Gulfcoast Transit Co.

National Labor Relations Board - Board Decisions

Jan 12, 1962

135 N.L.R.B. 185 (N.L.R.B. 1962)

GULFCOAST TRANSIT COMPANY 185
union as representative of the 'employees in the unit for which Local
715 was certified. From this, it is clear. that-the allegations. contained
in Local 715's motion constitute an attempt to raise a question con-
cerning representation. Local 715 requests that we resolve this alleged
question concerning representation by amending the certification. The
Act and the Board's policy, however, require that such matters be
determined through a petition and secret ballot of the employees con-
cerned.5 Accordingly, we find 6 the motion to amend the certification
without merit.
[The Board denied the motion.]
MEMBERS LEEDOM and BRowN took no part in the consideration of
the above Decision and Order.
6 See It . M. ££ollingshead Corporation, 111 NLRB 840 : Gulf Oil Corporation, 109 NLRB
861; Wealherhead Company of Antwerp , 100 NLRB 1266 ; Wagner Electric Corporation,
91 NLRB 220. Cf. National Carbon Company, a Division of Union Carbide and Carbon
Corporation ( Edgewater Works ), 116 NLRB 488.
6 Chairman McCulloch concurs in the result because the facts presented by the motion
and opposition leave some doubt as to whether the merger and change of bargaining repre-
sentative from one local union to another actually reflect the desire of a majority of
employees in the represented unit.
Gulfcoast Transit Company and National Maritime Union of
America, AFL-CIO. Case No. 12-CA-2010. January 12, 1962
DECISION AND ORDER
On October 18, 1961, Trial Examiner George A. Downing issued
his Intermediate Report in the above-entitled proceeding, finding
that the Respondent had engaged in and is engaging in certain unfair
labor practices, and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the Intermediate
Report attached hereto. Thereafter, the Respondent and the National
Maritime Union filed exceptions to the Intermediate Report and sup-
porting briefs.
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 [Members Rodgers, Fanning, and Brown].
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
Intermediate Report, the exceptions and briefs, and the entire record
in the case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner.
135 NLRB No. 25.
186 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER
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, Gulfcoast Tran-
sit Company, Tampa, Florida, its officers, agents, successors, and
assigns, shall:
1. Cease and desist from :
(a) Refusing to bargain collectively with NMU as the exclusive
representative of its employees in the unit herein found appropriate
with respect to wages, rates of pay, hours of employment, or other
conditions of employment . The appropriate collective-bargaining
unit is :
All unlicensed personnel aboard the vessel SS Martha Mac, in-
cluding personnel in the deck, engineer, and steward depart-
ments, excluding office clerical employees and all supervisors as
defined in the Act.
(b) Recognizing the Gulfcoast Transit Unlicensed Personnel
Association 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 other condi-
tions of employment until it has complied with the provisions of this
Order requiring it to bargain with the National Maritime Union of
America, AFL-CIO, and unless and until Gulfcoast Transit Un-
licensed Personnel Association shall have demonstrated its exclusive
majority representative status pursuant to a Board-conducted elec-
tion among the Respondent's employees.
(c) Interfering with the administration of, and contributing un-
lawful support to, the Gulfcoast Transit Unlicensed Personnel Asso-
ciation, or to any other labor organization of its employees.
(d) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the right to self-organization,
to form labor organizations, to join or assist the above-named or any
other labor organizations, to bargain collectively through representa-
tives of their own choosing, and to engage in any other concerted
activities for the purposes of collective bargaining or other mutual
aid or protection, or to refrain from any and all such activities.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Bargain collectively, upon request, with National Maritime
Union of America, AFL-CIO, as the exclusive representative of its
employees in the appropriate unit and, if an understanding is reached,
embody such understanding in a signed agreement.
(b) Withdraw and withhold recognition from Gulfcoast Transit
Unlicensed Personnel Association, as representative of any of the
GULFCOAST TRANSIT COMPANY 187
Respondent's employees on its vessel, SS Martha Mac for the pur-
pose of contracting or negotiating or otherwise dealing with the
Respondent with respect to wages, rates of pay, or any other term or
condition of employment both until it has complied with the provi-
sions of this Order requiring it to bargain with National Maritime
Union of America, AFL-CIO, and thereafter, unless and until said
labor organization shall have demonstrated its exclusive majority
representative status pursuant to a Board-conducted election.
(c) Post aboard its vessel, SS Martha Mac, copies of the notice
attached hereto marked "Appendix." 1 Copies of said notice, to be
furnished by the Regional Director for the Twelfth Region, shall,
after being duly signed by a representative of the Respondent, be
posted 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. Reason-
able steps shall be taken to insure that said notices are not altered,
defaced, or covered by any other material.
(d) Notify the Regional Director for the Twelfth Region, in writ-
ing, within 10 days from the date of this Order, what steps have been
taken to comply herewith.
IIn the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify you that :
WE WILL bargain collectively on request with National Mari-
time Union of America, AFL-CIO, as the exclusive representa-
tive of all our employees in the following appropriate collective-
bargaining unit, and, if an understanding is reached, we will
embody such understanding in a signed agreement. The appro-
priate collective bargaining unit is :
All unlicensed personnel aboard the vessel SS Martha Mae,
including personnel in the deck, engineer, and steward de-
partments, excluding office clerical employees and all super-
visors as defined in the Act.
WE WILL NOT recognize Gulfcoast Transit Unlicensed Person-
nel Association as the representative of any of our employees for
the purpose of contracting, negotiating, or otherwise dealing with
them with respect to grievances, labor disputes, wages, rates of
pay, hours of employment, or other conditions of employment
188 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
until after we have bargained with National Maritime Union of
America, AFL-CIO, and will not thereafter recognize said Gulf-
coast Transit Unlicensed Personnel Association as such repre-
sentative unless and until it shall have demonstrated its exclusive
majority representative status pursuant to a Board-conducted
election.
WE WILL NOT interfere with the administration of, or contribute
unlawful support to, Gulfcoast Transit Unlicensed Personnel
Association, or any other labor organization of our employees.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce our employees in the exercise of the right to
self-organization, to form labor organizations, to join or assist
National Maritime Union of America, AFL-CIO, or any other
labor organization, to bargain collectively through representa-
tives of their own choosing, and to engage in other concerted ac-
tivity for the purposes of collective bargaining or other mutual
aid or protection, or to refrain from any or all such activities.
WE WILL withdraw and withhold recognition from Gulfcoast
Transit Unlicensed Personnel Association as the representative
of our employees for the purpose of dealing with us concerning
grievances, labor disputes, wages, rates of pay, hours of employ-
ment, or other terms or conditions of employment, unless and
until said labor organization shall have been certified by the Na-
tional Labor Relations Board.
All our employees are free to become or remain, or to refrain from
becoming or remaining, members of the above-named or any other
labor organization.
G1LFCOAST TRANsrr COMPANY,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
This proceeding , brought under Section 10(b) of the National Labor Relations
Act, as amended (61 Stat. 136; 73 Stat. 519), was heard at Tampa, Florida, on August
28 and 29, 1961, pursuant to due notice. The complaint, issued on July 11, 1961, by
the General Counsel of the National Labor Relations Board and based on charges
duly filed and served, alleged in substance that Respondent had engaged in unfair
labor practices proscribed by Section 8(a)(1), (2 ), and (5) of the Act by (1)
rendering unlawful aid , assistance , and support since November 16, 1960, to an
association of its employees , and (2) by refusing to bargain since November 16, 1960,
with the Charging Union (herein called NMU) which, on February 8, 1960, was
certified by the Board 's Regional Director as the exclusive bargaining representative
of Respondent's employees in an appropriate unit.
Respondent answered , denying the unfair labor practices as alleged and averring
affirmatively that NMU lost its majority status after an economic strike on May 5,
GULFCOAST TRANSIT COMPANY 189
1960, during which Respondent permanently replaced a majority of the employees.
Respondent defended its dealings with the employees on board ship on the basis of
the unusual conditions which exist aboard a vessel on the high seas and on the further
ground that NMU was guilty of such misconduct toward the employees as effectually
to preclude the adjustment of their grievances through NMU.
Upon the entire record 1 in the case and from by observations of the witnesses, I
make the following:
FINDINGS OF FACT
1. JURISDICTIONAL FINDINGS
I find on facts alleged in the complaint and admitted by answer that Respondent,
a Florida corporation, engaged in the business of transporting bulk cargo between
Tampa, Florida, and New Orleans, Louisiana, by steamship, is engaged in interstate
commerce within the meaning of the Act through its annual receipt of revenues
exceeding $50,000 for its services connected with the transportation of goods in
interstate commerce.
IL THE LABOR ORGANIZATIONS INVOLVED
NMU is a labor organization within the meaning of Section 2(5) of the Act.
I also find, on the basis of the evidence summarized under section III, B, infra,
that Gulfcoast Transit Unlicensed Personnel Association, also known as Association
of Unlicensed Crew SS Martha Mac (herein called the Association) is a labor
organization within the meaning of Section 2(5) of the Act, because it dealt with
Respondent concerning grievances, overtime compensation, hours of employment,
and conditions of work. N.L.R.B. v. Cabot Carbon Company and Cabot Shops, Inc.,
360 U.S. 203.
HI. THE UNFAIR LABOR PRACTICES
A. The issues; the Section 10(b) question
Under the complaint allegations , the violations of both Section 8(a)(2) and
8(a)(5) were related almost entirely to Respondent's recognition of and dealings
with the Association since November 16, 1960 (during NMU's certification year),
the single exception being a further allegation that Respondent also engaged in bad-
faith bargaining with NMU.
On the refusal-to-bargain question, Respondent's brief argues a single issue-the
paramount one in the case-whether NMU's loss of majority during the certification
year, resulting from an economic strike and from Respondent's permanent replace-
ment of all strikers, constituted such an unusual circumstance as to absolve Respond-
ent from its obligation to bargain. The only other issue in the case is whether the
General Counsel proved that Respondent' s dealings with the Association since
November 16 constituted the giving of unlawful aid, assistance , or support .2
For preliminary consideration is the question concerning the weight to be given
to evidence of events prior to November 16, received over Respondent's objection
that it was barred by Section 10(b). That evidence covered briefly the early nego-
tiations between Respondent and NMU, and covered in more detail the forming of
the Association and Respondent's dealings with it during the prior period.
It is definitively settled that Section 10(b) is a statute of limitations and not a rule
of evidence. Evidence of events outside .the statutory, period may accordingly be
received under the "established judicial rule of evidence that testimony of prior or
subsequent transactions, which for some reason are barred from forming the basis
for a suit, may nevertheless be introduced if it tends reasonably to show the purpose
and character of the particular transactions under scrutiny." Federal Trade Commis-
sion v. Cement Institute, 333 U.S. 683, 704. That rule is, of course, subject to the
important qualification that testimony as to such barred events may be received
only as background evidence and may not be given independent or controlling weight.
Alumatic Windows, Inc., 131 NLRB 1210; see Paramount Cap Manufacturing Com-
pany v. N L.R.B., 260 F. 2d 109 (C.A. 8).
As the Supreme Court held in Local Lodge No. 1424, International Association of
Machinists, AFL-CIO v. N.L.R.B. (Bryan Manufacturing Co.), 362 U.S. 411, it is
necessary to distinguish between the following two different kinds of situations in
applying rules of evidence as to the admissibility of past events:
I Corrections of the record are hereby ordered, pursuant to the General Counsel's motion,
in the absence of objection.
8 Mistakenly citing the language of the charge, Respondent's brief argues against a find-
ing of domination, but there was no allegation of domination In the complaint and no
claim of any by the General Counsel.
190 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The first is one where occurrences within the six-month limitations period in and
of themselves may constitute, as a substantive matter, unfair labor practices.
There, earlier events may be utilized to shed light on the true character of matters
occurring within the limitations period; and for that purpose § 10(b) ordinarily
does not bar such evidentiary use of anterior events. The second situation is that
where conduct occurring within the limitations period can be charged to be an
unfair labor practice only through reliance on an earlier unfair labor practice.
There the use of the earlier unfair labor practice is not merely "evidentiary,"
since it does not simply lay bare a putative current unfair labor practice. Rather,
it serves to cloak with illegality that which was otherwise lawful. And where a
complaint based upon that earlier event is time-barred, to permit the event itself
to be so used in effect results in reviving a legally defunct unfair labor practice.
To mark more precisely the limits of its holding, the Court elsewhere stated that
"we need not go beyond saying that a finding of violation which is inescapably
grounded on events predating the limitations period is obviously at odds with the pur-
poses of the Section 10(b) proviso."
It is in the light of the foregoing principles that the evidence of the earlier events
is weighed herein. Evidence concerning the formation of the Association and of the
earlier manner of its functioning was plainly relevant background for the evaluation
of events within the statutory period. As the court said in N.L.R.B. v. Sharples
Chemicals, Inc., 209 F. 2d 645, 653 (C.A. 6) :
The original inception of the different organizations, together with the testimony
that they were still functioning, without much attempt on the part of Respondent
to show any basic change, had a material bearing upon the question of how
they were functioning on and after [the Section 10(b) date].
So too the evidence of Respondent' s bargaining attitude prior to November 16 is
utilized only in illumination of its alleged bad faith during the statutory period.
B. The evidence
Respondent operates a single vessel , the SS Martha Mac, a bulk cargo carrier in
coastwise trade, hauling phosphate and coal between Tampa and New Orleans. Its
unlicensed personnel aboard ship numbered some 34 employees. Its officers (licensed
personnel) included in part Captain Alf J. Dahl, Acting Captain (and Chief Mate)
Robert L. Fonda, and Chief Engineer Eric Blomquist. Corporatewise, Respondent's
general manager was Ned Wheelock and its assistant manager was William H.
Vaught.
On January 11, 1960, Gulfcoast Transit Union, Ind., filed a representation pe-
tition seeking representation of all unlicensed personnel aboard the Martha Mac, and
on January 30 NMU filed a petition in the same unit . The cases were consolidated
and a consent election was held on January 30, 1960, with NMU winning the elec-
tion. NMU was thereafter certified as the exclusive bargaining representative of said
employees on February 8, and the Union and the Company attended bargaining
negotiating sessions until May 5, 1960, on which date the employees in the unit
went on strike .3 Some 20 of the unlicensed personnel walked off the ship and 14 re-
mained on board. On the same day Respondent permanently replaced all of the 20
strikers.
In June 1960, the men on board formed themselves into an "opposing association"
(to NMU) and thenceforth dealt through their association directly with Respondent's
officers, without notice to NMU, concerning grievances and a variety of working and
living conditions aboard ship (as more fully recited hereinafter). The minutes of
a The following facts concerning the filing and disposition of charges were stipulated :
On June 10, 1960, Respondent filed 8(b) (1) (A) charges in Case No 12-CB-1396,
accusing the Union of strike misconduct. The Regional Office dismissed those charges
because of insufficiency of evidence. On August 8, 1960, NMU filed 8(a) (1), (3), and
(5) charges against Respondent in Case No 12-CA-1363 (1-4). The Regional
Office administratively dismissed the 8(a) (3) and (5) allegations, and a hearing was
held only on the Section 8(a) (1) allegation On recommendation of the Trial
Examiner, the latter allegations were subsequently dismissed by the Board
On February 9, 1961, a representation petition was filed in Case No 12-RC-1153,
by Gulfcoast Transit Unlicensed Personnel Association, Ind., and on March 2 1961,
NMU intervened in that proceeding. Thereafter, under the direction of the Regional
Director, a representation hearing was held on May 16, 1961, and on the same date
unfair labor practice charges were filed by NMU in the present proceeding.
GULFCOAST TRANSIT COMPANY 191
the Association showed that the members in attendance at all of the meetings num-
bered substantially more than a majority of Respondent's employees.
As the foregoing evidence, which was introduced by the General Counsel, estab-
lished an actual loss of majority by NMU on or before June 25, 1960, it is unneces-
sary to consider Respondent's contention that the employees could not have desired
representation by NMU because of the effect upon them of a scurrilous notice, sent
by NMU, which charged them with "scabbing" in terms of the celebrated Jack London
statement. Furthermore, Section 10(b) precludes a finding that the Union's loss of
majority was attributable to Respondent's unfair labor practices.
Evidence concerning the pre-10(b) negotiations between Respondent and NMU
showed that, following the certification, meetings were held on March 30, April 30,
May 12, mid-July, August 4 and 5, and mid-October. The negotiations centered
around the Union's standard industry agreement covering dry-cargo vessels, with
certain changes made by NMU to fit the Martha Mac. Both sides made and refused
to make certain concessions; the main stumbling blocks were the pension plan and the
hiring hall, with Respondent being adamantly opposed to the latter.
Prior to the certification, Respondent had permitted NMU representatives to go on
board, both for organizational purposes and to receive and process grievances, but
following the certification, permission to board was refused to NMU, and specifically,
was refused to John Reizinger, field patrolman, who was turned away several times by
a guard at a gate which Respondent erected at the entrance to its dock shortly after
the election. At the April 30 meeting, Respondent related its refusal of access to
the fact that NMU had not furnished a certificate of insurance covering NMU per-
sonnel who might go on board. On May 2, the Union furnished Respondent a
certificate of coverage in the usual amount of $25,000 to $50,000, public liability.4
A month later, NMU was informed that the coverage was inadequate, and that Re-
spondent was demanding coverage of $100,000 to $300,000. That demand was never
withdrawn, and it was one of the items left open for discussion at all subsequent
bargaining sessions.
Beginning with the meeting of May 12, Respondent frequently made the claim
that the Union had lost its majority (through the replacement of the strikers) and
was no longer the representative of the employees on board, stating also that Re-
spondent was present in the negotiations because under the law it had to sit down and
meet with the Union periodically.
The foregoing positions were maintained through a final negotiation meeting, held
on January 24, 1961,'and no agreement was reached.
We turn now to the evidence concerning the forming of the Association and its
dealings with Respondent. In June 1960, all unlicensed personnel decided during a
meeting in the crew's mess to form some sort of "opposing association" (to NMU)
with the object of making the ship a better place to live and for effecting improve-
ments in the general welfare of the crew. To that end they formed an "unofficial"
organization, electing delegates from the different departments, choosing a chairman,
a secretary, and a treasurer, and providing for the collection of dues. Meetings were
held roughly on a monthly basis, usually when at sea, and grievances and complaints
were received and discussed and action was agreed upon for handling such matters
with the ship's officers.
Copies of the minutes (which were typed by the radio operator, a licensed officer)
were posted on the bulletin board in the crew's mess until some 6 months before the
hearing in this case. They showed frequent instances in which delegates were di-
rected to take up specific matters with the ship's officers to remedy complaints and to
improve working conditions, and they showed similarly reports by the delegates book
to the membership of the results obtained.
In September the crew members took action toward organizing their Association
on a more formal or "official" basis, by a formal election of officers, by increasing
the dues, and by providing for an initiation fee. Seeking also to place their relations
with Respondent on a more formal basis, the delegates met aboard ship on Septem-
ber 28 with a committee of Respondent's representatives, consisting of Captain All
Dahl, General Manager Wheelock, Assistant Manager Vaught, and Chief Engineer
Blomquist. Secretary Richard Watkins of the Association was informed by Vaught
that Vaught would take the minutes of the meeting and that Watkins need not do so.
Vaught's minutes (amplified on certain details by unrefuted testimony) showed
that a wide variety of matters pertaining to working and living conditions were
6 Rick Miller, NMU 's vice president , gave undenied testimony that such coverage is the
same as the Union carries under a blanket policy covering some 125 companies , operating
some 500 to 700 ships of all classifications , including one identical in operation to the
Martha Mac
192 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
discussed, considered, and in some instances resolved. Thus beginning with the
statement that an association was proposed "as soon as it is legal to do so," the range
of topics included in part the following: Delegates from different departments to be
recognized by officers and Company for settling disputes; 5 men on deck to receive
orders only from bosun or mate on duty; 15-hour overtime limit for engine depart-
ment; disputed overtime to be submitted to delegate for settlement; return to regular
job after vacation; attitude of officers toward crew members; job security; chart
showing seniority and vacation schedules; safety program; supper relief.
The Association's minutes of subsequent meetings (with copies still being posted
on the bulletin board), together with testimony, by President Wilson and Secretary
Watkins, showed that Respondent thereafter dealt with the Association's repre-
sentatives concerning complaints and grievances and on a variety of matters relating
to working and living conditions on board ship, and that such dealings continued
without break or change after November 16. Watkins confirmed that matters men-
tioned in the minutes were in fact taken up with the ship's officers. Wilson testified
to conferring with the ship's officers on such matters as complaints covering unneces-
sary work on Sunday and the crew's desire for a set of rules on the subject; plumbing
troubles; a washing machine; a broken TV; and the reason for the discharge of an
employee.
Wilson also read to the Association in a meeting on February 4, 1961, from a
mimeograph sheet supplied him by Chief Engineer Blomquist, a report of the
additional benefits which the officers' association (of licensed personnel) had received
through negotiation with the Company, which were set forth in full in the minutes
of the meeting. The minutes elsewhere referred to the "very likely" possibility that
the employees would receive certain of those benefits in view of what the officers
received, and they also contained the following addendum of Wilson's comments
following the reading of his report:
You can see that the Company is willing to discuss our problems and desires
and willing to concede where and when possible. Plus he pointed out our
Company is only two years old and is operating against severe competition.
In the meantime on or about January 7, 1961, the employees signed and adopted
a formal "Constitution and Bylaws" of their Association, which was prepared by
Attorney James M. McEwen, of Tampa, and which provided in part that McEwen's
office should be its headquarters and that the attorney, the business agent, and the
delegates should constitute the Association's representatives.
The General Counsel also offered unrefuted evidence that the ship's officers them-
selves actively participated in the employment of the attorney for the Association.
Thus, Rhea Johnson, a licensed officer, testified that shortly after he was employed
around December 2, 1960, Chief Engineer Blomquist questioned him in the pres-
ence of the other officers, including Acting Captain Fonda, concerning an attorney
in Tampa who might draw up a constitution for the unlicensed personnel. Blom-
quist inquired specifically about McEwen, stating that McEwen was the same
attorney who had drawn up the constitution for the licensed personnel and that
"We are thinking about getting him for the unlicensed personnel, to draw up their
constitution." When Johnson asked if Blomquist was in any hurry, Blomquist told
him to forget about it because they had to have it done rapidly to qualify for an
approaching election or some such thing.
Johnson testified further that Acting Captain Fonda made the remark several
times, in the presence of both licensed and unlicensed personnel, that the Company
would never enter into negotiations with NMU, calling it a "Nigger union," and
adding that because of the rotary method under which NMU operated its hiring
hall, the Company could not screen the personnel and decide who was to come
aboard the vessel.
C. Concluding findings
1. The refusal to bargain
As previously stated, Respondent defends its refusal to bargain with NMU on
the basis of a single contention which may be stated as follows: The loss of
8 Concerning that entry Secretary Watkins testified that "The president [Wilson] asked
the company officials present if they would recognize the delegates from each department
in settling any disputes about the unlicensed personnel and the company agreed to recog-
nize the delegates elected."
Though President Wilson testified at first that the Association was neither accepted nor
rejected, he then added that he could remember nothing on that particular point.
GULFCOAST TRANSIT COMPANY 193
majority by NMU, which resulted from the economic strike and the permanent
replacement of all the strikers, was such an unusual circumstance as to absolve
Respondent from its obligation to bargain with NMU during the certification year.
The leading case on this point is Ray Brooks v. N.L.R.B., 348 U.S. 96, which
affirmed the enforcement by the Court of Appeals for the Ninth Circuit (204 F. 2d
899) of the Board's decision at 98 NLRB 976. As the Supreme Court stated the
issue, it involved the duty of an employer toward a duly certified bargaining agent
if, shortly after the election which resulted in the certification, the union has lost,
without the employer's fault, a majority of the employees from its membership.
The Court reviewed and approved the Board's "working rule" that a certification
based on a Board-conducted election must be honored for a "reasonable" period,
ordinarily "one year," in the absence of "unusual circumstances," and it cited as
examples of "unusual circumstances" as found by the Board the following three
situations: (1) The certified union dissolved or became defunct; (2) as a result
of a schism, substantially all the members and officers of the certified union trans-
ferred their affiliation to a new local or international; and (3) the size of the
bargaining unit fluctuated radically within a short time.
Commenting that the issue was open before it, the Court cited as examples of
its own earlier decisions in which an employer was required to bargain for a
reasonable period, despite a union's loss of majority, Franks Bros. Company v.
N.L R.B., 321 U.S. 702, and N.L.R.B. v. Mexia Textile Mills, Inc., 339 U.S. 563.
The Court continued:
Petitioner contends that whenever an employer is presented with evidence
that his employees have deserted their certified union , he may forthwith refuse
to bargain. In effect, he seeks to vindicate the rights of his employees to select
their bargaining representative. If the employees are dissatisfied with their
chosen union, they may submit their own grievance to the Board. If an em-
ployer has doubts about his duty to continue bargaining, it is his responsibility
to petition the Board for relief, while continuing to bargain in good faith at
least until the Board has given some indication that his claim has merit.
Although the Board may, if the facts warrant, revoke a certification or agree
not to pursue a charge of an unfair labor practice, these are matters for the
Board; they do not justify employer self-help or judicial intervention. The
underlying purpose of this statute is industrial peace. To allow employers to
rely on employees' rights in refusing to bargain with the formally designated
union is not conducive to that end, it is inimical to it. Congress has devised
a formal mode for selection and rejection of bargaining agents and has fixed the
spacing of elections, with a view of furthering industrial stability and with due
regard to administrative prudence.
Respondent argues that the Brooks case is distinguishable on its facts because
here there was no repudiation of the Union by the employees who voted for it,
but that instead a new set of employees, in defiance of the Union, selected a different
representative by forming the opposing Association. Respondent advances, how-
ever, no persuasive reason why the claimed distinction renders inapposite the princi-
ples of Brooks or requires any difference in results . Since it does take issue with
other cases which the General Counsel and the Union cite in further support of their
position, we turn to those cases.
Reliance Clay Products Company, 115 NLRB 1736, involved the precise situation
involved here, i.e , an economic strike, followed by replacement of the strikers and
by a refusal to bargain within the certification year on the ground that the union no
longer represented a majority. The Trial Examiner (whose report was adopted by
the Board) found the Brooks case to be controlling, and held that: "Alleged, or
even actual, loss of majority during the 1-year period is not such an `unusual' cir-
cumstance as will justify an employer's repudiation of the certified union as the
statutory representative of the employees " However, the Trial Examiner com-
mented in a footnote that the respondent offered no proof of the fact that a majority
of its current employees were not supporters of the union.
The Court of Appeals for the Fifth Circuit ordered enforcement, per curium
(245 F. 2d 599), stating in part: "Replacement of all or a part of the strikers with
no proof that such employees no longer desired the Union to renresent them did not,
within the twelve months following certification terminate the Union's authority or
the obPeation of the Employer to bargain with it as the exclusive representative."
Other decisions of that court, however, show that it does not consider actual re-
pudiation and loss of maioritv to be a decisive factor. See. e .g., N.L R.B. v. Sansotr
Hosiery Mills, Inc., 195 F. 2d 350 (cited by the Supreme Court in the Brooks case,
634449-62-vol. 135-14
194 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
supra, as sanctioning the Board's position on the certification year rule), and Parks
et al. v. Atlanta Printing etc. Union, 243 F. 2d 284, where the court, citing Brooks,
referred to the status of a certified union as alone decisive.
Indeed, though the General Counsel offered the proof, missing in Reliance, that
NMU had suffered an actual loss of majority, that fact was not decisive under
Brooks, where an actual loss occurred without fault of the employer, or under the
other cases which the General Counsel and Union rely upon. Thus, in Clark &
Lewis Co., 122 NLRB 865, enfd. 274 F. 2d 817 (C.A. 5), there had been a 100-
percent repudiation of the union during the certification year. The Trial Examiner,
whose report was adopted by the -Board, nevertheless held the Brooks case to be
controlling, commenting in part that, "Whenever the 1-year rule applies, as it does
in this case, the Board ordinarily dismisses all petitions seeking to raise a question
concerning representation filed at any time before the end of the certification year in
order to protect both the bargaining agent and the employer from disturbance
during that period."
Rockwell Valves, Inc., 115 NLRB 236, was such a representation case. The union
was certified on January 15, 1955, but was unsuccessful in reaching agreement with
the employer, and on June 19 most of the employees went on strike. The employer
hired permanent replacements , most of whom indicated that they did not wish to
be represented by the union. The employer filed his RM petition November 22,
contending the union no longer represented a majority of the employees. The
Board held:
The Board has consistently held, with judicial approval [citing Ray Brooks],
that, absent unusual circumstances not here present, a Board certification will
be treated as identifying the statutory bargaining representative with certainty
and finality for a period of 1 year; and, in order to protect the bargaining
relationship from disturbance during that period, it is the policy of the Board,
in cases like the one at bar, to dismiss all petitions filed at any time before
the end of the certification year.
Genesee Foundry Company, Incorporated, 109 NLRB 1253, was another com-
plaint case in which a majority of the employees repudiated the certified union
(Steelworkers) during the course of a strike by signing cards authorizing the Molders
to act as their exclusive bargaining representative. The company promptly recog-
nized the Molders and executed a contract with that union. The Board found,
in agreement with the Trial Examiner, that by recognizing Molders, the company
violated Section 8(a) (5) of the Act, stating:
The principal matter in contention is the validity of the Board's certification-
year rule. The Respondent maintains that because the Molders obtained a card
majority, the Respondent was duty bound to bargain with it, notwithstanding
the fact that the defection in the Steelworkers' ranks occurred during the certifi-
cation year. The board has consistently held, with the approval of the great
weight of court decisions, that a certified union's majority status, in the absence
of unusual circumstances, is conclusively presumed to continue for 1 year
following certification. In the instant case , the employees' repudiation of the
Steelworkers, the incumbent Union, and their affiliation with the Molders, do
not constitute such unusual circumstances within the certification year as to
impair the Steelworkers' representative status. We see no reason for departing
from our usual rule.
There is no significant distinction between Genesee and the present case, where
NMU occupied the same position as Steelworkers, and the Association occupied the
same position as Molders.
Though less directly in point, West Fork Cut Glass Company, 90 NLRB 944,
is in accord with the foregoing holdings. There a strike occurred during the certi-
fication year and was followed by the -replacement of a substantial number of
strikers and by the crossing of the picket line by a majority of the employees who
continued to work. The company contended that those facts presented such "un-
usual circumstances" as to justify its questioning of the union's majority, since the
repudiation of the union showed that the union no longer represented a majority
of the employees. The Board held in part that even were it to assume that the non-
striking employees attempted to repudiate the union by continuing to work during
the strike, it would "find that the Respondent was obligated to bargain with the
Union, as the Board and the courts have consistently held that a certification is
binding despite a clear attempt by the employees to repudiate the union."
The conclusions which I draw from the foregoing decision are as follows: (1) A
loss of majority by a certified union during its certification year, even without fault
GULFCOAST TRANSIT COMPANY 195
,on the employer's part , does not , absent unusual circumstances , absolve the em-
ployer from his obligation to bargain ; and (2 ) that the repudiation of the union
should occur during the course of a strike, either with or without a permanent
replacement of the strikers , does not constitute such an unusual circumstance as to
affect that obligation.
I therefore conclude and find that on and after November 16, 11960 , Respondent
refused to bargain with NMU as the exclusive bargaining representative of Respond-
ent's unlicensed personnel by:
(a) Recognizing and dealing with the Association as the representative of said
employees with respect to rates of pay, wages , hours of employment , and other
conditions of employment.
(b) Dealing with the Association concerning , and adjusting, complaints and
grievances of the employees without giving NMU an opportunity to be present at
the adjustment . Section 9 ( a); Federal Telephone and Radio Company, a Division
of International Telephone and Telegraph Corporation , 107 NLRB 649; Hughes
Tool Co., 56 NLRB 981, enfd. with modification 147 F . 2d 69 (C.A. 5).
(c) Negotiating with NMU in bad faith and with no intention of reaching an
agreement.6
2. Assistance and support
The Association 's minutes (posted on Respondent's bulletin board ), together with
the unrefuted testimony of Watkins and Wilson, showed that Respondent con-
tinued to deal with the Association after November 16, 1960 ( as it had before), on
a wide variety of grievances , on working conditions, and on other terms of em-
ployment while NMU, the certified representative of the employees , was barred
from the ship . Respondent also permitted the Association to use its facilities and
equipment to hold meetings , to conduct Association business , and to post minutes
(which disclosed on their face the fact of Respondent's dealings ). Respondent's
licensed personnel also lent further assistance in preparing copies of the Association's
minutes and in procuring the services of an attorney.
Assistance and support of the foregoing types have traditionally been found to
fall under the proscription of Section 8(a) (2) of the Act. See, e g., The Multi-
Color Company, 1,14 NLRB 1129; Mt. Clemens Metal Products Company, 126
NLRB 1297. Indeed , Respondent 's conduct was more flagrant than that presented
in the normal or typical case of unlawful support, in that its assistance of, and
dealings with , the Association occurred during the certification year and at a time
when Respondent was denying to NMU access to the employees and refusing to
bargain with it. I conclude and find that by the conduct summarized in the fore-
going paragraph , Respondent unlawfully assisted and supported the Association in
violation of Section 8(a)(2) and (l) of the Act.
IV. THE REMEDY
Having found that Respondent engaged in certain unfair labor practices, it will
be recommended that Respondent cease and desist therefrom and that it take cer-
tain affirmative action of the type conventionally ordered in such cases, as pro-
vided in the recommended order below, which is found to be necessary to remedy
and remove the effects of the unfair labor practices and to effectuate the policies of
the Act. As the evidence does not indicate such an attitude of opposition to the pur-
poses of the Act generally that a commission of other types of unfair labor prac-
tices is reasonably to be anticipated, the order provides that Respondent cease and
desist from engaging in further conduct of the types herein found and from any like
or related conduct. Cf. The Multi-Color Company, 122 NLRB 429, 466; Mt.
Clemens Metal Products Company, 126 NLRB 1297, 1310.
Upon the basis of the foregoing findings of fact and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. All unlicensed personnel aboard the vessel SS Martha Mac, including person-
nel in the deck, engineer, and steward departments, excluding office clerical em-
9 The evidence of Respondent's pre-10(b) conduct furnished both light and support for
that finding, which is, however, based independently on Johnson's testimony concerning
the statements made by Fonda and Blomquist and Miller's testimony that Respondent's
position on the issues ( including insurance coverage and denial of access to the employees
while recognizing and dealing with the Association), remained unchanged at the meeting
of J.inuary 24, 1961.
196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployees and all supervisors defined in the Act , constitute a unit appropriate for the
purposes of collective bargaining within the meaning of Section 9 ( b) of the Act.
2. NMU has been at all times since February 8, 1960 , the exclusive representative
of all employees in the aforesaid unit for the purposes of collective bargaining within
the meaning of Section 9(a).
3. By refusing to bargain with NMU since November 16, 1960 , Respondent has
engaged in and is engaging in unfair labor practices proscribed by Section 8(a)(5)
and (1).
4. By interfering with the administration of the Association and by contributing
financial or other support to it, Respondent has, since November 16, 1960, engaged
in and is engaging in unfair labor practices proscribed by Section 8(a)(2) and (1).
5. The aforesaid unfair labor practices affect commerce within the meaning of
Section 2(6) and ( 7) of the Act.
[Recommendations omitted from publication.]
Titan Metal Manufacturing Co. and United Steelworkers of
America, AFL-CIO; United Steelworkers of America, AFL-
CIO, Local 5649. Case No. 20-CA-1969. January 12, 1962
DECISION AND ORDER
On September 21,1961, Trial Examiner James R. Hemingway issued
his Intermediate Report in the above-entitled proceeding, finding
that Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that Respondent cease and desist
therefrom and take certain affirmative action, as set forth in the
Intermediate Report attached hereto. The Trial Examiner also rec-
ommended that all other allegations of the complaint be dismissed.
Thereafter, the Charging Party filed exceptions 1 to the Intermediate
Report and a supporting brief. The Respondent filed a reply 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 Rodgers and Fanning].
The Board has reviewed the Trial Examiner's rulings and finds that
no prejudicial error was committed. The rulings are hereby affirmed.
The Board has considered the Intermediate Report, the exceptions
and briefs, and the entire record in this case, and hereby adopts the
findings, conclusions, and recommendations of the Trial Examiner.'
ORDER
The Board adopts the Recommended Order of the Trial Examiner
with the modification of provision 2 (d) to read : "Notify said Regional
i Subsequent to the filing of its exceptions , the Charging Party requested permission to
withdraw its exceptions insofar as they relate to the Trial Examiner's dismissal of the
Section 8 ( a) (5) allegation of the complaint . The request is granted.
' Member Rodgers finds it unnecessary to a consideration of this case to decide whether
an economic striker once permanently replaced has a right to reinstatement if at the time
of application for reinstatement his replacement is no longer employed by the Employer.
Accordingly . he would not adopt the Trial Examiner's comments in this regard.
135 NLRB No. 22.