Superior Derrick Corp.

188 DECISIONS OF NATIONAL LABOR RELATIONS BOARD office building standard and that it will effectuate the policies of the Act to assert jurisdiction 3 2 The labor organizations involved claim to represent certain em- ployees of the Employer 4 3 A question affecting commerce exists concerning the representa- tion of certain employees of the Employer within the meaning of Section 9 (c) (1) and Section 2(6) and (7) of the Act 4 The parties stipulated as to the appropriateness of the unit, and we find that all the employees of the Employer including maids, cleaning women, housemen, painters, utility men, watch engineeis, carpenters, bellmen, elevator operators, and telephone operators at the Employer's Claiborne Towers, Inc, and Governor Claiborne Apartments, Inc, at New Orleans, Louisiana, but excluding man- agers, assistant managers, auditors, assistant auditors, sales engineers, rental agents, cashiers, general cashier, auditing clerk, secretary to the manager, Latin-America representatives for sales, executive housekeeper, assistant housekeeper, inspectresses, head housemen, night supervisor of cleaning, chief engineers, assistant chief engineer, bell captain, security officers, chief telephone operator, and all super- visors as defined in the Act constitute a unit appropriate for purposes of collective bargaining within the meaning of Section 9(b) of the Act [Text of Direction of Election omitted from publication ] -'Mistletoe Operating Company, 122 NLRB 1534 4 General Truck Drivers, Chauffeurs, Warehousemen & Helpers, Local 270, Ind, was ,permitted to intervene upon a showing of interest Superior Derrick Corporation and 'Seafarers' International Union of North America, Atlantic and Gulf District, Harbor & Inland Waterway Division, AFL-CIO.' Cases Nos 15-CA- 1065 and 15-CA-1096 January 19, 1960 DECISION AND ORDER On August 15, 1959, Trial Examiner Ralph Winkler issued his In- termediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Inter- mediate Report attached hereto Thereafter, the Respondent and the General Counsel filed exceptions to the Intermediate Report and briefs in support thereof 2 Herein called SIU a The Respondent has requested oral argument This request is denied because the record, the exceptions, and the briefs adequately present the issues and positions of the parties 126 NLRB No 27 SUPERIOR DERRICK CORPORATION 189 Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman Leedom and Members Bean and Fanning]. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Intermediate Report, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner, with the following exceptions, additions, and modifications. 1. The General Counsel excepted to the Trial Examiner's finding that the Respondent did not discharge Ivan Fourreaux in violation of Section 8(a) (3). We agree with the Trial Examiner, as set forth in the Intermediate Report, that the General Counsel did not establish by a preponderance of the evidence that the Respondent discharged Fourreaux because of strike or other union activities. We shall there- fore dismiss the allegation of the complaint that the Respondent dis- charged Fourreaux in violation of Section 8 (a) (3) of the Act. 2. We agree with the Trial Examiner that, by the conduct set forth in the Intermediate Report, including the payment of ILA member- ship fees and dues for employees out of its own funds during the period extending from August 1957 to March 1959, the Respondent unlawfully assisted the ILA and thereby contributed support to the ILA, in violation of Section 8 (a) (2) of the Act. 3. We agree in substance with the Trial Examiner that the Respond- ent, by the conduct described in the Intermediate Report, consisting of meeting with employees in the office of Vice President Maught, on July 13, 1957, at which time there was current an SIU strike and offering them employee benefits; conducting a vote among them to determine whether the employees would "stay with the company"; and threatening a shutdown to induce employees to renounce or refrain from SIU membership, violated Section 8 (a) (1) of the Act. 4. At the hearing, the parties stipulated as follows : The Employee Group of Superior Derrick Corporation, herein called the Employee Group, during the time of its existence was a labor organization within the meaning of Section 2(5) of the Act; that Respondent by its supervisors and agents on July 13, 1957, assisted and interfered with the administration of the Em- ployee Group, that Respondent by its (supervisors and agents from on or about July 13, 1957, until the said Employee Group was disbanded, continued to assist and interfere with the admin- istration of the Employee Group. Based on the stipulation and credited testimony as to certain events in July 1957, which are set forth in the Intermediate Report, the 190 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Trial Examiner found that, on and after July 13, 1957, the Respond- ent assisted and interfered with the administration of a labor organi- zation called the Employee Group, and that such assistance and inter- ference continued until the Employee Group disbanded. We adopt these findings and further find that the Respondent, by such conduct, contributed support to the Employee Group in violation of Section 8(a) (2) of the Act. The Trial Examiner also found that, by such conduct, the Respondent dominated the Employee Group. Accord- ingly, the Trial Examiner recommended disestablishment of the Employee Group. However, as the Employee Group has already been disbanded and as ,we are otherwise finding a violation of Section 8(a) (2) with respect to the Respondent's conduct in connection with the Employee Group, we need not and do not determine whether the Respondent dominated the Employee Group and we omit a disestab- lishment order. 5. The Trial Examiner rejected the Respondent's contentions (1) that a settlement agreement between the Respondent and the Board's Regional Director barred issuance of the complaint insofar as it alleged violations of Section 8(a) (1) and (2) with respect to the Respondent's conduct in connection with the Employee Group and (2) that the complaint, insofar as it alleged violations of 8(a) (1) and (2) with respect to the Respondent's conduct in connection with the ILA, should not have issued because it was based on charges filed more than 6 months after the occurrence of such unfair labor practices. We agree with the Trial Examiner that these contentions are without merit. On July 15, 1957, SIU filed a charge alleging that the Respondent, among other things, violated Section 8(a) (1) and (2) of the Act by "individual bargaining with its employees" and "by other acts and conduct." In August 1957, the Board's Regional Director entered into a settlement agreement with the Respondent which provided, among other things, for withdrawal of recognition from the Employee Group. Thereafter, on April 23, 1958, the SIU filed a charge alleging, among other things, that the Respondent violated Section S (a) (1) and (2) by conduct which included contribution of financial and other support to the ILA since on or about August 5,1957. As the Respond- ent engaged in post-settlement unfair labor practices, as found above, the Regional Director properly set aside the settlement agreement and reinstated the charge filed by the SIU on July 15, 1957. Although the Respondent's unfair labor practices in connection with the ILA occurred after the change of July 15, 1957, they grew out of and were related to the matters alleged in that charge. Moreover, a portion of the Respondent's conduct in connection with the ILA, namely, that occurring between October 23, 1957, and April 23, 1958, fell within SUPERIOR DERRICK CORPORATION 191 the 6-month period fixed in Section 10(b). Accordingly, Section 10(b) is not available here as a defense to the Respondent. ORDER Upon the entire record in this case, and pursuant to Section 10(c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the Respondent , Superior Derrick Corpo- ration, New Orleans, Louisiana, its officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Interfering with or contributing financial or other support (including payment of fees and dues) to International Longshore- men's Association, Local 1418, or any other labor organization. (b) Giving effect to the agreement of July 13, 1957, between Respondent and the Employee Group, or to any extension , renewal, or modification thereof : provided, however, that nothing herein shall require Respondent to vary or abandon any wage, hour , seniority, or other substantive feature of its relations with its employees which Respondent has established in the performance of said agreement, or to prejudice the assertion by employees of any rights they may have thereunder. (c) In the event of its reestablishment, recognizing Employee Group of Superior Derrick Corporation, or any successor thereto, as the representatives of its employees for the purpose of dealing with the Respondent concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment, unless and until the said labor organization shall have been certified as such representative by the Board. (d) Threatening shutdown or other reprisal or promising and granting benefits to induce employees to renounce or to refrain from membership in Seafarers' International Union of North America, Atlantic and Gulf District , Harbor & Inland Waterway Division, AFL-CIO, or in any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form labor organizations, to join or assist the SIU or any other labor organization , to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protec- tion as guaranteed in Section 7 of the Act, and to refrain from any and all such activities , except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. 192 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Withdraw and withhold all recognition from International Longshoremen's Association, Local 1418, or any successor thereto, as bargaining representative of its employees for the purpose of dealing with the Respondent concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employ- ment, unless and until the said labor organization shall have been certified as such representative by the Board. (b) In the event of its reestablishment, withdraw and withhold all recognition from Employee Group of Superior Derrick Corpora- tion, or any successor thereto, as bargaining representative of its employees for the purpose of dealing with the Respondent concern- ing grievances, labor disputes, wages, rates of pay, and hours of em- ployment, unless and until the said labor organization shall have been certified as such representative of the Board. (c) Post copies of the notice attached hereto marked "Appendix A," at its New Orleans, Louisiana, location.' Copies of said notice, to be furnished by the Regional Director for the Fifteenth Region, shall, after being duly signed by the Respondent, be posted immedi- ately upon receipt thereof and be maintained by it for 60 consecutive days thereafter, in conspicuous places in its offices, including all places where notices to employees are customarily posted. The Respondent shall take reasonable steps to insure that such notices are not altered, defaced, or coveredby any other material. (d) Notify the Regional Director for the Fifteenth Region, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis- missed insofar as it alleges that the Respondent discharged Ivan Fourreaux in violation of the Act. s in the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order." APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that : WE WILL NOT interfere with or contribute financial or other sup- port (including payment of fees or dues) to ILA, Local 1418, or any other labor organization. SUPERIOR DERRICK CORPORATION 193 WE WILL NOT recognize ILA, Local 1418, or the Employee Group of Superior Derrick Corporation, in the event of its re- establishment, as the representative of any of our employees for the purpose of dealing with us concerning grievances, labor dis- putes, wages, rates of pay, hours of employment, or other condi- tions of employment, unless and until the said Unions shall have been certified as such representative by the Board. WE WILL NOT give effect to our collective-bargaining agreement dated July 13, 1957, with the Employee Group or to any exten- sion, renewal, or modification thereof : Provided, however, that nothing herein requires us to vary or abandon those wage, hour, seniority or other substantive features of our relations with our employees, established in performance of any such agreement, or to prejudice the assertion by employees of any rights they may have thereunder. WE WILL NOT make threats of shutdown or other reprisal or make promises or grant benefits to our employees in order to in- duce them to renounce or refrain from membership in Seafarers' International Union of North America, Atlantic and Gulf Dis- trict, Harbor & Inland Waterway Division, AFL-CIO, or any other labor organization. WE WILL NOT in any manner interfere with, restrain, or coerce our employees in the exercise of their rights to self-organization, to form labor organizations, to join or assist Seafarers' Interna- tional Union of North America, Atlantic and Gulf District, Harbor & Inland Waterway Division, AFL-CIO, or any other labor organization, to bargain collectively through representa- tives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, and to refrain from any or all such activities except to the extent that such right may be affected by an agreement requir- ing membership in a labor organization as a condition to employ- ment as authorized in Section 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. All our employees are free to become or remain members of the Seafarers' International Union of North America, Atlantic and Gulf District, Harbor & Inland Waterway Division, AFL-CIO, or any other labor organization. SUPERIOR DERRICK CORPORATION, Employer. Dated---------------- By------------------------------------- (Representative ) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. 554461-60-vol. 126-14 194 DECISIONS OF NATIONAL LABOR RELATIONS BOARD INTERMEDIATE REPORT STATEMENT OF THE CASE This proceeding, with all parties represented, was heard before the duly designated Trial Examiner in New Orleans, Louisiana, on March 25-26, 1959, on complaint of the General Counsel and answer of Superior Derrick Corporation, herein called Respondent. The issues litigated were whether Respondent violated Section 8(a) (1), (2), and (3) of the Act.' Upon the entire record, and from my observation of the witnesses, I hereby make the following: FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF THE RESPONDENT Respondent, a Louisiana corporation, is a wholly owned subsidiary of John W. McGrath Corporation. John W. McGrath Corporation is a nationwide stevedoring company which does millions of dollars' worth of business yearly for companies engaged in interstate and foreign commerce in various ports of the United States. Respondent owns and operates two floating derricks in the port of New Orleans. During the year ending December 31, 1957, which period is representative of all times material herein, Respondent provided services in the nature of loading and un- loading ships and barges for which it received in excess of $100,000. These services were performed for various companies which annually ship goods, valued at more than $50,000 in interstate commerce and to points outside the State of Louisiana. I find that Respondent is engaged in commerce within Section 2(6) and (7) of the Act. H. THE LABOR ORGANIZATIONS INVOLVED Seafarers' International Union of North America, Atlantic and Gulf District, Harbor & Inland Waterway Division, AFL-CIO (herein called SIU), and General Longshore Workers, Local 1418, International Longshoremen's Association, Inde- pendent (herein called ILA), are labor organizations within Section 2(5) of the Act. Employee Group of Superior Derrick Corporation (herein called Employee Group), during the time of its existence, has been a labor organization within the meaning of the Act. III. THE UNFAIR LABOR PRACTICES The principal issues are whether Respondent dominated, assisted, and interfered with the Employee Group; whether Respondent assisted, contributed support to, and interfered with the ILA; whether Respondent unlawfully discharged Ivan Four- reaux; and whether Respondent engaged in other specified violations of the Act. A. Domination, interference, and support Early in July 1957, the SIU advised Respondent that it represented Respondent's derrick employees and that it accordingly was requesting Respondent to recognize and negotiate with it. Respondent Vice President Adrian Maught testified that he did not meet with the SIU because he was going on vacation, and the record shows that the SIU thereupon struck Respondent on July 12, 1957, and established a picket line. Early on July 13, Maught met with the employees in his office and, among other things, he told them, according to the credible testimony of employee George Berthelot, that except for more money Respondent would arrange whatever the employees wanted and that he had authority to sell the derricks before negotiating with a union; Maught then called for a secret vote as to whether the employees would "stay with the company" or "go for the [SIUI." On that same occasion Respondent thereupon executed an agreement, covering wages and other terms and conditions of employment, with each of its employees. Respondent admits, and I find, that on July 13, 1957, Respondent thereby assisted and interfered with the administration of a labor organization called the Employee Group (Employee 'In view of the findings of postsettlement violations hereinafter made, the Regional Director properly reinstated Case No. 15-CA-1065, and I accordingly reject Respondent's contention respecting his action. I also reject Respondent's claim as to Section 10(b) of the Act. See Triboro Carting Corporation, 117 NLRB 775, enfd. 251 F. 2d 959 (CA 2). SUPERIOR DERRICK CORPORATION 195 Group of Superior Derrick Corporation ) and that Respondent continued such assist- ance and interference until the Employee Group was disbanded. I also find that Respondent thereby dominated the Employee Group as well. Respondent also admits, and I find, that on July 13, 1957, Respondent executed a labor agreement with each member of the Employee Group and thereafter maintained and enforced such agreement. On August 5, 1957, Vice President Maught, Superintendent James Howlett, and Roy Baugher (whom Respondent concedes to be a supervisor) met at Respondent's office with a group of approximately six employees. According to Baugher's credible testimony, Maught announced that he had called the meeting in order to explain why he preferred the employees to affiliate with the ILA rather than the SIU.2 During the ensuing discussion, one of the employees asked who would pay the ILA initiation fees. Maught replied, according to Baugher's credible testimony, that the men "needn't worry about it, it would be taken care of." Maught then gave $20 to each man, including Supervisor Baugher; Maught said that this was a down payment on ILA fees and dues, and he directed them to the ILA union hall. Supervisor Baugher then drove the group to the ILA hall and each man paid the $20 toward ILA fees. In or after August 1957, some of the employees asked Baugher concerning ILA buttons (which indicate good standing in the Union) and Baugher brought the matter to Superintendent Howlett's attention. Some weeks later, accord- ing to Baugher, Howlett gave Baugher a package of ILA buttons for distribution to the men and Baugher distributed them. Some weeks later, Howlett again gave Baugher some ILA buttons for the men. John Regan is secretary-treasurer of ILA, Local 1418; Gerald Healy is Respond- ent's bookkeeper. On or about October 15, 1957, Respondent gave the ILA a company check in the amount of $117 to cover the last quarter dues (1957) of the employees who accompanied Baugher to the ILA hall on August 5. Regan testified that his practice is to advise Healy whenever quarterly dues become due. Regan further testified that, each quarter from 1957 through March 1959, Healy has there- upon come to the ILA hall, paid the quarterly bill of Respondent's employees by check or cash, and picked up the paid-up cards and buttons for all employees. Respondent has no collective-bargaining contract and has no checkoff agreement with the ILA, and the ILA also has no arrangement with Respondent's individual employees to pay their dues through Healy. Maught denied that Respondent paid any fees or dues to the ILA and he testified that he recalled advancing money to the employees for such purpose on one occasion. Respondent did not satisfactorily explain the mentioned check of $117. Under all these circumstances, I am satisfied and find that Respondent has itself paid the dues and fees to the ILA out of its own funds. B. Termination of Fourreaux Fourreaux worked for Respondent as a deckhand and was among the derrick em- ployees who met with Vice President Maught and Superintendent Howlett on July 13, the day after the strike began, as already related. Superintendent Howlett testi- fied that, as a result of this meeting, he believed the employees had agreed to return to work on July 14. Meanwhile, however, the SIU was picketing Respondent at the Charbonnet Street wharf. Howlett called Fourreaux on Sunday, July 14, and he asked Fourreaux to report to the wharf that evening to assist a tugboat crew in moving Respondent's derricks to another site. Fourreaux testified that he inquired whether Respondent was being picketed at the wharf and that Howlett replied that it was not. While not denying this testimony, Howlett testified that Fourreaux's principal concern was whether Respondent's other employees had crossed the picket line earlier that day and that he informed Fourreaux that they had. Pickets were at the wharf when Fourreaux reported there about 8:30 that evening. The tugboat had not arrived; and about 11 p.m. Fourreaux left the site and telephoned and advised Supervisor Roy Baugher concerning the absent tug. Fourreaux also told Baugher that Howlett had said that there were no pickets. Baugher instructed Fourreaux to await the tug's arrival and to "ignore" the picket lines. Fourreaux returned to the wharf and, as he testified, "sat around trying to think what to do." The tugboat finally appeared at about 4:30 a.m. (July 15), at which time Fourreaux informed the tugboat captain of the picket line 2 Respondent's brief states that the instant proceeding arises from the "long-standing rivalry" between the SIU and the ILA. 196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and that he, Fourreaux , was not going to move the derricks .3 Baugher appeared about this time, and Fourreaux also told Baugher in effect that he, Fourreaux, had decided not to move the derricks . According to Fourreaux 's credible testimony, he also informed Baugher that he was returning home "until you get this humbug straightened out because I've been out here all night and they lied to me and told me there was no picket line." Fourreaux testified that Baugher thereupon stated that Fourreaux was fired, whereas Baugher testified that he merely told Fourreaux that Fourreaux might as well go home if he was not going to work . The tugboat captain also informed Baugher that he, the captain , would not move the barge be- cause of his own unwillingness to become involved in a labor dispute. Baugher called Fourreaux later on July 15 and instructed him to report that night at another of Respondent's local sites. Fourreaux said he was "too tired" to work. Superintendent Howlett testified that he directed Fourreaux 's discharge on the basis of Fourreaux 's refusal to work. Howlett further testified that he took the position that Fourreaux had thereby abandoned his job. Fourreaux had some later con- versations with Baugher and Howlett concerning his job status ; but recollection of the various witnesses does not permit establishing , very satisfactorily, either the content or time of these events. However, according to Baugher's credible testi- mony, Fourreaux discussed the matter with him several weeks after July 15 and Fourreaux said at the time that he had not meanwhile reported for work because he had been "too busy around the house ." Apparently the final such conversation was with Howlett, at which time Howlett told Fourreaux that he had engaged a replace- ment who was then "working a notice" elsewhere. Whatever the conduct and conversation between Baugher and Fourreaux at the wharf on July 14-15, the record shows that Respondent still considered Fourreaux its employee later on July 15. The explanation that one is "too tired" to work may in some contexts be a euphemistic way of connoting strike action ; however, the record does not establish such usage here, and I find that Respondent was entitled to treat the occasion as an insubordinate refusal to work for reasons unrelated to union activities or sympathies . While not wholly free from doubt , I find that the record does not preponderantly establish that Respondent improperly terminated Fourreaux. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in con- nection with the operations of the Respondent described in section I, above, have a close, intimate , and substantial relation to trade, traffic, and commerce among the several States , and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. V. THE REMEDY I shall recommend that Respondent cease and desist from the unfair labor prac- tices found and that it take certain affirmative action deemed necessary to effectuate the policies of the Act. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, the Trial Examiner makes the following: CONCLUSIONS OF LAW 1. The SIU and the ILA are , and the Employee Group has been, a labor organiza. tion within Section 2(5) of the Act. 2. Respondent, by dominating the Employee Group and by interfering with and contributing support to the ILA, has violated Section 8 ( a)(2) and ( 1) of the Act. 3. Respondent, by threatening reprisal and granting or promising benefits in order to induce employees to renounce or refrain from SIU membership, has further vio- lated Section 8 (a)( 1 ) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. 5. Respondent, by terminating Ivan Fourreaux, has not violated the Act. [Recommendations omitted from publication.] 9 Fourreaux did help the ship's crew on the occasion , but he told them he would not handle the derricks. This was before he informed Baugher that he was leaving.