The Atlantic Refining Co.

National Labor Relations Board - Board Decisions

Oct 20, 1953

106 N.L.R.B. 1268 (N.L.R.B. 1953)

1268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. The Petitioner 1 asserts that the Union , Local 709, In-
ternational Brotherhood of Teamsters , Chauffeurs, Ware-
housemen & Helpers of America , AFL, which is currently
recognized by the Employer, is no longer the bargaining rep-
resentative of the employees in the proposed units, as de-
fined in Section 9 (a) of the Act.
3. The Petitioner seeks decertification elections in sepa-
rate units of dockmen at the Employers ' two plants at St.
Louis, Missouri . The Employers and the Union contend that
the proposed units are inappropriate because they do not in-
clude truckdrivers and motorcycle drivers at the two plants.
Both Employers are engaged in publishing newspapers at
St. Louis, Missouri . They have bargained on a multiemployer
basis with the Union since 1941 for the dockmen , truckdrivers,
and motorcycle' drivers.2
The dockmen perform the same kind of work at both
plants; their sole duty is to take newspapers off a conveyor
belt and place them on trucks . The truckdrivers then stack
the newspapers in the trucks . The dockmen exercise no spe-
cial skills in performing their work. The record seems to
indicate they are supervised at each plant by a circulation
department supervisor , who also supervises the truckdrivers.
It is clear from the foregoing that the employees sought to be
decertified are arbitrary groupings , comprising neither craft
groups nor distinct and functionally coherent departments.
Accordingly , we find that no question affecting commerce
exists concerning the representation of employees of the Em-
ployers within the meaning of Section 9 (c) (1) and Section 2
( 6) and (7) of the Act, and shall dismiss the petitions.
[The Board dismissed the petitions.]
'He is designated in each petition as an employee of the Employer.
2 The St. Louis Post Dispatch does not have any motorcycle drivers in its employ at
present; the St. Louis Globe Democrat has one. He does the same work as the truckdrivers.
THE ATLANTIC REFINING COMPANY and SEAFARERS
INTERNATIONAL UNION OF NORTH AMERICA, ATLANTIC
AND GULF DISTRICT, AFL, Petitioner . Case No. 4-RC-
2023. October 20, 1953
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 ( c) of the National
Labor Relations Act, a hearing was held before Herbert B.
Mintz, hearing officer. The hearing officer ' s rulings made
at the hearing are free from prejudicial error and are hereby
affirmed.
Upon the entire record in this case , the Board finds:
1. The Employer is engaged in commerce within the mean-
ing of the Act.
106 NLRB No. 226.
THE ATLANTIC REFINING COMPANY 1269
2. The labor organizations involved claim to represent
certain employees of the Employer.
3. A question affecting commerce exists concerning the
representation of certain employees of the Employer within
the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of
the Act.
4. The appropriate unit:
The Petitioner seeks a unit of all unlicensed personnel in
the Employer's marine division, whether on leave or not,
including personnel in the deck, engine, and steward depart-
ments, but excluding all unlicensed personnel employed aboard
the Employer's tugs, barges, and vessels under a foreign flag,
permanent shore-relief personnel, clerical personnel, perma-
nent shoreside repair and maintenance men, temporary em-
ployees, leadermen, stewards, boatswains, and all other
supervisors as defined in the Act. At the hearing, the Petitioner
moved, without objection, to amend the unit description so as
to include the unlicensed personnel aboard the Employer's
inland tanker "Franklin," the only vessel of its type main-
tained by the Employer. The Employer and the Intervenor,
Atlantic Maritime Employees Union, agree that a unit of
unlicensed personnel in the marine division would be appro-
priate. The parties disagree, however, as to the unit placement
of shore-relief personnel, temporary employees, leadermen,
stewards, and boatswains.
L COLLECTIVE- BARGAINING HISTORY
In 1938, the Intervenor entered into a collective-bargaining
agreement with the Employer covering a unit of "the unlicensed
employees of the Marine Department," which included un-
licensed personnel on board ships and shore-relief personnel.
In 1942, the National Maritime Union petitioned for a unit of
unlicensed personnel employed in the deck, engine, and steward
departments of the Employer's deep-sea-going tankers, exclud-
ing leadermen and shore-relief personnel.' The Board excluded
leadermen on the ground that their duties, involving the instruc-
tion of seamen and trainees in seamanship and other work at
the Employer's "Anchorage," substantially differed from the
work of the seagoing personnel. The Board further found that
the shore-relief employees could appropriately constitute a
separate unit or be included with the regular deep- sea-going
personnel. Accordingly, the Board directed elections (1) among
unlicensed personnel in the deck, engine, and steward depart-
ments of the Employer's tankers, excluding leadermen, and
(2) among the Employer's shore-relief employees. The National
Maritime Union was selected by the first group and the
Intervenor by the second group.
In 1946, the Intervenor filed a petition seeking a unit
identical to the one then represented by the National Maritime
1 Atlantic Refining Company, 40 NLRB 1338.
127 0 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union, excluding leadermen and shore-relief personnel. Both
the Employer and the National Maritime Union agreed to the
appropriateness of the proposed unit. The Intervenor won
the election 2 and was certified in 1947.
On June 20, 1947, the Intervenor entered into a collective-
bargaining agreement with the Employer covering a combined
unit of seagoing personnel and shore-relief employees for
which the Intervenor was separately certified.' In 1948, when
the Anchorage was established as a hostel for personnel
awaiting assignment to tankers, the parties entered into an
oral agreement with respect to the leadermen, who had been
excluded from the certified units, regarding their wages
and living allowances. This agreement was reduced to writing
on March 20, 1952, and was modified in March 1953.
II. UNIT PLACEMENT
A. Shore-relief personnel: The Petitioner would exclude
the shore-relief personnel on the ground that their interests
and duties are not sufficiently allied with those of the seagoing
personnel to warrant inclusion in the unit. The Employer
and the Intervenor urge their inclusion in the unit.
The Employer has 4 shore-relief crews, 3 stationed in the
Philadelphia area and 1 in Atreco, Texas. Each 4-man crew
consists of a quartermaster, pumpman, oiler, and fireman-
watertender. When a company-owned tanker puts in at Phila-
delphia or Atreco with cargo, the regular ship's crew is
afforded a 15-hour relief period during which the shore-relief
members relieve the ratings for which they are qualified and
act primarily as watchstanders under the immediate super-
vision of a licensed deck officer. The quartermaster relieves
the watch on deck, assists the pumpman in handling valves
and discharging cargo, attends the mooring lines, and tours
the vessel to make security and equipment checks; the pump-
man handles the vessel's cargo pumps in discharging cargo;
the fireman maintains the pressure in the boilers; the oiler
maintains all the auxiliary equipment. When repairs are made
in the engine room, the shore-relief crew is required to test
the equipment. If the vessel is being readied for the shipyard,
this crew performs the butterworth operations, which consist
of washing out the oil tanks. After the cargo is discharged,
the crew immediately starts loading ballast. When necessary,
the crew assists in shifting vessels from one dock to another
which, at times, involves crossing a navigable river. When
a tanker puts in at a port where no shore-relief crew is
available, the regular crew performs these duties.
All shore-relief employees have had sea experience and
have been transferred from the Employer's tanker fleet. At
times, shore-relief personnel are sent back to sea on their
2 The Atlantic Refining Company, 71 NLRB 1347.
3This agreement has been continued but is not raised as a bar to this proceeding.
THE ATLANTIC REFINING COMPANY
1271
own request or when not performing satisfactory work on
shore. Each member of the shore-relief crew, like members
of the regular crews, carries a rating certificate validated
by the United States Coast Guard and is eligible for services
provided by the United States Public Health Service to merchant
seamen . The current contract between the Employer and
the Intervenor indicates that shore-relief crews receive
substantially the same rates of pay as regular crew members,
the same vacations, and their seniority is computed for
promotion, demotion, or layoff in the same way. While shore-
relief personnel receive a monthly living allowance of $60,
this is to compensate for the cost of room and board which
regular crew members receive on board ship.
In view of the identity of duties and community of interests
between the shore-relief employees and the seagoing per-
sonnel, and in light of the history of collective bargaining,
we find, contrary to the Petitioner's contention, that the
shore-relief employees may be included in the unit of sea-
going personnel. Accordingly, we shall include them in the
proposed unit.4
B. Temporary employees: The Petitioner contends that
temporary employees should be excluded or, if included,
should be ineligible to vote. The Employer and the Intervenor
argue that they should be included and found eligible to
vote.
The temporary employees are college students employed
at sea during summer vacations, usually in "novice" jobs
such as wipers, messmen , and ordinary seamen. All temporary
employees, like regular personnel, must be certificated by
the United States Coast Guard, although this is normally a
routine matter following the Employer's notification to the
Coast Guard of their employment. The Petitioner concedes
that temporary employees have the same working conditions
as regular seagoing employees and receive the same rates
of pay. However, the Petitioner argues that the temporary
employees are ineligible to vote as they return to school
after 1 or 2 trips during the summer, and that the Employer
hires students with knowledge that they desire temporary
employment to fill vacancies during vacations. The Employer
claims that it has no classification of temporary employees
and, while admitting that it has employed college students to
fill the less attractive ratings, contends that they are con-
sidered permanent employees. The record does not clearly
indicate whether or not these employees return during succes-
sive summers.
As the temporary employees perform duties functionally
related to, and possess interests closely allied with, those
of the employees in the proposed unit, we shall include them.
However, as the record does not establish whether these
4See Standard Oil Company, 60 NLRB 776; Standard Oil Company of New Jersey, 43 NLRB
528.
1272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees return to the Employer's employ for more than
one season , we shall permit them to vote, subject to challenge
if they do not have a reasonable expectation of permanent
employment or of being rehired from year to year.
C. Leadermen: The Petitioner would exclude leadermen
as supervisors or, alternatively, as shoreside personnel
whose duties and interests differ from those of seagoing
personnel. The Employer and the Intervenor urge their
inclusion.
The Employer maintains an Anchorage at a marine terminal
in Philadelphia where its fleet personnel returning from
vacation, sick leave, or rotation are quartered while awaiting
assignment to ships. While at the Anchorage, these employees,
under the general supervision of a terminal captain, perform
such duties as storing and painting vessels, making nets,
sewing canvas, supplementing shore-relief crews, assisting
in docking and undocking vessels, and feeding Anchorage
personnel.
The 4 leadermen and 1 chief leaderman at the Anchorage
are certificated seamen drawn from the Employer's fleet
who have worked for relatively long periods for the Employer.
Each morning , the terminal captain informs the chief leader-
man of the jobs to be done that day and together they select
from a card file of Anchorage personnel the necessary em-
ployees. The terminal captain, with the advice of the chief
leaderman, assigns these employees to 4 groups. Normally,
a leaderman is in charge of each group but occasionally a
boatswain, pumpman, or able-bodied seaman is placed in
charge. While the testimony is conflicting, it appears that
only the terminal captain has authority to assign work, grant
time off, or discipline employees; that hiring is done solely
by the personnel officer with the consent of ship captains;
that leadermen usually perform the same duties as the men
in the gangs of which they have charge; that on occasion they
are reassigned to sea duty; and that the chief leaderman is
primarily an administrative employee who keeps the card
file of Anchorage personnel up to date, takes charge of work
gangs, and performs manual labor. Moreover, the base pay
of leadermen is either equal to or less than the pay of boat-
swains doing manual labor in work gangs.
Leadermen, as well as the Anchorage employees, were
excluded from the unit in the 1942 and 1946 cases involving
the Employer, in which leadermen were not found to possess
supervisory authority. In the instant case, while the matter
is not entirely free from doubt, we are not convinced that the
leadermen are supervisors within the meaning of the Act.
Nor are we convinced that leadermen should be excluded
because, as the Petitioner alternatively suggests , they are
shoreside personnel whose duties and interests differ from
those of the seagoing personnel. The leadermen work along
with the Anchorage personnel, whom all parties agree should
be included; they are certificated seamen drawn from the
THE ATLANTIC REFINING COMPANY 1273
fleet and occasionally return to sea; they receive the same or
less pay than the able-bodied boatswains who work in the
labor gangs; and they have been bargained for together with
the seagoing and shore-relief personnel since 1947. More-
over, since the Board's prior cases involving the Employer,
the character of the Anchorage and the nature of the leader-
men's duties have changed. Under all the circumstances, we
find that the duties and interests of leadermen are sufficiently
related to those of the employees in the unit to warrant their
inclusion.
D. Stewards: The Petitioner maintains that stewards must
be excluded as supervisors. The Employer and the Intervenor
contend that stewards are not supervisors, have been included
in all their contracts, and therefore should be included.
Each of the Employer's tankers is divided into a deck,
engine, and steward department, under the ultimate super-
vision of the master. The steward department, which feeds
the crew, maintains the officers' quarters, and takes care
of the ship's linen, consists of a steward, a chief cook, a
second cook, a galley man, and four messmen.
The 23 stewards are unlicensed certificated seamen who also
have been certified by the United States Public Health Service
as food handlers. There are no licensed officers in the steward
department, and there is no intermediary in the chain of com-
mand between steward and master. While at sea, stewards are
directly supervised by the master. In port, they are under the
authority of the Employer's port steward. Stewards arrange for
the preparation and serving of meals; keep inventories of ship
stores; maintain the sanitary condition of officers' and stewards'
quarters, messrooms, and the galley; attend to vermin control;
maintain the linen supply; and make work assignments. The
steward assigns overtime work to employees in his department,
subject to approval of the master; has jurisdiction over the
first step in the contract grievance procedure; has, in at least
one instance, discharged or effectively recommended the dis-
charge of a second cook; receives $43 a month more than the
chief cook, and considerably more than the lesser ratings in
his department; and lives in separate quarters on board ship.
As the Employer asserts, the Board has included stewards
in a unit of unlicensed personnel in the Employer's deck,
engine , and steward departments.5 However, in none of these
cases was the question of the supervisory status of stewards
considered.6 In Cities Service Oil Co. of Pennsylvania,' the
Board found, on facts closely paralleling those presented
herein, that stewards possessed supervisory authority, and
5American France Line, et al., 3 NLRB 64 (consolidated cases involving the Employer);
Atlantic Refining Company, 40 NLRB 1338; The Atlantic Refining Company, 71 NLRB 1347.
6 The Employer also relies upon our decisions 'in Standard Oil Co., 43 NLRB 528 and
Midland Steamship Line, Inc., 53 NLRB 727, in which the Board included stewards who had
supervisory authority as now defined in the Act. However, both cases were decided before
the 1947 amendments added the definition of "supervisor " to the Act.
7 80 NLRB 1512.
1274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
excluded them from a unit of seagoing employees. Accordingly,
we find, contrary to the contentions of the Employer and the
Intervenor, that the stewards are supervisors within the meaning
of the Act. We shall therefore exclude them.8
E. boatswains: The Petitioner would exclude boatswains
from the unit as supervisors. The Employer and the Intervenor
urge their inclusion.
The 22 boatswains are employed in the deck departments
aboard the Employer's tankers. These departments, charged
with maintaining the deck and performing navigational tasks,
are headed by a chief mate with the assistance of a second
and third mate, all of whom are licensed officers under the
direct supervision of the master. The chief mate is directly
responsible to the master for upkeep of the vessel, loading and
discharging cargo, ordering and inventorying deck stores, and
supervising and directing deck department personnel. The chief
mate also stands the 4 to 8 watch both in the forenoon and the
afternoon; the second mate the 12 to 4 watch, both a. m. and
p. m.; and the third mate the 8 to 12 watch in the forenoon and
afternoon. During their watches, the mates direct the activities
of three seamen assigned to their watches as lookouts or
helmsmen. If watch duty is not required of these seamen between
8 a. m. to 5 p. m., they are assigned to deck maintenance
work.
The boatswain, who is an unlicensed, certificated seaman,
is in charge of three deck maintenance men and any other
seamen who may be detailed to him from the watch, and is on
duty from 8 a. m. to 5 p. m. Shortly before 8 a. m. each day,
when the chief mate goes off watch, the boatswain appears on
the bridge, where the chief mate gives himthe work orders for
the day, which might include painting, chipping, splicing lines,
or washing the deck. The boatswain is then ordered to report
back to the bridge when the job is completed.
So far as appears, the Employer's boatswains are not normally
certificated as such by the Coast Guard but are hired as able-
bodied seamen boatswains and are assigned to boatswain
positions because of length of service, experience, industrious-
ness, and ability to relay orders intelligently. When a boatswain
becomes ill at sea, his position is left open or another able-
bodied seaman is assigned to do his work. The record reveals
that boatswains have no authority to hire, discharge, 9 discipline,
or effectively recommend such action with respect to the deck
maintenance men; that they do not exercise independent judg-
ment in directing the work of others; that they do not process
8Shipowners ' Association of the Pacific Coast and Its Member Companies, 100 NLRB
1250. Nicholson Transit Company, 85 NLRB 955; The Kinsman Transit Company, 75 NLRB
150; Wilson Transit Company, 75 NLRB 181; The M. A. Hanna Company, 75 NLRB 185.
See Hutchinson & Co., 101 NLRB 90 (stewards excluded by consent of parties).
9 We find unpersuasive the testimony of one of the Petitioner 's witnesses that he heard
from others on board ship that a boatswain had discharged a deckman, and of another wit-
ness who stated that he as a boatswain had discharged a man but who did not know whether
or not that man had obtained a berth on another of the Employer's tankers.
THE ATLANTIC REFINING COMPANY 1275
grievances as provided in the contract; that they do not grant
time off; that they perform the same manual duties as the deck
department employees who are in the unit; and that their
step-wage increases , vacation allowances, and overtime rates
are the same as those of the other unlicensed personnel in the
unit.
In view of the foregoing, and on the basis of the entire record,
we find that the boatswains do not possess the indicia of super-
visory authority within the meaning of the Act. Accordingly, we
shall include them in the unit.
We find that all unlicensed personnel in the Employer's
marine division, whether on leave or not, including personnel
in the deck, engine, and steward departments, the unlicensed
personnel in these departments on the inland tanker "Franklin,"
the shore-relief personnel, the leadermen, the boatswains, and
the temporary employees, but excluding all unlicensed personnel
employed aboard the Employer' s tugs, barges, and vessels
under a foreign flag, clerical personnel, permanent shoreside
repair and maintenance men, stewards , and all other super-
visors within the meaning of the Act, constitute a unit appro-
priate for the purposes of collective bargaining within the
meaning of Section 9 (b) of the Act.
5. Determination of representatives:
The Intervenor requested that the Board permit employees
of the Employer who are in the Armed Forces to vote by mail
ballot. The Petitioner has objected to this method of balloting.
The Employer takes no position with respect to this
issue.
On the basis of an extensive survey conducted among the
Board's Regional Directors, the Board in 1950 decided that
administrative difficulties made the mail balloting of military
personnel impracticable. 10 Accordingly, the Board reiterated
its previous policy that employees in the Armed Forces are
eligible to vote only if they appear in person at the polls. 11 We
perceive no reason for departing from that policy in this case.
Therefore, only those employees in the Armed Forces who
appear in person at the polls shall be eligible to vote in the
election directed herein.
As indicated above, the temporary employees are also eligible
to vote, subject to challenge.
[Text of Direction of Election omitted from publication.]
Member Murdock took no part in the consideration of the
above Decision and Direction of Election.
10See Link-Belt Company, Philadelphia Operations , 91 NLRB 1143.
"E.g., Wilson & Co., Inc., 37 NLRB 944; Mine Safety Appliances Co., 55 NLRB 1190;
The Hobart Manufacturing Company, 63 NLRB 1384.