American President Lines, Ltd.

National Labor Relations Board - Board Decisions

May 4, 1977

229 N.L.R.B. 443 (N.L.R.B. 1977)

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
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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