United States Lines Co.

National Labor Relations Board - Board Decisions

Apr 9, 1942

40 N.L.R.B. 363 (N.L.R.B. 1942)

In the,Matter Of UNITED STATES LINES COMPANY and MARINE DIVISION,
COMMERCIAL TELEGRAPHERS UNION, A. F. OF L.
Case No. R-2207
THIRD SUPPLEMENTAL DECISION
AND
DIRECTION
April 9,1942 1
On November 24 and December 29, 1941, the National Labor Rela-
tions Board, herein called the Board, issued a Supplemental Decision
and Direction and a Second Supplemental Decision and Supplemental
Direction 1 in which the Board, acting pursuant to Section 9 (c) • of
,the National Labor Relations Act, 49 Stat. 449, and Article III, Sec-
tion 9, of National Labor Relations Board Rules and Regulations-
Series 2, as amended, directed that a hearing be held for the purpose
of admitting evidence on the issues of whether or not one Blatt, one
Howard, and'A. Vadas were employees of United States Lines Com-
pany, herein called the Company, on December 12, 1940, and eligible
to vote in the election previously directed and held among the radio
operators of the Company.2
Pursuant to notice, a hearing was held on January 12, 13, 19, and
20, 1942, at New York City, before Charles' E. Persons, the Trial
,Examiner duly designated by the Chief Trial Examiner. The Board,
,the Company, American Communications Association, herein called
the- A. C. A:, and Marine Division, Commercial Telegraphers- Union,
herein-called the C. T.' U., were represented by counsel 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 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 affirmed. On February 1 and
1 36 N. L. R. B. 1215 ; 37 N. L R. B 1006.
2 28 N L R B.896; 29 N . L R. B. 126
40 N. L. R. B., No. 59.
363
364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
9, 1942, respectively, the A. C. A. and the C. T. U. filed briefs, which
the-Board has considered.
Upon the foregoing record, the Supplemental Election Report, the
Objections, the Report on Objections, and the record previously made,
the Board, acting pursuant to Article III, Sections 8 and 9, of National
Labor Relations Board Rules and Regulations-Series 2, as amended,
hereby makes the following :
SUPPLEMENTAL FINDINGS OF FACT
Blatt and Howard
From approximately November 4, 1940 , to approximately January
8, 1941 , the S. S. Manhattan , one of the Company's vessels, was laid
up at port for repairs . Prior and subsequent to this lay-up, Blatt
and Howard were employed on this vessel as radio operators. Dur-
ing the lay-up, they did not perform services for the Company and
were not on its pay roll. The Company and the C. T. U. contend
that Blatt and Howard were discharged when the Manhattan was
laid up, were not employees of the Company on December 12, 1940,
and were therefore ineligible to vote in the election . The A. C. A.
urges that they were "temporarily laid off" and were therefore
eligible to vote.3
Four of the five radio operators who worked on the Manhattan
-immediately before the lay-up, did not perform services and were
not on the pay roll during the lay-up. It appears that some of the
other employees who were also on the vessel when it laid up con-
tinued to perform services for the Company during the lay-up. The
record discloses that on two prior occasions when the Manhattan was
laid up for overhauling or repairs , its radio operators were not
discharged during the lay-up but worked on gangway and bridge
watch. The Company 's general manager testified that while a ship
is in the repair yard, it generally has a skeleton crew , as, well as
one radio operator to look after the radio equipment. -
When the Manhattan laid up, or shortly thereafter , the Company
contemplated that it would resail in January or February 1941, and
this fact was publicized . Three ( including Blatt and Howard) of
the five radio operators who were on the Manhattan when it laid
up resailed with it after the lay-up . It has been customary for "quite
a few" of the Manhattan 's quartermasters and seamen to return to it
after a lay-up. Under circumstances similar to those which sur-
rounded the Manhattan 's lay-up, it is customary , both with - the -Com-
I In the Board 's Decision and Direction of Elections , as amended , radio operators "tem-
porarily laid off" were included among those eligible to vote.
UNITED STATES LINES COMPANY 365
pany and in the industry generally, for those who are employed on a
vessel when it lays up to resail with it, and this has been the custom
with the Company for many years.
The A. C. A.'s assignment of men to ships of the Company and of
other companies, with'which it had collective bargaining ,agreements
during the period in question, November 4, 1940 to January 8, 1941,
was governed by its National Assignment Rules, which became
effective in August or September 1940. In accordance with these
rules and the A. C. A.'s practice under them, one who is not working
on a vessel because it is laid up has the option of placing himself
either on the A. C. A.'s unemployed list or stand-by list. On the
unemployed list are included those who are regarded by the A. C. A.
as unemployed and eligible for employment with any company and
on any vessel. The stand-by list is composed of those who, "during
periods of lay-offs, vacations, etc.," wish to stand by a particular
vessel from which they have come off and to resail with it; persons
on such a list are, under the Assignment Rules, regarded as employed
and are not' eligible for assignment to any vessel other than that for
which they are standing by. Persons who do not place their names
on the stand-by list lose all claim to their positions when the ship
resails. The Company is not notified whether a man has elected to
appear on the stand-by list or on the unemployed list, and it did not,
know until January 8, 1941, of a few clays prior thereto, whom the
A. C. A. would assign as radio operators on the Manhattan for its
trip after the lay-up.
Platt and Howard were on the A. C. A.'s stand-by list for the
Manhattan during the lay-up and were reassigned by the A. C. A.
to that vessel when it resailed. During the lay-up neither Blatt nor
Howard was employed elsewhere.
When a ship is prepared to resail after a lay-up, it is the practice
of the Company to call the A. C. A. for radio operators and to
employ those sent by the A: C. A. if they are competent, and the
Company exercises no control over the A. C. A.'s selection of the men.
This practice was followed by the Company when the Manhattan
resailed after the lay-up in question .4
No reference to a discharge during the lay-up of the Manhattan
appears on either Blatt's or Howard's employment card kept by the
Company. Under the Rules and Regulations of the Federal Coln-
munications Commission, a radio operator's license must be en-
dorsed by the master of the vessel or other designated individual
It appears that there was some disagreement between the, Company and the A. C. A.
as to which operators should resail with the Manhattan after the lay-up (the Company
wanting some or all of the operators who had.come off its S S. Washington to sail with the
Manhattan, and the A C. A. objecting), but the Company finally acquiesced in the A. C A.'s
position.
366 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
when such operator is discharged or his services otherwise terminate.
Neither Blatt's nor Howard's license was endorsed when the Man-
hattan laid up. Further, Blatt testified without contradiction that
he did not receive any notice from the Company that he was dis-
charged, and no claim is made that Howard received such a notice.
Although Blatt and Howard were severed from the Company's pay
roll during the lay-up of the Manhattan, the Company's general
manager admitted that the mere removal of a man's name from the
pay roll is not determinative of whether he has left the Company's
employ. It is further to be noted that Blatt and 'Howard entered
the employ of the Company in 1937 and served on the Manhattan as
radio 'operators during most of the period from 1937 to February
1941.
Upon the entire record, we find that on December 12, 1940, Blatt
and Howard were employees of the Company and that they were
eligible to vote in the election among the radio operators.r, We shall
accordingly direct that their ballots be counted.
A. Vadas
The A. C. A. contends that A. Vadas was not a radio operator
(radio telegraph or radio telephone) on December 12, 1940, and
was therefore ineligible to vote in the election. The Company and,
the C. T. U. urge that he was a radio telephone operator on that date
and was therefore eligible to vote.
Prior to August 8, 1940, Vadas was employed by Radio Marine
Corporation-of America, herein called the R.,M. C. A., which fur-
nished and installed the radio telephone equipment on the S. S.
America. Vadas was trained by the R. M. C. A. to handle such
equipment, which was of a novel nature, and he assisted - in its instal-
lation. On or about August 8, 1940, the Company began to operate
the America and employed Vadas as the only radio telephone opera-
tor on this vessel . The A. C. A. objected to Vadas' employment,
contending that, under 'a contract which it had with the Company,
one Samuel Levin should have been hired as the radio telephone
operator on the America. Pursuant to the provisions of the con-
tract, this dispute was submitted to arbitration. The arbitrator, in
an award issued on November 18, 1940, held that ,in assigning Vadas
and in failing to assign Levin to the America, the Company had
violated its contract with the A. C. A. Thereupon, the Company,
6 Cf. National Labor Relations Board v. Waterman Steamship Corp., 309 U . S. 206, enf'g
Matter of Waterman Steamship Corporation and National Maritime Union, Engine Divi-
sion, Mobile Branch, Mobile, Alabama, 7 N. L. R. B. 23i ; Matter of Calmar Steamship Cor-
poration and National Maritime Union of America; ] S N. L. R B. 1; Matter of Ore Steam-
ship Corporation and National Maritime Union of America , Baltimore Branch, 29 N..L.
R. B. 954
UNITED STATES LINES COMPANY 367
on November 22, 1940, employed Levin as a radio telephone operator
on the 'America; however, it also retained Vadas in its employ on
this vessel, and both served on it until Vadas left it in March 1941.
The Company apparently retained Vadas after Levin was taken on
because of the threat of the R. M. C. A., which owned the radio
telephone equipment on the America, to abolish the radio telephone
service if Vadas were not on the America to take care of that equip-
ment. The parties agree that Levin served as a radio telephone
operator on the America. The Company and the C. T. U. contend
that after Levin was taken on, Vadas also served as such an operator,
while the A. C. A. urges that after Levin was taken on Vadas served
as a radio technician and not as a radio telephone operator.
Levin did not have any special training for the handling of the
America's radio telephone equipment, and, accordingly, Vadas re-
mained in charge of its repair and maintenance. The record does
not disclose how much time Vadas spent in performing such func-
tions. On no other occasion did the Company have more than one
radio telephone operator on any of its ships. After Vadas left
the America in March 1941, nobody was hired to replace him and
Levin remained as the only radio telephone operator on the vessel.
However, the radio log of the America covering the period of
December 8 to December 19, 1940, discloses that Vadas and Levin
maintained alternate radio telephone watches on the America during
such period, that such watches included handling messages and listen-
ing to stations, that the time spent by each on these watches was sub-
stantial, and that Vadas spent as much time on these watches as did
Levin. Further, Levin and Vadas, for the period in question, were
both designated on the Company's employment cards as radio telephone
operators, and, according to the uncontradicted testimony of the
Company's general manager, Vadas received a radio telephone oper-
ator's salary throughout his employment.
Upon the entire record, we find that on December 12, 1940, Vadas
was a radio telephone operator and that he was eligible to vote in the
election. We shall accordingly direct that his ballot be counted.
It follows that our previous rulings that Vadas was not employed
by the Company as a radio operator on December 12, 1940, should
be, and they hereby are, reversed.
DIRECTION
By virtue of and pursuant to the power vested in the National
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
2, as amended, it is hereby
368 DECISIONS. OF NATIONAL LABOR RELATIONS BOARD
DIRECTED that, as part of the investigation authorized by the
Board to ascertain representatives for the purposes of collective
bargaining with United States Lines Company, New York City, the
Regional Director for the Second Region (New York City) shall,
pursuant to said Rules and Regulations, and subject to Article III,
Section 9, thereof, within ten (10) days from the date of this Direc-
tion, open and count the ballots of one Howard, one Blatt, and A.
Vadas, and shall thereafter prepare and cause to be served upon the
parties a Second Supplemental Election Report embodying her find-
ings therein and her recommendations as to the result of the balloting.
i
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