Transmarine Navigation Corp.

998 DECISIONS OF NATIONAL LABOR RELATIONS BOARD would now have but for the application of the superseniority provisions, without prejudice to their and other employees' seniority according to date of employment, and other rights and privileges; and make them whole for any loss sustained by reason of the discrimination against them, with interest at 6 percent, computation to be made in the customary manner.18 I shall further recommend that the Board order the Company to preserve and make available to the Board, upon request, payroll and other records to facilitate the checking of the amount of backpay due. As pointed out in Lundy,la the remedy should properly reflect the background or prelimitations period. While execution and maintenance of the agreement have not been found violative, the Company will be directed to cease and desist from enforc- ing or giving effect to the superseniority provisions of its agreement with the Union. Upon the basis of the above findings of fact and upon the entire record in the case, I make the following CONCLUSIONS OF LAW 1. International Chemical Workers Union, Local 427, is a labor organization within the meaning of Section 2(5) of the Act. 2. By enforcing, giving effect to, and applying strike superseniority provisions of its agreement with the Union, and by otherwise discriminating in regard to the hire, tenure, and conditions of employment of Pritchard, Thompson, and Whetstine, thereby discouraging membership in a labor organization and interfering with, restraining, and coercing employees in the rights guaranteed in Section 7 of the Act, the Company has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a) (3) and (1) of the Act. 3. The aforesaid labor practices are unfair labor practices affecting commerce, within the meaning of Section 2(6) and (7) of the Act. [Recommended Order omitted from publication ] 18 The Chase National Bank of the City of New York, San Juan, Puerto Rico, Branch, 65 NLRB 827; Crossett Lumber Company, 8 NLRB 440, Republic Steel Corporation v. N.L R B., 311 U S. 7; F W. Woolworth Company, 90 NLRB 289, 291-294; Isis Plumbing it Heating Co., 138 NLRB 716 10 Footnote 16, sups a, 1233-1234 Transmarine Navigation Corporation and Its Subsidiary , Inter- national Terminals, Inc. and American Federation of Guards, Local #1. Case No. 21-CA-5766. May 18, 1965 DECISION AND ORDER On November 17, 1964, Trial Examiner Eugene K. Kennedy issued his Decision in the above-entitled proceeding, finding that the Respond- ent had engaged in and was engaging in certain unfair labor practices within the meaning of the National Labor Relations Act, as amended, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Deci- sion. Thereafter, the Respondent filed exceptions to the Trial Exam- iner's Decision and a supporting brief. Pursuant to the provisions of Section 3 (b) of the Act, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Members Brown and Jenkins]. 152 NLRB No. 107. TRANSMARINE NAVIGATION CORPORATION, ETC. 999 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 Trial Examiner's Decision, the Respondent's exceptions and brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner with the following addition. In accordance with the limited remedy request of the General Coun- sel, the Trial Examiner recommended that the Respondent be required to make whole the employees involved from the date of the closing of the terminal, on or about November 1, 1963, until June 25, 1964, the date on which the Respondent offered, in writing, to bargain with the Union about any matter in dispute. The Trial Examiner relied in this connection on Jersey Farms Milk Service, Inc., 148 NLRB 1392. The Respondent contends that, in accord with the Jersey Farms deci- sion, it satisfied its obligation to bargain with the Union at an earlier date, namely, on October 30, 1963, prior to the termination of its employees on November 1, 1963, and that it therefore has no backpay obligation. This contention is based on the fact that Walker, the Union's business agent, telephoned Linn, the Respondent's vice presi- dent, on October 30, and asked whether the guards in question could be employed at the Long Beach operation, to which Linn replied that he had already made arrangements to hire another guard service. That was apparently the entire conversation. This telephone inquiry and answer fall short of constituting collective bargaining within the Act's meaning about the status of the terminated employees, and therefore does not warrant cutting off the Respondent's backpay obligation. And it is unlike the situation in Jersey Farms, where the employees and the Union did, in fact, meet for purposes of bargaining and, as the Board found there, discharged that duty.' Accordingly, in agreement with the Trial Examiner, we shall require the Respondent to make the affected employees whole from the closing of the terminal until June 25, 1964, the date on which it offered to bargain with the Union with respect to any matter in dispute. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby adopts as its Order the Recommended Order of the Trial Examiner, as modified herein, and orders that the Respondent, Transmarine Navigation Cor- 'The Respondent also adverts in its brief to a conversation with walker in November. while walker telephoned Linn during the last week of November, the record shows only that he asked if Linn was going to honor the collective-bargaining agreement. It does not reveal what the answer was. We find that this conversation, likewise, does not con- stitute bargaining within the meaning of the Act. 1000 DECISIONS OF NATIONAL LABOR RELATIONS BOARD poration and its Subsidiary, International Terminals, Inc., Los Angeles and San Francisco, California, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order, as so modified: Delete paragraph 1(f) from the Trial Examiner's Recommended Order, and the "note" paragraph from the Appendix attached thereto. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE A hearing in this matter was conducted before Trial Examiner Eugene K. Kennedy in Los Angeles, California, on August 6 and 7, 1964.1 In essence, the complaint alleges that Respondent, by unilaterally terminating the employment of six of its employees and moving its place of operation, failed to fulfill its statutory collective- bargaining obligation. Upon the entire record and my observation of the demeanor of the witnesses, and upon consideration of the briefs submitted by the General Counsel and Respondent, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT AND THE JURISDICTION OF THE BOARD Transmarine Navigation Corporation, herein called Transmarine, at all times material herein has been a California corporation with its principal offices in Los Angeles and San Francisco, California. It is engaged in the business of acting as freight agent, shipbroker, and steamship agent. International Terminals, Inc., herein called International, at all times material herein has been a California corporation with its principal office in Los Angeles, California, where it is engaged in the business of operating a steamship cargo terminal. At all times material herein, Max J. Linder has been president of Transmarine and International, owning 100 percent of the corporate stock of both corporations. During 1963 Transmarine performed services valued in excess of $400,000. Of this amount, $50,000 worth of services were performed for employers engaged in interstate and foreign commerce located in the States other than California. During 1963 International performed services valued in excess of $350,000, of which $50,000 worth were performed for employers in Los Angeles, California, said employers having sales of goods and materials valued in excess of $50,000 directly to customers located in States other than the State of California. At all times material herein, Transmarine and International are, and have been, a single employer engaged in commerce and in a business affecting commerce within the meaning of the Act .2 H. THE LABOR ORGANIZATION INVOLVED American Federation of Guards, Local No. 1, herein called the Union, is, and has been at all times material herein, a labor organization within the meaning of the Act. III. THE UNFAIR LABOR PRACTICES A. The appropriate unit and union majority On February 15, 1960, the Union was certified as a collective-bargaining repre- sentative of an appropriate unit described as follows: INCLUDED: All guards, as defined in the Labor-Management Relations Act of 1947, as amended, employed by Associated-Banning Company, Williams- Dimond & Company, International Terminals, Inc, Outer Harbor Dock & Wharf, Inc., Indies Terminal Corporation, Pope & Talbot, Inc., and Ocean Terminals who work in the sheds, on the docks or in adjacent cargo storage 1 The original charge was filed on February 7, 1964, followed by an amended charge on April 14 and a second amended charge on June 5, 1964 . The complaint was issued on June 12, 1964. 2 Transmarine and its subsidiary, International, at times herein will be designated Respondent. TRANSMARINE NAVIGATION CORPORATION, ETC. 1001 areas, and , in the case of Pope & Talbot, Inc., on vessels owned and operated by it, at the harbors of Los Angeles -Long Beach , California , and who have worked as such guards for said Employers a minimum of 400 hours in the pay- roll year ending Dec. 21, 1959. [Emphasis supplied.] EXCLUDED : All other employees of said Employers , including professional employees and supervisors as defined in the Act. The most recent collective -bargaining agreement in effect between Respondent and the Union became effective on June 30 , 1962, and expires on June 30 , 1965. This agreement covered guards in the employ of the signatory employers , including Respondent, in the Long Beach and Los Angeles area. It is found that the Union at all times herein, has been the representative of the employees in the above- described unit for the purposes of collective bargaining within the meaning of Sec- tion 9(a) of the Act. B. The events Respondent, prior to November 1963, was operating in the Los Angeles area and employed its guards directly through the Union. On or about September 5, 1963, Respondent executed a joint venture agreement with Jones Stevedoring and California Maritime, providing for operations in the Long Beach area, rather than Los Angeles. Lloyd Linn, the vice president of Inter- national, did not know what the needs for guards would be at the new facility when the joint venture agreement was executed. California Maritime and Respondent each had a 40 percent interest in the joint venture, and Jones Stevedoring, the remaining 20 percent. Prior to the formation of the joint venture, known as Sierra Terminals, the terminal facilities were occupied by a company known as Twin Harbors which had a contracting arrangement with New- ton Security Patrol to supply guards. The rates of pay received by employees pro- vided by Newton, along with the question as to whether the organization that repre- sented Newton employees had jurisdiction over the Long Beach facility, will be included in the factors considered in fashioning a remedy for the breach of Respond- ent's obligation to bargain with the Union as established by the events. As noted previously, on September 5, 1963, Respondent entered into an arrange- ment whereby it would move its operations from Los Angeles to Long Beach in connection with the formation of the joint venture known as Sierra Terminals. On October 24, 1963, the owner of Respondent, in a bulletin addressed to all employees labeled as a report of company activities, advised the employees that they would be terminated as employees of International and reemployed by Sierra Terminals in Long Beach. The bulletin also recited that this change would take place on Novem- ber 1, 1963. Copies of these bulletins were not distributed to the guards. On October 28, 1963, Vice President Linn, of International, wrote the following letter to the business manager of the Union: Mr. Curtis W. Walker, Business Manager American Federation of Guards, Local # 1 4157 West Fifth Street Los Angeles 5, California Dear Mr. Walker: We regret to inform you that on October 31, 1963, Inter- national Terminals, Inc., will cease business. Accordingly, on that date our agreement of June 30, 1962, will no longer be operative. We are sorry that this event will terminate the employment of the guards who are members of your organization. We are doing all possible to secure other employment for them. We take this opportunity to express our appreciation to you for your consideration and cooperation in this matter. Very truly yours, INTERNATIONAL TERMINALS, INC. (S) L.A.Linn, L.A. LINN, LAL/mm Vice President. C. Events relating to and status of Ernest McClintock McClintock was employed by Respondent in April 1961 as a guard. McClintock described himself and the other keymen who worked on the swing shift and the third shift, as a "kind of supervisor." The keymen's duties included following general instructions by Vice President Linn in calling the union hall when another guard was needed. Additional guards were required when cargo loading or unloading from 1002 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ships was taking place. The number of guards employed would vary because on occasion there would be no ships and, hence, not as much activity. According to the credited testimony of McClintock, three guards were the most employed at one time. Respondent had four keymen, hired by Linn, who worked on a permanent basis. Inasmuch as there were three shifts, the fourth keyman was required so that all the keymen would have 2 days a week when they would not be required to work McClintock was the keyman on the day shift. Normally McClintock and one other regular man were employed daytime and on rare occasions a third man was called in. On some occasions, the regular man, in addition to McClintock, would patrol an area where cargo was stored even though a ship was not loading or dis- charging cargo. On the occasions that McClintock would suggest an area for one of the other guards to patrol, it was in accoid with the general instructions given him by Vice President Linn. The only advantage enjoyed by McClintock over the other guards employed by Respondent was that he was guaranteed a certain number of hours of work per month. He received the same hourly wage, and did not have authority to hire except in the sense of calling the guard service for employees approved by Linn. He did not have the authority to fire or hire employees, or to effectively recommend hiring or firing. Consequently, it is found that McClintock is an employee and not a supervisor within the meaning of the Act.3 Vice President Linn, of International, testified that he regarded McClintock as a member of the unit covered by the collective-bargaining contract. As noted, McClin- tock was paid at the same rate as other guards. Hence, the characteristics by Linn that McClintock was in charge of the security operations and that he was a person possessed of unique judgment and experience do not affect the determination that McClintock was not a supervisor On September 15, 1963, Vice President Linn told McClintock that Respondent was thinking of closing its terminal in Los Angeles and of merging with companies in Long Beach. Linn asked McClintock to keep this confidential, and also asked McClintock if he would be interested in being the head of the security services with the new company. Nothing eventuated from Linn's attempts, if any, to have Sierra Terminals employ McClintock as their head security man About a week or 10 days later, McClintock was told by Linn to advise the guards they would be terminated on or about November 1, 1963. On this occasion McClintock was told by Linn that Sierra Terminals was going to use Newton Security Patrol at Long Beach for guard services. On or about October 15 Linn told McClintock that he would talk to Newton and see what could be done with respect to the employment of the guards employed by Respondent. At this time there were only the four keymen at Interna- tional The record does not establish the last working day of the other two regular guards. On or about October 17, 1963, after Linn spoke to Newton, at Linn's suggestion, McClintock spoke to Newton about employment of himself and other men at Long Beach. Newton offered McClintock and the other guards jobs at $1.82 an hour. McClintock was offered a job with Sierra Terminals but the other three keymen, as related by Newton, would have to work off the board, that is to be called in when needed. McClintock and the other guards declined Newton's offer of employment because at that time they were making $2 70 an hour as opposed to $1 82 offered by Newton. The four keymen employed by Respondent were Ernest McClintock, Russel Betterton, William Sheid, and Glen Isted Linn was advised of this decision by McClintock, and then McClintock and Betterton and possibly the other two keymen asked for letters of recommendation from Linn to be used in seeking other employment. In September 1963 McClintock told Walker, the secretary-treasurer of the Union, that there were rumors that the terminal was going to be closed. In the latter part of October, McClintock had an occasion to see Walker and at that time told him that the guards were going to he terminated On this occasion, in response to a ques- tion by McClintock, Walker stated that he had not received notice from Respondent concerning the termination of the guards at the Los Angeles facility. Respondent's first direct communication to Walker about moving the terminal and the termination of the guards was on October 28, 1963. The record reflects that prior to this conver- a At the hearing there was considerable testimony, in large part developed by Respond- ent, apparently aimed at establishing McClintock as a supervisor. In its brief, Respond- ent does not press this point but, on the other hand, maintains that, in effect, McClintock was an agent of the Union for the purposes of collective bargaining as he had the ostensible authority to represent the Union It is manifest that if McClintock was a supervisor, that collective bargaining between Respondent and its own supervisors would not be of the type contemplated by the Act Consequently, it is assumed that Respondent at least implicitly has conceded in its brief that McClintock was not a supervisor. TRANSMARINE NAVIGATION CORPORATION, ETC. 1003 sation there was some publicity with relation to the movement of Respondent to Long Beach. The record does not establish that these was any publicity concerning termination of the guards. Hence there is no basis for a finding that Walker was aware of Respondent's decision to terminate the guards prior to late October when he was so informed by McClintock. D. The asserted jurisdiction of Local 1 International Union of Guards and Watchmen It is Respondent's contention that theie is some basis for finding that Local 1, International Union of Guards and Watchmen had jurisdiction at the facility where Sierra Terminals operated. This contention is made although none of the joint venturers were operating at that location prior to the formation of the joint venture. There was however a company known as Twin Harbors that did operate there prior to the Sierra Terminals' using the facility, and this company utilized the services of Newton Security Patrol at this location. A Ralph Moody, whose occupation was secretary-treasurer of Local 1, Interna- tional Union of Guards and Watchmen since 1950, testified on this point. Newton is the only employer that this union had a contract with. The wage rate of $1.82 as contrasted with $2.70 received by the employees of the American Federation of Guards and, the fact that the International Union does not have any health or welfare plan as does the Union, demonstrate that the International Union of Guards has been far less successful in obtaining economic benefits for its members than the American Federation of Guards reterred to herein as the Union. It tollows that an offer of a job with Newton did not constitute an offer of comparable employment to the termi- nated guards. Moody's testimony reflects that on some occasions the American Federation of Guards claimed jurisdiction where his men were working and his men left. The record does not suggest that the opposite ever took place, that is, that the Union ever surrendered jurisdiction to Moody's organization. Further, the last time that this was a subject for discussion between Moody and any representative of the Union was in 1957. The record falls considerably short of establishing a custom where the Union would have jurisdiction in a location irrespective of the employer and the International Union of Guards would have the same privilege. It only appears to establish that on some occasions the International Union of Guards, which has a contract with only one employer, that is Newton, was required to relin- quish some work because of the claims by the Union. Moody admitted that, although Walker had been the business manager of the American Federation of Guards since 1960, the geographical jurisdiction question was never discussed.4 Even assuming the jurisdictional custom claimed by Respondent did exist, it would not operate to relieve Respondent from its obligation to bargain about the termination of the guards. E. Discussion and concluding findings The central fact establishing Respondent's failure to comply with the mandate of the Act is that it executed a contract obligating it to leave its place of business and become a minority party to a joint venture without consultation with the Union. The consequences of this action on the employment of the guards employed by Respond- ent at its Los Angeles facility, according to Vice President Linn, was not clearly known at the time of the execution of the contract. In any event, by the time the Union had received formal notification on October 28 in a letter from Linn, the joint venture had concluded a contractual arrangement with the Newton Security Patrol which obviated the necessity of the employment of guards directly by the joint venture Respondent contends that the Union is charged with the knowledge of the closing of the terminal and the discharge of the employees by reason of the fact that Vice President Linn told McClintock of this on or about October 1, 1963. Respondent relies on Motoresearcli Company and Kerns Corpoiation, 138 NLRB 1490, as author- ity for the proposition that knowledge communicated to the employees was imputable to the Union If so, Respondent argues, the Union waived its right to bargain about the closing of the terminal and the termination of the guards because it did not request such bargaining. The factual distinction in Motoresearcli Company is considerable. 4 At one point in his testimony, Moody says that the geographical arrangement for his members and the members of the Union has been in effect since 1960 He previously testified that the only people he had ever discussed this with were individuals named Anderson and Camp representing the Union. He testified that Camp died about 1956 and the last time that he saw Anderson was in 1957. 1004 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In that case a member of the union negotiating committee saw the Company moving equipment and, for a period of approximately 5 months after that, no mention was made by this member of the union negotiating committee or any other member even though it was evident that the removal of such equipment would have an effect upon the jobs of employees who were represented by the Union, and this question was not raised during 18 bargaining sessions after such notice. McClintock and the other keymen guards were employed without official or unofficial union office or capacity. The letter of Linn of October 28, 1963, reflects a belated recognition that the Union, as such, was entitled to notice about the closing of the terminal and hence the advice of Linn to McClintock about the closing of the terminal was apparently not regarded by Linn as the equivalent of notification to the Union. In any event, even assuming the knowldege of the union members with respect to the closing of the terminal and the termination of their jobs was imputable to the Union, such knowledge was available only after the Respondent had made a uni- lateral commitment to become a minority member of the joint venture, at which point bargaining would reasonably be regarded as futile by the Union. This action of Respondent manifestly is a violation of its obligation to bargain with the Union. Jersey Farms Milk Service, Inc., 148 NLRB 1392. Respondent urges that Linn's conversation with McClintock constituted bargaining with respect to the effect of closing the terminal on the union members. Its conten- tion is rejected as the record does not give any support to the premise that McClintock was placed in a position of ostensible authority to represent the Union. Walker, the union representative, undoubtedly regarded a request to bargain as a futile gesture concerning the decision of Respondent with respect to moving its facilities and the termination of the guards. He did seek to have Respondent offer equivalent employment to the displaced guards but without success. In shoat, when a union is advised of an employer's final decision with respect to a matter that should be bargained about, it is not incumbent on the union to make a useless request to bargain about something that has already been accomplished. Finally Respondent urges that the Union should have resorted to the grievance pro- cedure and that this is a proper method of disposing the controversy here presented. Section 10 of the collective-bargaining agreement in effect between the Union and Respondent reads as follows: SECTION 10 A committee of four, to be known as a "Joint Guards Committee" shall be appointed, two to be, selected by the Union and two by the Employer, such Committee to have authortiy to see that this Agreement is carried out faithfully by both parties and to adjust disputes. In considering formal motions, the Employers and the Union shall each have one vote. The decision of the Com- mittee shall be binding upon both parties. In the event the Committee fails to agree on any matter, it may be referred for decision to any disinterested person mutually acceptable to them. Should the members of the Committee fail to agree upon the disinterested person, they shall request the Director of the Con- ciliation Service of the United States Department of Labor to select such disin- terested person who shall be located within the geographical area covered by the scope of this Agreement. Any expenses in connection therewith and any other expenses incurred by order of the Committee shall be equally divided between the parties thereto. Nothing in this rule shall be construed to prevent the parties hereto from agreeing upon other means of deciding matters upon which there has been disagreement. It appears highly questionable that section 10 necessarily encompasses the subject matter of the dispute involved in this proceeding. In any event, neither the Employer nor the Union have invoked section 10 of the agreement and there is nothing in the agreement which suggests that the displaced guards might have a right to initiate the grievance procedure set forth in section 10. Under these circumstances, Respond- ent's contention that the lack of invoking section 10 provides it with a defense in this proceeding must be rejected as without merit. The William J. Burns International Detective Agency, Inc, 148 NLRB 1267. _ IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with the operations of Respondent described in section I, above, have a close, inti- mate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. TRANSMARINE NAVIGATION CORPORATION, ETC. 1005 V. THE REMEDY In framing a recommended order, the expression of the Board in the Jersey Farms case, supra, will be utilized as a guidepost. In that case the Board stated: "In fash- ioning our affirmative orders, we bear in mind that the remedy should be molded to the particular situation requiring redress." There are many similar factors in the Jersey Farms case that exist here reflected by the language of the Board following the above quotation. "Having scrutinized the record and weighed the particular facts and circumstances surrounding this case, including cumulatively (a) Respondent's earlier history of harmonious labor rela- tions with the Union; (b) the absence of any apparent antiunion motivation in the unilateral subcontracting; (c) the economic hardship both to Respondent and to third party interests that full restoration of the status quo ante would entail; and (d) Respondent's subsequent willingness to bargain with the Union about the sub- contract as detailed below, we agree with the finding of the Trial Examiner that an order to restore the status quo ante is inappropriate in this case." It is noteworthy in the case at hand, the General Counsel specifically disclaimed seeking a remedy restoring the status quo ante or giving employment to the displaced guards. The General Counsel further conceded that the economic reasons for mov- ing the terminal from Los Angeles to Long Beach were valid. This record would not support a finding that the reason for moving was at least, in part, motivated by a desire to avoid the contractual obligations on the part of Respondent with the Union. This record presents some special difficulties in framing a remedial order. The complaint alleges that six individuals were displaced by the action of Respondent in terminating its Los Angeles operations without bargaining with the Union. At the time of termination, the record establishes that Russel D. Betterton, Glen Isted, Ernest McClintock, and William H. Shied were the four keymen that were employed. The complaint alleges that a William M. Campbell and C. W. Gill were also wrong- fully terminated. There was no direct testimony establishing that these individuals were employed by Respondent. There is testimony by McClintock that Linn had authorized two individuals to be called and presumably these were the individuals characterized in the record as regular guards. Utilizing an approach paralleling rec- ommended orders in discriminatory discharge situations, it will be recommended that the guards regularly employed by Respondent as of September 5, 1963, shall be enti- tled to the remedial redress set forth below. A further difficulty that suggests itself in connection with a recommended order is that the joint venture, Sierra Terminals, as far as this record reflects, employed only two regular guards, whereas Respondent employed at least four and probably six. Since it is impossible to speculate retrospectively with any degree of certitude what would be the effect of bargaining with respect to the continued employment of the six individuals named in the complaint and who might be the individuals selected in the event, such bargaining was successful from the Union's viewpoint, it is consid- ered appropriate that Respondent bear the burden of offering redress to all employ- ees regularly employed as guards as of September 5, 1963. Consideration of the communications between Respondent's attorney and the attorney for the Union are factors which, together with the other circumstances present, are deemed relevant in making a recommended remedial order. On June 24, 1964, the attorney for the Union wrote to the attorney for the Respondent as follows: As you know our office represents the Union relative to the above captioned pending matter. If you have any thoughts regarding the possibility to work out a compromise settlement of this pending matter, then would you please contact me so that we may discuss the situation. On June 25, 1964, the attorney for Respondent wrote the following letter in response to the letter of June 24 from the Union's attorney: We will be pleased to discuss this matter with you at your convenience. It is noted that since your last communication with us your client has charged that Transmarine and International Terminals refuse to bargain about the mat- ters in dispute. In order to avoid any misunderstanding on this point, you should know that our clients are now and always have been willing to bargain about any matters in dispute. 1006 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Inasmuch as Respondent is a minority member of Sierra Terminals joint venture, it is apparent that no remedial order would be effective which would bind the entire joint venture. Consequently the question of reemployment or reinstatement of the guards need not be considered, particularly as the General Counsel has disclaimed that he is seeking such a result as part of the remedy. Under all the circumstances present in this case, it would appear to be an exercise in futility to recommend that the Respondent and the Union bargain concerning the shutting down of the termi- nal or the employment of guards It is noted that in Jersey Farins, supra, the Board utilized an arbitrary cutoff date for backpay even though the violation was not fully remedied It would seem that an adequate remedy here would be one that would provide the displaced employees for any loss of wages they may have suffered between the closing of the terminal and June 25, 1964, when Respondent offered to bargain with respect to any matter in dispute. In an ivmg at this conclusion several factors are borne in mind Absent Respondent's error in not negotiating the matter properly with the Union prior to its closing of its Los Angeles terminal, Respondent could have avoided any liability by complying with the mandate of the Act by engaging in good-faith bargaining. Even though the Union was successful in prevailing upon Respondent to induce the Sierra Terminals to employ guards directly, it would appear that only two would be employed regularly rather than the four or six employed by Respondent. Although it may be argued that Respondent's offer on June 25 to bargain concerning the closing of the terminal was belated to say the least, it cannot be assumed that this is necessarily a bad-faith offer as the Union did not, as far as this record goes, choose to accept the Respondent's offer to bargain concerning the question of Respondent, in effect, granting some severance pay. CONCLUSIONS OF LAW Upon the basis of the foregoing findings of fact and upon the entire record in this proceeding, I make the following conclusions of law. 1. Transmarine Navigation Corporation and its Subsidiary, International Termi- nals, Inc., designated Respondent herein, is an employer within the meaning of the Act. 2. American Federation of Guards, Local #1 is a labor organization within the meaning of the Act. B. By entering into an agreement with Jones Stevedoring and California Maritime on September 5, 1963, which affected the employment of the employees in the unit described below, without consultation or bargaining with the Union, Respondent has committed unfair labor practices violative of Section 8(a) (5) and 8(a) (1) of the Act. 4. At all times material herein, the Union has represented a majority of the employees in the unit described as follows: INCLUDED: All guards, as defined in the Labor-Management Relations Act of 1947, as amended, employed by Associated-Banning Company, Williams- Dimond & Company, Inteinational Terminals, Inc., Outer Harbor Dock & Wharf, Inc, and Ocean Terminals who work in the sheds, on the docks or in adjacent cargo storage areas, and, in the case of Pope & Talbot, Inc., on vessels owned and operated by it, at the harbors of Los Angeles-Long Beach, California, and who have worked as such guards for said Employers a minimum of 400 hours in the payroll year ending Dec. 21, 1959. [Emphasis supplied.] EXCLUDED- All other employees of said Employers, including professional employees and supervisors as defined in the Act. 5 The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law and upon the entire record in this case and pursuant to Section 10(c) of the National Labor Relations Act, as amended, it is recommended that Respondent, Transmarine Navi- gation Corporation and its subsidiary, International Terminals, Inc., Los Angeles and San Francisco, California, its officers, agents, successors, and assigns, shall take the following affirmative action which it is found will effectuate the policies of the Act; (a) Make whole Russel D. Betterton, Glen Isted, Ernest McClintock, and Wil- liam H. Sheid for any loss of pay suffered by them in the matter set forth in the section entitled "The Remedy." TRANSMARINE NAVIGATION CORPORATION, ETC. 1007 (b) Make whole William M. Campbell and C. W. Gill in the event these employ- ees were regular employees on the payroll of Respondent as of September 5, 1964, for any loss of pay suffered by them in the manner set forth in the section entitled "The Remedy." (c) Preserve- and, upon request , make available to the Board or its agents, for examination and copying, all payroll records , social security payment records, time- cards, personnel records and reports, and all records necessary to analyze the amount of backpay due under the terms of this Recommended Order. (d) Post at a place in Sierra Terminals , Long Beach , California, copies of the attached notice marked "Appendix." 6 Copies of said notice , to be furnished by the Regional Director for Region 21 shall , after having been signed by Respondent's representatives, be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, or in places where notices to employees are usually posted. Reasonable steps shall be taken to insure that all notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 21, in writing , within 20 days from the receipt of this Trial Examiner 's Decision, what steps Respondent has taken to comply therewith 7 (f) Respondent shall notify any of the above-named employees if presently serv- ing in the Armed Forces of the United States of their right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act of 1948 , as amended , after discharge from the Armed Forces It is further recommended that unless , within 20 days from the date of the receipt of this Trial Examiner 's Decision the Respondent notify said Regional Director that it will comply with the foregoing recommendations, the Board issue an order requir- ing Respondent to take the aforesaid action. 5 Any pay loss shall be computed according to the formula in F. W Woolwoi th Com- pany, 90 NLRB 289 , and Isis Plumbing & Heating Co, 138 NLRB 716. 81t this Recommended Order is adopted by the Board , the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner" in the notice If the Board ' s Order is enforced by a decree of a United States Court of Appeals , the notice will be further amended by the substitution of the words "a Decree of the United States Court of Appeals , Enforcing an Order " for the words "a Decision and Order " 7 If this Recommended Order is adopted by the Board , this provision shall be modified to read: "Notify the Regional Director for Region 21, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board , and in order to effectuate the policies of the National Labor Rela- tions Act, as amended, we hereby notify our employees that - THIS WILL NOTIFY our guard employees that in the future we will not make arrangements which will affect their employment without bargaining with their lawful representative , if they have one at such time. WE WILL make whole for any loss of wages our guard employees have suf- fered who were formerly employed at the Los Angeles Terminal in the manner set forth in the Decision. TRANSMARINE NAVIGATION CORPORATION, Employer. Dated------------------- By------------------------------------------- (Representative ) ( Title) INTERNATIONAL TERMINALS, INC., Employer. Dated------------------- By------------------------------------------- (Representative ) ( Title) 1008 DECISIONS OF NATIONAL LABOR RELATIONS BOARD NoTE.-We will notify any of the above-named employees if presently serving in the Armed Forces of the United States of their right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act of 1948, as amended, after discharge from the Armed Forces. This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. Employees may communicate directly with the Board's Regional Office, 849 South Broadway, Los Angeles, California, Telephone No. 688-5204, if they have any questions concerning this notice or compliance with its provisions. The Dade County, Florida, Tile, Marble and Terrazzo Contractors Association and its Agent, Anthony Scremin and Marble Pol- ishers, Machine Operators & Helpers, Local 121, AFL-CIO and Independent Terrazzo, Tile and Allied Trades Union L. M. Penzi & Son Tile Co., Inc. and Marble Polishers, Machine Operators & Helpers, Local 121, AFL-CIO and Independent Terrazzo, Tile and Allied Trades Union. Cases Nos. 12-CA- 2768-1, 12-CA-2952, 12-CA-2768-3, and 12-CA-2996. May 28, 1965 DECISION AND ORDER On February 15, 1965, Trial Examiner Lloyd Buchanan issued his Decision in the above-entitled proceedings, finding that the Respond- ents had not engaged in the unfair labor practices alleged in the com- plaint and recommending that the complaint be dismissed in its entirety. The General Counsel thereupon filed exceptions to the Trial Examiner's Decision and a brief in support thereof. Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with these cases to a three-member panel [Members Fanning, Brown, and Jenkins]. 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 Trial Examiner's Decision, the exceptions and brief, and the entire record in these cases, and hereby adopts the Trial Examiner's findings, con- clusions, and recommendations with the following additions and modifications. Like the Trial Examiner, we do not view the Paul-Rastatter con- versations regarding the position available with the Intervenor as suf- ficient evidence to warrant a conclusion that the Association has rendered or is rendering unlawful aid, assistance, or support to the Intervenor. The record demonstrates that Paul, attorney for the Asso- ciation, merely mentioned to Rastatter, during a casual conversation, that the Independent Union, according to his information, had an opening for a business agent. Paul gave Rastatter the name and 152 NLRB No. 105.