Saginaw Dock & Terminal Co.

National Labor Relations Board - Board Decisions

May 7, 1940

23 N.L.R.B. 630 (N.L.R.B. 1940)

In the Matter Of SAGINAW Doc$ & TERMINAL COMPANY and NATIONAL
MARITIME UNION (C. I. 0.)
Case No. R-1783.-Decided May 7, 19 0
Water Transportation Industry-Investigation of Representatives: contro-
versy concerning representation of employees: doubt expressed by employer as
to majority designation-Employee Status: seasonal employment: employer=
employee relationship continues after navigation season where company cus-
tomarily reemploys large percentage of unlicensed seamen; relationship not
severed by termination of formal contracts of employmen t-Jurisd let ton: sus-
tained : question concerning representation affects commerce where at time
of hearing company contemplates renewal of operations of ships laid up for
winter but engaged in interstate commerce during navigation season which
normally extends from April 15 to December 1--Unit Appropriate for Collectwe
Bargamnavg: all members of the crew occupying unlicensed positions on the
various ships of the company, excluding all others, stipulation as to-Repre-
sentattves: eligibility to participate in choice : pay roll as of date when com-
pany's ships last in operation during 1939 navigation season used inasmuch as
full fleet then in operation with normal personnel and in view of customary
reemployment of unlicensed seamen ; current pay roll rejected where com-
pany's full fleet not presently in operation and unlicensed positions, therefore,
likely to be filled temporarily by licensed seamen-Election Ordered
Mr. Harry N. Casselman and Mr. Andrew J. Toth, for the Board-
111r. H. S. Taylor, of Cleveland, Ohio, for the Company.
Mr. Ralph D. Rogers, of Cleveland, Ohio, for the N. M. U.
Mr. Robert F. Koretz, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
On November 22, 1939, National Maritime Union,' herein called the
N. M. U., filed with the Regional Director for the Seventh Region,
(Detroit, Michigan) a petition alleging that a question affecting
commerce had arisen concerning the representation of employees of
Saginaw Dock & Terminal Company, Saginaw,-Michigan, herein
called the Company, and requesting an investigation and certification
of representatives pursuant to Section 9 (c) of the National Labor
'It is apparent from the record that the correct name of the petitioning union is Na-
tional Mautime Union of America.
23 N. L R. B, No. 52
630
SAGINAW DOCK & TERMINAL COMPANY 631
Relations Act, 49 Stat . 449, herein called the Act . On March 18, 1940,
the National Labor Relations Board, herein called the Board , acting
pursuant to Section 9 (c) of the Act and Article III, Section 3, of
National Labor Relations Board Rules and Regulations-Series 2,
as amended , ordered an investigation and authorized the Regional
Director to conduct it and to provide for an appropriate hearing
upon due notice.
On March 25 , 1940, the Regional Director issued a notice of hear-
ing, copies. of which were duly served upon the Company and upon
the N. M. U. Pursuant to the notice, a hearing was held on April
1, 1940, at Saginaw, Michigan, before John T. Lindsay, the Trial
Examiner duly designated by the Board. The Board and the Com-
pany were represented by counsel and the N. M. U. by a duly author-
ized representative ; all parties 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 beginning of the hearing, the Company filed a motion with
the Trial Examiner to dismiss the petition for investigation, and
certification of representatives and the proceedings held thereon on
the grounds ( 1) that no questions affecting commerce had arisen
concerning the representation of employees ; (2) tliat the Company's
steamers , Saginaw, Carrollton, and ' Frank J. Peterson were not then
and had not been since December 3, 1939, engaged in interstate com-
merce; ( 3) that the Company did not then employ and had not, since
said steamers were taken out of commerce , employed any unlicensed
seamen; and ( 4) that the proceedings in this matter were without
authority and contrary to the provisions of the Act. The Trial
Examiner reserved ruling on this motion . The Board hereby denies
the motion for reasons hereinafter appearing.
During the course of the hearing , the Trial Examiner made several
rulings on objections to the admission of evidence . The Board has
reviewed the rulings of the Trial Examiner and finds that no prejudi-
cial errors were committed. The rulings are hereby affirmed. On
April 15, 1940, pursuant to leave granted by the Board, the Company
filed a brief in support of its contentions which has been considered
by the Board.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
Saginaw Dock & Terminal Company, a Delaware corporation with
its principal office in Wilmington, Delaware , and its operating office
in Saginaw, Michigan , is engaged in the business of transporting gen-
eral bulk freight on the Great Lakes. The Company owns and oper-
632 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ates a fleet of three steamships, the Frank J. Peterson, the Saginaw,
and the Carrollton, and maintains docks at Saginaw, Michigan, for
the unloading of cargo from said steamships.
The Great Lakes are normally open to navigation from on or about
April 15 to on or about December 1. During this period the Com-
pany operates its fleet on the Great Lakes, and at the close thereof
it lays up its fleet at Saginaw, Michigan, and other ports.
During the 1939 navigation season, which was fairly representative
of the usual and ordinary course of the business of the Company, the
Company commenced the operation of its steamships on or about
April 15, terminated its operations on or about December 1, employed
on its three steamships approximately 84 men of whom 21 are licensed
officers and 63 are unlicensed seamen, and transported on its steam-
ships a total of 230,322 gross tons, consisting principally of pig iron,
steel, and scrap iron, all of which was transported from ports on
the Great Lakes to ports in other States bordering the Great Lakes.
We find that the Company is engaged in trade, traffic, transporta-
tion, and commerce among the several States, and that all members
of the crew occupying unlicensed positions on the ships of the Com-
pany are directly engaged in such trade, traffic, transportation, and
commerce. Inasmuch as the Company contemplated the resumption
of operations on April 15, 1940, the question which, as stated in Sec-
tion III, infra, has arisen concerning representation is one "affecting
commerce" within the meaning of the Act, irrespective of whether
the Company was operating its steamships at the time of the hearing
herein.2
II. THE ORGANIZATION INVOLVED
National Maritime Union is a labor organization affiliated with
the Congress of Industrial Organizations. It admits to membership
unlicensed seamen employed by the Company.
III. THE QUESTION CONCERNING REPRESENTATION'
By letter dated October 16, 1939, Stone, a representative of the
N. M. U., wrote to the Company stating that he had been requested by
members of the N. M. U. employed on the Company's three ships
"to write you for an immediate appointment to discuss wages, work-
ing conditions and living conditions as affecting our members who are
employed by you on the above-named boats on the Great Lakes." On
2 Section 2 (7) of the Act provides that the term "affecting commerce" means "in com-
merce, or burdening or obstructing commerce or the free flow of commerce , or having led
or tending to lead to a labor dispute burdening or obstructing commerce or the free flow of
commerce." Cf Matter of Merrimac Manufacturing Company and American Federation
of Labor, et al, 9 N L R. B. 173. As stated in Section V, Infra, the Company is now
operating a part of its fleet.
SAGINAW DOCK & TERMINAL COMPANY 633
November 3, 1939, a meeting was held at which Rogers and Stone, rep-
resentatives of the N. M. U., presented to Alaniva, the manager of the
Company, a proposed contract providing for recognition of the
N. M. U. "as the sole collective bargaining agent for the unlicensed
personnel employed on vessels owned, operated, leased or chartered by
the Company." Rogers and Stone asked Alaniva whether he had
authority to negotiate a contract, stated that the N. M. U. had been
designated by a majority of the unlicensed seamen on the Company's
ships, and outlined methods by which any doubt on the part of the
Company as to majority designation could be resolved. Alaniva re-
plied that he had no authority to negotiate a contract at that time and
that he had no way of knowing whether or not the N. M. U. had been
designated by a majority of unlicensed seamen employed by the
Company. We find that the N. M. U. sought to bargain with the Com-
pany as the exclusive representative of all unlicensed seamen employed
by the Company.
Another meeting was held on November 21, 1939, at which Alaniva
sought to question the representatives of the N. M. U. concerning cer-
tain clauses of the proposed contract. Alaniva brought a public
reporter to the meeting for the purpose of recording questions and
answers. The representatives of the N. M. U. would not accede to
this procedure and it was agreed that Alaniva would submit in
writing a questionnaire which the N. M. U. would answer by mail.
On the next day, however, the N. M. U. filed its petition for investi-
gation and certification of representatives and the Company was
advised of the filing.
The Company contends that no question concerning the repre-
sentation of employees of the Company has arisen because the Com-
pany did not dispute the N. M. U.'s claim of majority designation.
The existence of a question concerning representation does not de-
pend upon the denial by an employer of majority designation. An
admission by an employer that he does not know whether a particular
labor organization has been designated by a majority of its employees
as their exclusive representative for the purposes of collective bar-
gaining is evidence that such a question exists.a
The Company also claims that no question concerning representa-
tion has arisen for the reason that at the time of the hearing the
Company employed no unlicensed seamen and no arrangements had
been made for rehiring any unlicensed seamen. However, it is the
practice of the Company to seek to reemploy men who worked during
8 Matter of The Raleigh Hotel Company and Hotel and Restaurant Employees Alliance,
Local No 80, 7 N. L. R B . 353; Matter of New York and Cuba Mast Steamship Company
and United Licensed Officers of the United States of America, 2 N . L. R. B. 595 : Matter of
Richards-Wilcos, Manufacturing Company and Federal Labor Union No. 18589, 2 N. L.
R B. 97.
634 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
previous navigation seasons on the bases of seniority and ability,
and at least 50 per cent of the unlicensed seamen employed during
a previous navigation season by the Company return to work the
following season. We find that an employer-employee relationship
exists between the unlicensed seamen employed during the 1939 navi-
gation season as a group and the Company,4 and we further find
that this relationship is not severed by reason of the fact that the
formal contracts of employment between the Company and its em-
ployees, known as shipping articles, had terminated prior to the
hearing.5 '
In its petition and at the hearing, the N. M. U. claimed that 60
of the 63 unlicensed seamen employed by the Company had desig-
nated it as their representative for the purposes of collective bargain-
ing. There was introduced in evidence at the hearing a statement
by the Board's Regional Director which reveals that the N. M. U.
had submitted to him, in substantiation of the claim of the N. M. U.,
31 membership cards signed by unlicensed personnel whose names ap-
pear on the Company's November 1939 pay roll and two petitions
signed by 37 members of the crews of the Frank J. Peterson and the
Carrollton whose names appear on the Company's November 1939
pay roll. 5a
We find that a question has arisen concerning the representation
of 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
The N. M. U. and the Company stipulated, and we fin4l, that all
members of the crew occupying unlicensed positions on the various
ships of the Company, excluding all others, constitute a unit appro-
priate 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 effec-
tuate the policies of the Act.
4Cf Matter of Alaska Packers Association and Alaska Cannery Workers Union Local
No 5, Committee for Industrial Organization , 7 N L R B . 141, Matter of American Fruit
Growers , Inc. et al . and Fruit and Vegetable Workers Sub-Local of #191, UCAPAWA,
C. I. 0, 10 N L R . B. 316; Matter of George G Averill et al and Fresh Fruit if Vege-
table Workers Union, Local 78, C 1 0., 13 N L R B 411
E National Labor Relations Board v. Waterman Steamship Corporation , 60 Sup. Ct 493,
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, Ala-
bama, 7 N L R B 237, Matter of West Kentucky Coal Company and Inland Boatmen's
Union, C I. 0, 17 N . L R B 724 , and cases therein cited in footnote 2
'-Fourteen of the 37 names were of persons who had signed membership cards in
addition.
SAGINAW DOCK & TERMINAL COMPANY 635
V. THE DETERMINATION OF REPRESENTATIVES
We find that the question concerning representation which has
arisen can best be resolved by the holding of an election by secret
ballot.
We shall direct that this election begin as promptly as is practi-
cable after this Direction of Election under the direction and super-
vision of the Regional Director for the Seventh Region who shall
determine in his discretion the exact time, place , and procedure for
giving notices of election and for balloting, provided , however, that
each vessel shall be posted with a notice of election.
The N . M. U. contends that the persons eligible to vote in the
election should be those employees in the appropriate unit who are
listed on the shipping articles of each steamship while last in opera-
tion during the 1939 navigation season. In support of its position,
the N . M. U. asserts that it is the practice of the Company to rehire
unlicensed seamen employed by the Company during previous years
and that if the Company operates only a part of its fleet , licensed
officers would be placed in unlicensed positions. The Company con-
tends that the persons eligible to vote in an election should be the
employees on the ships of the Company at the time of the election,
and in support of its position , asserts that there is a substantial
change in employee personnel on its ships each season.
We have been informed by the Regional Director that at the
present time the Company is operating only a part of its fleet and
that it has no immediate expectation of operating its full fleet of
steamships , although, as stated in Section I, supra, it may reasonably
be expected that its full fleet will be in operation subsequently during
the 1940 navigation season. Accordingly, it is clear that the Com-
pany does not presently employ a normal complement of unlicensed
seamen. Moreover , Alaniva, the Company 's manager, testified that
"... a man may have a license , be a licensed man, yet be holding
an unlicensed position ." It is, therefore , probable and we may infer,
as contended by the N. M. U., that when the Company operates only
a part of its fleet, licensed officers who would normally be employed
in licensed positions are placed in unlicensed positions . Under these
circumstances we believe that the desires of the usual complement
of unlicensed seamen employed by the Company will not be accu-
rately ascertained if eligibility to participate in the election is deter-
mined upon the basis of a current pay roll. Finally, since the Com-
pany seeks to reemploy unlicensed seamen who were employed
during the previous navigation season, and normally reemploys at
least 50 per cent of the unlicensed seamen who have been employed
636 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in previous years," and in view 'of the fact that at the close of the
1939 navigation season the Company operated its full fleet of three
steamships with a usual complement of unlicensed seamen, we are
of the opinion that eligibility to vote in the election as of that period
will provide a more accurate basis upon which to ascertain the desires
of the usual employee personnel within the appropriate unit than a
current pay roll. Accordingly, we shall direct that the employees
of the Company eligible to vote in the election shall be all members
of the crew occupying unlicensed positions on the various ships of
the Company, excluding all others, who are listed on the shipping
articles of each of the Company's steamships while last in operation
during the 1939 navigation season, including employees who did not
work during such pay-roll period because they were ill or on vaca-
tion or temporarily laid off, but excluding those who have since
quit or been discharged for cause.
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. A question affecting commerce has arisen concerning the rep-
resentation of employees of Saginaw Dock & Terminal Company,
Saginaw, Michigan, within the meaning of Section 9 (c) and Section
2 (6) and (7) of the National Labor Relations Act.
2. All members of the crew occupying unlicensed positions on the
various ships of the Company, excluding all others, constitute a unit
appropriate for the purposes of collective bargaining, within the
meaning of Section 9 (b) of the National Labor Relations 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 Rela-
tions Act, 49 Stat. 449, and pursuant to Article III, Section 8, of
National Labor Relations Board Rules and Regulations-Series 2,
as amended, it is hereby
DIRECTED that, as part of the investigation ordered by the Board
to ascertain representatives for the purposes of collective bargaining
with Saginaw Dock & Terminal Company, Saginaw, Michigan, an
election by secret ballot shall be conducted as soon as convenient and
beginning as promptly as is practicable after the date of this Direc-
tion of Election in conformity with the rules set forth hereinabove
11 Of the 63 unlicensed seamen last employed on the Company 's ships In 1939, 12 were
employed by the Company in 1936, 33 in 1937, and 24 in 1938. In 1936 and 1938 the
Company operated only two steamships.
SAGINAW DOCK & TERMINAL COMPANY 637
for the conduct of such election, under the direction and supervision
of the Regional Director for the Seventh Region, acting in this
matter as the agent for the National Labor Relations Board, and
subject to Article III, Section 9, of said Rules and Regulations,
among all members of the crew occupying unlicensed positions on
the various ships of the Company, excluding all others, who are
listed on the shipping articles of each of the Company's steamships
while last in operation during the 1939 navigation season, including
employees who did not work during such pay-roll period because
they were ill or on vacation or temporarily laid off, but excluding
those who have since quit or been discharged for cause, to determine
whether or not they desire to be represented by National Maritime
Union, affiliated with the Congress of Industrial Organizations, for
the purposes of collective bargaining.