Maritime Advancement Programs

348 DECISIONS OF NATIONAL LABOR RELATIONS BOARD upon increase , despite its last minute notice that the drivers were organizing , was not accomplished in such a way that it reasonably could be said to interfere with its employees' rights of self-organization and collective bargaining under the Act In this connection it also should be borne in mind that the March 26 increase was intended to be an across-the-board increase , covering all of the Respondent's employ- ees, not only the Respondent's 28 drivers and mechanics , but also 250 other produc- tion and maintenance employees as well. To have deprived these 250 employees of a previously planned wage increase because of the last-minute discovery that the 28 drivers and mechanics were organizing , as Attorney Humphreys advised Vice President Lay, might have subjected the Respondent to charges that it was interfering with the rights of these 250 production and maintenance employees. For the foregoing reasons I conclude that the Respondent has not violated Section 8(a) (1) of the Act by putting into effect its previously planned March 26, 1964, wage increase, and therefore has not engaged in such conduct as would render a free elec- tion impossible . See Derby Coal & Oil Co., Inc., et al., 139 NLRB 1485 , 1486; True Temper Corporation, 127 NLRB 839, 842-844; cf. C. J. Glascow Co., 148 NLRB 98. Accordingly , the Respondent was within its rights in awaiting the outcome of the election before recognizing and bargaining collectively with the Union as the repre- sentative of its drivers and mechanics Since the Union lost the election, the Respondent was under no obligation to bargain collectively with it, and the Respond- ent, therefore , has not refused to bargain collectively with the Union in violation of Section 8 ( a) (5) of the Act .4 RECOMMENDED ORDER It is ordered that the complaint herein be, and it is hereby, dismissed. * In view of the result which I have reached in this case, it is perhaps unnecessary for me to mention an alternative defense raised by the Respondent , namely, that the Union's request for bargaining related to a different unit from that found herein to be an appropriate unit and one which was inappropriate for collective -bargaining purposes However, since the Board may disagree with my conclusion herein, it may be helpful to state my views regarding this contention Assuming, as contended by the Respond- ent, that a unit of 25 drivers alone is not appropriate for the purposes of collective bargaining and that upon the facts of this case the 3 mechanics who work on the trucks and occasionally substitute for the drivers must be included in the unit with the drivers, nevertheless , I conclude that a request for bargaining as to a unit of drivers alone is not such a substantial variance from a request for bargaining upon behalf of the unit herein found appropriate ( consisting of 25 drivers and 3 mechanics ) as would excuse the Respondent from bargaining collectively with the Union. See The Lone Star Com- pany, 149 NLRB 688 , and cases therein cited. Maritime Advancement Programs and Office Employes Interna- tional Union, Local 153, AFL-CIO, Petitioner. Case No. 2-RC- 13596. May 3,1965 DECISION ON REVIEW AND DIRECTION OF ELECTION On September 23, 1964, the Regional Director for Region 2 issued a Decision and Order in the above -entitled proceeding, dismissing the petition on the basis of his finding that the operations of the Employer, a nonprofit organization , are noncommercial in character and that it would not effectuate the purposes of the National Labor Relations Act, as amended , to assert the National Labor Relations Board's jurisdic- tion . Thereafter, the Petitioner, 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 asserting that the Regional Director departed from officially reported Board precedent. 152 NLRB No. 34. MARITIME ADVANCEMENT PROGRAMS 349 The Employer filed timely opposition to the request for review. By telegraphic order dated November 30, 1964, the Board granted the request for review. Thereafter, the Employer and the Petitioner filed briefs. The Board 1 has considered the request for review, the opposition thereto, the briefs of the parties, and the entire record in this case with respect to the Regional Director's determination under review, and makes the following findings : 1. The Employer, which has offices at 17 Battery Place, New York City, New York, is a nonprofit organization engaged in the administra- tion of a trust fund. The Employer was established under an agreement and declaration of plan executed September 1, 1958, between certain trustees, officials of the American Maritime Association, and various steamship companies, members of the Association, also re- ferred to collectively in the agreement as "Atlantic and Gulf Contract Companies" and herein called the companies. The record indicates that the agreement was entered into as a result of collective-bargaining negotiations between such companies and the Seafarers International Union of North America-Atlantic, Gulf, Lakes and Inland Waters District, AFL-CIO, and the constituent unions comprising said dis- trict, hereinafter referred to as the SIU. The agreement provides that the plan, the Employer herein, shall continue in effect for a period coterminous with that of the collective-bargaining agreements between the SIU and the companies. Pursuant to the agreement, as amended, the Employer shall continue in existence until September 20, 1965, and at expiration the companies shall decide on disposition of remaining funds or on whether or not to extend the Employer's existence. The agreement provides that the companies shall contribute and pay to the trustees for the administration and operation of the Employer 60 cents per day of employment for each of their employees covered by their collective-bargaining agreements with the SIU. In the selection of trustees of the Employer, each company is entitled to cast one vote for each unlicensed seaman, represented by the SIU, it would employ at the time of subscribing to the agreement and thereafter on July 1 of each year, if all vessels manned by it had a full complement employed thereon. The purposes for which the Employer was created and its fund were to be applied, as set forth in the agreement, are : to evolve, execute and supervise programs looking to the develop- ment and improvement, both theoretical and practical, of the skill and efficiency of unlicensed seamen, employed or to be employed by them [the companies] on their vessels; to evolve, execute and '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 McCulloch and Members Fanning and Brown]. 350 DECISIONS OF NATIONAL LABOR RELATIONS BOARD supervise programs and ideas calculated to increase the efficiency and uniformity of the operation of said vessels; and to evolve, execute and supervise programs and ideas looking to the develop- ment and maintenance of a skilled pool of employees. To effectuate such purposes, the Employer initiated and now carries on 10 programs. Briefly outlined, they are: (1) the scholarship pro- gram, which each year awards to five seamen, or their dependents, scholarships to accredited colleges or universities, each worth $6,000 over a 4-year period; (2) the seamen's training school program, which provides training schools in various parts of the country, to train inex- perienced individuals to become able-bodied seamen; (3) the upgrad- ing and recertification program, which trains seamen to improve their skills and to qualify for better jobs in the industry; (4) the license training program, which assists seamen to become ships officers; 2 (5) and (6) the food and ship sanitation and the safety programs, which provide inspectors and instructors who periodically inspect facilities on board vessels of members, make recommendations to ship-owners, and educate ship personnel; (7) the special services program, which furnishes advice to seamen on such matters as taxes, social security, unemployment, and welfare benefits; (8) the seamen's loan program, which offers noninterest bearing loans to unemployed seamen and to seamen enrolled in any of the educational progrems; (9) the motion picture and TV program, which provides free TV sets and motion pic- tures for seamen in hospitals in various ports; and (10) the unemploy- ment benefits program, which subsidizes coffeeshops and restaurants and provides on-the-job training, free food, and temporary housing for student seamen. It is well established that the nonprofit status of an organization is not the controlling consideration in determining whether to assert jurisdiction.3 Although the Act specifically excludes from the term "employer" only one type of nonprofit organization, that of hospitals, the Board has used as a guide, in determining whether to assert juris- diction over other nonprofit organizations, the test of whether they were engaged in activities which were "commercial in the generally accepted sense." 4 Accordingly, we shall apply this test herein. Although some of the above-outlined programs are educational and others may, in one aspect, be viewed as charitable in nature, we are persuaded from our interpretation of the agreement, and from the entire record in this case, that the Employer's programs are but the means adopted by it to achieve the purpose for which it was created. 2 In connection with the above four programs , it may be noted that the agreement provides that the Employer may recommend to the Seafarers ' Appeals Board that those who satisfactorily complete any course of instruction provided by the Employer , be given, on a class basis, a higher seniority or priority in referrals or other analogous reward therefor, within the competence of the Seafarers' Appeal Board. " Woods Hole Oceanographic Institution , 143 NLRB 568. See Sheltered Workshops of San Diego , Inc., 126 NLRB 961, 963. MARITIME ADVANCEMENT PROGRAMS 351 It is clear, and we find, that such purposes are commercial in charac- ter. In reaching this conclusion we rely on the fact that the Employer came into being as a result of collective-bargaining negotiations between the SIU and the companies, those members of the Association operating vessels on the Gulf of Mexico and the Atlantic coast whose employees are represented by the SIU, and that the purposes of the Employer's programs, as indicated in the agreement itself, are to improve the skills and efficiency of employees covered by the SIU's collective-bargaining contracts with the companies, to increase the effi- ciency and uniformity in the operation of the companies' vessels, and to build up a pool of skilled seamen for the benefit of the companies. Indeed, viewed in terms of the Employer's stated objectives, and in the context of collective bargaining on which its continued existence depends, the benefits provided by the Employer may be characterized as fringe benefits, typical of those negotiated for employees employed in commercial enterprises." We conclude, therefore, that the Employer only incidentally promotes educational and charitable objectives and that its activities are principally directed to the end of promoting, and are intimately connected with, the commercial activities of the com- panies under contract with the SIU 6 Accordingly, we find that the Employer is engaged in commerce, and as it furnishes services valued in excess of $50,000 per annum in various ports throughout the United States, that it will effectuate the purposes of the Act to assert jurisdiction herein? 2. The labor organization involved claims to represent certain employees of the Employer. 3. A question affecting commerce exists concerning the representa- tion of employees of the Employer within the meaning of Section 9(c) (1) and Section 2(6) and (7) of the Act. 4. In agreement with the stipulation of the parties, the following employees constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: All office clerical and office employees employed by the Employer at 17 Battery Place, New York City, New York, excluding all instructors, watchmen, guards, and supervisors, as defined in the Act. [Text of Direction of Election omitted from publication.] 5 The agreement provides that at its expiration and in the event the companies decide not to extend it, the Employer 's trustees shall continue to operate with existing funds until they are too small to warrant the continuation of its programs, in which event the trustees shall turn over the balance to a seamen's charity or charities, as they shall determine . We do not consider this provision as constituting the Employer a charitable organization . The Employer has made no contributions , as such, to any organized charity. 9 See Woods Hole Oceanographic Institution, supra; and Henry Ford Trade School, 58 NLRB 1535. 7 Siemons Marling Service, 122 NLRB 81.