Gulfcoast Transit Co.

GULFCOAST TRANSIT COMPANY 185 union as representative of the 'employees in the unit for which Local 715 was certified. From this, it is clear. that-the allegations. contained in Local 715's motion constitute an attempt to raise a question con- cerning representation. Local 715 requests that we resolve this alleged question concerning representation by amending the certification. The Act and the Board's policy, however, require that such matters be determined through a petition and secret ballot of the employees con- cerned.5 Accordingly, we find 6 the motion to amend the certification without merit. [The Board denied the motion.] MEMBERS LEEDOM and BRowN took no part in the consideration of the above Decision and Order. 6 See It. M. ££ollingshead Corporation, 111 NLRB 840 : Gulf Oil Corporation, 109 NLRB 861; Wealherhead Company of Antwerp , 100 NLRB 1266 ; Wagner Electric Corporation, 91 NLRB 220. Cf. National Carbon Company, a Division of Union Carbide and Carbon Corporation ( Edgewater Works ), 116 NLRB 488. 6 Chairman McCulloch concurs in the result because the facts presented by the motion and opposition leave some doubt as to whether the merger and change of bargaining repre- sentative from one local union to another actually reflect the desire of a majority of employees in the represented unit. Gulfcoast Transit Company and National Maritime Union of America, AFL-CIO. Case No. 12-CA-2010. January 12, 1962 DECISION AND ORDER On October 18, 1961, Trial Examiner George A. Downing issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and is engaging in certain unfair labor practices, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the Intermediate Report attached hereto. Thereafter, the Respondent and the National Maritime Union filed exceptions to the Intermediate Report and sup- porting briefs. 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 [Members Rodgers, Fanning, and Brown]. The Board has reviewed the rulings of the Trial Examiner made 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. 135 NLRB No. 25. 186 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ORDER Upon the entire record in this case, and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Gulfcoast Tran- sit Company, Tampa, Florida, its officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Refusing to bargain collectively with NMU as the exclusive representative of its employees in the unit herein found appropriate with respect to wages, rates of pay, hours of employment, or other conditions of employment. The appropriate collective-bargaining unit is : All unlicensed personnel aboard the vessel SS Martha Mac, in- cluding personnel in the deck, engineer, and steward depart- ments, excluding office clerical employees and all supervisors as defined in the Act. (b) Recognizing the Gulfcoast Transit Unlicensed Personnel Association as the representative of any of its employees for the purpose of dealing with the Respondent concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other condi- tions of employment until it has complied with the provisions of this Order requiring it to bargain with the National Maritime Union of America, AFL-CIO, and unless and until Gulfcoast Transit Un- licensed Personnel Association shall have demonstrated its exclusive majority representative status pursuant to a Board-conducted elec- tion among the Respondent's employees. (c) Interfering with the administration of, and contributing un- lawful support to, the Gulfcoast Transit Unlicensed Personnel Asso- ciation, or to any other labor organization of its employees. (d) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the right to self-organization, to form labor organizations, to join or assist the above-named or any other labor organizations, to bargain collectively through representa- tives of their own choosing, and to engage in any other concerted activities for the purposes of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Bargain collectively, upon request, with National Maritime Union of America, AFL-CIO, as the exclusive representative of its employees in the appropriate unit and, if an understanding is reached, embody such understanding in a signed agreement. (b) Withdraw and withhold recognition from Gulfcoast Transit Unlicensed Personnel Association, as representative of any of the GULFCOAST TRANSIT COMPANY 187 Respondent's employees on its vessel, SS Martha Mac for the pur- pose of contracting or negotiating or otherwise dealing with the Respondent with respect to wages, rates of pay, or any other term or condition of employment both until it has complied with the provi- sions of this Order requiring it to bargain with National Maritime Union of America, AFL-CIO, and thereafter, unless and until said labor organization shall have demonstrated its exclusive majority representative status pursuant to a Board-conducted election. (c) Post aboard its vessel, SS Martha Mac, copies of the notice attached hereto marked "Appendix." 1 Copies of said notice, to be furnished by the Regional Director for the Twelfth Region, shall, after being duly signed by a representative of the Respondent, be posted immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reason- able steps shall be taken to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for the Twelfth Region, in writ- ing, within 10 days from the date of this Order, what steps have been taken to comply herewith. IIn 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 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, as amended, we hereby notify you that : WE WILL bargain collectively on request with National Mari- time Union of America, AFL-CIO, as the exclusive representa- tive of all our employees in the following appropriate collective- bargaining unit, and, if an understanding is reached, we will embody such understanding in a signed agreement. The appro- priate collective bargaining unit is : All unlicensed personnel aboard the vessel SS Martha Mae, including personnel in the deck, engineer, and steward de- partments, excluding office clerical employees and all super- visors as defined in the Act. WE WILL NOT recognize Gulfcoast Transit Unlicensed Person- nel Association as the representative of any of our employees for the purpose of contracting, negotiating, or otherwise dealing with them with respect to grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment 188 DECISIONS OF NATIONAL LABOR RELATIONS BOARD until after we have bargained with National Maritime Union of America, AFL-CIO, and will not thereafter recognize said Gulf- coast Transit Unlicensed Personnel Association as such repre- sentative unless and until it shall have demonstrated its exclusive majority representative status pursuant to a Board-conducted election. WE WILL NOT interfere with the administration of, or contribute unlawful support to, Gulfcoast Transit Unlicensed Personnel Association, or any other labor organization of our employees. WE WILL NOT in any like or related manner interfere with, re- strain, or coerce our employees in the exercise of the right to self-organization, to form labor organizations, to join or assist National Maritime Union of America, AFL-CIO, or any other labor organization, to bargain collectively through representa- tives of their own choosing, and to engage in other concerted ac- tivity for the purposes of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities. WE WILL withdraw and withhold recognition from Gulfcoast Transit Unlicensed Personnel Association as the representative of our employees for the purpose of dealing with us concerning grievances, labor disputes, wages, rates of pay, hours of employ- ment, or other terms or conditions of employment, unless and until said labor organization shall have been certified by the Na- tional Labor Relations Board. All our employees are free to become or remain, or to refrain from becoming or remaining, members of the above-named or any other labor organization. G1LFCOAST TRANsrr COMPANY, 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. INTERMEDIATE REPORT STATEMENT OF THE CASE This proceeding, brought under Section 10(b) of the National Labor Relations Act, as amended (61 Stat. 136; 73 Stat. 519), was heard at Tampa, Florida, on August 28 and 29, 1961, pursuant to due notice. The complaint, issued on July 11, 1961, by the General Counsel of the National Labor Relations Board and based on charges duly filed and served, alleged in substance that Respondent had engaged in unfair labor practices proscribed by Section 8(a)(1), (2 ), and (5) of the Act by (1) rendering unlawful aid , assistance, and support since November 16, 1960, to an association of its employees , and (2) by refusing to bargain since November 16, 1960, with the Charging Union (herein called NMU) which, on February 8, 1960, was certified by the Board's Regional Director as the exclusive bargaining representative of Respondent's employees in an appropriate unit. Respondent answered , denying the unfair labor practices as alleged and averring affirmatively that NMU lost its majority status after an economic strike on May 5, GULFCOAST TRANSIT COMPANY 189 1960, during which Respondent permanently replaced a majority of the employees. Respondent defended its dealings with the employees on board ship on the basis of the unusual conditions which exist aboard a vessel on the high seas and on the further ground that NMU was guilty of such misconduct toward the employees as effectually to preclude the adjustment of their grievances through NMU. Upon the entire record 1 in the case and from by observations of the witnesses, I make the following: FINDINGS OF FACT 1. JURISDICTIONAL FINDINGS I find on facts alleged in the complaint and admitted by answer that Respondent, a Florida corporation, engaged in the business of transporting bulk cargo between Tampa, Florida, and New Orleans, Louisiana, by steamship, is engaged in interstate commerce within the meaning of the Act through its annual receipt of revenues exceeding $50,000 for its services connected with the transportation of goods in interstate commerce. IL THE LABOR ORGANIZATIONS INVOLVED NMU is a labor organization within the meaning of Section 2(5) of the Act. I also find, on the basis of the evidence summarized under section III, B, infra, that Gulfcoast Transit Unlicensed Personnel Association, also known as Association of Unlicensed Crew SS Martha Mac (herein called the Association) is a labor organization within the meaning of Section 2(5) of the Act, because it dealt with Respondent concerning grievances, overtime compensation, hours of employment, and conditions of work. N.L.R.B. v. Cabot Carbon Company and Cabot Shops, Inc., 360 U.S. 203. HI. THE UNFAIR LABOR PRACTICES A. The issues; the Section 10(b) question Under the complaint allegations, the violations of both Section 8(a)(2) and 8(a)(5) were related almost entirely to Respondent's recognition of and dealings with the Association since November 16, 1960 (during NMU's certification year), the single exception being a further allegation that Respondent also engaged in bad- faith bargaining with NMU. On the refusal-to-bargain question, Respondent's brief argues a single issue-the paramount one in the case-whether NMU's loss of majority during the certification year, resulting from an economic strike and from Respondent's permanent replace- ment of all strikers, constituted such an unusual circumstance as to absolve Respond- ent from its obligation to bargain. The only other issue in the case is whether the General Counsel proved that Respondent' s dealings with the Association since November 16 constituted the giving of unlawful aid, assistance, or support .2 For preliminary consideration is the question concerning the weight to be given to evidence of events prior to November 16, received over Respondent's objection that it was barred by Section 10(b). That evidence covered briefly the early nego- tiations between Respondent and NMU, and covered in more detail the forming of the Association and Respondent's dealings with it during the prior period. It is definitively settled that Section 10(b) is a statute of limitations and not a rule of evidence. Evidence of events outside .the statutory, period may accordingly be received under the "established judicial rule of evidence that testimony of prior or subsequent transactions, which for some reason are barred from forming the basis for a suit, may nevertheless be introduced if it tends reasonably to show the purpose and character of the particular transactions under scrutiny." Federal Trade Commis- sion v. Cement Institute, 333 U.S. 683, 704. That rule is, of course, subject to the important qualification that testimony as to such barred events may be received only as background evidence and may not be given independent or controlling weight. Alumatic Windows, Inc., 131 NLRB 1210; see Paramount Cap Manufacturing Com- pany v. N L.R.B., 260 F. 2d 109 (C.A. 8). As the Supreme Court held in Local Lodge No. 1424, International Association of Machinists, AFL-CIO v. N.L.R.B. (Bryan Manufacturing Co.), 362 U.S. 411, it is necessary to distinguish between the following two different kinds of situations in applying rules of evidence as to the admissibility of past events: I Corrections of the record are hereby ordered, pursuant to the General Counsel's motion, in the absence of objection. 8 Mistakenly citing the language of the charge, Respondent's brief argues against a find- ing of domination, but there was no allegation of domination In the complaint and no claim of any by the General Counsel. 190 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The first is one where occurrences within the six-month limitations period in and of themselves may constitute, as a substantive matter, unfair labor practices. There, earlier events may be utilized to shed light on the true character of matters occurring within the limitations period; and for that purpose § 10(b) ordinarily does not bar such evidentiary use of anterior events. The second situation is that where conduct occurring within the limitations period can be charged to be an unfair labor practice only through reliance on an earlier unfair labor practice. There the use of the earlier unfair labor practice is not merely "evidentiary," since it does not simply lay bare a putative current unfair labor practice. Rather, it serves to cloak with illegality that which was otherwise lawful. And where a complaint based upon that earlier event is time-barred, to permit the event itself to be so used in effect results in reviving a legally defunct unfair labor practice. To mark more precisely the limits of its holding, the Court elsewhere stated that "we need not go beyond saying that a finding of violation which is inescapably grounded on events predating the limitations period is obviously at odds with the pur- poses of the Section 10(b) proviso." It is in the light of the foregoing principles that the evidence of the earlier events is weighed herein. Evidence concerning the formation of the Association and of the earlier manner of its functioning was plainly relevant background for the evaluation of events within the statutory period. As the court said in N.L.R.B. v. Sharples Chemicals, Inc., 209 F. 2d 645, 653 (C.A. 6) : The original inception of the different organizations, together with the testimony that they were still functioning, without much attempt on the part of Respondent to show any basic change, had a material bearing upon the question of how they were functioning on and after [the Section 10(b) date]. So too the evidence of Respondent' s bargaining attitude prior to November 16 is utilized only in illumination of its alleged bad faith during the statutory period. B. The evidence Respondent operates a single vessel, the SS Martha Mac, a bulk cargo carrier in coastwise trade, hauling phosphate and coal between Tampa and New Orleans. Its unlicensed personnel aboard ship numbered some 34 employees. Its officers (licensed personnel) included in part Captain Alf J. Dahl, Acting Captain (and Chief Mate) Robert L. Fonda, and Chief Engineer Eric Blomquist. Corporatewise, Respondent's general manager was Ned Wheelock and its assistant manager was William H. Vaught. On January 11, 1960, Gulfcoast Transit Union, Ind., filed a representation pe- tition seeking representation of all unlicensed personnel aboard the Martha Mac, and on January 30 NMU filed a petition in the same unit. The cases were consolidated and a consent election was held on January 30, 1960, with NMU winning the elec- tion. NMU was thereafter certified as the exclusive bargaining representative of said employees on February 8, and the Union and the Company attended bargaining negotiating sessions until May 5, 1960, on which date the employees in the unit went on strike .3 Some 20 of the unlicensed personnel walked off the ship and 14 re- mained on board. On the same day Respondent permanently replaced all of the 20 strikers. In June 1960, the men on board formed themselves into an "opposing association" (to NMU) and thenceforth dealt through their association directly with Respondent's officers, without notice to NMU, concerning grievances and a variety of working and living conditions aboard ship (as more fully recited hereinafter). The minutes of a The following facts concerning the filing and disposition of charges were stipulated : On June 10, 1960, Respondent filed 8(b) (1) (A) charges in Case No 12-CB-1396, accusing the Union of strike misconduct. The Regional Office dismissed those charges because of insufficiency of evidence. On August 8, 1960, NMU filed 8(a) (1), (3), and (5) charges against Respondent in Case No 12-CA-1363 (1-4). The Regional Office administratively dismissed the 8(a) (3) and (5) allegations, and a hearing was held only on the Section 8(a) (1) allegation On recommendation of the Trial Examiner, the latter allegations were subsequently dismissed by the Board On February 9, 1961, a representation petition was filed in Case No 12-RC-1153, by Gulfcoast Transit Unlicensed Personnel Association, Ind., and on March 2 1961, NMU intervened in that proceeding. Thereafter, under the direction of the Regional Director, a representation hearing was held on May 16, 1961, and on the same date unfair labor practice charges were filed by NMU in the present proceeding. GULFCOAST TRANSIT COMPANY 191 the Association showed that the members in attendance at all of the meetings num- bered substantially more than a majority of Respondent's employees. As the foregoing evidence, which was introduced by the General Counsel, estab- lished an actual loss of majority by NMU on or before June 25, 1960, it is unneces- sary to consider Respondent's contention that the employees could not have desired representation by NMU because of the effect upon them of a scurrilous notice, sent by NMU, which charged them with "scabbing" in terms of the celebrated Jack London statement. Furthermore, Section 10(b) precludes a finding that the Union's loss of majority was attributable to Respondent's unfair labor practices. Evidence concerning the pre-10(b) negotiations between Respondent and NMU showed that, following the certification, meetings were held on March 30, April 30, May 12, mid-July, August 4 and 5, and mid-October. The negotiations centered around the Union's standard industry agreement covering dry-cargo vessels, with certain changes made by NMU to fit the Martha Mac. Both sides made and refused to make certain concessions; the main stumbling blocks were the pension plan and the hiring hall, with Respondent being adamantly opposed to the latter. Prior to the certification, Respondent had permitted NMU representatives to go on board, both for organizational purposes and to receive and process grievances, but following the certification, permission to board was refused to NMU, and specifically, was refused to John Reizinger, field patrolman, who was turned away several times by a guard at a gate which Respondent erected at the entrance to its dock shortly after the election. At the April 30 meeting, Respondent related its refusal of access to the fact that NMU had not furnished a certificate of insurance covering NMU per- sonnel who might go on board. On May 2, the Union furnished Respondent a certificate of coverage in the usual amount of $25,000 to $50,000, public liability.4 A month later, NMU was informed that the coverage was inadequate, and that Re- spondent was demanding coverage of $100,000 to $300,000. That demand was never withdrawn, and it was one of the items left open for discussion at all subsequent bargaining sessions. Beginning with the meeting of May 12, Respondent frequently made the claim that the Union had lost its majority (through the replacement of the strikers) and was no longer the representative of the employees on board, stating also that Re- spondent was present in the negotiations because under the law it had to sit down and meet with the Union periodically. The foregoing positions were maintained through a final negotiation meeting, held on January 24, 1961,'and no agreement was reached. We turn now to the evidence concerning the forming of the Association and its dealings with Respondent. In June 1960, all unlicensed personnel decided during a meeting in the crew's mess to form some sort of "opposing association" (to NMU) with the object of making the ship a better place to live and for effecting improve- ments in the general welfare of the crew. To that end they formed an "unofficial" organization, electing delegates from the different departments, choosing a chairman, a secretary, and a treasurer, and providing for the collection of dues. Meetings were held roughly on a monthly basis, usually when at sea, and grievances and complaints were received and discussed and action was agreed upon for handling such matters with the ship's officers. Copies of the minutes (which were typed by the radio operator, a licensed officer) were posted on the bulletin board in the crew's mess until some 6 months before the hearing in this case. They showed frequent instances in which delegates were di- rected to take up specific matters with the ship's officers to remedy complaints and to improve working conditions, and they showed similarly reports by the delegates book to the membership of the results obtained. In September the crew members took action toward organizing their Association on a more formal or "official" basis, by a formal election of officers, by increasing the dues, and by providing for an initiation fee. Seeking also to place their relations with Respondent on a more formal basis, the delegates met aboard ship on Septem- ber 28 with a committee of Respondent's representatives, consisting of Captain All Dahl, General Manager Wheelock, Assistant Manager Vaught, and Chief Engineer Blomquist. Secretary Richard Watkins of the Association was informed by Vaught that Vaught would take the minutes of the meeting and that Watkins need not do so. Vaught's minutes (amplified on certain details by unrefuted testimony) showed that a wide variety of matters pertaining to working and living conditions were 6 Rick Miller, NMU's vice president , gave undenied testimony that such coverage is the same as the Union carries under a blanket policy covering some 125 companies , operating some 500 to 700 ships of all classifications , including one identical in operation to the Martha Mac 192 DECISIONS OF NATIONAL LABOR RELATIONS BOARD discussed, considered, and in some instances resolved. Thus beginning with the statement that an association was proposed "as soon as it is legal to do so," the range of topics included in part the following: Delegates from different departments to be recognized by officers and Company for settling disputes; 5 men on deck to receive orders only from bosun or mate on duty; 15-hour overtime limit for engine depart- ment; disputed overtime to be submitted to delegate for settlement; return to regular job after vacation; attitude of officers toward crew members; job security; chart showing seniority and vacation schedules; safety program; supper relief. The Association's minutes of subsequent meetings (with copies still being posted on the bulletin board), together with testimony, by President Wilson and Secretary Watkins, showed that Respondent thereafter dealt with the Association's repre- sentatives concerning complaints and grievances and on a variety of matters relating to working and living conditions on board ship, and that such dealings continued without break or change after November 16. Watkins confirmed that matters men- tioned in the minutes were in fact taken up with the ship's officers. Wilson testified to conferring with the ship's officers on such matters as complaints covering unneces- sary work on Sunday and the crew's desire for a set of rules on the subject; plumbing troubles; a washing machine; a broken TV; and the reason for the discharge of an employee. Wilson also read to the Association in a meeting on February 4, 1961, from a mimeograph sheet supplied him by Chief Engineer Blomquist, a report of the additional benefits which the officers' association (of licensed personnel) had received through negotiation with the Company, which were set forth in full in the minutes of the meeting. The minutes elsewhere referred to the "very likely" possibility that the employees would receive certain of those benefits in view of what the officers received, and they also contained the following addendum of Wilson's comments following the reading of his report: You can see that the Company is willing to discuss our problems and desires and willing to concede where and when possible. Plus he pointed out our Company is only two years old and is operating against severe competition. In the meantime on or about January 7, 1961, the employees signed and adopted a formal "Constitution and Bylaws" of their Association, which was prepared by Attorney James M. McEwen, of Tampa, and which provided in part that McEwen's office should be its headquarters and that the attorney, the business agent, and the delegates should constitute the Association's representatives. The General Counsel also offered unrefuted evidence that the ship's officers them- selves actively participated in the employment of the attorney for the Association. Thus, Rhea Johnson, a licensed officer, testified that shortly after he was employed around December 2, 1960, Chief Engineer Blomquist questioned him in the pres- ence of the other officers, including Acting Captain Fonda, concerning an attorney in Tampa who might draw up a constitution for the unlicensed personnel. Blom- quist inquired specifically about McEwen, stating that McEwen was the same attorney who had drawn up the constitution for the licensed personnel and that "We are thinking about getting him for the unlicensed personnel, to draw up their constitution." When Johnson asked if Blomquist was in any hurry, Blomquist told him to forget about it because they had to have it done rapidly to qualify for an approaching election or some such thing. Johnson testified further that Acting Captain Fonda made the remark several times, in the presence of both licensed and unlicensed personnel, that the Company would never enter into negotiations with NMU, calling it a "Nigger union," and adding that because of the rotary method under which NMU operated its hiring hall, the Company could not screen the personnel and decide who was to come aboard the vessel. C. Concluding findings 1. The refusal to bargain As previously stated, Respondent defends its refusal to bargain with NMU on the basis of a single contention which may be stated as follows: The loss of 8 Concerning that entry Secretary Watkins testified that "The president [Wilson] asked the company officials present if they would recognize the delegates from each department in settling any disputes about the unlicensed personnel and the company agreed to recog- nize the delegates elected." Though President Wilson testified at first that the Association was neither accepted nor rejected, he then added that he could remember nothing on that particular point. GULFCOAST TRANSIT COMPANY 193 majority by NMU, which resulted from the economic strike and the permanent replacement of all the strikers, was such an unusual circumstance as to absolve Respondent from its obligation to bargain with NMU during the certification year. The leading case on this point is Ray Brooks v. N.L.R.B., 348 U.S. 96, which affirmed the enforcement by the Court of Appeals for the Ninth Circuit (204 F. 2d 899) of the Board's decision at 98 NLRB 976. As the Supreme Court stated the issue, it involved the duty of an employer toward a duly certified bargaining agent if, shortly after the election which resulted in the certification, the union has lost, without the employer's fault, a majority of the employees from its membership. The Court reviewed and approved the Board's "working rule" that a certification based on a Board-conducted election must be honored for a "reasonable" period, ordinarily "one year," in the absence of "unusual circumstances," and it cited as examples of "unusual circumstances" as found by the Board the following three situations: (1) The certified union dissolved or became defunct; (2) as a result of a schism, substantially all the members and officers of the certified union trans- ferred their affiliation to a new local or international; and (3) the size of the bargaining unit fluctuated radically within a short time. Commenting that the issue was open before it, the Court cited as examples of its own earlier decisions in which an employer was required to bargain for a reasonable period, despite a union's loss of majority, Franks Bros. Company v. N.L R.B., 321 U.S. 702, and N.L.R.B. v. Mexia Textile Mills, Inc., 339 U.S. 563. The Court continued: Petitioner contends that whenever an employer is presented with evidence that his employees have deserted their certified union, he may forthwith refuse to bargain. In effect, he seeks to vindicate the rights of his employees to select their bargaining representative. If the employees are dissatisfied with their chosen union, they may submit their own grievance to the Board. If an em- ployer has doubts about his duty to continue bargaining, it is his responsibility to petition the Board for relief, while continuing to bargain in good faith at least until the Board has given some indication that his claim has merit. Although the Board may, if the facts warrant, revoke a certification or agree not to pursue a charge of an unfair labor practice, these are matters for the Board; they do not justify employer self-help or judicial intervention. The underlying purpose of this statute is industrial peace. To allow employers to rely on employees' rights in refusing to bargain with the formally designated union is not conducive to that end, it is inimical to it. Congress has devised a formal mode for selection and rejection of bargaining agents and has fixed the spacing of elections, with a view of furthering industrial stability and with due regard to administrative prudence. Respondent argues that the Brooks case is distinguishable on its facts because here there was no repudiation of the Union by the employees who voted for it, but that instead a new set of employees, in defiance of the Union, selected a different representative by forming the opposing Association. Respondent advances, how- ever, no persuasive reason why the claimed distinction renders inapposite the princi- ples of Brooks or requires any difference in results . Since it does take issue with other cases which the General Counsel and the Union cite in further support of their position, we turn to those cases. Reliance Clay Products Company, 115 NLRB 1736, involved the precise situation involved here, i.e , an economic strike, followed by replacement of the strikers and by a refusal to bargain within the certification year on the ground that the union no longer represented a majority. The Trial Examiner (whose report was adopted by the Board) found the Brooks case to be controlling, and held that: "Alleged, or even actual, loss of majority during the 1-year period is not such an `unusual' cir- cumstance as will justify an employer's repudiation of the certified union as the statutory representative of the employees " However, the Trial Examiner com- mented in a footnote that the respondent offered no proof of the fact that a majority of its current employees were not supporters of the union. The Court of Appeals for the Fifth Circuit ordered enforcement, per curium (245 F. 2d 599), stating in part: "Replacement of all or a part of the strikers with no proof that such employees no longer desired the Union to renresent them did not, within the twelve months following certification terminate the Union's authority or the obPeation of the Employer to bargain with it as the exclusive representative." Other decisions of that court, however, show that it does not consider actual re- pudiation and loss of maioritv to be a decisive factor. See. e .g., N.L R.B. v. Sansotr Hosiery Mills, Inc., 195 F. 2d 350 (cited by the Supreme Court in the Brooks case, 634449-62-vol. 135-14 194 DECISIONS OF NATIONAL LABOR RELATIONS BOARD supra, as sanctioning the Board's position on the certification year rule), and Parks et al. v. Atlanta Printing etc. Union, 243 F. 2d 284, where the court, citing Brooks, referred to the status of a certified union as alone decisive. Indeed, though the General Counsel offered the proof, missing in Reliance, that NMU had suffered an actual loss of majority, that fact was not decisive under Brooks, where an actual loss occurred without fault of the employer, or under the other cases which the General Counsel and Union rely upon. Thus, in Clark & Lewis Co., 122 NLRB 865, enfd. 274 F. 2d 817 (C.A. 5), there had been a 100- percent repudiation of the union during the certification year. The Trial Examiner, whose report was adopted by the -Board, nevertheless held the Brooks case to be controlling, commenting in part that, "Whenever the 1-year rule applies, as it does in this case, the Board ordinarily dismisses all petitions seeking to raise a question concerning representation filed at any time before the end of the certification year in order to protect both the bargaining agent and the employer from disturbance during that period." Rockwell Valves, Inc., 115 NLRB 236, was such a representation case. The union was certified on January 15, 1955, but was unsuccessful in reaching agreement with the employer, and on June 19 most of the employees went on strike. The employer hired permanent replacements, most of whom indicated that they did not wish to be represented by the union. The employer filed his RM petition November 22, contending the union no longer represented a majority of the employees. The Board held: The Board has consistently held, with judicial approval [citing Ray Brooks], that, absent unusual circumstances not here present, a Board certification will be treated as identifying the statutory bargaining representative with certainty and finality for a period of 1 year; and, in order to protect the bargaining relationship from disturbance during that period, it is the policy of the Board, in cases like the one at bar, to dismiss all petitions filed at any time before the end of the certification year. Genesee Foundry Company, Incorporated, 109 NLRB 1253, was another com- plaint case in which a majority of the employees repudiated the certified union (Steelworkers) during the course of a strike by signing cards authorizing the Molders to act as their exclusive bargaining representative. The company promptly recog- nized the Molders and executed a contract with that union. The Board found, in agreement with the Trial Examiner, that by recognizing Molders, the company violated Section 8(a) (5) of the Act, stating: The principal matter in contention is the validity of the Board's certification- year rule. The Respondent maintains that because the Molders obtained a card majority, the Respondent was duty bound to bargain with it, notwithstanding the fact that the defection in the Steelworkers' ranks occurred during the certifi- cation year. The board has consistently held, with the approval of the great weight of court decisions, that a certified union's majority status, in the absence of unusual circumstances, is conclusively presumed to continue for 1 year following certification. In the instant case, the employees' repudiation of the Steelworkers, the incumbent Union, and their affiliation with the Molders, do not constitute such unusual circumstances within the certification year as to impair the Steelworkers' representative status. We see no reason for departing from our usual rule. There is no significant distinction between Genesee and the present case, where NMU occupied the same position as Steelworkers, and the Association occupied the same position as Molders. Though less directly in point, West Fork Cut Glass Company, 90 NLRB 944, is in accord with the foregoing holdings. There a strike occurred during the certi- fication year and was followed by the -replacement of a substantial number of strikers and by the crossing of the picket line by a majority of the employees who continued to work. The company contended that those facts presented such "un- usual circumstances" as to justify its questioning of the union's majority, since the repudiation of the union showed that the union no longer represented a majority of the employees. The Board held in part that even were it to assume that the non- striking employees attempted to repudiate the union by continuing to work during the strike, it would "find that the Respondent was obligated to bargain with the Union, as the Board and the courts have consistently held that a certification is binding despite a clear attempt by the employees to repudiate the union." The conclusions which I draw from the foregoing decision are as follows: (1) A loss of majority by a certified union during its certification year, even without fault GULFCOAST TRANSIT COMPANY 195 ,on the employer's part , does not, absent unusual circumstances , absolve the em- ployer from his obligation to bargain ; and (2) that the repudiation of the union should occur during the course of a strike, either with or without a permanent replacement of the strikers , does not constitute such an unusual circumstance as to affect that obligation. I therefore conclude and find that on and after November 16, 11960 , Respondent refused to bargain with NMU as the exclusive bargaining representative of Respond- ent's unlicensed personnel by: (a) Recognizing and dealing with the Association as the representative of said employees with respect to rates of pay, wages , hours of employment , and other conditions of employment. (b) Dealing with the Association concerning , and adjusting, complaints and grievances of the employees without giving NMU an opportunity to be present at the adjustment. Section 9 ( a); Federal Telephone and Radio Company, a Division of International Telephone and Telegraph Corporation, 107 NLRB 649; Hughes Tool Co., 56 NLRB 981, enfd. with modification 147 F. 2d 69 (C.A. 5). (c) Negotiating with NMU in bad faith and with no intention of reaching an agreement.6 2. Assistance and support The Association's minutes (posted on Respondent's bulletin board ), together with the unrefuted testimony of Watkins and Wilson, showed that Respondent con- tinued to deal with the Association after November 16, 1960 (as it had before), on a wide variety of grievances , on working conditions, and on other terms of em- ployment while NMU, the certified representative of the employees , was barred from the ship . Respondent also permitted the Association to use its facilities and equipment to hold meetings , to conduct Association business , and to post minutes (which disclosed on their face the fact of Respondent's dealings ). Respondent's licensed personnel also lent further assistance in preparing copies of the Association's minutes and in procuring the services of an attorney. Assistance and support of the foregoing types have traditionally been found to fall under the proscription of Section 8(a) (2) of the Act. See, e g., The Multi- Color Company, 1,14 NLRB 1129; Mt. Clemens Metal Products Company, 126 NLRB 1297. Indeed, Respondent's conduct was more flagrant than that presented in the normal or typical case of unlawful support, in that its assistance of, and dealings with, the Association occurred during the certification year and at a time when Respondent was denying to NMU access to the employees and refusing to bargain with it. I conclude and find that by the conduct summarized in the fore- going paragraph, Respondent unlawfully assisted and supported the Association in violation of Section 8(a)(2) and (l) of the Act. IV. THE REMEDY Having found that Respondent engaged in certain unfair labor practices, it will be recommended that Respondent cease and desist therefrom and that it take cer- tain affirmative action of the type conventionally ordered in such cases, as pro- vided in the recommended order below, which is found to be necessary to remedy and remove the effects of the unfair labor practices and to effectuate the policies of the Act. As the evidence does not indicate such an attitude of opposition to the pur- poses of the Act generally that a commission of other types of unfair labor prac- tices is reasonably to be anticipated, the order provides that Respondent cease and desist from engaging in further conduct of the types herein found and from any like or related conduct. Cf. The Multi-Color Company, 122 NLRB 429, 466; Mt. Clemens Metal Products Company, 126 NLRB 1297, 1310. Upon the basis of the foregoing findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. All unlicensed personnel aboard the vessel SS Martha Mac, including person- nel in the deck, engineer, and steward departments, excluding office clerical em- 9 The evidence of Respondent's pre-10(b) conduct furnished both light and support for that finding, which is, however, based independently on Johnson's testimony concerning the statements made by Fonda and Blomquist and Miller's testimony that Respondent's position on the issues ( including insurance coverage and denial of access to the employees while recognizing and dealing with the Association), remained unchanged at the meeting of J.inuary 24, 1961. 196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ployees and all supervisors defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. 2. NMU has been at all times since February 8, 1960, the exclusive representative of all employees in the aforesaid unit for the purposes of collective bargaining within the meaning of Section 9(a). 3. By refusing to bargain with NMU since November 16, 1960 , Respondent has engaged in and is engaging in unfair labor practices proscribed by Section 8(a)(5) and (1). 4. By interfering with the administration of the Association and by contributing financial or other support to it, Respondent has, since November 16, 1960, engaged in and is engaging in unfair labor practices proscribed by Section 8(a)(2) and (1). 5. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. [Recommendations omitted from publication.] Titan Metal Manufacturing Co. and United Steelworkers of America, AFL-CIO; United Steelworkers of America, AFL- CIO, Local 5649. Case No. 20-CA-1969. January 12, 1962 DECISION AND ORDER On September 21,1961, Trial Examiner James R. Hemingway issued his Intermediate Report in the above-entitled proceeding, finding that Respondent had engaged in and was engaging in certain unfair labor practices and recommending that Respondent cease and desist therefrom and take certain affirmative action, as set forth in the Intermediate Report attached hereto. The Trial Examiner also rec- ommended that all other allegations of the complaint be dismissed. Thereafter, the Charging Party filed exceptions 1 to the Intermediate Report and a supporting brief. The Respondent filed a reply brief. 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 McCulloch and Members Rodgers and Fanning]. The Board has reviewed the Trial Examiner's rulings 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 this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner.' ORDER The Board adopts the Recommended Order of the Trial Examiner with the modification of provision 2 (d) to read : "Notify said Regional i Subsequent to the filing of its exceptions , the Charging Party requested permission to withdraw its exceptions insofar as they relate to the Trial Examiner's dismissal of the Section 8 ( a) (5) allegation of the complaint . The request is granted. ' Member Rodgers finds it unnecessary to a consideration of this case to decide whether an economic striker once permanently replaced has a right to reinstatement if at the time of application for reinstatement his replacement is no longer employed by the Employer. Accordingly . he would not adopt the Trial Examiner's comments in this regard. 135 NLRB No. 22.