Eastern Steamship Lines, Inc.

National Labor Relations Board - Board Decisions

Oct 25, 1966

161 N.L.R.B. 458 (N.L.R.B. 1966)

458 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Eastern Steamship Lines, Inc. and International Longshoremen's
Association , Local 1416, AFL-CIO. Case AO-96. October 25,
1966
ADVISORY OPINION
This is a petition filed by International Longshoremen's Associa-
tion, Local 1416, AFL-CIO, herein called the ILA, for an Advisory
Opinion in conformity with Sections 102.98 and 102.99 of the National
Labor Relations Board's Rules and Regulations, Series 8, as amended.
On August 25,1966, the ILA filed an Addendum to Petition for Advis-
ory Opinion. Thereafter, on August 29, Eastern Steamship Lines,
Inc., herein called the Employer, filed a Response to Petition for
Advisory Opinion.
In pertinent part the petition, Addendum, and Response allege as
follows :
1. In the injunction proceeding before the Circuit Court of the
Eleventh Judicial District, in and for the County of Dade, Florida,
the Employer sought to enjoin the ILA from picketing the Employ-
er's places of business on the docks of Miami, Dade County, Florida,
and at Port Everglades, Broward County, Florida. On May 20, 1966,
the Honorable Gene Williams, judge of the State court, issued an
injunction.
2. According to the ILA, the Employer, a Florida corporation, is a
shipping agent, steamship agency, and/or stevedoring company
engaged in furnishing interstate transportation services in the ports of
Miami and Port Everglades where it is egaged in interstate and
foreign commerce. Based upon the June 15, 1966, deposition of the
Employer's vice president, T. F. Kane, the ILA alleges (a) that such
services are furnished foreign flag ships, particularly the cruise ships,
S.S. Ariadne and S.S. Bahama Star, owned respectively by an
Ariadne Shipping Company, Ltd., a Liberian corporation, and Evan-
geline Steamship Company S.A., a Panamanian corporation,' and
(b) that such services include, but are not limited to, the employment
of truckdrivers to deliver supplies to the two cruise vessels and the
furnishing of shore or stevedoring gangs who repair the ships' life
boats, perform carpentry and repair work on the ships, and handle
the ships' lines and gangplanks. In addition, the Employer, as gen-
eral agent, sells cruise tickets, purchases supplies and insurance, and
furnishes all of the services required by the vessels in their operations.
3. During the 12 months prior to the institution of the injunction
proceedings, the Employer's gross revenue from interstate transpor-
I These two ships operate out of Miami and Port Everglades , Florida, and carry pas-
sengers and cargo to and from the Bahama Islands.
161 NLRB No. 30.
EASTERN STEAMSHIP LINES, INC. 459
tation services rendered to foreign flag ships exceeded $50,000, its
direct and indirect out-of-State purchases of goods and materials
exceeded $50,000, and its gross volume of business was in excess of
$50,000. During the past 12-month period, the Employer, as general
agent, purchased fuel for the two cruise ships in an amount exceeding
$100,000 of which $22,069.73 was for fuel oil admittedly shipped
from outside the State of Florida. In addition, the Employer sold in
excess of $1 million in cruises or cruise tickets to passengers for travel
on the two vessels.
4. The two foreign corporations, which own and operate the for-
eign flag ships, S.S. Ariadne and S.S. Bahama Star, are engaged in
foreign commerce between ports in Florida and the Bahama Islands
and receive in excess of $50,000 annually from such commerce.
5. In its Response, the Employer requests that the petition be dis-
missed on the ground that the issues herein may not appropriately be
resolved by the Board's informal Advisory Opinion procedures. It
generally disputes the dollar volume amounts of commerce alleged by
the ILA in the petition as well as the sources of such amounts. The
Employer also contends that the ILA has not adduced evidence that
the Employer's gross revenues from the interstate transportation
services furnished or its out-of-State purchases exceeded $50,000 dur-
ing the past 12 months or that its operations otherwise meet the
Board's dollar volume jurisdictional standards. Except for this broad
general position disputing the commerce allegations for the failure of
the ILA to adduce sufficient evidence in support thereof, the
Employer itself has not specifically denied the dollar volume commerce
allegations, nor has it affirmatively alleged what such dollar volumes
are despite its peculiar knowledge thereof.2 However, the Employer
specifically denies that it is "arguably engaged in a labor dispute
with the ILA" and affirmatively asserts that the only dispute is
between the ILA and the two foreign flag ship companies. In addi-
tion, it denies that it is a shipping company, steamship agency, and/
,or stevedoring company and asserts that it is only a general agent,
primarily a ticket seller, for the two foreign flag vessels. But, the
Employer has not denied that, as general agent, it furnishes gangs to
perform miscellaneous work on and for the two cruise ships and that
it utilizes its own trucking employees to deliver supplies purchased
by it for such ships.
6. In the injunction order of May 20, 1966, the State court did not
make any findings of fact regarding commerce and left open the dol-
lar volume jurisdictional question.
2 See, e.g., the Employer , on p. 4 of its Response , states that "[n]owhere In the record
is there evidence of what Eastern 's [gross] revenue might be."
460 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
7. There is no representation or unfair labor practice proceeding
involving the same labor dispute pending before the Board.
On the basis of the above, the Board is of the opinion that :
1. The Employer is a Florida corporation which, whether acting
as general agent or otherwise, is a nonretail enterprise engaged in
furnishing interstate transportation services to foreign flag ships
operating in foreign commerce out of Miami and Port Everglades,.
Florida.
2. The current standard for the assertion of jurisdiction over non-
retail enterprises within the Board's statutory jurisdiction requires
an annual minimum of $50,000 out-of-State inflow or outflow, direct
or indirect. Siemons Mailing Service, 122 NLRB 81, 85, 88. The cur-
rent standard for assertion of jurisdiction over passenger enterprises-
engaged in the furnishing of interstate transportation services and
all other transportation and other enterprises which function as
essential links in such activity requires an-annual gross revenue of
$50,000 derived from furnishing such services. HPO Service, Inc.,-
122 NLRB 394.
3. The owners and operators of the foreign flag vessels, S.S.
Ariadne and S.S. Bahama Star, receive in excess of $50,000 annually
from their operations in foreign commerce. Since the operations of
these foreign companies are of the magnitude necessary for the asser-
tion of jurisdiction over comparable nonexempt enterprises, the serv-
ices performed by the Employer for their foreign flag ships may be-
treated as indirect outflow in accordance with established Board
poliCy.3
4. As indicated in paragraph 5 hereinabove, the Employer has
failed squarely to deny the commerce allegations of the petition.4
Therefore, it is reasonable to assume, for purposes of this Advisory
Opinion, that as alleged by the ILA, the Employer has furnished
supplies and rendered services to the foreign flag ships, S.S. Ariadne-
and S.S. Bahama Star in excess of $50,000 annually, of which
$22,069.73 represented fuel oil which came from without the State of
Florida. Accordingly, whether the Employer be viewed as a nonre-
tail enterprise furnishing services to enterprises whose dollar volume
of business satisfies the applicable jurisdictional standard, or as an
essential link in the furnishing of passenger transportation services,
it is apparent' that the Employer's operation satisfies the relevant
tests for invoking the Board's jurisdiction.
5. The Employer also urges that the petition presents issues inap-
propriate for, determination through• the Board's advisory procedures
3 See Local 1355, International Longshoremen's Association (Ocean Shipping Service,
Ltd.) (Maryland Ship Ceiling Company, Inc.), 146 NLRB 723, 724, footnote 3, and cases
cited therein'.
A See Section 102.101 of the Board 's Rules and Regulations.
OVERNITE TRANSPORTATION COMPANY 461
because of the absence of an arguable labor dispute between it and
the ILA and the asserted existence of a dispute with the foreign flag
vessels. However, the incidence of such a dispute does not preclude
the Board from rendering an Advisory Opinion with respect to the
Employer herein. For while the Board does not presume to render an
Advisory Opinion on the merits of any case or on the question of
whether the subject matter of the controversy is governed by the
Act,S such procedures may be utilized for determining other jurisdic-
tional issues confronting it as here, i.e., whether the commerce opera-
tions of the Employer are such that the Board would assert jurisdiction
over them, assuming, without deciding, that the matter in controversy
is cognizable under Sections 8, 9, and 10 of the Act.
Accordingly, the parties are advised under Section 102.103 of the
Board's Rules and Regulations, Series 8, as amended, that, on the
allegations submitted herein, the Board would assert jurisdiction
over the Employer's operations with respect to disputes cognizable
under Sections 8, 9, and 10 of the Act.
B See Section 101.40 ( e) of the Board 's Statements of Procedure ; Spear8 -Dehner, Inc.,
139 NLRB 922 , 924; Upper Lakes Shipping, Ltd., 138 NLRB 221.
Overnite Transportation Company and Carroll L. Matherly. Case
5-CA-3377. October 06, 1966
DECISION AND ORDER
On July 20, 1966, Trial Examiner George Turitz issued his Deci-
sion in the above-entitled proceeding, finding that Respondent had
engaged in certain unfair labor practices and recommending that it
cease and desist therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision. The Trial Examiner
also found that the Respondent had not engaged in certain other
unfair labor practices alleged in the complaint. Thereafter, the
Respondent and the Charging Party filed exceptions to the Trial
Examiner's Decision, and the Charging Party filed a supporting
brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Fanning and Jenkins].
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial
161 NLRB No. 38.