American President Lines, Ltd.

National Labor Relations Board - Board Decisions

Mar 26, 1964

146 N.L.R.B. 487 (N.L.R.B. 1964)

AMERICAN PRESIDENT LINES, LTD. 487
agreement between the contending labor organizations that electricians
were to operate A-frame winch trucks, the hydra-lift being a substitute
for and very similar to the A-frame winch truck; (b) the practice of
Service, on other jobs to use electricians for operating the hydra-lift;
(c) the equal competency of electricians to operate the equipment; and
(d) the greater efficiency in the utilization of personnel if electricians
rather than engineers operate the hydra-lift.
DETERMINATION OF DISPUTE
Upon the basis of the foregoing findings and the entire record in
the case, the Board makes the following Determination of Dispute
pursuant to Section 10 (k) of the Act :
1. Employees engaged as electricians, currently represented by Local
Union No. 183, International Brotherhood of Electrical Workers,
AFL-CIO, are entitled to operate the Pitman hydra-lift for Service
Electric Company at the East Kentucky Rural Electrical Corporation
project, Burnside, Kentucky.
2. Local Union No. 181, International Union of Operating En-
gineers, AFL-CIO, is not entitled by means proscribed by Section
8(b) (4) (D), to force or require Service Electric Company to assign
the work of operating the Pitman hydra-lift to employees engaged as
operating engineers, who are currently, represented by Local Union
No. 181, International Union of Operating Engineers, AFL-CIO.
3. Within 10 days from the date of this Decision and Determination
of Dispute, Local Union No. 181, International Union of Operating
Engineers, AFL-CIO, shall notify the Regional Director for.the
Ninth Region, in writing, whether or not it will refrain from forcing
or requiring Service Electric Company by means proscribed by Sec-
tion 8(b) (4) (D) to assign the work in dispute to operating engineers
rather than to electricians.
American President Lines, Ltd. and Office and Professional Em-
ployees, Local No . 3, Office Employees International Union,
AFL-CIO and Employee Relations Committee, Party in Inter-
est. Case No. 2O-CA-2638. March 26, 1964
DECISION AND ORDER
On December 3, 1963, Trial Examiner David F. Doyle issued his
Decision in the above-entitled proceeding, finding that Respondent
had engaged in and was engaging in certain unfair labor practices
and recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Decision. Thereafter,
146 NLRB No. 66.
488 DECISION'S OF NATIONAL LABOR RELATIONS BOARD
Respondent filed exceptions to the Decision and a supporting brief,
and the General Counsel filed an answering brief.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three- .
member panel [Chairman McCulloch and Members, Leedom and
Jenkins]. .
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. • The Board has considered the entire
record in this case, including the. Decision, the exceptions, and the
briefs, and hereby adopts the findings and conclusions of the Trial
Examiner.
ORDER '
The Board adopts as its Order' the Recommended Order of the
Trial Examiner with the modifications noted below.'
1 The Recommended Order in the Trial Examiner 's Decision is hereby amended by sub-
stituting for the first paragraph the following paragraph:
Upon the entire record in this case , and pursuant to Section 10(c) of the National
Labor Relations Act, as amended , the National Labor Relations, Board hereby orders
that the Respondent , American President Lines, Ltd ., its officers , agents , successors,
and assigns , shall:
'Further , the Recommended Order in the Trial Examiner's Decision is hereby amended by
-substituting for paragraph 1(b) therein the following paragraph:
Interfering in any like manner with the representation of its employees by or
through any labor organization of their own choosing.
TRIAL, EXAMINER'S DECISION
STATEMENT OF THE CASE
This proceeding, with all parties represented , was heard by Trial Examiner David
F. Doyle in San Francisco , California , on September 4 and 5, 1963 , on complaint
,of the General Counsel and answer of the Respondent . The issue litigated' was
whether the Respondent had violated Section 8 ( a)(1) and (2) of the Act by certain
conduct more fully described hereinafter.'
Upon the entire record , and from my observation of the witnesses , I hereby make
the following: - - -
FINDINGS AND CONCLUSIONS
I. THE BUSINESS OF AMERICAN PRESIDENT LINES, LTD.
The Respondent is a Delaware corporation with its principal office in San Francisco,
'California . It is engaged in transporting passengers and freight on vessels it owns
and operates from ports located in the State of California to ports located in other
States and foreign countries . It annually purchases supplies, equipment,' and mate-
rials, originating from sources outside the State of California , valued in an amount
In this report , American President Lines, Ltd ., is referred to as the Respondent, the
Company, or as APL; Office , and Professional Employees , Local No. 3, Office Employees
International Union , AFL-CIO, as the Union or OEIU; Employee Relations Committee,
as the Committee ; and the American ' President Lines Employees Association , a proposed
association of employees of Respondent , as the Association ; the National , Labor Relations
Board, as the Board : the General Counsel of the Board 'and his representative 'at the
hearing, as the General Counsel ; and the Labor Management , Relations Act, as amended,
as the Act.
The original charge in this-proceeding was filed on March 18,. 1963, and the complaint
herein was issued on June 24, 1963 , by the Acting Regional Director, Twentieth Region.
It should be noted that all dates in this report are in the year'1963 , unless specified
-otherwise.
AMERICAN PRESIDENT LINES, LTD. 489
exceeding $ 1 million . It annually receives an amount in excess of $1 million for
the transportation of cargo from ports located in California to ports in other States
and foreign countries.
By the pleadings the Respondent concedes that it is an employer engaged in opera-
tions ' affecting commerce within the meaning of Section 2(6) and (7) of the Act.
1I. THE LABOR ORGANIZATIONS INVOLVED
It is conceded , and I find, that the Union is, and at all times material has been,
a labor organization within the meaning of Section 2(5) of the Act.
The complaint alleges that the Committee is, and at all times material has been,
a labor organization within the meaning ' of Section 2(5) of the Act. This allega-
tion is denied in Respondent 's answer, and the resolution of this issue is an object
oof this proceeding. -
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The issue '
The complaint in substance alleges: ( 1) On February 4, representatives of the
Company interrogated employees concerning their activities on behalf of the Union;
and (2 ) during February , officers of the Company decided to initiate , form, sponsor,
.and promote the Committee , an alleged labor organization , in order to thwart the
efforts of the Union to organize the office and clerical employees of the Company.
The complaint enumerates specific acts performed by officers of the Company, which
the General Counsel claims, show that the Company assisted, dominated , and con-
tributed to the Committee in violation of Section 8(a)(2) and (1) of the Act
The answer of the Company specifically denies that the Committee is, or has been
at any time material herein , a labor organization within the meaning of the Act. The
averment in the answer on this point is,specific and reads as follows:
On or about, February 25, 1963 , APL established a committee having the gen-
eral purpose of maintaining and improving the morale of the employees of the
Company. The committee , called the Employee Relations Committee reflected
an outgrowth of previous Company committees established for social and recrea-
tional purposes . In addition , it also was and is the intention of APL to use
the committee as a means for improving communications between the Com-
pany's management and its employees . To this end , APL arranged for the or-
ganization and election of the committee , through a temporary committee named
by the Company. The committee has been instructed to make arrangements
for the Company's picnic and other recreational programs of the Company,
and to keep the Company 's management advised of employee ideas, suggestions
and viewpoints . The committee has performed these functions . Representa-
tives of the Company 's management have met with the committee only for
the'purpose of orgariiziiig'the'committee , and advising the committee of the
Company's position with respect to the unfair labor practice charges involved
in this proceeding.
B. Background and, undisputed facts
The evidence in this case is undisputed . Counsel for the parties introduced into
evidence . by agreement a stipulation of fact, 13 legal pages in length , to which
were attached approximately 36 documents as numbered exhibits . 'In addition
to these documents , both the General Counsel and counsel for the Company called
and examined , as a witness, Warren L . Ambrose, personnel manager for the Com-
pany. The testimony of Ambrose was not contradicted by any other witness and
stands unchallenged , except to the extent that the documents in evidence rebut some
of his , testimony . In his . testimony , Ambrose defined the limited function of the
Committee , as he envisioned it, at the time the Committee was created by the Re-
spondent , but as will appear hereinafter , the conduct of the Company and the Com-
mittee went far beyond the limited function ascribed to the Committee by Ambrose
In the evidence several officers and supervisors of the Company are named The
answer of the Company admits that the following named persons were either officers
or supervisors of the Company . These individuals and their official titles are as
follows: Ralph K. Davies, chairman of the-board of directors : George Killion , presi-
dent ; George Wick , corporate secretary and assistant counsel ; Warren L. Ambrose,
personnel manager; Herbert M. Rowland, assistant manager, freight division: L.
William Keehner, assistant manager, San Francisco general department : Gilbert
Nelson , assistant port steward ; port steward section ; T. W. Bradley, general depart-
ment supervisor;
490 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Formation of the Committee; the Conduct of the Committee and
Management
Much of the evidence introduced by the General Counsel relates to the forma-
tion, support, and domination of the Committee by the Respondent. Counsel for
the Respondent, in his brief, states that much of this evidence is beside the point, be-
cause the Respondent has at all times admitted that it organized and sponsored the
Committee. Counsel for the Respondent argues that the only evidence which is
directed to the issue is that which throws light on the question of whether or not the
Committee was or is a labor organization of Respondent's< employees withint they
definition of the Act.
The sequence of events leading up to the formation of the Committee and the
Committee's conduct is fully established by a wealth of documentary evidence. The
following summary will set forth the highlights of this evidence. Reference to at
large number of exhibits and to some testimony, of necessity, must be omitted in
the interests of brevity. However, all of the testimony and every exhibit has been
carefully considered, together with the briefs of counsel, in arriving at the findings,
and conclusions herein expressed.
Personnel Manager Ambrose testified that in 1962 he conducted a series of
approximately 20 meetings of .the office employees. In these meetings, he sought
to explain the advantages and benefits furnished by the Company to its employees.
As a result of these meetings, Ambrose came to the conclusion that the means of
communication between management and its office employees were inadequate.
He considered means of improving the situation but took no action. until'
February 1963.
It was stipulated by counsel that on or about February 4, 1963, Pat Perry, an
organizer of the OEIU, met with Anthony Cogliandro, Robert C. Wharton, and a
Mr. Bishop, all employees of the Company, at the Sheraton-Palace Hotel, San
Francisco, and discussed the prospects of OEIU organizing the office employees of
the Company. After this meeting with Perry, Cogliandro told Wharton that he
felt that management should be advised of the Union's efforts to organize the clerical!
employees. A few hours after the meeting with Perry, Cogliandro went to the-
office of Ralph K. Davies, chairman of the board of the Respondent. He told'
Davies of his meeting with Perry and showed Davies a copy of the contract which'
the Union had with the French Line, covering clerical employees. At this meeting,
Davies asked Cogliandro what it was that the employees felt was wrong. Cogliandro.
replied that some employees had not received raises which they considered due.
Davies explained that the Respondent had experienced one of the worst years in its
history, but Davies explained that he would examine the French Line contract and
would look into the situation with regard to the pay raises. A day or two later,
Cogliandro had a second meeting with T. W. Bradley, general department super-
visor, and related substantially the same information to Bradley?
In his testimony, Ambrose frankly stated that the substance of these conversations
was transmitted to him, and that a few days later, after a conference with other
top officials of the Respondent, he recommended to President George Killion, that
Respondent establish an Employee Relations Committee. Ambrose, with the assist-
ance of other officials, had composed a letter, for the signature of Killion, en-
compassing this idea. This letter, dated February 25 and signed by Killion, was
distributed to all office and clerical employees in San Francisco. This letter states
its subject as "Office Unionization." It relates that employees may have been asked
to enroll in the OEIU or in an "American President Lines Employees Association." 3
According to this letter of Killion, previous committees formed to arrange for
company picnics, golf tournaments, bowling leagues, and other activities, would be-
merged into this Commitee, which would have larger scope and purpose. The letter
states that the Committee would be composed of members from each department
and that .the Committee would elect its own officers, and that "It could be asked to.
consider any problem affecting the morale of the office employees and to present
their collective views to management through the personnel manager." Thereafter,
Ambrose selected various employees, some in each department, to serve as tem-
porary members of the Committee. In the selection he attempted to have a cross.
section of both male-and-female and of--long-se.vice,-aand:short-service,etnrloyees.
2 The General Counsel stated on the record at the hearing that he did not contend that
these conversations were in any way unlawful.
s The reference to American President Lines Employees Association appears to be re-
lated to a letter written by Robert C. Wharton, mentioned previously, which informed
Killion that some of the employees were interested in forming "The American President
Lines Employees Association."
AMERICAN PRESIDENT LINES, LTD. 491
The basis for his choice of these individuals was (1) they had good rapport with the
employees; and (2) they were employees with the Company's interests at heart.
Among those chosen for this first Committee was at least one supervisor, L. William
Keehner.•
Shortly thereafter, the temporary Committee met and began operations. By
March 11, it had progressed far enough to adopt a set of bylaws. It is undisputed
that the Committee held all of its meetings in the Respondent's board of director's
room, on working time, and without loss of pay for the time spent at meetings.
The Committee also made use of the Respondent's office equipment and supplies for
its operations with the full knowledge of Respondent's officials. Thus all memo-
randums or informational letters issued by the Committee were reproduced on the
Respondent's machines and were distributed to all departments by Respondent's
mail boys.
In his testimony, Ambrose stated that the purpose of the Company in instituting
,the Committee was to improve the "channels of communication" between manage-
ment and employees. He disavowed any purpose on the part of the Company to
initiate, promote, or assist a labor organization which would deal with management
on the subjects of wages, hours, and other conditions of employment. However,
when he was asked if he considered that matters regarding wages, grievances, hours,
and working conditions were matters affecting morale, he replied in the affirmative.
He also said the Committee was not to be a mere reporting service; it was to serve
as a "sieve" which would eliminate trivial and insubstantial grievances and report
to him only matters of substance. After management made a decision regarding a
grievance, the Committee was to be informed of the decision.
On March 11, the temporary Employee Relations Committee submitted to all
San Francisco employees a set of proposed bylaws for the Employee Relations
Committee. Among other things, the bylaws stated that the purpose of the Com-
mittee was to effect "a more harmonious relationship between employees and
management." As to scope, the Committee would "consider all matters affecting
company morale whether an individual grievance or change in company policy."
Also .the Committee would assume the responsibility for the organization of activities
committees within the Company. The "mechanics of operation" stated that "in
those grievance matters that cannot be resolved directly between the employee and
his immediate supervisor, the employee will bring his complaint before his com-
mittee representative for, discussion." The committee representative "will then
present the grievance before a quorum of the members of the Employee Relations
Committee, at which time the legitimacy of the complaint will be determined by
a 2/3 vote . . . . If ruled a justified complaint, the Committee will then make a
recommendation to management through the Personnel Manager, who will take
appropriate measures' for correction. At the Committee's discretion, one or more
(maximum of three) committee members will be present when these recommenda-
tions are discussed at management level. In every occasion the Committee Member
who has presented the grievance in the first instance will follow the matter through
to its conclusion." The bylaws also set forth the number and apportionment of
elected representatives, eligibility rules for employees participating in the election,
and named the officers of the Committee as a chairman, cochairman, and secretary.
On March 15, all the "shoreside" office and clerical employees, supervisors, and
management officials of the Respondent participated in the election of the member-
ship of the Committee.
At this point in the sequence of events, on March 18, the OEIU filed the original
charge herein with the Regional Office of the Board. The charge, in brief, alleged
that the Respondent had formed, interfered with, and dominated the Employee
Relations Committee, a labor organization, in violation of Section 8(a)(1) and
(2) of the Act.
On March 20, the Committee notified all San Francisco employees of the results
of the election, naming the committee members. The announcement then stated
that the employees could "now contact the representative in your area or any com-
mittee member regarding your suggestions, ideas, and/or complaints."
In connection with the bylaws, it should be noted that the permanent bylaws of
the Committee were to be subject to the approval of Respondent's president 'and
its legal department.
At the first meeting of the elected Committee, which was held on March 29,
Ambrose, the personnel manager, and William Keehner, the chairman of the
temporary Employee Relations Committee, outlined the general purpose and scope
of the Committee. It 'should be noted that Keehner is a. supervisor. Ambrose
then reported on the "latest efforts of the attempted unionization of office workers
in San Francisco." The Committee agreed that each representative- would handle
492 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
all grievances presented to him or her,. at all levels, whenever possible. It was also
agreed that no names would accompany the grievance or grievances to the Com-
mittee, but would be held in confidence by the representative:
On March 22, an emergency meeting of the Committee was held. Apparently
a day or two before this date, a "task force" started a survey of the employees
working in the secretarial pools. At the emergency meeting, March 22, the work
of this task force was discussed. Apparently some of the employees were dis-
turbed by the prospect of possible changes in . their employment as the result of
the appearance of the task force without prior explanation to the employees in-
volved. Ambrose, the personnel manager, was invited to the meeting, and he
explained that inasmuch as the task force had not completed its survey, no one
could tell what the outcome of its work would be. The Committee discussed this
"breakdown in communications" which had disturbed the employees in the secretarial
pool.
At a meeting on March 28, a general discussion took place regarding the salary
ranges in the clerical group, and the Committee decided that two of their number
would make a salary study and present their ideas and recommendations to the
Committee for discussion. A discussion also took place regarding the reemploy-
ment rights of women whose employment was terminated by pregnancy. One of
the Committee was appointed to investigate that matter.
At a meeting on April 4, one of the members presented a categorized list of
all grievances received by the Committee to that date. These involved the follow-
ing: promotions, cost of living, merit increases, overtime pay, holidays, vacations,
employee grades, coastwise cruises,. Honolulu and Orient cruises, pension and 'in-
surance benefits, profit-sharing, Christmas party, and miscellaneous. It was agreed`
that the case of the downgrading of one employee, without her knowledge, should'
be investigated. It was agreed that a committee should study and draw up memo--
randums to the personnel department regarding overtime pay, promotions (job post-
ing), and suggestion boxes. These subjects were chosen for action since they were-
the subject of the largest number of grievances.
At a meeting on April 10, the Committee had a general discussion regarding three-
letters of recommendation prepared for the signature of the chairman of the Com-
mittee, directed to the personnel manager. The subjects of these memorandums-
were (1) job bidding and promotion recognition, (2) incentive program, and (3)
overtime. These letters were approved for signature without changes by all com-
mittee members. A subcommittee volunteered to study and prepare letters of
recommendation on (1) holidays,' (2) vacations, and (3) parking facilities at pier
50. The chairman of the Committee informed the body that a National Labor
Relations Board representative had talked with Ambrose , personnel manager, and'
would also 'ask several members of the Committee to speak with him, regarding-
the functions of the Employee Relations Committee.
The memorandums, referred to in the meeting of April 10, are significant items
of evidence in this case. Each of the three memorandums is dated April 9, 1963.
Each is addressed to Ambrose as personnel manager . The memorandum relating-
to overtime recommends that the Company overtime pay system be changed in
certain respects . The memorandum in regard to an incentive program recommends-
that an incentive-pay program be instituted. The third memorandum refers to job-
bidding and promotion recognition. It states , "It is the recommendation of the-
employees that a policy be established whereby all employees be notified of jobs-
or job openings within the company in order that any employee may bid for the
position." Each of the memorandums closed with the statement "A sub-committee-
of the Employee Relations Committee will be available to discuss this matter at`
your convenience."
These three particular recommendations of the Committee, according to the testi-
mony of Ambrose, were revised at the request of management . The revised-
memorandums , which were dated April 9, but which were actually signed on April-
23, differed from the originals in only two particulars: (1) The opening sentence
was changed to read, "It is the suggestion of the employees to the Employees Relations
Committee that-[etc.]"; and (2) the revised memorandums omitted the sentence
that "A sub-committee of the Employee Relations Committee would be available
to discuss this matter at your convenience."
The General Counsel claims that this revision of these particular memorandums
was made after David W. Leahy, attorney for the Board investigating the charge,
wrote a letter dated April 19 to the Committee recommending that it disband-
because it was operating as a "labor organization." In -his testimony, Ambrose
said that, upon receiving the three particular memorandums , management felt that
the terminology of the memorandums might be misconstrued, so Ambrose returned'
AMERICAN PRESIDENT LINES, LTD. , 493
the memorandums to, the Committee and asked that the revisions be made. He
further explained that he wanted -it, to-be clear that the Committee was reporting
suggestions of employees and not making recommendations of its own. The omis-
sion of the closing sentence was asked to make it clear that there was no intention
to have "discussions" between management and the Committee on these subjects.
At a meeting of the Committee on•May 3, Ambrose informed the Committee
that the Company had decided to request that the Board hold an election in the
unit of employees as soon as possible . The Company 's decision was made after
considering the, factors of the OEIU's efforts to organize -the employees and the
recommendation that the Committee disband, made by Mr. Leahy of the Board.
A general discussion then took place regarding the situation. Ambrose reported
that Killion had given assurance, that the Employee Relations Committee would
definitely continue to function,'if the Union did not gain a majority vote in the
election.
• At a meeting held on May -8, the chairman informed the Committee that the
Company was making every effort to bring about an election in the unit since the
Company wanted to end the attendant disruption of the Company's employee
relations program. A general discussion then took place regarding letters of sug-
gestions to the personnel manager prepared by the subcommittee on the subjects
of (1) vacations, (2) 4-day weekend, and (3) medical program. Revisions of
these memorandums were made and they were approved for signature.
At a meeting of the Committee on May 24, the question of the Committee's
future again came to the fore. A general discussion occurred as to what effect the
litigation of the OEIU's charge filed with the Board would have on the Committee's
effectiveness . The chairman raised several questions during this discussion. They
were:
(a) Should the committee disestablish itself temporarily during the NLRB
hearings'?
(b) Should the committee disestablish itself permanently?
(c) Should the committee handle only such projects as the OEIU could not
possibly object to?
(d) Should the committee continue to function as at present?
(e) Should a vote be taken among all San Francisco employees to decide the
future of the committee?
After discussion, it was agreed that a decision involving the above questions should
be determined by the opinion of the Respondent's legal department and by the wishes
of management. Thereupon Killion, Ambrose, and Wick were invited to join the
meeting. The chairman reviewed the situation for them. Wick, assistant counsel
of the Respondent, then pointed out that all hands would be somewhat tied during
the organizational campaign of the OEIU, and it was probable that any employee
benefit granted by management would be contested by the OEIU. Killion stated
that the salary review committee was in operation and that the employees' request
concerning high cost of living and overtime pay could be discussed'by this group
and action could be recommended. The group then discussed the fact that manage-'
ment had agreed to a 4-day weekend on a staggered basis on Memorial Day and
Thanksgiving Day. Action was taken to inform all employees of this decision. The
company officials then informed the Committee that they were anxious to have the
Committee continue to function as a channel of communication between the em-
ployees and management , and that the Company would continue to support the
Committee. Wick and Berryman, assistant to the president, emphasized that the
Company was resisting the OEIU complaint against the Committee before the Na-
tional Labor Relations Board , and that management desired that the Committee con-
tinue to function.
On June 4, Wick, assistant counsel of the Company , sent a memorandum to the
Committee on the subject of "Employee Benefit Programs-Limitations During Office
Employees International Organizational Campaign." This memorandum correctly
pointed out that the-grant of benefits to employees by an employer, at a time when
a representation petition was pending or a union 's organizational campaign was in
progress, was frequently the basis for a claim by a labor organization that the•e*r-
ployer had interfered with, restrained. or coerced employees in the exercise of their
rights under Section 7 of the Act. Wick's analysis, which I deem quite correct,
closed with the remark that "each particular benefit should be judged on the-basis
of circumstances prevailing-at the time of the granting of the benefit."
On June 6, Ambrose, of the personnel department, sent a memorandum to the
Employee Relations Committee on the subject of the Committee's "recommenda-
tions." It itemized the Committee's recommendations which were enumerated as
494 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
follows: cost of living; a personal complaint re downgrading of one employee; incen-
tive program; job bidding and promotions; overtime payment; company softball
league; vacations; 4-day weekend; and medical program.
In the course of his testimony, Ambrose said that his memorandum. of June 6
was considered too long and not clear by the Committee. The Committee asked
him to revise the memorandum and send it directly to all employees. On June 14,
Ambrose directed an interoffice memorandum to all San Francisco employees on the
subject of "Employee Relations Committee Report." The memorandum then re-
viewed the various items reported by "your committee" as subjects of employee in-
terest. This memorandum then related that the 4-day weekend had been granted;
that an incentive program was being studied; that overtime computations were be-
ing corrected; that a formal job-bidding program would not be adopted; that em-
ployees would be polled regarding medical payments; and that the OEIU campaign
precluded consideration of cost-of-living raises and vacation changes. The mem-
orandum concluded by saying that the Committee "responded well to the problems
at hand and has ably communicated the employees' views on various items affecting
morale."
Apparently, the Committee decided that it could not act effectively during the
OEIU organizational campaign, for on June 13 the Committee notified all San
Francisco employees of the Respondent that it had "decided to suspend operations
temporarily until a decision has been rendered by the NLRB regarding the com-
plaint alleged by the OEIU."
By another memorandum dated June 28, addressed to Killion, president of the
Respondent, the Committee explicated its reasons for its suspension of operations.
This memorandum stated that, "The position of the Employee Relations Committee
as a functioning body had deteriorated to the point where its every action was being
viewed in the light of the legal ramifications involved. We were acutely conscious
of the fact that any communications from the Committee, even the minutes of our
meetings, could be detrimental to management's position, if used as evidence in
litigation pending before the NLRB. Some of the committee members have been
called before NLRB representatives and interrogated regarding the functions of the
committee." The memorandum continues, ". . . under these adverse conditions, the
committee found itself charged with a keen sense of responsibility to both the em-
ployees and management, and yet in the untenable position of being unable to
conscientiously serve either." The memorandum concludes with the statement that
it was "The consensus of the committee members that we had reached a stage of
ineffectiveness, except to the extent that we sustained a legal principle and that we
were lending ourselves to a circumstance far short of the ideal to which we were
elected initially. Under the circumstances we-feel that our action in suspending op-
erations is in the best and equal interest of both American President Lines Em-
ployees and Management."
Motion for Reply Briefs
At the hearing counsel for the Company moved that after briefs were submitted
by counsel, that the parties be allowed to file reply briefs. The Trial Examiner denied
the motion on the ground that the Rules and Regulations of the Board made no pro-
vision for reply briefs. After briefs were submitted, counsel for the Company by
letter dated October 14, 1963, addressed to the Trial Examiner, stated that he was
"compelled to record in general form our objection to certain ungracious and im-
proper statements in the General Counsel's brief." The letter then detailed four
alleged improprieties in procedure by the General Counsel and some 10,"false implica-
tions" drawn from various documents in evidence or other evidence.
The General Counsel, by letter dated October 1.6, 1963, documented by record
reference one of the alleged false implications and treated the others gas frivolous.
Having received both letters, and read their contents, despite my prior rulings, I
decided to retain them and have considered them in the preparation of this decision.
For the record I will state that the procedure of investigation and the issuance
of subpenas to witnesses on behalf of any party before trial, and other such matters,
are peculiarly pretrail functions within the province of counsel. Unless improprieties
in pretrial procedure imperil the fairness of the hearing, those matters remain in the
province of counsel, controlled only by the discretion and judgment of counsel within
the accepted Canons of Ethics of the American and State Bar Associations. As to
the alleged "false implications" in the General Counsel's brief, these appear to me to
be covered by the right of counsel to make fair comment on the evidence. In the
interest of a fair and complete hearing, these documents are designated reply briefs
and made a part of the formal file herein.
AMERICAN PRESIDENT LINES, LTD. 495
Concluding Findings
In this proceeding, the Respondent has accepted the responsibility for initiating,
forming, supporting, and dominating the Committee. Hence there is only one
issue-is the Committee a labor organization within the meaning of the Act?
Section 2(5) of the Act defines a labor organization in the following terms:
The term "labor organization" means any organization of any kind, or any
agency or employee representation committee or plan, in which employees
participate and which exists for the purpose, in whole or in part, of dealing with
employers concerning grievances, labor disputes, wages, rates of pay, hours of
employment, or conditions of work. [Emphasis supplied.]
The Respondent argues that the Committee is not a labor organization because:
(1) It was intended by the Respondent to be a mere "channel of communication"
between employer and employees, and (2) no meetings of the Committee and
management actually occurred at which wages, grievances, or conditions of employ-
ment were "discussed" or "negotiated." I find these contentions unpersuasive,
when they are considered in the light of all the documentary evidence which clearly
portrays the conduct of both the Committee and management in considerable detail.
The Respondent admits that it established the Committee, "to consider any prob-
lem affecting the morale of the office employees and to present their collective views
to management through the personnel manager." In his testimony, Personnel
Manager Ambrose included under those items affecting "morale," wages, hours,
grievances, sick leave, and overtime-all terms and conditions of employment. The
bylaws drafted by the temporary committee, of which the chairman was a supervisor,
were distributed to all employees, supervisors, officers, and directors of the Company
to inform them of the functions of the Committee. The bylaws provided that the
Committee was to serve the employees as "their representative for the purpose of
effecting a more harmonious relationship between employees and management."
The scope of the Committee was to be very broad; it was to consider all matters
affecting morale-individual grievances or even "a suggestion for a change in Com-
pany policy." If a proposed grievance was deemed a justified complaint, the Com-
mittee would "then make a recommendation to management through the personnel
manager, who will take appropriate measures for correction. At the Committee's
discretion, one or more Committee members will be present when these recommenda-
tions are discussed at management level. On every occasion, the Committee mem-
ber who has presented a grievance will follow the matter through to its conclusion."
Counsel for the Company argues that these bylaws became effective only when
they were approved by: (1) the president of the Company, (2) the Company's legal
counsel, and (3) when they were finally adopted by the permanent Employee Rela-
tions Committee. This limitation appears to be contrary to the proven fact. The
fact of the matter, which I deem controlling, is that these bylaws were distributed to
the employees of the San Francisco office and to management to prescribe the
method of operation of the Committee, and to all appearances they became effective
immediately, for both the Committee and the Company proceeded to conduct their
relationship toward each other in accordance with these bylaws.
Pursuant to its stated purpose , the Committee invited employees to give their sug-
gestions, ideas, and/or complaints to the members of the Committee for presentation
to the personnel manager. Thereafter, in the course of approximately nine meetings,
the Committee discussed such items as salary ranges; presentation of grievances re-
garding reemployment rights of women whose employment had been terminated by
pregnancy; cost-of-living allowance; promotions; merit increases; overtime pay;
holidays; vacations; employee grades; cruises; pension and insurance benefits; profit-
sharing; incentive programs; the mechanics of presenting grievances; parking facili-
ties ; 4-day weekends ; and medical program . While it is true that the Committee
did not discuss each and every one of the topics above with representatives of
management , it is clear that management knew of these discussions through the
presence of two supervisors on the Committee and the receipt of minutes of the
committee meetings by Respondent 's personnel manager.
The Committee corresponded with the Respondent on one matter, the 4-day week-
end, and management agreed to the Committee's proposal in that regard. Thereafter
the employees received a 4-day weekend. The Committee submitted recom-
mendations to management and received varying answers on such subjects as over-
time, incentive programs , job bidding and promotions, vacations , medical program,
and maternity leave of absence. These are all matters which are usually the subject
of collective bargaining under the term "wages, hours and working conditions."
744-670-65-vol. 146--33
496 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I deem it of no significance that these changes in working conditions were proposed
in written memorandums , and accepted in whole or part or denied , in writing, in
place of the usual verbal discussion across the bargaining table. Such a variation
of the conventional procedure is of no legal consequence because, in fact, the
parties were "dealing" with each other on subjects of collective bargaining; the
Committee had accepted and processed grievances of the employees , and from the
collected complaints or grievances had made many proposals for changes in work-
ing conditions to the Company . The Company in turn, had accepted one proposal,
the long weekend , and put it into effect ; it had acquiesced in the overtime proposal
and was making "corrections"; other proposals had been rejected and others retained
for further study. That certainly is "dealing " on the subject of collective bargaining.
In this proceeding the Company continues to deny that it "dealt" with the Com-
mittee on the subject of conditions of work. But, the Committee 's conduct illus-
trates that it was keenly aware of its function to deal with the Company . When the
Committee learned that during the OEIU organizational campaign it could obtain
no benefits for the employees without additional legal entanglements , and that the
minutes of the Committee 's meetings , and the meetings , themselves , were possible
sources of evidence against the Company in this proceeding , the Committee quickly
appreciated that its continued operation was an empty gesture . As the Committee's
final memorandum stated, "The consensus of the Committee members (was) that
we had reached a stage of ineffectiveness . and that we were lending ourselves
to a circumstance far short of the ideal to which we were elected initially." There-
fore, the Committee suspended its operations.
As I review the conduct of this Committee as disclosed in the record , it seems
clear that the Committee undertook its duty to represent employees seriously, and
performed that duty capably and conscientiously , but when it learned that it could
not lawfully perform the functions and duties of a labor organization , it suspended
its operations . The Committee realized that if it could not deal with the Company
on "grievances , labor disputes , wages, rates of pay, hours of employment , or working
conditions," it had no real reason for existence and could perform no meaningful
service for the employees.
Section 7 gives to employees the right to form, join, or assist labor organizations
of their own choosing , and Section 8(a)(2) specifically forbids an employer to
dominate or interfere with the formation or administration of a labor organization
of his employees . Here, the documentary evidence establishes overwhelmingly that
the Respondent formed , assisted, and dominated the Employee Relations Com-
mittee, and that the Committee "dealt" with the Respondent on the subjects of
grievances , wages, rates of pay, hours of employment , and conditions of work.
Therefore , upon all the evidence I find that the Respondent has violated Section
8(a)(2) and ( 1) of theAct4
There being no evidence of interrogation of employees by Respondent 's officials
or supervisors , paragraph VI of the complaint is hereby dismissed.
V. THE REMEDY
Having found that Respondent has assisted , supported, and dominated the Em-
ployee Relations Committee named in the complaint , it is recommended that Re-
spondent cease and desist from such conduct and as a corollary to the finding of
domination that it withdraw recognition from and completely disestablish the
Employee Relations Committee as the representative of any of its employees for the
purpose of dealing with the Respondent concerning grievances, labor disputes, wages,
rates of pay, hours of employment , or conditions of work; and that Respondent
refrain from recognizing the Employee Relations Committee or any successor thereto
for any of the purposes defined in Section 2(5) of the Act. This will not prevent
the employees , after the unfair labor practices have been remedied and the condi-
tions for a free choice established , from adopting representation from their own
ranks or any other kind of representation , if such is a genuine ' desire, unfettered by
the Respondent 's domination , interference, assistance , or support .5
4 N L R B. v. Cabot Carbon Company and Cabot Shops, Inc., 300 U S 203; N L R B. v.
Thompson Ramo Wooldridge , Inc., 305 F. 2d 807 (C.A . 7) ; N.L.R B. v. Buitoni Foods
Corporation , 298 F 2d '169 ( C A 3) ; Cless B Davis d/b/a Queen City Transports, etc.,
141 NLRB 964 ; The Chardon Telephone Company, 139 NLRB 529; Prince Macaroni
Manufacturing Co., 138 NLRB 979.
6 Ben Corson Manufacturing Co , et al ', 112 NLRB 323 , 346; Cabot Carbon Company
and Cabot Shops , Inc, 117 NLRB 1633.
AMERICAN PRESIDENT LINES, LTD. 497
All findings of interference, restraint, and coercion, herein, are based entirely
upon and derived from the conduct of Respondent in dominating and interfering
with the administration of the Employee Relations Committee and in contributing
financial and other assistance and support to it. Except for the unlawful conduct
flowing from Respondent's relations to said Employee Relations Committee, a
preponderance of the evidence and the record as a whole do not in my opinion
support a finding that Respondent has engaged in any other unfair labor practices.
Nor am I persuaded from the record in this case that any danger presently exists
that the Respondent may in the future engage in other unfair labor practices
proscribed by the Act, which are not directly related in kind to the unfair labor
practices herein found to have been committed. Under the circumstances, I shall
not recommend the issuance of the usual broad cease-and-desist order customarily
issued where the future commission or continuation of such other unfair labor
practices are reasonably apprehended. I shall, however, recommend that Respond-
ent cease and desist from engaging in any like or related conduct by otherwise
interfering with the representation of its employees by or through a labor organiza-
tion of their own choosing.
Upon the basis of the -above findings of fact, and the entire record in the case,
I make the following:
CONCLUSIONS OF LAW '
1. American President Lines, Ltd., herein called the Company or the Respondent,
is,an employer engaged in commerce within the meaning of Section 2(6) and (7)
of the Act.
2. Office and Professional Employees, Local No. 3, Office Employees Interna-
tional Union, AFL-CIO, and Employee Relations Committee are labor organizations
within the meaning of Section 2(5) of the Act.
3. By interfering with and contributing unlawful aid, assistance, and support to,
and by dominating, the Employee Relations Committee, the Respondent has violated
Section 8(a)(2) of the Act, and thereby interfered with the exercise of the rights
guaranteed to its employees by Section 7 of the Act, thereby violating Section 8
(a) (1) of the Act.
4. The unfair labor practices enumerated above are unfair labor practices affect-
ing commerce within the meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact, conclusions of law, and the
entire record in the case, it is recommended that the Respondent, American Presi-
dent Lines , Ltd., its officers , agents, succesors , and assigns , shall:
1. Cease and desist from:
(a) Assisting , dominating , contributing financial or other support to , or inter-
fering with the administration of, the Employee Relations Committee named as
an interested party herein , or any other labor organization.
(b) Otherwise interfering with the representation of their employees by or
through any labor organization of their own choosing.
(c) Recognizing the Employee Relations Committee, or any successor thereto,
as the representative of any of its employees for the purpose of dealing with Re-
spondent concerning grievances, labor disputes, wages, rates of pay, hours of em-
ployment, or conditions of work.
2. Take the following affirmative action designed to effectuate the policies of the
Act:
(a) Withdraw and withhold all recognition from, and completely disestablish,
the Employee Relations Committee, named as an interested party herein, or any
successors thereto, as the representative of any of its employees for the purpose
of dealing with Respondent concerning grievances , labor disputes, wages, rates of
pay, hours of employment, or conditions of work.
(b) Post at all of its offices in the San Francisco Bay area, copies of the attached
notice marked "Appendix." 6 Copies of said notice, to be furnished by the Regional
Director for the Twentieth Region, shall, after being duly signed by its authorized
"In the event that this Recommended Order be adopted by the Board, the words "A
Decision and Order" shall be substituted for the words "The Recommended Order of a
Trial Examiner" in the notice. In the further event that the Board's Order be enforced
by a decree of a United States Court of Appeals, the words "A Decree of the United States
Court of Appeals, Enforcing an Order" shall be substituted for the words "A Decision
and Order."
498 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
representative , be posted by the Respondent immediately upon receipt thereof, and
be maintained by it for a period of 60 consecutive days thereafter , in conspicuous
places, including all places where notices to employees are customarily posted.
Reasonable measures shall be taken by the Respondent to insure that such notices
are not altered , defaced , or covered by any other material.
(c) Notify the Regional Director for the Twentieth Region , in writing , within
20 days of the date of receipt of this Trial Examiner 's Decision, what steps the
Respondent has taken to comply herewith.?
It is further recommended that unless the Respondent shall within 20 days from
the date of receipt of this Trial Examiner 's Decision notify said Regional Director,
in writing, that it will comply with the foregoing Recommended Order , the National
Labor Relations Board issue an order requiring the Respondent to take the action
aforesaid.
7In the event that this Recommended Order be adopted by the Board , this provision
shall be modified to read: "Notify the said Regional Director , in writing , within 10 days
from the date of this Order , what steps have been taken in compliance."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board , and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended , we hereby notify our employees that:
WE WILL NOT assist, dominate, contribute financial or other support to, or
interfere with the administration of the Employee Relations Committee or any
other labor organization of our employees.
WE WILL NOT in any like manner interfere with the representation of our
employees by or through any labor organization of their choosing.
WE HEREBY disestablish the Employee Relations Committee as the representa-
tive of any of our employees for the purpose of dealing with us concerning
grievances , labor disputes , wages, rates of pay, hours of employment , or condi-
tions of work , and we will not recognize it or any successor thereto for any
of the foregoing purposes.
AMERICAN PRESIDENT LINES, LTD.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office, 830
Market Street , San Francisco , California, Telephone No. Yukon 6-3500, Extension
3191, if they have any question concerning this notice or compliance with its
provisions.
Local 612, International Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America [Deaton Truck Line,
Inc.] and M. L. Taliaferro . Case No. 10-CB-1391. March 26,
1964
DECISION AND ORDER
On January 9, 1964, Trial Examiner A. Bruce Hunt issued his De-
cision in the above-entitled proceeding, finding that the Respondent
had engaged in and was engaging in certain unfair labor practices
and recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Decision. Thereafter,
the Charging Party filed exceptions, with a supporting brief, prin-
146 NLRB No. 63.