Pacific Maritime Association

National Labor Relations Board - Board Decisions

Sep 23, 1952

100 N.L.R.B. 1259 (N.L.R.B. 1952)

PACIFIC MARITIME ASSOCIATION 1259
the instant case. Accordingly, we hereby vest in the Regional Director
discretion to determine the exact time, place , and procedure for con-
ducting the election. _
[Text of Direction of Election omitted from publication in this
volume.]
MEMBER PETERSON took no part in the consideration of the above
Decision and Direction of Election.
PACIFIC MARITIME ASSOCIATION AND ITS MEMBER COMPANIES 1 and
MARINE COOKS & STEWARDS, AFL, AFFILIATED WITH THE SEAFARERS
INTERNATIONAL UNION OF NORTH AMERICA,2 PETITIONER
ALASKA STEAMSHIP COMPANY and MARINE COOKS & STEWARDS, AFL,
AFFILIATED WITH THE SEAFARERS INTERNATIONAL UNION OF NORTH
AMERICA,3 PETITIONER
PACIFIC MARITIME ASSOCIATION AND ALL OF ITS MEMBER COMPANIES
and NATIONAL MARITIME UNION OF AMERICA, CIO,4 PETITIONER.
Cases Nos. 20-RC-1426, 20 RC-1427 (formerly 19-RC-296), and
20-RC-1451. September 23, 1952
Decision , Order, and Direction of Election
Upon petitions duly filed under Section 9 (c) of the National Labor
Relations Act, a consolidated hearing was held before Louis S. Pen-
field, hearing officer. The hearing officer's rulings made at the hearing
are free from prejudicial error and are hereby affirmed.-' The motion
of the Petitioner (SUP) made at the hearing, in Cases Nos. 20-RC-
1426 and 1427, to substitute as Petitioner the MCS-AFL, is hereby
' Hereinafter referred to as the PMA.
2 Hereinafter referred to as the MCS-AFL. The MCS-AFL is substituted as Petitioner
in the place of Sailors Union of the Pacific, Seafarers International Union of North Amer-
ica, AFL, hereinafter referred to as the SUP. See footnote 6, below.
See footnote 2, above.
4 Hereinafter referred to as the NMU. After the close of the hearing, the NMU
requested permission to withdraw its petition in which it sought a combined unit of the
offshore and steam schooner trades. This is the same unit contention made by the Inter-
venor herein . In the alternative, if the Board rejected its request for a combined unit,
the NMU sought a unit of employees in the offshore trade. The NMU's alternative unit
request is the same as the alternative unit request of the Petitioner in Case No . 20-RC-
1426. The contention for a combined unit of both trades is hereinafter rejected and
instead a unit of the offshore trade is found appropriate for reasons given in paragraph
numbered 4, below In view of the fact that the requested withdrawal cannot affect the
rights of the remaining parties to an election in the unit hereinafter found appropriate,
we shall grant the request of the NMU to withdraw its petition . Twentieth Century-
Fox Film Corporation, 96 NLRB 1052.
6 The National Union of Marine Cooks & Stewards, Independent , was permitted to inter-
vene herein on the basis of its contractual interest.
100 NLRB No. 201.
1260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
granted, it appearing that the MCS-AFL is at present the real party
in interest and that no prejudice will result from the requested sub-
stitution." In view of our disposition of the foregoing motion, the
Intervenor's motion to strike the brief by the MCS-AFL on the ground
that it is not a party to this proceeding is hereby denied.'
Upon the entire record in this case, the Board finds :
1. The Employers are engaged in commerce within the meaning of
the Act.
2. The labor organizations involved claim to represent certain em-
ployees of the Employers.
3. The Intervenor urges as a bar to the petition in Case No. 20-RC-
1426, an agreement between itself and the Employers executed on
"The Board granted a similar motion by the SUP to substitute the MCS-AFL as Peti-
tioner over the opposition of the Intervenor in Shipowners' Association of the Pactiflc Coast
and Its Member Companies , 100 NLRB 1250 , a closely related proceeding . The circum-
stances are substantially the same in the instant proceeding , except for the additional fact
that the original petition in Case No 20 -RS-1426 was prematurely filed by the MCS-AFL.
In this respect , the record shows that the original petition in Case No . 20-RC-1420 was filed
by the MCS-AFL on June 13, 1951, and the amended petition upon which hearing was held
herein, was filed on June 14, 1951 , by the SUP . The Intervenor alone objected to the
original substitution of Petitioners by means of amendment to the petition and to the
later motion near the end of the hearing to substitute petitioners. However, the only
basically new objection raised by the Intervenor not already urged by it and answered by
us with respect to the same motion was made by the SUP in the Shipowners ' case , referred
to above, is that the MCS-AFL was not in compliance at the time it filed the original
petition.
With respect to this contention , the record reveals that the Seafarers International Union
of North America recently chartered the MCS-AFL to succeed the SUP with respect to
its jurisdiction over stewards department employees on the Pacific Coast with the temporary
exception of those stewards department employees still under contract to the SUP. How-
ever, it appears from the investigation of the Regional Director and from the record that
at the time of filing the original petition in case No 20-RC-1426 , the MCS-AFL had not
acquired the status of a functioning organization sufficient to enable it to effect compliance
with the filing requirements of the Act . Thus, the naming of the MCS-AFL as Petitioner
having been premature , there was filed the amended petition which named the SUP as
Petitioner . The Regional Director proceeded to investigate the amended petition, which
we, in view of the full compliance of the SUP , find Is otherwise adequate on Its face to
Initiate investigation by the Board of the alleged question concerning representation Near
the end of the hearing , when the SUP moved to substitute the MCS -AFL as Petitioner,
the MCS-AFL had achieved full compliance and the record indicates that, at the present
time, it has jurisdiction over all the employees concerned in this proceedjng . For the
foregoing reasons, we find no merit in this contention of the Intervenor See Oppenheim
Collins if Co , Inc., 79 NLRB 435 ; Noblitt -Sparks Industries, Inc., 76 NLRB 1230; Cribben
& Seaton Company, 82 NLRB 1409; General Boa Company , 89 NLRB 1439.
The Intervenor also raised , among others , the following additional contentions: (1)
The proceedings were Improperly consolidated ; ( 2) the Intervenor was denied due process
because of the failure of the Board to hold a preliminary joint conference ; and (3 ) various
contentions all relating to the showing of interest
Contention ( 1) lacks merit for the reason that consolidation is a matter for adminis-
trative discretion Pacific Metals Company, Ltd , 91 NLRB 696 The record discloses
that no party was in any way prejudiced by such order or lacked opportunity to introduce
evidence bearing on all the issues raised herein. Accordingly , we find no merit to the
Intervenor 's second contention that It was denied due process in that no informal prelim-
inary joint conference was held prior to the issuance of notice of hearing herein. Moreover,
the record discloses that the Regional Director afforded the Intervenor such opportunity
before the actual hearing.
The last contention relates to showing of interest , which the Board has repeatedly held
is an administrative matter and not litigable by the parties . These contentions , there-
fore, lack merit and the hearing officer's ruling upholding the refusal . of the Regional
Director to testify with respect to such matters was proper . Indianapolis Newspapers,
Inc., 83 NLRB 407.
PACIFIC MARITIME ASSOCIATION 1261
December 2, 1948, covering the employees in the unit hereinafter
found appropriate.
In view of our recent decision in Case No. 19-CA-186, et al.,8 where
the Board directed the Employers to cease giving effect to any and
all contracts with the Intervenor unless and until the Intervenor shall
have been certified by the Board, we find the contract no bar to the
present proceedings.9
We find that a question affecting commerce exists concerning the
representation of employees of the Employers within the meaning
of Section 9 (c) (1) and Section 2 (6) and (7) of the Act.
4. All parties agree that the unit, if any, established by the Board,
should comprise only stewards department employees. The questions
in issue are: (1) The proper scope of the unit; and (2) whether cer-
tain employees should be excluded as supervisors.
Concerning the proper scope of the unit, the Petitioner, in Case
No. 20-RC-1427, seeks to represent as a separate unit, the employees
of the Alaska Steamship Company. In Case No. 20-RC-1426, the
Petitioner seeks to represent as a separate unit all PMA employees in
the offshore trade, excluding the employees of the Alaska Steamship
Company, or in the alternative, if the Board rejects its contention for
a separate unit of Alaska Steamship Company employees, it desires
to represent as a single unit the whole offshore trade. The Inter-
venor, on the other hand, contends that the only appropriate unit is
an over-all unit of employees in the entire offshore trade, together
with employees in the steam schooner trade. The PMA urges that all
the employees in the offshore trade, the present contractual unit,
constitutes the only appropriate unit.
The PMA is a nonprofit California corporation which has among
its purposes collective bargaining and the negotiation of labor contracts
on behalf of its members. The members of PMA operate vessels
mainly in the offshore, intercoastal, and Alaska trades,10 which trades
are commonly referred to collectively as the offshore trade. Since
at least 1937, the PMA or its predecessor association, the Pacific
American Shipowners Association, herein called the PASA, has ne-
gotiated collective-bargaining contracts with the Intervenor covering,
with minor exceptions," all stewards department personnel on all
vessels operated by its member companies in the offshore trade.
The Alaska Steamship Company, a member of the PMA, is a Wash-
ington corporation, which operates ships primarily in the Alaska
trade.
9 Pacific American Shipowners Association , et al, 98 NLRB 582.
9 See Neptune Meter Company , 67 NLRB 949
10 Herein , the term "offshore trade" is used to refer to all three trades unless the con-
text otherwise indicates
"It was brought out at the hearing that a few vessels operated by PMA members in
the intercoastal trade are under contract to east coast unions.
1262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Shipowners' Association of the Pacific Coast and its member
companies, herein referred to as the SAPC, which is not a party to
this proceeding, is a nonprofit California corporation whose members
operate ships principally in the steam schooner trade.
The contention of the Intervenor that only a combined unit of the
whole offshore trade and the steam schooner trade is appropriate has
been carefully examined and disposed of by the Board in Shipowners'
Association of the Pacific Coast.12 In that case, the Board rejected
the Intervenor's unit contention and found a unit limited to employees
in the steam schooner trade to be appropriate. Moreover, the Board
in a recent proceeding involving the Intervenor and the Employers
approved a finding by the Trial Examiner that a unit covering stew-
ards department employees in the offshore trade was appropriate 13
Accordingly, on the basis of the foregoing decisions, we find that the
employees engaged in the offshore trade have sufficient identity and
separation of interests to constitute an appropriate unit.
A further issue for consideration is the question whether the em-
ployees of the Alaska Steamship Company may, as contended by the
Petitioner, properly constitute a separate unit apart from the remain-
ing offshore trade. The Board in Pacific American Shipowners
Association 14 decided this issue adversely to the unit contention made
by the Petitioner. In the last-mentioned case, the Petitioner therein
sought to sever Alaska Steamship Company employees (radio op-
erators in that instance) from the existing offshore unit. The Board
dismissed the petition on the ground that the unit sought was inap-
propriate 15 Included among the reasons given by the Board for its
decision were: (1) The similarity of work in each trade, (2) inter-
changeability of employees, (3) the fact that multiple- employer units
are common in the maritime industry on the Pacific coast, (4) the exist-
ence of an employers' association, and (5) a long history of collective
bargaining covering employees in the offshore unit. These factors are
likewise present in the instant proceeding. Although the Petitioner
seeks to show that stewards department operations in the Alaska trade
differ from stewards department operations in other trades, contrary
to the Petitioner's contention the record shows no significant differ-
ences in the work of the stewards department in the Alaska trade
from that of other trades. In support of its contention the Petitioner
relied largely on a document signed by the Intervenor and the Alaska
Steamship Company and entitled "Memorandum of Agreement-
Alaska Vessels," which reduces to writing certain rules and practices
12 100 NLRB 1250.
is National Union of Marine Cooks and Stewards, 90 NLRB 1099.
is 80 NLRB 622
is The Board files reveal that on the same ground , petitions seeking to represent Alaska
Steamship Company employees as a separate unit were dismissed by the Regional Director
in Cases Nos . 20-RC-438 ( radio operators ) and 19-RC-218 ( stewards).
PACIFIC MARITIME, ASSOCIATION 1263
established over the years in the Alaska trade. The memorandum
specifically adverts to the basic December 2, 1948, offshore contract
and purports to be a clarification of the basic contract as it applies to
employees on vessels of the Alaska Steamship Company when operat-
ing in the Alaska trade. There is evidence in the record that similar
understandings through an exchange of letters have been reached by
the Intervenor with various other companies, although not, as here,
embodied in an executed document.
We believe that where, as here, substantial and significant matters
of collective bargaining have been treated on a multiple-employer
basis, the fact that certain practices, which vary in each trade, are not
explicitly covered by the basic contract but are left to be treated by the
individual employer, is insufficient to impair the appropriateness of the
multiple-employer unit,16 particularly where such unit finds ample
support in the record. Moreover, the record shows that, although the
Alaska Steamship Company is the principal shipper in the Alaska
trade, other PMA members also service the Alaska trade. The rec-
ord further shows that the Alaska Steamship Company is still a
member of the PMA and desires to continue bargaining on a multiple-
employer basis 17
Under all the circumstances, and in accord with our previous
decision,"' we find no justification for severing the Alaska Steamship
Company employees from the existing offshore multiple-employer
unit. Accordingly, we shall order that the petition in Case No. 20-
RC-1427 be dismissed and, in accordance with the alternative unit
request of the Petitioner, shall find appropriate, as indicated above,
the offshore unit as defined in the contracts covering that trade.
There remains to be discussed the status of the following employees :
Chief stewards on passenger vessels: There is substantial agreement
among the parties that these employees, both on class A and B pas-
senger vessels, are supervisors within the meaning of the Act. The
record shows that they possess the authority effectively to recommend
the discharge, transfer, and discipline of stewards department em-
ployees, who number from 70 to 300 depending on the size of the ship
involved. Accordingly, we find that the chief stewards on class A and
B passenger vessels are supervisors within the meaning of the Act, and
we shall therefore exclude them from the unit.
Associate chief steward: There is only 1 employee in this category.
The reason for the existence of this category is that the passenger
16 Furniture Employers ' Council of Southern California, Inc, 96 NLRB 1002; Hazel-
Atlas G lass Company , 59 NLRB 706, Potlatch Forests, Inc, 51 NLRB 288; New Bedford
Cotton Manufacturers ' Associations , 47 NLRB 1345 , 1352, Central Foundry Company, 48
NLRB 5
17 The record discloses that the Alaska Steamship Company generally has bargained for
its other seafaring personnel on the same multiple -employer basis.
1b Pacific American Shipowners Association, 80 NLRB 622.
1264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
vessel in question contains 301 employees in the stewards department.
The record shows that this employee is second in command to the
chief steward and takes over the chief steward's responsibilities when
he is not present. It also appears from the record that this employee
has the authority effectively to recommend the discharge and discipline
of employees. We find that he is a supervisor within the meaning of
the Act. We shall, therefore, exclude him from the unit.
Chief stewards on freighters: The chief stewards on freighters,
unlike the foregoing classifications, have in the past been included in
the contract unit. The PMA, over the opposition of the Unions, takes
the position that they are supervisors within the meaning of the Act
and should be excluded. The chief stewards have from 8 to 12 men
under them, the number varying with the size of the ship. The chief
steward generally directs the activities of the personnel under him,
assigns work, regulates working hours, and authorizes overtime.
Although it is not clear whether he has authority to hire, discharge, or
discipline personnel, we are satisfied that he may effectively recom-
mend the discharge and discipline of subordinates. In any event, it
clearly appears that the chief steward responsibly directs the work
of the other employees in the department. Accordingly, we find that
chief stewards on freighters are supervisors within the meaning of
the Act, and we shall therefore exclude them from the unit.19
We find that all stewards department employees on vessels operated
by the member companies of the Pacific Maritime Association, a non-
profit California corporation, in the intercoastal,21 offshore, and Alaska
trades as defined in the contracts covering those trades,21 excluding
chief stewards on class A and class B passenger vessels, the associate
chief steward, chief stewards on freighters, and other supervisors
within the meaning of the Act, constitute a unit appropriate for the
purposes of collective bargaining within the meaning of Section 9 (b)
of the Act.
19 Permanente Steamship Corporation , 96 NLRB 827 ; Cities Service Oil Co. of Pennsyl-
t'anta, 80 NLRB 1512
" Excluded from the unit in accordance with the agreement of the parties aie those
employees on vessels operated in the intercoastal trade, tinder contract with east coast
unions and previously excluded from the established unit - -
21 Also included because of their substantial identity of interest with the other employees
in the unit are those stewards department employees on ships operated by the member
companies of the PMA in the intercoastal , offshore , and Alaska trades under General-Agency
agreements with the National Shipping Authority. In this connection, the National Ship-
ping Authority, in conformity with the previous arrangement between the Board and the
War Shipping Administration during World War II, has advised the Board of its desire
to utilize the Board s facilities for the designation of bargainingunits among employees
on General Agency ships, and with respect to the instant proceeding, has further''stated
that it has no objection to the grouping into a single' unit; for the purposes of-collective
bargaining, employees aboard vessels operating under General Agency agreements -together-
with those employed aboard vessels operated for private account. •Letter ,of Februyry,,18,
1952, from the National Shipping Authority to the National Labor. ItelationgiBJtard sill
the Board's reply of February 20, 1952. With respect to thefWio,rld1War;II arrangement;
see Cosmopolitan Co. Y. McAllister, 337 U. S. 783.
PACIFIC MARITIME ASSOCIATION 1265
5. The Intervenor urges that the Board, instead of selecting a single
payroll period, select a payroll period covering 6 months preceding
the direction of election herein. As a basis for its contention, the
Intervenor states that as a result of the nature of the industry, the
rotary hiring hall, and a swing program 22 set up by the Intervenor,
there is always a substantial group of employees at any given time
having a stake in the industry who are, in the terminology of the
industry, "on the beach." The Petitioner contends that the Board
should use its customary eligibility rules. The PMA takes no
position.
Although the Board is well aware of the turnover in the shipping
industry, it has, in the past, despite contentions that it should broaden
or narrow eligibility, found that such turnover does not impair the
representative nature of the election and has applied its usual eligi-
bility rules. We do not believe that there exist here circumstances
which warrant a departure from the Board's usual policy in this
respect. Accordingly, we shall apply the customary rules in deter-
mining eligibility to vote 23
It is generally Board practice in directing elections among employees
on seagoing vessels to leave the method of voting to the discretion of
the Regional Director. We shall therefore follow this practice in
the instant case. Consistent with such practice, we hereby vest in the
Regional Director discretion to determine the exact time, place, and
procedure for conducting the election. The holding of the election is
also contingent upon the Regional Director's determination that com-
pliance has been effectuated with the Board's orders in Case No.
19-CA-186, et al.
Order
IT IS ORDERED that the petition filed in Case No. 20-RC-1427 (for-
merly Case No. 19-RC-296) be, and it hereby is dismissed.
IT IS FURTHER ORDERED that the request of the National Maritime
Union of America, CIO, to withdraw its petition for investigation and
certification of representatives in Case No. 20-RC-1451, be, and it
hereby is, granted, and that the said case be, and it hereby is, closed.
[Text of Direction of Election omitted from publication in this
volume.]
MEMBER PETERSON took no part in the consideration of the above
Decision, Order, and Direction of Election.
22 Thus it appears that during the operation of the swing program, a member would after
three trips , lay over one trip in order to spread the work. However, the record shows that
the swing program was abandoned by the Intervenor on June 1, 1951 , due to a general
increase in the number of jobs available.
28 Cities Service Oil Co . of Pennsylvania, 80 NLRB 1512, 77 NLRB 853.