Masters, Mates, & Pilots (Newport Tankers Corp.)

INTERNATIONAL ORGANIZATION OF MASTERS, MATES AND PILOTS International Organization of Masters, Mates and Pilots and Newport Tankers Corporation. Case 5- CB-1973 November 4, 1977 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS PENELLO AND MURPHY On February 15, 1977, Administrative Law Judge Irwin H. Socoloff issued the attached Decision in this proceeding. Thereafter, the Respondent filed excep- tions and a supporting brief, and District 2, Marine Engineers Beneficial Association-Associated Mari- time Officers (MEBA), the Intervenor herein, filed a brief in support of the Administrative Law Judge's Decision. 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 attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge only to the extent consistent herewith.' The Administrative Law Judge found that the Respondent, International Organization of Masters, Mates and Pilots (herein called MMP), violated Section 8(b)(l)(B) of the Act when it picketed the Employer, Newport Tankers Corporation, to force it to hire an additional third mate to its complement of deck officers. These officers are represented by the Intervenor, District 2, Marine Engineers Beneficial Association-Associated Maritime Officers (MEBA). He did not find, as was alleged by the General Counsel, that MMP's real purpose in picketing was to force the Employer to replace its MEBA-repre- sented officers with officers represented by MMP, although he noted that the Board, in prior decisions involving MMP, found that MMP had engaged in picketing for such object. 2 Instead, the Administra- tive Law Judge, relying on Laborers' International Union of North America, AFL-CIO, Local 478 (International Builders of Florida, Inc.),3 found that there is no real distinction between picketing to force the hiring of an additional third mate and picketing to seek the replacement of all deck officers. He I The Respondent's request for oral argument is hereby denied as the record and briefs adequately present the issues and positions of the parties. I See AUD, fn. 2. 3 204 NLRB 357 (1973) (Member Jenkins dissenting), enfd. 503 F.2d 192 (C.A.D.C., 1974). 4 In light of our finding herein, we find it unnecessary to pass on the other issues raised by the Respondent. I The Offshore Division is the largest division of MMP and is comprised 233 NLRB No. 42 concluded therefore that MMP's conduct violated Section 8(b)(lX)(B) of the Act. For the reasons stated below, we disagree with the Administrative Law Judge's conclusion.4 The relevant facts, briefly stated, are as follows: On December 22, 1975, the Employer entered into an agency agreement with O.B.O. Ship Operators, Inc. (herein called O.B.O.), in which the latter was to manage and operate the S/T Achilles, a vessel owned by the Employer. Subsequently, O.B.O. signed a collective-bargaining agreement with MEBA under which MEBA was to provide the licensed deck officers for the S/T Achilles. Under the manning provisions of the MEBA agreement, the Employer was to maintain no fewer than four licensed officers, consisting of a master, chief mate, second mate, and a third mate. On February 13, 1976, the S/T Achilles was chartered to carry grain from the United States to the Soviet Union and on April 13, 1976, the vessel docked in Chesapeake, Virginia, for the purpose of loading the grain. On April 14, MMP5 picketed the vessel with picket signs that read: S/S [SIC] ACHILLES EMPLOYS A SECOND AND THIRD MATE NOT COVERED BY A COLLECTIVE BARGAINING AGREEMENT. THE SECOND AND THIRD MATES ARE EMPLOYED UNDER SUBSTANDARD WORKING CONDITIONS. WE ARE NOT SEEKING THE REPLACEMENT OF ANY PERSONS EMPLOYED ABOARD THE S/S [SIC] ACHILLES. WE HAVE NO DISPUTE WITH ANY OTHER VESSEL AT THIS FACILITY. OFFSHORE DIVISION OF THE INTERNATIONAL ORGANIZATION OF MASTERS, MATES AND PILOTS. 6 The manning provisions under a standard MMP contract provide that an employer shall maintain no fewer than five deck officers consisting of a master, chief mate, second mate, and two third mates. Accordingly, MMP argues that it sought merely to enforce area labor standards by requiring the Employer to add another third mate to its comple- ment of deck officers. It argues that the selection of the third mate is to be in the Employer's sole discretion. While, as previously stated, the General Counsel would have us find that MMP's true motive in picketing was to force the Employer into replacing the officers represented by MEBA with officers represented by it, we find insufficient evidence in the solely of licensed deck officers, all of whom are supervisors within the meaning of Sec. 2( 1 I) of the Act. 6 While the picket signs inaccurately stated that the second and third mates were not covered by a collective-bargaining agreement, it should be noted that these statements were made in reliance on MEBA's assertion at an AFL-CIO hearing that it had no collective-bargaining agreement covering the deck officers on the S/T Achilles. 245 DECISIONS OF NATIONAL LABOR RELATIONS BOARD record to support a finding that MMP's motive was other than that printed on the picket signs. Indeed, the General Counsel relies not on the evidence in the record, but on prior Board decisions to support his contention. Thus, in the absence of such evidence, we find that the object of the Respondent's picketing was to have the Employer hire an additional third mate. The sole issue to be decided then is whether picketing for this limited purpose is prohibited by Section 8(b)(l)(B). As already indicated, the Administrative Law Judge found the Respondent's picketing to be violative of Section 8(b)(l)(B), relying on the Board's decision in Laborers' International, supra, to support his finding. We find that case factually distinguish- able. Thus, in Laborers' International the Board found that the union (MMP) violated Section 8(b)(l)(B) of the Act when it picketed an employer to force it to retain a named foreman (Davis) in place of, or under, another named foreman (Wilson). We held there that the right to strike or engage in concerted activity does not include the right to dictate to an employer to select a particular supervisor who would have the power to adjust grievances. Similarly, in Operating Engineers, Local Union No. 3 of the International Union of Operating Engineers, AFL-CIO (Redi-Mix Products, Inc., d/b/a Visalia Redi-Mix),7 the Board upheld the Administrative Law Judge's finding that the union there violated Section 8(b)(l)(B) when it tried to coerce the employer, through picketing, to rehire the latter's collective-bargaining representative and grievance adjuster, Leonard Hill. As is clear from a reading of Laborers' International and Operating Engineers, the illegal activity in those cases consisted of attempts by a union to force an employer into selecting or replacing a particular identified individual as its collective-bargaining representative or grievance adjuster. Such conduct is clearly proscribed by Section 8(b)(1)(B). The present case, on the other hand, differs substantially from these two cases in that the record shows only that MMP seeks to add to the Employer's complement of officers, with the actual selection of such officers left entirely to the Employer's discretion. In our view, Section 8(b)(l)(B) does not prohibit this type of conduct nor do we feel that Congress, in enacting this provision, intended to prohibit picketing for such a purpose. The legislative history of the Act, while not specifically addressing itself to the particular issue 7 219 NLRB 531 (1975). 8 S. Rept. 105, 80th Cong., Ist sess. p. 21, I Leg. Hist. 427 (1947). 9 93 Cong. Rec. 3953, 11 Leg. Hist. 1012 (1947). 10 We are unpersuaded by our dissenting colleague's rather strained interpretation of Sec. 8(b)(IXB) of the Act. His view that Sec. 8(bX)(XB) of the Act prohibits picketing by a union to force an employer simply to hire involved here, does provide some evidence that Congress, in enacting Section 8(b)(1)(B), sought only to prevent unions from interfering with an employ- er's selection of a particular representative. The Senate Labor Committee, in reporting the bill in which Section 8(b)(1)(B) originated, explained "this subsection would not permit a union to dictate who [emphasis supplied] shall represent an employer in the settlement of employee grievances." 8 An example of the type of activity forbidden was offered by Senator Taft when he stated that: [B ut employees cannot say to their employer, "We do not like Mr. X, we will not meet Mr. X. You have to send us Mr. Y." . . . It would prevent their saying to the employer, "You have to fire Foreman Jones. We do not like Foreman Jones, and therefore you have to fire him, or we will not . . . work." . . . Under this provision it would be impossible for a union to say to a company, "We will not bargain with you unless you appoint your national employers' association as your agent so that we can bargain nationally." 9 As is evident from the legislative history, Congress enacted Section 8(b)(l)(B) to protect an employer from a union which might seek to impose its will on the employer by dictating whom it should or should not select as its collective-bargaining representative or grievance adjuster. MMP's conduct herein does not diminish in any way the Employer's unfettered right to select the representative of its choice. While concededly the Employer might be forced to hire an additional third mate, the choice as to who that third mate shall be is totally within its discretion and control. There is nothing in the record evidence to indicate that MMP sought to have one of its own members selected as the additional third mate. Indeed, in light of the Employer's current collective-bargaining agreement with MEBA covering all deck officers, we doubt that the Employer could have selected another third mate from among MMP's members or that MMP realisti- cally expected the Employer to do so. In view of the foregoing, we find that the Respondent's conduct herein has not been shown to have restrained or coerced the Employer in the selection of its collective-bargaining representative or grievance adjuster. Accordingly, we shall dismiss the complaint in its entirety. m an additional, though unnamed, collective-bargaining representative or grievance adjuster is supported neither by the legislative history of the Act nor by Board or court precedent. Indeed, even if we were to assume that an employer's sole representative may have his or her authonty diluted if that employer were forced to hire an additional representative, it would not constitute an interference with the employer's selection of either its "sole or 246 INTERNATIONAL ORGANIZATION OF MASTERS, MATES AND PILOTS ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the complaint herein be, and it hereby is, dismissed in its entirety." MEMBER PENELLO, dissenting: The majority decision in this case ignores the plain terms and obvious intention of Section 8(b)(1)(B), misconceives its legislative history, and disregards the reality of the jurisdictional conflict between the Respondent and Intervenor as revealed in past Board cases and in the record. I, therefore, would not dismiss the complaint, which alleges that the Respon- dent violated Section 8(b)( )(B) by picketing the Company's vessel at dock admittedly to compel the addition of another officer to the ship's complement. Moreover, I would find that the Respondent's true objective was not its admitted purpose, but rather the replacement of the ship's officers, who were repre- sented by Intervenor, with its own members. Some brief background is necessary to an under- standing of the legal issues presented. The Respon- dent, International Organization of Masters, Mates and Pilots (IOMMP or MMP). and the Intervenor, Marine Engineers Beneficial Association-Associated Maritime Officers (MEBA-AMO or MEBA), have been engaged in a jurisdictional dispute for some years. MMP has traditionally represented licensed deck officers (seagoing supervisory personnel) aboard United States merchant ships. Particularly after 1970, MEBA, which had principally represent- ed only licensed engineers on such vessels, began to negotiate collective-bargaining agreements covering licensed deck officers as well as engineers. MMP responded to this challenge from MEBA by picketing ships whose deck officers were subject to MEBA labor contracts. In cases decided in 1972, 1975, and 1976,12 the Board found that MMP violated 8(b)(1)(B) by picketing ships with an object of forcing the employers to replace their MEBA-repre- sented captains and mates, who adjusted grievances, with officers belonging to MMP. additional representative" inasmuch as the employer would still have absolute control over whom it selects. As previously stated, the legislative history of the Act clearly shows that, in enacting Sec. 8(b)(IXB), Congress sought to prevent unions from telling an employer that it must select this or that person as its representative or that it must select its representative from a particular group or category of persons. Having considered our dissenting colleague's position in this matter and finding no logical basis for his position, we adhere to our decision herein. I Chairman Fanning would also dismiss the complaint on the additional ground that the evidence fails to establish that third mates are authorized as collective-bargaining representatives or gnevance adjusters on behalf of the Employer. He does so for the reasons stated in his dissenting opinions in Local 2150, International Brotherhood of Electrical Workers, AFL-CIO (Wisconsin Electric Power Conmpan'). 192 NLRB 77 (1971). enfd. 486 F.2d 602 (C.A. 7, 1973), vacated and remanded 418 U.S. 902 (1974). International Having been found guilty of violating Section 8(b)(l)(B) in the foregoing cases by picketing to cause replacement of ships' officers, MMP assertedly decided to change its tack in the instant situation. Consequently, on April 14, 1976, MMP erected a picket line near the dock of the S/T Achilles, a merchant vessel whose officers were covered by a MEBA contract. The picket signs stated: S/S [SIC] ACHILLES EMPLOYS A SECOND AND THIRD MATE NOT COVERED BY A COLLECTIVE BARGAINING AGREEMENT. THE SECOND AND THIRD MATES ARE EMPLOYED UNDER SUBSTANDARD WORKING CONDITIONS. WE ARE NOT SEEKING THE REPLACEMENT OF ANY PERSONS EMPLOYED ABOARD THE S/S [SIC] ACHILLES. WE HAVE NO DISPUTE WITH ANY OTHER VESSEL AT THIS FACILITY. OFFSHORE DIVISION OF THE INTERNATIONAL ORGANIZATION OF MASTERS, MATES AND PILOTS. Dockworkers represented by the International Long- shoremen's Association honored the picket line and refused to load grain on the ship until injunctions were obtained some days later. MMP contends that the sole object of this picketing was to force the operator of the ship to hire an additional third mate of its own choosing, thereby increasing the number of officers on board from four to five. Five officers is the minimum number required in the manning provision of MMP's master collective-bargaining agreement. In other words, MMP argues that it was only seeking to preserve "area standards" relating to manning by picketing the S/T Achilles. Though, for reasons which will be explained below, I cannot credit the Respondent's assertion that the aim of its picketing was merely the addition of another deck officer to the ship's company, I would nevertheless find a violation based on its stated goal. The majority takes the position that MMP did not violate Section 8(b)(1)(B), because it did not seek to dictate to the employer whom it should select as the extra officer: "While concededly the Employer might be forced to hire an additional third mate, the choice as to who that third mate shall be is totally within its Brotherhood of Electrical Workers. AFL-CIO, AND Local 134, International Brotherhood of Electrical Workers, AFL-CIO (Illinois Bell Telephone Company), 192 NLRB 85 (1971), reversed 487 F.2d 1143 (C.A.D.C.. 1973); International Brotherhood of Electrical Workers System Council U-4, et al. (Florida Power and Light Company). 193 NLRB 30 (1971). reversed 487 F.2d 1143 (C.A.D.C., 1973), affd. 417 U.S. 790 (1974), and subsequent cases. 12 International Organization of Masters, Mates and Pilots, International Marine Division, ILA4-AFL-CIO (Marine and Marketing International Corporation). 197 NLRB 400 (1972), enfd. 486 F.2d 1271 (C.A.D.C.. 1973), cert. denied 416 U.S. 956 (1974); International Organization of Masters. Mates and Pilots. Marine Division. International Longshoremen's Association, AFL-CIO (Westchester Marine Shipping Co., Inc.), 219 NLRB 26 (1975), enfd. 539 F.2d 554 (C.A. 5, 1976); International Organization of Masters, Mates and Pilots, AFL-CIO (Cove Tankers Corporation), 224 NLRB 1626 (1976). 247 DECISIONS OF NATIONAL LABOR RELATIONS BOARD discretion and control." My colleagues say that legislative history shows that Congress intended only to prohibit unions from restraining or coercing employers in the selection or replacement of a particular identified individual or group as an 8(b)(l)(B) representative, and did not mean to prevent unions from pressuring employers in connec- tion with deciding how many such representatives there should be. They also argue that Board case law is consistent with this reading of the statute. I am unable to follow the tortured reasoning which leads the members of the majority to their conclu- sion. Section 8(b)(l)(B) prohibits a union from using restraint or coercion against an employer in the selection of his collective-bargaining representatives or grievance adjusters. An employer's selection of his 8(b)(1)(B) representatives, however, cannot be artifi- cially subdivided into selection of a particular individual or group, which the statute is said to protect, as opposed to the number of such represen- tatives, which is asserted to be left subject to union pressure. For the right to designate a particular individual as a grievance adjuster or collective- bargaining representative carries with it the implicit authority to confine the exercise of 8(b)(l)(B) responsibilities to that person. As an example, an employer may have chosen a certain individual to handle grievance matters for him, because of the employer's confidence in his ability, experience, and trustworthiness, and may, for that reason, desire that this person, and only this person, adjust grievances. Yet, under the majority view, the employer could be forced by a union to increase the number of individuals performing this task, thus insuring that responsibility for adjustment of grievances would be divided among several people and diluting the authority of the person whom the employer would prefer to handle all his grievances. That this is the unmistakable meaning of today's Decision is illustrated by the majority's discussion of Laborers' International Union of North America, AFL-CIO, Local 478 (International Builders of Florida, Inc.). 13 In that case, the Board found that a union violated Section 8(b)(1)(B) by restraining and coercing the employer with an object of forcing him to hire one Davis as foreman instead of, or under, one Wilson. The employees objected to Wilson, accord- ing to the Administrative Law Judge, because, "he stood over them and required them to keep working more than [they] liked." 14 The majority distinguishes this case from the instant one on the ground that the union in Laborers' International was seeking the selection of a "particular identified individual" as, at least, an additional 8(b)(1)(B) representative. There- '3 204 NLRB 357 (1973), enfd. 503 F.2d 192 (C.A.D.C.. 1974). " 204 NLRB at 363. fore, had the union in Laborers' International sought only the addition of an unnamed foreman in an effort to diminish Wilson's authority, the majority would have presumably found no violation. Yet, the majority asserts that Congress did not intend to forbid such conduct. My colleagues quote from remarks made by Senator Taft to exemplify what type of activity, in their view, Congress sought to proscribe by Section 8(b)(1)(B): "It would prevent [employees] saying to the employer, 'You have to fire Foreman Jones. We do not like Foreman Jones, and therefore you have to fire him, or we will not . . . work.' "15 Again, however, under the majority's construction of Section 8(b)(1)(B), a union which did not like Foreman Jones, although it could not legally seek his replacement, could restrain or coerce the employer into hiring one or more additional fore- men, albeit unnamed, in order to reduce Foreman Jones' power by spreading it among more people. Also, it is unlikely that an employer brought under such pressure would not choose to add individuals more satisfactory to the union. I do not believe that Congress intended that the statute be so narrowly limited as to allow a union to pursue a practice nearly as useful to it as forcing the employer to select a different 8(b)(l)(B) representative altogether. In any event, I am convinced that the actual object of MMP's picketing was the replacement of the ship's officers with MMP members. In this connection, it is impossible to disregard the Board's findings of violations based on such an object in Marine and Marketing, Westchester Marine, and Cove Tankers. Indeed, as the Board stated in Cove, It is not possible to read the prior cases arising out of the rivalry between the IOMMP and AMO-MEBA, and the evidence in this case, without comprehending that an essential element of that rivalry is a battle over jobs-a battle to determine whether the ships involved shall be manned by members of IOMMP dispatched from its hiring halls or by AMO-MEBA members from that union's hiring halls.16 Today, however, the members of the majority have chosen to ignore this fact of life relating to these two unions which the Board so clearly recognized only last year. Past cases aside, the record in this proceeding discloses that MMP's purpose in picketing went beyond the addition of another officer to the S/T Achilles' complement. Thus, the picket signs stated that the second and third mates were not covered by a collective-bargaining agreement, although they l' 93 Cong. Rec. 3953, 11 Leg. Hist. 1012(1947). 16 224 NLRB at 1635. 248 INTERNATIONAL ORGANIZATION OF MASTERS, MATES AND PILOTS were indisputably subject to an MEBA labor contract at the time. Even more importantly, it was revealed at the hearing that MMP itself had negotiated collective-bargaining contracts providing for four, rather than five, deck officers, thus violating its own so-called area standards, and convincingly refuting its assertion that preserving such standards was the goal of the picketing herein. In short, therefore, I would find that Respondent MMP unlawfully picketed the S/T Achilles, whether the object of the picketing was replacement of the ship's officers, as I believe it to have been, or merely the addition of another mate aboard the vessel. DECISION STATEMENT OF THE CASE IRWIN H. SOCOLOFF, Administrative Law Judge: Upon charges filed April 16, 1976, by Newport Tankers Corpora- tion, against International Organization of Masters, Mates and Pilots, herein called the Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 5. issued a complaint dated April 22, 1976, alleging violations by the Respondent of Sections 8(b)(1)(B) and 2(6) and (7) of the National Labor Relations Act, as amended. The Respondent, by its answer, denied the commission of any unfair labor practices. Pursuant to notice, a hearing was held before me in Norfolk, Virginia, on June 2, 1976. All parties' were represented by counsel and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence. Thereafter, the parties filed briefs which have been duly considered. Upon the entire record in this case, I make the following: II. LABOR ORGANIZATION As previously found by the Board,2 and as fully supported by the record evidence in this case, I find that the Respondent, International Organization of Masters, Mates and Pilots, is a labor organization within the meaning of Section 2(5) of the Act. iII. THE UNFAIR LABOR PRACTICES A. Background In previous cases (see fn. 2), the Board found, inter alia, that this Respondent violated Section 8(bXIXB) of the Act by picketing vessels with an object of causing the owners and/or operators of such vessels to replace its supervisory licensed deck officers, represented by MEBA, with licensed deck officers who are members of the Respondent. In the instant case, it is alleged that the Respondent picketed the S/T Achilles with an object of forcing Newport Tankers Corporation and O.B.O. Ship Operators, Inc., "to add to its complement of licensed deck officers an additional third mate." Alternatively, the General Counsel contends that an object of the picketing was to cause the replacement of MEBA-represented licensed deck officers by licensed deck officers represented by the Respondent. The Respondent concedes that an object of its picketing was to cause the hiring of an additional third mate, and asserts that this was a lawful object. It denies the alleged "replacement" objective. In addition, the Respondent asserts that the picketing of the S/T Achilles was the sole responsibility of its Offshore Division, which, it claims, is not a labor organization. Finally, the Respondent contends that the 8(b)(l)(B) allegation must fail because the additional third mate which it sought to cause the employer to hire "would not have had grievance adjusting authority" within the meaning of that section of the Act. FINDINGS OF FACT B. Facts I. JURISDICTION Newport Tankers Corporation, a Delaware corporation which maintains its principal office and place of business in New York, New York, is engaged in the shipping industry. It owns and operates oceangoing vessels including the S/T Achilles, the vessel involved herein. During the 12-month period preceding the issuance of the complaint, a represen- tative period, Newport Tankers Corporation received revenues in excess of $50,000 for transporting goods and materials in interstate and foreign commerce. I find that Newport Tankers Corporation is an employer engaged in commerce within the meaning of Section 2(2). (6), and (7) of the Act. I District 2. Marine Engineers Beneficial Association-Associated Mari- time Officers, herein also called MEBA, was permitted to intervene in this proceeding on the basis of its current collective-bargaining agreement with O.B.O. Ship Operators, Inc., covering the licensed deck officers aboard the S/T Achilles. 2 International Organization of Masters, Mates and Pilots. AFL CIO (Cove Tankers Corporation). 224 Nl.RB 1626 (1976) Inrtrnrtional Organi:a- On December 22, 1975, Newport Tankers Corporation entered into an agreement with O.B.O. Ship Operator, Inc., by which the latter was appointed "exclusive agent to manage, operate and conduct the business of" the S/T Achilles, an American flag vessel owned by Newport Tankers Corporation. That agreement provides that the agent is to "Obtain suitable Master, Officers and crew personnel for the vessel." The S/T Achilles was thereafter staffed with 42 individu- als. The 10 licensed officers, including the master, the chief mate, the second mate, the third mate, the radio officer, and the five engineers, are members of MEBA, and are covered by a collective-bargaining agreement between that organization and O.B.O. Ship Operators, Inc. The 32 unlicensed individuals, represented by the Seafarers Inter- tion of Masters, Mates and Pilots, AFL-CIO (Seatrain Lines, Inc.), 220 NLRB 164 (1975); International Organization of Masters. Mates and Pilots Marine Division. International Longshoremen's Association, AFL-CIO, (Westchester Marine Shipping Co., Inc., et at), 219 NLRB 26 (1975): International Organization of Masters, Mates and Pilots, etc. (Marine and Marketing International Corporation), 197 NLRB 400, enfd. 486 F.2d 1271 (C.A.D.C., 1973). cert. denied 416 U.S. 956 (1974). 249 DECISIONS OF NATIONAL LABOR RELATIONS BOARD national Union, are also covered by a current collective- bargaining contract. On February 13, 1976, the S/T Achilles was chartered to carry grain from the United States to the Soviet Union. Thereafter, on April 13, 1976, the vessel docked in Chesapeake, Virginia, at a berth owned and operated by Cargill, Inc., to prepare for the receipt of grain from Cargill's grain elevator. However, on the following day, the Respondent picketed the vessel, near the dock, with signs stating: SS ACHILLES EMPLOYS A SECOND AND THIRD MATE NOT COVERED BY A COLLECTIVE BARGAINING AGREEMENT. THE SECOND AND THIRD MATES ARE EMPLOYED UNDER SUBSTANDARD WORKING CONDITIONS. WE ARE NOT SEEKING THE REPLACEMENT OF ANY PERSONS EMPLOYED ABOARD THE SS ACHILLES. WE HAVE NO DISPUTE WITH ANY OTHER VESSEL AT THIS FACILITY. OFFSHORE DIVISION OF THE INTERNATIONAL ORGANIZATION OF MASTERS, MATES AND PILOTS. As a result of the picketing, employees of Cargill, Inc., who are represented by the International Longshoremen's Association, refused to load grain aboard the S/T Achilles. Picketing continued until April 16, when it was enjoined by United States District Court Judge J. Calvitt Clarke in an admiralty trespass proceeding brought by Cargill, Inc. On April 23, 1976, upon application of the Regional Director for Region 5, United States District Court Judge John A. MacKenzie issued a temporary restraining order against further picketing. Thereafter, on May 3, pursuant to Section 10(j) of the Act, Judge MacKenzie issued a temporary injunction, restraining the Respondent from picketing the S/T Achilles in the vicinity of the Cargill dock, pending resolution of the matter before the Board. As noted, the Respondent concedes that an object of its picketing was to cause the Employer and its operating agent "to add to its complement of licensed deck officers an additional third mate," 3 but contends, inter alia, that such individuals do not possess grievance adjusting authority. However, according to the uncontradicted testimony of Captain Arthur Fertig, the master of the S/T Achilles, as corroborated by the testimony of David Weigel, the third mate aboard the vessel, Fertig had specifically authorized and empowered all licensed deck officers to adjust the grievances of unlicensed personnel aboard the vessel. Indeed, according to Fertig, when a deck officer is on "watch," he is in command of the vessel, and is expected to resolve any problems or grievances that arise or occur during the course of his watch. The third mate, who is the "watch officer" for some 8 hours each day, had, during his first 45 days aboard the vessel, resolved such grievances. Thus, when an unlicensed seaman objected to a tank-cleaning assignment, the matter was raised by the seaman and his union delegate, and was resolved by the third mate. This was accomplished in accordance with 3 The Respondent's then current master collective-bargaining agreement contains a manning provision requiring a minimum licensed deck officer complement of a master and four mates (chief mate, second mate, and two third mates), as opposed to the master and three mates required by the contract between MEBA and O.B.O. Ship Operators, Inc. However, the article II, section 2(a), of the collective-bargaining agree- ment covering unlicensed seamen, which states: One man in each department shall be elected by the Unlicensed Seamen in that department to act as Departmental Delegate. Such Delegates shall, together with the Permanent Ship's Committee members, keep track of all conditions and problems and grievances in their respective departments, and present to their superior officers, on behalf of the Unlicensed Seamen in their Departments, all facts, opinions and circum- stances concerning any matter which may require adjustment or improvement. The Respondent's Offshore Division, which conducted the picketing of the S/T Achilles, is composed of some 6,000 members, all of whom work as licensed deck officers and, concededly, are statutory supervisors. The approxi- mately 250 unlicensed, nonsupervisory employees included in the Respondent's membership, belong to its Inland Division. Under the Respondent's constitution, the Inter- national president, executive vice president, and secretary- treasurer, who are elected in a unionwide election, automatically become the executive officer, assistant executive officer, and contract enforcement and chief fiscal officer, respectively, of each of its five divisions. While other officers are elected by the division membership, a number of persons are officials of both the Offshore Division and the Inland Division. The Offshore Division has its own bylaws and treasury, collects dues, and has its own negotiating committee which prepares contract de- mands, negotiates contracts, and calls strikes. However, under the Respondent's constitution, collective-bargaining agreements "must be made in the name of the Internation- al Organization of Masters, Mates and Pilots," after express approval of such agreements by the International president. C. Conclusions The Respondent contends that picketing of the S/T Achilles was the sole responsibility of its Offshore Division which, it asserts, is not a "labor organization" since it does not represent "employees" or admit them to membership. However, in prior cases, 4 the Board has examined the structural relationship existing between the Respondent and its Offshore Division, and concluded that the Offshore Division is an integral part of the Respondent and, in circumstances similar to those in the present case, acts as an arm or agent of the Respondent in attempting to enforce the terms of the Respondent's master collective- bargaining agreement. Indeed, the degree of control over the Offshore Division's affairs which is reserved to the Respondent by its constitution, has led the Board to conclude, in Seatrain, that "the interrelationship between MM&P International and its various divisions, or subordi- nate bodies, is such that MM&P, together with its Respondent itself has signed contracts requiring a complement of a master and three mates. I See, e.g., International Organization of Masters. Mates and Pilots, AFL- CIO (Searrain Lines, Inc.), 220 NLRB 164 (1975). 250 INTERNATIONAL ORGANIZATION OF MASTERS, MATES AND PILOTS constituent organizations, constitute a labor organization within the meaning of the Act." Accordingly, I conclude that the Respondent is legally responsible for the picketing activities complained of herein. I further conclude, based on the terms of the collective- bargaining agreement covering the unlicensed seamen, and the uncontradicted testimony of Fertig and Weigel, that the licensed deck officers aboard the S/T Achilles, including the third mate, have grievance-adjusting authori- ty and functions with respect to the unlicensed, nonsuper- visory personnel aboard that vessel. Moreover, those officers are conceded statutory supervisors and, thus, even in the absence of evidence of grievance-adjusting authority, I would conclude that they are "employer representatives" within the meaning of Section 8(b)(1XB). For, the Board has held that: All persons who are "supervisors" within the meaning of Section 2(11) of the Act are employers' representa- tives for the purposes of collective-bargaining or the adjustment of grievances within the purview of Section 8(bXI)(B) of the Act. 5 Section 8(b)(l)(B) of the Act provides that "It shall be an unfair labor practice for a labor organization or its agents to restrain or coerce an employer in the selection of his representatives for the purposes of collective-bargaining or the adjustment of grievances." It is settled law that a labor organization violates that provision by applying restraint and coercion, in the form of strikes and/or picketing, with an object of forcing an employer to select unwanted representatives or to forego representation by representa- tives of his own choosing. As indicated, the Board has repeatedly found that this Respondent has violated Section 8(bXIXB) by picketing vessels with an object of forcing their employer-owners to replace the licensed deck officers who are members of MEBA, with licensed deck officers who are members of the Respondent. In so doing, the Respondent sought to obtain recognition as sole collective-bargaining representative of such officers, and to impose its own terms and conditions of employment on the licensed deck officers. That, in the instant case, the Respondent assertedly sought to cause the hiring of an additional licensed deck officer, rather than the replacement of existing officers, seems to me a distinction without real meaning. In either case, the employer is restrained in his right freely to designate his representatives. The right to select representa- tives, and to secure their loyalty, free from coercion by a labor organization, cannot logically extend only to the identity of the individuals, and not to their number. In Laborers' International Union of North America, AFL-CIO, Local 478 [International Builders of Florida, Inc.],6 the Board similarly concluded, holding: I Operating Engineers, Local No 501 (Anheuser Busch, Inc.), 199 NLRB 551 (1972); See also United Brotherhood of Carpenters & Joiners of America, Local Union No. 14, AFLCIO0 (Max M. Kaplan Properties), 217 NLRB 202 (1975). 6 204 NLRB 357, enfd. 503 F.2d 192 (C.A.D.C., 1974). 7 In view of my decision herein, I need not pass upon the General Counsel's alternative contention that an object of the Respondent's picketing was to secure the replacement of the licensed deck officers. represented by MEBA, by licensed deck officers represented by the We are in agreement with the Administrative Law Judge that the Respondent, by insisting that Davis be hired as foreman, either in Wilson's place or under Wilson, violated Section 8(bX)(IXB) of the Act. [Empha- sis supplied.] Accordingly, I conclude that the Respondent, by picketing the S/T Achilles, with an object of forcing or requiring Newport Tankers Corporation and O.B.O. Ship Operators, Inc., to conform to the manning provisions of the Respondent's master agreement by the addition to their complement of licensed deck officers of an additional third mate, has violated Section 8(bXIXB) of the Act.7 III. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, ocurring in connection with the operations of the Employer described in section 1, 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 commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in unfair labor practices in violation of Section 8(bXIXB) of the Act, I shall recommend that it be ordered to cease and desist therefrom and take affirmative action designed to effectu- ate the policies of the Act. In view of the Respondent's demonstrated proclivity to engage in conduct violative of Section 8(bX)(XB), I shall recommend an order which is broad in scope. CONCLUSIONS OF LAW I. International Organization of Masters, Mates and Pilots, is a labor organization within the meaning of Section 2(5) of the Act. 2. Newport Tankers Corporation is an employer en- gaged in commerce, and in operations affecting commerce, within the meaning of Section 2(2), (6), and (7) of the Act. 3. By its picketing activities, as found hereinabove, the Respondent, International Organization of Masters, Mates and Pilots, has engaged in unfair labor practices in violation of Section 8(bX IXB) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. Upon the foregoing findings of fact, and conclusions of law, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: Respondent. I note, however, that such an object is indicated by: (I) The Respondent's conduct in past cases; (2) the fact that its picket signs in this matter untruthfully stated that the second and third mates were not covered by a collective-bargaining agreement; and (3) the fact that the Respondent has itself negotiated contracts requiring licensed deck officer complements of a master and three mates. These factors indicate that the Respondent's picketing objectives would have been only partially satisfied by the addition of another third mate. 251 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ORDER 8 The Respondent, International Organization of Masters, Mates and Pilots, Norfolk, Virginia, its officers, agents, and representatives, shall: 1. Cease and desist from: (a) Picketing the S/T Achilles, or any other vessel owned or operated by any employer, with an object of causing Newport Tankers Corporation, O.B.O. Ship Operators, Inc., or any other employer engaged in commerce, or in an industry affecting commerce, to add to, or replace, their complement of supervisory licensed deck officers or any other supervisors within the meaning of the Act. (b) In any other manner restraining or coercing any employer engaged in commerce, or in an industry affecting commerce, in the selection of its representatives for the purposes of collective-bargaining or the adjustment of grievances. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Post at all its business offices and meeting halls in the United States (including the offices and meeting halls of its Offshore Division) copies of the attached notice marked "Appendix." 9 Copies of said notice, on forms provided by the Regional Director for Region 5, after being duly signed by the Respondent's representatives, shall be posted by the 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 the Respondent to insure that said notices are not altered, defaced or covered by any other material. (b) Furnish the Regional Director for Region 5 with signed copies of the aforesaid notice for posting by Newport Tankers Corporation and O.B.O. Ship Operators, Inc., if willing, at places where they customarily post notices to their employees. (c) Notify the Regional Director for Region 5, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. 8 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. 9 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 read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Board." APPENDIX NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT picket the S/T Achilles, or any other vessel owned or operated by any employer, with an object of causing Newport Tankers Corporation, O.B.O. Ship Operators, Inc., or any other employer engaged in commerce, or in an industry affecting commerce, to add to, or replace, their complement of supervisory licensed deck officers or any other supervi- sors within the meaning of the Act. WE WILL NOT in any other manner restrain or coerce any employer engaged in commerce, or in an industry affecting commerce, in the selection of its representa- tives for the purposes of collective-bargaining or the adjustment of grievances. INTERNATIONAL ORGANIZATION OF MASTERS, MATES AND PILOTS 252