Tide Water Associated Oil Co.

National Labor Relations Board - Board Decisions

Nov 12, 1938

9 N.L.R.B. 823 (N.L.R.B. 1938)

In the Matter of TIDE WATER ASSOCIATED OIL COMPANY and UNITED
LICENSED OFFICERS OF THE U. S. A.
In the Matter of TIDE WATER ASSOCIATED OIL COMPANY and MARINE
ENGINEERS' BENEFICIAL ASSOCIATION -
In the Matter of TIDE WATER ASSOCIATED OIL COMPANY and
TIDEWATER TANKER OFFICERS ASSOCIATION
Cases Nos. R-743 to R-746, inclusive. Decided November 12, 1938
Water Transportation Industry-Investigation of Representatives : contro-
versy concerning representation of employees : refusal of Company to recognize
any union as an exclusive representative because of conflicting claims of
several-Units Appropriate for Collective Bargaining : separate units for licensed
deck officers and licensed marine engineers , respectively ; no controversy as to :
masters included within unit composed of licensed deck officers, following
previous decisions in absence of convincing proof to contrary-Election Ordered
Mr. Christopher W. Hoey, for the Board.
Korlin, Campbell, Hickox, Keating c6 McGrann, by Mr. E. S. Mur-
phy, of New York City, and Mr. R. K. Kelley, of New York City, for
the Company.
Mr. E. P. Trainer, of New York City, for the M. E. B. A.
Mr. Max Lustig, of New York City, for the Inland Boatmen of
the Atlantic and Gulf.
Mr. Edward T. Pinchin, of New York City, for the M. M. P.
Mr. B. L. Todd, of New York City, for the U. L. O.
Mr. John J. Collins, Mr. Horace Mcllvaine, and Mr. Stanley Mat-
thews, all of New York City, for the T. T. O. A.
Mr. Walter T. Nolte, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTIONS
STATEMENT OF THE CASE
On November 16, 1937, United Licensed Officers of the United
States of America, herein called the U. L. O., filed with the Regional
Director for the Second Region (New York City) two petitions alleg-
ing that questions affecting commerce had arisen concerning the rep-
resentation of employees of Tide Water Associated Oil Company,
9 N. L. R. B., No. 75.
823
824 NATIONAL LABOR RELATIONS BOARD
New York City, herein called the Company, and requesting investiga-
tions and certifications of representatives pursuant to Section 9 (c)
of the National Labor Relations Act, 49 Stat. 449, herein called the
Act. On December 17, 1937, Marine Engineers' Beneficial Associa-
tion, herein called the M. E. B. A., filed a similar petition with the
Regional Director. On December 28, 1937, the National Labor Re-
lations Board, herein called the Board, acting pursuant to Section
9 (c) of. the Act and Article III, Sections 3 and 10 (c) (2), of Na-
tional Labor Relations Board Rules and Regulations-Series 1, as
amended, ordered an investigation and authorized the Regional
Director to conduct it and to provide for an appropriate hearing upon
due notice and ordered a consolidation of the cases for the purpose
of hearing.
On December 30, 1937, the Regional Director issued notices of hear-
ing, copies of which were duly served upon the Company, the U. L.
0., and the M. E. B. A., and also upon No. 3, International Union
of Operating Engineers; Local 1503, International Longshoremen's
Association; and National Organization Masters, Mates and Pilots
of America, herein called the M. M. P., labor organizations claiming
to represent employees directly affected by the investigation. Pur-
suant to the notices, a hearing was held on January 4, 1938, at New
York City, before- H. R. Korey, the Trial Examiner duly desig-
nated by the Board. At this hearing the U. L. O. failed to appear
and the Company entered into separate agreements for consent elec-
tions with the M. M. P. and M. E. B. A. Thereafter, on January
7, 1938, the Board ordered the severance of the cases and their con-
tinuation as separate proceedings. On the same day, the Board issued
an order permitting the M. E. B. A. to withdraw its petition,' which
permission was revoked by the Board by an order dated February
17, 1938. On February 24, 1938, the Board, acting pursuant to Article
III, Section 10 (c) (2), of the Rules and Regulations-Series 1, as
amended, again ordered the consolidation of the cases for the pur-
pose of hearing. On March 5, 1938, the Regional Director issued
notices of further hearing of the three cases, copies of which were
duly served upon the same parties and in the same manner as in the
case of the original notices of hearing. Pursuant to two telegraphic
notices of postponements, a second hearing was held on March 17,
1938, at New York City, before Mapes Davidson, the Trial Examiner
duly designated by the Board. Tidewater Tanker Officers Associa-
tion, herein called the T. T. O. A., appeared at the hearing and, with-
out intervening or requesting to be made a party, requested a place on
the ballot in the event that an election was held. The Trial Examiner
heard argument by the parties on this matter and the hearing closed
without the introduction of testimony.
1 Case No. R-745.
DECISIONS AND ORDERS 825
On March 18, 1938, the T. T. O. A. filed with the Regional Direc-
tor a petition similar to the three previously filed. On May 9, 1938,
the Board, acting pursuant to Section 9 (c) of the Act and Article
III, Sections 3, 8, and 10 (c) (2), of the Rules and Regulations-
Series 1, as amended, ordered an investigation and authorized the
Regional Director to conduct it and to provide for an appropriate
hearing upon due notice, ordered the reopening of the proceedings
based on the petitions previously filed by the U. L. 0.2 and the M. E.
B. A.3 for the introduction of further evidence and authorized the
Regional Director to issue a notice of such further hearing, and or-
dered a consolidation of all four cases for the purpose of hearing.
On May 12, 1938, the Regional Director issued notices of hearing
of the four cases, copies of which were duly served upon the parties
previously served in the three matters first mentioned and also upon
the T. T. O. A. Pursuant to the notices, a hearing was held on May
19 and 20, 1938, at New York City, before Mapes Davidson, the
Trial Examiner duly designated by the Board. The Board, the Com-
pany, the M. E. B. A., the U. L. 0., the M. M. P., and the T. T. O. A.
were represented by counsel or their officers or agents and partici-
pated 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 objec-
tions to the admission of evidence. The Board has reviewed the rul-
ings of the Trial Examiner and finds that no prejudicial errors were
committed. The rulings are hereby affirmed.
Upon the entire record in the cases, the Board makes the
following :
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
Tide Water Associated Oil Company maintains its principal of-
fice at 17 Battery Place, New York City, and is engaged in the pro-
duction, refining, marketing, and transportation of petroleum and
petroleum products.
Transportation of its products by water is conducted by the Ma-
rine Department of the Company which operates a fleet of 10 ocean-
going vessels and 5 coastwise vessels on the Atlantic coast. These
vessels, known as tankers, transport petroleum from the States of
Texas and Louisiana to discharge ports at Bayonne, New Jersey;
Revere, Massachusetts; and Portland, Maine. In operating these
tankers the Company employs, among others, more than 100 licensed
deck and engine department personnel.
s Cases Nos. R-743, R-744.
• Case No. R-745.
826 NATIONAL LABOR RELATIONS BOARD
We find that the Company is engaged in traffic, transportation, and
commerce among the several States and that the licensed personnel of
both the deck and engine departments on its tankers operating out
of Atlantic and Gulf ports are directly engaged in such traffic, trans-
portation, and commerce.
H. THE ORGANIZATIONS INVOLVED
United Licensed Officers of the United States of America is an in-
dependent labor organization not affiliated with any other body. It
admits to its membership licensed deck officers and licensed marine
engineers.
Marine Engineers' Beneficial Association is a labor organization af-
filiated with the Committee for Industrial Organization. It admits
to its membership licensed marine engineers.
National Organization Masters, Mates and Pilots of America is a
labor organization affiliated with the American Federation of Labor.
It admits to its membership licensed deck officers.
Tidewater Tanker Officers Association is an independent labor
organization not affiliated with any other body. It admits to its
membership licensed officers and engineers who have been employed
"more than 6 months in the fleet of the Tidewater Associated Oil Co."
III. THE QUESTION CONCERNING REPRESENTATION
In one of its petitions the U. L. O. alleges that it represents a
majority of the licensed deck officers employed by the Company,
including masters and first, second, and third officers, and in its
other petition alleges that it also represents a majority of the licensed
engineers. The petition of the M. E. B. A. alleges that a majority
of the licensed engineers are represented by that organization. In
all three petitions it is alleged that the Company has refused to
bargain collectively with the petitioner. The T. T. O. A., in its
petition, claims to represent a majority of both licensed deck officers
and licensed engineers employed by the Company. The M. M. P.,
an intervenor, claims to represent a majority of the licensed deck
officers.
The Company has refused to recognize any of the organizations
as an exclusive representative of employees because of their conflict-
ing claims, although requested to do so. Since the first hearing in
these proceedings, during the course of which it entered into separate
agreements with the M. M. P. and the M. E. B. A., consenting to the
conduct of elections by the Board among the licensed deck officers
and the licensed engineers, respectively, the Company's position has
been that elections should be held.
DECISIONS AND ORDERS 827
We find that questions have arisen concerning the representation of
employees of the Company and that such questions tend to lead to
labor disputes burdening and obstructing commerce and the free flow
of commerce.
IV. THE APPROPRIATE UNIT
The U. L. O. claims that the licensed deck officers, including
masters, constitute a unit appropriate for collective bargaining and
that the licensed engineers likewise constitute a unit appropriate
for such purposes. In its petition the T. T. O. A. alleged that it
represented both deck officers and engineers and stated that the two
groups should be included within a single collective bargaining unit.
At the hearing, however, representatives of the T. T. O. A. agreed
to the two units as defined by the U. L. O. Division of the licensed
personnel into two units is, of course, acceptable to both the M. E. B.
A. and M. M. P., since the former represents only licensed engineers
and the latter only licensed deck officers. Thus, the position taken
by all the labor organizations, dividing licensed deck officers and
licensed engineers into two separate units, accords with our previous
,decisions in which the same question has arisen.4 We find that a
similar determination is proper here.
With respect to the unit composed of licensed deck officers, the
M. M.' P. claims that masters should be excluded. Both the U. L. O.
and T. T. O. A. claim, however, that masters should be included
within the unit along with other licensed deck officers. It was stated
for the record by the representative of the T. T. O. A. that the
masters of the Tidewater fleet had expressed a desire to be represented
in the same unit with the other licensed deck officers. It was stipu-
lated by the representative of the M. M. P. that that organization
admits masters to membership and customarily represents them in
negotiations. Under these circumstances, and in the absence of a
convincing showing that masters are properly separable from other
licensed deck officers for the purposes of collective bargaining, we
find that they should be included in the unit. Under closely
analogous circumstances we have recently reached a similar result .5
We find that the licensed deck officers, including masters, employed
by Tide Water Associated Oil Company on vessels operating out
of Atlantic and Gulf ports constitute a unit appropriate 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-
4 flatter of Grace Line, Inc., and Panama Mail Steamship Company and National Marine
Engineers ' Beneficial Association, Local No. 33, 2 N L. R . B. 369, at p. 375 , and cases there
cited ; and also cases cited in footnote 5, antra.
5Matter of Standard Oil Company of New Jersey and United Licensed Officers of the
U. S. A, 8 N. L. R B. 936; Matter of Seas Shipping Company and National Oigani-
mation of Masters, Mates and Pilots of America, 8 N. L. R . B. 422.
828 NATIONAL LABOR RELATIONS BOARD
organization and to collective bargaining and otherwise effectuate the
policies of the Act.
We find also that the licensed engineers employed by Tide Water
Associated Oil Company on vessels operating out of Atlantic and
Gulf ports constitute a unit appropriate for the purposes of collec-
tive 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 effectuate the policies of the Act.
V. THE DETERMINATION OF REPRESENTATIVES
Pay rolls submitted by the Company show that as of April 1938,
it employed 56 licensed deck officers, including masters. Initiation
fees were paid to the T. T. O. A. by 48 of these licensed deck officers,
including masters. There is no documentary evidence to support
the representation claims of any organization other than the T. T. 0.
A., but the question of representation is not free from doubt in view
of the claims of the U. L. O. and M. M. P. The M. M. P. chose to
introduce no documentary evidence and the U. L. O. was unable to do
so because its records were impounded as a result of a court proceed-
ing involving two factions of the organization. The U. L. O.'s claim
is, however, supported by the testimony of R. K. Kelly, marine
manager for the Company, to the effect that cards presented to him
by the U. L. O. in connection with a claim for recognition in August
of 1937 contained the names of more than 50 per cent of the licensed
deck officers, including masters, and licensed engineers considered
together.
According to the pay rolls referred to above, the Company em-
ploys 59 licensed engineers. Of these engineers, 40 have paid in-
itiation fees to the T. T. O. A. and 30 have signed cards authorizing
the M. E. B. A. to represent them, 22 having chosen both labor or-
ganizations. In addition, there is the claim of the U. L. O. referred
to in the preceding paragraph. It is apparent that no representa-
tive of the licensed engineers can be determined on the basis of the
present record.
We find that the questions which have arisen concerning the rep-
resentation of employees of the Company can best be resolved by
the holding of elections by secret ballot, We will accordingly direct
that such elections be held among employees in each of the two units
found to be appropriate.
The agreements for consent elections executed between the Com-
pany and the M. M. P. and M. E. B. A., respectively, at the first
hearing on January 4, 1938, provide that persons employed when a
vessel is posted with a notice of election and who are still employed
when that vessel is voted shall be eligible to participate in the
ballot, provided that employees on vacation with pay at the time
DECISIONS AND ORDERS 829
of the voting shall be permitted to cast their ballots at the Regional
Office of the Board upon their return. It was ,further provided in
such agreements that those eligible to vote should include one night
relief engineer and one night relief mate who are to vote when the
ship on which they last served is voted. Although the U. L. O. and
the T. T. O. A. were not parties to these agreements, they raised no
objection during the course of the hearings to the above provisions
with respect to eligibility. Since these provisions are substantially
in accord with our own practice as to eligibility, we hereby adopt
them for the purposes of the elections.
We will direct that these elections be held as soon as convenient,
and beginning as promptly as practicable, under the direction and
supervision of the Regional Director for the Second Region (New
York City), who shall determine in her discretion the exact time,
place, and procedure for posting notices of election and for balloting
on each vessel, provided, however, that each vessel be posted with a
notice of election, a sample ballot, a list of employees eligible to vote,
and a notice of the time and place where balloting will be conducted
at least 48 hours before the balloting takes place.
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. Questions affecting commerce have arisen concerning the repre-
sentation of employees of Tide Water Associated Oil Company, New
York City, within the meaning of Section 9 (c) and Section 2 (6)
and (7) of the National Labor Relations Act.
2. The licensed deck officers, including masters, employed by Tide
Water Associated Oil Company on vessels operating out of Atlantic
and Gulf ports constitute a unit appropriate for the purposes of
collective bargaining, within the meaning of Section 9 (b) of the
National Labor Relations Act.
3. The licensed engineers employed by Tide Water Associated
Oil Company on vessels operating out of- Atlantic and Gulf ports
constitute a unit appropriate for the purposes of collective bargain-
ing, within the meaning of Section 9 (b) of the National Labor
Relations Act.
DIRECTION OF ELECTIONS
By virtue of and pursuant to the power vested in the National
Labor Relations Board by Section 9 (c) of the National Labor
Relations Act, 49 Stat. 449, and pursuant to Article III, Sections
8 and 9, of National Labor Relations Board Rules and Regulations-
Series 1, as amended, it is hereby
830 NATIONAL LABOR RELATIONS BOARD
DIRECTED that, as part of the investigation authorized by the Board
to ascertain representatives for collective bargaining with Tide Water
Associated Oil- Company, New York City, elections by secret ballot
shall be conducted as soon as convenient, and beginning as promptly
as practicable after the date of this Direction, in conformity with
the rules set forth in Section V above for the conduct of elections,
under the direction and supervision of the Regional Director for
the Second Region, acting in this matter as agent for the National
Labor Relations Board, and subject to Article III, Section 9, of said
Rules and Regulations :
1. Among the licensed deck officers, including masters, employed
by Tide Water Associated Oil Company on vessels operating out of
Atlantic and Gulf ports to determine whether they desire to be
represented by United Licensed Officers of the United States of
America; National Organization Masters, Mates, and Pilots of
America; or Tidewater Tanker Officers Association, for the pur-
poses of collective bargaining, or by none of them; and
2. Among the licensed engineers employed by Tide Water Asso-
ciated Oil Company on vessels operating out of Atlantic and Gulf
ports to determine whether they desire to be represented by United
Licensed Officers of the United States of America, Marine Engineers'
Beneficial Association, or Tidewater Tanker Officers Association, for
the purposes of collective bargaining, or by none of them.