The Wilson Transit Co.

National Labor Relations Board - Board Decisions

Dec 29, 1948

80 N.L.R.B. 1476 (N.L.R.B. 1948)

In the Matter of THE WILSON TRANSIT COMPANY, INTERSTATE
STEAMSHIP COMPANY, THE INTERLAKE STEAMSHIP COMPANY, M. A.
HANNA COMPANY, BETHLEHEM TRANSPORTATION CORPORATION,
PITTSBURGH STEAMSHIP COMPANY, EMPLOYERS 1 and NATIONAL
ORGANIZATION MASTERS, MATES AND PILOTS OF AMERICA (A. F. OF L.),
PETITIONER
Case Nos. 8-RC-158 through 8-RC-163.-Decided December 29,1948
DECISION
AND
ORDER
Upon petitions duly filed, an order consolidating the above cases
was filed on July 8, 1948. A hearing on the consolidated cases was
held at Cleveland, Ohio, on various dates between July 29 and August
9, 1948, before Philip Fusco, hearing officer. At the hearing the
Employers filed numerous motions to dismiss the petitions upon vari-
ous grounds. The Employers' motion to dismiss upon the ground that
the unit sought is inappropriate is granted for reasons hereinafter
stated.2 The hearing officer's rulings made at the hearing are free
from prejudicial error and are hereby affirmed.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the National Labor Relations Board has delegated its
powers in connection with this case to a three-man panel consisting
of the undersigned Board Members.*
Upon the entire record in the case, the Board finds :
1. The Employers are engaged in commerce within the meaning
of the National Labor Relations Act.'
' The names appear as amended at the hearing.
z In view of our ruling on this motion we find it unnecessary to pass on the other
motions to dismiss.
.Reynolds , Murdock, and Gray.
3 All the Companies stipulated , in effect, that they are domestic corporations engaged
in the business of transporting bulk cargo on the Great Lakes principally between the
ports of the various States on the Great Lakes and that during the past year , each carried
in its vessels cargoes of substantial tonnage valued in excess of $1,000,000 or larger
stipulated sums. All but the M . A. Hanna Company admit that they are engaged in
commerce within the meaning of the Act. We have in previous cases found the M. A.
Hanna Company engaged in interstate commerce within the meaning of the Act. See
Matter of M. A. Hanna Company , 75 N. L . R. B. 185; 65 N . L. R, B. 605.
80 N. L. R. B., No. 232.
1476
THE WILSON TRANSIT COMPANY 1477
2. The National Organization Masters, Mates and Pilots of Amer-
ica, affiliated with the American Federation of Labor, is a labor or-
ganization and claims to represent employees of the Employers.
3. The Petitioner seeks in each case a unit composed of licensed
pilots who sign on as mates , on all ships owned and operated, and
on all ships operated but not owned, by each of the Companies 4 The
Petitioner contends that the employees sought are non-supervisory
professional employees. The Employers contend that such unit is
inappropriate since they do not employ any pilots as such; that the
employees for whom the Petitioner would bargain collectively are
mates who are qualified to serve as pilots, and that these individuals
are supervisors within the meaning of the Act. The Employers have
no history of collective bargaining with respect to the employees
sought herein.
The statutes and regulations of the United States Coast Guard
applicable to the control of navigation on the Great Lakes require
that each vessel of the type herein involved carry as part of the
ship's crew a master and pilot, two first class pilots, and one second
class pilot, all of whom are licensed deck officers. Pilots as such are,
however, not employed by the Employers, but are signed on as mates
and are required to carry pilot licenses in order to secure employment.
At the beginning of the shipping season in early spring, the mates,
who report from 3 to 10 days before the master, are required to make
the vessels ready for official inspection and navigation. As part of
such duties they may be called upon to hire certain unlicensed crew
members in order to complete the ship's complement of personnel,
without which the vessel would not receive its certificate of inspection
from the U. S. Coast Guard. The first mate takes charge of the
work and assigns certain tasks to the other mates . Each mate is
responsible for the work of the crew members assigned to him and
for the satisfactory completion of the work. When the ship is ready
to leave port, the master comes aboard and takes charge. The mates
are then required to stand watch,5 and the master delegates to the
mates the duties of maintaining and providing for the upkeep of the
4 The vessels in question are steam vessels ranging in carrying capacity from 7,000 tons
to 18,000 tons and are separately valued up to $3,000,000 . The number of vessels involved
is as follows : The Wilson Transit Company , 11 ; Interstate Steamship Company, 4; The
Interlake Steamship Company, 36 ; M. A. Hanna Company , 13; Bethlehem Transportation
Corporation , 12 ; Pittsburgh Steamship Company, 62 . The parties stipulated that each
vessel carries in addition to a master , who is also a licensed pilot, 3 licensed pilots who
sign the ship's articles, or contract of employment , as first, second , or third mate. It is
conceded that the master is a supervisor within the meaning of the Act.
3 The mates are called upon to stand individual watches of 4 hours' duration in rotating
shifts. They have under them at such times a wheelaman , watchman , and deck watch,
and during the daylight shift, three deck hands and a boatswain, where boatswain are
employed.
1478 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
vessel. In the absence or incapacity of the master the first mate
assumes complete control over the vessel. Should the first mate also
be absent or be incapacitated, the second mate takes charge, and in
corresponding circumstances, the third mate will take command of
the ship.
In discharging his duties as pilot, a mate has complete charge of,
and is responsible for the safety of, the ship until relieved by the mas-
ter or mate next on watch.6 He has under his immediate control the
wheelsman and watchman, and is also responsible for the work being
performed by the deck crew then on duty.' Whether he be con-
sidered mate or pilot, while navigating the ship he has the duty and
authority to direct and advise the wheelsman.s He may, in the
exercise of his judgment, relieve an incompetent wheelsman or watch-
man and transfer any other qualified deck member to these positions.
In addition, the record shows that as mate or pilot he has the au-
thority to recommend the discharge or promotion of unlicensed deck
personnel.9
The Petitioner contends, however, that mates or pilots are first and
foremost professional employees without supervisory authority; 10
that their professional status may not be changed simply by the im-
position of a supervisory title; and that on leaving the pilot house
they merely relinquish their professional status for the moment to
assume the routine tasks of gang pushers or straw bosses."' Moreover,
the Petitioner contends that mates as such may not lawfully be em-
ployed on the Great Lakes; that their duties in the capacity of mates
are of doubtful validity and ought not to be used to deprive them of
6 It as been variously estimated by the Petitioner 's witnesses that a mate , depending
upon his experience , will spend from 75 to 95 percent of his hours on duty in the pilot
house. However , he is not infrequently relieved by the master, on which occasion he
will go down on deck to look after the work of the deck crew.
7 Captain Ernest N. Pollock, district officer in charge of marine inspection , U. S. Coast
Guard , called as a witness by the Petitioner , testified that even when on watch in the
pilot house , the pilot is acting as mate since he has the entire deck crew under his
supervision.
8 The mere fact that the pilot is under a statutory duty with respect to the direction of
the wheelsman does not alter or detract from his status as supervisor and representative of
the Employer concerned . Cf. Matter of Jones & Laughlin Steel Corporation , 66 N. L.
R. B 386, 395.
9 One of the Petitioner 's witnesses , who is a licensed pilot and has served on Great
Lakes vessels for many years , testified that his own recommendations as to promotion,
transferring , hiring, demotion , rewarding , and assigning ship ' s personnel have been fol-
lowed in the majority of cases by 10 out of 11 masters with whom he had served
to In view of our finding hereinafter we deem it unnecessary to pass on the issue raised
by the Petitioner as to whether or not pilots are professional employees.
11 The Petitioner in furtherance of this contention points to the fact that mates, when
not on duty in the pilot house but working with the deck crew, do a substantial amount
of manual labor . The mere fact , however, that a supervisor spends a large part of his
time in the performance of manual labor does not necessarily affect his status as a
supervisor . See Matter of The Murray Company , 77 N. L. R. B. 481 , Matter of Steelweld
Equipment Company, Inc ., 76 N. L. R. B. 831.
THE WILSON TRANSIT COMPANY 1479
their rights as employees . In view of the present record, we find it
unnecessary to pass on the Petitioner's contention as to the validity of
such employment. However, we note that the record itself tends to
disprove the Petitioner's contention in this respect.12
As regards Petitioner's contention that the personnel involved
herein do not have supervisory authority, such contention is sup-
ported neither by the record nor the authorities cited by the Petitioner.
The record shows that these employees have the same responsibilities
and perform the same duties as do the employees in similar classifica-
tions in other cases heretofore considered by the Board 13 Moreover,
the parties hereto have stipulated for the purposes of the record that
the duties and responsibilities of the employees involved herein are
generally similar to the duties and responsibilities of the employees
classified as mates who were considered in the record of proceedings
formerly before the Board in the case of Wyandotte Transportation
Company.14 In the latter case, cited by the Employers in support of
their position, it appears, as in the instant proceeding, that the mates
concerned were designated as pilots on the certificates of inspection
issued by the Government inspection service. In that case we decided
that the mates there employed were executive employees and consti-
tuted a part of management. We recognized that the position of
those mates was the same as that of the licensed deck officers involved
in prior decisions of the Board. Accordingly, we determined that,
notwithstanding their supervisory authority and managerial respon-
sibilities, such employees were entitled to the benefits of the Act.
However, as a result of subsequent changes in the law brought about
by the passage of the Labor Management Relations Act, 1947, we
ultimately concluded that the duties and responsibilities of the mates
in question fell clearly within the purview of the definition of super-
visor as set forth in Section 2 (11) of the amended Act excluding
supervisors from the definition of employees entitled to the benefits
13 Petitioner 's own witness , Captain Pollock , testified that the practice was well known
to the inspection service and that it did not regard the employment of mates as illegal.
Moreover , administrative recognition of the practice and, by implication, approval thereof
seems to be contained in Section 10 05-13 of "Rules and Regulations for Licensing and
Certificating of Merchant Marine Personnel ," United States Coast Guard , introduced in
evidence by Petitioner as Exhibit 15. The section provides that a minimum requirement,
among others , for an applicant to qualify for a master ' s license on Great Lakes steam
and motor vessels is "1 year's service as first class pilot while acting in the capacity of
first mate on Great Lakes steam or motor vessels . . ." ( italics added).
13 See Wyandotte Transportation Company, 62 N. L. R B . 1518, and cases cited See
also Matter of Charles Zubtek, 74 N. L. R. B . 356; Matter of Crucible Steel Company of
America, 72 N L R B . 1202; Matter of Standard Oil Company, 67 N L R. B. 506; Matter
of Nicholson Transit Company, 65 N. L R. B. 418. Cf. Matter of Kinsman Tranatt
Company, 75 N. L. R. B. 150; Matter of Wilson Transit Company, 75 N. L. R. B 181;
Matter of M. A. Hanna Company , 75 N. L. R. B. 185 ( where the Board found stewards,
or chief cooks , unlicensed personnel on Great Lakes bulk cargo vessels, supervisors within
the meaning of the Act).
14 62 N. L. R B. 1518 ; 65 N. L . R. B. 980.
1480 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of collective bargaining. Accordingly we agreed to a discontinuance
of all enforcement proceedings with reference thereto 15 There is
nothing in the present record which alters our opinion in this respect.
Upon the basis of the present record, and the stipulation of the
parties, we find that the unit herein proposed in each of the afore-
said cases is inappropriate upon the ground that all the individuals
sought to be included therein are supervisors within the meaning of
the Act. We shall, therefore, dismiss the petitions.
ORDER
Upon the basis of the entire record in this case, the National Labor
Relations Board hereby orders that the petitions filed in the instant
matters be, and they hereby are, dismissed.
15 N. L. R. B. v. Wyandotte Transportation Company , 166 F . ( 2d) 434 ( C. A. 6th) 1948.