Hutchinson & Co.

National Labor Relations Board - Board Decisions

Oct 23, 1952

101 N.L.R.B. 90 (N.L.R.B. 1952)

90 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
views with each employee in the voting unit. In two instances these
employees were interviewed in Thompson's automobile at their re-
spective homes; the other employees were interviewed separately in
his office.
It is well established that the "technique of calling the employees
into the Employer's offices individually" to urge them to reject the
union is, in itself, conduct calculated to interfere with their free
choice in the election.2 This is so, regardless of the noncoercive tenor
of an employer's actual remarks.3
Because the Employer's conduct interfered with the employees'
freedom of choice in the selection of a bargaining representative, we
shall sustain the Petitioner's objections and set the election aside. We
shall further direct the Regional Director to conduct a new election
at such time as he deems appropriate .4
Order
IT IS HEREBY ORDERED that the election of June 10, 1952, be, and it
hereby is, set aside; and
IT IS FURTHER ORDERED that this proceeding be remanded to the Re-
gional Director for the Fifteenth Region for the purpose of conduct-
ing a new election at such time as he deems the circumstances permit
a free choice of a bargaining representative.
MEMBERS STYLES and PETERSON took no part in the consideration of
the above Supplemental Decision and Order.
3 General Shoe Corporation (Marman Bag Plant), 97 NLRB 499.
8 We reject the Employer's claim that Silver Knit Hosiery Mills, Inc., 99 NLRB 422, and
Calvine Cotton Mills, Inc., Plant No . 2, 98 NLRB 843, are controlling here. In Silver
Knit, the Employer 's remarks were addressed to large groups of employees , not individuals.
In Calvin, the remarks were made to but a single employee , occurred 6 weeks prior to
the election, and did not reflect a similar pattern of conduct toward any other employees.
4 As there is no dispute concerning the facts in this case , the Employer 's motion for a
hearing is hereby denied.
HUTCHINSON & CO., BUCKEYE STEAMSHIP Co., PIONEER STEAMSHIP CO.,
AND INLAND STEEL Co .' and UNITED STEELWORKERS OF AMERICA, CIO,
PETITIONER . Case No. 8-RC-1765. October 23, 1952
Decision and Direction of Elections
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before Charles A. Fleming, hearing
' The names of the Employers are hereby amended to conform to our findings within
Harding College, 99 NLRB 957.
101 NLRB No. 30.
HIITCHINSON & CO. 91
officer. 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 Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Chairman Herzog and Members Murdock and Peterson].
Upon the entire record in this case,2 the Board finds :
1. Hutchinson & Co., a partnership consisting of John T. Hutchin-
son, Jean C. Hutchinson, and Dale Coy, is engaged solely in the man-
agement and operation of vessels on the Great Lakes for Pioneer
Steamship Co., Buckeye Steamship Co., and Inland Steel Co.
With respect to Pioneer and Buckeye, the record discloses that the
three partners of Hutchinson are the only officers of Pioneer and
Buckeye and all these companies maintain the same principal office 3
The Hutchinson partners are also directors of Pioneer and Buckeye.
For many years, Hutchinson has had an oral agreement with Buckeye
and Pioneer under which it manages all their vessels. Hutchinson's
managerial functions consist of the following: Through its fleet cap-
tain and fleet engineer, dispatching and controlling the movement
and operation of all the ships of Buckeye and Pioneer; keeping all
records of the fleets' operations including requisitions for repairs, pur-
chases, personnel records, and preparing tax returns and all contracts
entered into by Buckeye and Pioneer.
Hutchinson's fleet captain and fleet engineer hire all the captains,
chief engineers, and other licensed personnel. The captains and chief
engineers of the respective vessels then hire their own unlicensed per-
sonnel and send crew lists to Hutchinson & Company. The captains
and chief engineers of all the vessels of Pioneer and Buckeye are
under the supervision of and responsible to the fleet captain and fleet
engineer of Hutchinson. All major purchases of supplies and repair
jobs must receive final approval by Hutchinson's fleet captain and
fleet engineer. The respective captains pay their crew members by
check drawn on the respective steamship companies and all payroll
records are maintained by Hutchinson. All invoices and requisitions
are made out in the name of the particualar steampship company but
are approved by Hutchinson.
With respect to Inland the record discloses that, while Hutchinson
also has had an oral agreement with Inland for many years whereby
Hutchinson assists Inland in the operation of its vessels, the relation
between Inland and Hutchinson and that of Buckeye and Pioneer
with Hutchinson is quite different. Thus, ownership of five steamships
is only one of Inlaiid's many business enterprises. Moreover, none of
2
On October 15, 1952, the attorneys for Pioneer Steamship Co. and Buckeye Steamship
Co. requested oral argument . This request is hereby denied as the record and briefs, in
our opinion , adequately present the issues and positions of the parties.
8 Buckeye also maintains a small office other than the office which it has with Pioneer
and Hutchinson where some of its accounting work is performed.
92 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the partners of Hutchinson are officers or directors of Inland nor do
Hutchinson and Inland occupy the same offices. Furthermore, Inland
retains most of the direct operational control of its vessels and retains
Hutchinson on an advisory basis only and as a general accounting
agent.
In contrast to the situation with regard to Pioneer and Buckeye,
Inland has its own fleet manager and fleet engineer in Chicago who
direct the dispatching of all its vessels and control all the hiring and
firing of both licensed and unlicensed personnel. Furthermore, In-
land maintains direct contact and control with all the personnel on its
vessels in such matters as advising them when and where to report
to the ships, matters relating to insurance, working conditions, griev-
ances, and all decisions relating to industrial relations policies. The
employees on the Inland vessels are eligible and receive all the benefits
allowed to all Inland employees, which are not given to the employees
of Hutchinson, Pioneer, and Buckeye. The Inland vessels are used
as private carriers for the Inland Steel Company, while the vessels
of Hutchinson, Pioneer, and Buckeye are contract carriers. All condi-
tions of employment of its employees such as wages and other benefits
are directly determined by Inland and such determinations are in no
way influenced by negotiations with Buckeye, Pioneer, and
Hutchinson.
At the hearing no formal appearance was made for Hutchinson,
although one of its partners testified as to its relations with Buckeye,
Pioneer, and Inland. The attorneys for the latter three companies
moved to dismiss the petition upon the ground that it did not designate
the proper employer because each of the three companies is an em-
ployer and not Hutchinson. This motion was referred to the Board.
In view of the facts given above regarding the relationship between
Hutchinson, Pioneer, and Buckeye, we find, contrary to the conten-
tion of Pioneer and Buckeye, that all three together constitute a
single Employer within the meaning of Section 2 (2) of the Act.'
On the other hand, we believe and so find that the record amply sup-
ports the position of Inland to the extent that it contends that it is
a separate Employer. However, the record also shows that the two
Employers found herein were notified of the hearing, were fully ap-
prised of the Petitioner's claim, and were aware at all times that
this matter concerned their employees. Moreover, the Employers
participated in the hearing, were represented by counsel, and had a
complete opportunity to present their positions on all the issues which
arose. There was no prejudice under the circumstances, and we there-
fore deny the motion to dismiss the petition.5
A Emerson & Stevens Mfg. Co., et al , 95 NLRB 964 ; Central Packing Company , at al.,
95 NLRB 19 ; Manhattan Shirt Company , et al., 84 NLRB 100.
5 See Harding College, footnote 1, supra.; Warwick Lumber Company, 78 NLRB 107.
HUTCHINSON & Co. 93
Accordingly, we find that Hutchinson, Pioneer, and Buckeye and
Inland are Employers engaged in commerce within the meaning of
the Act.
2. The labor organizations involved claim to represent certain em-
ployees of the Employer.
3. A question affecting commerce exists concerning the representa-
tion of employees of the Employers within the meaning of Section 9
(c) (1) and Section 2 (6) and (7) of the Act.
4. In its brief, the Petitioner contends that there should be two
appropriate bargaining units--one, consisting of all unlicensed per-
sonnel on the vessels of Hutchinson, Buckeye, and Pioneer, and the
other, consisting of all unlicensed personnel on the vessels of Inland.
The Intervenor, Seafarers' International Union of North America,
Great Lakes District, AFL, in its brief agrees with these unit con-
tentions of the Petitioner. The latter, however, also states that if
the Board does not agree as to the propriety of these two units, it
then requests that separate units of the unlicensed personnel on the
vessels of Buckeye, Pioneer, and Inland be found appropriate. Buck-
eye, Pioneer, and Inland take the position that only the Petitioner's
alternative units are appropriate.
In light of the facts set forth above, on the basis of which we have
found that Hutchinson, Pioneer, and Buckeye constitute a single Em-
ployer within the meaning of the Act and Inland a separate Employer,
we find that the two units which the Petitioner and Intervenor agree
upon are appropriate.6
Regarding particular classifications of employees to be included or
excluded from the units found appropriate, all parties agree that the
stewards should be excluded as supervisors. However, they disagree
as to other classifications which we shall now consider.
Boatswains: The Petitioner contends that boatswains should be
included in the units. The Employers and the Intervenor would ex-
clude boatswains on the ground that they are supervisors.
The duties of a boatswain consist of maintaining all deck gear in
sound condition. He is also responsible for the sanitary condition
of the ship and all general maintenance work. He assigns and directs
the deck hands in their duties and instructs them in the performance
of their work. He has approximately six men under his supervision.
He does work similar to that performed by these employees only 10
percent of the time. He receives higher wages than they do and where
separate quarters are not available for him he is quartered with li-
censed officers. He eats with the officers. Also, upon docking the ship
the captain will utilize the boatswain for duties usually handled by
6 The M. A. Hanna Company , 75 NLRB 185 ; Wilson Transit Company, 75 NLRB 181;
The Kinsman Transit Company , 75 NLRB 150.
94 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
one of the mates. As it appears that boatswains responsibly direct
other employees, we find that they are supervisors within the meaning
of the Act and shall exclude them from the units.?
The conveyorman: The Petitioner contends that the conveyorman
should be included in the unit. Employer Hutchinson, Pioneer, and
Buckeye and the Intervenor would exclude the conveyorman on the
ground that he is a supervisor.
The classification of conveyorman is found only on ships that have
their own unloading gear. There is only one vessel which is in the
Pioneer fleet that unloads her own cargo. There is one conveyorman
on this vessel. He is under the direct supervision of the chief
engineer. His duties are to maintain and keep in repair the unload-
ing gear and to direct operation of the unloading gear when the ship
is discharging its cargo. He directs the work of three men who, like
the conveyorman, perform no general deck duties and are not under
the supervision of any of the supervisory deck personnel. The con-
veyorman assigns and directs the three employees and has the author-
ity to effectively recommend the hiring and firing and the promotion
of these men to the chief engineer. The conveyorman is paid wages
equivalent to those of a second mate. Under the circumstances, we
find that the conveyorman is a supervisor within the meaning of
the Act and shall exclude him from the unit of employees of Employer
Hutchinson, Pioneer, and Buckeye.
Captains, First and second mates, and chief engineers of the barges:
The Petitioner would exclude these employees as supervisors. The
Intervenor would include them unless the Board finds that they are
supervisors, as they are not required by law to be licensed personnel.
Employer Hutchinson, Pioneer, and Buckeye agree with the Peti-
tioner's position.
Buckeye is the only company that has barges. There are 5 of
them and they have the same physical characteristics as the steam-
ships, except that they do not have self-propulsion machinery. These
barges carry from 5,500 to 9,000 tons of cargo consisting of iron, coal,
and grain. They each have a crew of approximately 16 men, a captain,
first and second mates, and a chief engineer. The barges are towed
by steamships.
The captain and the first and second mates have duties and respon-
sibilities similar to those of a captain and mates aboard a steamship,
except for navigational duties. The fleet captain or the captain of
the barge hires the members of the crew. The first and second mates,
who have the same authority over the watch as the mates on the
steamships, also have the same authority to recommend hiring and
' Cities Service Oil Co. of Pennsylvania , 80 NLRB 1512, 1515.
HUTCHINSON & CO. 95
firing of crew members of the barge . The captain and first and second
mates stand wheel watches in the pilot house just as they would on
a steamship . At the end of the season the captain , mates, and chief
engineer receive a bonus from their Employer.
The chief engineer on the barge has three men who work under his
direction. He signs articles in the same manner as the chief engineer
on a steamship . He directs the men under his charge in the main-
tenance and care of boilers , pumps , towing engines , anchor windlass,
generators , and equipment similar to that on a steamship. He has
the authority to hire and fire these men.
In view of the foregoing, and particularly the very substantial
similarity between the duties and responsibilities of these officers and
those on board steamships , we find that the captains , first and second
mates , and chief engineers on the barges are supervisors and shall
exclude them from the unit of employees of Employer Hutchinson,
Pioneer, and Buckeye.
Wheelsmen with licenses and oilers with licenses : The Petitioner and
Intervenor would include these men and Employer Hutchinson,
Pioneer , and Buckeye would exclude them from the unit. Apparently
Employer Inland does not have any of these employees and therefore
takes no position.
Wheelsmen and oilers on steamships are not required to have li-
censes . The Petitioner and Intervenor contend that job classifica-
tion is the primary test and therefore these men should be included
in the unit despite the fact that they have licenses which entitle them
to perform more technical duties . Employer Hutchinson , Pioneer,
and Buckeye contend that they should be excluded because although
they are now serving in unlicensed capacities this is only temporary
until vacancies occur. We agree with the Petitioner and Intervenor
that the principal basis for inclusion or exclusion of employees from a
unit should be the work that their particular job classification calls
for them to do. Accordingly , we shall include employees perform-
ing the work of wheelsmen and oilers in the unit regardless of whether
or not they may happen to have licenses.
We find that the following group of employees of the Employers
constitute units appropriate for the purposes of collective bargaining
within the meaning of Section 9 ( b) of the Act :
( 1) All unlicensed personnel on board all vessels owned and/or
operated by Employer Hutchinson , Pioneer, and Buckeye , including
wheelsmen and oilers with or without licenses , but excluding licensed
officers, stewards , the conveyorman , captains , first and second mates,
and chief engineers on barges, boatswains , guards, professional em-
ployees , and supervisors as defined in the Act.
96 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(2) All unlicensed personnel on board all vessels owned and/or
operated by Employer Inland, excluding licensed officers, stewards,
boatswains , guards , professional employees , and supervisors as de-
fined in the Act.
[Text of Direction of Elections omitted from publication in this
volume.]
TIIE RATH PACKING COMPANY and UNITED PACKINGHOUSE WORKERS
OF AMERICA, LOCAL No . 46, CIO, PETITIONER . Cases Nos. 18-RC-
1556, 18-RC-1557, and 18-RC-1593. October 23, 1952
Decision, Order, and Direction of Elections
Upon petitions duly filed under Section 9 (c) of the National Labor
Relations Act, a consolidated hearing was held before Harry Irwig,
hearing officer. The hearing officer's rulings made at the hearing are
free from prejudicial error and are hereby affirmed.,
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The labor organizations involved claim to represent employees
of the Employer.
3. For the reasons set forth in paragraph numbered 4, below, ques-
tions affecting commerce exist concerning the representation of em-
ployees of the Employer, within the meaning of Section 9 (c) (1) and
Section 2 (6) and (7) of the Act, in Cases Nos. 18-RC-1556 and
18-RC-1557, but none exists in Case No. 18-RC-1593.
4. At its Waterloo, Iowa, plant, the Employer is engaged in the
slaughtering of livestock and the processing of meat products. The
Petitioner, which has represented the production and maintenance
employees at this plant since 1948, now seeks an election in three
groups currently excluded from the production and maintenance unit.
i National Brotherhood of Packinghouse Workers, Confederated Unions of America, was
granted leave to intervene in Cases Nos . 18-RC-1556 and 18-RC-1557 on the basis of
contracts then in force but now expired . Its request to intervene in Case No . 18-RC-1593
was denied for lack of a sufficient showing of interest.
At the hearing the Intervenor sought to introduce evidence to show that certain persons
alleged to be or to have been officers and policy makers of the Petitioner were in fact
Communists The hearing officer properly rejected the evidence. We are administra-
tively satisfied that non-Communist affidavits have been filed by the officers of the
Petitioner, as required by Section 9 (h) of the Act. Congress has made the truth or
falsity of those affidavits a concern of the Department of Justice, not of this Board. The
fact of compliance by a labor organization which is required to comply is not litigable by
the parties to Board proceedings . Sunbeam Corporation , 94 NLRB 844 , 93 NLRB 1205,
and 89 NLRB 469.
101 NLRB No. 25.