Reynolds Metal Co.

624 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Reynolds Metals Company and Ocean-Trailer Trans- port Corp. and Seafarers International Union, At- lantic, Gulf, Lakes & Inland Waters District and International Organization of Masters, Mates & Pi- lots, Associated Maritime Workers, Local 8, AFL- CIO, Party to the Contract. Case 12-CA-6010 July 28, 1975 DECISION AND ORDER BY MEMBERS FANNING, KENNEDY, AND PENELLO On April 23, 1975, Administrative Law Judge John G. Gregg issued the attached decision in this pro- ceeding. Thereafter, the General Counsel and the Charging Party filed exceptions and supporting briefs. The Respondent' and the Party to the Con- tract filed answering briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge, as modified herein, and to adopt his recommended Or- der. In December 1972, Respondent and the Seafarers International Union (herein called Seafarers) execu- ted a collective-bargaining agreement 2 (herein the 1972 agreement) effective June 16, 1972, revising a prior agreement. This agreement, inter alia, recog- nized the Seafarers as the exclusive representative of all unlicensed personnel employed on "American flag Gantry-type Self-unloading vessels" 3 owned and operated by Respondent. At the time the 1972 agreement was entered into, Respondent operated and continues to operate only two deep-hold self- unloading or gantry-type vessels, the SS Inger and the SS Walter Rice. In addition to the gantry-type vessels, Respondent on July 1, 1970, chartered a non- gantry vessel,4 the MV Siboney. Respondent also op- 1 The term Respondent refers to Reynolds Metals Company and its whol- ly owned subsidiary Ocean-Trailer Transport Corp. 2 This agreement extended the parties' previous agreement to October 1, 1975. 3 Although the vessels to be covered by the 1972 agreement are described twice in its introductory paragraph as "American Flag Gantry -type Self- unloading Vessels," the Seafarers contends that the description, "American flag Vessels," used in the contract's recognition clause is the language which controls the scope of the contract . We believe that the preponderance of the evidence, presented in the upcoming paragraphs , clearly indicates that the contract was to cover only "American Flag Gantry-type Self-unloading Vessels." 4 The difference between a gantry and a nongantry vessel is that a gantry vessel has a crane which is used in unloading the cargo whereas a nongantry erated two tugs which admittedly were not covered by the contract. Eduardo Garcia, general manager of Respondent's wholly owned subsidiary Ocean-Trailer Transport Corp., suggested in December 1972 that the Respon- dent use the Siboney to provide turn-around shipping service between Miami and San Juan, Puerto Rico. Sometime in January 1973, Garcia asked the Seafar- ers what kind of "area contract" would be applicable to the Siboney. Later that month the Seafarers gave Garcia its standard form agreement I for unlicensed personnel. When the Respondent decided that it would at- tempt the Miami-San Juan operation with the Sibo- ney, Garcia was told to set up the operation and to hire unlicensed seamen for the vessel . The Respon- dent, apparently not pleased with the Seafarers stan- dard agreement, notified the International Organiza- tion of Masters, Mates & Pilots, Associated Maritime Workers, Local 8, AFL-CIO (herein called MMP) and requested that the MMP supply unlicensed sea- men for the Siboney. Thereafter, Garcia signed a col- lective-bargaining agreement on February 20, 1973, with MMP, recognizing MMP as the bargaining agent for the seamen aboard the Siboney. After learning that the crew for the Siboney had been obtained from another union , the Seafarers sent Respondent a telegram on February 28, 1973, in which it contended that the parties' 1972 agreement covered the Siboney and that by contract the Re- spondent was required to obtain its crew from the Seafarers hiring halls. The day the Siboney was to make its maiden voyage, the Seafarers picketed the area around the ship, stopping its loading. To stop the picketing, the Respondent on March 12, 1973, commenced injunction proceedings in the District Court for the Southern District of Florida, contending that the picketing should be enjoined and that, pursuant to the existing contract with the Sea- farers, the parties should be ordered to arbitrate the Siboney issue.6 However, the Seafarers argued that the contract did not cover the Siboney and therefore the contract's arbitration clause was inapplicable. Further, counsel for the Seafarers told the court that vessel has no such unloading device. S Unlike the parties' 1972 agreement , the Seafarers standard agreement only described the ships to be covered as American flag vessels. Although the 1972 agreement contained basically the same clauses as the standard agreement, the first paragraph in the parties ' existing agreement, character- ized by the Administrative Law Judge as a "preamble ," begins: "This Agree- ment covering American Flag Gantry-type Self-unloading Vessels ...:. It also contains the duration provisions. 6 Note that in the injunction proceeding (Reynolds Metals Company v. Seafarers International Union, 73-412-CIV-WM) the Respondent did not contend that the contract covered the Siboney, but only that the parties should arbitrate the issue . The court, apparently accepting the Seafarers argument that the contract did not apply , neither enjoined the picketing nor ordered the parties to arbitrate. 219 NLRB No. 128 REYNOLDS METALS COMPANY the Siboney was not the same type of vessel as those covered in the 1972 agreement and that, inasmuch as the vessels were different, "the wages, terms and con- ditions, etcetera, in each kind of vessel would be en- tirely different," requiring a different collective-bar- gaining agreement. In contrast to the position taken at the injunction proceeding, the Seafarers on March 12, 1974, filed unfair labor practice charges alleging that the Re- spondent had violated Section 8(a)(1), (2),' and (5) by giving unlawful assistance to the MMP, and by refusing to recognize and bargain with the Seafarers, pursuant to the parties' 1972 agreement, as the repre- sentative of the Siboney unlicensed personnel. In view of the foregoing, we find that the prepon- derance of the evidence indicates that the parties did not intend their 1972 collective-bargaining agree- ment to cover nongantry-type vessels such as the Si- boney. We agree with the Administrative Law Judge that by its terms the 1972 agreement limits its cover- age to "American flag Gantry-type Self-unloading Vessels," and thus has no application to the nongan- try Siboney. Also the Seafarers apparently did not consider the Siboney as accreted to the existing unit, inasmuch as the Seafarers failed to raise the accre- tion issue at the time the Respondent requested in- formation as to what type of area contract might be applicable in the contemplated use of the Siboney. Moreover, the Seafarers took the position in the in- junction proceeding that the parties' existing agree- ment did not cover the Siboney and that the Seafarers would not apply the same contract to the Siboney. Accordingly, we find that the Siboney was not an accretion to the existing unit represented by the Sea- farers and that the Respondent therefore did not vio- late the Act by refusing to recognize and bargain with the Seafarers as the representative of the Sibo- ney crew. Therefore, we shall dismiss the complaint. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as jts Order the recommended Order of the Administrative Law Judge and hereby orders that the complaint be, and it hereby .is, dis- missed in its entirety. 7 The Charging Party agreed in the parties' stipulations dated December 18, 1974, (Joint Exh. 2) to withdraw the 8(a)(2) charge. The parties further stipulated that an 8(a)(2) violation would be found only if the Board found an 8(a)(5) violation. DECISION 625 JOHN G. GREGG, Administrative Law Judge: This pro- ceeding was held before me at Coral Gables, Florida, on December 17 and 18, 1974. The complaint which was is- sued on May 22, 1974, pursuant to a charge duly filed on March 12, 1974, alleges that Respondents violated Section 8(a)(1), (2), and (5) of the National Labor Relations Act, as amended. Upon the entire record, including my observation of the demeanor of the witnesses as they testified, and after due consideration of the briefs, I make the following: FINDINGS OF FACT 1. JURISDICTION Reynolds Metals Company is a Delaware corporation with its principal office and place of business located at Richmond, Virginia, and at all times material herein, has been engaged in various States of the United States in a fully integrated enterprise in aluminum, from the mining of the ore to the manufacture and sale of the finished product. During the calendar year 1973, Reynolds manufactured, sold, and shipped products valued in excess of $50,000 di- rectly to customers across state lines. Ocean-Trailer Transport Corporation, a Delaware cor- poration and a wholly owned subsidiary of Reynolds, has its principal office and place of business located at Miami, Florida, and, at all times material herein, is and has been engaged in the business of owning and operating an Amer- ican flag vessel, the MV Siboney, which transports goods and commodities in interstate commerce. During the cal- endar year 1973, Ocean-Trailer derived a gross revenue from such operations in excess of $50,000. Reynolds and Ocean-Trailer are now, and have been at all times material herein, individually and collectively, an employer engaged in commerce within the meaning of Sec- tion Z(6) and (7) of the Act. Seafarers International Union, Charging Party herein, is now, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. International Organization of Masters, Mates and Pilots, Party to the Contract herein, is now, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. 11. THE ALLEGED UNFAIR LABOR PRACTICES The complaint alleges, essentially that on or about De- cember 12, 1972, Reynolds and the Seafarers International Union executed a collective-bargaining agreement (herein the 1972 agreement) revising an agreement effective Octo- ber 1, 1970; that the 1972 agreement, inter alla, recognized the-Seafarers International Union as the exclusive repre- sentative of all unlicensed personnel employed on Ameri- can flag vessels owned and operated by Reynolds, for the purposes of collective bargaining in• respect to rates of pay, wages, hours of work, and other conditions of employ- ment; that all unlicensed personnel employed by Respon- 626 DECISIONS OF NATIONAL LABOR RELATIONS BOARD dent on American flag vessels owned and operated by Re- spondent, excluding guards, professional employees and supervisors as defined in the Act , constitute a unit appro- priate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. The complaint further alleges that the Seafarers Interna- tional Union, since on or about a date prior to October 1, 1970, and at all times material herein, has been, and is, the representative for the purposes of collective bargaining of the employees in the unit described above, and by virtue of Section 9(a) of the Act has been and is now the exclusive representative of all employees in said unit for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, or other conditions of employment; that on or about August 18, 1972, Ocean-Trailer assumed the charter of the MV Siboney, and on or about March 9, 1973, until sometime in 1974 , the Siboney has been trans- porting cargo in containers between Miami, Florida, and San Juan, Puerto Rico, and that the employees of the Sibo- ney constitute an accretion to the fleet-wide unit, as de- scribed in the 1972 agreement, supra. The complaint further alleges , essentially, that the Sea- farers International Union has requested , and is request- ing, Respondent to bargain with it as the sole and exclusive representative of the unlicensed employee personnel of the Siboney as part of the unit set forth above , since on or about a date prior to February 20, 1973 , when it submitted a form of contract covering unlicensed Maritime personnel to Ocean-Trailer's General Manager Garcia; and on or about February 29, 1973, when the Seafarers International Union sent a telegram to Respondent demanding, inter alia, compliance with respect to the employees of the MV Siboney; and that since on or about February 12, 1973, and continuing to date, Respondent has rendered, and is ren- dering, unlawful aid, assistance, and support to the MMP, and has refused and continues to refuse to recognize and bargain collectively with the Seafarers International Union as the collective-bargaining representative of its employees in the unit set forth above, by the acts of Travers, master of the Siboney, on or about February 12, 1973 , notifying the MMP that the MV Siboney was about to become opera- tional and requesting the MMP to supply unlicensed sea- men, and thereafter allowing MMP to supply personnel to operate the vessel ; by acts of Garcia, general manager of Ocean-Trailer, on or about February 15, 1973, reviewing a draft contract proposal by the MMP specifically tailored for the MV Siboney before the MMP actually represented a majority of the unlicensed personnel of the MV Siboney and before on or about February 19, 1973 , when the MMP purportedly claimed to Respondent that it represented a majority of said employees of the MV Siboney; and by Garcia, on or about February 20, 1973, executing a collec- tive-bargaining agreement with MMP whereby MMP was recognized as the bargaining agent of the employees aboard the MV Siboney, and which agreement sets forth the wages, hours, and working conditions of said employ- ees. The complaint alleges that, by the acts described above and by each of said acts, Respondent did render, and is rendering, unlawful assistance and support to a labor orga- nization, and thereby did engage in, and is engaging in, unfair labor practices affecting commerce within the mean- ing of Sections 8(a)(2) and 2(6) and (7) of the Act; and did refuse, and is refusing, to bargain collectively with the Sea- farers International Union as the bargaining representative of its employees, and thereby did engage in, and is engag- ing in, unfair labor practices affecting commerce within the meaning of Sections 8(a)(5) and 2(6) and (7) of the Act; and did interfere with, restrain , and coerce, and is interfer- ing with, restraining, and coercing, its employees in the exercise of rights guaranteed in Section 7 of the Act, and thereby did engage in, and is engaging in, unfair labor practices affecting commerce within the meaning of Sec- tions 8(a)(1) and 2(6) and (7) of the Act. A. Factual Background and Stipulations A hearing on the issues herein was conducted by Admin- istrative Law Judge Samuel Ross, on June 25 and 26, 1974, in Coral Gables, Florida, and was then adjourned sine die to allow counsel for General Counsel to seek enforcement in Federal court of subpenas not complied with by Reyn- olds, Ocean-Trailer, and MMP. Following an order of the United States District Court , entered on October 24, 1974, enforcing the subpenas, the hearing was resumed before me in Coral Gables , Florida, on December 17, 1974, and closed on December 18, 1974 . During this hearing, all of the parties entered into an informal settlement agreement of the 8(a)(2) allegations of the complaint herein and also entered into a set of factual and other stipulations with respect to the remaining 8(a)(5) allegations of the com- plaint. No testimony was taken in the proceedings , and the remaining issue is to be determined on the basis of the stipulations, admissions, and the record as a whole. The parties hereto, having stipulated, inter alia, and it being uncontrovcrted on the record , I hereby find that there is common control of the labor relations of all em- ployees of Reynolds Metals and Ocean -Trailer by Reyn- olds, and Reynolds and Ocean-Trailer are a single employ- er under Board law. At all times material hereto, Reynolds has operated and continues to operate two deep-hold self-unloading cargo, gantry-type vessels, the SS Inger and SS Walter Rice, American flag vessels operating between Corpus Christi, Texas, and Longview, Washington, Hawaii and Galveston, Texas, under the Seafarers International Union contract covering the unlicensed seamen aboard the vessels. Between December 1973 and March 1974, the two ves- sels have been periodically time-chartered to unrelated cor- porations and have operated between Burnside , Mississip- pi, and Tampa, Florida ; Hampton Roads, Virginia, and Salem, Massachusetts ; Panama City, Florida, and the State of Washington; Houston, Texas, and Chile, South Ameri- ca, and Mobile, Alabama. Prior to December 1973, the Inger and Rice regularly, with infrequent exceptions, plied between Texas and the State of Washington. At all times material hereto until April 7 , 1974, Reynolds and Ocean-Trailer operated the MV Siboney, an American flag vessel, between the ports of Miami, Florida, and San Juan, Puerto Rico, every week . The Siboney is a nongantry- type motor vessel and is the world's largest ocean-going aluminum ship especially designed for the transportation REYNOLDS METALS COMPANY of trailers and dry or refrigerated containers; and it will also transport automobiles , trucks, heavy construction ma- chinery, and general outsized cargo . After April 6, 1974, and until September 11, 1974, the Siboney was time-char- tered to another unrelated corporation and to the Military Sealift Command, and MMP continued to supply and rep- resent the unlicensed seamen of the Siboney during such period. The Siboney has not been operated since September 11, 1974, and has at present no persons in its employ. The Siboney is 306 feet long and carries a variety of car- go, principally containers. It has no vessel-mounted cranes and no hatches, and loads through a stern opening with drive-on, drive-off loading. A round trip between Miami and San Juan took 7 days. The Inger and Rice are each 626 feet long, and are un- loaded and loaded via vessel-mounted cranes reaching into hatches to pick up the dry bulk cargo; then the cargo is discharged to a hopper mounted between gantry legs; and the hopper discharges the cargo to a conveyor which leads into a shore hopper. The Inger and Rice are the only gantry vessels in the world capable of unloading dry bulk cargo. The runs for the Inger and Rice took 17 days one way. The Inger and Rice regularly transport aluminum from Texas to Washington, and sugar on the return trip from Hawaii to Texas. There were no transfers to employees among the Inger, Rice, and Siboney. There have been transfers of employees between the Inger and Rice. The maritime industry is a hiring hall industry. The Inger and Rice employees came from Seafarers International Union hiring halls and Sibo- ney employees came from MMP hiring halls, all pursuant to their respective collective-bargaining agreements. The cargoes of the Siboney, Inger, and Rice were loaded and unloaded by nonseamen (on-shore personnel). The crews of the three vessels maintain the equipment on board, including the gantries and doors. Garcia had the power to hire and fire office employees in Miami, except for management-level employees, who were to be hired in consultation with Donald B. Wood. Garcia delegated hiring of seamen to the Siboney's master. Ocean- Trailer's office was in Miami; the Marine Division Office was, and is, in Corpus Christi, Texas, the site of Wood's office. Cargo for the Siboney was solicited from the Miami office by Ocean-Trailer's Miami employees. Donald B. Wood was in direct control of the Inger and Rice, and had ultimate control of Garcia, but Garcia was in charge of daily operations in Miami, and Wood was not involved in the daily operations. It is also stipulated , and I find, that the Seafarers Inter- national Union and Reynolds Metals Company Marine Division have had collective-bargaining agreements-since 1962. The record reveals that the Respondents, Reynolds and Ocean-Trailer, assert, and the other parties have no facts to controvert the following four paragraphs which I find as facts: During that period of time, Reynolds and/or its subsid- iaries operated the following American flag vessels: The MT El Buey Grande, a 3,500 horsepower, 126-foot, ocean-going tug operating between Guiana and Trinidad, was time-chartered to Reynolds in September 1962. After 627 two voyages, it was bareboat chartered to Reynolds on Oc- tober 5, 1962. It so remained until March 18, 1965. On September 3, 1965, it was chartered to Caribbean Steam- ship Company, S.A., a subsidiary of Reynolds. On March 1, 1968, the vessel was sold but the bareboat charter to Caribbean continued, On or about January 18, 1972, it was sold to Tidewater Balboa, Inc., an unrelated corporation. MT El Toro Grande, another such tug of the same size and operating the same run, was also bareboat chartered to a subsidiary of Reynolds from March 1, 1965, until on or about January 18, 1972, when it was also sold to Tidewater Balboa, Inc. Neither of the foregoing vessels was operated under a bargaining agreement with the Seafarers International Union, or any other labor organization, and neither was a gantry-type vessel. The Seafarers International Union asserts, the other par- ties have no facts to controvert, and I find, that: The Seafarers International Union represents unlicensed seamen employed solely on deep seagoing tankers and freightships. It does not represent unlicensed seamen em- ployed on tugs. Even if it knew of their existence, no de- mand would have been made for recognition inasmuch as it does not represent unlicensed seamen employed on tugs. Such unlicensed seamen employed on tugs are tradi- tionally represented by the Inland Boatmen's Union, an autonomous affiliate of the Seafarers International Union and a wholly different labor organization. The Seafarers International Union represents unlicensed seamen employed on supertankers which are larger than the Inger and Rice, and on vessels which are the same size or smaller than the Siboney. There are various owners and operators in the maritime industry in contractual relations with the Seafarers International Union which maintain fleet-wide units consisting of smaller and larger vessels. The Seafarers International Union maintains hiring halls, inter alia, in Seattle, Washington; San Francisco and Wilmington, California; Houston, Texas; New Orleans, Louisiana; Mobile, Alabama; and Tampa and Jackson- ville, Florida. The Seafarers International Union has contractual rela- tionships with various owners and operators who maintain fleet-wide units which consist of vessels which have cranes or gantries capable of self-loading and unloading as well as other vessels which do not have such equipment or capabil- ities. The Seafarers International Union also has contractu- al relationships with other owners and operators who maintain fleet-wide units and who own or operate only one or the other type of vessel. B. Facts Relating to the Execution of the Contract With MMP Around December 1972, Eduardo Garcia attempted to interest Reynolds Metals in the concept of providing turna- round shipping service between Miami and San Juan, Puerto Rico. Some time in January 1973, Garcia made in- quiries of the Seafarers International Union as to what kind of "area contract" the Seafarers International Union felt would be applicable to a vessel with the Siboney's pecu- liarities in the contemplated run. (The vessel was then laid 628 DECISIONS OF NATIONAL LABOR RELATIONS BOARD up in Morgan City, Louisiana, for repairs and outfitting for sea.) On or about some time before mid-January 1973, Garcia was given by a Seafarers International Union repre- sentative a standard form of Seafarers International Union agreement for unlicensed personnel containing tentative cost figures, including wage and fringe benefit rates. This is Seafarers International Union's standard freightship agree- ment for the Maritime industry covering unlicensed per- sonnel. Around the same time that Garcia received from the Seafarers International Union the foregoing agreement, he also received a companion contract from District 2, MEBA (for licensed personnel). Garcia worked up all cost figures, including costs based on these contracts , and sub- mitted same to Reynolds Marine Division, Around mid-January, Reynolds decided it would at- tempt the Miami-San Juan operation with the Siboney. Garcia was to set up the operation and did so. He proceed- ed to get tariffs, office space, prepare budgets, set up ad- ministrative tables of organization, etc. Subject to the ap- proval of Reynolds Marine Division as to the cost thereof being within industry standards , he was authorized to ne- gotiate collective-bargaining agreements. Prior to this time, the record reveals that on December 12, 1972, Respondent and the Seafarers International Union executed a collective-bargaining agreement , effec- tive June 16, 1972, revising an earlier agreement which be- came effective October 1 , 1970. The preamble of that agreement provides in part as follows: This Agreement covering American Flag Gantry- Type Self-Unloading Vessels is entered into by and between the Seafarers International Union of North America, Atlantic and Gulf District affiliated with the American Federation of Labor and Congress of In- dustrial Organizations , hereinafter referred to as the Union, and the undersigned company , and any of its subsidiary companies, which may be formed to oper- ate American Flag Gantry-Type Self-Unloading Ves- sels in effect until October 1st, 1975, and shall contin- ue from year to year thereafter unless either party hereto shall give written notice to the other of its de- sire to amend or terminate same, which notice shall be given at least 60 days prior to the expiration date.... The contract provides for the recognition of the Seafar- ers International Union, as follows: Section 1 . Recognition . The Company recognizes the Union as the exclusive representatives of the unli- censed personnel (hereinafter sometimes called the Unlicensed Personnel) employed on American Flag Vessels owned and operated by the Company for the purposes of collective bargaining in respect to rates of pay wages, hours of work and other conditions of em- ployment. The crew for the Siboney was obtained by the master, on or about February 12, 1973, notifying the MMP that the vessel was about to become operational and requesting MMP to supply unlicensed seamen which it did. On or about February 15, Garcia reviewed a draft contract pro- posal by the MMP specifically tailored for the Siboney, and on or about February 20, executed a collective-bargaining agreement with MMP recognizing it as the representative of the employees aboard the Siboney. The Seafarers International Union, in addition to its contract proposal submitted to Respondent in January 1973, sent the following telegraphic demand for recogni- tion to Respondent on February 28, 1973, after it had learned that the crew for the Siboney had not been ob- tained from the Seafarers International Union hiring hall: REYNOLDS METALS CO MARINE DIV BOX 2311 CORPUS CHRISTI TEX RE MV SIVONEY [SIC] AS YOU KNOW THIS UNION AND YOUR CO HAVE IN FULL FORCE AND EFFECT A COLLECTIVE BARGAINING AGREEMENT. PURSUANT TO ARTICLE ONE, SECTION ONE OF SUCH COLLECTIVE BARGAINING AGREEMENT , THIS UNION IS THE SOLE AND EXCLUSIVE BARGAINING REPRESENTATIVE OF ALL UNLICENSED PERSONNEL EMPLOYED ABOARD ALL VESSELS OWNED AND-OR OPERATED BY YOU OR YOUR SUBSIDIARIES. AMONG OTHER PROVISIONS CONTAINED IN OUR COLLECTIVE BARGAINING AGREEMENT ARE PROVISIONS FOR THE EMPLOY. MENT OF ALL UNLICENSED SEAMEN FROM OUR HIRING HALLS WE HAVE ASCERTAINED THAT THE VESSEL MV SIVONEY [SIC] IS OWNED AND-OR OPERATED BY YOUR SUBSIDIARY OCEAN TRAILER TRANSPORT CORP AND NOT WITHSTANDING THE ABOVE COLLECTIVE BARGAINING AGREEMENT AND ITS PROVI- SION, YOU AND/OR YOUR SUBSIDIARY HAS FAILED AND RE- FUSED TO EMPLOY UNLICENSED SEAMAN FROM OUR HIRING HALL AS CONTRACTUALLY PROVIDED AND HAS FAILED AND REFUSE TO APPLY THE TERMS OF THE COLLECTIVE BARGAIN- ING AGREEMENT TO THIS VESSEL THE FORGOING CONSTITUTES A MOST SERIOUS AND MOST SUBSTANTIAL BREACH OF OUR COLLECTIVE BARGAINING AGREEMENT. UNLESS THIS BREECH [SIC] IS REMEDIED FORTH- WITH AND THE TERMS OF OUR COLLECTIVE BARGAINING AGREEMENT APPLIED TO SUCH VESSEL WE SHALL HAVE NO CHOICE BUT TO TAKE SUCH ACTION AND PROCEEDINGS AS MAY BE WARRANTED OR NECESSARY UNDER THE CIRCUMSTANCES YOUR IMMEDIATE REPLY OF COMPLIANCE IS REQUESTED AND WE RESERVE UNTO OURSELVES APPROPRIATE ACTION FOR DAMAGES SUSTAINED FRATERNALLY FRANK DROZAK VICE PRESIDENT C. Analysis, Findings, and Conclusions For the reasons explicated hereinafter, I am convinced and I find that the Respondents did not violate Sections 8(a)(l), (2), and (5) as charged in the complaint. In Moore-McCormack Lines, Inc., 139 NLRB 796 (1962), the Board stated in pertinent part that: As a general proposition we agree with the Petitioner's contention that units of seagoing person- nel should be fleetwide in scope.... Such units also conform to the pattern presently prevailing in the mar- itime industry. Moreover, there are obvious advan- tages in such a single unit : the elimination of inter- union rivalry with respect to similar employees of the same employer and consequent dimution of conflicts which may bring on work stoppages and the facilita- tion of transfers of personnel between ships of the same employer and of ships between different ship- owners. But these reasons for finding a fleetwide unit REYNOLDS METALS COMPANY appropriate may be overborne in a particular case by spe- cial circumstances which indicate the injustice or the un- suitability of applying the general rule. [Emphasis sup- plied.] In my view, the record herein amply supports a finding that the present case contains the underlying elements of special circumstances which indicate the unsuitability of applying the general rule of Moore-McCormack. Central to the resolution of this case is the issue of whether the Respondents violated Section 8(a)(5) and (2) of the Act by failing to accrete the Siboney to the existing fleet-wide unit covered by the 1972 agreement between Reynolds and Seafarers International Union. It is clear from the record and I find that the 1972 agreement by its terms, limits its coverage to "American Flag gantry-type self-unloading vessels." The United States District Court for the Southern District of Florida found that this 1972 agreement does not cover the Siboney, a finding also inde- pendently arrived at by the internal disputes referee in his determination, part of the record herein. Since accretion is not dictated by the existence of the 1972 agreement, is it automatically compelled by applica- tion of Moore-McCormack? In my view it is not, for the record herein amply supports a finding of the special cir- cumstances adverted to by the Board in Moore-McCor- mack. In finding such special circumstances herein, I have giv- en consideration to the following which I find as facts on this record and which in my view establish a pattern of bargaining on other than a fleet-wide basis. 1. That Reynolds Metals, under its marine division, op- erates two gantry-type vessels, the SS Inger and the SS Walter Rice, the employees of whom are covered under a collective-bargaining agreement with the Seafarers Interna- tional Union, which agreement excludes nongantry type vessels. 2. In addition, Reynolds and/or its subsidiaries operat- ed two other vessels, the MT El Buey Grande and the MT El Toro Grande, which are not gantry-type vessels and are not operated under a collective-bargaining agreement with any labor organization, including the Seafarers Interna- tional Union, which has made no claim that the vessels accrete to a fleet-wide unit. 3. The Siboney, a nongantry type vessel is operated by Ocean-Trailer Company, a subsidiary of Reynolds Metals. 4. The history of the vessel SS Siboney establishes with- out contradiction that this vessel was from July 1, 1970, bareboat chartered to Reynolds or its subsidiaries, to wit, St. George Corp., Pyramid Container Transport Corp., and, finally, Ocean-Trailer. 5. At various times during the history of this vessel, both the licensed and unlicensed personnel were represented by various labor organizations including the Seafarers Inter- national Union and the MMP. At no time did the Seafarers Union make a demand that this vessel, whatever name it was called, when it was under charter to Reynolds or its 629 subsidiaries, other than Ocean-Trailer, should be accreted to a fleet-wide unit, and this is so even though the 1972 agreement covering the SS Inger and the SS Rice is the last of many collective-bargaining agreements with the Seafar- ers International Union. 6. The vessels Inger and Rice are distinctly different not only because they are gantry-type vessels rather than non- gantry, as is the SS Siboney, but also in other respects, including the requirement for personnel with different skills. 7. There has never been any interchange or transfer of personnel among the Inger, Rice, and the Siboney, although there is interchange and transfer of personnel between In- ger and Rice. Inger and Rice personnel come from Seafar- ers International Union hiring halls while the Siboney em- ployees came from MMP hiring halls. For many years the Seafarers International Union has limited its collective-bargaining unit with Reynolds to gan- try-type vessels. There has been no bargaining with respect to nongantry-type vessels owned or operated by Reynolds or its subsidiaries. This equally applies to the Siboney from the time this vessel was bareboat chartered by Reynolds. The employees of this vessel have been represented throughout its history by both the Seafarers International Union and the MMP in different collective bargaining units. In sum total there is lacking a fleet-wide bargaining- unit history among all of Reynold' s vessels. Only with re- spect to the gantry-type vessels has there been fleet-wide bargaining. It is clear that Reynolds does not bargain with Seafarers International Union on a fleet-wide basis. It is also clear that assuming arguendo the nonlicensed personnel were ac- creted to the Seafarers International Union unit and Reyn- olds is required to bargain over these employees there would result an exacerbation of industrial conflict contrary to the doctrine of Moore-McCormack and, for that matter, the very purposes of the Act. Accordingly, I find and conclude that the unlicensed seamen employees of the MV Siboney are not an accretion to a fleet-wide unit herein, and that the Respondents have not violated Section 8(a)(1), (2), and (5) of the Act as al- leged in the complaint and I shall recommend dismissal of the complaint in its entirety. CONCLUSIONS OF LAW 1. The Respondents herein are individually and collec- tively an employer engaged in commerce within the mean- ing of Section 2(2), (6), and (7) of the Act. 2. The Seafarers International Union, Atlantic, Gulf, Lakes & Inland Waters District, and the International Or- ganization Of Masters, Mates & Pilots, Associated Mari- time Workers, Local 8, AFL-CIO, are labor organizations within the meaning of Section 2(5) of the Act. 3. The Respondents have not engaged in unfair labor practices within the meaning of Section 8(a)(1), (2), and (5) of the Act. 630 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon the foregoing findings of fact and conclusions of law and the entire record in this proceeding and pursuant to Section 10(c) of the National Labor Relations Act as amended, I hereby issue the following recommended: ORDER' The complaint is dismissed in its entirety. conclusions, and recommended Order herein shall, as provided in Sec 102.48 of the Rules and Regulations , be adopted by the Board and become In the event no exceptions are filed as provided by Sec. 102.46 of the its findings, conclusions, and Order, and all objections thereto shall be Rules and Regulations of the National Labor Relations Board, the findings, deemed waived for all purposes