American-West African Line, Inc.

National Labor Relations Board - Board Decisions

Jan 20, 1938

4 N.L.R.B. 1086 (N.L.R.B. 1938)

In the Matter of AMERICAN-WEST AFRICAN LINE, INC. and NATIONAL
MARINE ENGINEERS ' BENEFICIAL ASSOCIATION
Case No. R-280.-Decided January ti0, 1938
Water Transportation Industry-Investigation of Representatives : contro-
versy concerning representation of employees : rival organizations ; conflicting
claims of rival organizations-Closed Shop Contract : executed with rival union
on day following filing of petition by petitioning union ; no bar to an election
in absence of clear proof that union obtaining contract represented majority at
time of execution of contract-Unit Appropriate for Collective Bargaining:
all licensed engineers employed as licensed engineers on Company 's vessels ; no
controversy as to-Election Ordered
Mr. John T. McCann, for the Board.
Mr. Herman Goldman, by Mr. H. G. Liese, of New York City, for
the Company.
Mr. Edward Patrick Trainer, for M. E. B. A.
Mr. 0. L. Bonifay, Mr. Bert L. Todd, and Mr. Herbert J. De Varco,
of New York City, for U. L. O.
Mr. Hennj W. Lehmann, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEIIENT OF THE CASE
On July 22, 1937, National Marine Engineers' Beneficial Associa-
tion, herein called M. E. B. A., filed with the Regional Director for
the Second Region (New York City) a petition alleging that a ques-
tion affecting commerce had arisen concerning the representation of
employees of American-West African Line, Inc., New York City,
herein called the Company, and requesting an investigation and
certification of representatives pursuant to Section 9 (c) of the Na-
tional Labor Relations Act, 49 Stat. 449, herein called the Act. On
July 30, 1937, the National Labor Relations Board, herein called the
Board, acting pursuant to Section 9 (c) of the Act and Article III,
Section 3, of National Labor Relations Board Rules and Regula-
tions-Series 1, as amended, ordered an investigation and author-
ized the Regional Director to conduct it and to provide for an
appropriate hearing upon clue notice.
On July 31, 1937, the Regional Director issued a notice and on
August 3, 1937, an amended notice of hearing, copies of both of which
1086
DECISIONS AND ORDERS 1087
were duly served upon the Company, upon M. E. B. A., and upon
the United Licensed Officers of the United States of America, herein
called U. L. 0., a labor organization claiming to represent em-
ployees directly affected by the investigation . Pursuant to the notice
and the amended notice, a hearing was held on August 5, 1937, in
New York City, before Herman A. Gray, the Trial Examiner duly
designated by the Board. On September 23, 1937, the Board, hav-
ing found the evidence introduced at the first hearing to be inade-
quate, decided to-reopen the case for the purpose of receiving fur-
ther evidence . On October 11, 1937 , the Regional Director issued a
notice of such further hearing to be held in New York City on
October 14, 1937. Copies of the notice of hearing were duly served
upon all the parties to the proceeding . Pursuant to the notice, a
hearing was held on October 14, 1937, in New York City, before
the same Trial Examiner. At both hearings, the Board and the
Company were represented by counsel , and M . E. B. A. by one of
its officers . At the first hearing, U. L. O. was represented by one of
its officers , and at the second hearing by its general secretary and
by counsel: All parties participated in both hearings . Full oppor-
tunity to be heard, to examine and to cross-examine witnesses, and
to introduce evidence bearing on the issues was afforded all parties.
At the hearing both M. E. B. A. and U. L. O. moved to be certified
on the basis of the evidence introduced . These motions are hereby
denied for reasons hereinafter set forth . During the course of the
hearing the Trial Examiner made several rulings on objections to
the admission of evidence . The Board has reviewed the rulings of
the Trial Examiner and finds that no prejudicial errors were com-
mitted. The rulings are hereby affirmed.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
American-West African Line, Inc., a New York Corporation, is en-
gaged in the business of transporting freight and a limited number
of passengers on ships sailing from New York City, Boston, Balti-
more, Norfolk, New Orleans , Port Arthur, and other ports on the.
Gulf and the east coast of the United States to ports in Africa. The
ships also make calls at ports in the Azores and the Canary Islands.
New York City is the home port for the vessels and the Company's
offices are-there located.
The Company operates eight vessels in its service. Chief engineers.
first assistant engineers , second assistant engineers , and third assist-
ant engineers are employed by the Company on each of these ships.
Some of the ships also carry one or more additional assistant engi-
neers.
1088 NATIONAL LABOR RELATIONS BOARD
II. THE ORGANIZATIONS INVOLVED
National Marine Engineers' Beneficial Association is a labor organ-
ization, admitting to its membership licensed marine engineers em-
ployed by the Company.
United Licensed Officers of the United States of America' is a labor
organization affiliated with the American Federation of Labor. It
admits to its membership both licensed marine engineers and licensed
deck officers.
III. THE QUESTION CONCERNING REPRESENTATION
The testimony is not entirely clear, but it appears that on or about
July 10, 1937, E. P. Trainer, a district deputy for M. E. B. A., in-
formed Charles Barthold, vice-president of the Company, that
M. E. B. A. represented a majority of the licensed. engineers, and
asked that the Company enter into a signed contract with M. E. B. A.
Barthold suggested that Trainer leave with him for examination
a copy of the proposed contract which Trainer had brought with
him. About ten minutes later on the same day, Bert Todd, general
secretary of U. L. 0., called upon Barthold and requested him to
sign an agreement with U. L. 0. covering both the licensed engineers
and the licensed deck officers employed by the Company. Trainer,
in his conference with Barthold, indicated the possibility of a strike
on one of the Company's vessels, the West Irmo, if the Company
did not sign the agreement proferred by M. E. B. A. Todd indicated
the same possibility if the Company did not sign an agreement with
U. L. 0. In fact on July 12, 1937, a strike did take place on the
West Irmo, at least among the engineers, and a few days later-the
men on the West Lashaway, another of the Company's vessels, also
went on strike. The record does not disclose what classes of em-
ployees participated in the strike, but it is clear that both vessels
were unable to move for several weeks.
After July 10, 1937, a series of conferences between Barthold and
Trainer, and between Barthold and Todd, took place. In support
of his claim that U. L. 0. represented a majority of the licensed en-
gineers and a majority of the licensed deck officers, Todd, during the
course of his conferences with Barthold, furnished a list of the
licensed engineers and licensed deck officers 1 who were stated to be
members of U. L. 0. and offered to furnish for examination signed
applications and receipts for dues.
On July 23, 1937, the day following the filing of the petition in
this proceeding by M. E. B. A., the negotiations between Barthold
and Todd culminated in a signed agreement 2 which, among other
1 Respondent's Exhibit No. 1.
2 Intervenor's Exhibit C
DECISIONS AND ORDERS 1089
provisions, contains a closed-shop clause.3 The contract also provides
for recognition by the Company of U. L. 0. as the representative of
both the licensed engineers and the licensed deck officers employed by
the Company for the purposes of collective bargaining. By its terms
the contract is to continue in effect for one year from the date of
execution.
The strikes on the Company's vessels do not appear to have ended
immediately as a result of the agreement between the Company and
U. L. 0. At some time after the signing of the agreement, however,
a verbal understanding seems to have been reached between the Com-
pany and M. E. B. A. which enabled the Company to move the ships
which had been affected by the strikes.4 Barthold testified that the
Company communicated. with U: L. 0. from which it received consent
for the arrangement it was making with M. E. B. A.
The agreement signed by the Company and U. L. 0. has no effect
upon the determination of the issues in this proceeding. Clearly, the
closed-shop contract is not a bar to an election if U. L. 0. did not rep-
resent a majority of the licensed engineers 5 of the Company 8 at the
time the contract was executed. There is no clear showing that U. L.
0. in fact represented such a majority at that time. It appears from
the record that approximately 36 licensed engineers, including nine on
the two ships affected by the strikes, were employed by the Company
on July 23, 1937, the date on which the contract was ' signed. As
evidence that a majority of the licensed engineers desired U. L. 0. to
represent them on that date, U. L. 0. introduced dues receipts issued
to 22 licensed engineers for payment of dues and also applications
signed by 13 of the same men. Todd testified that the receipts in the
case of each man were the first and last dues receipts issued to these
men by U. L. 0. The dates on the receipts show that only three of
the engineers had paid dues for a period up to or beyond July 23,
1937. Eight men were paid up until July 1, 1937; one until June 1,
1937; five until May 1, 1937; two until March 1, 1937; one until
January 15, 1937; one until September 1, 1936; and the card of
allother did not indicate the date to which he was paid up, although
the date upon which he made his last payment of dues was noted
on the,receipt as April' 4, 1937. Although the cessation of payment
e This provision of the . contract reads :
It is agreed that all licensed deck and engineer officers serving in positions as such,
on board vessels of the Company shall be members of the Association ; provided, how-
ever, that refusal by the Association to accept for membership any man shall not act
as a bar to his appointment in a position as licensed officer in the Company's employ.
4 The articles of the West Irmo were opened on August 10, 1937, and the articles of the
West Lashaway on August 17, 1937.
6 As set forth hereinafter in Section Iv, we have found that the licensed ' engineers
employed by the Company constitute an appropriate unit.
Bin the Matter of Southern Chemical Conapana/ and Textile Workers Organizing Com-
mittee, 3 N . L. R B 839.
1090 NATIONAL LABOR RELATIONS BOARD
of dues by a person to a labor organization does not necessarily signify
that such a person no longer desires to be represented by that labor
organization, it is a factor to be considered. This is particularly true
in the instant case since applications for membership in M. E. B. A.
and cards designating M. E. B. A., as their representative for pur-
poses of collective bargaining were signed by a considerable number
of licensed engineers after they ceased paying dues to U. L. O.
The M. E. B. A. introduced as evidence of its authority to repre-
sent the licensed engineers post cards signed by 20 of them and
addressed to offices of M. E. B. A., stating that they authorized
M. E. B. A. to represent them in negotiating as to wage scales and
working conditions. The M. E. B. A. also introduced applications
signed by 11 licensed engineers including 10 of those who had also
signed the post cards? On most of the post cards no date appears
except that of the postmark. The cards and applications show that
21 engineers had signed either applications or cards or both by July
23, 1937. Thirteen of these men were among those who had paid
dues to U. L. O. Of the 13 men, 11 had signed M. E. B. A. applica-
tions or cards, or both, after they ceased paying dues to U. L. O.
and two signed prior to the date up to which their dues in U. L. O.
were paid.
It should also be observed that U. L. O. had notice on July 22,
1937, the day before the contract was signed, of the filing of the
petition by M. E. B. A. An undated carbon copy of a telegram 8
addressed to Todd at the offices of U. L. 0., and bearing the sub-
scription of the Regional Director was entered into the record without
objection. The copy states that M. E. B. A. had filed its petition
in this case and asked Todd whether he would consent to the holding,
of an immediate election. There was also entered into the record
the original of a telegram,e dated July 22, 1937, sent by U. L. O.
to the Regional Director, in evident reply to the telegram above de-
scribed, stating that there was no need for an election. When Todd
was questioned at the hearing with respect to these telegrams,. he
admitted that the telegram addressed to the Regional Director had
been sent from his office and that therefore U. L. O. had presumably
received the telegram from the Regional Director and presumably,
knew that M. E. B. A. had filed its petition.
, On the basis of these facts, and upon the whole record, we find
that a question has arisen concerning the representation of licensed
engineers of the American-West African Company, Inc., and that
such question tends to lead to labor disputes burdening and obstruct-
ing commerce and the free flow of commerce.
4 Board's Exhibit No. 3.
e Board's Exhibit No. 6.
*Board's Exhibit No. 7.
DECISIONS AND ORDERS
IV. THE APPROPRIATE UNIT
1091
, In its petition, M. E. B. A. alleges that the appropriate unit should
be composed of approximately 34 licensed engineers employed on
the vessels of the Company as licensed engineers. At the hearing,
both the Company and U. L. O. conceded that the licensed chief and
assistant engineers employed on the Company 's vessels constitute an
appropriate unit.
We find that all licensed engineers employed as licensed engineers
on the vessels operated by the Company constitute a unit appropriate
for the purposes of collective bargaining and that said unit will
insure to employees of the Company the full benefit of their right
to self-organization and to collective bargaining and otherwise effec-
tuate the policies of the Act.
V. THE DETERMINATION OF REPRESENTATIVES
On the basis of the facts considered in Section III above, we are
unable to find that U. L. O. represented a majority of the Company's
licensed engineers on July 23 , 1937, when the contract was executed,
or thereafter . Nor does the evidence establish the claim of M. E. B. A.
that it represents a majority of the licensed engineers . As pointed
out in Section III above , M. E. B. A . introduced in evidence cards
and applications showing that 21 licensed engineers had signed either
cards or applications or both by July 23, 1937 . Of the 21 licensed
engineers , 13 were among the engineers who paid dues to U. L. 0.
Five of the 13 employees paid their dues for a period ending July 1,
1937; three paid dues for a period ending on May 1, 1937; one em-
ployee paid dues to U. L. O. on June 24, 1937, for a period ending
September 1, 1937, although he had signed a Al. E. B . A. application
on March 3 , 1937. In view of this evidence as to the instability of
the employees' affiliations, we feel that their signing of the cards
and applications of M. E. B. A. does not necessarily signify their
desire to be represented by M. E. B. A.
We find that the question concerning representation which has
arisen can only be resolved by means of an election by secret ballot.
We will direct, this election to be held as soon as possible under
the direction and supervision of the Regional Director for the Second
Region. Notices of the election, a sample ballot, a list of the em-
ployees eligible to vote, and a notice of, the time and place where
balloting will be held, shall be posted in New York on each vessel
of the Company , on the next trip , if possible , following the issuance
of the Direction of Election in the case. In the direction of the said
Regional Director , balloting shall be conducted either when the vessel
returns to New York at the completion of the round trip voy-
age during which the vessel was so posted or at some subsequent port
1092 NATIONAL LABOR RELATIONS BOARD
of call in the United States, after the vessel has been posted in New
York.
Every licensed engineer who has been employed as such by the
Company at any time between July 22, 1937, the date of the filing of
the original petition, and the date of the Direction of Election in
this case, and who makes the round trip on which the vessel is posted
and at the conclusion of which the election is held in the capacity
of a licensed engineer, shall be eligible to vote.
Upon the basis of the above findings of fact and upon the entire
record in the case, the Board makes the following :
CoNcLusIONS OF LAW
1. A question affecting commerce has arisen concerning the repre-
sentation of employees of American-West African Lines, Inc., New
York City, within the meaning of Section 9 (c) and Section 2 (6)
and (7) of the National Labor Relations Act.
2. The licensed chief and assistant engineers employed as licensed
engineers on vessels operated by the Company, constitute a unit appro-
priate for the purposes of collective bargaining, Within the meaning
of Section 9 (b) of the National Labor Relations Act.
DIRECTION OF ELECTION
By virtue of and pursuant to the power vested in the National Labor
Relations Board by Section 9 (c) of the National Labor Relations
Act, 49 Stat. 449, and pursuant to Article III, Section 8, of National
Labor Relations Board Rules and Regulations-Series 1, as amended,
it is hereby
DIRECTED that, as part of the investigation authorized by the Board
to ascertain representatives for collective bargaining with American-
West African Lines, Inc., elections by secret ballot shall be conducted
as soon as convenient, and beginning as promptly as practicable after
the date of this Direction, in conformity with the rules set forth here-
inabove for the conduct of the election, under the direction and super-
vision of the Regional Director for the Second Region, acting in this
matter as agent for the National Labor Relations Board, and subject
to Article III, Section 9, of said Rules and Regulations, among the
licensed chief and assistant engineers employed as licensed engineers
on the vessels operated by American-West African Lines, Inc., to de-
termine whether they desire to be represented by National Marine
Engineers' Beneficial Association or United Licensed Officers of the
United States of America for the purposes of collective bargaining,
,or by neither.