Northwest Towboat Association

NORTHWEST TOWBOAT ASSN 143 Northwest Towboat Association and Inlandboat- men's Union of the Pacific and International Organization of Masters, Mates, and Pilots, Pa- cific Maritime Region, Branch No. 6, Party in Interest. Case 19-CA-13725 12 April 1985 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS HUNTER AND DENNIS On 9 September 1983 Administrative Law Judge Gerald A. Wacknov issued the attached decision. The General Counsel, the Charging Party, and the Respondent filed exceptions and supporting briefs. The National Labor Relations Board has consid- ered the decision and the record in light of the ex- ceptions and briefs and has decided to affirm the judge's rulings, findings , and conclusions' and to adopt the recommended Order. The events leading to the charge in this case are not in dispute. Both the Inlandboatmen's Union of the Pacific (IBU) and the International Organiza- tion of Masters , Mates, and Pilots, Pacific Maritime Region, Branch No . 6 (MMP) have collective-bar- gaining agreements with the Respondent . The IBU and the MMP represent nonsupervisory and super- visory personnel of employer-members of the Re- spondent, respectively . The Respondent executed a collective-bargaining agreement with the IBU on 6 July 1981 which provided, inter alia, that employ- ers could not allow employees represented by the MMP to exercise seniority rights to bump employ- ees represented by the IBU. The MMP contract, executed by the parties on 20 July 1981, contains a provision which would allow employees represent- ed by the MMP to displace less senior employees in the IBU unit under certain conditions . Before the MMP contract was ratified and executed, IBU representatives met with the Respondent's repre- sentatives and asked the Respondent to sign a memorandum of understanding which would pro- tect IBU unit members from the MMP contract bumping procedures . When the Respondent refused to sign the memo, the IBU filed the instant charge on 14 July 1981 alleging that the Respondent vio- lated Section 8(a)(5) and ( 1) by concluding an agreement with the MMP "that contains a clause which may affect seniority within the bargaining unit represented by the Inlandboatmen 's Union of the Pacific." On 19 August 1981 the Regional Director for Region 19 dismissed the charge as premature be- ' In light of our decision to dismiss the complaint on procedural grounds, we find it unnecessary to rule on other exceptions filed by the General Counsel, the Charging Party, and the Respondent cause the Respondent had not taken any personnel action inconsistent with the IBU contract. The IBU did not appeal the dismissal. On 3 March 1982 the IBU filed a new charge2 ,alleging that the Respondent's negotiation and sub- sequent application of the MMP contract rather than the IBU contract bumping provisions during a layoff violated Section 8(a)(1), (3), and (5). The Re- gional Director dismissed that charge on 9 August 1982. He found that the 8(a)(3) issue was not viable since the laid-off employees had been reinstated with full backpay after resort to their grievance procedure and reasoned that Section 10(b) mandat- ed dismissal of the 8(a)(5) and (1) allegations since the MMP contract had been negotiated more than 6 months preceding the charge's filing. However, the Regional Director revoked his prior dismissal and reinstated the charge filed in this proceeding in accordance with California Pacific Signs, 233 NLRB 450 (1977), where the Board held that a Re- gional Director could revoke at any time the dis- missal of a timely filed charge on the basis of newly discovered evidence. The new evidence consisted of the actual layoff which adversely af- fected the IBU employees. The judge found that the Respondent's refusal to execute a memorandum of understanding offered by the IBU in July 1981 was an anticipatory breach of contract. He further found that, in light of the General Counsel's view that this refusal was a violation, but not one which required legal re- dress, the Regional Director erroneously dismissed the original charge. The judge also disagreed with the Regional Director's theory for dismissal of the later 8(a)(5) charge, stating that an allegation of unilateral change, in the IBU contract would lie ir- respective of the terms or validity of the MMP contract. Finally, the judge found the Board's deci- sion in Winer Motors, 265 NLRB 1457 (1982), rele- vant in consideration of whether the original 8(a)(5) charge could be reinstated here. The Board held in Winer that it would no longer permit rein- statement of a withdrawn charge more than 6 months after the alleged unlawful conduct, absent fraudulent concealment by the Respondent. Analo- gizing a withdrawn charge to a dismissed charge where the dismissal has not been appealed, the judge distinguished California Pacific Signs and found that the Regional Director either improperly or unnecessarily reinstated the charge. According- ly, the judge dismissed the complaint. Subsequent to the issuance of the judge's deci- sion, the Board has recently issued a decision in Ducane Heating Corp., 273 NLRB 1389 (1985), 2 Case 19-CA-14358 275 NLRB No. 24 144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD which expressly overruled California Pacific Signs. Referring to the rule of Winer Motors, supra, the Board stated that "we shall treat withdrawn and dismissed charges alike and shall not allow the re- instatement of either beyond the 6-month limita- tions proviso absent" fraudulent concealment of evidence by a respondent. The General Counsel in the instant case has not asserted that the Respond- ent fraudulently concealed any evidence. Instead, the reason given for reinstating the charge was the "newly discovered evidence" of actual layoffs of employees represented. by IBU, contrary to the provisions of the contract between IBU and the Respondent. Therefore, in the absence of fraudu- lently concealed evidence, we find that Section 10(b) barred the Regional Director from reinstating the charge underlying this case more than 6 months after the events alleged to violate the Act.3 Accordingly, the complaint is dismissed. ORDER The recommended Order of administrative law judge is adopted and the complaint is dismissed. s We do not rely on the judge's comments about the Regional Direc- tor's reasons for initially dismissing the charge at issue here or about the disposition of the subsequent charges which are not before us DECISION STATEMENT OF THE CASE GERALD A. WACKNOV, Administrative Law Judge. Pursuant to notice, a hearing with respect to this matter was held before me in Seattle, Washington, on June 14, 1983. The charge was filed on July 14, 1981, by Inland- boatmen's Union of the Pacific (the IBU). Thereafter, on August 9, 1982, the Regional Director for Region 19 of the National Labor Relations Board (the Board) issued a complaint and notice of hearing al- leging a violation by Northwest Towboat Association (Respondent) of Section 8(a)(1) and (5) of the National Labor Relations Act (the Act). The complaint was amended on April 25, 1983. The parties were afforded a full opportunity to be heard, to call, to examine and cross-examine witnesses, and to introduce relevant evidence. No witnesses were presented at the hearing and the record consists of a stip- ulation of facts. Since the close of the hearing, briefs have been received from the General Counsel, Respond- ent, and the Charging Party. On the entire record and consideration of the briefs submitted, I make the following FINDINGS OF FACT 1. JURISDICTION Respondent is an association of companies operating towing vessels in the northwestern United States and Canada, with an office and place of business in Seattle, Washington. Foss Tug and Launch Company (Foss) is one of the member companies of Respondent, and annu- ally sells and ships goods or provides services valued in excess of $50,000 from its facilities within the State of Washington to customers outside the said State or sells and ships such goods or provides such services to cus- tomers within said State which customers are themselves engaged in interstate commerce by other than indirect means. In the course and conduct of its business oper- ations, Foss annually purchases and causes to be trans- ferred and delivered to its facilities within the State of Washington, goods and materials valued in excess of $50,000 directly from sources outside said State, or from suppliers within said State which in turn obtained such goods and materials directly from sources outside said State. Foss and the other towing companies which comprise Respondent are essential links in the interstate transporta- tion of goods. It is admitted, and I find, Respondent is and has been at all times material an employer association, and its members are employers engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATIONS INVOLVED It is admitted that the IBU is and has been at all times material a labor organization within the meaning of Sec- tion 2(5) of the Act. It is further admitted that the Inter- national Organization of Masters, Mates, and Pilots, Pa- cific Maritime Region, Branch No. 6 (the MMP) is and has been at all times material a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The issue The principal issue raised by pleadings is whether the Regional Director is precluded by Section 10(b) of the Act from issuing a complaint in this proceeding. B. The Facts Respondent executed the current collective-bargaining agreement with the IBU on July 6, 1981. This agreement extends until January 31, 1984. Respondent also executed a collective-bargaining agreement with the MMP on July 20, 1981. This agreement also extends until January 31, 1984. Essentially, the IBU represents nonsupervisory per- sonnel of the employer-members of Respondent, and the MMP represents individuals who are supervisors within the meaning of the Act. The two agreements are mutual- ly inconsistent in that the former agreement prohibits employers from permitting members of the MMP to bump members of the IBU by virtue of greater seniorty with the employer, whereas the MMP agreement pro- vides, in pertinent part, at section 6.08. [N]o deck oficer with a seniority date of January 31, 1981 or earlier shall ever be laid off as long as a less senior employee continued in the employ of the Employer in any classification, licensed or unli- NORTHWEST TOWBOAT ASSN. 145 censed; rather, such deck officers shall always retain the right to return to an unlicensed position with the Employer so long as the exercise of this right does not displace employees whose original date of hire with the Employer is earlier. On learning that the proposed seniority provision in the MMP agreement was not consistent with that con- tained in the IBU agreement, representatives of the IBU asked for and obtained a meeting with representatives of Respondent to express their concern. This meeting oc- curred about July 10, 1981, at which time the MMP agreement had been negotiated but was pending ratifica- tion. At this meeting, representatives of Respondent ad- mitted that a potential conflict existed between the se- niority provisions in the two contracts, but suggested that there was reason to hope that there would be no ne- cessity for layoffs during the life of the contracts, and that therefore the parties would not have to resolve the potential controversy which, although foreseeable, was not probable. The IBU representatives were not con- vinced, and presented Respondent with a proposed "Memorandum of Understanding," purporting to provide a correct interpretation and application of the IBU agree- ment whereby seniority for its members would not be undermined by the provision of the MMP contract. However, Respondent's representatives declined to exe- cute the proposed memorandum. On July 14, 1981, before the MMP agreement was exe- cuted, the IBU filed the charge herein. The charge was subsequently dismissed on August 19, 1981, for the rea- sons set forth as follows: SUMMARY REPOR T The Acting Regional Director determined that the charge had been filed prematurely inasmuch as there has been no instance in which the Employer has taken action vis-a-vis Inlandboatmen's Union of the Pacific (IBU) unit employees in contravention of the specific bumping procedure and rights set forth in the current contract between the IBU and the Employer. At that time, no employee in either unit had been laid off as a result of the operation of the seniority language in the IBU or MMP agreements. The IBU did not elect to file an appeal of the determination of the Acting Re- gional Director. However, unforeseen economic conditions necessitated a layoff and caused the parties to exercise the respective contractual seniority provisions. As a result, the IBU filed a charge in Case 19-CA-14358 on March 3, 1982, as follows: During the past month, the Northwest Towboat Association and specifically one of its members- Foss-has allowed individuals outside of the Inland- boatmen's Union collective-bargaining unit to "bump" into the IBU unit in direct contravention of and repudiation of seniority rights in the IBU con- tract. This violation arises directly from the Asso- ciation's illegal act of negotiating an agreement with the Master, Mates and Pilots Association which contains a guarantee to members in that bargaining unit in direct contravention to the employment guarantees made to the Inlandboatmen's Union. The willful negotiation of conflicting contract clauses and the willful implementation of one of the con- flicting contract clauses to the detriment of a union that was not involved in its negotiation violates the duty to bargaining in good faith. This charge was dismissed on August 9, 1982, the Re- gional Director's summary, attached to the dismissal letter, stated: Summary The above titled case alleged violations of Sections 8(a)(1), (3), and (5) of the Act based on the negotia- tion and implementation of an agreement between the respondent employer association and the Master Mates and Pilots Pacific Maritime Region (MMP) which interacted with the agreement between the association and the charging party (IBU) in such manner as to deprive IBU members of seniority rights provided by their agreement. This contrac- tual provision was negotiated in the spring of 1981, but not applied until the occasion of a layoff by Foss Tug and Launch Co., one of the members of the employer association, in March 1982. It should be noted, however, that prior to resolution of this matter before the Regional Director, the Foss em- ployees who had been laid off were reinstated with full backpay as a result of the grievance procedure between the IBU and the association. We found that with respect to this charge, the stat- ute of limitations contained in Section 10(b) of the Act mandated dismissal of the Section 8(a)(5) alle- gation on the basis that the contract had been nego- tiated more than six months earlier. Note that in this regard, the Regional Director has revoked the earli- er dismissal of Case 19-CA-13725, a parallel allega- tion which was Timely filed, and which has been reconsidered in light of the more recent events. Had the grievance process not already resolved the plight of those individuals laid off by Foss we would have found their loss of employment viola- tive of Section 8(a)(3), but we have concluded that given the result of the grievance process in this case, it would not effectuate the purposes of the Act to proceed on those allegations. The reinstatement of the original charge, referred to in the foregoing dismissal letter, was accomplished on August 6, 1982, as follows: The above titled unfair labor practice charge was dismissed by the undersigned (then Acting Regional Director) on August 19, 1981 on the basis that as of that date, the Employer had taken no action under the relevant collective bargaining agreement with the Masters, Mates and Pilots which was inconsist- ent with the Inland Boatmen's Union agreement. 146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Since that time, as a result of our investigation of Northwest Towboat Association, Case 19-CA- 14358, it has come to the ,attention of this office that one of the towboat , association member companies has, in fact, subsequently taken , such action 'demon- strating the actual - conflict between the agreements and the potential for further such conflict so long as the two agreements remain in force. In accordance with applicable Board law, e.g. California Pacific Signs, Inc., 233 NLRB 450 (1977), a Regional Director has the authority to revoke his dismissal of an unfair labor practice charge upon discovery of new evidence leading him to reverse his initial conclusion as to the propriety of proceed- ' ing so long as the original charge - was timely filed. As the above titled case was filed within six months of the time that the'1981 MMP agreement was ne- gotiated, and • in that the new evidence - leads. me to conclude that complaint .would now be appropriate in these circumstances , the dismissal of the above titled charge issued August 19, 1981 is hereby re- voked and that charge is hereby reinstated. It is contemplated that complaint alleging violation of Section 8(a)(1) and (5) will promptly issue under separate cover. . C. Anaylsis and Conclusions The execution of conflicting seniority provision by Re- spondent was of serious concern and constituted a clear signal to the IBU that in the event of a layoff IBU' mem- bers would lose their jobs to members of the MMP. 'As a result, the IBU filed the instant charge. The Regional Di- rector reasoned that Respondent 's conduct . was insuffi- cient to warrant proceeding on the charge ; and dismissed it. No appeal was taken . A year later, as a result ofL"new evidence" consisting of the actual layoff of employees, the Regional Director reinstituted the charge rather than proceeding on a new charge, believing that the new charge, based on the execution of a contract a year earli- er, was barred by Section 10(b) of the Act. It appears that in July 1981 -Respondent , by the act of failing and refusing to reach a resolution with the IBU regarding the intent and application of the recently nego- tiated seniority provision in the IBU contract , vis-a-vis the inconsistent provision in the MMP contract;' clearly indicated , despite its hopes to the contrary, that it may elect not to adhere to those terms of the IBU contract. In this manner Respondent committed what was tanta- mount to anticipatory repudiation of the contract. See Restatement of the Law of Contracts, Volume 1, American Law Institute, 1932, at section 318. Indeed, -the General Counsel concedes as much , stating in his brief that "Respondent's representatives acknow- leged the inconsistency, but were unwilling to do any- thing about it beyond hope that the issue would not arise. In that timing and sequence of events is all the im- plicit evidence necessary to establish a reasonable pre- sumption that there was never any intent of cutting off supervisory bumping rights." Further, the General Coun- sel's brief acknowledges that as of the time of the filing of the initial charge ". . -. the violation had occurred. It was only the question of whether it would have any impact requiring legal redress which had not been -made evident.',' If, as stated by the General Counsel, the Re- gional Office believed that Respondent had engaged in violation of the Act at the time the charge was filed, it would appear that the dismissal of the charge was erro- neous: I am unaware of any authority, and the General Counsel has cited none, granting a Regional Director the discretion to refuse to issue a complaint under these cir- cumstances. It would appear that this situation from which the Re- gional Office would now like to extricate itself should reasonably have been anticipated in July 1981, and that based on the rationale advanced for the dismissal of the instant charge, it would have been appropriate to have held the matter in abeyance, or at the least to have spe- cifically dismissed ' the charge without prejudice to its being reinstated, thereby putting Respondent, on notice that the Regional Office had made no final disposition of the matter. - Meanwhile, the parties, through their contract machin- ery, have nicely handled the matter. Respondent's mem- bers Foss and'Dunlap Towing,' having been obligated-to apply the inconsistent terms of two contracts, have'been required to retain more employees than they need, paying them for their nonservices, and thus such matters were resolved in a manner fully satisfactory to the IBU. Only two such instances among approximately eight em- ployers having, occurred in the 2-1/2 years of a 3-year contract, and the matters having been resolved to -the satisfaction of the IBU, it appears that the services of the Board, given the unusual circumstances of this situation, are not now a matter of immediacy. Further, in the event the IBU desires to proceed, or in the, event of another instance where an association member fails to abide by the IBU seniority provisions, I fail to see why a new charge would not lie, based on a theory that Respondent, has simply repudiated a signifi- cant contractual commitment. Contrary to the opinion of the Regional Director that the contract between the Re- spondent and the MMP mandates dismissal of such a charge based on Section 10(b), it would appear that Re- spondent's contract with the MMP is absolutely immate- rial to the gravamen of such acharge, namely, whether or not Respondent actually-breached the IBU contract in a significant respect: Oak 'Cliff-Golman Baking Co., 207 NLRB 1063 (1973); Fairfield Nursing Home, .228 NLRB 1208 (1977); Struthers Wells Corp., 245 NLRB 1170 (1970). - Finally, it is important to-note that the dismissal of the instant. charge was not appealed. In Winer Motors, 265 NLRB 1457 (1982), the Board determined that it would no longer permit a withdrawn charge to be reinstated more than 6 months after the alleged unlawful conduct. Significantly, in that case, Chairman Van de Water and Member Hunter, at 1458 fn. 8, 'specifically enunciated ' In April 1983, Dunlap Towing, another member of the Respondent, laid off certain IBU personnel pursuant to the same provision Following the amendment of the instant complaint to include this alleged violation by Dunlap Towing, that company also reinstated the laid off IBU mem- bers with full backpay - NORTHWEST TOWBOAT ASSN. that they would ovverule California Pacific Signs, 233 NLRB 450 (1977), which permits reinstatement of a dis- missed charge, affirmed by the General Counsel upon the Charging Party's appeal, beyond the 10(b) period. Further, Member Zimmerman, in a concurring opinion, disagreed that California Pacific Signs should overruled, enunciating the difference between a withdrawn, as distin- guished from a dismissed charge (265 NLRB at 1460), as follows: Once a charging party voluntarily decides for what- ever reasons to withdraw a charge, it ceases to exist. It "is no charge at all," NLRB v. Central Power & Light Company, 424 F.2d 1318, 1321 (5th Cir. 1970). Moreover, as Section 10(b) establishes a 6-month statute of limitations, "absent the existence of a properly served charge on file, a party is as- sured that on any given day his liability under the Act is extinguished for any activities occuring more than 6 months before." Olin Industries, Inc., 97 NLRB 130, 132 (1951). That is not all the case where the charge is not withdrawn by the charging party, but instead is sub- sequently dismissed by the Regional Director as lacking in merit. That charge continues to exist; the charged party has received proper notice; and the charging party has in no way conceded any lack of merit in the charge filed. The statutory prerequisite for a complaint therefore remains, and the General Counsel thus retains his discretionary authority to reinstate the charge if he has reason to believe that his initial decision was erroneous. As mentioned previously, unlike the situation in Cali- fornia Pacific Signs, the Charging Party here never ap- pealed the then Acting Regional Director's dismissal of the charge. Thus, it may be reasonably argued that this 147 constitutes some indicia that the Charging Party has, in effect, conceded lack of merit to the charge , as it elected to accept the Regional Director's determination . There- fore, it appears that under the circumstances of this case, and as a result of the Board's decision in Winer Motors, Inc., supra, the Regional Director's reliance on California Pacific Signs is exceedingly tenuous.2 As a result of the foregoing, I am constrained to con- clude that the Regional Director's reinstatement of the charge and issuance of the complaint was either improp- er or unnecessary under the circumstances. CONCLUSIONS OF LAW 1. The Respondent and its constituent members are employers engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The IBU and MMP are labor organizations within the meaning of Section 2(5) of the Act. 3. The instant complaint is dismissed as the underlying charge was either improperly or unneccesarily reinstated. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed3 ORDER The complaint is dismissed in its entirety. 2 The General Counsel's reliance on Central Enterprises, 239 NLRB 1270 (1979), is misplaced, as in Central Enterprises an appeal of the Re- gional Director's dismissal was then pending at the time the dismissal was revoked. 8 If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec. 102 48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses.