M/V Denise Marie

918 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Epsilon Fishing Co., Inc. d/b/a M/V Denise Marie and Cannery Workers & Fishermen's Union of San Diego, Seafarers International Union of North America, AFL-CIO Fishermen's & Allied Workers' Union, Local #33 of San Diego and San Pedro, International Long- shoremen's and Warehousemen's Union (Epsilon Fishing Co., Inc. d/b/a M/V Denise Marie) and Cannery Workers & Fishermen's Union of San Diego, Seafarers International Union of North America, AFL-CIO. Cases 21-CA-10244 and 21-CB-4090 August 15, 1972 DECISION AND ORDER BY MEMBERS JENKINS, KENNEDY, AND PENELLO On May 17, 1972, Trial Examiner James R. Webster issued the attached Decision in this pro- ceeding. Thereafter, the Respondent Union filed exceptions and 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 authority in this proceeding to a three-member panel. The Board has considered the record and the Trial Examiner's Decision in light of the exceptions and brief and has decided to affirm the Trial Examiner's rulings, findings, and conclusions and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Trial Examiner and hereby orders that the Respondent Employer, Epsilon Fishing Co., Inc. d/b/a M/V Denise Marie, its officers, agents, successors, and assigns, and Respondent Union, Fishermen's & Allied Workers' Union, Local # 33 of San Diego and San Pedro, International Longshore- men's and Warehousemen's Union its officers, agents, and representatives, shall take the action set forth in the Trial Examiner's recommended Order. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE JAMES R. WEBSTER, Trial Examiner : This case, with all parties represented, was heard in San Diego , California, on March 14, 1972, on complaint of the General Counsel and answers of Epsilon Fishing Co., Inc . d/b/a M/V Denise Marie, herein referred to as Respondent Employer, and Fishermen's & Allied Workers' Union, Local #33 of San Diego and San Pedro, International Longshoremen's and Warehousemen's Union, herein referred to as Respondent Union or ILWU. The complaint was issued on October 28, 1971, on charges filed August 24 and October 20, 1971. The complaint alleges that the Respondents have violated the Act by entering into a labor agreement while a question of representation existed and that Sections 8(a)(1), (2), and (3) and 8(b)(1)(A) and (2) of the National Labor Relations Act, herein called the Act, have been violated thereby. Briefs have been filed by the General Counsel and the Respondent Union, and these have been carefully consid- ered. Upon the entire record and my observation of the witnesses, I hereby make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT EMPLOYER Respondent Employer, a Puerto Rican corporation, is the owner of a fishing vessel, M/V Denise Marie, and is engaged in the deep sea tuna fishing industry. In a 12- month period, Respondent Employer will catch fish on the high seas valued in excess of $50,000, which it will sell and deliver to Star-Kist Foods, Inc. Star-Kist Foods, Inc., processes, cans, and distributes fish products directly to points outside the State of California valued in excess of $50,000 annually. I find that Respondent Employer is an employer engaged in commerce and in an operation affecting commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATIONS INVOLVED Cannery Workers and Fishermen's Union of San Diego, Seafarers International Union of North America, AFL-CI- O, herein referred to as SIU, and Fishermen's and Allied Workers' Union, Local #33 of San Diego and San Pedro, International Longshoremen 's and Warehousemen's Un- ion, herein referred to as ILWU or Respondent Union, are labor organizations within the meaning of Section 2 (5) q 1` the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Issues Whether a question of representation existed on August 19, 1971, when Respondents executed their cbllective- bargaining agreement . Did evidence of majoritfr status presented by Respondent Union to Respondent Employer on August 19, 1971, in the absence of independent unfair labor practices, constitute a valid resolution of any question of representation. B. Organizational Activities by SIU and ILWU Respondent Employer purchased the Denise Marie in August 1971 , and it arrived in San Diego in the early morning of August 17, 1971. John J. Silveira is captain of the Denise Marie ; he is also a part owner of Respondent Employer. Besides the captain, the vessel has a crew of I 1 198 NLRB No. 133 M/V DENISE MARIE 919 persons. The bargaining unit includes a navigator, who also serves as relief captain , a chief engineer, an assistant engineer, a deck boss, a cook, and seamen. On July 22, 1971, Respondent Union received by mail one of its authorization forms bearing the signature of Rudolf Blazevich, a crew member of the Denise Marie. Business Agent Rudolph Crnko of Respondent Union filled in the date, July 22, 1971, and printed the name of Blazevich next to the signature . On the same day, Jose Da Luz came to the office of Respondent Union to inquire about his dues status and health and welfare payments and stated that he was going to Panama as a crew member aboard the Denise Marie . He was asked if he would sign a union authorization form and he did so on that date. When the Denise Marie arrived in San Diego from the State of Washington on August 17, 1971, Crnko and Union Representative Phil Silva went to the vessel and started talking to members of the crew. Crew members Jose De Carvalho and Manuel Da Luz signed an authorization form for Respondent Union . Both of these persons are citizens of Portugal and do not speak English. Their signatures were solicited by using Jose Da Luz to translate; Jose Da Luz is a brother of Manuel Da Luz. Crnko and Silva were in the area of the boat from about 9 a.m. to I p.m. or 2 p.m. that day. They did not see Captain Silveira but did see SIU Representatives Marino and Correa. On the same day, August 17, 1971, Carl Marino and Arthur Correa, representatives of the SIU, went to the Denise Marie and stated to the man on watch that they wanted to talk with Captain Silveira . Silveira was not on board and they returned to the union office. On August 18, Crnko and Silva of the ILWU returned to the boat and talked with members of the crew from approximately 8 a.m. to about 3 p.m. but obtained no signatures on authorization forms. On August 18, Marino and Correa of the SIU also went to the boat and talked with members of the crew. Signatures on authorization cards were obtained . As they left the boat, they saw Silveira sitting in an automobile with another person. When he got out of the car, they approached him and informed him that they represented a majority of the crew and wanted to negotiate a contract. Siheira told them that he was busy right then and could not talk to them . Marino did not show him the authoriza- tion cards he had in his possession . Eight crew members signed authorization cards for the SIU on August 18. On the next morning, August 19, Marino and Correa again went to the boat and told Silveira that they represented a majority of the crew and that they wanted him to sign a contract . Marino handed Silveira a letter dated August 19 which stated that "The Cannery Workers and Fishermen's Union, AFL-CIO of San Diego, Califor- nia repre:,ents the majority of your crew members and we are therefore requesting that you sign an Agreement with this organization." Silveira read the letter and said, "Okay, this is:-fine," and told them to bring down the contract on the following morning. On the morning of August 19, Crnko and Silva of the ILWU returned to the Denise Marie to solicit authoriza- tions. Crnko obtained the signature of Lloyd H. Nelson, the navigator for the Denise Marie. Silva talked with crew member Robert Barker about signing a card and Barker, who had signed an authorization for the SIU on the previous day, told him that if Respondent Union obtained enough signatures to where his signature would be the deciding signature to make a majority, he would then sign. After Nelson signed, the fifth signature, Baker agreed to and did sign an authorization form for the ILWU. As Crnko and Silva left the boat , they met Captain Silveira and presented him with the authorization forms and asked him for recognition. He stated that he was very busy and for them to come back later. They returned to the Union's office . While Crnko was writing a letter requesting recognition, Silva observed Silveira driving by the office. He assumed that Silveira might be going to the offices of the Star-Kist Company about two blocks from the office of the Respondent Union. They then went to the office of the Star-Kist Company and met Silveira there. They showed him the authorization signatures and presented him with a copy of a contract. This was about 9:30 a .m. Silveira asked them if they were sure they had a . majority. Crnko stated that 6 out of 11 is a majority. He then signed the contract. On the afternoon of August 19, 1971, Marino and Correa came to the Denise Marie and handed Silveira a copy of a contract. Silveira had signed a contract that morning with the ILWU but stated to them that he was not going to sign anything until he read it . He got in his car and went to the office of the ILWU and asked Crnko and Silva about the situation and if they were sure that they had a majority and were doing things right . He was told not to worry about it, that they had signatures of six employees and that this was a majority. On the morning of August 20, Marino and Correa of the SIU returned to the Denise Mane and asked Silveira for the contract. Silveira then stated, "Look, I didn't want you to feel bad yesterday, but I already had the contracts signed." Marino told him that he had a problem and Silveira replied that the problem was between the ILWU and the SIU. C. Contract Between Respondent Employer and Respondent Union The contract that Respondent Employer executed with Respondent Union on August 19, 1971, was effective from that date to August 15, 1974, and covering the following unit of employees: All employees aboard the M/V DENISE MARIE, provided that "employees" as used herein , shall not extent to part owners and officers of the owner organized as a corporation , partnership or co-owner- ship. The contract contains the following union security provisions: 2. UNION SECURITY. Thirty (30) days after a crewmember is hired or following the date of execution of this Working Agreement, whichever is the later, each crewmember shall be or become a member of the UNION in good standing, and as a condition of his employment, thereafter, shall be and remain a member of the UNION in good standing, provided that such condition of employment shall not extend to crew members who are part owners and officers of the 920 DECISIONS OF NATIONAL LABOR RELATIONS BOARD OWNER organized as a corporation, partnership or co-ownership. If any employee of the OWNER thus required to become and remain a UNION member fails to pay the sum due the UNION as uniform periodic dues and initiation fees, the OWNER agrees that upon receipt of written notice from the UNION, such employee shall be immediately discharged. D. The Alleged Interrogation On August 18, 1971, Silveira asked crew member Francisco Da Silva if he had already signed a card for a union. Da Silva replied that he had . Da Silva is related by marriage to Silveira. There is no testimony that Silveira asked him which union he had signed with nor made any statement to him to encourage him to sign for either one of the unions involved. Da Silva signed an authorization card for the SIU on August 18, 1971. He has not signed an authorization for the ILWU. I find that the inquiry of Captain Silveira to employee Francisco Da Silva on August 18, 1971, did not constitute illegal interrogation.[ E. Conclusions There is no evidence that the Respondent Employer engaged in any acts of assistance to Respondent Union other than the signing of the agreement on August 19. The question in this case is whether an employer, who is approached by one union with a claim to represent a majority of employees and a request for recognition and then later is approached by another union with a similar claim and request, violates the Act by entering into a collective-bargaining agreement with the second union, which shows authorizations signed by 6 of the 11 employees in the bargaining unit. Dual membership in the industry involved herein is not uncommon and in fact each union herein had been authorized by a majority of the employees as their representative. A real question of representation existed. Captain Silveira resolved this question himself based on the signed authorization of six crew members. Silveira did not wait to review the SIU's claim to majority status. The SIU had signed authorization cards from eight of the crew members. In view of the fact (1) that Respondent Employer had been approached by the SIU first with a claim to represent a majority of the employees; (2) that the SIU did in fact have authorizations at that time from a majority of the employees; (3) that Respondent Employer thereafter signed a contract with Respondent Union, which had a bare majority; and (4) that dual union membership in the industry is not uncommon, I find that Respondent Employer in executing and maintaining a collective-bar- gaining agreement with Respondent Union under these i SIU Representative Correa testified that when he solicited crew member Andre Altavilla to sign an authorization card, he replied, "I was told by my Skipper to go I L W I am afraid to sign the card " Correa told him, "This is a free country You decide what to do " Then Altavilla signed circumstances has assisted said Union in violation of Section 8(a)(2) of the Act; and by entering into and enforcing such contract with a union-security provision, it has discriminated against its employees in violation of Section 8(a)(3) of the Act; and that by such conduct, it has interfered with, restrained, and coerced employees in violation of Section 8(a)(1) of the Act. Respondent Union, by accepting recognition and entering into and maintain- ing a contract with Respondent Employer, as described above, has caused Respondent Employer to discriminate in regard to its employees and has thereby violated Section 8(b)(2) of the Act, and has restrained and coerced employees within the meaning of Section 8(b)(1)(A) of the Act. As stated in the decision in Connie Jean, Inc., "The Board has consistently and for many years adhered to the view that where a real question concerning representation exists, the principle to be applied is that recognition alone without any extrinsic additional evidence of coercion or assistance is sufficient to establish the violation."2 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondents set forth in section III occurring in connection with the operations of Respondent Employer described in section I, have a close, intimate, 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. Upon the basis of the foregoing findings of fact and the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. Respondent Employer is an employer engaging in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Respondent Union and the SIU are each labor organizations within the meaning of Section 2(5) of the Act. 3. A question concerning representation existed among the crew members of the Denise Mane on August 19, 19"1, when the agreement between Respondent Employer and Respondent Union was executed. 4. By recognizing and entering into a contract with Respondent Union while there was a question concerning representation, and by enforcing and maintaining such contract, which contains a union-security clause, Respon- dent Employer has engaged in unfair labor practices within the meaning of Section 8(a)(1), (2), and (3) of the Act. 5. By demanding and accepting recognition from and entering into a contract with Respondent Employer while there was a question concerning representatior,' and by enforcing and maintaining the contract which contains a union-security clause, Respondent Union has engaged in unfair labor practices within the meaning of St tion 11 8(b)(1)(A) and (2) of the Act. a card for the SIU Altavilla did not testify I make no finding of illegal conduct based on this hearsay testimony 2 Connie Jean, Inc, 162 NLRB 1609, Midwest Piping and Supply Company, Inc, 63 NLRB 1060 M/V DENISE MARIE 921 6. The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2(6) and (7) of the Act. 7. Respondent Employer has not engaged in illegal interrogation of crew members. THE REMEDY Having found that Respondents have engaged in certain unfair labor practices, I shall recommend that they be ordered to cease and desist therefrom and take certain affirmative action in order to effectuate the policies of the Act. Having found that Respondent Employer violated Section 8(a)(1), (2), and (3) by reorganizing and entering into a contract with Respondent Union while there was a question concerning representation, and by enforcing and maintaining such contract which contains a union-security clause, I shall recommend that Respondent Employer cease and desist from enforcing and maintaining such contract and withdraw and withhold all recognition from Respondent Union, or any successor, as the collective- bargaining representative of the crew of the Denise Marie unless and until such labor organization shall have been certified by the Board. Having found that Respondent Union violated Section 8(b)(1)(A) and (2) by demanding and accepting recognition from, and entering into a contract with Respondent Employer while there was a question concerning represent- ation, and by enforcing and maintaining a contract which contains a union-security clause , I shall recommend that Respondent Union cease and desist from enforcing and maintaining such contract and from demanding or accepting recognition from Respondent Employer as the collective-bargaining representative of the crew of the Denise Marie unless and until it shall have been certified by the Board. On the basis of the foregoing findings of fact and conclusions of law and the entire record herein, I recommend that, pursuant to Section 10(c) of the Act, the Board issue the following: 3 ORDER A. Epsilon Fishing Co., Inc. d/b/a M/V Denise Marie, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Recognizing or contracting with Respondent Union, or any successor thereto, as the statutory representative of the crew of the Denise Marie, until and unless such labor organization shall have been certified by the Board as such representative. (b) Enforcing or maintaining its collective-bargaining contract with Respondent Union entered into on August 19, 1971, or any modification, extension, supplement, or 3 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. 4 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by renewal thereof, unless and until said labor organization shall have been certified by the Board as the exclusive representative of the crew of the Denise Marie, provided, however, that nothing herein shall require Respondent Employer to vary or abandon any wage or other substan- tive feature of its relations with its employees, which they have established in the performance of said contract, or prejudice the assertion by the employees of any rights they may have thereunder. (c) In any like or related manner interfering with, restraining, or coercing the crew members of the Denise Marie in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action which I find will effectuate the policies of the Act: (a) Withdraw and withhold all recognition from Respon- dent Union, or any successor thereto, unless and until such labor organization shall have been certified by the Board as the statutory representative of the crew members of the Denise Marie. (b) Post at appropriate places on the Denise Marie copies of the notice marked "Appendix A."4 Copies of such notice, to be furnished by the Regional Director for Region 21, shall, after being duly signed by an authorized representative, be posted immediately upon receipt thereof and be maintained for a period of 60 consecutive days thereafter in conspicuous places, including all places where notices to the crew are customarily posted. Reasonable steps shall be taken by Respondent Employer to insure that such notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 21, in writing, within 20 days from the receipt of this Decision what steps Respondent has taken to comply herewith.5 B. Fishermen's Allied Workers' Union Local #33 of San Diego and San Pedro, International Longshoremen's and Warehousemen's Union, its officers, agents, and representatives, shall: 1. Cease and desist from: (a) Demanding or accepting recognition from or con- tracting with Respondent Employer for the crew of the Denise Marie as the statutory representative of such crew members until and unless it shall have been certified by the Board as such representative. (b) Enforcing or maintaining its collective-bargaining contract with Respondent Employer, entered into on August 19, 1971, or any modifications, extensions, supple- ments, or renewals thereof unless and until it shall have been certified by the Board as the statutory representative of the crew members of the Denise Marie. (c) In any like or related manner restraining or coercing employees of Respondent Employer in the exercise of the rights guaranteed them by Section 7 of the Act. Order of the National Labor Relations Board" shall read "Posted pursuant to a Judgment of the United States Court of Appeals enforcing an Order of the National Labor Relations Board." 5 In the event that this recommended Order is adopted by the Board after exceptions have been filed, this provision shall be modified to read: "Notify the Regional Director for Region 21 , in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith." 922 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. Take the following affirmative action which I find will effectuate the policies of the Act: (a) Post at its offices and meeting halls and mail to each of the crew members of the Denise Marie copies of the attached notice marked "Appendix B.."s Copies of such notice, to be furnished by the Regional Director for Region 21, shall, after being duly signed by an authorized representative, be posted immediately upon receipt thereof and maintained for a period of 60 days thereafter in conspicuous places including such places where notices to members are customarily posted, and immediately mailed by regular mail to crew members of the Denise Marie at their last known addresses. Reasonable steps shall be taken by Respondent Union to ensure that such notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for Region 21, in writing, within 20 days from the receipt of this Decision what steps Respondent Union has taken to comply herewith.? It is also ordered that paragraph II of the complaint alleging illegal interrogation by Respondent Employer be dismissed. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of their rights guaranteed by the National Labor Relations Act. EPSILON FISHING CO., INC. D/B/A M/V DENISE MARIE (Employer) 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 compliance with ,its provisions may be directed to the Board's Office, 849 South Broadway, Los Angeles, California 90014, Tele- phone 213-688-5229. 6 In the event that the Board's 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 read "Posted pursuant to a Judgment of the United States Court of Appeals enforcing an Order of the National Labor Relations Board." 9 In the event that this recommended Order is adopted by the Board after exceptions have been filed, this provision shall be modified to read: "Notify the Regional Director for Region 21, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith." APPENDIX A NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT discourage membership in Cannery Workers & Fishermen's Union of San Diego, Seafarers International Union of North America, AFL-CIO, or any other labor organization by discriminating as to the hire, tenure, or other terms or conditions of employ- ment of any of our employees. WE WILL withdraw and withhold all recognition from Fishermen's and Allied Workers' Union Local 33 of San Diego and San Pedro International Longshore- men's and Warehousemen's Union as the exclusive representative of our employees, and we will not enforce the contract entered into with such Union on August 19, 1971, unless and until such Union is certified by the National Labor Relations Board as the exclusive representative of the crew members of the Denise Marie, provided, however, that nothing herein shall require that we vary or abandon any wage or other substantive feature of our relations with our employees, which they have established in the perform- ance of said contract, or prejudice the assertion by them of any rights they may have thereunder. APPENDIX B NOTICE TO MEMBER POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT demand or accept recognition from or contract with Epsilon Fishing Co., Inc., as the repre- sentative of the crew members of the vessel Denise Marie nor will we enforce the contract entered into with said Employer on August 19, 1971, unless and until we have been certified by the National Labor Relations Board as the exclusive representative of such crew members. WE WILL NOT in any like or related manner restrain or coerce crew members of the Denise Marie in the exercise of the rights guaranteed to them by the National Labor Relations Act. FISHERMEN'S & ALLIED WORKERS' UNION, LOCAL #33 OF SAN DIEGO AND SAN PEDRO, INTERNATIONAL LONGSHOREMEN'S AND WAREHOUSEMEN'S UNION (Labor Organization) Dated By (Representative) (Title) This is an official notice and must not be defaced by lanyone. 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 concern- ing this notice or compliance with its provisions may be !directed to the Board's Office, 849 South Broadway, Los Angeles, California, 90014, Telephone 213-688-5229.