Eastern Steamship Lines, Inc.

458 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Eastern Steamship Lines, Inc. and International Longshoremen's Association, Local 1416, AFL-CIO. Case AO-96. October 25, 1966 ADVISORY OPINION This is a petition filed by International Longshoremen's Associa- tion, Local 1416, AFL-CIO, herein called the ILA, for an Advisory Opinion in conformity with Sections 102.98 and 102.99 of the National Labor Relations Board's Rules and Regulations, Series 8, as amended. On August 25,1966, the ILA filed an Addendum to Petition for Advis- ory Opinion. Thereafter, on August 29, Eastern Steamship Lines, Inc., herein called the Employer, filed a Response to Petition for Advisory Opinion. In pertinent part the petition, Addendum, and Response allege as follows : 1. In the injunction proceeding before the Circuit Court of the Eleventh Judicial District, in and for the County of Dade, Florida, the Employer sought to enjoin the ILA from picketing the Employ- er's places of business on the docks of Miami, Dade County, Florida, and at Port Everglades, Broward County, Florida. On May 20, 1966, the Honorable Gene Williams, judge of the State court, issued an injunction. 2. According to the ILA, the Employer, a Florida corporation, is a shipping agent, steamship agency, and/or stevedoring company engaged in furnishing interstate transportation services in the ports of Miami and Port Everglades where it is egaged in interstate and foreign commerce. Based upon the June 15, 1966, deposition of the Employer's vice president, T. F. Kane, the ILA alleges (a) that such services are furnished foreign flag ships, particularly the cruise ships, S.S. Ariadne and S.S. Bahama Star, owned respectively by an Ariadne Shipping Company, Ltd., a Liberian corporation, and Evan- geline Steamship Company S.A., a Panamanian corporation,' and (b) that such services include, but are not limited to, the employment of truckdrivers to deliver supplies to the two cruise vessels and the furnishing of shore or stevedoring gangs who repair the ships' life boats, perform carpentry and repair work on the ships, and handle the ships' lines and gangplanks. In addition, the Employer, as gen- eral agent, sells cruise tickets, purchases supplies and insurance, and furnishes all of the services required by the vessels in their operations. 3. During the 12 months prior to the institution of the injunction proceedings, the Employer's gross revenue from interstate transpor- I These two ships operate out of Miami and Port Everglades , Florida, and carry pas- sengers and cargo to and from the Bahama Islands. 161 NLRB No. 30. EASTERN STEAMSHIP LINES, INC. 459 tation services rendered to foreign flag ships exceeded $50,000, its direct and indirect out-of-State purchases of goods and materials exceeded $50,000, and its gross volume of business was in excess of $50,000. During the past 12-month period, the Employer, as general agent, purchased fuel for the two cruise ships in an amount exceeding $100,000 of which $22,069.73 was for fuel oil admittedly shipped from outside the State of Florida. In addition, the Employer sold in excess of $1 million in cruises or cruise tickets to passengers for travel on the two vessels. 4. The two foreign corporations, which own and operate the for- eign flag ships, S.S. Ariadne and S.S. Bahama Star, are engaged in foreign commerce between ports in Florida and the Bahama Islands and receive in excess of $50,000 annually from such commerce. 5. In its Response, the Employer requests that the petition be dis- missed on the ground that the issues herein may not appropriately be resolved by the Board's informal Advisory Opinion procedures. It generally disputes the dollar volume amounts of commerce alleged by the ILA in the petition as well as the sources of such amounts. The Employer also contends that the ILA has not adduced evidence that the Employer's gross revenues from the interstate transportation services furnished or its out-of-State purchases exceeded $50,000 dur- ing the past 12 months or that its operations otherwise meet the Board's dollar volume jurisdictional standards. Except for this broad general position disputing the commerce allegations for the failure of the ILA to adduce sufficient evidence in support thereof, the Employer itself has not specifically denied the dollar volume commerce allegations, nor has it affirmatively alleged what such dollar volumes are despite its peculiar knowledge thereof.2 However, the Employer specifically denies that it is "arguably engaged in a labor dispute with the ILA" and affirmatively asserts that the only dispute is between the ILA and the two foreign flag ship companies. In addi- tion, it denies that it is a shipping company, steamship agency, and/ ,or stevedoring company and asserts that it is only a general agent, primarily a ticket seller, for the two foreign flag vessels. But, the Employer has not denied that, as general agent, it furnishes gangs to perform miscellaneous work on and for the two cruise ships and that it utilizes its own trucking employees to deliver supplies purchased by it for such ships. 6. In the injunction order of May 20, 1966, the State court did not make any findings of fact regarding commerce and left open the dol- lar volume jurisdictional question. 2 See, e.g., the Employer, on p. 4 of its Response , states that "[n]owhere In the record is there evidence of what Eastern 's [gross] revenue might be." 460 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 7. There is no representation or unfair labor practice proceeding involving the same labor dispute pending before the Board. On the basis of the above, the Board is of the opinion that : 1. The Employer is a Florida corporation which, whether acting as general agent or otherwise, is a nonretail enterprise engaged in furnishing interstate transportation services to foreign flag ships operating in foreign commerce out of Miami and Port Everglades,. Florida. 2. The current standard for the assertion of jurisdiction over non- retail enterprises within the Board's statutory jurisdiction requires an annual minimum of $50,000 out-of-State inflow or outflow, direct or indirect. Siemons Mailing Service, 122 NLRB 81, 85, 88. The cur- rent standard for assertion of jurisdiction over passenger enterprises- engaged in the furnishing of interstate transportation services and all other transportation and other enterprises which function as essential links in such activity requires an-annual gross revenue of $50,000 derived from furnishing such services. HPO Service, Inc.,- 122 NLRB 394. 3. The owners and operators of the foreign flag vessels, S.S. Ariadne and S.S. Bahama Star, receive in excess of $50,000 annually from their operations in foreign commerce. Since the operations of these foreign companies are of the magnitude necessary for the asser- tion of jurisdiction over comparable nonexempt enterprises, the serv- ices performed by the Employer for their foreign flag ships may be- treated as indirect outflow in accordance with established Board poliCy.3 4. As indicated in paragraph 5 hereinabove, the Employer has failed squarely to deny the commerce allegations of the petition.4 Therefore, it is reasonable to assume, for purposes of this Advisory Opinion, that as alleged by the ILA, the Employer has furnished supplies and rendered services to the foreign flag ships, S.S. Ariadne- and S.S. Bahama Star in excess of $50,000 annually, of which $22,069.73 represented fuel oil which came from without the State of Florida. Accordingly, whether the Employer be viewed as a nonre- tail enterprise furnishing services to enterprises whose dollar volume of business satisfies the applicable jurisdictional standard, or as an essential link in the furnishing of passenger transportation services, it is apparent' that the Employer's operation satisfies the relevant tests for invoking the Board's jurisdiction. 5. The Employer also urges that the petition presents issues inap- propriate for, determination through• the Board's advisory procedures 3 See Local 1355, International Longshoremen's Association (Ocean Shipping Service, Ltd.) (Maryland Ship Ceiling Company, Inc.), 146 NLRB 723, 724, footnote 3, and cases cited therein'. A See Section 102.101 of the Board's Rules and Regulations. OVERNITE TRANSPORTATION COMPANY 461 because of the absence of an arguable labor dispute between it and the ILA and the asserted existence of a dispute with the foreign flag vessels. However, the incidence of such a dispute does not preclude the Board from rendering an Advisory Opinion with respect to the Employer herein. For while the Board does not presume to render an Advisory Opinion on the merits of any case or on the question of whether the subject matter of the controversy is governed by the Act,S such procedures may be utilized for determining other jurisdic- tional issues confronting it as here, i.e., whether the commerce opera- tions of the Employer are such that the Board would assert jurisdiction over them, assuming, without deciding, that the matter in controversy is cognizable under Sections 8, 9, and 10 of the Act. Accordingly, the parties are advised under Section 102.103 of the Board's Rules and Regulations, Series 8, as amended, that, on the allegations submitted herein, the Board would assert jurisdiction over the Employer's operations with respect to disputes cognizable under Sections 8, 9, and 10 of the Act. B See Section 101.40 ( e) of the Board 's Statements of Procedure ; Spear8-Dehner, Inc., 139 NLRB 922, 924; Upper Lakes Shipping, Ltd., 138 NLRB 221. Overnite Transportation Company and Carroll L. Matherly. Case 5-CA-3377. October 06, 1966 DECISION AND ORDER On July 20, 1966, Trial Examiner George Turitz issued his Deci- sion in the above-entitled proceeding, finding that Respondent had engaged in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. The Trial Examiner also found that the Respondent had not engaged in certain other unfair labor practices alleged in the complaint. Thereafter, the Respondent and the Charging Party filed exceptions to the Trial Examiner's Decision, and the Charging Party filed a supporting brief. 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 this case to a three-member panel [Chairman McCulloch and Members Fanning and Jenkins]. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial 161 NLRB No. 38.