Employees Negotiating Committee

754 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Employees Negotiating Committee ; Bennie Barker, Robert Glud, Raymond Grange, and Edward Schrock and Western Boat Operators, Inc. Case 19-CP-119 June 30, 1969 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND ZAGORIA Upon charges filed by Western Boat Operators, Inc. (herein called Western Boat), the General Counsel of the National Labor Relations Board, by the Regional Director for Region 19, issued a complaint dated August 12, 1968, against Employees Negotiating Committee; Bennie Barker, Robert Glud, Raymond Grange, and Edward Schrock (referred to herein as Respondents), alleging that Respondents had engaged in and are engaging in unfair labor practices affecting commerce within the meaning of Section 8(b)(7)(B) of the National Labor Relations Act, as amended. Copies of the charge, complaint, and notice of hearing were duly served on Western Boat and Respondents. With respect to the unfair labor practices, the complaint alleges in substance , that, commencing on or about July 18, 1968, Respondents have demanded that Western Boat recognize and bargain with them concerning conditions of employment, as representative of Western Boat's employees, and that on or about July 26, 1968, Respondents picketed Western Boat at its various facilities in Alaska, all within 12 months of the conduct of a valid election pursuant to Section 9(c) of the Act, thereby engaging in unfair labor practices within the meaning of Section 8(b)(7)(B) of the Act.' On November 22, 1968, the parties to this proceeding entered into a Stipulation' in which they waived a hearing before a Trial Examiner, the making and finding of facts and conclusions of law by a Trial Examiner, and the issuance of a Trial Examiner's Decision, and agreed to submit the case for findings of fact, conclusions of law, and order directly to the Board. The parties stipulated to certain facts and agreed that the stipulation and the formal papers in the instant case, and the entire record in the Civil Case A-95-68, held pursuant to a petition filed by the Acting Regional Director under Section 10(1) of the Act in the United States 'This section provides in relevant part that "(b) It shall be an unfair labor practice for a labor organization or its agents - (7) to picket or cause to be picketed, or threaten to picket or cause to be picketed, any employer where an object thereof is forcing or requiring an employer to recognize or bargain with a labor organization as the representative of his employees (b) where within the preceding twelve months a valid election under section 9(c) of this Act has been conducted 'The Respondent and Western Boat signed the stipulation on November 18, and the General Counsel on November 22, 1968. District Court in the District of Alaska, constitute the entire record in this proceeding. By Order of the Board dated December 16, 1968, the parties' stipulation was approved and made part of the record herein; this proceeding was transferred to the Board; and permission was granted to the parties to file briefs. Thereafter, the General Counsel and Respondents filed briefs. The General Counsel also filed a reply brief. Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel. Upon the basis of the stipulation, the briefs of General Counsel and Respondents, and the entire record in this case, the Board makes the following: FINDINGS OF FACT I. THE BUSINESS OF THE CHARGING PARTY The Charging Party, Western Boat, is, and has been at all times material herein, a corporation duly organized and existing by virtue of the laws of the State of Texas. Western Boat is engaged in hauling supplies and equipment for oil drilling rigs located along the West Coast of the United States and Canada, and operates approximately five vessels in Cook Inlet, Alaska, and nearby areas, performing services of hauling supplies and equipment between oil drilling rigs located in Cook Inlet and shoreside docks for three oil companies. 11. JURISDICTION It was stipulated and agreed that during the past year Western Boat purchased and received at its Alaska facilities material and supplies shipped to it from sources outside the State of Alaska in excess of $50,000. The parties stipulated, and we find, that Western Boat is engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and we conclude that it will effectuate the policies of the Act to assert jurisdiction herein. III. THE UNFAIR LABOR PRACTICES The unfair labor practices alleged in the complaint are related to the following events: 1. On or about October 23, 1967, Inland Boatmen' s Union of the Pacific Puget Sound Division, SIU of NA, AFL-CIO, hereinafter referred to as IBU, filed a petition with the Board for an election among employees of Western Boat at its Alaska operations, said petition having been designated as Case 19-RC-4630 by the Board. By Decision and Direction of Election issued by the Acting Regional Director of Region 19 of the Board on December 27, 1967, in Case 19-RC-4630, the following unit of employees of Western Boat was found to constitute an appropriate unit for purposes of collective bargaining within the meaning of Section 9(b) of the Act: 177 NLRB No. 110 EMPLOYEES NEGOTIATING COMMITTEE All employees of Western Boat employed on floating equipment operating in Alaska waters, excluding shoreside personnel, office clerical employees, professional employees, guards, and supervisors as defined in the Act. On or about June 10, 1968, the then Acting Regional Director for Region 19 issued a certification of results in Case 19-RC-4630 based upon an election conducted pursuant to said petition. The certification of results showed that no labor organization won a majority in the election.' 2. On or about July 18, 1968, the four individual Respondents signed a letter directed to Western Boat stating that the four employees had been "designated to represent the employees of your company" and requested a meeting on July 23, 1968, to discuss the following items: (1) Vessel Classification; (2) Manning of Vessels; (3) Wages; and, (4) Health, Welfare, and Retirement (employees and dependents). Max Shores, vice president of Western Boat, by wire, on July 22, 1968, replied to this letter, stating that because of such short notice a meeting could not be held on July 23, but that a later meeting could be arranged. Three individual Respondents, Benny Barker, Bud Glud, and Ed Schrock acknowledged by wire (dated July 23), Shores' telegram , and requested a meeting no later than Friday noon July 26 . On July 26, 1968, Shores met with three of the Respondents," all members of the crew of Western Boat's vessel, the Big Tide. Shores informed these three that if they represented the IBU, or if they were acting as the representatives of all the employees he could not talk to them and further that he doubted that they represented all of the employees, but he would discuss matters with them individually. Upon being informed of this Respondent Bennie Barker, who Shores states acted as spokesman for the Committee, ended the meeting by stating "We don't have anything to talk about." The same day, almost immediately after the meeting was held , the three employees started picketing, carrying placards containing the following legend: "Western Boat Operators , Inc. Employees on strike." Issues Raised by the Pleadings 1. Whether the Respondents constituted a labor organization within the meaning of Section 2(5) of the Act.' 2. Whether the picketing engaged in by the The election resulted in a tie vote. No objections having been filed, the certification by Regional Director became final and the proceeding thereupon closed pursuant to the provisions of sec . 102.67 (g), Rules and Regulations, Series 8 , as amended. Glud, Barker, and Schrock. 'Sec. 2(5) of the Act defines a labor organization as follows : "The term 'labor organization' means any organization of any kind , or any agency employee representation committee or plan, in which employees participate or 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" 755 striking employees was of the nature proscribed by Section 8(b)(7)(B) of the Act. The undenied testimony of employee witnesses, Glud, Schrock, Grange, Barker, and Sparks clearly establishes that these employees, individually or together with other employees had, as far back as October 1967, and continuing up to July 26, 1968, requested various officials of Western Boat, such as Max L. Shores, vice president and area manager, Callahan, port captain, Smith, and Hogue, its office manager, and others, for additional crewmembers on the vessels, comparable to the practices of other vessel owners operating in the area, for wages comparable to the wages prevailing in the area for similar work, for relief from long continuous hours of work at sea,' without any days off with pay, and for the remedying of hazardous conditions while unloading at the platform of the oil drilling rigs at sea. Western Boat officials did not respond to all these requests until sometime in January 1968, when a group of the employees approached Shores and Hogue about wage increases and were informed by Shores and Hogue that no pay raises could be given at that time because of the pending union election, but that the employees could look forward to some time off with pay and a substantial raise. The record establishes that these requests by the employees to Western Boat' s management officials for increases in wages and improvement of working conditions, such as the addition of another man to the crews, were practically continuous, with little or no results. On or about July 18, three members of the crew of the motor vessel Big Tide, which was docked at one of Western Boat's facilities, decided, in view of the general dissatisfaction of Western Boat's employees as to wages and working conditions, to appoint themselves as a group to act as spokesman for all the employees. On July 18 the aforementioned three employees and employee Grange signed and sent the following letter to Max Shores: We the undersigned men have been designated to represent the employees of your company employed on your vessels operating in the Cook Inlet Area. We would like to discuss the following items: 1. Vessel Classification 2. Manning of Vessels 3. Wages 4. Health, Welfare & Retirement (employees and dependents). We request a meeting with you on Tuesday, July 23, 1968. If this date conflicts with your schedule, please inform us of another date within reason. `Robert Glud, who was captain of Western Boat 's supply vessel Big Tide until July 26, testified that with a four-man crew such crews, were required to work around the clock in loading and unloading supplies at the oil rigs with no relief and, upon returning to Western Boat's facilities to reload and return to the rig without any days off with pay . Also, the employees often worked 20, 30, and 40 days in a row 756 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In reply to this letter, Shores, by wire to Glud, acknowledged the letter, but because of such short notice suggested a meeting at a later date and stated in the telegram that he "would be happy to meet with our employees on any subject at any time." To this telegram, Barker, Glud, and Schrock sent a reply requesting a meeting no "later than Friday noon, July 26, 1968." On July 26, about 11 a.m., Shores and Callahan appeared at the dock in Port Nikiski, adjacent to Western Boat's facility, at which place the Big Tide, and behind it, the Karl Tide, were berthed. On the Big Tide at such time were three members of the Big Tide crew, Glud, Barker, and Schrock. Shores informed these three employees that he would not want to discuss wages or work conditions with them either as a group representing the employees, as he did not believe they represented all the employees, or as representatives of the IBU, but stated he would discuss such matters with each individually. Glud informed Shores that they did not represent the IBU and if he didn't want to talk about wages or work conditions there was nothing left to talk about. Shores and Callahan thereupon left stating they were going over to the Karl Tide but did not do so.' The record discloses that after Shores and Callahan left the Big Tide, Barker, Glud, and Schrock decided to make picket signs as previously described herein, and started picketing at the head of Western Boat's dock at Port Nikiski. In the meantime, all of the crews on the other vessels of Western Boat, which were at sea, were informed by the Big Tide crew, via ship-to-shore radio, of the strike and picketing. All of Western Boat's vessels reached Port Nikiski before approximately 5 p.m. on the same day, July 26, and the crews of these boats joined the strike. After the start of the strike on July 26, employees Glud, Barker, and Schrock sent a telegram, in which they designated themselves as "Employees Negotiating Committee," to Shores wherein they offered to end the strike and picketing if they were given "written assurance you [Shores] will pay total package earnings equal to that now under negotiations by the other companies in Cook Inlet. . . .- Shores and Callahan returned to the dock about 5 or 5:30 p.m. and noted that additional employees were picketing. They visited each of the crews and asked if the men were going to work and upon receiving negative answers they ordered the crews to take their vessels to the port of Seldovia, about 60 miles from Port Nikiski. The crews of the various vessels took the vessels to Seldovia and continued their strike and picketing at Seldovia until August 19, 1968. In order for us to conclude that the picketing here 'The above summary is based upon the testimony of employees Glud, Barker, and Schrock involved was violative of Section 8(b)(7)(B), all of the following elements must be shown as to have existed at the time of the picketing: (1) the picketing was carried on by a labor organization or its agents; (2) an object of the picketing was to force the Employer "to recognize or bargain with a labor organization;" and, (3) the picketing occurred within 12 months of a valid election. On the facts of this case, as recited above, we are satisfied that all of these elements are sufficiently established. It is not disputed that the picketing here involved occurred within 12 months of the election which was conducted in Case 19-RC-4630. We find no merit in Respondents' contention that that election was not a valid one under Section 9(c) of the Act. Respondents rest their contention on the claim that the Employer (Western Boat) engaged in certain activity during the preelection period that was calculated to restrain and coerce employees to vote against union representation. However, no objections were ever filed to the election, nor were any unfair labor practices ever charged by the Respondents or any individual or other labor organization with respect to the alleged conduct. In these circumstances, and particularly in the absence of any timely challenge to the certification of results issued by the Acting Regional Director in Case 19-RC-4630, the validity of the election is not now properly questioned. See Section 102.69 of the Board's Rules and Regulations. Although Respondents contend otherwise, the record amply supports a finding that Respondents' "Employees Negotiating Committee" constituted a labor organization within the meaning of Section 2(5) of the Act, and that the individual Respondents, Bennie Barker, Robert Glud, Raymond Grange, and Edward Schrock, were agents of such organization. It is well settled that an employee group or committee may constitute a labor organization within the statutory definition even though it is informally organized and lacks certain attributes of a more typical labor union, such as officers, a constitution, and bylaws, or requirements for payment of dues. See, e.g., N.L.R.B. v. Kennametal, Inc., 80 NLRB 1481, enfd. 182 F.2d 817 (C.A. 3). The important test is not the form of the employee organization but its purpose. In the instant case, it is clear that the employee committee or group, which was later denominated Employees Negotiating Committee, was formed by the individual Respondents for the purpose of representing all the Company's employees and dealing collectively for them with the Company with respect to wages and conditions of work. This, we believe, is evident without more from the letter dated July 18, 1968, directed by the individual Respondents to the Company, wherein they declared that they had "been designated to represent the employees of your company" and were therefore requesting a meeting to discuss the broad range of items concerning wages and working conditions EMPLOYEES NEGOTIATING COMMITTEE specified in that letter. That Respondents were acting, not as individuals in their own behalf, but as an employee agency or representation committee is further evident from the fact that when the Company declined to recognize Respondents as a .committee entitled to represent its employees collectively, and to deal with them on that basis, Respondents almost immediately thereafter, instituted the strike and picketing here involved. It would ignore the clear language of Section 2(5) to hold in these circumstances that Respondents were not acting as a labor organization within the statutory definition. Finally, we reject as without merit Respondents' contention that the picketing had no recognitional aim whatever, but that its only object was to protest the Employer' s alleged failure to pay prevailing wages and meet prevailing working conditions in the area. The facts of this case are clearly to the contrary. Thus, Respondents' letter of July 18, 1968, requesting the Employer to meet with them as the employees "designated" representative; the action of Respondents in instituting a strike and picketing in support of their demands immediately following the Employer's refusal to recognize and deal with them as representative of its employees; and the very name selected by Respondents - "Employees Negotiating Committee" - alldemonstrate an intent on Respondents' part to gain recognition for the purpose of negotiating terms and conditions of employment. Our finding that the picketing was directed at this objective is buttressed by the telegram which the Committee addressed to the Employer after the start of the strike. In it the Committee offered to terminate the strike and picketing provided it was given "written assurance" - in effect a contract - that the Company would "pay total package earnings equal to that now under negotiations by other companies . . ." On these facts, we think it clear that the picketing constituted an effort on Respondents' part to force recognition and bargaining within the purview of Section 8(b)(7). We conclude, upon the entire record, that Respondents did constitute a "labor organization or its agents," and that an object of Respondents' picketing was to force or require Western Boat to recognize and bargain with Respondents in that capacity. We find, accordingly, that by engaging in such picketing within 12 months of a valid election Respondents violated Section 8(b)(7)(B) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICE UPON COMMERCE The activities of the Respondents, set forth above, occurring in connection with the operations of the Employer, also set forth above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening commerce and the free flow thereof. V. THE REMEDY 757 Having found that the Respondents, Employees Negotiating Committee; Bennie Barker, Robert Glud, Raymond Grange, and Edward Schrock, have engaged in activities violative of Section 8(b)(7)(B), of the Act we shall order that they cease and desist therefrom and take certain affirmative action. CONCLUSIONS OF LAW 1. Employees Negotiating Committee is a labor organization within the meaning of Section 2(5) of the Act. 2. Bennie Barker, Robert Glud, Raymond Grange, and Edward Schrock are agents of the above-named labor organization within the meaning of Section 8(b) of the Act. 3. The above-named labor organization and Bennie Barker, Robert Glud, Raymond Grange, and Edward Schrock have engaged in unfair labor practices within the meaning of Section 8(b)(7)(B) of the Act by picketing Western Boat Operators' premises for the purposes of forcing their employer, Western Boat Operators, to recognize and bargain in a manner proscribed by Section 8(b)(7)(B). 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. ORDER Upon the entire record in this case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that Respondent, Employees Negotiating Committee and its Agents Bennie Barker, Robert Glud, Raymond Grange, and Edward Schrock, shall: 1. Cease and desist from picketing or causing to be picketed Western Boat Operators, Inc., where an object thereof is forcing or requiring said Company to recognize and bargain with it as representative of said Company's employees in violation of Section 8(b)(7) (B). 2. Take the following affirmative action which we find will effectuate the policies of the Act: (a) Copies of the attached notice marked "Appendix" on forms provided by the Regional Director for Region 19 shall be signed by Employees Negotiating Committee; Bennie Barker, Robert Glud, Raymond Grange, and Edward Schrock. (b) Mail or deliver to the Regional Director the signed copies of the attached notice for posting by Western Boat Operators, Inc., if it so desires. In the event Western Boat Operators, Inc., elects to post such notices, they shall be posted immediately upon receipt thereof and maintained by it for 60 consecutive days thereafter in conspicuous places, including all places where notices to employees are 758 DECISIONS OF NATIONAL LABOR RELATIONS BOARD customarily posted . Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director , in writing, within 10 days from the date of this Order, what steps have been taken to comply herewith. APPENDIX NOTICE TO ALL MEMBERS Pursuant to a Decision and Order of the National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our members that: WE WILL NOT picket or cause to be picketed Western Boat Operators, Inc., where an object thereof is forcing or requiring said Company to recognize or bargain with us as the representative of their employees in violation of Section 8(b)(7)(B) of the National Labor Relations Act, as amended. EMPLOYEES COMMITTEE NEGOTIATING (Labor Organization) Dated By Bennie Barker (Agent) Dated By Robert Glud (Agent) Dated By Raymond Grange (Agent) Dated By Edward Schrock (Agent) 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. If members have any question concerning this notice or :ompliance with its provisions, they may communicate directly with the Board' s Regional Office, Republic Building, 10th Floor, 1511 Third Avenue, Seattle, Washington 98101, Telephone 206-583-4532.