National Maritime Union

NATIONAL MARITIME UNION 887 National Maritime Union of America, AFL-CIO and Prudential-Grace Lines, Inc. and Seafarers' Inter- national Union of North America, and its Affiliates including the Sailors' Union of the Pacific. Case 2-CD-427 August 14, 1972 DECISION AND ORDER By CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS Upon a charge filed on June 23, 1971, by Prudential-Grace Lines, Inc., herein called the Employer, and duly served on National Maritime Union of America, AFL-CIO, herein called the Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 2, issued a complaint on February 9, 1972, against Respondent, alleging that Respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8(b)(4)(i) and (ii)(D) and Section 2(6) and (7) of the National Labor Relations Act, as amended. Copies of the charge, complaint, and notice of hearing before a Trial Examiner were duly served on the parties to this proceeding. With respect to the unfair labor practices, the complaint alleges in substance that the Respondent violated the Act (1) by striking the Employer and refusing to perform services with the object of forcing and requiring the Employer to assign the work of manning two ships, the Seajet and Oceanjet, herein called Jets, to employees who were members of, or represented by, the Respondent rather than to employees who were members of, or represented by, Seafarers' International Union of North America, and its Affiliates including the Sailors' Union of the Pacific, herein called SIU and (2) by failing and refusing to comply with the terms of the Board's January 20, 1972, Decision and Determination of Dispute in the 10(k) proceeding.' On February 25, 1972, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint. On March 13, 1972, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment, submitting that the Respon- dent's answer raises no issues which were not previously considered and decided by the Board in the 10(k) proceeding, and that the Respondent admits that it has not and does not intend to comply with the Board's Decision and Determination of Dispute in that proceeding. Subsequently, on April 5, 1972, the Board issued an order transferring the proceeding to the Board and a Notice To Show Cause why the General Counsel's Motion for Summary Judgment should not be granted. Respon- dent thereafter filed a response to Notice To Show Cause, called Memorandum in Opposition to Motion for Summary Judgment, renewing its contentions made in the prior 10(k) proceeding and submitting that there is new evidence which indicates that certain factual findings made by the Board in the 10(k) proceeding are no longer accurate, and that such evidence requires a hearing on the Respondent's work preservation objective. By letter dated May 31, 1972, the Respondent submitted an additional newspaper clipping in support of its memorandum in opposition. On June 5, 1972, the Employer filed a reply to the Respondent's memorandum in opposi- tion arguing against reexamining the Respondent's work preservation defense and against holding a hearing because the changed circumstances resulted from the Employer's compliance with the Board's 10(k) determination. On June 8, 1972, the SIU also filed a Memorandum in Opposition to the Respon- dent's Memorandum. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. Upon the entire record in this proceeding, includ- ing the record in the 10(k) proceeding and the Board's Decision and Determination of Dispute therein, the Board makes the following: Ruling on the Motion for Summary Judgment Pursuant to Section 10(k) of the Act, following a charge filed by the Employer alleging that the Respondent had violated Section 8(b)(4)(i) and (ii)(D) of the Act, a hearing was held on September 14, 1971. On January 20, 1972, the Board issued a Decision and Determination of Dispute2 in which it concluded that the Respondent's work preservation argument was without merit, found reasonable cause to believe that the Respondent had violated Section 8(b)(4)(D) of the Act, and awarded the disputed manning work to employees who were members of, or represented by, the SIU rather than to employees who were members of, or represented by, the Respondent. Thereafter, the Regional Director is- sued the complaint herein. In its answer to the complaint and response to the Notice To Show Cause, including the May 31, 1972, submission, the Respondent asserts that additional hearings are required to consider new evidence which i National Maritime Union of North America, AFL-CIO (Prudential- 2 Ibid Grace Lines, Inc), 194 NLRB No 199 198 NLRB No. 112 888 DECISIONS OF NATIONAL LABOR RELATIONS BOARD shows that the Employer has evinced a marked change in the design of its operations by transferring vessels other than the Jets and which allegedly indicates that certain factual findings made by the Board in the 10(k) proceeding are no longer accurate, namely, that the introduction of LASH vessels made the use of Jets on the East Coast economically unfeasible. The Respondent also submits that, if no additional hearings are ordered, the Board should reconsider its conclusion that the Respondent's work preservation defense is without merit because the Board's conclusion in this regard was based on an erroneous application of the facts. With respect to the alleged new evidence submitted by the Respondent, we have considered it and have concluded that it does not raise matters warranting or requiring additional hearings or a different result with respect to the Respondent's work preservation defense which was previously litigated in the 10(k) proceeding. Assuming, arguendo, the accuracy of the evidence now sought to be introduced by Respon- dent, we are not persuaded that it would in any way affect the ultimate determination previously reached that Respondent claimed the disputed work involv- ing the assignment of unlicensed seamen aboard the Employer's vessels-the dispute arose over the transfer and manning of the Jets-which are being transferred from its East Coast to its West Coast fleet. It is clear that Respondent's members have never held jobs on the Employer's West Coast vessels or those of its predecessor. The Board's prior determination properly focused on Respondent's object in engaging in the activities there set forth; the new evidence now offered is immaterial because it concerns, rather, alleged, recent changes in the Employer's plans. As a matter of logic, that can have no effect on what the Respondent's object was in engaging in threats and other activities previously. Thus, the Board adheres to its prior view and finding that this is not a case in which the Respondent is attempting to protect and preserve work, but rather is attempting to expand its traditional domain to acquire work which it never performed. Moreover, we note that the.proffered evidence deals with the transfer of vessels other than the Jets and that, in its Decision and Determination of Dispute, the Board had considered the likelihood of such further transfers and had therefore issued a broad award to 3 In its answer to the complaint, the Respondent admits that it advised the Board that it did not intend to comply with the Board's 10(k) determination While generally denying the allegation in par 8 of the complaint that it had engaged in a strike and refusal to perform services, the Respondent's admission to complaint par 7 that it stated on June I , 16, and 18, 1972, that the two Jets would not be manned for voyages to the West Coast unless the Employer agreed that they be manned by employees represented by the Respondent establishes the aforesaid denied allegation which is found to be true The Respondent's denials of sufficient knowledge cover such future transfers. As all material issues have been previously decided by the Board or admitted by the Respondent in its answer,3 and as the new evidence which Respondent now seeks to offer would not affect our previous determination with respect to Respondent's object in threatening and coercing the Employer, we find that no addition- al hearings are warranted or required, and grant the General Counsel's Motion for Summary Judgment. On the basis of the entire record, the Board makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE EMPLOYER The Employer is and has been at all material times herein a Delaware corporation with its principal East Coast office located at New York, New York. It is engaged in the business of operating American Flag vessels to transport goods by water in interstate and foreign commerce. During the past year, a period representative of its annual operations generally, the Employer derived a gross revenue from its business in excess of $50 million. We find, on the basis of the foregoing, that Prudential-Grace Lines is, and has been at all times material herein, a person and an employer engaged in commerce and in an industry affecting commerce within the meaning of Section 2(1), (2), (6), and (7) of the Act, and that it will effectuate the policies of the Act to assert jurisdiction herein. II. THE LABOR ORGANIZATIONS INVOLVED National Maritime Union of America , AFL-CIO, and Seafarers' International Union of North Ameri- ca, and its Affiliates including the Sailors' Union of the Pacific, are labor organizations within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Background and Facts of the Dispute Since 1938, the Respondent has represented em- ployees of the Employer and its predecessors manning vessels of the Employer's East Coast fleet operating out of Atlantic and Gulf ports. Since 1965, the SIU has represented employees of the Employer and information to form a belief as to complaint allegations in par 4 relating to the history of the Employer's operations and par 5 relating to the Employer's decision early in April to transfer the two Jets to the West Coast are stricken as frivolous and the allegation found to be true because such facts alleged were presented to, and considered and found by, the Board in the 10(k) proceeding Finally, while the Respondent denies the proscribed object alleged in par 12 of the complaint, the Board had also considered and adjudicated adversely to the Respondent this issue and therefore we find the allegation in par 12 to be true NATIONAL MARITIME UNION and its predecessor manning vessels of the Employ- er's West Coast fleet. Early in 1971, the Employer decided to transfer the two Jets from its East, Coast to its West Coast fleet and, based on prior practice and custom, the Employer assumed that the Jets would be manned on the West Coast by employees represented by the SIU. In early April, and on June 1, 16, and 18, 1971, the Respondent demanded that the jobs for the unlicensed seamen on the Jets be assigned to its members and refused to man and sail the vessels to the West Coast without a prior work assignment commitment to the Respondent. As a result, the Jets have not been transferred to the West Coast. B. The Determination of the Dispute On January 20, 1972, the Board issued its Decision and Determination of Dispute assigning the work of unlicensed seamen aboard the Employer's Jets which are being transferred from its East Coast to its West Coast fleet and aboard any other vessels that may hereafter be transferred from its East Coast to its West Coast fleet to employees represented by the SIU. The Board also found that the Respondent was not entitled by means proscribed by Section 8(b)(4)(D) of the Act to force or require the Employer to assign such work to individuals repre- sented by the Respondent. C. The Respondent's Refusal To Comply In addition to its strike and refusal to perform services, the Respondent has refused, and continues to refuse, to comply with the Board's Decision and Determination of Dispute that it is not entitled to force or require the Employer to assign the disputed work to the unlicensed seamen represented by it. On the basis of the foregoing, and the entire record in this proceeding, we find, as described above, that the Respondent's strike and refusal to perform services and its refusal to comply with the Board's Decision and Determination of Dispute violated Section 8(b)(4)(ii)(D) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with its opera- tions described in section I, above, have a close, intimate, and substantial relationship 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 com- merce. V. THE REMEDY 889 Having found that Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(b)(4)(i) and (ii)(D) of the Act, we shall order that it cease and desist therefrom, and take certain affirmative action designed to effectuate the purposes of the Act. The Board, upon the basis of the foregoing facts and the entire record, makes the following: CONCLUSIONS OF LAW 1. Prudential-Grace Lines, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. National Maritime Union ' of America, AFL-CIO, and Seafarers' International Union of North America, and its Affiliates including the Sailors' Union of the Pacific, are labor organizations within the meaning of Section 2(5) of the Act. 3. The Respondent has violated and is violating Section 8(b)(4)(i) and (ii)(D) of the Act (1) by striking and refusing to perform services for the Employer with the object of forcing and requiring the Employ- er to assign the work of manning the Jets being transferred from its East Coast to its West Coast fleet to employees who are members of, or represented by, the Respondent by means proscribed by Section 8(b)(4)(i) and (ii)(D) of the Act and (2) by failing and refusing to comply with the Board's Decision and Determination of Dispute which also covers the manning of any other of the Employer's vessels that may hereafter be transferred from its East Coast to its West Coast fleet. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the mean- ing of Section 2(6) and (7) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that Respondent, National Maritime Union of America , AFL-CIO, its officers, agents, and representatives , shall: 1. Cease and desist from refusing to comply with the Board's Decision and Determination of Dispute or striking or refusing to perform services for Prudential-Grace Lines, Inc., or any other persons engaged in commerce or an industry affecting commerce, where an object is to force or require Prudential-Grace Lines , Inc., to assign the work of manning the two Jets , the Seajet and Oceanjet, being transferred from its East Coast to its West Coast fleet, or any other vessels that may be transferred from its East Coast to its West Coast Fleet, to 890 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employees who are members of, or represented by, National Maritime Union of America, AFL-CIO, rather than to employees who are members of, or represented by, Seafarers' International Union of North America, and its Affiliates including the Sailors' Union of the Pacific. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Post at its business offices and meeting halls copies of the attached notice marked "Appendix."4 Copies of said notice, on forms provided by the Regional Director for Region 2, after being duly signed by Respondent's representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by Respon- dent to insure that said notices are not altered, defaced, or covered by any other material. (b) Furnish the Regional Director for Region 2 signed copies of such notice for posting by the Employer, if willing, in places where notices to employees are customarily posted. (c) Notify the Regional Director for Region 2, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. 4 In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " APPENDIX NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government Decision and Determination of Dispute awarding the work of manning Prudential -Grace Lines, Inc.'s Jets being transferred from its East Coast to its West Coast fleet or any other vessels that may be transferred from its East Coast to its West Coast fleet, or to strike and refuse to perform services for Prudential-Grace Lines, Inc., or any other persons engaged in commerce or an industry affecting commerce, where an object is to force or require Prudential -Grace Lines, Inc., to assign such manning work to employees who are members of, or represented by, National Maritime Union of America , AFL-CIO, rather than to employees who are members of, or represented by, Seafarers' International Union of North America, and its Affiliates Including the Sailors' Union of the Pacific. NATIONAL MARITIME UNION OF AMERICA, AFL-CIO (Labor Organization) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. 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. Any questions concerning this notice or compli- ance with its provisions may be directed to the Board's Office, 36th Floor, Federal Building, 26 Federal Plaza, New York, New York 10007. Tele- phone 212-264-3311. WE WILL NOT refuse to comply with the Board's