Wyandotte Transportation Co.

National Labor Relations Board - Board Decisions

Apr 29, 1946

67 N.L.R.B. 930 (N.L.R.B. 1946)

In the Matter Of WYANDOTTE TRANSPORTATION COMPANY and NA-
TIONAL ORGANIZATION, MASTERS, MATES AND PILOTS OF AMERICA,
A. F. L.1
Case No. 7-C-1526.-Decided April X9,1946
DECISION
AND
ORDER
On March 7, 1946, the Trial Examiner issued his Intermediate Re-
port in the above-entitled proceeding, finding that the Respondent
had engaged in and was engaging in certain unfair labor practices and
recommending that it cease and desist therefrom and take certain affir-
mative action, as set forth in the copy of the Intermediate Report,
attached hereto. On April 23, 1946, the Board heard oral argument
at Washington, D. C., in which the Respondent and the Union partici-
pated.
The Board has reviewed the rulings of the Trial Examiner and finds
that no prejudicial error was committed. The rulings are hereby
affirmed. The Board has considered the Intermediate Report, the
Respondent's exceptions, and the entire record in the case, and hereby
adopts the findings, conclusions, and recommendations of the Trial
Examiner.
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the respondent, Wyandotte Transportation
Company, Detroit, Michigan, and its officers, agents, successors, and
assigns shall :
1. Cease and desist from :
(a) Refusing to bargain collectively with National Organization,
Masters, Mates and Pilots of America, A. F. L., as the exclusive bar-
gaining representative of all its employees employed as mates on its
vessels.
(b) In any manner interfere with the efforts of National Organiza-
tion, Masters, Mates and Pilots of America, A. F. L., to bargain col-
3 The name of the Union, which appears in the complaint as National Organization of
Masters, Mates and Pilots of America , A. F. L, has been corrected to conform to the proof.
67 N. L. R. B., No. 112.
930
WYANDOTTE TRANSPORTATION COMPANY 931
lectively with it on behalf of the employees in the aforesaid appropri-
ate unit.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Upon request, bargain collectively with National Organiza-
tion, Masters, Mates and Pilots of America, A. F. L., as the exclusive
bargaining representative of all persons employed as mates on its ves-
sels with respect to rates of pay, wages, hours of employment, and
other conditions of employment;
(b) Post upon each of its vessels and upon its shore premises in all
places where notices to mates are customarily posted, copies of the
notice attached to the Intermediate Report, marked "Appendix A".2
Copies of said notice, to be furnished by the Regional Director for the
Seventh Region, after being signed by the Respondent's representa-
tive, shall be posted by the Respondent immediately upon receipt
thereof, and maintained by it for sixty (60) consecutive days there-
after, in conspicuous places, including all places where notices to mates
are customarily posted. Reasonable steps shall be taken by the Re-
spondent to insure that these notices are not altered, defaced, or covered
by any other material;
(c) Notify the Regional Director for the Seventh Region in writing,
within ten (10) days from the date of this Order, what steps the Re-
spondent has taken to comply herewith.
INTERMEDIATE REPORT
Mr. David Citrin, for the Board.
Dykema, Jones and Wheat, by Mr. Elroy 0. Jones, of Detroit, Mich., for the
:espondent.
Mr. Stanley Barr, of Wyandotte, Mich., for the Union.
STATnMENT OF THE CASE
Upon a charge duly filed on January 24, 1946, by National Organization, Masters,
Mates and Pilots of Americi, A. F. L., herein called the Union, the National Labor
Relations Board, herein called the Board, by its Regional Director for the Seventh
Region (Detroit, Michigan), issued its complaint, dated February 13, 1946, against
Wyandotte Transportation Company, herein called the respondent, alleging that
the respondent had engaged in and was engaging in unfair labor practices affect-
ing commerce within the meaning of Section 8 (1) and (5) and Section 2 (6)
and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act.
Copies of the complaint, accompanied by notices of hearing thereon, were duly
served upon the respondent and the Union.
With respect to the unfair labor practices, the complaint alleged in substance:
(1) that all of the mates employed on the respondent's vessels constitute an appro-
R Said notice , however, shall be, and it hereby Is amended by striking from the first
paragraph thereof the words "RECOMMENDATION OF A TRIAL EXAMINER" and
substituting in lieu thereof the words "A DECISION AND ORDER."
932 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
priate unit, as found by the Board in its Decision and Direction of Election dated
July 30, 1945, in a representation case involving said employees;' (2) that at all
times since September 15, 1945, by virtue of a Board ordered election held on
September 12, 14, and 15, 1945, and a resultant Board certification issued on Octo-
ber 8, 1945, the Union has been the exclusive representative of the employees in
the aforesaid appropriate unit; (3) that on or after about January 4, 1946, the
respondent has refused to bargain with the Union as the representative of the
employees in the said unit ; and (4) that by such refusal the respondent has inter-
fered with, restrained, and coerced its employees in the exercise of rights guar-
anteed in Section 7 of the Act.
On February 21, 1946, the respondent filed its answer, admitting that the
Board had issued its said Decision and Direction of Election and that the Board
had certified the Union as the bargaining agent for the employees in a unit
which it had determined to be appropriate. The answer alleged that the Board's
determination and directions were "contrary to law and not in accordance with
the facts, and against the objection of the respondent," and that the respondent
has failed to recognize the Union because the mates on its vessels are not "em-
ployees" within the meaning of the Act and "do not constitute an appropriate
bargaining unit."
Pursuant to notice, a hearing was held on February 26, 1946, at Detroit, Michi-
gan, before Earl S. Bellman, the Trial Examiner duly designated by the Chief
Trial Examiner. The Board and the respondent were represented by counsel
and the Union by one of its officers All participated in the hearing. Full
opportunity to be heard, to examine and cross-examine witnesses, and to intro-
duce evidence bearing upon the issues was afforded all parties. At the close
of the hearing, without objection, the pleadings were conformed to the proof
as to formal matters. The parties were afforded an opportunity to argue orally
before the undersigned and to file briefs. Counsel for the Board and counsel
for the respondent argued orally. No briefs have been filed.
Upon the entire record in the case, the undersigned makes the following:
FINDINGS OF FACT
I THE BUSINESS OF THE RESPONDENT
Wyandotte Transportation Company, a Michigan corporation with its principal
offices in Detroit, Michigan, is a wholly owned subsidiary of Wyandotte Chemi-
cal Company, the principal offices of which are located in Wyandotte, Michigan.
The respondent owns and operates four cargo vessels which are engaged in the
regular transportation of materials and products on the Great Lakes and con-
necting rivers between points in the States of Michigan, Ohio, and Wisconsin.2
During the calendar year 1945, the respondent transported, aboard its ships and
between points in the aforesaid States, materials and products valued in excess
of $1,000,0,00.
II. THE ORGANIZATION INVOLVED
National Organization, Masters, Mates and Pilots of America, affiliated with
tile American Federation of Labor, is a labor organization admitting to mem-
bership employees of the respondent.
'Matter of Wyandotte Transportation Company, fit N L. R. B 1518, designated Case
No 7-R-2003, and herein called the representation case.
2 Among the goods and materials transported are limestone, coal, soda ash, caustic soda,
chlorine, bicarbonate of soda, and calcium corbonate
WYANDOTTE TRANSPORTATION COMPANY 933
III. THE UNFAIR LABOR PRACTICES
A. Chronology of events
On April 23, 1945, a representation hearing involving the mates employed by
the respondent was duly held upon a petition filed by the Union. The respondent
participated in the hearing and took the position that the unit sought by the
Union was inappropriate because the mates were "executive personnel" and
because they were officers of the Coast Guard. After the representation hear-
ing, the respondent filed a brief with the Board setting forth its reasons for
contending that the mates on its vessels should not be held to constitute an appro-
priate unit.'
On July 30, 1945, the Board issued its Decision and Direction of Election in the
representation case. With respect to the respondent's contention that its mates
are "executive officers" and therefore may not form an appropriate unit, the
Board found as follows :
The Company contends, further, that the proposed unit is inappropriate
because mates are executive officers and constitute a part of the management
of the Company. This contention also has been considered by us in many
previous cases, and we have found it to be without merit. No persuasive
argument has been presented in the instant case for a reversal of our previous
holdings on this question. The first mate is in direct charge of the hire and
discharge of the unlicensed personnel, and to him the other mates make
their recommendations on these subjects. In the event of the incapacity or
absence of a master, a mate takes over the master's position, in which case
he has absolute control over his ship, its cargo, and all personnel , including
the other mates, when the ship is not in port. Except for that single instance,
the mates have no supervisory authority over each other. The position of
these employees is the same as that of the licensed deck officers involved in
our prior decisions, wherein we determined that, despite their supervisory
authority and managerial responsibility, such employees are entitled to the
benefits of the Act' We reaffirm that determination.
On September 12, 14, and 15, 1945, an election was conducted by secret ballot
and the "Tally of Ballots," bearing signatures of representatives of the Board,
the Union, and the respondent, was duly issued on September 21, 1945. This Tally
of Ballots states that of the approximately 14 eligible voters, 11 cast valid ballots,
all of which were for the Union, the only labor organization involved. No other
ballots were cast.
On October 8, 1945, the Board issued its Certification of Representatives in
which it certified that the Union had been "designated and selected by a majority
of all the mates employed on the vessels of Wyandotte Transportation Company,
Detroit, Michigan, as their representative for the purposes of collective bar-
gaining."
3 At the hearing before the undersigned , it was established by stipulation among the
parties that on or about December 1, 1945, the respondent ' s mates had been discharged
from the Coast Guard. The respondent's attorney also stated on the record that the
respondent no longer urges the militarized status of its mates as a ground for objecting
to their inclusion in a bargaining unit, but now limits its contention to the sole ground
that they are representatives of management.
¢ Matter of Ohio Barge Line, Inc., 59 N L R B. 154 ; Matter of Jones & Laughlin
Steel Corporation ( 3 cases), 37 N. L R B. 366 ; 47 N. L. R. B. 1272, and 51 N. L. R. B.
1204 , 54 N L. R B. 679, enf'd 146 F. (2d) 833 (C C A 5), cert den June 18, 1945, 325
U. S. 886 ; Matter of Dravo Corporation , Keystone Sand Division , 39 'N. L . R. B. 846 ;
Matter of Tide Water Associated Oil Company , 38 N. L. R. B. 582; Matter of Carnegie-
Illinois Steel Company , 37 N. L R. B. 19.
934 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On December 26, 1945, the Union wrote the respondent,' stating that since
it had been certified by the Board as the sole bargaining agent of the mates
employed on the respondent's vessels, it desired to meet with the respondent to
discuss conditions affecting the mates.
On January 4, 1946, counsel for the respondent wrote the Union that its letter
had been received and that, as "previously set forth in briefs and arguments"
before the Board, the respondent would not grant collective bargaining rights
to the Union and would not enter into negotiations. The Union received no
further communication from the respondent concerning its request for a bar-
gaining conference.
B. The refusal to bargain
1. The appropriate unit and the Union's majority representation therein
In the hearing before the undersigned, the respondent attempted to justify
its refusal to bargain with the Union solely on the ground that its mates are
part of management and hence are not "employees" within the meaning of the
Act. The respondent sought to introduce no additional evidence as to the duties
of its mates" The respondent's reasons for its position, stated in its argument
before the undersigned, were substantially like those stated in its brief before
the Board in the representation case The respondent cites no change in the.
policy of the Board since its decision in the representation case; the undersigned
knows of no such change in policy.
Upon due consideration, the undersigned finds that the Board's finding as to
the appropriate unit, made in its decision in the representation case and the
Board's subsequent certification of the Union, are binding upon the respondent.
Accordingly, the undersigned finds that all mates employed on the respondent's
vessels constitute a unit appropriate for the purposes of collective bargaining
within the meaning of Section 9 (b) of the Act, and that on and at all times
after September 15, 1945, the Union, pursuant to Section 9 (a) of the Act, has
been the exclusive representative of all such employees.
2. The refusal to bargain
From the facts set forth above, it is clear that the respondent, by its letter of
January 4, 1946, refused to extend recognition to the Union, or to meet with it,
upon request, after it had been certified by the Board as the sole bargaining
agent in an appropriate unit For the reasons stated by the Board in its de-
cision in the representation case, the respondent's contention, whereby it seeks
to justify its admitted refusal to bargain, on the ground that its mates are not
"employees" within the meaning of the Act, is without merit, and does not
excuse its refusal to bargain with the Union. Accordingly, the undersigned finds
that on January 4, 1946, and at all times thereafter, the respondent has refused
to bargain collectively with the Union as the exclusive representative of its,
employees in an appropriate unit, and has thereby interfered with, restrained,
5 Since the mates had been discharged from the Coast Guard about December 1, one
of the respondent's two objections to the unit no longer existed at the time this letter was
written.
By agreement of the parties, the record in the representation case was incorporated by
reference in the record herein, and it was stipulated that if witnesses in that case were
called by the respondent they would testify in the instant case regarding the duties of the
mates as they had testified in the representation case. The parties also agreed that the
Board take notice of a brief filed by the respondent in the representation case, for the pur-
pose of considering its arguments in support of its contention relative to the managerial
status of the mates.
WYANDOTTE TRANSPORTATION COMPANY 935
and coerced its employees in the exercise of rights guaranteed in Section 7
of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The undersigned finds that the activities of the respondent set forth in Sec-
tion III above, occurring in connection with the operations of the respondent
described in Section I above, have a close, intimate, and substantial relation to
trade, traffic, and commerce among the several States, and tend to lead to labor
disputes burdening and obstructing commerce and the free flow of commerce.
V. THE REMEDY
Having found that the respondent has engaged in unfair labor practices, it
will be recommended that it cease and desist therefrom and take certain affirm-
ative action designed to effectuate the policies of the Act. Since it has been
found that the respondent has refused to bargain collectively with the Union as
the exclusive representative of employees in an appropriate unit, it will be recom-
mended that the respondent, upon request, bargain collectively with the Union
as such representative. As there is no evidence that danger of other unfair
labor practices is to be anticipated from the respondent's conduct in the past, the
undersigned will not recommend that the respondent cease and desist from
the commission of any other unfair labor practices.
Upon the basis of the above findings of fact and upon the entire record in
the case, the undersigned makes the following :
CONCLUSIONS OF LAW
1. National Organization , Masters, Mates and Pilots of America , affiliated
with the American Federation of Labor, is a labor organization within the mean-
ing of Section 2 ( 5) of the Act.
2. All employees of the respondent employed as mates on its vessels constitute
a unit appropriate for the purposes of collective bargaining , within the meaning
of Section 9 (b) of the Act.
3. National Organization , Masters, Mates and Pilots of America, affiliated
with the American Federation of Labor, was on September 15, 1945, and at all
times thereafter has been, the exclusive representative of all employees in the
aforesaid unit for the purposes of collective bargaining within the meaning of
Section 9 (a) of the Act.
4. By refusing , on January 4, 1946, and at all times thereafter , to bargain
collectively with National Organization , Masters, Mates and Pilots of America,
affiliated with the American Federation of Labor, as the exclusive representative
of all its employees in the aforesaid appropriate unit, the respondent has engaged
in and is engaging in unfair labor practices within the meaning of Section 8
(5) of the Act.
5. By said acts , the respondent has interfered with, restrained , and coerced its
employees in the exercise of the rights guaranteed in Section 7 of the Act, and
has thereby engaged in and is engaging in unfair labor practices within the
meaning of Section 8 (1) of the Act.
6. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and ( 7) of the Act.
* See N. L. R. B. T . Empress Publishing Company, 312 U . S. 426.
936 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
RECOMMENDATIONS
Upon the basis of the above findings of fact and conclusions of law, and upon
the entire record in the case, the undersigned recommends that the Respondent,
Wyandotte Transportation Company, Detroit, Miehigan, its officers, agents, suc-
cessors, and assigns shall:
1. Cease and desist from :
(a) Refusing to bargain collectively with National Organization, Masters,
Mates and Pilots of America, affiliated with the American Federation of Labor,
as the exclusive representative of all its employees employed as mates on its
vessels ;
(b) In any manner interfering with the efforts of National Organization,
Masters, Mates and Pilots of America, affiliated with the American Federation
of Labor, to bargain collectively with it on behalf of the employees in the aforesaid
appropriate unit.
2. Take the following affirmative action which the undersigned finds will
effectuate the policies of the Act :
(a) Upon request, bargain collectively with National Organization, Masters,
Mates and Pilots of America, affiliated with the American Federation of Labor,
as the exclusive representative of all persons employed as mates on its vessels
with respect to rates of pay, wages, hours of employment, and other conditions
of employment, and if an understanding is reached, embody such understanding
in a signed agreement ;
(b) Post upon each of its vessels and upon its shore premises in all places where
notices to mates are customarily posted, copies of the notice attached hereto,
marked "Appendix A." Copies of said notice, to be furnished by the Regional
Director of the Seventh Region, shall, after being duly signed by the respondent's
representative, be posted by the respondent immediately upon receipt thereof,
and maintained by it for sixty (60) consecutive days thereafter, in conspicuous
places, including all places where notices to mates are customarily posted.
Reasonable steps shall be taken by the respondent to insure that these notices
are not altered, defaced, or covered by any other material;
(c) Notify the Regional Director for the Seventh Region in writing, within
ten (10) days from the date of the receipt of this Intermediate Report, what
steps the respondent has taken to comply herewith.
It is further recommended that unless on or before ten (10) days from the date
of the receipt of this Intermediate Report, the respondent notifies said Regional
Director in writing that it will comply with the foregoing recommendations, the
National Labor Relations Board issue an order requiring the respondent to take
the action aforesaid.
As provided in Section 33 of Article II of the Rules and Regulations of the
National Labor Relations Board, Series 3, as amended, effective November 27,
1945, any party or counsel for the Board may, within fifteen (15) days from the
date of the entry of the order transferring the case to the Board, pursuant to
Section 32 of Article II of said Rules and Regulations, file with the Board,
Rochambeau Building , Washington 25, D. C., an original and four copies of a
statement in writing, setting forth such exceptions to the Intermediate Report
or to any other part of the record or proceeding (including rulings upon all
motions or objections) as he relies upon, together with the original and four
copies of a brief in support thereof. Immediately upon the filing of such state-
ment of exceptions and/or brief, the party or counsel for the Board filing the
same shall serve a copy thereof upon each of the other parties and shall file
a copy with the Regional Director. As further provided in said Section 33,
WYANDOTTE TRANSPORTATION COMPANY 937
should any party desire permission to argue orally before the Board, request
therefor must be made in writing to the Board within ten ( 10) days from the
date of the order transferring the case to the Board.
EARL S. BELLMAN,
Trial Examiner.
Dated March 7, 1946.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the-National Labor
Relations Act, we hereby notify our employees that :
We will bargain collectively , upon request , with National Organization,
Masters, Mates and Pilots of America , affiliated with the American Fed-
eration of Labor, as the exclusive representative of all of our employees
employed as mates on our vessels and if an understanding is reached, we
will embody such understanding in a signed agreement.
We will not in any manner interfere with the efforts of the above-named
union to bargain with us or refuse to bargain with said Union as the
exclusive representative of all of our employees employed as mates on our
vessels.
WYANDOTTE TRANSPORTATION COMPANY.
By ----------------------------------------
Dated------------ ------------
This notice must remain posted for sixty ( 60) days from the date of posting,
and must not be altered , defaced, or covered by any other material.