exists or may properly be raised
pursuant to the decertification petitions while the 8(a)(5) issues are pend-
ing. During the hearing, SIUNA sought to withdraw the petition in Case
9-RC-13147, stating that "there is no question concerning representation
involved." On July 16, 1981, the Regional Director for Region 9 granted
SIUNA's request to withdraw the petition in Case 9-RC-13147. Conse-
quently, in light of the dismissal of the RD petitions and withdrawal of
262 NLRB No. 168
briefs were filed by the Employers, American
Commercial Lines, Inc., et al.; the Petitioner, Sea-
farers International Union of North America, At-
lantic, Gulf, Lakes and Inland Waters District,
AFL-CIO; and the individual petitioners in Cases
9-RD-923, 924, and 925.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has reviewed the Hearing Officer's
rulings made at the hearing and finds that they are
free from prejudicial error. They are hereby af-
firmed.
Upon the entire record in this case, the Board
finds:
1. The Employers, MAC Towing, Inc., herein-
after MAC; Southern Ohio Towing Company,
Inc., hereinafter SOT; American Barge Line Com-
pany, hereinafter ABL; and Inland Tugs Company,
Inc., hereinafter IT, are engaged in the business of
furnishing interstate transportation of commodities,
goods, and materials on various inland waterways
such as the Ohio and Mississippi Rivers. SOT, IT,
and ABL each derive in excess of $50,000 annual
gross revenue from such operations, and each per-
formed such services in excess of $50,000 for other
employers who in turn are engaged in interstate
transportation.
It is not disputed, and we find, that the Employ-
ers are engaged in commerce within the meaning
of Section 2(6) and (7) of the Act. We further find
that it will effectuate the purposes and policies of
the Act to assert jurisdiction herein.
2. It is not disputed, and we find, that the Peti-
tioner, Seafarers International Union of North
America, Atlantic, Gulf, Lakes and Inland Waters
District, Seafarers International Union of North
America, AFL-CIO, is a labor organization within
the meaning of Section 2(5) of the Act and that the
Petitioner claims to have represented for many
years certain employees of the Employers.
At the hearing the Employers introduced into
evidence a copy of a contract between Inland Ri-
verman's Associaiton of America, hereinafter called
IRA or the Intervenor, and MAC, effective No-
vember 1, 1979, thorough October 31, 1981. This
contract stated that MAC recognizes IRA as "the
exclusive representative and collective bargaining
agency" for all deckhands, utility deckhands,
cooks, trainee engineers and assistant engineers,
employed on three inland vessels of MAC. It con-
tains a union-security clause and a grievance and
the RC petition, the only representation case pending before the Board is
Case 9-UC-174.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
arbitration procedure. It also has provisions regard-
ing wages, hours, health and welfare and pension
benefits, vacation bonuses, and the rights of stew-
ards. The Petitioner, at the hearing, challenged and
refused to stipulate to IRA's status as a labor orga-
nization, calling it a "will of the wisp" organiza-
tion. The Petitioner, however, presented no evi-
dence to refute IRA's status as a labor organization
and in its brief to the Board did not contest IRA's
labor organization status. Accordingly, based on
the absence of evidence that employees do not par-
ticipate in IRA and in viewed of the contract be-
tween IRA and MAC designative IRA as the ex-
clusive collective-bargaining representative of cer-
tain MAC employees, we find IRA to be a labor
organization within the meaning of Section 2(5) of
the Act.3 All of the business entities involved in
this preceding are corporate subsidiaries or affili-
ates of Texas Gas Transmission Corporation. Texas
Gas Transmission Corporation owns 100 percent of
the stock of American Commercial Lines, Inc.,
hereinafter ACL. ACL is an intermediate holding
company consisting of two functionally diverse di-
visions, the Inland Waterways Services Division,
and the Trucking Services Division. All of the Em-
ployers at issue herein are wholly owned subsidiar-
ies of ACL, within the Inland Waterways Services
Division, Barging Grouping. American Commer-
cial Barge Line Company, hereinafter ACBL, one
such wholly owned subsidiary, is the lead company
in the barging group. As the lead company, ACBL
solicits customers, engages in advertising, and con-
tracts with customers. The record indicates that the
only corporate subsidiaries of ACL which were
operating barging equipment at the time of the
hearing and which are subject to this proceeding
are ABL, SOT, IT, and MAC. 4 As discussed in
detail infra, the Petitioner is seeking, inter alia, a
finding that ACL's 1979 acquisition of MAC con-
stituted an accretion to the Employer's operation
and a finding that the existing bargaining units of
ABL, IT, SOT, and MAC should be merged into
one fleetwide unit of all engineering and deck de-
partment employees. The Employers argue against
any finding of a merge of bargaining units, and
contend that the acquisition of MAC was not an
accretion. If a merger is found, the Employers
state, the affected employees should be allowed to
vote on whether or not they wish to be represent-
ed by SIUNA.
3 See N.LR.B. v. Cabot Carbon Company and Cabot Shops. Inc., 260
U.S. 203 (1959).
4We note that on July 20, 1981, ACBL Vice President Robert W.
Kilroy executed an affidavit stating that effective March 31, 1980, ABL
and SOT were merged into IT. In light of the fact that the alleged
merger took place after the close of the hearing, and in view of our ulti-
mate findings herein, we find it unnecessary to pass on the issues raised in
the Employers' affidavit.
As stated, infra, ACL is an intermediate holding
company which owns transportation equipment
such as barges, towboats, and tractors, and leases it
to its subsidiaries. In addition, ACL provides ad-
ministrative, financial, and insurance services to its
subsidiaries. For example, ACL negotiates lines of
credit with banks for the Inland Waterways Serv-
ices Division, loans money to the subsidiaries, and
obtains excess insurance coverage for its subsidiar-
ies. ACL purchases a master health insurance
policy, but each subsidiary company determines the
benefit levels to be granted and the employees to
be covered. ACL, however, does not provide any
other administrative services or operational control
over its subsidiary companies. ACL receives finan-
cial reports from its subsidiaries, but does not re-
ceive reports concerning labor relations, does not
approve hiring and firing of management personnel
in its subsidiaries, and does not approve benefit
levels negotiated by its subsidiaries with the Peti-
tioner or the Intervenor.
ACBL, the lead company, is a subsidiary of
ACL and employs towboat captains, relief cap-
tains, steersmen, pilots, port captains, and port en-
gineers for the four operating subsidiary compa-
nies, ABL, IT, SOT, and MAC. ACBL also em-
ploys crew dispatchers, who provide crews for
vessels operated by companies under contract with
the Petitioner, and barge dispatchers, who coordi-
nate the assignment and movement of barges
moved by the four operating companies and other
companies. ACBL provides personnel, labor rela-
tions, and industrial relations services to the operat-
ing companies, as well as several kinds of adminis-
trative services such as payroll, billing, and collec-
tions. At the time of the hearing, ACL and ACBL
were not, and never have been, parties to a collec-
tive-bargaining agreement with either labor organi-
zation involved in this proceeding.5
ABL, a Delaware corporation and one of the op-
erating subsidiaries of ACL, was incorporated in
1971 to provide towing services under a Tennessee
Valley Authority (TVA) coal contract.6
IT, a Delaware corporation incorporated in
1961, is divided into two operating divisions, the
River Division and the Canal Division, and an in-
tracoastal group of small tugs and boats. The Canal
Division and intracoastal group operate in a re-
stricted area, use smaller towboats, and require
fewer crew members. No engineers work on the
towboats or harbor boats in IT's Canal Division.
5 Accordingly, we find that ACL and ACBL are not employers of em-
ployces that either the Petitioner or the Intevenor represent or seek to
represent.
6 ABL is initial contract with SIUNA was fashioned to account for
escalation of the wholesale price index provided by the TVA contract.
1332
MAC TOWING, INC.
SOT, a Delaware corporation incorporated in
1978, was created when, under an agreement with
the Petitioner, several river vessels from IT and
ABL were transferred to SOT. In 1979. under the
terms of another agreement with the Petitioner, all
of the boats and employees of Northern Towing
Company, Inc., which is no longer an operating
entity, were transferred to SOT, and benefit levels
for SOT were adjusted to a higher level.
MAC existed for many years prior to 1978 as a
closed corporation owned by Captain McKinney
and his family. In August 1979, ACL purchased all
of the stock and boat equipment of MAC. In con-
nection with the purchase, ACL, on behalf of
MAC, voluntarily "assumed" and continued to ad-
minister the existing collective-bargaining contract
between MAC and the Intervenor, IRA, effective
by its terms from November 1, 1978, to October
31, 1981. Under this contract, the Intervenor was
recognized by MAC as the exclusive representative
of MAC's employees in a unit consisting of "all
deckhands, utility deckhands, cooks, trainee engi-
neers and assistant engineers on all vessels owned,
operated or chartered by the company."7 The
MAC-IRA collective-bargaining agreement con-
tains provisions covering a wide range of working
conditions such as wages, hours, union security, a
grievance procedure, health and safety, seniority,
and vacation time.
Prior to 1973, the separate collective-bargaining
agreements between ABL and SIUNA and IT and
SIUNA covered employees in the engineering or
licensed departments and the deck or unlicensed
departments in one single bargaining unit for each
company. In 1973, during contract negotiations
with IT's River Division, SIUNA proposed for the
first time that there be two collective-bargaining
agreements covering separate bargaining units, the
first covering a unit of all engineers, and the
second covering a unit of unlicensed crewmembers,
consisting of deckhands and cooks. 8 The Petitioner
contends that its request for the establishment of
separate bargaining units was based on a 1973
SIUNA national convention resolution providing
that, in order to ease problems involving contract
enforcement, all collective-bargaining contracts
should be standardized. The Petitioner acknowl-
edges that the separation of engineers from other
employees was raised at the sole bequest of the
I During the hearing, all parties stipulated (with the exception or IRA)
that assistant engineers and chief engineers are the same, the former job
title being a holdover from the steam engine days.
I The record shows that the term "unlicensed employees" generally
refers to deckhands, cooks, trainee engineers, and tankermen and that the
term "licensed employees" generally refers to engineers, chief engineers,
and assistant engineers.
SIUNA, and not pursuant to any request or pro-
posal of the Employer.
IT's River Division and SIUNA agreed, in 1973,
to create separate units of "licensed" and "unli-
censed" employees, each covered by separate col-
lective-bargaining agreements. 9 Similarly, the
record indicates that in 1974 ABL and SIUNA en-
tered into two separate collective-bargaining agree-
ments, one covering the licensed engineering de-
partment employees and one covering the unli-
censed deck department employees. The record
also shows that the collective-bargaining contracts
between SOT and SIUNA, effective from May 8,
1978, to April 30, 1981, preserve the separation of
the engineering department from the deck depart-
ment. '
In October 1979. SIUNA and the Employers met
to negotiate new contracts. During these negotia-
tions, SIUNA, for the first time, demanded to bar-
gain with ACBL as the employer, and proposed
the creation of a bargaining unit comprised of all
nonsupervisory vessel employees of any ACL sub-
sidiary company, including MAC, in the Inland
Waterways Service Division, a so-called fleetwide
unit. The Employers refused to agree to SIUNA's
proposals, and the Petitioner thereafter filed the pe-
tition in this proceeding.
In support of a fleetwide bargaining unit, the Pe-
titioner argues that under the Board's Decision in
Moore-McCormack Lines, Inc., 139 NLRB 796
(1962), a fleetwide unit is preferred and favored by
the Board. The Petitioner further argues that a
fleetwide unit would be appropriate in view of the
Employers' common bargaining history, the inte-
grated nature of the operations and labor relations
of the Employers, and the high degree of vessel
and employee interchange among the Employers.
With respect to the Petitioner's contention that
the separate bargaining units of engineering em-
ployees and deck department employees should be
merged into one bargaining unit, the Petitioner
argues that a review of its 1973 effort to standard-
ize all contracts resulted in engineers being placed
erroneously in units of licensed employees, when,
in fact, the engineers should have remained in units
of unlicensed employees. The Petitioner also argues
that engineers share a community of interest with
deck department employees; with the exception of
wage rates, there is a similarity of contractual pro-
visions as to engineering employees and deck de-
g No separate collective-bargaining unit of engineers was created imI
IT's Canal Division because, as noted infra, the Canal Division employs
no engineers.
in When the now defunct Northern Towing Company, Inc.. was cre-
ated in 1977, SIUNA and Northern also entered into separate collective-
bargaining contracts covering units of engineers and deck employees.
1333
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
partment employees; and the existence, since 1974,
of separate contracts for engineers and deck de-
partment employees is of no consequence.
In support of its contention that ACL's purchase
of MAC in 1979 constitutes an accretion to the
Employer's operations, the Petitioner presents a
two-stage argument. First, the Petitioner claims
that a finding of an accretion would be consistent
with the Board's policy of preferring fleetwide
units in the maritime industry and that the exist-
ence of a collective-bargaining agreement between
MAC and IRA is insufficient to justify an excep-
tion to the "fleetwide accretion doctrine." Second,
it argues that there is a substantial degree of inter-
change of vessels and employees between MAC
and ACL's other subsidiary companies.
The Employers argue that the Moore-McCor-
mack case does not mandate the finding of a
fleetwide unit, but, on the contrary, the Board
stated merely that "units of seagoing personnel
should be fleetwide in scope." The Employers
argue that the Moore-McCormack principle has
been mainly applied to seagoing operations, not
inland barging operations. Further, the Employers
argue that it is clear that each ACL subsidiary is a
separate employing entity, and the question of
whether they constitute a single employer is irrele-
vant to a finding that the employees of each consti-
tute appropriate units for bargaining. The Employ-
erq particularly rely on the fact that each individual
employer and SIUNA has a well-established histo-
ry of bargaining in separate units.
The Employers also contend that the engineering
employees constitute an appropriate unit for collec-
tive bargaining, arguing that SIUNA agreed to
create two separate bargaining units in each com-
pany. As set forth above, the Employers specifical-
ly state that engineers and deck employees share an
insufficient community of interests to be included
in the same bargaining unit. The Employers con-
tend that long-established bargaining relationships
should not be disturbed by the Board unless the
unit is repugnant to the Act, and that it has been
long held by the Board that mutual agreement of
the parties is a necessary prerequisite to the Board's
finding a merger of bargaining units.
As to the Petitioner's claim that MAC consti-
tutes an accretion to the Employers' operation, the
Employers argue that, prior to the purchase of
MAC by ACL, MAC employees selected IRA as
their collective-bargaining representative, and to
allow SIUNA to represent MAC's employees
would violate the fundamental labor law principle
that employees have a right to select their own
representative. The Employers further argue that
there is no employee or vessel interchange between
MAC and the other ACL subsidiary companies, a
critical element to finding an accretion.
First, we find that MAC constitutes a separate
appropriate unit for collective bargaining and is not
an accretion to any existing unit. The record shows
that since the acquisition of MAC there has been
no interchange of vessels or employees with other
affiliated companies. As succinctly stated by the
Board in Melbet Jewelry-Orchard Park, 180 NLRB
107, 110 (1969), a case involving the alleged accre-
tion of a retail department store to an existing unit
composed of the employer's two other stores, "we
will not, however, under the guise of accretion,
compel a group of employees, who may constitute
a separate appropriate unit, to be included in an
overall unit without allowing those employees the
opportunity of expressing their preference in a
secret election or by some other evidence that they
wish to authorize the Union to represent them.""
With respect to the remaining issues involving
the Petitioner's request for a merger of engineering
units and deck employee units, and a further
merger of separate employer units into one
fleetwide unit, we conclude that these are issues
which fall outside the proper scope of a unit clarifi-
cation proceeding.
In Union Electric Company, 217 NLRB 666, 667
(1975), the Board set forth the function of a unit
clarification as follows:
Unit clarification, as the term itself implies,
is appropriate for resolving ambiguities con-
cerning the unit placement of individuals who,
for example, come within a newly established
classification of disputed unit placement or,
within an existing classification which has un-
dergone recent, substantial changes in the
duties and responsibilities of the employees in
it so as to create a real doubt as to whether
the individuals in such classification continue
to fall within the category-excluded or in-
cluded-that they occupied in the past. Clarifi-
cation is not appropriate, however, for upsetting
an agreement of a union and employer or an es-
tablished practice of such parties concerning the
unit placement of various individuals, even if the
agreement was entered into by one of the par-
ties for what it claims to be mistaken reasons
or the practice has become established by ac-
quiesence and not express consent. [Emphasis
supplied.]
' In light of this finding, we do not pass on the contention of the Em-
ployers and the Intervenor that their contract with MAC constitutes a
bar to an election involving the MAC employees Lo\ered by the con-
tract.
1334
MAC TOWING, INC.
Based on our examination of the record evi-
dence, it is readily apparent that the Petitioner is
seeking to achieve by way of unit clarification
what it was unable to achieve at the bargaining
table. The parties voluntarily agreed to bargain
within the framework of separate bargaining units,
and the Board, without a showing of changed cir-
cumstances, will not interfere with the bargaining
relationship in a unit clarification proceeding.
The engineers and the deck department employ-
ees existed in separate bargaining units in separate
companies at the time the previous collective-bar-
gaining agreements were entered into, and the evi-
dence indicates that each group of employees per-
forms the same functions now that they did when
the previous contracts were negotiated. Therefore,
the issues raised herein cannot be considered in the
context of a unit clarification proceeding. Accord-
ingly, we shall dismiss the petition.
ORDER
It is hereby ordered that the petition herein be,
and it hereby is, dismissed.
1335