North American Motorship Co., Inc.

National Labor Relations Board - Board Decisions

Dec 16, 1940

28 N.L.R.B. 607 (N.L.R.B. 1940)

In the Matter of NORTH AMERICAN MOTORSHIP COMPANY, INC. and
NATIONAL MARITIME UNION OF AMERICA
Case No. R-2076
SUPPLEMENTAL DECISION
AND
CERTIFICATION OF REPRESENTATIVES
December 16, 1940
The National Labor Relations Board, herein called the Board,
issued in the above-entitled proceedings a Decision and Direction of
Election on October 19, 1940,1 and an Amendment to Decision and
Direction of Election on October 25.2 The Direction of Election
provided that an election-by secret ballot be conducted "as soon as
convenient and beginning as promptly as practicable" among the
unlicensed personnel of North American Motorship Company, Inc.,
a party to these proceedings, herein called the Company, "employed
on the Company's vessel Brooklyn Heights in the deck, engine, and
stewards' departments, except wireless and radio operators, at the
time the vessel is posted and who are still employed in the same
capacity at the timer the election is held," to determine whether or
not these employees desired to be represented for purposes of col-
lective bargaining by National Maritime Union of America, a party
to these proceedings, herein called the N. M. U. The Decision and
Direction of Election, as amended, provided that the exact time,
place, and procedure for posting notices of election and for balloting
on the vessel were to be determined by and in the discretion of the
Regional Director for the Second Region (New York City) under
whose direction and supervision the election was to be conducted.
Copies of the Decision and Direction of Election and of the Amend-
ment to Decision and Direction of Election were served upon the
Company and the N. M. U., personally and through their respective
counsel of record.
i 27 N. L. -R. B. 962.
2 27 N. L. R. B. 962.
28 N L R. B, No. 91.
607
608 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On October 29, pursuant to the Direction of Election, as amended,
an election by secret ballot was conducted on board the Brooklyn
Heights at Philadelphia, Pennsylvania, under the direction and su-
pervision of the Regional Director. On November 6 the Regional
Director, in accordance with Article III, Section 9, of National Labor
Relations Board Rules and Regulations-Series 2, as amended, is-
sued an Election Report upon the ballot, copies of which were duly,
served upon parties. Therein she reported that on October 29 the
,vessel was posted at Philadelphia with a crew list, a sample of the
ballot to be used in the election which was directed, and a notice of
election setting forth among other things that the election would be
conducted before the vessel departed from Philadelphia and that the
parties were privileged to designate observers to the election; that
,on said October 29 the election was conducted after each eligible
-voter had an! opportunity to read the notice of election; and that
the results of the balloting were as follows :
Total number eligible to vote-------------------------------- 14
Total number of ballots cast--------------------------------- 14
Total number of valid ballots-------------------------------- 13
Total number of votes in favor of National Maritime Union of -
America (C. I. O) --------------------------------------- 9
Total number of votes against aforementioned union---------- 4
Total number of blank votes-------------------------------- 0
Total number of void ballots-------------------------------- 1
Total number of challenged votes---------------------------- 0
On November 4, prior to the issuance of the Election Report, the
Company filed with Regional Director a "protest" to the conduct
of the election and to the results thereof, and on November 9 it filed
Objections to the conduct of the ballot and to the Election Report.
In its protest and Objections the Company requests that the election
and results thereof be set aside, and that a new election be conducted
among the unlicensed personnel aboard the Brooklyn Heights, within
the classifications set forth in the Direction of Election, "as soon as
that vessel next signs shipping articles in the Port of New York."
On November 18 the Regional Director issued a 'Report on Objec-
tions, copies of which were duly served upon the parties, setting
forth that the various matters alleged in the protest and Objections
had been duly investigated by her, reporting and making findings
upon said matters and other facts ascertained as a result of such
investigation; and recommending to the Board that the Objections,
including said protest so considered, be dismissed., Thereafter the
Regional :Director lodged with the Board a copy'of'a certain letter
dated October 29, 1940, signed by one Mikkelsen, master of the
Brooklyn Heights, and addressed to the Regional Director; a state-
NORTH AMERICAN MOTORSHIP COMPANY, INC. 609
ment dated October 29, 1940, signed by said Mikkelsen and one Boutte,
as observers to the election for the Company and the N. M. U., respec-
tively, certifying to certain facts with respect to the conduct of the
election; and a statement dated November 2, 1940, signed by repre-
sentatives of the Board, the Company, and the N. M. U., respectively,
certifying to certain facts regarding the counting and tabulation of
ballots cast in the election. On December 11 the Company lodged
with the Board a verified statement by said Mikkelsen, "in reply to
the Report on Objections." We hereby order that these documents
be filed instanter as.part of the record-herein.
The Company in its Objections, as well as in its protest, objects
to the conduct of the ballot and to the election results, upon the basis
of certain facts which it alleges, but which it fails to support by any
adequate showing. Statements in the Mikkelsen letter and affidavit
deal with irrelevant or insufficient facts. We have pointed out ift
similar cases that ground for setting aside an election in which em-
ployees have designated a statutory representative should appear
reasonably certain before a hearing upon objections will be directed.'
The Company alleges' that on October 29, soon after the conduct
of the election on board the vessel at Philadelphia, the Brooklyn
Heights departed for the port of New York, arriving there the-
fol-lowing day; that the shipping articles of the unlicensed personnel,
or some of them, were to and did expire upon the arrival of the,
vessel in New York; that 5 of the 14 employees eligible to vote in
the election "left the employ of the Company" after the vessel docked
in New York. The Company contends that it was "improper and
unfair" to conduct the election "on the eve of the expiration of the
shipping articles"; that such an election should be conducted shortly
after shipping articles are opened in order that employees replacing
unlicensed personnel who fail to sign new articles may have an op-
portunity to vote on their representation; and therefore, that the
election should be set aside and a new election conducted when the
Brooklyn Heights next signs shipping articles in New York. It
also contends that a new election should be held in any event, because
the termination of employment of the five employees after the elec-
tion has made it impossible to fund the N. M. U. to be the choice of
a majority of the employees in the unit heretofore found herein to
be appropriate.
8 Matter of The Cudahy Packing Company and United Packing House Workers, Local
Industrial Union No. 19!,, 26 N. L. R. B , No 81 ; Matter of General Motors Sales Corpora-
tion, Frigidaire Division and Enterprise Association of Steam, Hot Water, Hydraulic,
Piping, Sprinkler, Pneumatic Tube, Ice Machine, Air Conditioning, and General Piperitters
of New York and Vicinity, Local No. 638, United Association of Journeymen, Plumbers and
Steaniftters of the United States and Canada, affiliated with the American Federation of
Labor, Branch C, 25 N L. R B. 1122.
4 The allegations of the Objections and protest are in many respects incomplete and
argumentatii e
610 DECISIONS 'OF NATIONAL LABOR -RELATIONS -BOARD-
These contentions are without merit. The mere signing off of
articles when a voyage ends does not necessarily denote termination
of the seaman's employment .5 We take notice that the employment
relation may, and often does, in such cases continue despite the ex-
piration of articles or the need for execution of new articles.6 The
signing of articles for a -new voyage does not necessarily involve a
replacing of ship personnel , and the presumption is that it does not.
Hence, unless special facts are shown , we are not concerned in elec-
tion proceedings such as these with the matter of the duration or
expiration of articles. The usual rule obtains that where an election
has been held and a statutory representative designated , the results
of such election are determinative of majority representation for
purposes of the certification . That 5 of the 14 eligible voters left
the employ of the Company is, not such a fact as would compel a
setting aside of the election . Once an election has been held, the
Board as a practical matter will not conduct further elections prior
to certification to ascertain whist changes in designation have oc-
curred.7 Moreover , in view of the results of the election , we cannot
find that the termination of employment of the five employees has
resulted in a loss of majority designation by the N. M. U., and we
presume and find otherwise.8
The Company alleges that "there was no representative of the
Company present , nor did the Company have any knowledge of when
or at what time the Board representatives would go aboard the vessel
to post and conduct the ballot."- If this fact were true , it would not
warrant a setting aside of -the election . Employer participation in
the conduct of an election is a matter of grace, not of right .9 While
the Board in its discretion has permitted employers to designate
observers to elections , the conduct of an election is within the ex-
clusive province of the Board. In any event , it is plain from the
certificate of the observers filed herein that the Company in fact was
6 Cf. N L R B v Waterman Steamship Corporation , 309 U. S 206 , rev'g 103 F. '(2d)
157 (C. C. A 5) and enf'g Matter of Waterman Steamship Corporation and National
Maritime Union of America, Engine Division, Mobile Branch, Mobile, Alabama, 7 N. L.
R B. 237
13 Cf Matter of Southern Steamship Company and National Maritime Union of America,
affiliated with the C I. 0., 23 N L. R B 26
7 Cf Matter of Pacific Greyhound Lines and Brotherhood of Railroad Trainmen, 22
N L R B 111, and cases therein cited in footnote 72.
8 Matter of Ansley Radio Corporation and Local 1221 United Electrical it Radio Workers
of America, C 1 0. et al , 18 N L R B 1028.
Cf. Matter of American France Line et al. (Southern Steamship Company ) and Inter-
national Seamen's Union of America , 4 N L R B '1140 ; Matter of Paragon Rubber Co.-
American Character Doll Company and Toy it Novelty Workers Organizing Committee of
the C I. 0 , 7 N L R . B 965 , Matter of Fedders Manufacturing Company, Inc and
Amalgamated Association of Iron, Steel it Tin Workers of N A., Lodge 1753, 7 N L R B.
818; Matter of Marlin-Rockwell Corporation and Local No 338, United Automobile Work-
ers of America, 7 N L. R B 836; Matter of American Radiator Company ( Bond Plant and
Terminal Plant ) and Amalgamated Association of Iron, Steel it Tin Workers , Lodge 1199
and 1629, 8 N L R. B 505.
NORTH AMERICAN MOTORSHIP COMPANY, INC. 611
adequately represented at the election through the master of the
vessel. As observer for the Company he certified among other things
that "the election was conducted secretly and fairly." The verified
statement of the master, submitted after- the Report on Objections;
to the effect that while he "felt that the election was fair;" he believed
that "what transpired prior to the actual voting was unfair and im-
proper" is unsupported by any statement of facts warranting a set-
ting aside of the election. The Company in its "protest" alleges that
it was, "our understanding that the election would, be conducted in
the port of New York." This allegation is omitted from its Ob-
jections. The Regional Director reports that her investigation dis-
closes no basis for the Company's having such an understanding.
In view of what has been stated above, the failure to carry out such
an understanding would not be prejudicial.
The Company contends that the notice of election was invalid be-
cause it provided that a majority of the ballots cast in the election,
rather than a majority vote of the employees within the appropriate
unit, would determine'the results of the election. This contention
misapprehends the law here applicable 10 Further, all employees in
the unit cast ballots.
The Company alleges specifically that the "whole atmosphere" of
the election was one of "intimidation and coercion," that a delegate of
the N. M. U. at- all times accompanied the agent of the Board who
conducted the election, that "in view of the conduct of the Labor
Board representative accompanied by a N. M. X. delegate, the
seamen were not afforded the rights guaranteed in Section 7" of the
Act, that "the conduct of the Board's representative in this case
indicates an attempt to accomplish a desired result," and that the
balloting "was not conducted in an impartial manner." There is no
specification of facts upon which these charges rest. The only show-
ing in this connection is contained in the-master's statement, and we
find nothing therein supporting the charges. None of the employees
who voted in the election has objected through the N. M. U. or other-
wise, to the balloting. The Regional Director reports no facts or
evidence disclosed by her investigation which would support any of
the charges. We repeatedly have held that the possibility of a denial
to employees of freedom to choose or refrain from choosing a bar-
gaining representative should appear reasonably certain before a
hearing upon objections to an election will, be ordered." We over-
rule the objections resting upon the abovementioned charges.
i°New York Handkerchief Manufacturing Company v N L R B, 114 F. (2d) 144
(C. C. A. 7), cert. den. 311 U S 704, enf'g as mod. Matter of New York Handkerchief
Manufacturing Co. and International Ladies Garment Wo)kers Union Local No 76, 1,6
N. L. R. B 532.
u See cases cited in footnote 3, supra.
413597-42-vol. 23-40
612 , DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The letter of the master of the vessel to the Regional Director
states that the employees who voted in the election did not have suf-
ficient time "to study the notice" of election, that they "did not have
ample time to decide, nor sufficient time to consider the consequences
of such hurried voting." The observers' certificate signed by the
master, states that "each eligible voter was handed a notice of elec- '
tion and informed the Board's agent that he read and understood
it," although his statement thereafter made and filed is to the effect
that he "would say that one in every three men" received a notice.
Statements by the Board's agent and the N. M. U. delegate appended
to the Report on Objections indicate that the voters each received
and understood the notice of the election. There is a strong pre-
sumption that employees who cast a ballot in an election understand
their action. Certainly, a much stronger showing to the contrary
must be made by the employer than here has been adduced. There is
no sufficient showing warranting our setting aside the election on this
alleged ground.
We hereby overrule in their entirety the Objections to the conduct
of the election and to the Election Report, and the "protest" filed
by the Company. The results of the election show that the N. M. U.
has been designated as statutory representative, and we - shall so
certify.
By virtue of and pursuant to the power vested in the National
Labor Relations Board by Section 9(c) of the National Labor Rela-
tions Act, 49 Stat. 149, and pursuant to Article III, Sections 8 and 9,
of National Labor Relations Board Rules and Regulations-Series
2, as amended,
IT IS HEREBY CERTIFIED that National Maritime Union of America
has been designated and selected by a majority of all the unlicensed
personnel employed by North America Motorship Company, Inc.,
on its vessel Brooklyn Heights in the deck, engine, and stewards'
departments, except wireless and radio operators, as their representa-
tive for the purposes of collective bargaining, and that, pursuant to
Section 9 (a) of the National Labor Relations Act, National Mari-
time Union 'of America is the exclusive representative of all such
employees employed on said vessel, for the purposes of collective
bargaining in respect to rates of pay, wages, hours of employment,
and other conditions of employment.
CHAIRMAN HARRY A. MILLIS took no part in the consideration of
the above Supplemental Decision and Certification of Representa-
tives.