Columbia Marine Service, Inc.

National Labor Relations Board - Board Decisions

Jun 16, 1971

191 N.L.R.B. 197 (N.L.R.B. 1971)

COLUMBIA MARINE SERVICE, INC. 197
Columbia Marine Service, Inc. and Inland Boatmen's TRIAL EXAMINER'S DECISION
Union of the Seafarers ' International Union of
North America , AFL-CIO, Atlantic , Gulf, Lakes
and Inland Waters District and International Union
of District 50, Allied and Technical Workers of the
United States and Canada, and its Local Union
14262 , Party to the Contract . Case 9-CA-5825
June 16, 1971
DECISION AND ORDER
By CHAIRMAN MILLER AND MEMBERS JENKINS
AND KENNEDY
On February 26, 1971, Trial Examiner Henry L.
Jalette issued his Decision in the above-entitled pro-
ceeding, finding that Respondent had engaged in and
was engaging in certain unfair labor practices alleged in
the complaint and recommending that it cease and de-
sist therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision. There-
after, Respondent filed exceptions to the Trial Ex-
aminer's Decision and a supporting brief; the General
Counsel filed an answering brief.
Pursuant to the provisions of section 3(b) of the Na-
tional Labor Relations Act, as amended, the National
Labor Relations Board has delegated its powers in con-
nection with this case to a three-member panel.
The Board has reviewed the rulings of the Trial Ex-
aminer made at the hearing and finds that no prejudi-
cial error was committed. The rulings are hereby
affirmed. The Board has considered the Trial Ex-
aminer's Decision, the exceptions, the briefs, and the
entire record in the case, and hereby adopts the
findings,' conclusions, and recommendations of the
Trail Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended, the National Labor Relations
Board adopts as its Order the recommended Order of
the Trial Examiner, and hereby orders that Respond-
ent, Columbia Marine Service, Inc., Paducah, Ken-
tucky, its officers, agents, successors, and assigns, shall
take the action set forth in the Trial Examiner's recom-
mended Order.
The Trial Examiner in the third paragraph of section III, B, of his
Decision inadvertently referred to the Cmcinnati, Ohio, District 50 local
with whom Respondent has a collective-bargaining agreement as "Local
14262." The record reveals, and we find, that that local is Local 14263, and
the Trial Examiner's Decision is hereby corrected to reflect this finding.
191 NLRB No. 20
STATEMENT OF THE CASE
HENRY L. JALETTE, Trial Examiner: This case involves
allegations that the Respondent, Columbia Marine Service
Inc., violated Section 8(a)(1) and (5) of the Act by refusing
to recognize the Charging Party, Inland Boatmen's Union of
the Seafarers' International Union of North America, AFL-
CIO, Atlantic, Gulf, Lakes and Inland Waters District (here-
inafter referred to as SIU) and Section 8(a)(2) of the Act by
recognizing Local Union 14262, International Union of Dis-
trict 50, Allied and Technical Workers of the United States
and Canada (hereinafter referred to as District 50, Local
14262). The underlying issue in the case is whether or not
Respondent is a successor to an employer named Paducah
Midstream Service, Inc. (hereinafter referred to as Mid-
stream) and, as such, required to recognize and bargain with
SIU which had been certified as the representative of the
employees of Midstream. The complaint was issued on Octo-
ber 12, 1970, and was based on a charge filed on September
3, 1970.' The case was tried on January 5, 1971, in Paducah,
Kentucky.
Upon the entire record,' including my observation of the
witnesses, and after due consideration of the brief filed by
General Counsel, I make the following:'
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Columbia Marine Service, Inc., is an Ohio corporation
engaged in the harbor towing and contract towing business
on the Ohio River from locations in Cincinnati, Ohio, and
Paducah, Kentucky. During the 12-month period proceeding
issuance of the complaint, a representative period, Respond-
ent performed services valued in excess of $500,000, incldu-
ing services in interstate commerce valued in excess of $50,-
000 for customers from outside the State of Ohio. Respondent
admits, and I find, that it is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
Inland Boatmen's Union of the Seafarers' International
Union of North America, AFL-CIO, Atlantic, Gulf, Lakes
and Inland Waters District, and International Union of Dis-
trict 50, Allied and Technical Workers of the United States
and Cnaada, and its Local Union 14262, and each of them,
are, and at all times material herein have been, labor organi-
zations within the meaning 'of Section 2(5) of the Act.
Unless otherwise indicated, all dates appearing hereinafter refer to
1971
The record consists not only of testimony given in the hearing before
me on January 5, as well as exhibits received into evidence at such hearing,
but also of the record made in Civil Number 2127 in the United States
District Court, Western District of Kentucky, at Paducah in which case a
hearing was held on January 4, 1971, on the petition of the Regional Direc-
tor for Region 9, acting for and on behalf of the Board, for an injunction
against Respondent herein pursuant to provisions of Sec 10(j) of the Act.
The parties stipulated in the hearing before me for the receipt of the record
in such 10(j) proceeding.
Respondent's motion to dismiss made at the close of trial, on which I
reserved ruling, is denied on the basis of the findings and conclusions herein.
198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE UNFAIR LABOR PRACTICES
A. The Facts
Prior to August 13, Midstream was engaged in operations
on the Ohio River consisting of providing to its customers
midstream refueling services , harbor service, and a small
amount of above-water barge repair. Midstream had four
barges, and a lease with the city of Paducah, Kentucky, for
certain dock privileges on the river.
On June 15, as a result of a petition filed by District 50 in
Case 9-RC-8480, an election was held in the following unit
of Midstream's employees:
All employees of the Employer operating in its Padu-
cah, Kentucky operations on the Ohio River, and its
tributaries, on its boats and docks, but excluding office
clerical employees, pilots, dispatchers and all other
supervisors as defined in the Act.
In this election, SIU appeared on the ballot as an Inter-
venor.' Of 14 eligible voters, 13 voted for SIU and 1 voted
against representation by any of the participating labor orga-
nizations . On June 19, SIU was certified as the, representative
of Midstream's employees in the above-described unit.
On August 12, Midstream assigned to Respondent its lease
with the city of Paducah of certain property owned by the city
of Paducah bordering on the banks of the river. The purpose
of the lease was to permit the lessee to tie and secure barges
and other river vessels for the purpose of storage or repair and
loading and unloading.
On August 13, Midstream sold to Respondent the follow-
ing assets:
Towboat "Billy D."
Towboat "Beryl."
Towboat "Ponchatula."
Towboat "Paducah Fueler."
"Ellen" hull---One crane, barge, and
crane.
"Sally Ann" hull; One flat.
Welding barge and welding equipment.
Office quarter boats and equipment,
consisting of radio equipment,
metal lathe and drill press, and
office furniture and machines.
Chevrolet 1965 pick-up truck.
Assignment of lease between
Parties of the First Part and
City of Paducah.
Assignment of lease to V. A. Duke,
dated 9/6/60.
" Also appearing on the ballot as an Intervenor was Laborers ' Interna-
tional Union of North America, Local Union 1214, AFL-CIO
On August 17, Respondent began operations at the facili-
ties previously occupied by Midstream. On that day, Mid-
stream had terminated the 10 employees still in its employ
advising them of the sale to Respondent. The employees had
been requested to stay to talk to Respondent's representative
and they met at the premises with Respondent's president,
William Kinzeler. He explained to them that Respondent had
purchased the assets of Midstream , that Respondent needed
operators, and he offered them, employment. On August ^ 1;`
prior to its purchase of the assets described above, Respond-
ent had entered into a contract with District 50, Local 14262,
in a unit of all operators , deckhands, mechanics, and tanker-
men employed by Respondent in its operations on the Ohio
River, and its tributaries, including employees employed on
its docks and river towboats, and in this meeting with Mid-
stream's former employees, Kinzeler told them that if they
were interested in employment they should speak to a repre-
sentative of District 50 who was present at the meeting and
who would tell them the terms of the contract between Dis-
trict 50, Local 14262, and Respondent.
The employees accepted the offer of employment.' It also
appears that the offer was made to Midstream 's supervisors,
because Kinzeler admitted Respondent hired Midstream's
supervisors. Exactly how many Respondent hired is not clear,
but it did include Curtis Krouse, welding foreman and How-
ard Christian, a dispatcher. There is no evidence as to who
is the manager of the Paducah operation.
Although Respondent's operations at Paducah were not
delineated with any degree of specificity, it is clear that Re-
spondent is performing at Paducah the same services for-
merly performed by Midstream and that these services are
being performed for Midstream's former customers.
On August 7, Respondent had received a telegram from
SIU in which SIU indicated it had heard Respondent was
purchasing Midstream and advising Respondent of SIU's cer-
tification as representative of Midstream's employees. SIU
requested a meeting . On the same day, Respondent replied
that it was not purchasing "Paducah Midstream Service, Inc.
or any of its affiliated companies."
On August 17, SIU sent another telegram to Respondent
stating it had been advised Respondent had purchased Mid-
stream , that SIU was the certified bargaining representative
and demanding bargaining. A reply within 24 hours was
requested. Respondent never replied, but it stipulated at the
trial that it denied the demand.
Respondent knew of SIU's certification before it purchased
Midstream's assets.
B. Analysis and Conclusions
It appears to me that little or no discussion is required to
demonstrate that Respondent is a successor to Midstream
and therefore that it was required to honor the certification
of SIU and to recognize it as the exclusive representative of
its employees at Paducah. In order to establish successorship
all that need appear-is that the employing industry has re-
mained essentially the same despite the change of ownership.
The William J. Burns International Detective Agency, 182
NLRB No. 30. Such is clearly the case here. Thus, Respond-
ent occupies the same premises previously occupied by Mid-
stream , employs Midstream 's former employees and super-
visors, uses the same equipment, and provides the same
services for Midstream's former customers that Midstream
had offered. The only change that has occurred has been the
s In addition, shortly after August 17, Respondent employed five former
employees of Midstream who had recently been laid off by Midstream.
COLUMBIA MARINE SERVICE, INC. 199
change in ownership . Accordingly, I find that Respondent is
a successor to Midstream and that it was bound to honor the
certification of SIU as the representative of its employees. By
refusing to recognize SIU and rejecting its demand for bar-
gaining, Respondent violated Section 8(a)(5) and (1) of the
Act.
Respondent appears to defend its refusal to recognize and
bargain with SIU on the proposition that it did not purchase
Midstream , but only some of its assets, and that Midstream
is still in existence with the possibility of resuming operations
in competition with Respondent. A finding of successorship
does not depend on a finding that the purchaser purchased a
company or on a finding that the seller went out of business.
(It is clear here that Midstream has gone out of business. It
has no employees and no equipment with which to do busi-
ness. Midstream 's president testified Midstream had no plans
to continue in operation .) As the Board stated in Mainte-
nance, Incorporated, 148 NLRB 1299, "The duty of an em-
ployer who has taken over an `employing industry' to honor
the employees ' choice of a bargaining agent is not one that
derives from a private contract , nor is it one that necessarily
turns upon the acquisition of assets or assumption of other
obligations usually incident to a sale, lease , or other arrange-
ment between employers . It is a public obligation arising by
operation of the Act. The critical question is not whether
Respondent succeeded to White Castle's corporate identity or
physical assets, but whether Respondent continued essen-
tially the same operation , with substantially the same em-
ployee unit whose duly certified bargaining representative
was entitled to statutory recognition at the time Respondent
took over." As I noted above, this test has been met here.
An additional defense to the allegations of the complaint,
and this includes the 8 (a)(2) allegation, appears to be that
Respondent was obligated to recognize District 50 by reason
of its contract with District 50, Local 14262, in Cincinnati,
Ohio. I find no merit to this defense. Respondent's contract
in Cincinnati contained no provision for the coverage of em-
ployees of newly acquired facilities, and Respondent has not
purported to extend the provisions of that contract to the
Paducah employees . Rather , it negotiated a separate agree-
ment with less advantageous provisions that those contained
in its contract with the Cincinnati local. Apart from these
considerations , it is clear that the Paducah operations consti-
tute a separate appropriate unit from Respondent 's opera-
tions at Cincinnati. It appears these operations are under
separate supervision , and there is no evidence of an inter-
change of employees. Moreover, it is noted that Paducah is
326 miles distant from Cincinnati.6 Accordingly, there is no
basis for a finding that the Paducah operations constituted an
accretion to the Cincinnati operations. Dura Corporation, 153
NLRB 592;' International Paper Company, 171 NLRB No.
89. Since it is undisputed that District 50, Local 14262, did
not represent a majority of Respondent's employees at Padu-
cah when Respondent recognized District 50, Local 14262,
and entered into a contract with it , Respondent violated Sec-
tion 8(a)(2) and (1) of the Act by according such recognition
to District 50, Local 14262, and by entering into a collective-
bargaining agreement with it.
IV. THE EFFECT OF THE UNFAIR LABOR
PRACTICES UPON COMMERCE
The activities of Respondent set forth in section III, above,
occurring in connection with Respondent 's operations de-
scribed in section I , above, have a close , intimate, and sub-
6 Standard Highway Mileage Guide, Rand McNally & Company.
stantial relationship to trade, traffic , and commerce among
the several States and tend to lead to labor disputes burdening
and obstructing commerce and the free flow of commerce.
V THE REMEDY
Having found that Respondent engaged in certain unfair
labor practices in violation of Section 8(a)(1), (2 ), and (5) of
the Act, I shall recommend that it cease and desist therefrom
and take certain affirmative action designed to effectuate the
policies of the Act.
I shall recommend that Respondent be ordered to with-
draw and withhold recognition from District 50, Local
14262, as the representative of any of Respondent's em-
ployees at Paducah, Kentucky, for the purpose of dealing
with said labor organization concerning grievances , wages,
hours of work, or other terms and conditions of employment,
until after Respondent has complied with the provisions of
this recommended Order requiring it to bargain with Inland
Boatmen's Union of the Seafarers ' International Union of
North America, AFL-CIO, Atlantic, Gulf, Lakes and Inland
Waters District, and unless and until said District 50, Local
14262, has been certified as such representative by the Board.
I shall further recommend that Respondent cease and desist
from giving effect to the contract entered into with District
50, Local 14262; provided, however, that nothing in my
recommended Order shall be construed to require Respond-
ent to vary or abandon any wage, hour, seniority, or other
substantive feature of the relationship between it and its em-
ployees which may have been established pursuant to the
aforesaid contract, or to prejudice the assertion by its em-
ployees of any rights they may have thereunder.
Having found that SIU is the certified bargaining repre-
sentative of Respondent 's 'employees in an appropriate unit,
and that it requested recognition and bargaining which Re-
spondent unlawfully refused, I shall recommend that Re-
spondent bargain upon request with the SIU and, if any
understanding is reached, embody such understanding in a
signed agreement.
CONCLUSIONS OF LAW
1. Columbia Marine Service, Inc.,,is an employer engaged
in commerce within the meaning of Section 2(6) and (7) of
the Act.
2. Inland Boatmen 's Union of the Seafarers' International
Union of North America, AFL-CIO, Atlantic, Gulf, Lakes
and Inland Waters District, and International Union of Dis-
trict 50, Allied and Technical Workers of the United States
and Canada, and its Local Union 14262, and each of them,
are labor organizations within the meaning of Section 2(5) of
the Act.
3. All employees of Respondent operating at its Paducah,
Kentucky, operations on the Ohio River and its tributaries,
on its boats and docks, but excluding office clerical em-
ployees, guards, professional employees, pilots, dispatchers,
and all other supervisors as defined in the Act, constitute a
unit appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act.
4. Inland Boatmen 's Union of the Seafarers ' International
Union of North America, AFL-CIO, Atlantic, Gulf, Lakes
and Inland Waters District is the exclusive representative of
the employees of Respondent in the above-described appro-
priate unit within the meaning of Section 9(a) of the Act.
5. By refusing to recognize and bargain with SIU, Re-
spondent has engaged in and is engaging in unfair labor prac-
tices within the meaning of Sections 8(a)(5) and (1) and 2(6)
and (7) of the Act.
200 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
6. By recognizing District 50, Local 14262, and entering
into a contract with it at a time when it did not represent a
majority of Respondent's employees at Paducah, Kentucky,
Respondent engaged in and is engaging in unfair labor prac-
tices within the meaning of Sections 8(a)(1) and (2) and 2(6)
and (7) of the Act.
Upon the foregoing findings of fact, conclusions of law, and
the entire record, and pursuant to Section 10(c) of the Act,
I hereby issue the following recommended:'
ORDER
Respondent, Columbia Marine Service, Inc., its officers,
agents, successors , and assigns , shall:
1. Cease and desist from:
(a) Recognizing International Union of District 50, Allied
and Technical Workers of the United States and Canada, and
its local Union 14262 as the representative of any of its em-
ployees for the purpose of dealing with said labor organiza-
tion concerning grievances, wages, hours of work, or other
terms and conditions of employment, until after it has com-
plied with the provisions of this recommended Order requir-
ing it to bargain with Inland Boatmen's Union of Seafarers'
International Union of North America, AFL-CIO, Atlantic,
Gulf, Lakes and Inland Waters District, and unless and until
said International Union of District 50, Allied and Technical
Workers of the United States and Canada, and its Local
Union 14262, has been certified as such representative by the
Board.
(b) Refusing to bargain collectively, upon request, with
Inland Boatmen's Union of the Seafarers' International
Union of North America, AFL-CIO, Atlantic, Gulf, Lakes
and Inland Waters District, as the exclusive bargaining repre-
sentative of its employees in the above-described unit.
(c) Interfering with the rights of its employees in the above-
described unit to be represented by a labor organization of
their own choosing.
(d) In any like or related manner interfering with, restrain-
ing, or coercing its employees in the exercise of their rights
to join or assist Inland Boatmen's Union of the Seafarers'
International Union of North America, AFL-CIO, Atlantic,
Gulf, and Inland Waters District, or any other labor organi-
zation, or otherwise engage in such activities protected by the
Act.
2. Take the following affirmative.action designed to effectu-
ate the policies of the Act:
(a) Withdraw and withhold recognition from International
Union of District 50, Allied and Technical Workers of the
United States and Canada and its Local Union 14262 as
representative of any of Respondent's employees in the unit
found appropriate herein for the purpose of contracting and
negotiating or otherwise dealing with the Respondent in re-
spect to wages, rates of pay, or any other terms or conditions
of employment, both until it has complied with the provisions
of this recommended Order requiring it to bargain with the
Inland Boatmen's Union of the Seafarers' International
Union of North America, AFL-CIO, Atlantic, Gulf, Lakes
and Inland Waters District, and unless and until said Interna-
tional Union of District 50, Allied and Technical Workers of
the United States and Canada, and its Local Union 14262,
shall be certified as such representative by the Board.
' 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 recommend Order herein shall, as provided in Sec. 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.
(b) Upon request, bargain collectively with Inland Boat-
men's Union of the Seafarers' International Union of North
America, AFL-CIO, Atlantic, Gulf, Lakes and Inland Wa-
ters District, as the exclusive representative of all employees
in the unit described above, and, if an understanding is
reached, embody such understanding in a signed agreement.
(c) Post at its Paducah, Kentucky, facilities, copies of the
attached notice marked "Appendix."' Copies of said notice,
on forms provided by the Regional Director for Region 9,
after being duly signed by Respondent's authorized repre-
sentative, shall be posted by it immediately upon receipt
thereof, and be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all places where
notices to employees are customarily posted. Reasonable
steps shall be taken by Respondent to insure that said notices
are not altered, defaced, or covered by any other material.
(d) Notify the Regional Director for Region 9, in writing,
within 20 days from the date of the receipt of this Decision,
what steps the Respondent has taken to comply herewith.9
' In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall be changed to read
"Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board."
' In the event that this recommended Order is adopted by the Board after
exceptions have been filed, this provision shall be modified to read: "Notify
the Regional Director for Region 9, in writing, within 20 days from the date
of this Order, what steps the Respondent has taken to comply herewith."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to bargain collectively, upon re-
quest, with Inland Boatmen's Union of the Seafarers'
International Union of North America, AFL-CIO, At-
lantic, Gulf, and Inland Waters District as the exclusive
representative of our employees in the following appro-
priate unit:
All our employees operating at our Paducah,
Kentucky, operations on the Ohio River and its
tributaries, on its boats and docks, but excluding
office clerical employees , guards, professional em-
ployees, pilots, dispatchers, and all other super-
visors as defined in the Act.
WE WILL bargain, upon request , with Inland Boat-
men's Union of the Seafarers' International Union of
North America, AFL-CIO, Atlantic, Gulf, Lakes and
Inland Waters District as the exclusive representative of
our employees in the above-described unit and, if any
understanding is reached, embody such understanding
in a signed agreement.
WE WILL NOT give any force or effect to the contract
entered into with International Union of District 50,
Allied and Technical Workers of the United States and
Canada, and its Local Union 14262.
WE WILL withdraw and withhold recognition from
International Union of District 50, Allied and Technical
Workers of the United States and Canada , and its Local
Union 14262, and we will not assist or recognize that
labor organization as the representative of our em-
ployees in the unit described above until after we have
complied with our obligation to bargain with Inland
Boatmen's Union of the Seafarers' International Union
of North America, AFL-CIO, Atlantic, Gulf, Lakes and
COLUMBIA MARINE SERVICE , INC. 201
Inland Waters District , and unless International Union
of District 50, Allied and Technical Workers of the
United States and Canada , and its Local Union 14262
has been certified as bargaining representative of our
employees in an appropriate unit.
COLUMBIA MARINE
SERVICE, INC.
(Employer)
This is an official notice and must not be defaced by any-
one.
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.
Any questions concerning this notice or compliance with
its provisions may be directed to the Board's Office, Room
2407 , Federal Office Building , 550 Main Street , Cincinnati,
Ohio 45202, Telephone 513-684-3686.
Dated By
(Representative) (Title)