American-Hawaiian Steamship Company, a Corporation

National Labor Relations Board - Board Decisions

Jan 21, 1939

10 N.L.R.B. 1355 (N.L.R.B. 1939)

In the Matter of AMERICAN-HAWAIIAN STEAMSHIP COMPANY, A COR-
PORATION and GATEMEN, WATCHMEN & MISCELLANEOUS WATERFRONT-
WORKERS UNION, LOCAL 38-124, INTERNATIONAL LONGSHOREMEN'S
ASSOCIATION
In the Matter of GRACE LINE, A CORPORATION and GATEMEN, WATCH-
MEN & MISCELLANEOUS WATERFRONT WORKERS UNION, LOCAL 38-124,-
INTERNATIONAL LONGSHOREMEN'S ASSOCIATION
In the Matter of MCCORMICK STEAMSHIP COMPANY, A CORPORATION'
and GATEMEN, WATCHMEN & MISCELLANEOUS WATERFRONT WORKERS
UNION, LOCAL 38-124, INTERNATIONAL LONGSHOREMEN'S ASSOCIATION
In the Matter Of MATSON NAVIGATION COMPANY, A CORPORATION-
and GATEMAN, WATCHMEN & MISCELLANEOUS WATERFRONT WORKERS
UNION, LOCAL 38-124, INTERNATIONAL LONGSHOREMEN'S ASSOCIATION
In the Matter of SUDDEN & CHRISTENSON, A CORPORATION and GATE-
MEN, WATCHMEN & MISCELLANEOUS WATERFRONT WORKERS UNION,
LOCAL 38-124, INTERNATIONAL LONGSHOREMEN'S ASSOCIATION
Cases Nos. C-296 to C-300, inclusive, respectively.Decided January;
21, 1939
Water Transportation Industry-Interference, Restraint, and Coercion-Col-
lective Bargaining: charges of refusal to bargain sustained, where respondents
refused to bargain collectively on ground that inclusion of watchmen by Board
in bargaining unit in prior representation proceeding rendered unit of watchmen
and certain other classes of miscellaneous waterfront workers inappropriate ;
refusal continued after Union transferred affiliation.
Mr. Bertram Edises and Mr. John P. Jennings, for the Board.
Brobeck, Phleger & Harrison, by Mr. Gregory A. Harrison and
Mr. Moses Laskey, of San Francisco, Calif., for the respondents.
Mr. H. P. Melnikow, of San Francisco, Calif., for the Union.
Mr. Charles J. Wiseman, of San Francisco, Calif., for the Inter-
venors.
Mr. Harry A. Sellery, Jr., of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon separate charges duly filed by Gatemen, Watchmen & Miscel-
laneous Waterfront Workers, Local 38-124, I. L. A., herein called the
10 N. L. R. B., No. 118.
1355
1356 NATIONAL LABOR RELATIONS BOARD
Union, the National Labor Relations Board, herein called the Board,
by the Regional Director for the Twentieth Region (San Francisco,
California), duly issued a consolidated complaint, dated August 5,
1937, against the respondents : American-Hawaiian Steamship Com-
pany, herein called the American-Hawaiian, Grace Line, McCormick
Steamship Company, Matson Navigation Company, herein called the
Matson, and Sudden & Christenson, all of San Francisco, California,
alleging that the respondents, and each of them, had engaged in and
were engaging in unfair labor practices affecting 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 notice of hearing, were duly
served upon the respondents and the Union.
In respect of the unfair labor practices, the complaint, as amended
during the course of the hearing, alleged in substance: (1) that on
August 31, 1936, the Board issued a Decision and Direction of Election,
in which it found that the watchmen, baggagemen and porters, store-
men, gearmen , linemen, sliders, janitors and sweepers, inventory clerks,
dock and ship oil pumpers, and handy men employed by each of the
respondents constitute, for each of the respondents, a unit appropriate
for the purposes of collective bargaining within the meaning of Sec-
tion 9 (b) of the Act; 1 (2) that upon'the basis of the results of the
election the Board on October 31 and December 11, 1936, certified the
Union as the exclusive collective bargaining representative of all the
employees in each such unit; 2 and (3) that about January 2, 1937, and
at all times thereafter, the respondents, and each of them, have refused
to bargain collectively with the Union as the exclusive representative
of all their employees in the said units, stating that they will not
bargain with the Union as the representative of the watchmen in'their
employ.
On August 16, 1937, the respondents filed an answer in which each
of them admitted the alleged refusal to bargain, and set forth' certain
affirmative matter in justification, principally that the Board improp-
erly included the watchmen in the unit found by it to be appropriate,
because they differ from the other classes of employees included in the
unit in that they are special police officers of San Francisco, California,
herein called special officers. The answer concluded with a prayer to
dismiss the complaint.
'Matters of Luckenbach Steamship Company , Inc, et at and Gatemen, Watchmen and
Msscellanrous Waterfront Workers Union , Local 38-121,, International Longshoremen's
Association , 2 N I. R B 181
2 Matters of Lucl^enbach Steamship Company , Inc, et al , 2 N L. R. B 192 ; and Matter
of Amer scan -h aloasian Steamship Company and Gatemmen, Watchmen and Miscellaneous
Waterfront Workers Union, Local 38-124, International Longshoremen 's Association, 2
N. L R B. 195
DECISIONS AND ORDERS 1357
Pursuant to the notice, a hearing was held in San Francisco, Cali-
fornia, on August 19, 1937, before P. H. McNally, the Trial Examiner
duly designated by the Board. The Board and the respondents were-
represented by counsel and participated in the hearing.
At the opening of the hearing, H. C. Fries and George Eastland
filed a petition for intervention in their own behalf and on behalf of
all persons described as special officers in the employ of the American-
Hawaiian. A similar petition was filed by William Wood, U. S.
Brannan, and Dan Taylor in their own behalf and on behalf of all the-
persons described as special officers in the employ of the Matson.
These petitioners are herein called the Intervenors. The Trial Ex-
aminer denied the Intervenors' petitions, and thereafter the hearing-
proceeded without their participation. The Intervenors and the°
respondents excepted to this ruling.
At the close of the hearing, the respondents renewed their motion to,
dismiss the complaint on the grounds stated in their answer, and on the,
additional ground that the Board lacked jurisdiction because no evi-
dence was offered showing that a question affecting commerce, within;
the meaning of the Act, had arisen, or that a dispute existed or was
likely to exist, which would result in the obstruction of interstate or-
foreign commerce. The Trial Examiner denied this motion. His,
ruling is hereby affirmed.
On November 19, 1937, the Trial Examiner filed his Intermediate,,
Report, copies of which were duly served upon the parties. He found'
that the respondents had engaged in and were engaging in unfair labor-
practices affecting commerce within the meaning of Section 8 (1) and
(5) and Section 2 (6) and (7) of the Act, and recommended that the-
respondents cease and desist therefrom and, affirmatively, bargain
collectively with the Union upon request. The respondents filed excep-
tions to the Intermediate Report and the conduct of the hearing.-
They also filed a brief. The Intervenors filed exceptions to the record
and the Intermediate Report.
On March 18, 1938, the Board, acting pursuant to Article II, Section
38 (c), of National Labor Relations Board Rules and Regulations--
Series 1, as amended, ordered that the record be reopened for the
introduction of further evidence, and authorized the Regional Director-
for the Twentieth Region to issue notice of such further hearing.
Pursuant to such notice, dated April 2, 1938, a further hearing was
held in San Francisco, California, on April 12,1938, before Thomas H.
Kennedy, the Trial Examiner duly designated by the Board. The
Board and the respondents were represented by counsel, the Union by
the director of the Pacific Coast Labor Bureau, and all participated
in the hearing. At the opening of this hearing, the Trial Examiner,
without objection, granted the Intervenors' petitions to intervene in
1358 NATIONAL LABOR RELATIONS BOARD
the proceeding, and thereafter the Intervenors were represented by
counsel and participated in the hearing.
The petition to intervene made on behalf of the special officers of the
American-Hawaiian stated in substance: (1) that the petitioners con-
stitute the entire body of employees of the American-Hawaiian, who
are referred to as "gatemen and watchmen" in the Board's Decision
in the representation cases; 3 (2) that the petitioners are special officers
duly appointed by the Police Commission of San Francisco and that
each special officer exercises all the rights and duties of a peace officer;
(3) that the special officers are not and never have been members of
the Union; (4) that by reason of the nature of their duties, the special
officers are forbidden by the rules of the San Francisco Police Depart-
ment to affiliate with, or join, any labor organization, and for that
and other reasons are not union members, and do not desire or pro-
pose to join or be represented by the Union; (5) that, subsequent to
the Decision and Certification in the representation cases, the peti-
tioners filed with the Board a written protest against the Board's
action in certifying the Union as their exclusive collective bargaining
representative; (6) that the special officers constitute a separate unit
of the employees of the American-Hawaiian, and are entitled to desig-
nate their own collective bargaining representatives, and that the pe-
titioners have been so designated by the entire unit of special officers
employed by the American-Hawaiian; and (7) that the Board's De-
cision determining the appropriate unit and its Certification in the
representation cases are illegal and void, in that the special officers
-employed by the American-Hawaiian constitute a separate unit appro-
priate for the purpose of collective bargaining, and should not, because
,of the diverse nature of their duties, be grouped with the other classes
,of employees referred to in that Decision, and that the Board's Deci-
sion prevents the special officers from bargaining collectively exclu-
sively on their own behalf. The petition concluded with a prayer that
the Board find that the Union is not the exclusive collective bargain-
ing representative of the special officers; that the special officers are
a unit separate from all other classes which the Union purports to
represent; and that the Board certify that H. C. Fries and George
Eastland have been designated and selected by the majority of the
special officers of the American-Hawaiian as their exclusive collective
bargaining representatives.
The petition'to intervene made on behalf of the special officers of the
Matson is substantially similar to the petition filed by the Intervenors
in the American-Hawaiian case.4.
At the second hearing, Albert E. Lord, of San Francisco, California,
.a special officer employed by Sudden & Christenson, appeared infor-
9 See footnote 1, supra.
A Case No. C-296.
DECISIONS AND ORDERS 1359
-mally for himself and on behalf of three other special officers in the
employ of Sudden & Christenson. He was afforded an opportunity
to file a petition in intervention, but did not do so, nor did he actively
participate in this proceeding, although he subsequently testified as a
witness for the respondents.
Full opportunity to be heard, to examine and cross-examine wit-
nesses, and to introduce evidence bearing upon the issues was afforded
all parties at the hearings. During the course of the hearings, the
Trial Examiners made rulings on other motions and on objections to
the introduction of evidence. The Board has reviewed these rulings of
the Trial Examiners and finds that taking the two hearings together
no prejudicial errors were committed. Except for the denial at the
first hearing of the Intervenors' petitions to intervene, the rulings are
hereby affirmed. After the second hearing, the respondents, the Inter-
venors, and the Union filed briefs with Trial Examiner Kennedy.
On May 17, 1938, Trial Examiner Kennedy filed his Intermediate
Report, copies of which were duly served upon the parties. He found
that the allegations of the complaint as to the American-Hawaiian and
the Matson were not sustained by the evidence, and recommended that
these allegations be dismissed, and that the recommendations in the
previous Intermediate Report, not inconsistent with those contained in
his Intermediate Report, be sustained by the Board. The Union and
counsel for the respondents filed exceptions to the second Intermediate
Report. Counsel for the respondents also filed a brief with the Board.
The Board has considered the briefs and the exceptions to the Inter-
mediate Reports and finds that the exceptions, except those of the
Union directed at the recommendations of Trial Examiner Kennedy
respecting the American-Hawaiian and the Matson, are without merit.
The Trial Examiner in the second Intermediate Report gave notice
to the parties that they might apply for oral argument before the
Board upon issues raised by any exceptions to the Intermediate
Report within 10 days from its receipt, but no party so applied.
Upon the entire record in the cases, including the written stipula-
tions entered into by and between counsel' for the Board, the respond-
ents, the Union, and the Intervenors, the Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENTS
American-Hawaiian Steamship Company, incorporated in New
Jersey, is engaged in the transportation of freight in interstate com-
merce on ships which dock at San Francisco, California.
'The facts concerning the business of the respondents are taken from Respondents
Exhibit No . 1. At the first bearing it was stipulated that the record in the representa-
tion cases should be deemed in these cases to have been introduced into evidence as
Respondents Exhibit No. 1.
1360 ' NATIONAL LABOR RELATIONS BOARD
Grace Line, incorporated in Maryland , is engaged in the transporta-
tion of freight and passengers in interstate and foreign commerce on
ships which dock at San Francisco , California.
McCormick Steamship Company, incorporated in California, is
engaged in the transportation of freight in interstate commerce on
ships which dock at San Francisco , California.
Matson Navigation Company, incorporated in California , is engaged
in the transportation of freight and passengers in interstate commerce
on ships which dock at San Francisco , California. It also acts as,
agent for other steamship companies transporting freight and pas-
sengers in foreign commerce.
Sudden & Christenson, incorporated in California, is engaged in
the transportation of freight in interstate commerce on ships which
dock at San Francisco , California.
II. THE UNION
Gatemen, Watchmen & Miscellaneous Waterfront Workers Union,
Local 1-23, International Longshoremen 's and Warehousemen 's Union,
is a labor organization affiliated with the Committee for Industrial
Organization , admitting to membership gatemen, watchmen , baggage-
men and porters , storemen, gearmen , linemen , sliders, and various
other miscellaneous waterfront workers. Prior to the second hearing
in this proceeding, this labor organization was affiliated with the,
American Federation of Labor under the name of Gatemen , Watch-
men & Miscellaneous Waterfront Workers Union, Local 38-124, Inter-
national Longshoremen's Association, under which name it filed the
charges upon which the complaint in these cases is based. After the
first hearing in this proceeding , it transferred its affiliation to the
Committee for Industrial Organization , as described more fully below,
and received a charter under its present name, Gatemen, Watchmen &
Miscellaneous Waterfront Workers Union, Local, 1-23, International)
Longshoremen 's and Warehousemen 's Union. This labor organiza-
tion is hereinafter referred to as the Union , except when reference to it
under its present or former name is necessary to an understanding of'
the facts.
III. THE UNFAIR LABOR PRACTICES
On August 31, 1936, the Board issued a Decision and Direction of
Election in which it found that the watchmen, baggagemen and
porters, storemen , gearmen, linemen, sliders , janitors and sweepers,
inventory clerks, dock and ship oil pumpers, and handy men in the
employ of each of the respondents constitute an appropriate unit, and
directed that an election be held among the employees in the appropri-
ate units to determine whether or not they desired to be represented by
Gatemen, Watchmen & Miscellaneous Waterfront Workers Union,
DECISIONS AND ORDERS 1361
:Local 38-124, International Longshoremen 's Association . The elec-
tion was held in accordance with the Board's Direction. On October
30, 1936, the Board certified that the Union was the exclusive collec-
tive bargaining representative of such employees of Grace Line, Mc-
Cormick Steamship Company, the Matson, and Sudden & Christenson.
On December 11, 1936, the Board certified that the Union was the
exclusive collective bargaining representative of such employees of
the American -Hawaiian.
Following our certifications in the representation proceedings, the
respondents each refused to bargain collectively with the Union as the
-exclusive representative of all the employees in the appropriate units
by admittedly refusing to bargain with the Union as the representative
of the watchmen . This refusal to bargain occurred when the respond-
ents, by F. C. Gregory , manager of the San Francisco Waterfront
Employers Association, who was representing the respondents in these
negotiations , sent a letter dated January 30 , 1937, to the Union refus-
ing to bargain with the Union in regard to the watchmen as requested
by the Union.'
Subsequently , the companies which were affected by the Board's cer-
tifications in the above cases, including the respondents, entered into
collective bargaining negotiations with the Union. The Union, which
had not yet assumed its present name,7 and the companies entered into
a contract dated March 16, 1937 , in respect to rates of pay, wages, hours
of employment, and other conditions of employment." By the terms
of the contract , the Union was recognized as the exclusive representa-
tive of all the classes of employees included in the Board 's definition of
the appropriate units, except watchmen. This contract specifically
provided that it was without prejudice to the rights of the parties
regarding the watchmen.
It appears from a stipulation entered into at the second hearing by
and between the parties ,' and we so find , that at a meeting in August
1937, Gatemen, Watchmen & Miscellaneous Waterfront Workers
Union, Local 38-124, International Longshoremen's Association, by a
vote of 66 to 22, voted to affiliate with the Committee for Industrial
Organization ; that at a meeting on or about September, 8, 1937, at
which about 100 members were present, Gatemen, Watchmen & Mis-
cellaneous Waterfront Workers Union, Local 38-124, unanimously
voted to apply to International Longshoremen's and Warehousemen's
Union for a charter; that a charter was received on or about Septem-
ber 21, 1937, which was issued to Gatemen, Watchmen & Miscellaneous
Waterfront Workers Union, Local 1-23, International Longshoremen's
and Warehousemen's Union; and that the Union, previously known
6 Board Exhibit No. 10.
See Section II.
Board Exhibit No. 8 and Respondents Exhibit No 9
1362 NATIONAL LABOR RELATIONS BOARD
under the name of Local 38-124, International Longshoremen's Asso-
ciation, and now known under the name of Local 1-23, International
Longshoremen's and Warehousemen's Union, has the same members,
membership records, officers, and funds, and performs the same func-
tions as did the Union under its former name of Local 38-124, Inter-
national Longshoremen's Association. It is plain that nothing more
than a change in name and affiliation took place, and we find that
the labor organization certified by us did not cease to exist because
of is transfer of affiliations
Between the dates of the two hearings in these cases, the Union,
under its present name, and some - of the companies other than the
respondents, affected by the Board's certifications, entered into a con
tract, dated February 9, 1938, in respect to rates of pay, wages, hours
of employment, and other conditions of employment for the watch-
men employed by such companies.10 By the terms of this latter con-
tract, the Union, under its present name, was recognized as the ex-
clusive representative of such watchmen.
The respondents, however, have at all times adhered to their posi-
tion in refusing to bargain with the Union as the exclusive representa-
tive of the watchmen, thereby refusing to bargain with the Union as
the exclusive representative of all the employees in each of the units'
found by us to be appropriate. The respondents admit that they
have refused to bargain with the Union as the representative of the
watchmen, but urge certain affirmative matter in justification.
The Intervenors take the position that the respondents were justified
in their refusal for reasons which are substantially similar to those
urged by the respondents. We shall, therefore, consider the issues
raised by the respondents and the Intervenors together.
The first issue is that the Board ignored the exceptions and request
for rehearing which the respondents filed by q letter dated September
11, 1936, after the Board's Decision and Direction of Election in the
representation cases. We do not deem it necessary to discuss these
exceptions at length, since some of them, which did not refer to the
watchmen, have been abandoned by the respondents by the execution
of the first contract previously mentioned. The respondents have not
attempted to insist upon others in this proceeding, except in regard
to the inclusion of watchmen in the appropriate units. The present
proceeding constitutes a review of the respondents' exceptions to the
inclusion of watchmen in the appropriate units.
The second issue is that, by California local law and regulations
issued thereunder, special officers may not belong to any labor organi-
0 See Matter of M. and M. Wood Working, Company and Plywood and Veneer Wor kern
Union Local No. 102, Affiliated with International Woodworkers of America, 6 N. L. R B.
372. See also Matter of Smith Wood Products, Inc and Plywood and Veneer Workers
Local No. 2691, International Woodworkers of America, 7 N. L R. B. 950.
10 Board Exhibit No. 20.
DECISIONS AND ORDERS 1363
zation. The rule upon which the respondents and the Intervenors
rely is a rule of the Board of Police Commissioners of San Francisco,
which provides :
No Special Police Officer shall belong to any organization, as-
sociation, society or group, the activities or purposes of which
will in any way interfere with or control the work or services of
any Special Police Officer in such official capacity.
In the representation cases we found that under,any interpretation
of the rule the watchmen are entitled to bargain about their working
conditions, that they may delegate the bargaining to an agent, and
that such agent may be a labor organization ,which they may not for
various reasons be eligible to join, and concluded that the watchmen,
whether special officers or not, may be properly included in the bar-
gaining unit and may, if they desire, designate the Union as their
representative for collective bargaining. The respondents in these
cases have broadened their contention to assert that not only may
special officers not belong to a labor organization, but also may not be
represented by any labor organization. The rule quoted above is not
susceptible of the construction placed upon it by the respondents. It
may be noted that a number of special officers employed on the docks
are union members and, as stated above, are covered by a collective
bargaining contract with companies other than the respondents.
The third issue is that the respondents' employees, who are watch-
men and special officers, do not desire to be represented by the Union,
that at the election they voted against being represented by the Union
or refrained from voting because they were not permitted by the Board
to vote separately from the other classes of employees in the appro-
priate units, and that if the watchmen were permitted to vote as sepa-
rate units, they' would vote against being represented by the Union.
The respondents and the Intervenors have cited certain cases in which
the Board, finding that a particular group of employees could function
equally well as a part of a larger unit or as a separate unit, has regarded
the desires of a majority of such employees as the factor determining
the unit most appropriate for the purposes of collective bargaining.
The cases cited by the respondents and the Intervenors are not in point.
In the representation cases involving the respondents, we did not find
that the watchmen could function equally well as a separate unit. On
the contrary, we found that the watchmen should be included as a part
of the larger unit as most conducive to effective collective bargaining.
The respondents and Intervenors have not persuaded us in these cases
that we should modify our holding in the representation cases. The
companies involved in the representation cases, other than the respond-
ents, have entered into a collective bargaining agreement with the
Union as the representative of their watchmen, and there is nothing in
1364 NATIONAL LABOR RELATIONS BOARD
the record to show that the operation of that agreement has not been
satisfactory."
In the representation cases it appeared that the companies therein
involved all employed watchmen to perform substantially the same
duties. In the case of some of the companies, all the watchmen were
also special officers; in the case of other companies, none of the watch-
men were special officers; and in the case of still other companies some
,of the watchmen were special officers and some were not. In the repre-
sentation proceeding we made no distinction between watchmen who
-we:-e special officers and watchmen who were not. We included all
-watchmen in the appropriate units. The respondents and the Inter-
venors in the present proceeding have not offered any convincing
.reason for making a distinction between watchmen who are and watch-
men who are not special officers. We are still of the opinion that the
work performed by the watchmen, whether or not they are special
,officers, is substantially similar and militates against any such distinc-
tion.
We find no merit in the respondents' contention that the inclusion
,of the special officers in the appropriate units deprives the respondents
of all the usefulness which the special officers would otherwise have,
.or that their duties are such as to make their interests conflict with the
interests of the respondents' other employees in the appropriate units.
The claim is made that the watchmen's duties require them to observe
the other employees in the appropriate units, and that if they are in the
same Union with such employees, their ability to perform their duties
will be impaired. The respondents contend that pilferage on the docks
is increasing and attribute this increase to the organizing activities of
the Union among their watchmen. As we said in the Decision in the
representation cases, "the only specific instance testified to was where a
watchman who was a member of the Union had promptly reported to
his employer ... the longshoreman whom he had detected pilfering."
In effect, we are again asked in this proceeding to accept as true the
generalization that pilferage is increasing. The respondents have not
shown that pilferage is increasing or that it is attributable to the organ-
izing activities of the Union among the watchmen. In regard to the
-alleged increase of smoking, which is prohibited on the docks, another
generalization has been made that smoking has increased, because of
the Union's activities among the watchmen. Again, the respondents
have not shown that smoking has increased or that it is attributable
to the Union's activities among the watchmen. Although afforded
an opportunity to do so in these proceedings, the respondents have not
n For the most recent expression by the Board as to the propriety of including special
officers in the same unit with other employees, see Matter of Willys Overland Motors, Inc.
and International Union, United Automobile Wo,kers of America , Local No. 12, 9
:N. L R. B. 924.
DECISIONS AND ORDERS 1365
shown that the inclusion in the appropriate unit of their watchmen
or special officers affects their ability to discharge their duties or de-
prives the respondents of the usefulness of the special officers.
Finally, the respondents contend that the Board, although the
Union was designated by less than a majority of the employees of
the American-Hawaiian and the Matson in the respective appropriate
units, certified the Union as the representative of such employees of
the American-Hawaiian and the Matson for the purpose of collective
bargaining. In the election among such employees, the Union re-
ceived a majority of the votes cast, but did not receive the votes of
a majority of those eligible to vote. Since the Union received a
majority of the votes, cast by the employees of these two companies,
it was certified by the Board. In our Certifications we cited two
previous decisions 12 as precedents for our holding that in Section 9
(a) of the Act the phrase, "majority of the employees," refers to a
majority of the eligible employees voting in an election, and that
the organization receiving a majority of the votes cast is to be certified
as the exclusive representative. The respondents have not persuaded
us that our ruling in those cases is not sound or that it is not applicable
in the instant cases.
The findings that the special officers are watchmen, and that the
respondents' watchmen do not constitute separate units appropriate
for the purpose of collective bargaining make it unnecessary for us
to consider the effect of the designation of H. C Fries and George
Eastland as the representatives of the special officers employed by
the American-Hawaiian, and of William Wood, U. S. Brannan, and
Dan Taylor as the representatives of the special officers employed by
the Matson, for the purposes of collective bargaining. It also makes
it unnecessary for us to consider the effect of the designation, if any,
of Albert E. Lord as their collective bargaining representative by the
special officers employed by Sudden & Christenson.
In their petitions to intervene the Intervenors state that they made
protests to the Board against its action in certifying the Union as
the exclusive representative of employees in appropriate units which
included watchmen. In the case of the watchmen employed by the
American-Hawaiian, Fries and Eastland, two of their number, about
March 1937, went to the Regional Office for the Twentieth Region
and filed a written protest against the Board's action.13 The protest
which they made at, that time raised substantially the same issues
which they have presented in the present proceeding. Neither Fries
nor Eastland requested that the Board take any action to modify its
"Alatter of Associated Piess, a Corporation and American Newspaper Guild, 1 N. L
R B 686 , and Matter of R C. A Manufacturing Company, Inc. and United Electrical t
Radio Workers of America, 2 N L. R. B. 168, respectively.
13 Respondents Exhibit No 8
147841-39-vol 10-87
1366 NATIONAL LABOR RELATIONS BOARD
Certifications. In the case of the watchmen employed by the Matson,
an.oral protest was made at the Regional Office. We have in this
proceeding afforded the Intervenors and Albert E. Lord full oppor-
tunity to present their objections to the inclusion of the watchmen in
the-appropriate units.. Our findings in these cases constitute a deci-
sion-upon these objections.
In their exceptions to the second Intermediate Report and in their
brief, the respondents argue that after the Board's Certifications in
the representation cases and subsequent to their refusal to bargain
collectively with Local 38-124, International Longshoremen's Associa=
tion, the Union certified by the Board, ceased to exist. Proceeding on
this assumption, they contend, in effect, that when Local 38-124,' In-
ternational Longshoremen's Association, ceased to exist, the respond-
ents' duty to bargain collectively with the Union certified by the Board
in regard to the watchmen likewise ceased. They conclude, therefore,
that the respondents cannot be found to have refused to bargain with
a labor organization named Local 1-23, International Longshoremen's
and Warehousemen's Union, affiliated with the Committee for Indus-
trial Organization, because they refused to bargain with a labor or-
ganization named Local 3;8-124, International Longshoremen's Asso-
ciation, affiliated with the American Federation of Labor.
The respondents' contention assumes that Local 38424, Interna=
tional Longshoremen's Association, and Local 1-23. International
Longshoremen's and Warehousemen's Union, are two different labor
organizations, and that the respondents' refusal to bargain collectively
with the first is not a refusal to-bargain collectively with the second.
Their contention rests upon an incorrect assumption regarding the
effect of the transfer of affiliation.
What we certified in the representation cases was not a name, but
a union. Our"finding above regarding the transfer of affiliation from
International Longshoremen's Association to International Long-
shoremen's and Warehousemen's Union makes it clear that the Union
certified by us did not cease to exist. It is, therefore, plain that
the respondents' refusal to bargain has been a continuing refusal
to bargain with the labor organization certified by us as the collective
bargaining representative. Since the Union 'co, tinued to exist, the
respondents at all times after the certifications were under a duty,
upon request, to bargain collectively with the Union as the exclusive
representative of all the employees in the appropriate units, includ-
ing the watchmen. They have refused and continue to refuse to
fulfill that duty.
We find that on January 30, 1937, and at all times thereafter, each
of the respondents refused to bargain collectively with the Union
as the representative of all its employees in the appropriate unit in
respect to rates of pay, wages, hours of employment, and other con-
DECISIONS AND ORDERS 1367
ditions of employment, and thereby interfered with, restrained, and
coerced its employees in the exercise of the rights guaranteed in
Section 7 of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
We find that the activities of the respondents set forth in Section
III above, occurring in connection with the operations of the respond-
ents • described in Section I above. have a close, intimate, and sub-
stantial relation to trade, traffic, and connnerce among the several
States, and tend to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
THE REMEDY
Having found that the respondents have engaged in and are en-
gaging in certain unfair labor practices. we shall order that they
cease and desist therefrom and, affirmatively, bargain collectively,
upon request, with the Union as the exclusive representative of all
the employees in the appropriate units.
Upon the basis of the foregoing findings of fact, and upon the
entire record in these cases, the Board makes the following :
CONCLUSIONS or LAW
1. Gatemen, Watchmen & Miscellaneous Waterfront Workers
Union, Local 1-23, International Longshoremen's and Warehouse-
men's Union, formerly known as Gatemen, Watchmen & Miscella-
neous Waterfront Workers Union, Local 38-124, International Long-
shoremen's Association, is a labor organization, 'within the meaning
of Section 2 (5) of the Act.
2. The watchmen, baggagemen and porters, storemen, gearmen,
linemen, sliders, janitors and sweepers, inventory clerks, dock and
ship oil pumpers, and handy men, as defined in Matters o f Lucken-
baeh, Steamship Company, Inc.,-et al. and Gatemen, Watchmen and
Miscellaneous Waterfront Workers Union, Local 38-124, Interna-
tional Longshoremen's Association,` employed by each of the re-
spondents, constitute a unit appropriate for the purposes of collective
bargaining, within the meaning of Section 9_ (b) of the Act.
3. Gatemen,. Watchmen. & Miscellaneous Waterfront Workers
Union, Local 1-'23, International Longshoremen's and Warehouse-
men's Union, formerly known as Gatemen, Watchmen & Miscella-
neous Waterfront Workers Union, Local 38-124, International Long-
shoremen's Association, is,, and at all times since January 30, 1937,
has been _ the exclusive representative of all the respondents' em-
14 Footnote 1, supra.
1368 NATIONAL LABOR RELATIONS BOARD
ployees in each such unit for the purposes of collective bargaining,
within the meaning of Section 9 (a) of the Act.
4.. The respondents, and each of them, by refusing on January 30,
1937, and ever since, to bargain collectively with Gatemen, Watch-
men & Miscellaneous Waterfront Workers Union, Local 1-23, Inter-
national Longshoremen's and Warehousemen's Union, formerly
known as,Gatemen, Watchmen & Miscellaneous Waterfront Workers
Union, Local 38-124, International Longshoremen's Association, as
the exclusive representative of all the employees in each such unit,
have engaged in and are engaging in unfair labor practices, within
the meaning of Section 8 (5) of the Act.
5. The respondents, and each of them, by interfering with, restrain-
ing, and coercing its employees in the exercise of their right to self-
organization, to form, join, or assist labor organizations, to bargain
collectively through representatives of their own choosing, and to
engage in concerted activities for the purposes of collective bargain-
ing or other mutual aid and protection, have engaged in and are
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.
ORDER
Upon the basis of the foregoing findings of fact and conclusions
of law, and pursuant to Section 10,(c) of the National Labor Rela-
tions Act, the National Labor Relations Board hereby orders that the
respondents: American-Hawaiian Steamship Company, Grace Line,
McCormick Steamship Company, Matson Navigation Company, and
Sudden & Christenson, all of San Francisco, California, and their
respective officers, agents, successors, and assigns shall:
1. Cease and desist from :
(a) Refusing to bargain collectively with Gatemen, Watchmen &
Miscellaneous Waterfront Workers Union, Local 1-23, International
Longshoremen's and Warehousemen's Union, as the exclusive repre-
sentative of all the employees who are employed by each of the re-
spondents as watchmen, baggagemen and porters, storemen, gear-
men, linemen, sliders, janitors and sweepers, inventory clerks, dock
and ship oil pumpers, and handy men, as defined in Matters of Luck-
enbach Steamship Company, Inc., et al. and Gatemen, Watchmen and
Miscellaneous Waterfront Workers Union, Local 38-124, International
Longshoremen's Association; 15
(b) In any other manner interfering with, restraining, or coercing
such employees in the exercise of the right to self-organization, to
15 Footnote 1, supra.
DECISIONS AND ORDERS 1369
form, join, or assist labor organizations, to bargain collectively
through -representatives of their own choosing, and to engage in con-
certed activities for the purpose of collective bargaining, or other
mutual aid or protection, as guaranteed in Section 7 of the National
Labor Relations Act.
2. Take the following affirmative action, which the Board finds
will effectuate the policies of the Act :
(a) Upon request, bargain collectively with Gatemen, Watchmen &
Miscellaneous Waterfront Workers Union, Local 1-23, International'
Longshoremen's and Warehousemen's Union, as the exclusive repre-
sentative of all the employees who are employed by each of the re-
spondents as watchmen, baggagemen and porters, storemen, gear-
men, linemen, sliders, janitors and sweepers, inventory clerks, dock
and ship oil pumpers, and handy men, as defined in Matters of Luck-
enbacli Steamship Company, Inc., et al. and Gatemen, Watchmen and
Miscellaneous Waterfront Workers Union, Local 38-121, International
Longshoremen's Association; 18
(b) Immediately post notices in a conspicuous place on each dock
of each respondent, and maintain such notices for a period of at least
sixty (60) consecutive days from the date of posting, stating that
each such respondent will cease and desist in the manner set forth
in 1 (a) and (b) and that it will take the affirmative action set forth
in 2 (a) of this Order;
(c) Notify the Regional Director for the Twentieth Region in
writing within ten (10) days from the date of this Order 'hat steps
that respondent has taken to comply herewith.
16 Footnote 1, supra.