Seafarers

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Seafarers International Union of North America, Pa- cific District, AFL-CIO, and its affiliates and American Pacific Container Lines, Inc. (AMPAC) Sailors Union of the Pacific, AFL-CIO; Marine Firemen's, Oilers, and Watertenders Union, AFL-CIO; Seafarers International Union, Pa- cific of North America District, AFL-CIO and National Maritime Union of America, AFL- CIO. Cases 20-CP-731 and 20-CP-732 September 30, 1980 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND PFNELLO On March 18, 1980, Administrative Law Judge Jay R. Pollack issued the attached Decision in this proceeding. Thereafter, Respondent Seafarers In- ternational Union of North America, Pacific Dis- trict, AFL-CIO, and its Affiliates filed exceptions and a supporting brief, and the General Counsel and Charging Party Employer filed briefs in re- sponse to exceptions. Respondent Seafarers Inter- national Union of North America, Pacific District, AFL-CIO, and its Affiliates also filed a "Motion To Reopen Record," the General Counsel and Em- ployer Charging Party filed oppositions to this motion, and Respondent filed a response to their opposition to reopen. Subsequently, Respondent Seafarers International filed a "Second Motion To Reopen" and the General Counsel and Charging Party National Maritime Union filed oppositions to this motion.1 I In its first motion to reopen, Respondent Seafarers International re- quests that the Board reopen the record in this proceeding to admit the introduction into evidenlce of what purports to be a telex from Thomas J. Smith, of Farrell Lines, to John Koster, president of AMPAC, dated February 5, 1979. According to Respondent, this telex, which was not available to it at the time of the hearing in this proceeding, is further evi- dence that, as a condition of sale of ships by Farrell Lines to AMPAC, AMPAC was required to man the ships with employees who were mem- bers of the National Maritime Union. We note that Respondent requested the Administrative Law Judge to take judicial notice of this evidence, but did not request that he reopen the record although he had not yet ren- dered his Decision In its second motion to reopen, Respondent requested that the record be reopended to introduce into evidence an undated doc- ument which purports to be "proposed manning scale for S.S. Austral Glade 'I ype Vessels" which Respondent represents is signed by officials of AMPAC and the National Maritime Union, and which it contends is further evidence that AMPAC had agreed to hire members of the Na- tional Maritime Union on its ships. Respondent does not, however, ade- quately support its contention that this document was not available to it at the time of the hearing, as it apparently was in the possession of its witness. Riley In any event. it is our opinion that, in light of all the cred- ited evidence in this case, the proffered documents do not constitute evi- dence that AMPAC agreed with Farrell Lines to hire members of the National Maritime Union or that it entered into any unlawful prehire agreement with that Union to hire its members when AMPAC manned its ships in 1979 We therefore deny both motions to reopen. In addition, Member Penello would deny the motions to reopen on the further ground that charges filed by Respondent alleging violations of Sec 8(a)(l), (2), (3), and (5) concerning AMPAC's relationship with the Na- tional Maritime Union had been dismissed, and the appeal had been 252 NLRB No. 105 Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ings,2 and conclusions of the Administrative 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 Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respodents, Seafarers Inter- national Union of North America, Pacific District, AFL-CIO, Sailors Union of the Pacific, AFL- CIO; Marine Firemen's, Oilers, and Watertenders Union, AFL-CIO; Seafarers International Union of North America, ALGIW District, their officers, agents, and representatives, shall take the action set forth in the said recommended Order. denied See Service Employees' International Union. Local No. 227. AFL- CIO (Children' Rehabilitation Center. Inc.), 211 NLRB 982 (1974). and his opinion expressed in f. 2 in United Food and Commercial Workers In- ternational Union. Local No 1063, AFL-CIO (Ileathman Enterprises Lim- ited) 249 NLRB 372(19080) Respondent has excepted to certain credibility findings made by the Administrative Law Judge It is the Board's established policy not to overrule an administrative lasw judge's resolutions with respect to credi- bility unless the clear preponderance of all of the relevant evidence con- vinces us that the resolutions are incorrect. Standard Dry Wall Products. Inc., 91 NLRB 544 (1950). eld. 188 F.2d 362 (3d Cir 1951). We have carefully examined the record and find no basis for reversing his findings DECISION STATEMENT OF THE CASE JAY' R. POLLACK, Administrative Law Judge: This case was heard at San Francisco, California, on January 24, 25, 28, and 29, 1980. Pursuant to a charge filed against Seafarers International Union of North America, Pacific District, AFL-CIO, and its Affiliates' (Respond- ents) by American Pacific Container Lines, Inc. (AMPAC), on November 20, 1979,2 and a charge filed against Respondents by National Maritime Union of America, AFL-CIO (NMU), on November 21, the Re- gional Director for Region 20 of the National Labor Re- lations Board (Board) issued a consolidated complaint against Respondents on November 29, alleging in sub- ' Seafarers International Union of North America, Pacific District, AFL-CIO (SIU-PD), is the certified bargaining representative of an ap- propriate unit of unlicensed shipboard employees employed by the em- ployer-members of the Pacific Maritime Association (PMA). Aside from that designation, SIU-PD has no officers and no functions. SIU-PD con- ducts its business through joint action by representatives of its three member organizations: Sailors Union of the Pacific; Marine Firemen's Oilers and Watertenders Union; and Seafarers International Union, AGLIW District The three labor organizations and their joint designa- tion are collectively referred to herein as Respondents. 2 All dates hereinafter are in 1979 unless otherwise noted. 73 SEAFARERS INTERNATIONAl. UNION stance that Respondents violated Section 8(b)(7)(A) of the National Labor Relations Act, as amended (Act), by picketing AMPAC's vessels at the ports of San Francis- co and Long Beach, California, with an object of forcing or requiring AMPAC to recognize and bargain with Re- spondent at a time when AMPAC was lawfully recog- nizing and bargaining with NMU. The Issues The issues in this case are whether Respondents pick- eted AMPAC where (I) an object thereof was forcing or requiring AMPAC to recognize or bargain with Re- spondent as the representative of AMPAC's employees; and (2) AMPAC had lawfully recognized NMU in ac- cordance with the Act so that a question concerning rep- resentation could not appropriately be raised. All parties have been afforded full opportunity to par- ticipate, to introduce relevant evidence, to examine and cross-examine witnesses, and to file briefs. Based upon the entire record,a upon the briefs filed on behalf of the parties, and upon my observation of the demeanor of the witnesses, I make the following: FINDINGS OF FACT I. JURISDICTION AMPAC is a Delaware corporation, with its principal place of business located at San Francisco, California, where it is engaged in the transportation of cargo by container ship between the various ports on the West Coast of North America. From November 23, when AMPAC commenced operations, to the time of the in- stant hearing, AMPAC had derived gross revenues in a Timely briefs were filed o behalf of the General Counsel and AMPAC. Respondents' brief was filed one day late but was considered as if timely filed. Respondents attached to their brief as "Exhibit A" what purports to be a telex from Thomas J. Smith, of Farrell Lines, to John Koster, President of AMPAC. dated February 5, 1979. According to Respondents, Exh. A was not available at the instant hearing but was obtained during discov- ery in a collateral district court proceeding to which AMPAC, but not the General Counsel. was a party. Respondents urge that I take judicial notice of Exh A but have made no motion to reopen the record On March 7. 1980, AMPAC filed a motion to strike all references to Exh. A from the record. I believe it would be improper to take judicial notice of this exhibit Under Rule 201 of the Federal Rules of Evidence, a court shall take judi- cial notice of adjudicative facts requested by a party and supplied with the necessary information. However, the other parties are entitled to an opportunity to be heard as to the propriety of taking judicial notice and the tenor of the matter noticed. Respondents did not offer the exhibit at the hearing nor have they moved to open the record. The General Coun- sel has had no opportunity for voir dire or cross-examination with respect to the document. Respondents cite Lowe v. McDonald, 221 F.2d 228 (9th Cir. 1955). a case arising prior to the effective date of Rule 201, in support of their request that I take judicial notice of Exh. A However, that case states that the general rule is that a court in one case will not take judicial notice of records of another and distinct case even between the same par- ties unless trial proceedings are introduced into evidence. The LoHRe case held that exceptions to the general rule existed where the prior case is brought into the pleadings in the case on trial, or where the two cases represent related litigation. Based on the record before me, I cannot find the two cases to repre- sent related litigation. No evidence of the nature of the collateral suit is before me and further it appears that the General Counsel as notl a party to that proceeding excess of $50.(XO from the interstate transportation of goods and materials.4 Accordingly, I find AMPAC is now, and has been at all times material herein, an em- ployer engaged in commerce and in a business affecting commerce within the meaning of Section 2(6) and (7) of the Act. 1I. THE lABOR ORGANIZATIONS INVOI.VEI) The complaint alleges, the answer admits, and I find that Respondents, and each of them, and NMU are each labor organizations within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR I.ABOR PRACTICES A. Background AMPAC was set up in 1976 to operate container ships on the West Coast of North America. The operation was to transport goods from vessels in international transit to various ports on the West Coast. Financing for the ven- ture was difficult and AMPAC did not actually com- mence the envisioned operation until November of 1979. the time material herein. However, there were times, particularly in 1977, when financing appeared to be available, that AMPAC geared up for operation only to find that its plans for financing and/or purchasing of ves- sels could not be realized. It was not until 1979 that AMPAC finally purchased the two vessels at issue herein, the Pacific Endeavor and the Pacific Enterprise. These vessels when owned by AMPAC's seller. Farrell Lines, were named the Astral Glade and the Astral Glen. SIU-PD is the collective-bargaining representative of the unlicensed seagoing employees on most West Coast vessels. 6 However, NMU, which represents the seagoing employees on the East Coast and other ports, represent- ed the licensed seagoing personnel on the Astral Glade and the Astral Glen when those vessels were operated by Farrell Lines. Respondents contend that AMPAC as early as 1977 had determined to recognize NMU as the exclusive bar- gaining representative of the two vessels' unlicensed 4 Respondents urge that AMPAC, having just started its operations on November 13, was not an employer within the meaning of the Act ait time of the alleged unfair labor practices. While AMPAC at that time did not have a sufficient volume of business to meet the Board's discretionary jurisdictional standards, by the date of the hearing AMPAC received gross revenues, from its interstates operations, in excess of $50.000. Thus, it would be appropriate for the Board to assert jurisdiction herein. Poor Richard'i Pub - a California Corporation. 217 NLRB 102 (1975); N.L.R B v. Guernsey-Muslngurn Electric Cooperative, Inc., 285 F 2d 8, I I Lth C'r 1960). Respondents apparently argue that because AMPAC was a new bui- ness, the General Counsel must prove jurisdiction on a projected basis However, if the jurisdictional standard is met based on a short period. there is no purpose for projecting revenues for a full year period Finall,. it should be noted that assertion of jurisdiction is appropriate 'henl either jurisdictional standard is met Northgate Cinema. Inc. and Wrandio, Ih'e- atre, Inc.. 233 NLRB 586 (1977) I In prior times the vessels were named the Hawaiian Bear and the Guam Bear r Traditionally, S UP represents unlicensed deck department emplos- ees, M FO W represents unlicensed engine room employees and S I t - AGilI.W' Districtl represents unlicensed stesward departmenl emplosees 737 DECISIONS OF NATIONAL LABOR RELATIONS BOARD seamen and to exclude members of Respondents from hiring to accomplish this purpose. In order to reach the critical issues of this case, these conditions of Respond- ents must first be considered. B. The Events of 1977 The principal matters litigated in this proceeding re- volve around the procedures followed to man the two vessels, the Pacific Endeavor and the Pacific Enterprise. Respondents presented Herbert Riley, former executive vice president of AMPAC, who left the employ of the Company in the summer of 1977, and who testified to AMPAC's alleged plan to man the vessels with NMU members and to recognize NMU in June 1977. Respond- ents presented evidence of the 1977 plan in support of their contention that the same plan or a similar plan was used by the Company to hire NMU members and to rec- ognize the NMU in November 1979. The General Coun- sel and the Company deny the existence of any such plan and contend that Riley harbors animosity toward the Company and that he wrongfully sought to adversely affect the Company's interest in this proceeding. There is merit to the contention that Riley harbored animosity toward the Company. Riley testified that he was biased against the Company as follows: I am strongly biased against AMPAC but at this particular time I would not like to create any harm whatsoever to that company since they still owe me in excess of $25,000 and I would like them to keep going and make some money. Riley quit his employment with AMPAC in the summer of 1977, and it is clear when he testified that he felt that AMPAC had been unfair in its treatment of him. Riley sued AMPAC in 1978 alleging, inter alia, a cause of action based on claims of humiliation, mental anguish, and emotional and physical distress. 7 Riley's attempt to tailor his testimony adversely to AMPAC was illustrated most graphically by his answers with respect to how AMPAC intended to determine the identity of the NMU members from its many job applicants. Riley first testi- fied as follows: Q. (By Mr. Walsh): Can you tell us please how . . .you [know] that one was from the SUP and somebody else was from the NMU? A. (By Mr. Riley): That was a good question. How did we determine. The topic was dropped and later that same day Riley testified as follows: Q. (By Mr. Walsh): Would you state, if you can recall, of course, whether or not there was any dis- cussions as to how you were going to determine-if in fact you were going to determine this-which labor organization an applicant seaman belonged to? A. (By Mr. Riley): As I recall that point we were not concerned with the making of such a determina- tion during the interviews, or by looking at the ap- ' The lawsuit as dismissed on March 16, 1979, and was on appeal at the time of the instant proceeding. plications, but that the NMU was going to furnish us with a list of their members so that we would know which belonged to that union. Later in the proceeding, Riley gave testimony which in- dicated that NMU furnished the Company with a list of NMU members who had worked on the vessels for the previous owner. Thereafter Riley vacillated in his testi- mony and stated that the Company had needed to know the names of other members of the NMU who were available for employment. Still later, Riley testified that the list consisted of NMU members available for work and/or those who had formerly sailed on the two ves- sels. Finally, Riley testified that he did not remember whether the list consisted of the names of former em- ployees of the vessels or the names of NMU members applying for work. Based on Riley's demeanor, his animosity toward AMPAC, and the internal inconsistencies in his record testimony, I credit Riley only insofar as his testimony is corroborated either by credible testimony or by objec- tive considerations. More specifically, I do not credit Riley's testimony that he saw in 1977 a manning agree- ment signed by representatives of AMPAC and NMU. No such agreement was produced. Philip Bates, who succeeded Riley at AMPAC, credibly denied any knowl- edge of such an agreement. James McKinley, the NMU's West Coast representative, also denied any knowledge of the manning agreement he was alleged to have signed. I find insufficient evidence that any manning agreement existed between AMPAC and NMU in 1977. Secondly, I do not credit Riley's testimony that he had an understanding with McKinley that AMPAC would receive a list of NMU's members so that the Company would know which applicants were NMU members. As mentioned above, Riley backtracked from this testimony. McKinley credibly denied these assertions and, of course, no list was produced. Riley claimed he could not find his copy of the list. Based on the record evidence, I find AMPAC had a list of the former employees of the vessels but I am unable to determine whether the list was secured from Farrell Lines or the NMU. Finally, as will be discussed in more detail below, there was no evidence to show any list of NMU members was submitted to AMPAC in November 1979, the time material herein. I find that in June 1977, based upon attempts to fi- nance the purchase of the two vessels, which ultimately fell through, AMPAC sought to hire a crew for each vessel. Notice of hiring was sent to all maritime unions, including each of Respondents and the NMU, and all employment agencies. In addition, advertisements for the job openings were placed in local newspapers. However, certain individuals were sent letters offering them an in- terview a day earlier than the public interviews. Based on the record evidence, I find that such opportunity was given to former employees of the vessels rather than to NMU applicants as urged by Respondents. The contract proposals for sale of the vessels from Farrell Lines to AMPAC provided that AMPAC would use its "best efforts" to engage the same personnel that were previously employed on the vessels under Farrell Lines' operations. 738 SEAFARERS INTERNATIONAl. UNION While such a contract clause may show an intent on the part of Farrell Lines that NMU and other labor or- ganizations with which it had agreements continue their relationship with the employees of the vessels, it does not prove an unlawful intent on the part of AMPAC. Preference to former employees of the vessels, experi- enced with these vessels, appears to be nondiscrimina- tory and supported by business justifications. Finally, as no employees were actually hired, it would not change my ultimate conclusions had such preference been intended in 1977, as argued by Respondents. C. The November 1979 Hirings and the Recognition of NM, U On October 3, 1979, prior to the hiring of a crew for either the Pacific Endeavor or the Pacific Enterprise, Respondents filed an unfair labor practice charge against AMPAC alleging violation of Section 8(a)(1), (2), (3), and (5) of the Act.8 The charge alleged, inter alia, that AMPAC had unlawfully recognized NMU and/or the Masters, Mates & Pilots,9 implemented a prehire agree- ment with them, unlawfully failed to hire Respondents' members, and refused to meet or discuss job opportuni- ties with Respondents. According to the testimony of AMPAC's Executive Vice President Philip Bates, after receipt of the charges, he and Paul Heylman, the Company's attorney, went to the Board's Regional Office in San Francisco to discuss the charges. As the Company had not yet hired any em- ployees, Bates was assured that the charge would be dis- missed, absent withdrawal. Bates sought to devise a plan for the hiring of the crews which would not subject the Company to liability under the Act. In addition, AMPAC was required under its loan agreement with the Economic Development Agency to hire, as at least 40 percent of its work force, women and minority employ- ees. Pursuant to this plan, Bates issued nondiscriminatory guidelines to the Company's interviewers. '° In order to facilitate the affirmative action program, Bates deter- mined that the entry level positions, which did not re- quire substantial prior experience, should be filled by women and minorities. A memo to this effect was also given to the Company's interviewers. I Case 20-CA-14892. The charge was initially dismissed by the Re- gional Director of Region 20, but thereafter, based upon a withdrawal request, the dismissal was rescinded and the withdrawal approved 9 The Masters. Mates & Pilots represent the licensed supervisory per- sonnel on board AMPAC's ships tO The Company's guidelines provided as follows: AMPAC is currently hiring employees for unlicensed seamen posi- tions, we have notified all available union halls and placed advertise- ments in local papers The National Labor Relations Act requires that employees be se- lected for employment without regard to union affiliation or lack thereof You may, therefore. not ask any questions regarding union affiliation or lack thereof. Applicable law and EDA regulations require that AMIAC engage in affirmative action in hiring and promotion Please insure that Sec- tion 9 of the application is completed correctly All hiring will be done on the basis of the following factors ( I ) experience and seamanship (2) disciplinary record (3) requisite U SCG . [United States Coast Guard] Certification (4} prior coastwise service experience (5) applicable minority status On November 7. 1979, AMPAC sent a notice, by mes- senger, to each of Respondents and the NMU that it was accepting applications for unlicensed seamen positions on the Pacific Endeavor for Thursday, November 8, and Friday, November 9. For the 16 positions available on the Endeavor and the 16 positions available on the Pacif- ic Enterprise, AMPAC received approximately 300 ap- plications. On Sunday, November 11, employees were notified of their selection and on November 13 the crew reported for duty. On November 13, Bates was called by a security guard on the Endeavor and requested to come to the ship to talk to \Willard Manning of the NMU. " Bates accompa- nied by Attorney Heylman went to the ship after Bates arrived, Manning identified himself as a business repre- sentative of the NMU and demanded recognition of his Union as the bargaining representative of the unlicensed crew. Heylman recommended a card check and arrange- ments were made for a priest at a nearby church to com- pare the signatures on the cards held by Manning w ith the signatures on the job applications. Bates, Heylman, Manning. and two employees serving as witnesses went to the church for the card check. Father Joseph Scarna- gatta, of St. Peter and Paul's Church in San Francisco, compared the signed cards with the signed job applica- tions and certified that NMU had II valid cards in the unit of 16 employees. 1 2 Following the card check, Bates, Heylman, and Man- ning went to the offices of James McKinley, the NMLJ's regional representative, where Bates and McKinley en- tered into a "Memorandum of Understanding." 3 Bates also signed a letter granting recognition to the NMU based on the card check. ' 4 On November 15, Don RotanIs wrote AMPAC de- manding recognition of Respondents as the exclusive II Manning testified that he met Bates and requested recognition on November 12. However, Manning also testified that these events took place on the same day the ship was first manned and the same day of the card check. Objective evidence shows both dates to be November 13 Thus, I find in accordance with Bates' testimony; that he went to the En- deavor and met Manning there on November 13 12 At the time of the card check, AMPAC manned the Pacific En- deavor as follows 4 unlicensed engine room employees, 4 cooks and stewards, and 8 unlicensed deck department employees 13 The text of the "Memorandum of Understanding" provides as as fol- lows: Ir Is MtUA II AGRt Et) by the Company ( MII RIC AN P'( IIIl (ONIAIN R I INES, INC.) and the Union (NA IIONAI M ARIIIMt I NION Ot M RICA, At -CIO) that the Agreement coLering S Flag ocean-going dry cargo vessels shall he amended by negotiations be- tween the parties to cover the company's vessels in the U S Coslal Trade This shall also include working rules and manning scale i4 The November 13 letter granting recognition states as follows: Based on the card check of this date, the American Pacific Con- tainer Line, Inc. hereby recognizes the National Maritime Union of America, AFL CIO, as the sole bargaining representatise for all its unlicensed employees 5 Respondents deny that Rotan as their agent and specifically deny that he had any authority Io write the November 15 letter demanding recognition Rotan holds himself out as assistant secretary treasurer of SIU-AGI.IW District and is west coast associate editor of that Union's newspaper Rolan's office is located in the same suite of offices used by Conrinued 739 DECISIONS OF NATIONAL LABOR RELATIONS BOARD representative of the Pacific Endeavor's employees in the steward department. Bates, on receipt of the letter, checked the authorization cards and determined that NMU had cards for three of the four employees in the steward department. Bates, on November 16, sent a tele- gram to Rotan advising Rotan that NMU had valid au- thorization cards from a majority of the employees of the Endeavor and had been recognized as majority repre- sentative by AMPAC. On November 16, 1979, Respondents began picketing AMPAC at the Port of San Francisco with placards bearing the legend: 6 AMPAC OWNE R & OPERATOR OF S.S. PACIFIC ENDEAVOR IS UNFAIR WE ARE PICKETING IN SUPPORT OF OUR UI.P CHARGES AGAINST AMPAC & IN PROIEST OF ITS CONFIICT. WE HAVE NO I)ISPUTE WITH ANY OTHER EMPLOYER OR VESSELI AT TIllS SITEl SIU PACIFIC l)ISRICT On the weekend of November 17 and 18, AMPAC se- lected and contacted its crew for the Pacific Enterprise from the applicants of November 7 and 8. On the morn- ing of November 19, Manning received authorization cards from the crew of the Enterprise. Bates was called to the ship and Manning demanded recognition of NMU for the Enterprise's employees. Bates demanded proof of the NMU's majority but Manning insisted that the recog- nition agreement of November 13 covered both ships. Fi- nally, Manning turned over the cards to Bates and the parties agreed to another card check by the same priest. Father Scarnagatta was contacted and he conducted a card check at AMPAC's offices. The Father certified 14 valid cards out of a crew of 16 for the Enterprise. Bates was requested to go to McKinley's office where Bates signed the form NMU agreement entitled "Agreement Edward Turner, vice president of Seafarers International Union of North America and senior representative of SIU-AGLIW District. At least by the time of the injunction proceeding, Turner had knowledge of Rotan's letter and filing of unfair labor practice charges on behalf of SIU- AGLIW District but took no steps to repudiate that action Rather. Turner testified that his union was picketing in support of that charge Rotan, still in the employ of SIU-AGLIW District, did not testify. Based on all of the circumstances, I find Rotan to be a agent of SIU- AGLIW District based on apparent authority and further that SIU- AGLIW District ratified his acts. Even if true, it is of no consequence that Rotan did not have actual authority to demand recognition from AMPAC Sec 2(13) of the Act ' According to the uncontradicted testimony of Bates. which I credit, an unidentified picket told Bates that Respondents "were going to orga- nize that ship and wsere going to put a union aboard the ship" Bates re- sponded that there was a uniotn aboard the ship. A second picket, thought by Bates to be a picket captain, told the first picket to shut up and told Bates to call Respondents' lawyer There is an absence of any evidence of the agency status of the picket. Further the alleged picket captain's actions are ambiguous and could be interpreted as countermanding the first picket. Thus, I find insufficient basis for concluding that the picke's statement was an admission, of the real objective of the picketing, binding on Respondents I therefore place no reliance on this statement in making my conclusions herein Covering U.S. Flat Ocean-Going Dry Cargo Vessels." On the signature page McKinley printed "This agree- ment is retroactive to 11/13/79." This addition was ini- tialed by both McKinley and Bates. The signed copies of the agreement were kept by McKinley. Thereafter a copy signed by Shannon Wall, president of NMU, was returned to Bates. Wall's signature was undated. On November 16, coinciding with the commencement of their picketing of AMPAC, Respondents filed a charge with Region 20 of the National Labor Relations Board in San Francisco, alleging that the Company had violated Section 8(a)(1), (2), (3), and (5). The basis of the charge was the same as the charge filed on October 3. 7 On November 26, Respondents picketed AMPAC at the Port of Long Beach, California, where the Pacific Endeavor was berthed, with picket signs bearing the legend: AMPAC OWNER OPERATOR OF S.S. PACIFIC ENDEAVOR IS UNFAIR WE ARE PICKETING IN SUPPORT OF OUR ULP CHARGES AGAINST AMPAC & IN PROTEST OF ITS CONDUCT. WE HAVE NO DISPUTE WITH ANY OTHER EMPOYER OR VESSEL. AT THIS SITE SIU PACIFIC DISTRICT The picketing at San Francisco and Long Beach con- tinued until enjoined on November 30, 1979, by the United States District Court for the Northern District of California, pursuant to a petition filed under Section 10(1) of the Act. t The unfair labor practice charge filed on November 16 in Case 20-CA-14980 was dismissed by the Regional Di- rector for Region 20 and was appealed by the Respond- ents herein. The appeal was denied by the General Counsel prior to the instant hearing. IV. ANALYSIS AND CONCI.USIONS Section 8(b)(7)(A) of the Act, in pertinent part, makes it an unfair labor practice for a labor organization to picket an employer "where an object thereof is forcing or requiring an employer to recognize or bargain with a labor organization as the representative of his employees . . where the employer has lawfully recognized in ac- cordance with this Act any other labor organization and a question concerning representation may not appropri- ately be raised under section 9(c) of this Act." The issue of whether AMPAC had lawfully reacog- nized NMU, another labor organization, so that a ques- tion concerning representation (QCR) could not appro- 17 The charge in Case 20-CA-14980 was signed by Jack Ryan, vice president of SUP, B.C. Shoup. vice president of MFOW, and Don Rotan. assistant secretary treasurer of SIU-AGI.IWD i" There is currently in effect a preliminary injunction enjoining Re- spotdents from picketing AMPAC for recognitional purposes pending final adjudication of the instant matter by the Board. 740 SEAFARERS INTERNATIONAL UNION priately he raised was fairly and fully litigated. Respond- ents, notwithstanding the dismissal of their unfair labor practice charges, contend that AMPAC and NMU en- tered into an unlawful prehire agreement. It follows, ac- cording to Respondents' theory of the case, that such an unlawful agreement would not operate as a contract bar and, therefore, a question concerning representation could appropriately be raised.'19 As discussed more fully above, there is no factual basis for finding that AMPAC recognized NMU prior to the card checks of November 13 and 19. However, Respondents' argument is that AMPAC conducted its hiring in such a manner as to insure recognition of NMU by unlawfully discriminating in favor of NMU members and against members of Re- spondents. To support their allegations with respect to discrimina- tion in hiring, Respondents argue, based on Riley's testi- mony, that AMPAC had a list of NMU members and hired its crew accordingly. Further, Respondents argue, even without a list of NMU members, AMPAC ascer- tained the union status of applicants from their past expe- riences and hired applicants based on experience with vessels subject to NMU contracts. To support this con- tention, Respondents argue that they supplied 49 percent of the job applicants but received only 7 of the 32 availa- ble jobs. 2 0 Further, Respondents argue that these statis- tics support their contention that AMPAC and NMU en- tered into an unlawful prehire agreement. As mentioned above, I find no credible evidence that AMPAC planned to hire or hired from a list of NMU members. I have carefully considered Respondents' argu- ment with respect to the alleged discrimination in hiring between applicants who were members of Respondents and nonmember applicants. For the reasons stated below, I reject that argument. Without much case guidance from the Board with re- spect to the use of "statistics" to prove discrimination, I turn to the United States Supreme Court in International Brotherhood of Teamsters v. United States2' a case arising under Title VII of the Civil Rights Act of 1964: "9 Under the Board's contract bar rules, a prehire agreement does not operate as a bar to an election. Western Freight Association, Merchant Shippers. Incorported: Stor-Dor Forwarding Company,; festland Forwarding Company, Dependable Consolidators Inc., 172 NLRB 303 (19t8): General Exrusion Company, 121 NLRB 1165, 1167 (1958). 20 Based on job experience shown by the 213 employment applications received in evidence, Respondents argue that 104 job applicants were members of Respondents, 52 were members of NMU, and 57 were neu- tral (Respondents could not determine the union affiliation. if any of such applicants). With respect to the initial 16-member crew of the Pacific Endeavor, Respondents argue that 8 were members of NMU, 5 were members of Respondents, and I was neutral, With respect to the initial 16-member crew of the Pacific Enterprise, Respondents argue that II were members of NMU, 2 were members of Respondents, and 3 were neutral AMPAC by its "motion to strike" of March 7, 1980, seeks to strike all reference to the compilations as to union affiliation from the record. I do not consider these classifications as evidence Rather, I consider the at- tempts to so classify the applicants as argument Duane Hewitt. business agent for SUP, testified that the classifications he made, based on the ap- plicants' experience with certain companies, constituted an "educated guess" as to an applicant's union affiliation Hewitt admitted that he did not consider the possihbility that any applicant was a member of bolth competing Unions 21 431 US. 324(1977) [O]ur cases make it unmistakably clear that "[s]tatistical analyses have served and will continue to serve an important role" in cases in which the existence of discrimination is a disputed issue. We have repeatedly approved the use of statistical proof, where it reached proportions comparable to those in this case, to establish a prima facie case of racial discrimination in jury selection cases .... Statistics are equally competent in proving employ- ment discrimination. We caution only that statistics are not irrefutable. They come in infinite variety, and like any other kind of evidence, they may be rebutted. In short, their usefulness depends on all of the surrounding facts and circumstances. The Supreme Court's cautionary remarks are well heeded in this case. The simplistic comparison urged by Respondents lacks real meaning in the context of this case. This is not a case where all applicants are fungible for purposes of determining whether members of Re- spondents have been unlawfully excluded or more im- portantly, whether members of NMU have been unlaw- fully preferred. Further, there is no reliable evidence of how many applicants were members of Respondents, members of NMU, members of neither, or members of both. Moreover, there is no reliable evidence concerning the union membership status of the minority and women applicants. It is noted that in this case nearly 300 individuals ap- plied for only 32 jobs and, therefore, statistical data would further be questionable because the small number of available jobs makes comparison by percentages par- ticularly suspect. Further there is no evidence that any AMPAC official classified or could have classified em- ployees, as to union affiliation based on job experience.22 Respondents contend that AMPAC's failure to give them an adequate opportunity to participate in the card checks made the recognition of NMU unlawful. In sup- port of this contention Respondents argue that their charge in Case 20-CA-14892, filed on October 2, gave AMPAC notice of their representational claims. Similar- ly, Respondents argue that the number of job applicants referred to AMPAC by them was sufficient notice of their representational interest. Under the Board's Midwest Piping doctrine, 2 an em- ployer faced with conflicting claims of two or more rival unions which give rise to a real question concerning rep- 2Z I have carefully examined the 213 job applications receised in cs.i- dence including the interviewers' remarks. I find no evidence of union considerations in hiring. Rather, the interviewers' remarks track the five items listed in the Company's guidelines for hiring, i.e, (I) experience, (2) disciplinary record, (3) Coast Guard certification, (4) prior coastwise ex- perience. and (5) minority status. The only additional factor ascertainable from the interviewers' notes is that the Company questioned employees concerning their willingness to work with women linally, it is noted, two of the employees hired for the Pacific Endeav- or specifically noted their affiliation with Respondents No other member of the crew specifically noted their affiliation with any labor organiza- tiotn Considering all of the circumstances, including AMPAC's desire to give job preference to omeln and minorities and he lack of any evi- dence of dlscriminat,iry intent, I conclude that there is simply insufficient evidence to find a hiring practice which discriminated in fasor of NMUl members and which resulted in de facto prehiring agreement : .Midest Piping & Supp/! Co. In(., h3 NlRB Ii060 (19451 741 DECISIONS OF NATIONAI. LABOR RELATIONS BOARD resentation may not recognize or enter into a contract with one of these unions until its right to be recognized has finally been determined under the representation pro- cedures provided by the Act. The United States Court of Appeals for the Ninth Circuit in Intalco Aluiminum,2 4 upheld the Board's finding25 that an employer had un- lawfully recognized a union on the basis of an impartial card check under circumstances where the employer and the union knew of the organizational activities of a rival union and where the rival union was not given an oppor- tunity to participate in the card check. Had the rival union participated in the card check, in Intalco Alumi- nurn, it could have produced cards showing that the rec- ognized union had not been designated by a majority of the employer's employees. 26 The Ninth Circuit's opinion Buck Knives, Inc. v. N.L.R.B., 549 F.2d 1319, 1320 (9th Cir. 1977), cited as controlling herein by Respondents, reaffirmed the Intalco Aluminum rationale in instances where a nonunion employer is confronted with at least two unions who are vying for exclusive recognition, none of which have had prior collective-bargaining agreements with the employer. But the application of Midwest Piping and Intalco Aluminum presupposes a real question concerning representation. In order to invoke the Midwest Piping doctrine, Respondents must show a colorable claim of representation at the time recognition was granted. I do not find Respondents' filing of unfair labor prac- tice charges, particularly when the filing occurred prior to the interviewing or hiring of any employees, sufficient to raise a question concerning representation. Further I find that Respondents' referral of job applicants to AMPAC does not raise a question concerning represen- tation. The only evidence of a representational claim by Re- spondents, present in this case, is the demand letter of November 15. As mentioned above Respondents deny responsibility for that demand but I have, contrary to their contention, imputed liability for Rotan's actions to Respondents. However, Rotan's letter sought recognition for a group of employees on the Pacific Endeavor for which recognition had previously been granted. No rep- resentational claim was made for the Pacific Enterprise. Thus, I find Respondents did not have a substantial or supportable representational claim at the time recognition was granted to NMU. Finally, it is noted, that unlike In- talco Aluminum, in this case there is no evidence of any organizational activity by Respondents prior to recogni- tion. Respondents contend the sole and exclusive object of the picketing activity was to protest AMPAC's unfair labor practices. The issue is not whether AMPAC had committed unfair labor practices, but rather, whether "an object" of Respondents' picketing was recognitional in purpose or solely in furtherance of Respondents' "belief' that AMPAC had commited unfair labor practices. i lntiaco 41umulirn (orporution N. L. R.B 417 F 2d 3 (9th Cir 196'9) ' 9 NL.RB 1034 (1968) 2' [he tne duplicate card i the illstlant case was igned for Respond- rit after recoignitilon hd ben granted Further. said card does not affect NMUt's naljority slatus In International Union, United Automobile, Aerospace and Agricultural Implement Worker of America (UA W) amalgamated Local NIo. 55 (Don Davis Pontiac, Inc.), 233 NLRB 853 (1977), the Board overruled an administrative law judge's finding that a union violated Section 8(b)(7)(A) by picketing a car dealership under circum- stances where, as here, the union's unfair labor practice charge had not been found to have merit. The Board found the purpose of the UAW's picketing was to pre- serve jobs the union believed rightfully belonged to its members and found that the object of the UAW's picket- ing was job preservation. Further, the Board stated: The General Counsel's subsequent dismissal of the Respondent's unfair labor practice charges and representation petition shows that Respondent's belief regarding the legality of Davis' conduct, at least in the General Counsel's view, was incorrect, not that Respondent did not hold such a belief. [Id. at 854, fn. 4.] The United States Court of Appeals for the Second Circuit upon a petition for review and a cross-application for enforcement reversed and remanded the case to the Board.2 7 The Board accepted the remand and adopted, as the law of the case, the court's finding that the UAW's picketing was for a recognitional purpose. 2 8 My reading of the court's opinion, in Don Davis, indicates that it did not disagree with the Board's holding that picketing for job preservation does not violate Section 8(b)(7)(A), but rather, that on the facts of the Don Davis case, substantial evidence indicated that the primary object of the picketing was recognitional in purpose (594 F.2d 327, 332 (1979)). Thus, in the instant case, if the sole object of Respondents' picketing was to publicize their good-faith, but mistaken, belief that AMPAC had committed unfair labor practices, Respondent would not have picketed for a recognitional object in violation of Section 8(b)(7)(A). The Board has held that recognition or organization need not be the sole or principal object of the picketing; it is sufficient to make out a violation if one of the union's objects is recognitional. See, e.g., Building Service Employees Union, Local No. 87, AFL-CIO (Liberty House/Rhodes), 223 NLRB 30 (1976). Ample indicia of recognitional or organizational object is present in this case. Respondents filed two charges against AMPAC with the General Counsel alleging, inter alia, a refusal to bargain in good faith in violation of Sec- tion 8(a)(5). Further, Respondents commenced picketing immediately after AMPAC rejected a demand for recog- nition in the steward department. Moreover, Respond- ents, in the district court proceedings under Section 1(1(1), admitted representational claims on AMPAC. '2 Thus under all of the circumstances, I find at least "an object" of Respondents' picketing was to seek or obtain recognition as the bargaining representative of 27 594 F2d 327 (2d Cir 1979) 2 243 NLRH 414 (1979) ' Respondlents in their opposition to preliminary injunction filed in tlhe UIS. District Court stated: 742 SEAFARERS INTERNATIONAL UNION AMPAC's employees on the Pacific Endeavor and the Pacific Enterprise.to I therefore find and conclude that at all times from November 16 until on or about Novem- ber 30, 1979, an object of Respondents' picketing of AMPAC has been, and is, to force or require AMPAC to recognize and bargain with Respondents as the collec- tive-bargaining representative of AMPAC's employees in the unit currently represented by the NMU in violation of Section 8(b)(7)(A) of the Act. 'V. TI HI R MI.Y Having found that Respondents have violated Section 8(b)(7)(A) of the Act, I shall recommend that they cease and desist therefrom and take certain affirmative action necessary to effectuate the policies of the Act. CONCLUSIONS Of LAW 1. AMPAC is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Respondents and each of them and the NMU are labor organizations within the meaning of Section 2(5) of the Act. 3. By picketing AMPAC from November 16 to on or about November 30, 1979, in the manner described above, with an object of forcing or requiring AMPAC to recognize or bargain with Respondents as the representa- tive of AMPAC's employees where said employer has lawfully recognized, in accordance with the Act, another labor organization, and a question concerning representa- tion may not appropriately be raised under Section 9 (c) of the Act, Respondents have violated Section 8(b)(7)(A) of the Act. 4. The unfair labor practices found above, occurring in connection with the interstate operations of AMPAC, are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. 30 It is noted that Respondents presented no witness, with knowledge, to testify as to their object in picketing Edward Turner, senior repre- sentative of SIU-AGLIW District, testified that Respondents picketed to protest AMPAC's unfair labor practices. However. Turner had no part in the decision to picket the Company Turner was out of town when the decision was made and was subsequently told of the picketing According to Turner, Paul Dempster, president of SUP, in consultation with Re- spondents' attorneys, made the decision to picket the Company. Demp- ster did not testify and his failure to testify) leads to an inference that his testimony would be unfavorable to Respondents Internarional Union, Untred Automobile. A.4erospace. and 4grircultural Implement orkers of America (U.AW)(Gyrndvne Co. of .4merca) v. NL.R.B., 459 F2d 1329. 1336 (DC. Cr. 1972). Golden State Bottling Company. Inc. d/b/a Ppsi- Cola Bottling Company of Sacramento v. ... R B, 414 U S. 168. 175 (1973} Respondents filed an unfair labor practice charge ith the NI.RB on October 2, 1979. charging AMPAC %sith the initiation (of an il- legal prehiring agreement ith a copy of that ULP Irrespective of the merits of Respondents' charge, it plainl', put AMPAC and the NlRB ion notice of Respondents' clainms Upon the basis of the foregoing findings of fact, con- clusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER3 ' The Respondents, Seafarers International Union of North America, Pacific District, AFL-CIO, Sailors Union of the Pacific, AFL-CIO, Marine Firemen's Oilers, and Watertenders Union, AFL-CIO, Seafarers International Union of North America, ALGIW District, their officers, agents, and representatives, shall: 1. Cease and desist from: (a) Picketing, or causing to be picketed, American Pa- cific Container Lines, Inc. (AMPAC), where an object thereof is forcing or requiring AMPAC to recognize or bargain with Respondents as the representative of its em- ployees where AMPAC has lawfully recognized, in ac- cordance with the Act, National Maritime Union of America, AFL-CIO, and a question concerning repre- sentation may not appropriately be raised under Section 9 (c) of the Act. 2. Take the following affirmative action which is nec- essary to effectuate the policies of the Act: (a) Post in conspicuous places at their business offices and meeting halls copies of the attached notice marked "Appendix. ":'2 Copies of said notice on forms provided by the Regional Director for Region 20, after being duly signed by an official representative of each of Respond- ents, shall be posted by them immediately upon receipt thereof, and be maintained by them for 60 consecutive days thereafter, in conspicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by each Respondent to insure that said notices are not altered, defaced, or cov- ered by any other material. (b) Upon request of said Regional Director, Respond- ents shall supply her with a sufficient number of signed copies of said notice for posting by AMPAC if it desires to do so, at its places of business. (c) Notify the Regional Director for Region 20, in writing, within 20 days from the date of this Order, what steps each Respondent has taken to comply herewith. ": All outstanding motions inconsistent with this recommended Order herebs are denied In the event no exceptions are filed as provided by Sec 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec 102 48 of the Rules and Regulations, be adopted bh the Board and become its findings, conclusions, and Order, and all objections( thereto shall be deemed waived for all purposes. :" In the event that this Order is enforced by a Judgment of a United States Court of Appeals. the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursu- ant to a Judgment of the United States Court of Appeals Enforcing an Order of the Natlonal Labor Relations Board." 743