Moore-McCormack Lines, Inc.

796 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 of commerce. VI. THE REMEDY Having found that the Respondent has engaged in unfair labor practices , it will be recommended that it be ordered to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. 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. Syracuse Supply Company; Johnson, Drake and Piper, Inc.; and Bero Con- struction Corporation are engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. International Union of Operating Engineers , Local -945 is a labor organiza- tion within the meaning of Section 2 (5) of the Act. 3. By engaging in or inducing or encouraging individuals employed by persons engaged in commerce or in an industry affecting commerce to engage in a strike or refusal to perform services , and by threatening, coercing, or restraining persons engaged in commerce, or in an industry affecting commerce , with the object of forcing or requiring Johnson, Drake and Piper, Inc., and/or Bero Construction Corporation to cease doing business with Syracuse Supply Company, Respondent has violated Section 8 (b) (4) (i) and (ii) (B) 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. [Recommendations omitted from publication.] Moore-McCormack Lines, Inc. and National Maritime Union of America, AFL-CIO, Petitioner. Case No. 2-RC-12010. Novem- ber 2,1962 DECISION ON REVIEW On June 8, 1962, the Regional Director for the Second Region is- sued a Decision and Order in the above-entitled proceeding dismiss- ing the petition filed by the Petitioner, referred to herein as NMU, seeking an election in a fleetwide unit of all unlicensed seamen em- ployed by the Employer on its vessels operating out of Atlantic and Gulf coast ports. Thereafter, NMU, in accordance with Section 102.67 of the Board's Rules and Regulations, Series 8, as amended, filed with the Board a timely request for review of such Decision and Order on the ground that the fleetwide unit it seeks is appro- priate and requested oral argument. The American Merchant Marine Institute filed a brief as amicus curiae in support of the request and the Intervenor, Seafarers International Union of North America, Atlantic, Gulf, Lakes and Inland Waters District, AFL-CIO, re- ferred to herein as SIU, filed opposition to the request. The Board by telegraphic order dated July 10, 1962, granted the request for review and for oral argument. Thereafter, NMU and SIU filed briefs in support of their respective positions and the Ameri- can Maritime Association filed a brief as amicus curiae in opposition to a fleetwide unit. 139 NLRB No. 70. MOORE-McCORMACK LINES, INC. 797 On August 20, 1962, the Board heard oral argument at which NMU, SIU, and American Merchant Marine Institute appeared and par- ticipated. The Employer and American Maritime Association made limited appearances. The Board has considered the entire record in this case, including the briefs of the parties and the oral argument, and makes the follow- ing findings : The Employer, which first began operations in the 1920's, is engaged in the operation of American-flag passenger and freight ships from Atlantic, Gulf, and Pacific coast ports. In 1938, NMU was certified by the Board as the representative of all unlicensed seamen aboard the Employer's vessels then operating out of Atlantic and gulf coast ports. In 1940, the Employer extended its operations to the west coast, and recognized a labor organization affiliated wtih the Sailor's Union of the Pacific as representatives of the seamen in its west coast operations. Only the vessels in the Employer's east coast operations are involved in the instant proceeding. In 1957, the Employer entered into an agreement with Seas Ship- ping Company for the purchase of 10 of the 12 ships which the latter had operated in its Robin Line service. It also obtained the right to operate the Robin Line trade route, which runs from Eastern United States ports to African ports. The Employer sold two of the Robin vessels before taking title to them, but took possession of the other eight and hired the same crews that had been employed on the ships by Seas Shipping Company. SIU, which had represented the unlicensed seamen on the Robin vessels at the time of their sale, filed petitions with the Board for elections among the seamen on the eight then operated by the Employer, contending that each ship constituted a separate appropriate unit.' NMU took the position that only a fleetwide unit of all the Employer's vessels operating out of Atlantic and gulf coast ports, including the Robin ships, was an appropriate unit, and that the Robin vessels were therefore accretions to its unit. The Board found that separate ship units were appropriate and di- rected elections therein? In the elections, the unlicensed seamen aboard seven of the ships selected SIU as their representative and those on the eighth selected NMU. Since 1957, the Employer has on a multiship basis bargained separately with NMU and SIU as to the seamen they each represented. On April 13, 1962, NMU filed the instant petition, seeking an elec- tion among all the Employer's unlicensed seamen on its vessels operat- ing out of Atlantic and gulf coast ports, including the seven Robin ships represented by SIU. The Regional Director dismissed the peti- tion on the grounds that the Employer was planning the immediate Cases Nos. 2-RC-9065 to 2-RC-9072, inclusive. 2 Not published in NLRB volumes. 798 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sale of all eight Robin vessels, that, moreover, even if a unit includ- ing the seamen currently represented by SIU on seven Robin vessels could be appropriate, latter could not be added to NMU's existing unit without a self-determination election and NMU had made no showing of interest to justify such an election, and that an election in NMU's existing unit was barred by its current contract with the Employer. In its request for review, NMU alleges that the Employer has post- poned the planned sale of the Robin ships, and contends that an elec- tion should be directed in a fleetwide unit on the ground that that unit is the only appropriate unit in the maritime industry. It urges the Board to reconsider the 1957 decision, which found that separate Robin ship units were appropriate, because the Employer has inte- grated its operations since 1957, primarily through the consolidation of all its east coast shipping operations at one terminal, and because the "dual union" situation which now exists, whereby NMU and SIU represent identical classifications of seamen in the same fleet, neces- sarily has an unstabilizing effect upon the maritime industry.' It maintains that because of this dual-union situation, the Employer is not free to lay up any ships without subjecting itself to a crossfire of pressures from each union. In its opposition, SIU contends that the multiship unit it represents is appropriate and urges the Board to affirm the Regional Director's Decision and to give effect to a determination on June 22, 1962, by an impartial umpire that NMU had violated the AFL-CIO "no- raiding" agreement by filing the instant petition. As a general proposition we agree with the Petitioner's contention that units of seagoing personnel should be fleetwide in scope 4 Thus, as the record shows in the instant case, the Company bargains for a fleetwide unit on the Pacific coast, and, with the exception of the seven former Robin ships, it bargains for a fleetwide unit on the Atlantic and gulf coasts. Such units also conform to the pattern presently prevailing in the maritime industry. Moreover, there are obvious advantages in such a single unit : the elimination of interunion rivalry with respect to similar employees of the same employer and a conse- quent diminution of conflicts which may bring on work stoppages, and the facilitation of transfers of personnel between ships of the s In this connection , the American Merchant Marine Institute asserts that since the Board's 1957 decision , "many steamship companies " have forgone opportunities to pur- chase ships from companies whose seamen have been represented by a different union because of the possibility of labor disputes. However, that decision apparently has not completely inhibited ship transfers , inasmuch as NMII claims that there have been some 40 instances since 1957 Involving NMU and SIU in which a change in the representation of seamen from one union to the other has resulted from the transfer of a ship to a company whose seamen were represented by the latter union. This arrangement, with some exceptions, is a continuation by the unions of a plan devised by Admiral Land in 1942 to minimize interunion disputes over the representation rights of ships transferred from one company to another during wartime. ' Inter-Ocean Steamship Co., 107 NLRB 330; Ocean Tow, Inc., 99 NLRB 480. MOORE-McCORMACK LINES, INC. -99 same employer and of ships between different shipowners. But these reasons for finding a fleetwide unit appropriate may be overborne in a particular case by special circumstances which indicate the injustice or the unsuitability of applying the general rule. We believe that the present is such a case. We are not confronted in this proceeding with a question of representation relating to em- ployees on ships newly transferred from one shipowner to another. The transfer of the Robin Line ships to the Employer took place 5 years ago. At that time, in a Board proceeding involving a deter- mination as to which union was entitled to represent the unlicensed seamen on the newly transferred ships, Petitioner contended, as it does here, that a separate unit of the former Robin Line ship employ- ees was not appropriate, that the transferred ships and employees were an accretion to its existing unit. The Board rejected this con- tention and directed self-determination elections among the unlicensed personnel on each of the transferred Robin Line ships. The SIU won the elections on seven of the eight ships and was certified by the Board as the statutory representative of the employees on these ships. Since the certification the SIU has represented and made collective-bargain- ing agreements with the Employer for the employees in its certified unit. For 5 years, therefore, the Employer and both unions have lived with this particular bargaining pattern of a separate seven-ship unit previously established by the Board, and having adjusted to it, they have invested it with a validity based on bargaining history which the Petitioner has not shown sufficiently compelling reasons to override. There is no change in the composition of this unit which might other- wise have called for a reevaluation of the Board determination hereto- fore made. We note in this connection also that the Employer, which is the party normally expected to be most inconvenienced by the sep- arate seven-ship unit, did not file the present petition which seeks to abolish this unit, and did not appeal from the Regional Director's dismissal of the same. Moreover, David L. Cole, the highly experi- enced arbitrator under the AFL-CIO no-raiding agreement, has issued a determination and report finding that in filing the instant petition the Petitioner is in violation of that agreement. Evidently the arbitrator did not consider the existing two bargaining units among the Employer's unlicensed seamen an insuperable obstacle to effective collective bargaining. In view of the above, particularly the Board's previous determina- tion and the bargaining history based thereon, we find that the Peti- tioner's proposed unit is not appropriate . A caveat, however, is in order. The present decision is not to be construed as indicating that in the future the transfer of a ship from one owner to another will necessarily preserve the existing bargaining unit or the status of the incumbent union . The present decision rests on the special facts of 800 DECISIONS OF NATIONAL LABOR RELATIONS BOARD this case. It is not a precedent for situations which may be entirely different. As the Petitioner does not seek an election in any unit other than a fleetwide unit which we have found inappropriate, we affirm the Regional Director's dismissal of the present petition. In view of this action, we find it unnecessary to pass upon other contentions made by the parties. MEMBER LEEDOM, concurring : As reflected in the principal opinion, the Board previously deter- mined that the former Robin ships were not an accretion to the Peti- tioner's then-existing unit, and that separate single-ship units were appropriate. The Intervenor was certified as the representative of the employees on seven of such ships, and the Employer and the Inter- venor have since bargained on the basis of that certification. As there is no warrant for concluding either that the Board's previous deter- mination was incorrect, or that intervening events now compel a differ- ent determination, I agree with my colleagues that the Petitioner's proposed unit is inappropriate and that the Regional Director's dis- missal of the instant petition should be affirmed. I do not, however, subscribe to all of the language in the principal opinion, as I deem it inappropriate in this case to express an opinion as to the appropriate- ness of fleetwide or single-ship units in factual situations which are not now before us. MEMBER RODGERS, concurring : I concur in the result. Textile Workers Union of America and Federation of Textile Representatives. Case No. 11-RC-1655. November 5,1962 SUPPLEMENTAL DECISION, ORDER, AND DIRECTION On August 24, 1962, the Board issued a Decision and Direction of Election in the above-entitled proceeding,' in which it directed an elec- tion in a unit consisting of all international representatives on the pay- roll of the Employer. Thereafter, the Employer filed a motion re- questing that the Board reconsider its findings and decision in this case insofar as it held that joint board managers are properly included in the unit, and that, pending its determination, the Board stay the election? Opposition to the motion was received from the Petitioner. 1138 NLRB 269. 9 The Board decided not to stay the election but, instead, on September 12, 1962, di- rected the Regional Director to impound the ballots of, all joint board managers cast in the election scheduled to commence that day and to provide the Board with a tally of ballots. The election having been completed such a tally has been supplied the Board. 139 NLRB No. 68.