Tampa Inter-Ocean Steamship Co., Lykes Brothers Steamship Co., Inc., Lykes Brothers Coastwise Line, Inc.

National Labor Relations Board - Board Decisions

Jul 31, 1939

13 N.L.R.B. 1336 (N.L.R.B. 1939)

In the Matter of TAMPA INTER-OCEAN STEAMSHIP CO., LYRES BROTH-
ERS STEAMSHIP CO., INC., LYRES BROTHERS COASTWISE LINE, INC. and
COMMERCIAL TELEGRAPHERS', MARINE DIVISION, AFL
Cases Nos. R-1340 to R-1342, inclusive .Decided July 31, 1939
Shipping Industry-Investigation of Representatives: controversy concerning
representation of employees: rival organizations-Contract: closed-shop contract
no bar to determination of representatives for next contractual period-Unit
Appropriate for Collective Bargaining: radio operators of three companies em-
ployed in actual service on board vessels or standing by; controversy as to-
Election Ordered
Mr. C. Paul Barker, for the Board.
Mr. E. A. Jimison and Mr. Walter Carroll, of New Orleans, La.,
for the Companies.
Mr. Charles A. Luck, of New Orleans, La., for the C. T. U.
Mr. Theodore Berman, of New Orleans, La., for the A. C. A.
Mrs. Evelyn Neilson Cooper, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
On September 30, 1938, Commercial Telegraphers' Union, Marine
Division, A. F. L., herein called C. T. U., filed with the Regional
Director for the Fifteenth Region (New Orleans, Louisiana), three
separate petitions alleging that a question affecting commerce had
arisen concerning the representation of ship radio operators employed
respectively by Tampa Inter-Ocean Steamship Company and Lykes
Brothers Steamship Company, Inc., both of New Orleans, Louisiana,
and Lykes Brothers Coastwise Line, Inc., Houston, Texas, herein
referred to collectively as the Companies. The petitions requested the
Board to investigate and certify representatives pursuant to Section
9 (c) of the National Labor Relations Act, 49 Stat. 449, herein called
the Act. On February 6, 1939, the National Labor Relations Board,
herein called the Board, acting pursuant to Section 9 (c) of the Act
and Article III, Section 3, of Natonal Labor Relations Board
Rules and Regulations-Series 1, as amended, ordered the Regional
Director to conduct an investigation and to provide for an appropriate
hearing upon due notice; and, acting pursuant to Article III, Section
13 N. L. R. B., No. 125.
1336
TAMPA INTER-OCEAN STEAMSHIP COMPANY 1337
10 (c) (2), of said Rules and Regulations, further ordered that the
three cases be consolidated for the purposes of hearing.
On March 28, 1939, the Regional Director issued a notice of hearing,
copies of which were duly served upon the Companies, upon C. T. U.,
and upon the American Communications Association, herein referred
to as A. C. A., a labor organization claiming to represent employees
directly affected by the investigation. Pursuant to notice, a hearing
was held on April 6, 1939, at New Orleans, Louisiana, before Edward
G. Smith, the Trial Examiner duly designated by the Board. The
Board was represented by counsel, the Companies, C. T. U., and
A. C. A. by their respective representatives. All 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. 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 these rulings and finds that no
prejudicial errors were committed. The rulings are hereby affirmed.
The Trial Examiner reserved ruling on a motion of A. C. A. to dismiss
the petitions on the ground, that C. T. U. could not show proof of
representation. For reasons hereinafter stated,' the motion to dismiss
is hereby denied.
Upon the entire record in the case, the Board makes the following:.
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANIES 2
Tampa Inter-Ocean Steamship Company is a Florida corporation
with offices in Louisiana, Florida, Texas, and New York. It is engaged
in the transportation by water of freight and general cargo and occa-
sionally passengers in coastwise, intercoastal, and foreign trade. It
owns, operates, or charters seven vessels.
Lykes Brothers Steamship Company, Inc.,3 a corporation existing
under and by virtue of the laws of Louisiana, maintains offices in the
States of Florida, Louisiana, Texas, Tennessee, Kansas, and New York.
It is engaged in the transportation of freight, general cargo, and occa-
sionally passengers in coastwise and foreign trade. It owns and
operates 46 vessels.
Lykes Brothers Coastwise Lines, Inc. is a Florida corporation with
offices in Texas, Louisiana, Maryland, and New York. It is engaged
wholly in the transportation of freight and general cargo in coastal
trade between the States. It owns and operates four vessels.
I See Section VI, infra.
2 The findings in this section are based upon a stipulation of facts between counsel for
the Board and the representative of the Companies.
Prior to July 1, 1938, the corporate name was Lykes Brothers-Ripley Steamship
Company, Inc.
1338 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Companies admitted at the hearing, and we find, that they are
engaged in interstate and foreign commerce within the meaning of
the Act.
One radio operator, is employed by the Companies on each vessel • in
active service.
II. THE ORGANIZATIONS INVOLVED
Commercial Telegraphers' Union, Marine Division, is a labor organ-
ization affiliated with the American' Federation of Labor, admitting
to membership radio operators licensed by the Federal Communica-
tions Commission.
American Communications Association (the successor of the Ameri-
can Radio Telegraphists' Association, herein referred to as A. R. T. A.)
is a labor organization affiliated with the Congress of Industrial
Organizations. It likewise admits to membership licensed radio
operators.
During the course of the hearing it was stipulated by the parties,
and we find, that- each of the unions involved is a labor organization
within the meaning of the Act.
III. THE QUESTION CONCERNING REPRESENTATION
On July 8, 1936, the Board certified A. R. T. A. as the bargaining
representative for the Companies' radio operators. Sometime there-
after, on May 26, 1937, the Companies and A. R. T. A. entered into a
written agreement constituting the latter the sole bargaining agent
for all radio operators employed by the Companies. The contract
provided that the Companies would employ none but A. R. T. A. mem-
bers in good standing as radio operators on board their vessels and,
further, that radio operators then employed would be required to
obtain official A. R. T. A. clearance. By its terms, this contract was
to run until September 30, and, if not terminated by either party
upon ten (10) days' prior notice, was to continue thereafter from
year to year unless terminated by either party upon twenty (20) days'
notice prior to the expiration of any yearly period.
About the end of August 1938, Charles A. Luck, southern repre-
sentative of C. T. U., called at the office of E. A. Jimison, Local Man-
ager, Marine Division, of the Companies, for the purpose of intro-
ducing himself. On either the 19th or 20th of September 1938, Luck
again saw Jimison in his office. At this meeting Luck advised Jimison
that C. T. U. was organizing all the steamship companies operating
in New Orleans and that if an election was held then, C. T. U. would
probably win. Jimison responded by saying that the Companies had
an existing contract with A. R. T. A. made pursuant to the Board's
certification of A. R. T. A., and that any change in the bargaining rep-
resentative of the radio operators would have to be handled through,
TAMPA INTER-OCEAN STEAMSHIP COMPANY 1339
the Board. Subsequently, but before the expiration date of the con-
tract, Luck met Jimison on the street, at which time he mentioned
that the matter had been discussed with the Board 4 Neither party
to the contract gave notice of termination on or before September 20,
1938. On September 30, 1938, C. T. U. filed its petitions for investi-
gation and certification of representatives, claiming to represent a
majority of the employees in an appropriate unit.
The Companies and A. C. A. stated that the original contract be-
tween the Companies and A. R. T. A. was automatically renewed on
September 30, 1938, for another year ending October 1, 1939. For
the purpose of this decision we do not find it necessary to decide
whether or not there was such a valid renewal of the contract. If the
renewal was not valid, there is no bar to a determination of representa-
tives in this proceeding. And assuming without deciding that the
renewal on September 30, 1938, was valid, the contract does not bar
a determination of representatives for the next contractual period
after the expiration, on September 30, 1939, of the renewed term.
We find that a question concerning representation of employees of
the Companies has arisen.
IV. THE EFFECT OF THE QUESTION CONCERNING REPRESENTATION UPON
COMMERCE
We find that the question concerning representation which has
arisen, occurring in connection with the operations of the Companies
described in Section 1 above, tends to lead to labor disputes burdening
and obstructing commerce and the free flow of commerce.
V. THE APPROPRIATE UNIT
We have previously found that the radio operators of all three com-
panies'cbnstitute an appropriate bargaining unit.5 At the hearing
in this proceeding, the parties stipulated such a unit to be appropri-
ate. However, A. C. A. and C. T. U. were in disagreement as to
whether the unit should include only the radio operators employed in
actual service, or whether it should also include the operators having
a "stand by" status. A. C. A. contended for the former, and C. T. U.
for the latter, unit.
A radio operator has a "stand by" status during the period when his
ship is laid up, provided that he has not relinquished his claim to
reassignment to such ship upon its return to active service. Evidence
* According to Luck's testimony a representative of C. T . U. has discussed with the
Board 's Regional Office the possibility of filing a petition.
5In the Matters of Lykes, Brothers Steamship Company, Inc., Tampa Inter-Ocean Steam-
ship Company, Lykes Brothers Ripley Steamship Company, Inc. and National Marine
Engineers' Beneficial Association, National Organization of Masters , Mates and Pilots of
America , American ' Radio Telegraphists Association, 2 N. L. R. B. 102.
1340 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
establishes that radio operators in this category, though they may not
be assigned to a ship on a specified date, have sufficient assurance of
reassignment to warrant their being considered regular employees for
the purpose of inclusion within the appropriate unite
We find that all radio operators employed in actual service on board
vessels operated by the Companies or who have a "stand by" status
constitute a unit appropriate for the purposes of collective bargain-
ing, and that said unit will insure to the employees of the Companies
the full benefit of their right to self-organization and to collective
bargaining and otherwise effectuate the policies of the Act.
VI. THE DETERMINATION OF REPRESENTATIVES
At the hearing there was introduced into evidence lists prepared
by the Companies designating the radio operators employed on board
vessels in active service as of April 6, 1939, and the operators last
employed on vessels then laid up.
The C. T. U. representative testified that C. T. U. had authorizations
to represent 21' of the total of 59 operators so listed.8 A. C. A. on
the other hand, introduced into evidence applications for renewed
membership or authorizations of representation, or both, from 45 s of
said 59 men. All the A. C. A. applications and authorizations post-
dated the C. T. U. authorizations. However, because of an apparent
duplication in A. C. A. and C. T. U. authorizations and because the
A. C. A. authorizations were obtained during a period in which it had
a closed-shop contract with the Companies, we have hereinabove de-
nied the motion of A. C. A. to dismiss the petitions and shall order
an election by secret ballot to resolve the question concerning repre-
sentation.
We shall direct that this election begin as promptly as practicable
after the date of this Direction under the direction and supervision
of the Regional Director for the Fifteenth Region who shall deter-
mine in his discretion the exact time, place, and procedure for giving
notices of election and for balloting.
Those eligible to vote will be the employees within the appropriate
unit as of the date of this Direction, including employees who did
not work on such date because they were ill or on vacation, and ex-
cluding employees who may quit or may be discharged for cause
between such date and the date of the election.
6 See In the Matter of Standard Oil Company of New Jersey and American Radio
Telegraphists ' Association, Local No. 2 , C I. 0, 8 N. L. It. B 901.
'The C. T. U. claimed to have 29 authorizations but 8 were for operators not named
on the Companies ' list of April 6, 1939.
8 He was unwilling to offer such authorizations In evidence , fearing that the closed-shop
contract might be invoked against C. T. U. members.
Fifty-five A. C. A. authorizations and/or applications were introduced but 9 were for
men not named on the Companies ' list of April 6, 1939, and 1 was a duplication.
TAMPA INTER-OCEAN STEAMSHIP COMPANY 1341
On 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 repre-
sentations of employees of Tampa Inter-Ocean Steamship Company,
and Lykes Brothers Steamship Company, Inc., both of New Orleans,
Louisiana, and Lykes Brothers Coastwise Line, Inc., Houston, Texas,
within the meaning of Section 9 (c) and Section 2 (6) and (7) of the
National Labor Relations Act.
2. The radio operators employed in actual service on board vessels
operated by the Companies or who have a "stand by" status constitute
a unit appropriate for the purposes of collective bargaining within
the meaning of Section 9 (c) 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, 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 collective bargaining with Tampa
Inter-Ocean Steamship Company, and Lykes Brothers Steamship
Company, Inc., both of New Orleans, Louisiana, and Lykes Broth-
ers Coastwise Line, Inc., Houston, Texas, an election by secret
ballot shall be conducted as soon as convenient and beginning as
promptly as is practicable after the date of this Direction in con-
formity with the rules set forth hereinabove for the conduct of such
election under the direction and supervision of the Regional Director
for the Fifteenth Region , acting in this matter as agent of the
National Labor Relations Board and subject to Article III, Section 9,
of said Rules and Regulations-Series 2, among the radio operators
who are employed in actual service on board vessels operated by the
above-named Companies or who have a "stand by" status, as of the
date of this Direction, including operators who did not work on such
date because they were ill or on vacation and who were then or have
since been temporarily laid off, and excluding operators who have
since quit or been discharged for cause between such date and the
date of the election, to determine whether they desire to be represented
for the purposes of collective bargaining by Commercial Telegra-
phers' Union, Marine Division, AFL, by American Communications
Association, affiliated with the Congress of Industrial Organizations,
or by neither.