Int'l Organization of Masters, Mates & Pilots

1172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD International Organization of Masters, Mates and Pilots of America, Inc., AFL-CIO; Great Lakes District, Local No. 47,, International Organization of Masters, Mates and Pilots of America, Inc., AFL-CIO, Respondents and Chicago Calumet Stevedoring Co., Inc., Charging Party International Organization of Masters , Mates and Pilots of America, Inc., AFL-CIO ; Great Lakes District, Local No. 47, International Organization of Masters ,, Mates and Pilots of America, Inc., AFL-CIO, Respondents and P & V Maritime Corporation, Charging Party International Organization of Masters, Mates and Pilots of America, Inc., AFL-CIO; Great Lakes District, Local No. 47,, International Organization of Masters , Mates and Pilots of America, Inc., AFL-CIO, Respondents and North Pier Termi- nal Company, Charging Party International Organization of Masters, Mates and Pilots of America, Inc., AFL-CIO, and International Vice-President Captain Rolla R. Johnson, Respondents and Cleveland Steve- dore Company, Lederer Terminal Warehouse Company, Na- tional Terminals Corporation and Shipping Federation of Canada, Charging Parties. Cases Nos. 13-CC-168, 13-CC-1697 13-CC-170, and 13-CC-180 (formerly Case No. 8-CC-76). Octo- ber 23, 1963 SUPPLEMENTAL DECISION On November 12, 1959, the Board issued its Decision and Order in the above-entitled proceeding 1 in which it found, inter alia, that International Organization of Masters , Mates and Pilots of America, Inc., AFL-CIO, herein called MMP, and its Great Lakes District, Local No. 47, herein called Local 47, had violated Section 8 (b) (4) (A) of the Act 2 In doing so , the Board adopted the Trial Examiner's findings that MMP was a "labor organization" as defined in Section 2 (5) of the Act, and, without deciding whether Local 47 was a "labor organization" within the meaning of that section, found that that Local was responsible for the secondary misconduct as an agent of MMP. On December 20,1960, the Circuit Court of Appeals for the District of Columbia entered an order remanding this proceeding to the Board in which it stated that : 1 125 NLRB 113 2 The violations charged arose under Section 8(b) (4) (A ) as it existed prior to the en- actment of the Labor-Management Reporting and Disclosure Act of 1959 In their petition to review and set aside the Board ' s Decision and Order filed with the court, Respondents did not contest the Board's findings that they violated that section in the respects set forth in that Decision. 144 NLRB No. 110. INT'L ORGANIZATION OF MASTERS, MATES & PILOTS 1173 The Court is of the view that [Section 2(5) of the Act] re- quires the substantial and meaningful participation of employees in order to constitute an organization a "labor organization" within the meaning of that section. The court then ordered the Board to make specific findings with re- spect to (1) Whether the membership of Great Lakes District Local No. 47, International Organization of Masters, etc., includes, in substantial number or proportion, persons who are employees; and whether such employee members, if any, participate in the Local and in the International Organization of Masters, etc., in a substantial and meaningful manner. (2) Whether the membership of the International Organization of Masters, etc., includes, in substantial number or proportion, persons who are employees ; and whether such employee members, if any, participate in the International in a substantial and mean- ingful manner. On July 28, 1961, the Board reopened the record and remanded the proceeding for a further hearing before a Trial Examiner for the purpose of adducing evidence bearing on the questions posed by the court on remand. Thereafter, on February 27, 1963, the parties filed with the Board a motion to transfer proceeding to the National Labor Relations Board and stipulation of facts in which they waived a fur- ther hearing and Supplemental, Intermediate Report by a Trial Examiner and submitted these cases directly to the Board. On March 6, 1963, the Board granted the motion to transfer, approved the stipulation of facts and made it a part of the record herein, and withdrew its previous Order reopening record and remanding proceed- ing. Thereafter, the General Counsel and MMP filed briefs with the Board, which have been duly considered. A. Stipulation of facts The stipulation submitted by the parties recites that MMP consists of 34 chartered locals; 3 31 of these, including Local 47, are composed of masters, mates, and/or pilots; the remaining 3, hereinafter called the AMW locals, are composed of ordinary seamen. The membership of MMP is 11,004,' which includes approximately 607 probationary s Local 92 , a union consisting of sailing masters and pilots who were members of the Great Lakes Pilots Association , is no longer affiliated with MMP and is not included in this total Associated Maritime Workers Local 5 is now defunct and is similarly not in- cluded in this total. 4In its brief, MMP asserts that Local 30, which is primarly composed of masters and mates, also includes 11 Savannah bar pilots who are members of that Local but not of the MMP. According to MMP's calculation , its membership is therefore 10,993. 1174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and 56 retired members of non-AMW locals, and 237 members of the AMW locals.' With respect to the existing AMW locals, the parties stipulated that Local 3 includes 95 ordinary seamen who concededly are employees within the meaning of Section 2(3) of the Act. In addition, there are approximately 121 individuals who work during certain periods of the year who "apparently are not regular members" of Local 3 and who "can best be described as men with work permits," although they pay dues to that Local during the periods in which they are em- ployed.6 AMW Local 7 is composed of nine individuals who work on railroads and who the parties agree are exempt from the coverage of the Act. Finally, AMW Local 8 has a total of 79 members, of whom 75 are concededly employees under the Act; the remaining four are divers who are not within the Act's coverage. In sum, the parties stipulated that MMP includes at least 170 individuals who are em- ployees within the meaning of Section 2(3) of the Act. Local 47 is a non-AMW local and has a total of 430 members, includ- ing 41 probationary members and 56 in retired status; 12 of this total are classified as pilots, while the remainder are either masters or mates. The parties stipulated that the masters sand mates of Local 47 are supervisors within the meaning of Section 2(11). They further stipulated that, unless the Board finds that the 12 pilots are em- ployees, Local 47 has no employee members. The stipulation states that MMP and each of its Locals exist in whole or in part for the purpose of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours of employment, and conditions of employment; MMP and/or its Locals have and have had collective-bargaining agreements with employers; and, mem- bers of constituent Locals chartered by MMP attend membership meetings, vote in elections of officers, participate in the business which comes before membership meetings, pay dues, vote on collective- bargaining agreements negotiated by the Locals, and vote in such referenda as are conducted. The stipulation further states that AMW Locals 3 and 8 admit to membership employees within the meaning of the Act and exist for the purpose of dealing with employers con- cerning wages, hours, and other terms and conditions of employment; that they have and have had collective-bargaining agreements with employers; that members of these Locals participate in a substantial and meaningful manner in the affairs of the Locals; and, that partici- 5 The total AMW membership of 237 Includes the members of AMw Local 5 who, in 1959, numbered 54. In that year, Local 5 was reorganized by authorization of MMP and its membership dropped to 25 members At an undisclosed date , Local 5 became defunct. Taking this factor into account, the membership of the AMW locals at present would total I S3. 6 Neither the General Counsel nor MMP takes a position as to whether these 121 In- dividuals should be included as employee members of Local 3 INT'L ORGANIZATION OF MASTERS, MATES & PILOTS 1175 pation of members of constituent Locals in the affairs of MMP takes place in accordance with the provisions of MMP's constitution. B. Relevant provisions of MMP's constitution Article II, section 1(c) of the constitution provides that Locals of MMP shall be divided into nine districts, with each district embracing a particular jurisdiction. Section 2(d) then states that each district shall be under the supervision of one or two International vice presi- dents, "excepting the Associated Maritime Workers District which shall be under the supervision of the Associated Maritime Workers Vice President." Article XXV is creative of the Associated Maritime Workers Locals and makes eligible for membership any person em- ployed in the maritime industry not working under the authority of a license, i.e., nonofficer personnel, on the same basis as non-AMW Local personnel. Article VIII, section 1, recites that all authority of MMP is vested in the members thereof acting through their duly elected or appointed officers and delegates meeting in convention assembled. Section 2 reposes broad powers in such officers and delegates, including the power to charter Locals and revoke or suspend such charters; to hear and determine all appeals and grievances from the Locals or members; to enact laws and establish regulations governing MMP; and, to levy upon members such assessments and annual dues as they deem ad- visable. Article XXV, section 5, provides that, during the convention, AMW Locals are entitled to representation based on the average per capita paid to MMP during the preceding year; they may vote on all matters pertaining to their own class of work; and they may elect International officers. In addition, a delegate from the AMW Locals is elected as a vice president of MMP and may attend meetings of the MMP executive committee with a voice and vote on matters pertaining to his class of work. Pursuant to article XI, section 6, the MMP executive committee is empowered, in the biennial period between con- ventions, to exercise all the powers vested in the convention, including the power to recommend strike action in any dispute over which MMP has jurisdiction. In empowering the committee to make such recom- mendations, the article places no restriction upon the participation of the AMW vice president in such action. Before a strike may be called under that article, a majority of all members of MMP must vote in favor of the strike. For the purpose of dealing with employers with respect to wages, hours, and other conditions of employment, article XIX, section 1, creates an International negotiating committee composed of the presi- dent and secretary-treasurer of MMP, and "one representative from each of the concerned subordinate Locals who may send representa- :1176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tion." This committee has the sole authority to formulate, negotiate, renew, or revise all MMP agreements. Section 2 of said article pro- vides that Locals shall have the authority to negotiate agreements :affecting their locality and jurisdiction. However, these agreements must be made in the name of MMP, and no agreement may be signed .by a Local officer without first receiving the consent of MMP. Section 5 of article XI provides that two or more Locals may invoke a meeting of the executive committee, and no distinction is drawn between AMW or non-AMW Locals. Further, under articles III and IV, all Locals, without distinction, are subject to the same disciplines and standards of operation, and all members of MMP, without dis- tinction, are subject to similar rules and requirements respecting the acquisition and maintenance of membership. C. Disposition of remand In its remand, the court expressed the view that Section 2(5) re- quires the "substantial and meaningful participation of employees" in order to constitute an organization a "labor organization." It therefore directed the Board to make specific findings as to whether MMP includes, "in substantial number and proportion," persons who are employees, and whether such employees, if any, participate in MMP "in a substantial and meaningful manner." It further directed the Board to inquire whether the membership of Local 47 also includes employees in "substantial number or proportion" who participate in the Local and in MMP in a "substantial and meaningful manner." With respect to the inquiry regarding MMP, the record made on remand shows that MMP consists of approximately 11,000 members, and, of these, approximately 170 (or 291 if the 121 "nonregular mem- bers" are included) are concededly employees within the meaning of the Act who belong to AMW Locals 3 and 8. In terms of percentages, the employee-members of MMP constitute approximately 11/2 percent, or 21/2 percent (depending upon which of the above figures is used), of the total membership of MMP. The record further shows that the AMW Locals, pursuant to constitutional mandate, may and do elect delegates to the biennial conventions of MMP at which the basic or- ganizational decisions are made such as to grant or revoke the charters of Locals, to enact the laws and regulations which will govern the constituent Locals for the ensuing 2-year period, and to determine to what extent and in what amounts assessments and annual dues should be levied. In addition, the AMW delegates elect International officers as well as an AMW vice president who sits in the councils of the MMP executive committee and is empowered to vote on recom- mending strike action without regard to whether the dispute giving rise to the strike immediately involves the AMW Locals. Moreover, all members of MMP are entitled to vote on whether a strike should INT'L ORGANIZATION OF MASTERS, MATES & PILOTS 1177 be called. Furthermore, the members of the AMW Locals participate in collective bargaining in collaboration with the MMP and under its stewardship. In our opinion, the facts recited in the stipulation and the provisions of MMP's constitution amply demonstrate that the number of em- ployees who are members of the AMW Locals is not insubstantial in relation to the total membership of MMP, nor does their participation in the affairs of MMP lack substance or meaning. Indeed, if these Locals should become engaged in a labor dispute, they could jointly obtain a special meeting of the executive committee of MMP and procure strike authorization which could potentially affect a sub- stantial part of the industry in which the approximately 11,000 mem- bers of MMP are employed. Accordingly, we find, in answer to the question concerning the status of MMP posed on remand, that a sub- stantial number or proportion of employees participate in MMP in a substantial and meaningful manner. However, even were we to find that the number of employees in the AMIV Locals was not substantial, we would nevertheless, in re- spectful deference to the court, find that MMP is a labor organization within the meaning of Section 2(5) of the Act. That section defines a "labor organization" as- Any organization of any kind, or any agency or employee repre- sentation plan, in which employees participate and which exists for the purpose, in whole or in part, of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work. [Emphasis supplied.] Since its enactment, the Board has consistently construed this section to mean that, if "employees" are admitted to membership in a union which deals with employers concerning wages and other conditions of employment, the union is a "labor organization" despite the fact that it may also admit supervisors in substantial numbers.' This construction seems to us to be in harmony with the statutory language and underlying policy considerations, and has drawn the approval of at least three reviewing courts.' The predicate for this construc- tion lies in Section 7 of the Act, which invests employees with the right freely to choose their collective-bargaining representative to deal with their employer concerning their employment conditions. Nothing that we can discern in the legislative history of the Act forbids two or more employees to select an organization to conduct their collective bargaining simply because that organization is other- 7 See, e.g, Di Giorgio Wine Company, 87 NLRB 720; Graham Transportation Company, 124 NLRB 960 8 N L.R B. v. American Furnace Co., 158 F. 2d 376, 378 (C.A. 7) ; N.L R B. v. Edward G. Budd Manufacturing Co., 169 F. 2d 571 (C A. 6) ; National Marine Engineers Beneficial Association (Standard Oil Company), 274 F 2d 167 (C.A 2). 1178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD wise composed exclusively of supervisors. As the Sixth Circuit Court of Appeals pointed out in N.L.R.B. v. Edward G. Budd Mfg. Co.,' Although the definition [of labor organization in Section 2 (5) ] requires that employees participate in the organization in order to make it a labor organization, it does not require that the or- ganization be composed exclusively of employees. The fact that persons other than employees are members of a labor organiza- tion does not prevent a labor organization, which is otherwise qualified, from continuing to so function.... This view is recog- nized by the provision of the amendment providing that "nothing herein shall prohibit any individual employed as a supervisor from becoming or remaining a member of a labor organization, ..." even though the employer need not recognize them as em- ployees for purposes of collective bargaining. And, where a small group of employees select an organization com- posed of a substantial number of supervisors, and that organization undertakes to act in the manner and for the purposes set forth in Section 2(5), we believe that Congress intended that such organiza- tions constitute "labor organizations" and that both the benefits and the burdens of the Act extend to them. In National Marine Engi- neers Beneficial Association v. N.L.R.B. (Standard Oil Company),io a case involving the MMP, the Court of Appeals for the Second Cir- cuit observed that: ... the legislative history is far from being so definite or per- suasive as to justify our reading the Act, in a manner opposed to its plain language, so as to permit a union in which "employees participate" to engage in acts branded as unfair labor practices by § 8 (b) simply because the workers on whose behalf the union was acting are all supervisors. Accordingly, with due deference to the court, we adhere to the opinion expressed in our original decision in this proceeding and find that, as MMP admits to membership "employees" who are members of AMW Locals, MMP constitutes a "labor organization" within the meaning of the Act. Turning now to the status of Local 47, the stipulation recites that Local 47 has a total of 430 members, of whom approximately 12 are pilots. When compared to the total membership of about 11,000 in the MMP, the pilots in Local 47 comprise one-tenth of 1 percent of that membership. Hence, whether or not these pilots are supervisors or employees within the meaning of the Act, we would not characterize their number as "substantial." However, in our original decision, Local 47 was held responsible for engaging in illegal secondary mis- e Id. at 576. 10 See footnote 8, supra, at 173. W. T. GRANT COMPANY 1179 conduct as an agent of a "labor organization," namely, MMP. Such a holding is not at war with the decisions of the Court of Appeals for the District of Columbia, and is in accord with the pronouncements of other courts of appeals. In Di Giorgio Fruit Corporation v. N.L.R.B.,11 Judge Miller, in a dissenting opinion, held that a union, not itself a labor organization, might be held responsible under Sec- tion 8(b) as an "agent" of a labor organization. The majority of the court, finding no agency in fact, seemingly did not disagree with this view of the law. In the Standard Oil case, supra, the court found no statutory or decisional impediment to the Board's finding that a union may be held as an "agent" of a labor organization, where the fact of agency was shown. The court there stated (at 171) : We think the Board is right in construing §8 (b) as empowering it to fasten independent liability on an agent of a labor organiza- tion, whether this be an individual, a labor union or other entity, just as it could in the case of an employer. That is what the words say, the history relied on by petitioners does not alter them, and any basis for negative inference from the absence of corre- sponding words in § 8 (a) is removed by the presence of those words in the definition of "employer" in § 2(2). The record in the instant proceeding is replete with evidence which establishes that, while engaging in its illegal secondary picketing, Local 47 was acting as an agent in behalf of MMP. Based upon this evidence, which is extensively reported in his Intermediate Report, the Trial Examiner found that such agency relationship existed in fact. So far as appears, neither MMP nor Local 47 disputes this find- ing. Here, too, we adhere to our original decision, and find that Local 47 is responsible for the charged misconduct as an agent of MMP. MEMBER JENISINS took no part in the consideration of the above Supplemental Decision. n 191 F. 2d 642, 649 (C.A.D.C.). W. T. Grant Company and Retail Clerks Union Local 1116, Re- tail Clerks International Association, AFL-CIO. Case No. 18-CA-1514. October 24, 1963 DECISION AND ORDER On May 29, 1963, Trial Examiner Stanley Gilbert issued his Inter- mediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor 144 NLRB No. 109.