Fishing Vessel Sun Beam

National Labor Relations Board - Board Decisions

Sep 20, 1961

133 N.L.R.B. 238 (N.L.R.B. 1961)

238 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
lishment of a change in the job bidding procedure on August 17; and (c) its breaking
off of bargaining negotiations and its refusal to meet with the Union on and after
August 19 , 1961.18
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICE UPON COMMERCE
The activities of the Respondent set forth in section III, above , occurring in con-
nection with its operations described in section I, above, have a close , intimate, and
substantial relation to trade , traffic , and commerce among the several States , and tend
to lead to labor disputes burdening and obstructing commerce and the free flow
thereof.
V. THE REMEDY
Having found that Respondent has engaged in certain unfair labor practices, I
will recommend that it cease and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
Upon the basis , of the foregoing findings of fact , and on the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. The above-named Union is a labor organization within the meaning of Section
2(5) of the Act.
2. All production, maintenance , factory clerical, and cafeteria employees at Re-
spondent 's Massillon , Ohio, plants , exclusive of office clerical , professional employ-
ees, guards , and supervisors as defined in the Act, constitute a unit appropriate for
the purpose of collective bargaining within the meaning of Section 9(a) of the Act.
3. Since April 3, 1959, the said Union has been and now is the exclusive repre-
sentative of all employees in the unit aforesaid for purposes of collective bargaining
within the meaning of Section 9 (a) of the Act.
4. By refusing on and after August 15 , 1960 , to bargain with the Union to the
extent found above, Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(5) and (1) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
'B As an additional defense for its refusal to meet with the Union after the end of
August , Respondent also refers to the conversation which its attorney , Burt, had with
Commissioner O'Brian on about August 31 wherein O'Brian purportedly stated that no
further negotiating meetings should be held with the Union because of the then pending
decertification petition . Whether or not reliance upon the Commissioner 's statement to
this effect would constitute a valid defense to a refusal to bargain allegation need not be
decided here , for this matter is predated by the 8(a) (5) violations found above.
John Vilicich , Managing Owner, and Steve Vilicich , Nick Truta-
nich , Peter Marovich and Joe Marovich , Co-owners , Operators
of the Fishing Vessel Sun Beam and Fishermen 's Union Local
33, International Longshoremen 's & Warehousemen 's Union,
Petitioner. Case No. 21-RC-7209. September 20, 1961
DECISION AND ORDER
Upon a petition duly filed under Section 9(c) of the National
Labor Relations Act, a hearing was held before Louis S. Eberhardt,
hearing officer. The hearing officer's rulings made at the hearing are
free from prejudicial error and are hereby affirmed.
Pursuant to the provisions of Section 3(b) of the Act, the Board
133 NLRB No. 36.
JOHN VILICICH, ETC. 239
has delegated its powers in connection with this case to a three-member
panel [Members Leedom, Fanning, and Brown].
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the Act.'
2. The labor organizations involved claim to represent employees
of the Employer 2
3. No question affecting commerce exists concerning the representa-
tion of employees of the Employer within the meaning of Section
9(c) (1) and Section 2(6) and (7) of the Act, for the following
reasons:
The Petitioner seeks an election among the members of the crew of
the vessel Sun Beam, contending that its petition is timely because
the existing contract is not a bar. The Intervenors contend that the
petition is untimely because (1) it was filed less than a year after
Seine & Line was certified by the Board to represent the employees
sought, and (2) their current joint contract with the Employer con-
stitutes a bar.
On May 25, 1959, the Employer and Seine & Line entered into a
collective-bargaining contract, effective from April 1, 1959, to Decem-
ber 13, 1961, covering the employees involved herein. On August 4,
1960, Seine & Line was certified following a Board-directed election a
Following that certification, the parties continued the 1959 agreement
in effect. In the latter part of April 1961, a "Supplemental Agree-
ment" was executed which amended the prior contract and provided
that it should be effective for 2 years from April 1, 1961. On May 5,
1961, in order to make certain corrections in the contract as amended,
a new "Working Agreement," which set forth the entire agreement of
the parties, was executed between the Intervenors jointly and the Em-
ployer effective from May 1, 1961, to May 1, 1963. The petition herein
was filed on May 11, 1961.
Accepting the Petitioner's and the Intervenors' position that neither
the 1959 nor April 1961 agreements would bar a petition,' the petition
here was untimely. It is well established that a contract executed in
midterm of a preexisting contract and extending its terms is not a
1 The Employer is engaged in fishing for tuna in the Pacific Ocean and sells its catch
to canneries in the Los Angeles area . As the record shows the Employer 's annual outflow
exceeds $50 ,000 and as the Board has asserted jurisdiction over this same employer in
Fisherman's Cooperative Association, et at, 128 NLRB 62, 64, we shall assert jurisdiction
herein.
2 Seine & Line Fishermen 's Union of San Pedro, Affiliated with Seafarers ' International
Union of North America, AFL-CIO, herein referred to as Seine & Line, and Cannery
Workers & Fishermen 's Union of San Diego , Affiliated with Seafarers' International Union
of North America , AFL-CIO, intervened on the basis of their joint contract with the
Employer . They are referred to jointly as the Intervenors.
3 Fisherman's Cooperative Association, et at., supra . The 1959 contract was asserted as
a bar in that proceeding but was not introduced into evidence . Accordingly , it was held
not to be a bar. Ibid., footnote 12.
4 In view of this agreement , we find it unnecessary to make a determination as to the
validity of the union - security clauses of those contracts.
240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
premature extension which cannot be a bar, if that prior contract
would not have barred an election because of other contract-bar rules.'
Here the May 5, 1961, agreement, which contains a union-security
clause which is clearly valid on its face, was executed during the term
of a prior contract which the unions agree would not be a bar. Accord-
ingly, the May 5,1961, contract was not a premature extension and is a
bar to any petition untimely filed during its term. As the May 5, 1961,
agreement was executed prior to the filing of the petition, it is a bar
and the petition must be dismissed.
Moreover, even if there were no contract bar here because, as alleged
by the Petitioner, only the 1959 contract should be considered, this
petition was untimely. As the Board held in Centr-O-Cast d Engi-
neering Company,' absent unusual circumstances, we do not consider a
petition timely where it is filed during a certification year. We find
no unusual circumstances in this case. In The Great Atlantic and
Pacific Tea Company case,' we held that a preelection agreement to
continue an existing contract in effect after certification does not
amount to a negotiation of postcertification contract within the mean-
ing of the Ludlow rule.' Accordingly, the Ludlow case is inapplicable
because it involved a situation where an agreement was entered into
within the certification year and not prior thereto, as was the 1959
agreement in this case.'
Accordingly, we shall dismiss the petition.
[The Board dismissed the petition.]
5 Deluxe Metal Furniture Company, 121 NLRB 995, 1001-1002.
8 100 NLRB 1507.
7123 NLRB 1005.
8 Ludlow Typo graph Company, 108 NLRB 1463 , where the Board held that where an
employer and a certified union execute one contract within the certification year, the
certification year merges with that contract , after which there is no need to protect the
certification further , and the contract becomes controlling with respect to the timeliness
of the filing of a rival petition.
9 Westinghouse Electric Corporation ( Sunnyvale Plant ), 114 NLRB 1515 ; The Great
Atlantic and Pacific Tea Company, supra.
Super Operating Corporation , et al .i and International Brother-
hood of Teamsters , Chauffeurs, Warehousemen and Helpers,
Taxi Drivers and Terminal Employees , Local Union 826. Cases
Nos. 2-CA-7559 (Complaint No. 1) and 2-RC-9988. Septem-
ber 21, 1961
DECISION AND ORDER
On June 2, 1961, Trial Examiner Arnold Ordman issued his Inter-
mediate Report in the above-entitled proceeding, finding that the Re-
IAt the hearing herein the instant case was severed from Case No. 2-CA-7559 (Com-
plaint No . 2) Involving Dee Bee Garage Corporation as Respondent.
133 NLRB No. 35.