Wilmington Transportation Co.

National Labor Relations Board - Board Decisions

Oct 11, 1946

71 N.L.R.B. 328 (N.L.R.B. 1946)

In the Matter Of WILMINGTON TRANSPORTATION COMPANY, EMPLOYER
and SEAFARERS INTERNATIONAL UNION OF NORTH AMERICA, AFL,
PETITIONER
Case No. 21-R-3224.Decided October 11, 1946
Gibson, Dunn cti Crutcher, by Mr. David P. Evans, of Los Angeles,
Calif., and Mr. L. H. Connor, of Wilmington, Calif., for the Em-
ployer.
Messrs. E. G. Arnold and William L. Gries, of Wilmington, Calif.,
for the Petitioner.
Katz, Gallagher, and Margolis, by Mr. John T.'McTernan, of Los
Angeles, Calif., and Mr. John A. Palmer , of San Pedro, Calif., for the
Intervenor.
Mr. Bernard Dunau, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
, Upon a petition duly filed, hearing in this case was held at Los
Angeles, California, on July 24, 25, and 29, 1946, before James A.
Cobey, hearing officer. The hearing officer's rulings made at the hear-
ing are free from prejudicial error and are hereby affirmed.
Upon the entire record in the case, the National Labor Relations
Board makes the following :
FINDINGS. OF FACT
1. THE BUSINESS OF THE EMPLOYER
Wilmington Transportation Company, a California corporation
with principal offices at Wilmington, California, operates a steamer
service between Wilmington (Los Angeles harbor), California, and
Avalon, Santa Catalina Island, and a tugboat service confined primar-
ily to the Los Angeles-Long Beach harbor area. About 90 percent of
the ships assisted within the Los Angeles-Long Beach harbor area by
the Employer's tugboats are engaged in interstate or foreign com-
merce.
We find that the Employer is engaged in commerce within the
meaning of the National Labor Relations Act.
II. THE ORGANIZATIONS INVOLVED
The Petitioner is a labor organization affiliated with the American
Federation of Labor claiming to represent employees of the Employer.
71 N. L . R. B, No. 45.
328
WILMINGTON TRANSPORTATION COMPANY 329
Inlandboatmen's Union of the Pacific (San Pedro Division), herein
called the Intervenor, is a labor organization affiliated with the Con-
gress of Industrial Organizations claiming to represent employees of
the Employer.
III. TISE QUESTION CONCERNING REPRESENTATION
The Employer refuses to recognize the Petitioner as the exclusive
bargaining representative of employees of the Employer until the
Petitioner has been certified by the Board in an appropriate unit, con-
tending that it has a currently effective collective bargaining agree-
ment with the Intervenor which precludes a present determination of
representatives. The Intervenor, however, contends that its agree-
ment with the Employer had been terminated prior to the filing of
the petition in this proceeding, and, together with the Petitioner,
seeks an election to resolve the question concerning representation.
On February 3, 1943, the Employer entered into a single collective
bargaining agreement with the Intervenor, representing deck hands
and ether unlicensed deck personnel, the Masters Mates and Pilots of
America, Local No. 18, herein called the Masters, representing cap-
tains, and Marine Engineers' Beneficial Association, No. 79, Inc.,
herein called the Engineers, representing engineers and assistant en-
gineers. This agreement was made retroactive to January 1, 1943,
and was to continue for annual periods thereafter unless written
notice of a "desire to amend, modify, or terminate" the agreement was
given by any of the parties not less than 30 days but not more than 60
days prior to December 31 of any calendar year. The agreement cov-
ered the usual subjects of collective bargainining contracts.
On November 14, 1944, the Masters wrote to the Employer declar-
ing the agreement to be "open for the purpose of negotiation"; on
November 27, 1944, the Intervenor wrote a similar letter to the Em-
ployer expressing its desire to open the contract for renegotiation in
conjunction with the Masters; on November 30, 1944, the Engineers
wrote to the Employer stating its wish to open the agreement "for an
adjustment of wages." On December 11, 1944, at a joint conference
of the parties, all participants agreed to hold their negotiations in
abeyance, pending the submission to the National War Labor Board
of a wages and working conditions issue then in dispute between the
unions and a competing tugboat company. Thereafter, on May 10,
1945, at a conference which all the contracting parties attended, an
oral agreement was reached concerning increased wage rates which
were to be retroactive to May 1, 1945. Certain seniority changes were
also agreed upon, but it is not clear whether accord on this matter
was reached on May 10, 1945, or at some time after that, but before
June 25, 1945. The seniority provisions were primarily negotiated
330 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by the Masters and the Engineers. The Intervenor has little interest
in them, and acquiesced in the matter out of deference to the wishes
of the other two unions.
On June 25, 1945, the contracting parties executed two instruments
which reduced to writing the matters previously agreed upon. One
instrument was entitled-"Tugboat Agreement" and was further de-
scribed as "Paragraph F, Section 4, covering Classification and Rates
of Pay." It contained the wage rates under the existing contract and
the proposed increased wage rates, and added a paragraph (G) which
had not been part of the original agreement. The second instrument
read "It is hereby agreed and understood that Section 13 of Tugboat
Agreement effective January 1, 1943, covering establishing of senior-
ity, shall be as follows and the provisions thereof shall be applied
retroactive to May 1, 1945," and beneath this statement certain sub-
stantive changes in existing seniority rules were listed under Para-
graphs (A) through (F). These two instruments were submitted to
the National War Labor Board in appropriate form, and after ex-
tended proceedings before the War Shipping Panel of that I)ody,
approval of the increased wage rates was granted on December 29,
1945.
At no time between the opening'of negotiations in November 1944,
and the approval of the wage increase on December 29, 1945, did the
Intervenor submit to the Employer proposals on matters other than
those previously described. On January 31,1946, the Petitioner wrote
to the Employer stating that it represented a majority of the Em-
ployer's unlicensed deck personnel, and requested a conference to nego-
tiate an agreement. On February 6,1946, the Employer replied that it
had an agreement with the Intervenor covering these employees, and
that until the Petitioner was duly certified as their exclusive bargain-
ing representative it would continue to treat with the Intervenor. On
February 11, 1946, the petition in this proceeding was docketed.
On February 28, 1946, the Masters, the Engineers, and the Inter-
venor mailed to the Employer a proposed uniform tugboat agreement,
and at the same time mailed an identical agreement to other tugboat
companies in the Los Angeles harbor area. This proposed agreement
had been drafted at the suggestion of the Department of Labor which
had indicated the desirability of a uniform industry-wide contract re-
lating to labor relations. The Employer did not acknowledge the
request for a meeting contained in the covering letter.
On April 5, 1946, the Intervenor wrote to the Employer, disputing
the accuracy of a seniority list submitted by the Employer on Febru-
ary 7, 1946, and citing relevant provisions in the original agreement
and the revisions in support of its position. During the entire period
of time between the opening of negotiations in November 1944, and the
hearing, it appears that the Employer and the Intervenor in their
WILMINGTON TRANSPORTATION COMPANY 331
dealings with each other guided themselves in accordance with the
original agreement as revised.
In support of its position that it has a currently effective agreement
with the Intervenor, the Employer contends that the reasonable infer-
ence to be drawn from the course of conduct between the contracting
parties and the wording of the revised provisions is that on June 25,
1945, the date of the signing of the revisions, the negotiations between
the parties on disputed issues were closed and the original agreement,
except, as modified by the revisions, was thereupon resumed for the
tern indicated therein. The Intervenor, on-the other hand, contends
that after the opening of the original agreement in November 1944, the
contract ceased to be for a fixed term and became terminable at the
will of either party.
Upon this record, we incline to the Employer's position that its
agreement with the Intervenor continues in full force and effect. In
this view the petition, having been filed almost 10 months prior to the
date when the agreement may be reopened, was prematurely filed
and should normally have been disnussed when filed.
Were this all, or had some intervening equity arisen in favor of any
party since the premature filing of the petition, we should now dismiss.
We note, however, that the date when the agreement may be opened
is not far off, that the Employer will in any event shortly again be
faced with conflicting claims of rival labor organizations, and that no
party's rights can he adversely affected by a present determination
of the question concerning the representation of these employees for
the period following the current contract term. Under these circum-
stances no purpose would now be served by dismissing the pending
petition and requiring the institution of a new and time-consuming
proceeding.
We find that the contract between the Intervenor and the Employer
is not a bar to a determination of representatives within the next
^30 days pursuant to our usual Direction of Election. In directing an
election at the present time we do not thereby intend to abrogate any
rights the parties may have under existing contracts. Any certifi-
cation of representatives which we may issue as the results of the elec-
tion shall be for the purpose of negotiating a new contract to take
effect upon the expiration of the existing agreement.
We find that a question affecting commerce has arisen concerning
the representation of employees of the Employer, within the meaning
of Section 9 (c) and Section 2 (6) and (7) of the Act.
Iv. THE APPROPRFATE UNIT
We find, in accordance with the agreement of the parties , that all
unlicensed deck personnel employed on the Employer 's tugboats, ex-
332 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
eluding all supervisory employees with authority to hire, promote;
discharge, discipline, or otherwise effect changes in the status of em-
ployees, or effectively recommend such action, constitute a unit ap-
propriate for the purposes of collective bargaining within the mean-
ing of Section 9 (b) of the Act.
V. THE DETERMINATION OF REPRESENTATIVES
We shall direct that the question concerning representation which
has arisen be resolved by an election by secret ballot, subject to the
limitations and additions set forth in the Direction.
We find,,in accordance with the agreement of the parties, that all
captains who have worked as deck hands 50 percent or more of their
time during the 60-day period immediately preceding the date of the
Direction of Election herein shall be eligible to vote in the election.
As the result of a decline in business, a number of employees now
are or may be on leave of absence at the time of the election. It
does not appear that employees in this position have any reasonable
expectation of employment with the Employer in the near future.
Accordingly, employees on such leave of absence status at the time
of the election shall be ineligible to vote.
DIRECTION OF ELECTION
As part of the investigation to ascertain representatives for the
purposes of collective bargaining with Wilmington Transportation
Company, Wilmington, California, an election by secret ballot shall
be conducted as early as possible, but not later than thirty (30) days
from the date of this Direction, under the direction and supervision of
the Regional Director for the Twenty-first Region, acting in this mat-
ter as agent for the National Labor Relations Board, and subject to
Sections 203.55 and 203.56, of National Labor Relations Board Rules
and Regulations-Series 4, among the employees in the unit found
appropriate in Section IV, above, who were employed during the pay-
roll period immediately preceding the date of this Direction, including
employees who did not work during said pay-roll period because they
were ill or on vacation or temporarily laid off 1 and including em-
ployees in the armed forces of the United States who present them-
selves in person at the polls, but excluding those employees who have
since quit or been discharged for cause and have not been rehired or
reinstated prior to the date of the election, to determine whether they
desire to be represented by Seafarers International Union of North
America, AFL, or by Inlandboatmen's Union of the Pacific (San
Pedro Division), CIO, for the purposes of collective bargaining, or by
neither.
Tins term does not include employees on leave of absence of laid -off employees o ho have
little reasonable expectation of a return to work.