Oxnard Harbor District

National Labor Relations Board - Board Decisions

Aug 26, 1941

34 N.L.R.B. 1285 (N.L.R.B. 1941)

In the Matter of OXNARD HARBOR DISTRICT and INTERNATIONAL LONG-
SHOREMEN 'S ASSOCIATION , LOCAL 38-125, A. F. L.
Case No. R-2053.-Decided August 26, 1941
Definitions
A harbor district formed pursuant to a general State law providing for
the formation and administration of districts for the improvement or
development of harbors is a political subdivision of the State , and not an
employer within the meaning of Section 2 (2) of the Act, and as such is
exempt from the jurisdiction of the Act.
Practice and Procedure : petition for Investigation and Certification of Repre-
sentatives , dismissed.
Mr. William R. Walsh and Mr. David Sokol, for the Board.
Mr. A. Miller McDougall and Mr. Lebbeus Curtis, of Ventura,
Calif., and O'Melveny & Myers, by Mr. Homer I. Mitchell and Mr.
W. B. Carman, of Los Angeles, Calif., for the District.
Mr. A. H. Petersen, of Los Angeles, Calif., for the I. L. A.
Mr. Charles J. Katz, of Los Angeles, Calif., and Gladstein, Gross-
man, Margolis and Sawyer, by Mr. Richard Gladstein, of San Fran-
cisco, Calif., for Pacific Coast District No. 1, I. L. W. U.
Gallagher, Wirin & Johnson, by Mr. Grover Johnson, of Los
Angeles, Calif., for Local Union No. 1-13, I. L. W. U.
Miss Grace McEldownei, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
On June 5, 1940, International Longshoremen's Association, Local
38-125, A. F. L., herein called the I. L. A., filed with the Regional
Director for the Twenty-first Region (Los Angeles, California) a
petition alleging that a question affecting commerce had arisen con-
cerning the representation of employees of Oxnard Harbor District,'
'Incorrectly designated in the petition and notice of hearing as Harbor Commission,
Port of Hueneme.
34 N. L. R. B., No. 123.
451269-42-vol. 34-82
1285
1286 - DECISIONS OF NATIONAL LABOR RELATIONS BOARD
California, herein called the District, and requesting an investigation
and certification of representatives pursuant to Section 9 (c) of the
National Labor Relations Act, 49 Stat. 449, herein called the Act.
On July 30, 1940, acting pursuant to Section 9 (a) of the Act and
Article III, Section 3, of National Labor Relations Board Rules and
Regulations-Series 2, as amended, the Board ordered an investiga-
tion and authorized the Regional Director to conduct it and to pro-
vide for an appropriate hearing upon due notice.
Pursuant to notice duly served upon the District, the I. L. A., and
International Longshoremen and Warehousemen's Union, C. I. 0.,
herein called the I. L. W. U., a labor organization claiming to repre-
sent employees directly affected by the investigation, a hearing was
held at Los Angeles, California, on August 12 to 14, 1940, before
A. Bruce Hunt, and from September 3 to 10, 1940, before William B.
Barton, the Trial Examiners duly designated by the Chief Trial
Examiner. The Board, the District, the I. L. A., and the I. L. W. U.
were represented by counsel and participated in the hearing. Full
opportunity to be heard, to examine and cross-examine witnesses, and
to introduce evidence bearing on the issues was afforded all parties.
At the opening of the hearing the I. L. W. U. made a motion to
intervene. The I. L. A. moved to exclude the I. L. W. U. from par-
ticipation in the hearing on the ground that it did not represent any
employees of the District and had no interest in the proceedings.
The Trial Examiner ruled that the motion of the I. L. W. U. was
unnecessary and denied the motion of the I. L. A., on the ground that
the I. L. W. ^U., having been served with notice of hearing, was
already a party to the proceeding. The District moved to dismiss
the petition, claiming that it was a political subdivision of the State
of California and therefore not within the jurisdiction of the Act.
This motion was referred to the Board by the Trial Examiner. For
reasons more fully stated below, it is hereby granted.
The I. L. W. U. moved to defer the proceedings until the Board
should dispose of charges of unfair labor practices which had been
filed against the District, or to defer the direction of election and
certification until after such action by the Board. The motion, in
so far as it related to the hearing, was denied by the Trial Examiner,
and in so far as it related to proceedings after the hearing, was
referred to the Board. The Trial Examiner denied a further motion
of the I. L. W. U., offered after testimony had been heard on the
question of Jurisdiction, to defer further proceedings for the pur-
pose of submitting that question to the Board.
At the close of the hearing the I. L. W. U. renewed its motion to
defer further action until after investigation, hearing, and determina-
tion by the Board of the unfair labor practice charges pending against
OXNARD HARBOR DISTRICT 1287
the District. The motion was referred to the Board by the Trial
Examiner. Since the hearing the Regional Director has declined
to issue a complaint on the basis of the charges then pending, thus
disposing of the question raised by the motion of the I. L. W. U.,
and rendering unnecessary any ruling thereon. The I. L. A.
moved to expunge from the record all testimony and exhibits relat-
ing to contractual relationships between the I. L. W. U. and the
Waterfront Employees Association. This motion was referred to the
Board by the Trial Examiner, and , is hereby denied. During the
course of the hearing the Trial Examiner made several rulings on
other motions and on objections to the admission of evidence. The
Board has reviewed the rulings of the Trial Examiner, and finds that
no prejudicial errors were committed. The rulings are hereby af-
firmed. The District and the I. L. W. U. submitted briefs which
have been considered by the Board.
Upon the entire record in the proceeding, the Board makes the
following :
FINDINGS OF FACT
I. THE BUSINESS OF THE DISTRICT
Oxnard Harbor District, which comprises an area of some 160,000
acres in the southern part of Ventura County, California, was formed
in May 1937, pursuant to a general law of the State of California,
originally enacted in 1931, providing for the formation and admin-
istration of districts for the improvement or development of har-
bors.2 Within the district a port has been constructed, known as
the Port of Hueneme, with facilities intended for the purpose of
interchanging freight to and from coastal and intercoastal ships mov-
ing in interstate and foreign commerce. This port, which was begun
in February 1939 and completed in June 1940, covers an area of
about 350 acres, and is located approximately 60 miles northwest of
San Pedro and 15 miles southeast of Ventura. Its physical prop-
erties include east and west jetties, a harbor entrance of 35 feet of
water, a turning basin approximately 1200 by 1200 feet, a wharf
1200 feet long, a steel shed 100 by 660 feet, and rail service connect-
ing with the Ventura County Railway and the Southern Pacific. The
wharf can accommodate- three medium or two large ships; and the
harbor, five or six ships.
The original plan of operation was to have the District carry on
all operations of the port, including the work of longshoremen, with
2 Now incorporated, as amended , in the Harbors and Navigation Code of the State of
California
1288 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
its own employees, who were to work interchangeably at the various
types of work available. On February 16, 1940 and March 1, 1940,
contracts were signed by which all skilled and unskilled labor was
to be supplied by the American Federation of Labor, the Inter-
national Longshoremen's Association, and other affiliated unions;
but at the time of the hearing, because of the situation described
below, the District had on its pay roll only four or five employees,
exclusive of its supervisory and clerical staff.3
It was estimated that the port would serve a preferential area
with a radius of 150 miles, and that the available tonnage would
exceed 500,000 tons a year, of which between 400,000 and 450,000 tons
would be shipped to States other than the State of California. The
expected business failed to materialize, however, and up to the time
of the hearing the only traffic that had been handled was a small
amount originating on Santa Cruz and other outlying islands.4 This
situation was the result 'of a controversy and subsequent arbitration
award under a contract between the Waterfront Employers Associa-
tion of the Pacific Coast, the members of which handle approxi-
mately 90 per cent of the commerce on the Pacific Coast, and the
International Ldngshoremen's and Warehousemen's Union, which
had been certified by the Board as the exclusive collective bargaining
representative of workers doing longshore work in Pacific Coast
ports for members of Waterfront Employers of Seattle, Waterfront
Employers of Portland, Waterfront Employers Association of San
Francisco, Waterfront Employers Association of Southern Cali-
fornia and Shipowners' Association of the Pacific Coast.b In the
award, issued on July 24, 1940, the arbitrator held that it would be
a violation of the contract for members of the Waterfront Em-
ployers Association to send their ships into the Port of Hueneme and
permit them to be worked under any longshore contract other than
a contract with the I. L. W. U. In consequence of his decision no
such ships had entered the port up to the time of the hearing.°
8 These employees constitute the proposed unit , described in the petition as "winch drivers,
jitney and Ross carrier drivers, longshoremen , warehousemen , and lumber handlers."
4 Two small boats, the Santa Cruz and the Vaquero, had brought approximately 5,000
sheep to . the port from the islands , and had taken to them about 30 tons of general mer-
chandise , including oil, lumber , hardware , foodstuffs , and construction material.
5 Matter of Shipowners ' Association of the Pacific Coast, et al , and International Long-
shoremen 's and Warehousemen 's Union District No. 1, et al , 7 N. L. R. B. 1002. The
subsequent contract was made by the waterfront Employers Association of the Pacific
Coast on behalf of Waterfront Employers of Seattle , Waterfront Employers of Portland,
Waterfront Employers Association of San Francisco , and Waterfront Employers Associa-
tion of Southern California.
6In order to permit ships belonging to members of the Waterfront Employers Associa-
tion to enter the port, a tentative agreement was reached during the course of the hearing
in the present proceeding , by which they would be permitted to supply their own long-
shoremen.
OXNARD HARBOR DISTRICT 1289
Since the District contends that it is not an employer within the
meaning of Section 2 (2) of the Act,' it becomes necessary for us to
consider the provisions of law under which the District was formed
and is administered. They are in brief as follows : A harbor district
may be formed on petition of 50 or more registered voters within
the proposed district, after hearing and investigation by the board
of supervisors of the county in which the harbor is situated, an order
of said board determining and establishing the boundaries of the
proposed district, and an election by the qualified voters of the
district. If a majority of the votes cast at the election are in favor
of the formation of the district, the Board of supervisors enters an
order declaring the district duly formed and existing; a certified
copy of the order, together with the minutes of the board, is trans-
mitted to the Secretary of State, and within 5 days thereafter the
Secretary of State executes and transmits to the clerk of the county
his certificate that a harbor district under the name set forth in the
petition has been formed and exists in that county. From the filing
of the certificate of the Secretary of State in the office of the county
clerk, the formation of the district is complete.
In accordance with these provisions of the law, a petition was
duly submitted to the Board of Supervisors of the County of Ven-
tura, which, after hearing and investigation, on March 15, 1937,
adopted a resolution granting the petition; and on May 4, 1937,
adopted a resolution and order recording the canvass of votes cast
at the election and declaring the Oxnard Harbor District organized
and certain harbor commissioners elected. On May 5, 1937, the
Secretary of State of the State of California issued his certificate
that a harbor district under the name of Oxnard Harbor District
had been formed and existed in the county of Ventura, State of
California.
The law provides further that each harbor district shall be governed
by a board of three harbor commissioners, elected for a term of 4
years by the qualified voters of the district. The commissioners are
required to take an oath of office and to furnish bond, and are sub-
ject to recall. The board has power to pass all necessary ordinances
for the regulation of the district; to employ necessary officers and
employees; a to sue and be sued in the name of the district; to adopt
a seal; to acquire, hold, enjoy, lease and dispose of real and personal
property ; to acquire, construct, *own, operate, control, or use any nec-
4 Sec. 2 ( 2) of the Act provides that "the term `employer ' includes any person acting in
the interest of an employer, directly or indirectly, but shall not include the United States,
or any State or political subdivision thereof . . .
8Under the California Cis il Service Law the board has power to extend such law to its
employees
1290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
essary works or facilities; to exercise the right of eminent domain;
to borrow money and incur indebtedness and issue bonds or other
evidences of indebtedness; to provide for and supervise pilots and
the pilotage of sea-going vessels within the harbor and to regulate
and control the anchoring, mooring, towing, and docking of vessels;
to perform the functions of warehousemen, stevedores, lighterers,
reconditioners, shippers and reshippers of properties of all kinds;
to manage the business of the district and promote the maritime
and commercial interest by advertisement and the solicitation of
business; to acquire, purchase, take over, construct, maintain, operate,
develop, and regulate facilities, aids, equipment, or property neces-
sary for or incident to the development and operation of a harbor
or for the accommodation and promotion of commerce, navigation,
or fishery in the harbor district; by ordinance to fix the rate of
charges appropriate for the use of any of the facilities owned and
constructed or services furnished or provided in the district; and
to do all other acts necessary and convenient for the full exercise of
its powers.
Bonds issued by the board of harbor commissioners are obligations
of the district, and so long as they are outstanding and unpaid,
provision is made for the board of supervisors, when notified by the
board of harbor commissioners, to levy and collect annually a tax
on property in the district sufficient to meet the interest and principal
due on such bonds, if in excess of the moneys the district has on
hand to meet such payments. In the same manner the board of
supervisors may levy a tax to pay the ordinary annual expenses of the
district, and to pay any indebtedness, other than bonded indebted-
ness, incurred during any prior fiscal year or years. In view of the
above provisions of law, we believe that the District is a political
subdivision of the State of California and as such is exempt from
the jurisdiction of the Act.°
Upon the basis of the above findings of fact and upon the entire
record in the case, the Board makes the following :
CONCLUSIONS OF LAW
1. Oxnard Harbor District is not an employer within the meaning
of Section 2 (2) of the Act.
2. No question affecting commerce has arisen concerning the repre-
sentation of employees of Oxnard Harbor District, California.
9 See Matter of Mobile Steamship Association, et al, and International Longshoremen
znd Warehousemen's Union, 8 N . L R. B. 1297, in which a petition for investigation and
certification was dismissed in so far as it related to the State Docks Commission.
OXNARD HARBOR DISTRICT
ORDER
1291
Upon the basis of the foregoing findings of fact and conclusions
of law, the National Labor Relations Board hereby dismisses the
petition for investigation and certification of representatives filed
by the International Longshoremen 's Association , Local 28-125,
A. F. L.
MR. EDWIN S. SMITH, dissenting :
I disagree with the finding of the majority that the District is not
an employer within the meaning of Section 2 (2) of`the Act. The
majority opinion proceeds on the theory that the District is a political
subdivision of the State of California and, as such, exempt from the
jurisdiction of the Act. This theory is realistic neither as to statutory
interpretation nor as to the broad public policy of the Act.
The legislative history of the Act is silent on the precise meaning
of the phrase "the United States, or any State or political 'subdivision
thereof." However, it is pertinent to note that the bill proposed
in 193410 excluded from the term "employer" "the United States, or
any State, municipal corporation, or other governmental instrumen-
tality," which is a broader exclusion than the language in the Act
"the United States or any State or political subdivision thereof."
It is evident therefore that in narrowing the definition the intent of
the Congress was also to narrow the exclusion of employers from the
Act and it is reasonable to infer that Congress in using the terms
"State" and "political subdivisions" had in mind the accepted mean-
ing of the terms as limited to those functions which have been
traditionally considered to be of a governmental nature. The opera-
tions of the District, in so far as the employees here involved are
concerned, which operations are performed by private concerns in
other ports on the Pacific coast, are of a proprietary, non-govern-
mental character. As to such operations the District should not be
excluded from the term "employer" in Section 2 (2) of the Act.
Its broad public policy and social objectives warrant a liberal con-
struction of the Act and its application to employees of governmental
instrumentalities engaged in non-governmental,, proprietary func-
tions. The necessity of exercising the rights of organizing, bargain-
ing collectively, and engaging in other union activities and the need
for protection of such rights are as pressing in the case of such
employees as they are in the case of employees of private employers.
The rapid increase in the number of such instrumentalities and in
the number of their employees and the necessity of and intent to
afford such employees the benefits of the Act must have been in the
10 Labor Disputes Act S. 2926.
1292 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
contemplation of the Congress. Moreover, the Board in effectuating
the policies of the Act has in the past taken jurisdiction over vessels
owned by the Maritime Commission, but operated by private com-
panies;11 over a corporation owned and controlled by and operated
for the account of the United States, but engaged in business for
profit; 12 and over companies performing functions in connection with
United States mail.13
Such a construction and application of the Act is in accord with
established traditions in both common law and constitutional law. In
the field of taxation the courts have adhered to the principle that
immunity from taxation does not apply to non-governmental func-
tions performed by the State and National governments. In South
Carolina v. United States,14 the Supreme Court refused to extend
,tax immunity to a State-conducted liquor business. In Helvering,
v. Powers,16 the Court likewise refused to extend this immunity to
a street railway business taken over and operated by State officers
as a means of effectuating a local public policy. In Helvering v.
Gerhardt,16 the Supreme Court held that employees of the New York
and New Jersey Port Authority were subject to the income tax laws
of the United States because the functions performed by that body
were not of a governmental character. The Authority performed
functions analagous to those of the District in the instant case. The
Authority is a bi-State corporation created by compact between the
States of New York and New Jersey and approved by a Joint Resolu-
tion of the Congress of the United States. The compact authorized
the Authority to acquire and operate any terminal or transportation
facility within a specified district embracing the Port of New York
and lying practically within each State. It directed the Authority to
recommend a comprehensive plan for improving the port and facili-
tating its use by the construction and operation of bridges, tunnels,
terminals, and other facilities. The Authority made such recom-
mendations in one of its reports. In pursuance of legislation of the
two States, the Authority has constructed several' interstate vehicular
bridges, all passing over waters of the harbor or adjacent to it.
11 Matter of Cosmopolitan Shipping Company, Inc and National Marine Engineers'
Beneficial Association , Local No 33, 2 N L R B 759
' Matter of Panama Rail Road Company and Marine Engineers' Bene ficial Association,
2N L. R. B. 290
12 National Labor Relations Board v. Carroll, 120 F. (2d) 457, enforcing Matter of Wil-
liam H. Carroll and International Brotherhood of Teamsters , Chauffeurs, Stablemen and
Helpers of America, Local 42 (A. F. L.), 29 N L. R. B. 343; Matter of New York Mail it
Newspaper Transportation Co. and Committee for Industrial Organization , on Behalf of
the Employees of The New York Mail it Newspaper Transportation Co., 4 N. L. R B.
1066; Matter of Joseph R. Gregory, (an Individual ) and United Transport Workers Indus-
trial Union, Local 806, affiliated with C. I. 0., 31 N L. R B 71
u 199 U. S. 437.
16 293 U. S. 214
60 304 U. S. 405.
OXNARD HARBOR DISTRICT 1293
It has also constructed the Holland and Lincoln Tunnels. These
enterprises were financed in large part by funds advanced by the
two States and by the Authority's issue and sale of its bonds. In
addition, the Authority operates an interstate bus line over one of
its bridges. It has erected and operates a building in New York
City which houses a freight terminal in connection with a plan to
coordinate transportation facilities and reduce congestion. The ter-
minal is used as a transfer terminal in interchange of freight brought
by truck from and to the terminal and to and -from eight railroad
terminals. The Authority collects tolls for the use of bridges and
tunnels and derives income from the operation of the bus line and
terminal building, but it has no stock and no stockholders and is
owned by no private persons or corporations. Its projects are all
"said to be operated" in behalf of the two States and in the interest
of the public, and none of its profits inures to the benefit of private
persons. Its property and bonds and other securities issued by it
are exempt by statute from State taxation. Statutes of the two States
declare that in the construction, maintenance, and operation of the
bridges and tunnels the Authority shall be regarded as performing a
governmental function.
The judicial demarcation between governmental and non-govern-
mental or proprietary functions also obtains in the common law field
of torts. In State of Pennsylvania v. Wheeling Bridge Company
17
the Supreme Court stated :
"When a State enters into a copartnership, or becomes a stock-'
holder in a bank, or other corporation, its sovereignty is not
involved in the business, but it stands and is treated as other
stockholders, or partners. And so in the present case, the rights
asserted and relief prayed, are considered as in no respect dif-
ferent from those of an individual."
In Bodge v. City of Philadelphia 18 an electrical bureau of the City
of Philadelphia which derived $150,000 from grants of privileges to
private citizens, which it paid over to the city treasury, was held
liable for the torts of its employees because it was held not to be
a governmental function. In Kibele v. City of Philadelphia 19 the
city was held liable for its employees engaged in the manufacture and
sale of gas.
I would find that the District is an employer within the meaning
of Section 2 (2) of the Act.
17 54 U. S. 518 , 559. See also : Kokomo v. Loy, 185 Ind 18, 112 N. E. 994.
167 Pa. 492.
1e 105 Pa 41.