American President Lines, Ltd.

AMERICAN PRESIDENT LINES, LTD. American President Lines, Ltd. and Ship Painters Local 961, International Brotherhood of Painters and Allied Trades, AFL-CIO and Carpenters Local Union No. 1149, United Brotherhood of Carpenters and Joiners of American, AFL-CIO. Cases 20-CA-10013-1 and 20-CA-10014--1 May 4, 1977 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND MURPHY On September 21, 1976, Administrative Law Judge Stanley Gilbert issued the attached Decision in this proceeding. Thereafter, the General Counsel and the Charging Parties filed exceptions and supporting briefs, and the Respondent filed cross-exceptions and a supporting brief and a reply brief to the General Counsel's and Charging Parties' exceptions and briefs. 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, cross- exceptions, and briefs and has decided to affirm the rulings, findings, and conclusions of the Administra- tive Law Judge 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 Administrative Law Judge and hereby orders that the complaint be, and it hereby is, dismissed in its entirety. DECISION STATEMENT OF THE CASE STANLEY GILBERT, Administrative Law Judge: Based on a charge filed in Case 20-CA-10013-1 on March 3, 1975, as amended on February 6, 1976, by Ship Painters Local 961, International Brotherhood of Painters and Allied Trades, AFL-CIO,' and by a charge filed in Case 20-CA- 10014-1 on March 3, 1975, as amended on February 6, Herein referred to as the Painters. 2 Herein referred to as the Carpenters. 3 Also consolidated with said cases was Case 20-CA-9827 in which a charge was filed by the Sailor's Union of the Pacific. but on April 2, 1976, the Regional Director issued an order severing said case (on her approval of a settlement agreement therein). Therefore, the complaint was amended by striking therefrom all references to Case 20-CA 9827 and the allegations relating to said case. 229 NLRB No. 79 1976, by Carpenters Local Union No. 1149, United Brotherhood of Carpenters and Joiners of America, AFL- CIO,2 an order consolidating said cases and the complaint herein were issued on February 9, 1976.3 The unfair labor practices alleged in the complaint, as amended, are, in essence, that American President Lines, Ltd., herein referred to as APL or Respondent, violated Section 8(a)(5) and (1) of the Act on or about December 3, 1974, by unilaterally subcontracting work performed by units of its employees represented by the Painters Union and Carpen- ters Union, respectively, without first bargaining with said Unions. By its answer, Respondent denies that it violated the Act as alleged.4 Pursuant to notice, a hearing was held in San Francisco, California, on April 21, 22, 23, 26, and 27, and May 13, 1976. Appearances were entered on behalf of all the parties and all parties filed briefs which have been carefully considered. Based upon the entire record s in this proceeding and my observation of the witnesses as they testified, I make the following: FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT Respondent, a Delaware corporation with a place of business located in San Francisco, California, functions as a common carrier owning and operating ships engaged in the transportation of cargo and passengers between west coast United States ports and ports in foreign countries. During the most recent calendar year, Respondent per- formed services valued in excess of $50,000 for customers located directly outside the State of California. As is admitted by Respondent, it is, and at all times material herein has been, an employer engaged in com- merce and in operations affecting commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATIONS INVOLVED As is admitted by Respondent, the Painters Union is, and at all times material herein has been, a labor organization within the meaning of Section 2(5) of the Act. As is admitted by Respondent, the Carpenters Union is, and at all times material herein has been, a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background Information The parties entered into the following stipulations: The first stipulation is for the 5 years preceding the end of December 1974; American President Lines shipping 4 The answer also includes an affirmative defense that said Unions discriminated on the basis of race and therefore cannot be the beneficiaries of a bargaining order (commonly referred to as the Mansion House defense) which is the remedy sought by the complaint. In view of the recommended dismissal of the complaint. set forth hereinbelow. the merits of said affirmative defense have not been considered. I All parties joined in a motion to correct the transcrpt. Errors have been hereby noted and corrected. 443 DECISIONS OF NATIONAL LABOR RELATIONS BOARD facilities were located at Pier 80, Third and Army Streets, San Francisco. During this period American President Lines employed approximately 35 employees separately represented by the following five unions to perform work within their respective jurisdictions relating to the maintenance, repair, and inspection of cargo containers, lashing gear and container truck chassis at Pier 80: (1) the Carpenters local 1149, United Brotherhood of Carpenters and Joiners of America; (2) Ship Painters Local union 961; (3) Marine Firemen, Oilers and Water Tenders Union; (4) the Sailors Union of the Pacific; and (5) Marine Engineers Beneficial Association. More specifically, the 14 employees represented by the Carpenters union did the following work: Emergency and minor repairs on containers located at Pier 80 which were owned and/or leased by American President Lines and rebuilding of such containers with major damage. The three employees represented by the Painters union did painting and resin work on containers located at Pier 80 which were owned or leased by American President Lines. The remaining maintenance and repair and inspection work at Pier 80 was done by the employees represented by the Sailors Union of the Pacific, the Marine Engineers Beneficial Association and Marine Firemen, Oilers, and Water Tenders union, respectively. The second stipulation is American President Lines does not have a current written collective-bargaining agreement with the Painters Union covering painters employed by American President Lines at Pier 80, but did recognize that union as collective-bargaining representative of American Presidents Lines' painters employed at Pier 80. The third stipulation is late in the summer of 1974 it was learned American President Lines might move from Pier 80 in San Francisco to the Marine Terminal at Berths C and D in Middle Harbor Terminal located at 1395 Middle Harbor Road in Oakland, California, commonly referred to as SeaTrain Terminal. At that time and for some time before that SeaTrain Lines, Inc., has had a preferential assignment agreement similar to a lease with the Port of Oakland to occupy and use the SeaTrain Terminal. SeaTrain has a collective-bargaining agreement with local 10, the International Longshoremen and Warehousemen's union covering repair, maintenance of tractors, containers, chassis, generator sets, yard vehicles and reefer units at Middle Harbor Terminal. The fourth stipulation is during the late summer of 1974 American President Line considered moving from Pier 80 to the SeaTrain Terminal. There were lengthy and complex discussions with the Port of Oakland and the Port of San Francisco, as well as other interested parties regarding the possibility of such a move. The fifth stipulation is that on or about November I I, 1974, the Federal Maritime Commission approved an interim agreement between American President Lines, SeaTrain, and the Port of Oakland under which American President Lines and SeaTrain contracted to share the SeaTrain Terminal with American President Lines to manage the terminal. Stipulation six is that on or about November 18, 1974, American President Lines began moving cargo and containers into the Middle Harbor Terminal under the terms of the interim agreement; under this arrangement, American President Lines and SeaTrain are the only users of Middle Harbor Terminal, while the containers owned by APL and SeaTrain each have the company's name or emblem on the side; both SeaTrain and American President Lines also lease containers which are owned by other companies and bear their names or emblem. The seventh stipulation is that on December 11, 1974, SeaTrain and American President Lines entered into a long-term agreement under which American President Lines will assume SeaTrain's preferential assignment agreement with the Port of Oakland for the SeaTrain Terminal and American President Lines will share usage of the Terminal with SeaTrain. It also states this agreement will go into effect when signed by the Port of Oakland and approved by the Federal Maritime Commission. Under its agreement with the Port of San Francisco, American President Lines had to be completely out of Pier 80 by December 31, 1974. B. Chronology of Events Herbert Riley, who at the time material herein was Respondent's vice president in charge of employee rela- tions, 6 credibly testified that in late summer 1974 he became aware of the possible move by APL to Oakland; that in September and early October he had several conversations with Huntsinger, an official of ILWU, during the course of which he was informed by Huntsinger that ILWU had a contract with SeaTrain for the M & R work at the Oakland terminal and had "geographical rights" to said work, and that if APL moved to said terminal its work would be performed by ILWU members, adding that APL "would have serious problems" if ILWU members "did not do the work." Riley further credibly testified that thereafter he had several conversations with Eugene Pentimonti, Respondent's director of engineering and maintenance, in which he told him of his conversations with Huntsinger; that the movement to Oakland did not relieve APL of its obligations under the contracts with the above-mentioned five unions representing the employees doing the M & R work at Pier 80 in San Francisco; and that "there were some possibilities of work stoppages of one sort or another as a result of these threats" from ILWU. Theodore Knudson, financial secretary and business representative of the Carpenters, credibly testified that his local had territorial jurisdiction in the San Francisco Bay area; that he first heard of the possibility of APL moving to Oakland in September 1974 through the public media; that he discussed the matter with representatives of the Painters; and that they agreed that they should meet with APL officials to learn what they could about the contem- plated move. 6 He severed his relationship with Respondent in March 1976. 444 AMERICAN PRESIDENT LINES, LTD. Arrangements were made for such a meeting at a luncheon at Bruno's restaurant in San Francisco on October 4. Present at the meeting representing APL were Riley and Mr. Peachey, labor relations manager, represent- ing the Painters, Leslie Moore, business representative of Painters Local 1176 (which had jurisdiction over the east side of the Bay) and a Mr. Werner, and representing the Carpenters, Knudson and Earl Mitchell. Moore acted as spokesman for the two Unions and Riley for APL. Riley, Knudson, and Moore testified about the meeting. Riley testified that the union representatives expressed concern over whether the move was going to be made and, if so, "who was going to get the work"; that he replied that it was not certain that the move was going to be made and that, if it was, there would be problems "between unions"; and that he expressed a "preference for the Carpenters and Painters with whom we had had contracts." Knudson testified that Riley stated that the move was not definite; that Moore stated that if the move was made "it was expected the crafts [the five Unions] doing the work at Pier 80 would continue to perform the same work" at Oakland; that Riley stated he wanted all five unions to do so; and that there was no discussion about a possible work problem at Oakland. However, on cross-examination Knudson testified that Riley might have said that the ILWU was claiming the work in the event APL moved to Oakland. Moore testified as follows: The meeting was called for the purpose of an orderly transfer of the people from San Francisco to Middle Harbor Road in Oakland. During the meeting there was quite a little discussion with respect to the Carpenters being a much easier thing to handle, because it was all under the same union. So it was just a matter of transferring their employment from San Francisco to Oakland and that they would maintain their same seniority in Oakland as they had in San Francisco. With the Painters it was a little different problem because there were two locals involved, but I assured them there would be no problem with the transfer of the Painters, because we had a working relationship between the two local unions and that as long as the Painters had seniority with American President Lines, they would be transferred to Oakland and they would remain members of Local 961 so long as they remained in good standing. And there would be no difficulty from that respect. With that, Mr. Riley stated he was very happy to hear this and it seemed to clear the way of a lot of problems, and that practically concluded the business end of the meeting. We had a nice lunch, enjoyed ourselves and felt we had established a good working relationship with American President Lines. Q. At this meeting, did Mr. Riley say to you there would be any difficulty in either the Painters or Carpenters going over to Middle Harbor Terminal? A. No. The only problem was considered to be a problem at that time, the fact that 961 and 1176 of the Painters Union - that problem. Any other problems other than that - there were none. Q. He said that at this meeting? A. Yes. The only conflicts in the testimony with respect to the meeting at Bruno's are whether or not Riley, as he testified, merely stated he preferred having the Painters and Carpenters in Oakland and mentioned a possible dispute with ILWU or, as indicated by the testimony of the two union representatives, he led them to believe that their members would have the work. In view of Riley's statement to Pentimonti that the move to Oakland would not relieve APL of its contractual obligations to the Pier 80 unions, I am of the opinion that he did lead Knudson and Moore to believe that their members would continue to do the M & R work at Oakland. However, I credit Riley's testimony that he did mention that there would be union jurisdictional problems raised at the Oakland terminal and, in view of the ILWU claim and threat, I believe he also mentioned the ILWU in particular. In any event, it is appropriate to infer that at the time of the October 4 meeting Knudson and Moore were aware of the possibility of a jurisdictional problem with the ILWU from the rumors which they admitted having heard and their knowledge that ILWU was doing the M & R work for SeaTrain at the terminal in Oakland. Riley credibly testified that in late October, at his suggestion, he had a luncheon meeting with Ward and Huntsinger, ILWU representatives. He credibly testified with respect thereto as follows: A. I said I was caught in an almost impossible situation as far as the variety of claims from six different unions to do the same work at the same facility, and that I was desperately looking for a way in which to resolve it. I suggested to them that at that point the only solution appeared to be some discussions and some compromises between the unions. I suggested they ought to get together with or without me and discuss the work assignments and how they might all somehow be accommodated. The response from either or both was that they thought there was some possibility, if the unions got together to discuss it, of compromise and settlement. I said, because of the serious problem APL had if we moved, that I was prepared to meet with any of them at any time, any place, together, separately, or in any manner to help to work out an answer to the problem. Either Mr. Ward or Mr. Huntsinger said that they thought they could meet with the other unions without my presence and it was a matter better settled between the unions. I agreed wholeheartedly with them on that statement. I said I agreed wholeheartedly with them. I told them I would leave it in their hands at that point, that I did not know anything further as to the timing of the move to Oakland or if it would happen at all, but that there should be some contingency plans and that they should be talking to each other in the event it came to pass. Riley further credibly testified that he again met with the two ILWU representatives, at his request, in early or mid- November. At that time he stated that "time was running 445 DECISIONS OF NATIONAL LABOR RELATIONS BOARD out," since it appeared more certain that APL was going to move to Oakland and he had been advised that the unions had not met. He urged the ILWU representatives to see whether some compromise could be worked out and was told by them that they would set up a meeting with "the other unions." He further credibly testified that he stated to them that there would be no assignment of the M & R work of APL at Oakland until the union dispute was resolved. Riley also testified that in early November he told Edmund Flynn, president of the Pacific Maritime Associa- tion, 7 of the union jurisdictional problems associated with APL's move to Oakland and asked him to obtain a legal opinion on the possibility of subcontracting the disputed work and was informed that PMA's legal counsel advised that it was "legal" to subcontract the work to a third party. Knudson credibly testified that around the middle of November he read that the Maritime Commission had approved APL's move to Oakland and called Mr. Peachey of APL who referred him to Riley; that he then called Riley and expressed his concern about getting his "people" over to the Oakland terminal to take care of work there within the jurisdiction of the Carpenters and was informed there was no such work at the Oakland terminal, and that no mention was made of the ILWU. Knudson further credibly testified that shortly thereafter he received a call from a Carpenters steward at Pier 80 who reported that he had a conversation wtih Joe Damas, a supervisor of Respondent, who told him "the Company was planning to phase out the Carpenters and that when they moved to Middle Harbor Terminal that the ILWU was going to do all their M & R work." A couple of days later (on November 20) Knudson and Mitchell of the Carpenters and Moore and Warner of the Painters had a conversation with Morris Weisberger, president of the Sailors Union, just before a meeting of the Maritime Trades Port Council of which Weisberger is president and with which the two unions were affiliated. Mitchell credibly testified with respect to the conversations as follows: A. Mr. Moore of the Painters did most of the talking. He informed Mr. Weisberger that we were concerned about American President Lines moving to Oakland and we wanted to know if we had any jurisdictional problems, if we had the backing of the Maritime Trades. And Mr. Weisberger assured us they would back us completely. Q. I don't mean to interrupt. Do you recall anything further? A. That's about all I recall. Q. Do you recall there being statement being made to the effect that Mr. Weisberger was to be [y]our spokesman in whatever developed? A. I believe we told Mr. Weisberger, after he assured us he would maintain the status quo, that he could speak on our behalf. Q. In relationship to whatever developed about this jurisdictional dispute? A. I don't think I made that broad statement. 7 Respondent is a member of the Association which represents its members in dealing with various unions but not with either the Carpenters or Painters. Q. (By Mr. Voltz) I understand there is a statement to the effect Mr. Weisberger was to be your spokesman in whatever developed. JUDGE GILBERT: Was there such a statement to that effect? THE WITNEss: I believe I made that statement in my disposition. JUDGE GILBERT: That is not the question. Q. (By Mr. Voltz) Do you recall that being said at the meeting with Mr. Weisberger? A. Words to that effect, yes. Knudson also credibly testified that in the course of the conversation Weisberger stated, "We are going to maintain the status quo for all five unions in the move to Oakland, the same ones we have at Pier 80." Weisberger was not questioned about the conversation, but denied that he had the authority to represent either the Carpenters or Painters in negotiations with APL. When questioned if he was ever asked by an official of APL whether he had such authority, he testified as follows: A. I only told them what I told you previously, that if there was an encroachment on the jurisdiction of any of the Painters or Carpenters or the Sailors jobs, that we would take direct action against American President Lines. With respect to Weisberger's authority, it appears that, on or about November 27, Knudson had a telephone conversation with Riley in which Riley said that Weisber- ger was going to be meeting with the ILWU on December 2, and when Riley asked him if Weisberger "is speaking for you?" he replied, "Yes, as far as I know Weisberger would speak for all the five crafts involved." It appears that neither the Carpenters Union nor the Painters Union was invited to attend the meeting and there is no explanation in the record as to why they were not. According to Riley's further credited testimony, he had a telephone conversation wtih either Ward or Huntsinger on November 18 or 19. His credited testimony as to their conversation is as follows: I asked what progress had been made with regard to meetings with the other unions, settlement of the problems, and the response was they had not yet had a meeting. I told him the extreme urgency of the matter inasmuch as on November 18, as I recall, APL began receiving cargo at Middle Harbor Terminal for the first time. And I should explain, by "cargo" we mean primarily containers. And when we start moving containers on a terminal, containers need often some repair and maintenance work on them. I told him I was not going to allow anyone to do any work on those containers that were moved there but that I was getting tremendous pressure from the operating department to find a settlement, find a 446 AMERICAN PRESIDENT LINES, LTD. solution, that would enable them to begin doing the work that had to be done when those containers were on the Terminal. I believe, as I best recall, I also told him in that telephone conversation that short any settlement between the Unions, the road APL had selected to get the work done was by subcontracting and that that was the plan at the time. James Madden, who at the time was in charge of the administration of SeaTrain's maintenance facilities, credi- bly testified that originally in discussions between APL and SeaTrain up to and including November 13, when he and a number of other executives of SeaTrain, including John Lamar, executive vice president, visited Oakland from the East, it was understood that APL would take over the operation and management of the terminal. This is reflected in the documents by which APL took over part of the Oakland terminal. He further credibly testified that he again visited the Oakland terminal about November 20 and met with officials of APL, including Riley. He further credibly testified as follows: A. Mr. Riley brought up the fact they had a problem with various unions and at that point they would not be able to perform the maintenance for SeaTrain. And he made a proposal that SeaTrain, in fact, do maintenance for American President Lines. Q. Did he explain why? A. I don't believe in any great detail. Just the fact there was a number of unions involved and there was some jurisdictional disputes, and he had been trying to get it resolved and had not, at that point, had any great success. But that he was continuing to work on it until he could resolve it. You know, he needed an alternative plan. * * * A. I called up John Lamar at his home in Connecticut for advice on what he wished to do. He stated Seatrain's position was, if it did not in any way violate a contract between the ILWU and Seatrain and that we would not get involved in any dispute APL had with their unions, we would. But that we did not wish to be a part of any dispute APL had. That if that were the case, we would perform their maintenance. It should be noted at this point that it appears from the record that the shop was so set up at the terminal that it was not practical for both SeaTrain and APL to do its own M & R work. Over the period from November 22 to early in Decem- ber, Madden and Eugene Pentimonti of APL exchanged proposed drafts of the agreement by which SeaTrain would handle all the M & R work (i.e., APL would subcontract its work to SeaTrain) and the final form was agreed upon and executed about December 9. Madden further credibly testified as follows: Realizing the problem APL had, we did not want to be in position where APL had demanded an agreement and brought in their own union at the expense of the ILWU, since we had a collective bargaining agreement with the ILWU. Q. Were there conversations between yourself and Mr. Pentimonti as to that first paragraph? As to the length of time the contract was to be in effect? A. Yes. We agreed - and this is taxing my recollection - I believe we did agree we would terminate the contract if APL could satisfactorily resolve their problems. Q. Could you explain what you mean by that? A. If APL could get an agreement, either with their own unions or the ILWU, to perform the work, or, you know, whatever machinery APL needed to satisfactori- ly report or perform the maintenance work at Middle Harbor Terminal. Q. What would happen? A. That we would revert to the original intent, the master agreement, and allow APL to take over the total management of the facilities, which include the mainte- nance work. Q. This discussion as to American President Lines being able to work out its difficulties - was there any discussion as to what sort of resolution would be acceptable to Seatrain? A. No, I don't believe so. Q. Was there ever any possibility, as far as you were aware, Mr. Madden, that the craft unions would be doing the maintenance work at Middle Harbor Terminal? A. We never really discussed it, so long as the work was done. JUDGE GILBERT: Did you testify earlier that Seatrain was interested in making sure that ILWU men did the work at the terminal? THE WITNESS: Right. But, excuse me, Your Honor. I did not quite finish my response. A. (Continuing) We did not really concern our- selves with who did the work, so long as the ILWU was satisfied and Seatrain was satisfied. You know, we were not really concerned about the ILWU actually doing the container work, so long as if, in fact, they did not do it, they would not cause any problems to Seatrain in any other areas, since the ILWU did all the stevedoring for our ships. Q. (By Ms. Clements) Again, I would like to go back to your statement as to what was understood between yourself and Mr. Pentimonti as to the duration of the contract? A. As I said, there were several discussions on that. Mr. Pentimonti was for a long time very optimistic that he could resolve, or APL could resolve their difficulties with the unions, and he stated many times it would only be a few weeks before the problem was resolved. And at that point, would we be amenable to going back to the original intent, the master agreement, and allow APL to do the maintenance? And I said Seatrain had no objection to doing that and would, in fact, go along with that. Q. But did he say what would happen? Well, what was the understanding in the event that the problems 447 DECISIONS OF NATIONAL LABOR RELATIONS BOARD between the craft unions and American President Lines was not worked out as to the subcontract? A. Then it would continue in effect for - or, for the full year. Q. With the ILWU doing the work? A. Right. Both Riley and Pentimonti credibly testified that the subcontract to SeaTrain was not to be implemented until negotiations between the unions and with the unions proved fruitless. To return to the negotiations between ILWU and some of the Pier 80 unions, on November 21 Weisberger and Henry Disley, president of the Marine Firemen's Union, met with Ward and Huntsinger. The ILWU representatives asked whether a compromise could be worked out with the two unions they represented, and the answer was that "we didn't want any part of their work and we didn't want them to take any part of our work." Disley also credibly testified with respect to the meeting as follows: A. All I can remember, Huntsinger was claiming the work, based on geographical location of the work to be performed. He stated more than once that he was doing the work, the ILWU was doing the work and they were going to continue to do it for whoever moved in. Q. Is there anything further you can recall Mr. Huntsinger said at that meeting? A. Yes. He asked me if APL subcontracted the work to Seatrain, what would be our position. Q. And what did you respond? A. My response was the work would, as we had a contract with APL, the work would still belong to the Marine Firemen and SUP. Disley further testified that Huntsinger stated that it was his information that APL intended to subcontract to SeaTrain and that immediately after the meeting he called Riley and asked him if such was APL's intention, to which Riley replied that it was. It does not appear that any representative of the Painters or Carpenters was informed by Weisberger or Disley of what was said at the aforementioned meeting. Apparently, there was another meeting on December 2 between the same persons who met on November 21, but no one who was present at the meeting testified as to what occurred. Riley testified Ward or Huntsinger reported to him about the meeting and told him the conversation was "good." 8 On December 5, a meeting was held at PMA. Present at the meeting were Riley, Flynn, or Hammer (PMA), Disley and Shoup (MFU), and Dwyer (SUP). According to Riley's credited testimony, the PMA representative said he wanted "a full airing of the problem" as to dispute over the M & R work at the Oakland terminal. Riley credibly testified as to what then occurred: s Riley also testified that it was reported to him that Weisberger stated at the meeting that he was representing the Carpenters and Painters, but My best recollection is that Mr. Disley did the bulk of the speaking and that he said he had heard there was a subcontract. He said APL was attempting to enter into some phony deal, that APL was not living up to its obligation to his union, and that if there was a subcontract in existence, he would like to see it. My best recollection of what I said is there were still discussions going on between the unions. I reminded him that there were discussions with the ILWU and that they were continuing to attempt to resolve the difficulties in the dispute as to who would get the work. As I best recall I said that there was a subcontracting arrangement being worked on and that I would attempt to get a copy of such an agreement. JUDGE GILBERT: You say there was a subcontract agreement? THE WITNESS: That is my problem. I had not seen the subcontract at that point, and whether I was in position - JUDGE GILBERT: So you didn't know whether it was final or not? THE WITNESS: Correct. I indicated to him, I said to him that there would be none of the Firemen's work on containers at Middle Harbor done until there were further discussions between the unions, or that any other unions' work on containers would be done at Middle Harbor until there were further efforts to resolve it between the unions. *~ * A. I recall I told Mr. Disley that the company did not intend to take any unilateral action to implement the subcontract until we could find out if things would be worked out with the parties. JUDGE GILBERT: You told Disley APL did not what? THE WITNESS: Did not intend to take any unilateral action. JUDGE GILBERT: Until? THE WITNESS: Until we could find out whether things could be worked out with the parties. JUDGE GILBERT: Anything else? THE WITNESS: I told him we were very interested in working out something that would keep as many of his people employed as possibly we could. I told him one of my suggestions was to assign some of the jobs to our terminal in Southern California at San Pedro, to have one of his - or, two of his people working at Middle Harbor Terminal along with ILWU, and that in the event any of his people were laid off, we were prepared to talk about severance pay. I also said we wanted to discuss their pension rights and seniority as they related to any job assignments at Middle Harbor Terminal. Q. (By Mr. Voltz) Did Mr. Disley or Mr. Dwyer make any response to those statements? A. As I recall, both representatives said they were not interested in giving up any jobs or talking about obviously such testimony is of no probative value as to the truth of said report. 448 AMERICAN PRESIDENT LINES, LTD. compromises with the ILWU. They felt they should keep their work and the ILWU should keep its work. I recall Mr. Disley telling me if I were looking for accommodations or compromises, I should be talking to the ILWU and not to the Marine Firemen. Q. What was said at the end of the meeting with respect to how things were left? A. I recall I repeated there would be no work done until there were further conversations, and that I would attempt to get a copy of the subcontract which Mr. Disley had requested. JUDGE GILBERT: You meant there would be no work done at the Oakland Terminal? THE WITNESS: At the Oakland Terminal, yes, sir. Another meeting was held at PMA on December 10 which was attended by Riley, Flynn, Hammer, Disley, Shoup, Weisberger, and Dwyer. At that meeting a copy of the executed subcontract with SeaTrain was presented. Riley credibly testified as follows with respect to said meeting: A. I recall Mr. Flynn of Pacific Maritime Associa- tion opened the meeting by saying the purpose of getting together was to discuss the APL subcontracting of the maintenance work to Seatrain, and that PMA, as well as APL, were interested in working the matter out to everybody's satisfaction. I recall Mr. Weisberger saying he had no intention of giving up his work at any time, at any place; that he had no intention of taking the ILWU's work, but he would likewise not allow the ILWU to take any of his work. And that statement went for the Sailors as well as the Carpenters and the Painters. Mr. Flynn described some reasons for APL taking this action - Q. (Interrupting) What did he say? A. He explained they were for efficiency in that they would be using a single contractor with a single crew, as opposed to the five separate groups doing the work at Pier 80. He said this would develop economies for American President Lines in the performance of this work. Q. Do you recall what, if anything, you said at that meeting? A. Yes. I recall I repeated the position of APL that I had stated at the December 5th meeting, which was we did not intend to implement the subcontract until we could find out whether the parties - we could work something out with the parties. I reminded the unions their men were still employed at Pier 80 and that no work was being done - no container maintenance work was being done at Middle Harbor Terminal, and that I was still extremely hopeful that all of the parties could get together and find some solutions. Riley further credibly testified to compromises he suggest- ed and that the Pier 80 union representatives stated they were not interested in any compromise, that they were not 9 Riley credibly testified that he called the meeting a day or two earlier by telephone and, when he phoned the Carpenters and asked for Knudson, he was informed Knudson was out of town, so he spoke to Mitchell. going to take ILWU's work and would keep their work, and Weisberger added "that statement went for the Sailors as well as the Carpenters and Painters." Riley also credibly testified that he repeated his offer to discuss protection of seniority rights, pensions, and severance pay, if required. On December 11, Riley met in his office with Mitchell 9 of the Carpenters and Warner of the Painters. James Seymour, APL's legal counsel, was also present. Riley testified as to what occurred at the meeting as follows: A. As I recall, I told representatives of the two unions that the purpose of the meeting was to bargain over the subcontracting of the work to Seatrain. I told them I was keenly interested in negotiations that were going on to work out something with all parties. I told them they were continuing to do the work at Pier 80 and that no work was being done on APL containers at Middle Harbor Terminal. I also told them we would not implement the subcontract until we found out whether we could work it out with the parties. And I told them APL still had a great deal of respect for the Carpenters Union and their craftsmen, and it was unfortunate that we were involved in this jurisdictional dispute. I told them I would suggest possible compromises with the ILWU which would include employing six Carpenters and one Painter, and I told them I was prepared to discuss maintenance of seniority for those Carpenters and Painters that did maintain their jobs. I told them that if any jobs were lost, we were prepared to discuss severance arrangements, as well as possible early retirement arrangements. Q. Did anyone from either of the unions respond? A. Yes. Mr. Mitchell said the Carpenters Union was not interested in any compromises with the ILWU. He said he felt the ILWU were looking to take over their work, that they had tried it before and they were not about to give up any jobs to the ILWU. He said, "You have language in your contract which says you must subcontract to a contractor employing our members." I told him I thought the language was illegal. Q. Is there anything further you can recall in that conversation? A. Yes. I told them I was desperately seeking a solution to the jurisdictional dispute which APL was caught in and that if any of the solutions that we had discussed there that morning did not appear to be working, that I thought one alternative was to go to the National Labor Relations Board to solve it in a jurisdictional hearing. I recall I told them in order to get a 10(k) hearing, I would need a threat of picketing or some other action. I recall that both Mr. Mitchell and Mr. Warner said I would have a great deal of trouble if we assigned their work to the ILWU and that we would have pickets. Mitchell testified as to the meeting as follows: 449 DECISIONS OF NATIONAL LABOR RELATIONS BOARD A. Mr. Riley did most of the talking. He informed me they had decided to enter into a contract with Seatrain. I asked Mr. Riley if they had signed the contract yet and he said they had. I informed Mr. Riley there was a clause in our contract; they were in violation of our contract. Mr. Riley said he had been advised by his legal people the clause in our contract was illegal. Not knowing whether it was or not, I did not pursue it any further. Then Mr. Riley said, possibly something could be worked out with the Longshoremen with they would absorb six of the Carpenters and one Painter. Q. All right. A. So our people would not lose all their work, and I told him there was no way I could agree to this. I said I would be violating the trust of my people, that within six months time the Longshoremen would phase them out anyway. Q. All right. A. I then told Mr. Riley I thought it was better they continue in the contract they had with the present unions and he told me no, he felt it was better they only have one union. And then Mr. Riley asked me what action I would take if they implemented this contract, and I told him we would take whatever economic action we found necessary to retain our work. Mr. Riley said he needed a more direct threat in order to go to the National Labor Relations Board to obtain a quick settlement without any loss of work to any people. And I said well, we would strike. He turned to Mr. Warner and he said, "Are you of the same impression as Mr. Mitchell?" And Mr. Warner said, "Yes, I am. We are together and we will support one another." Q. Were you shown a copy of the subcontract Mr. Riley was referring to? A. No, I was not. Q. Were you told anything about when that subcontract would be implemented by American President Lines? A. No, I was not. Q. Did Mr. Riley mention anything about being able to cancel the subcontract for any reason? A. No. Q. Did he say anything about being able to suspend the subcontract for any reason? A. No. Q. Was anything else said, you can recall? A. It seems like Mr. Riley said people would be terminated, but they might be able to work out some kind of severance pay for them, but that's all I can remember. Riley's version of what was stated at the meeting is credited. Not only was he the more convincing witness, but his statements were consistent with other uncontradicted and credited testimony of similar statements he made at previous meetings, also the delay in implementing the i0 As noted hereinbelow, I do not find that the knowledge of Weisberger can be imputed to said Unions, since I reject Respondent's contention that he was their agent. There is no evidence in the record that would support a subcontract substantiates his testimony, as well as the credited testimony that the subcontract was terminable if the jurisdictional dispute could be resolved. It is also noted at this point with respect to Riley's statement about the illegality of the provision in the Carpenters contract restricting subcontracting that said provision was found in a Board Decision issued November 7, 1975, to be violative of the Act (221 NLRB 456). It also should be noted at this point that I find that December 11 was the first occasion either the Carpenters or the Painters had notice of Respondent's plan to subcontract the M & R work to SeaTrain.' 0 The day after the December 11 meeting, Mitchell reported about it to Knudson and Knudson, in turn, relayed the information to Moore. Thereafter Moore telephoned Riley and threatened a strike. On December 17, the Carpenters and Painters consulted their attorney about the matter; however, neither he nor any representative of either of the two Unions accepted APL's offer to bargain about APL's intention to implement the subcontract, Riley's suggested compromise, or the eventual impact on the employees they represented should a compromise or the subcontract be implemented. Riley credibly testified further as follows: A. On December 12, another meeting was held at PMA offices between - Q. (Interrupting) Who was present? A. Mr. Weisberger of the SUP, Mr. Disley of the MFOW, Mr. Shoup of the MFOW, Mr. Flynn for PMA, Mr. Huntsinger of the ILWU, and Mr. Ward of the ILWU. Q. Who opened the meeting? A. Mr. Flynn opened the meeting. Q. What did he say? A. He said he had brought the parties together to attempt to find some solution to the very complex jurisdictional problem and he said he felt by sitting down together, some solutions could be arrived at. Q. Did any of the union representatives respond? A. Mr. Weisberger said he didn't feel there was any problem, that the Sailors intended to keep their work and the Carpenters and Painters as well. He said he had been authorized to speak for the Carpenters and Painters at that meeting. He said he didn't intend to take away any of ILWU's work and he did not expect them to take away any of his work, or the Carpenters or Painters work. Q. Did anyone from the ILWU speak? A. Mr. Huntsinger said he didn't want to take anybody's work either, but that ILWU at Middle Harbor Terminal felt all the maintenance work at that facility belonged to the ILWU at this time. He said the ILWU International, as well as Local 10, felt very strongly about this matter and did not intend to give up the work they had there. He also said they were willing to talk about some alternate compromises with the Pier 80 unions. finding that any of the union representatives who attended the earlier meetings reported any of the details thereof to either the Carpenters or the Painters. 450 AMERICAN PRESIDENT LINES, LTD. At that point, I recall Mr. Disley spoke up and said there was nothing to be compromised. They were going to keep their work and they didn't want any of the ILWU's work. I spoke out at one point to make a suggestion as to type of compromise, and I was told by Mr. Weisberger to keep my mouth shut, stay out of the discussion, which was a matter to be settled between the unions. Q. Is there anything further you can recall in that conversation? A. I recall Mr. Disley saying he believed the Seatrain subcontract was a phony and I recall Mr. Flynn urged the parties to continue to talk and get together again. I recall I also reminded all the parties no work was going on in maintenance at Middle Harbor Terminal and that I was hopeful we would be able to work something out before we had to begin work at Middle Harbor Terminal. Although Disley denied that Weisberger stated he was authorized to speak for the Carpenters and Painters, I do not credit this denial. Riley was a convincing witness and, moreover, Weisberger had, on November 20, been autho- rized by the Carpenters and Painters to state their position, that they would not give up their work. Another meeting was scheduled by the same parties for December 19, but the ILWU representatives failed to make an appearance and no meeting was held. On December 11, Respondent filed 8(bX4)(D) charges against the Carpenters and Painters. On December 24, Judge Schnacke of the U.S. District Court issued a temporary restraining order against said Unions from picketing to obtain work from APL and on December 30 a preliminary 10(1) injunction was issued against them. On December 24, Respondent decided to implement the subcontract with SeaTrain commencing December 26. It is not clear when ILWU members first began to do Respondent's work at the Oakland terminal, since the five Pier 80 unions' members continued to be employed in San Francisco through the end of December and thereafter until January 6 at a facility in Oakland near the Middle Harbor Terminal. On December 26, Respondent filed 8(b)(4)(D) charges against ILWU, Local 10, and the International. On December 30, Judge Conti, U.S. District Judge, issued a bench decision which was never reduced to writing, and there appears to be some conflict as to what his ruling was. At any event, at a Port Committee meeting at the PMA on December 30 with representatives of APL, SUP, and MFU, Flynn received a message that Judge Conti had ruled that the Pier 80 unions should be assigned the work, and Flynn then stated that APL would assign the work to the Pier 80 unions. By letter dated January 3, 1975, the SeaTrain subcontract was suspended by APL and the M & R work at the Middle Harbor Terminal was assigned to the Pier 80 unions. Said assignment was not to go into effect until January 6; however, the Pier 80 unions' members were unable to work on that day because of a serious physical confrontation threatened by ILWU mem- I As to the other Pier 80 unions, it appears that there was a settlement of the issue with respect to the employees represented by the Sailors Union (SUP) which was originally one of the charging parties in this proceeding, and it further appears that Respondent's employees represented by the bers. On January 7, General Counsel petitioned for a 100) injunction against ILWU and, on January 9, Judge Conti reconsidered his ruling of December 30 and issued an injunction against the ILWU, ILWU Local 10, Carpenters Local 1149 and Painters Local 961, ruling that he could not issue an order which would assign the work. By letter dated January 10, 1975, APL notified SeaTrain that the subcontract with it was reinstated and SeaTrain was to commence work under said contract on January 13, 1975, and on or about this time the employees represented by the Painters and Carpenters were laid off. The parties stipulated to the following: . . . between February 10, 1975 and August 21, 1975, a 10(k) hearing in Cases Nos. 20-CD-435, 436, 437, and 438 was held with some 5,000 pages of transcript and 146 exhibits. That hearing is not, as yet, closed. The parties to the 10(k) hearing were American President Lines, the Carpenters Union Local 1149, Painters Union No. 961, Marine Engineers Beneficial Association, and Sailors Union of the Pacific and the Marine Firemen. All five and the ILWU, the Interna- tional as well as ILWU local 10. And Painters Local 1176 intervened after the proceeding had started. C. Resolution of the Issues The principal issue is whether or not Respondent violated Section 8(aX5) and (1) of the Act by refusing to bargain in good faith with the Carpenters and the Painters about its subcontract of the M & R work at the Middle Harbor Terminal to SeaTrain and about the impact thereof upon Respondent's employees represented by said Un- ions." During the course of the hearing, Respondent moved, in effect, that because of the pendency of the aforementioned 10(k) proceeding, the complaint herein be dismissed, which motion I ruled was without merit. In its brief Respondent reasserts this contention. Respondent argues that there was a jurisdictional dispute between the Carpenters and Painters on the one hand, and ILWU on the other, as to the M & R work at the Oakland terminal in contemplation of APL's move to Oakland and that it is a policy established by the Board and the Supreme Court that jurisdictional disputes should be resolved through 8(b)(4)(D) and 10(k) proceedings rather than through an unfair labor practice proceeding under Section 8(aX5) and (I). Respondent relies, in the main, on the decision in J. L Allen Co., 199 NLRB 675 (1972). Said case, however, is not applicable to the case before me. The cited case holds, in effect, that where an employer is confronted by a dispute between two unions with respect to assignment of work, the Board will not consider the issue of whether a refusal to bargain with either union is violative of Section 8(a)(5) of the Act, but that rather the dispute must be resolved through 8(bX4XD) and 10(k) proceedings, which is the "remedial scheme contemplated by Congress as the exclusive means for resolution of work-assignment claims Marine Firemen and the Marine Engineers (MEBA) were not affected by the subcontract but continued to do the work for APL (which they did at Pier 80) at a location near the Middle Harbor Terminal. 451 DECISIONS OF NATIONAL LABOR RELATIONS BOARD between competing labor organizations." In the instant case the issue of whether there was a violation of Section 8(a)(5) and (1) of the Act does not involve a dispute over the assignment of work by an employer to one of two (or more) competing unions, but rather a dispute over the assignment of work to another employer through a subcon- tract. It does not appear to me that the issue of whether there was a failure to bargain in good faith about the subcontracting of said work can appropriately be decided in the pending 10(k) proceeding. True, it might be argued that, if the Carpenters and Painters were not entitled to the M & R work in Oakland, even though there had been no subcontract, there would be no duty to bargain with them with regard to the subcontract, and therefore that issue must first be resolved in the 10(k) proceeding.' 2 However, I cannot speculate that it would be, since the employer doing APL's M & R work in SeaTrain, and a decision in the 10(k) proceeding may well be predicated on that fact. In any event, in view of my recommended Decision set forth below dismissing the complaint, no purpose would be served in disposing of this possible argument. There was considerable evidence elicited with respect to Weisberger's role in relation to the Carpenters and Painters vis-a-vis APL. At the hearing it appeared that Respondent was contending that Weisberger was an agent of said Unions for the purpose of bargaining with Respondent. In her brief General Counsel correctly contends that the record would fail to support such a finding. However, in its brief Respondent merely argues that Weisberger was an agent of said Unions in meetings with ILWU and APL in which the competing claims were discussed, that at said meetings Weisberger obtained knowledge of APL's plan to subcontract to SeaTrain, and that said knowledge should be imputed to his principals, the said two Unions. It appears from the record that on November 20 he was merely authorized by the two Unions to state their positions. Consequently, it does not appear that he was any more than a messenger and I am not convinced that, as such, he could be considered as an "agent" whose knowledge can be imputed to the two Unions. In any event, the only point that Respondent seeks to establish by its contention is that the two Unions through Weisberger, as its agent, were made aware of the possibility of the subcontract as early as November 21, when at a meeting between Weisberger and Disley on the one hand and Huntsinger on the other, Huntsinger stated to Disley that APL intended to subcontract. While I do not consider that, as a result, it can be held that the Carpenters and Painters may be deemed to have had notice of said plan, in view of my findings hereinbelow, a contrary holding would not alter the disposition of this case. As to the principal issue in this case, the General Counsel argues in her brief as follows: On December 11, Respondent informed the Carpen- ters and Painters Unions for the first time of both its decision to subcontract to Seatrain and the fact that the subcontract had been signed. 12 However, it is my opinion that the mere moving by APL to the Oakland terminal, where SeaTrain's M & R work was being performed by ILWU members, would not relieve APL of its obligations under its contracts with the Pier 80 unions, including the Carpenters and Painters. It is now well settled that an employer violates Section 8(a)(5) of the Act when it contracts out the work of unit employees, and concomitantly discharges those employees, without giving the Union a chance to bargain over the matter before the underlying decision is reached. Fibreboard Paper Products Corp. v. N.L.R. B., 379 U.S. 203 (1964); Ozark Trailers, Incorporated and/or Huteo Equipment Company and/or Mobilefreeze Company, Inc., 161 NLRB 561 (1966); Jack L. Wil- liams, D.D.S., d/b/a Empire Dental Co., 211 NLRB 860 (1974). The Carpenters and Painters Unions were never given the chance to bargain with Respondent about its decision to subcontract to Seatrain. The decision was clearly made well before December II when the Carpenters and Painters were first informed of it. While the record supports the General Counsel's conten- tion that the Carpenters and Painters were not informed by Respondent until December 11 of its decision to subcon- tract to SeaTrain, which was after the subcontract had been executed, said Unions were aware for several weeks prior thereto of the dilemma facing APL and of its attempt to resolve it by a compromise among the competing unions. The circumstances giving rise to the dilemma and APL's efforts to resolve it are outlined hereinbelow. In its agreement to take over partial possession of the Middle Harbor Terminal, which it was to share with SeaTrain, it was originally understood that APL would manage the operations of the terminal, including the M & R work. However, the ILWU presented a problem. Said Union represented employees of SeaTrain doing the M & R work at said terminal and, moreover, it insisted that it would be entitled to APL's M & R work, as well, at said terminal, threatening action against APL's operations if its demands were not met. On the other hand, it appears that the Pier 80 unions sought only APL's work and were disclaiming the work ILWU had been doing; i.e., SeaTrain's M & R work. The shop at said terminal was so set up and the difficulty of separating APL's work from that of SeaTrain made it impractical to attempt to work out an arrangement whereby APL's work would be done by one crew and SeaTrain's by another.13 Apparently this difficulty was not foreseen by Riley when he led the Carpenters and Painters at the meeting at Bruno's on October 4 to believe that, if APL did move to Oakland, they need not be concerned about their jobs. At that time, however, although the move to Oakland was still tentative, Riley was aware that, if the move occurred, it would not relieve APL of its obligations under its agreements with the Pier 80 Unions, despite ILWU's claim to APL's work. Also at that time, however, the Carpenters and Painters knew that ILWU was doing the M & R work at the Oakland terminal for SeaTrain and were informed by Riley of ILWU's claim. Apparently shortly thereafter Riley began to realize the need for only one crew, besides the difficulty he might have in resolving the conflicting claims of the ILWU and the Pier 80 unions 13 However, while the record will not support a finding that APL specifically pointed out this problem to any of the unions, it is clear that Riley's suggestion of a compromise involved forming one composite crew. 452 AMERICAN PRESIDENT LINES, LTD. to APL's work, and, in late October, at a meeting with representatives of the ILWU, he asked them to get together with the other unions to work out a compromise and they agreed, stating that it was a matter better settled between the unions out of his presence. In early or mid-November, he met again with them and urged action on compromising with the other unions because time was running out, and he was assured that a meeting would be set up. Finally, a meeting was arranged for November 21 and it was in contemplation of this meeting that the Painters and Carpenters asked Weisberger on November 20 to present their position.' 4 As stated before, there is no explanation in the record why the Carpenters and Painters were not invited to the meeting. In any event, Riley was informed that meetings were being held between the ILWU and some of the Pier 80 unions, and Riley was led to believe, from various sources including Knudson, that the Carpen- ters and Painters were being "represented" at said meetings by Weisberger, so it is inferred that Riley reasonably assumed that the Carpenters and Painters were participat- ing in the interunion discussions through Weisberger.' 5 It appears that, with the deadline of December 31 for APL to leave San Francisco, Riley became apprehensive around mid-November about the ability of APL to manage the Oakland terminal in face of a failure of the unions to work out a compromise. So, as related above, negotiations were started with SeaTrain to take over the M & R work under a subcontract as an alternative. It appears from credited testimony in the record that the subcontract was entered into with the understanding that it could be canceled if a compromise could be worked out between the unions which would permit APL to handle the M & R work for both itself and SeaTrain. It also appears from the record that Riley believed that a workable compromise was the formation of a composite crew (of ILWU members and former members of the Pier 80 unions) and he made that suggestion to the union representatives with whom he met (none of whom were from the Carpenters or Painters) at the PMA offices. At the December 5 meeting with them, although he stated there was a subcontract with SeaTrain (which at that time had been agreed upon but apparently not yet signed), he said it would not be implemented until APL could determine that a compromise could not be worked out between the unions. He further stated that if any people would have to be laid off he wanted to discuss their rights. Again on December 10, Riley met at the PMA offices with the union representatives other than the Carpenters and Painters, and the discussion was apparently not much more than a repetition of the meeting on December 5. Then, on December 11, Riley met with the representa- tives of the Carpenters and Painters. At that meeting he told them of the subcontract, but made it quite clear, according to credited testimony, that the subcontract 14 It is noted that by this time both the Carpenters and Painters had learned directly that they were in danger of being phased out. 15 While I found hereinabove that Weisberger was not an "agent" of the two Unions, this inference is a factor in assessing the overall conduct of Respondent in determining whether it refused to bargain in good faith (discussed hereinbelow). i6 Which provision, as stated hereinabove. Riley contended was illegal (as was found by the Board later). would not be implemented unless the interunion dispute could not be resolved, and he offered to talk about the subcontract, a compromise, as well as the impact on members of the two Unions should a compromise or the subcontract be implemented. Instead of bargaining with him about the subcontract, his suggested compromise, or making any counterproposals, the Carpenters and Painters were adamant about claiming all of APL's M & R work at the Oakland terminal and the Carpenters representative added that a subcontract was prohibited under a provision of its contract. 6 The Carpenters and Painters made no effort to contact APL thereafter with respect to Riley's offer to bargain, but instead contacted their attorney who also made no effort to talk to APL with respect to Riley's offer to bargain on December I I. General Counsel contends that the Carpenters and Painters had no opportunity to bargain about the subcon- tract on December I 11, because they were presented with a fail accompli at that time. In my opinion the record does not support said contention. As stated above, the credited testimony of Riley reveals that he made it quite clear to the representatives of the Carpenters and Painters that, even though the contract was executed, it would not be implemented unless a compromise could not be worked out between all the unions." 17 Ensuing events further demon- strate that this was not a misrepresentation. On December 12, another meeting was held at the PMA offices with representatives of the ILWU, MFU, and Weisberger (SUP).18 Again there were discussions about a possible compromise between the unions which, however, again proved fruitless, and another meeting was scheduled for December 19. Thus, it is apparent that, even after the execution of the subcontract, APL was trying to work out a settlement of the disputed claims between the ILWU and the Pier 80 unions which would avoid the alternative of the subcontract and which would support my conclusion that the subcontract did not constitute a fait accompli on December I1. Moreover, for approximately 2 weeks thereafter, APL's M & R work was either overlooked or was done by the Pier 80 unions. It was not until December 26 that the subcontract was first implemented, apparently after Riley had come to the conclusion that no compromise could be reached and after Judge Schnacke had issued the aforementioned temporary restraining order. (It is noted that the employees represented by the Carpenters and Painters were not laid off until after January 9, 1975.) Respondent contends, and I find its contention to be of merit, that the Carpenters and Painters were not presented with a fail accompli on December 11, that the subcontract was executory in nature (contingent upon the outcome of APL's attempts to resolve the interunion dispute); that the Carpenters and Painters were given an ample opportunity to bargain with respect to the subcontract and its effect upon the employees they represented; that they made no 17 Pentimonti and Madden, who negotiated the subcontract, credibly testified that the understanding between the parties was that the subcontract would not be implemented or would be canceled if APL could work out a successful compromise with the ILWU and the Pier 80 unions. 'a A possible explanation of why the Carpenters and Painters were not invited to any of the abovementioned December 5, 10. and 12 meetings is that the meetings apparently were sponsored by PMA. which did not represent APL in its dealings with the Carpenters and Painters. 453 DECISIONS OF NATIONAL LABOR RELATIONS BOARD attempt to do so but, instead, insisted on maintaining that their members were entitled to the work in dispute; "that at every turn APL sought a negotiated solution" to the dispute and "the fact that no solution was found cannot be attributed to any unwillingness by APL to negotiate"; and that in all the circumstances, relying upon the holding in Hartmann Luggage Company, 145 NLRB 1572 (1964), among other cases, the Respondent did not violate the Act as alleged. In said cited case the Board, in dismissing the complaint therein, stated at 1572 and 1573: The Trial Examiner found that the General Counsel, by establishing that the Respondent signed the subcon- tracting agreement with North Bay before advising the Union of the pendency of its negotiations with that company, made out "at least a prima facie case of refusal to bargain." But he concluded nonetheless that that violation was "cured" by reason of the Respon- dent's subsequent conduct, as set out in the Intermedi- ate Report. We agree with the Trial Examiner's ultimate conclusion that any prima facie showing of a violation in this case is overcome by other evidence, but, unlike the Trial Examiner, we rest our decision upon our evaluation of the Respondent's overall conduct, both prior and subsequent to the execution of the subcontracting agreement. [The Board dismissed the complaint.] In Edward Axel Roffman Associates, Inc., 147 NLRB 717, 723-724 (1964), the Board affirmed the Trial Examiner's decision therein in which he held that when the respondent therein had contracted, on April 11, 1963, to move its location, it might have been in "technical violation" of Section 8(a)(5) and (1) of the Act by failing to notify and offer to bargain about the contemplated relocation prior to April II, but nevertheless the complaint should be dismissed. This conclusion was predicated on the fact that on May 27, when the company finally notified the union of the "possibility" of its moving and offered to negotiate with regard thereto, stating that "no final decision has yet been made," the union chose to ignore this notification and offer, on the ground that the move was already a fait accompli. It was reasoned in said decision that "where men's jobs and livelihoods are at stake, the parties should bargain rather than rely on technicalities," and that "it was the Union, and not Respondent which refused to negoti- ate." In Shell Oil Company, 149 NLRB 305, 307 (1964), the Board stated: We agree with the Trial Examiner's general state- ments of the principles enunciated in our earlier decisions in Town & Country Manufacturing Co., Inc., 136 NLRB 1002, enfd. 316 F.2d 846 (C.A. 5), and Fibreboard Paper Products Corp., 138 NLRB 550, enfd. 322 F.2d 411 (C.A.D.C.), cert. granted 375 U.S. 963. In both those cases, we held that a management decision to subcontract unit work, albeit for economic reasons, is a mandatory subject for bargaining and that an employer's failure to bargain with respect to this matter is violative of Section 8(a)(5) and (1) of the Act. The principles of these earlier cases, however, are not meant to be hard and fast rules to be mechanically applied irrespective of the circumstances of the case. In applying these principles, we are mindful that the permissibility of unilateral subcontracting will be determined by a consideration of the setting of each case. Thus, the amount of time and discussion required to satisfy the statutory obligation "to meet at reason- able times and confer in good faith" may vary with the character of the subcontracting, the impact on employ- ees, and the exigencies of the particular business situation involved. In short, the principles in this area are not, nor are they intended to be, inflexibly rigid in application. See also Southern California Stationers; Wallace Printing Co., 162 NLRB 1517, 1545 (1967). While none of the cases cited by any of the parties can be said to be sufficiently similar factually to the instant case as to be dispositive of the issues herein, the principles set forth in the above-cited cases are applicable to the instant case. Applying said principles, I am of the opinion that, in all of the circumstances herein, the Respondent did not violate the Act as alleged. As set forth hereinabove, APL was confronted with a dilemma caused by the dispute between ILWU and the Pier 80 unions over the M & R work to be performed at the Oakland terminal and impracticality of setting up two shops at the terminal (one to handle APL's work and the other SeaTrain's). Furthermore, while the Pier 80 unions did not claim they would be entitled to SeaTrain's work, even though as originally contemplated APL would be operating the terminal and ostensibly the M & R work for SeaTrain, the ILWU did insist that it would be entitled to APL's work as well as SeaTrain's and threatened dire action against APL's operations if it did not get the work. APL and representatives of the ILWU and of some of the Pier 80 unions agreed that the matter might best be settled between the disputing unions. When it became obvious that the deadline for APL to get out of the San Francisco port was fast approaching and there had been no resolution of the interunion dispute, APL decided that, as a contingency, a subcontract of the M & R work to SeaTrain would solve the problem. So a subcontract was negotiated and executed with the understanding that it would not be implemented until it was determined that the interunion dispute could not be resolved. While the subcontract was being negotiated and after its execution, APL pressed the unions to resolve their dispute. When Riley met with the Carpenters and Painters on December I 11 (which was after the subcontract was executed), he made it clear to their representatives that he was willing to negotiate over the subcontract, suggested some compromises, as well as offering to negotiate with respect to the impact on employees who might be affected by a compromise or by the subcontract and assured them that the subcontract would not be implemented unless negotiations between and with the unions failed to resolve their dispute. Contrary to the General Counsel's contention, and as stated above, I do not consider that, in the circumstances, the Carpenters and Painters were presented with a fait accompli on December 11. Rather, I find they were given 454 AMERICAN PRESIDENT LINES, LTD. an opportunity to bargain with APL about the subcontract, about some compromise, and about the effect of either on the employees they represented. Instead, they adamantly insisted that they be given the work and made no attempt to negotiate. True, the problem with which the unions and APL were confronted was caused by APL's decision to move to Oakland, but I do not have before me an issue as to whether there was any unfair labor practice committed by APL in making that decision and eventual move to Oakland. While it might be said that APL should have given notice to the unions, particularly the Carpenters and Painters, of its decision to negotiate a subcontract with SeaTrain before doing so, considering the executory nature of the subcontract, I do not consider the failure to give prior notice to be of sufficient materiality to alter the conclusion I reach. In all the circumstances, and considering the Respon- dent's "overall conduct, both prior and subsequent to the execution of the subcontracting agreement," 19 I am of the opinion that the General Counsel has failed to prove by a preponderance of the evidence that Respondent violated Section 8(a)(5) and (1) of the Act as alleged. 19 Hartmann Luggage Company, supra at 1573. 20 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. Upon the basis of the foregoing findings of fact and upon the entire record of this case, I make the following: CONCLUSIONS OF LAW 1. Respondent is, and at all times material herein has been, an employer engaged in commerce and in operations affecting commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Painters Union and the Carpenters Union are, and at all times material herein have been, each a labor organization within the meaning of Section 2(5) of the Act. 3. The General Counsel has failed to prove by a preponderance of the evidence the allegations in the complaint that Respondent violated Section 8(aX5) and (1) of the Act. Upon the foregoing findings of fact, conclusions of law, and upon the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER20 The complaint should be, and is hereby, dismissed in its entirety. 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. 455