118 N.L.R.B. 1481 (N.L.R.B. 1957)

International Longshoremen's Association

National Labor Relations Board - Board DecisionsSep 30, 1957

118 N.L.R.B. 1481 (N.L.R.B. 1957)

INTERNATIONAL LONGSHOREMEN'S ASSOCIATION 1481 Upon the basis of the above findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS or LAW 1. Newspaper Guild of Buffalo, Local #26, American Newspaper Guild (AFL- CIO), is a labor organization within the meaning of Section 2 (5) of the Act. 2. By attempting to cause Niagara Falls Gazette Publishing Corporation to dis- criminate in regard to hire and tenure of employment in violation of Section 8 (a) (3) of the Act, the Union has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (b) (2) of the Act. 3. By restraining and coercing employees in the exercise of the rights guaranteed in Section 7 of the Act, the Union has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (b) (1) (A ) of the Act. 4. The aforesaid labor practices are. unfair labor practices affecting commerce, within the meaning of Section 2 (6) and (7) of the Act. [Recommendations omitted from publication.] International Longshoremen 's Association , Independent , William V. Bradley, its president , and Patrick J. Connolly, its executive vice president and chairman of its wage scale committee, Atlantic Coast District and New York Shipping Association, Inc., and its employer-members, named in Appendix "A" attached hereto. Case No. 2-CB-1841. September 30, 1957 DECISION AND ORDER On January 14, 1957, Trial Examiner Albert V. Wheatley issued his Intermediate Report in the above-entitled proceeding, finding that the Respondents had engaged in and were engaging in certain unfair labor practices, and recommending that they cease therefrom and take affirmative action, as set forth in the copy, of the Intermediate Report attached hereto. Thereafter, the Respondents and the General Counsel filed exceptions and 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, Bean, and Jenkins]. The Board has reviewed the Trial Examiner's rulings made at the hearing and finds that no prejudicial error was committed. The rul- ings are hereby affirmed a 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 recommendations of the Trial Examiner. 1 The Respondents ' request for oral argument is denied as, in our opinion , the record, together with the exceptions and briefs , fully presents the issues and the positions of the parties. 8 Although we disagree with the Trial Examiner in his rejection of the offer by the Respondents of the record in Case No. 2-RC-8388 as part of the record in the Instant case, we note that he, nonetheless , admitted such evidence in the record for another reason . Under the circumstances , we find that his ruling , although erroneous , was not prejudicial. 118 NLRB No. 199. 1482 DECISIONS OF NATIONAL LABOR RELATIONS BOARD THE REMEDY After the hearing and the issuance of the Intermediate Report in this proceeding, the Respondents filed a motion with the Board to dis- miss the case and the complaint upon which it is based as moot on the basis of events which occurred subsequent to the issuance of the Intermediate Report acid the filing of exceptions and briefs with the Board. The events in question, referred to in the motion, concern the execution of a "Memorandum of Settlement," presumably by the Charging Party and the Respondents, at some time subsequent to the issuance of the Intermediate Report, which indicate an alleged broad- ening of the scope of the bargaining unit. It is not clear from the notion as to whether the Charging Party alone, or in conjunction with associations in other ports, entered into such an agreement, nor are any of the other terms of the agreement made known, nor are any other facts relating to its execution disclosed. In any event, however, it is well-established Board policy, approved by the courts, that the issues of an unfair labor practice proceeding do not become moot by virtue of the abandonment by a party of a practice condemned by .3the statute after such issues have been litigated in Board proceedings' Even assuming the facts asserted by the Respondents-although, as indicated, the motion does not make them clear-we are convinced that the policies of the Act can best be effectuated by an order requiring the remedial action set forth hereinafter. It will be noted that in our Order we provide that the Respondents shall cease and desist from demanding that any agreement reached with the Charging Party cover employees in a unit other than that found appropriate in the repre- sentation proceeding and from resorting to economic pressure to force the Charging Party to agree that a collective-bargaining agreement reached with the Charging Party cover employees in a unit other than the one found appropriate so long as the certification remains out- standing and "said association insists on confining the negotiations to the unit found appropriate in said case." We thus make it clear that the remedial action herein contained is applicable to circumstances wherein the Respondents make demands or resort to economic action in support of demands of the type upon which the instant complaint is predicated and the Charging Party insists on confining the negotia- tions in conformity with the outstanding certification. We do not pass on any other circumstances or provide remedial action therefor. As we have found in agreement with the Trial Examiner, and in accordance with the recent decision by the Court of Appeals for the Second Circuit 4 affirming a decision by the District Court in the in- 3 N. L. R. B. v. F. H. McGraw and Company , 206 F. 2d 635 , 641 (C. A. 6 ) ; N. L. R. B. v. Oertel Brewing Company, 197 F. 2d 59 (C. A. 6). 4 Douds V. International Longshoremen 's Association, Independent, et at, (New York Shipping Assn .), 241 F. 2d 278 (C. A. 2). INTERNATIONAL LONGSHOREMEN'S ASSOCIATION 1483 junction proceeding arising out of the facts upon which the present complaint is predicated, that the Respondents as a matter of law, refused to bargain within the meaning and intent of Section 8 (b) (3) of the Act by pressing their demand for coastwide bargaining after the Employers insisted on confining the negotiations to the certified bargaining unit, we find that the issuance of a remedial order will carry out the basic purpose of a bargaining order-namely, to en- courage the making of collective-bargaining contracts compatible with the Act. Accordingly, we shall provide for appropriate remedial action on the part of the Respondents. 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 orders that the Respondents, International Long- shoremen's Association, Independent, its officers, representatives, and agents, including William V. Bradley, its president, and Patrick J. Connolly, its executive vice president, shall : 1. Cease and desist from : (a) Demanding that any agreement reached with the New York Shipping Association, Inc., cover employees in any unit other than the unit found appropriate for collective-bargaining purposes in Case No. 2-RC-8388 so long as the certification issued in that case remains outstanding and the New, York Shipping Association, Inc., insists upon confining the negotiations to the unit found in said case. (b) Resorting to economic pressure, including strike action or threat of such action to force the New York Shipping Association, Inc., to agree that any agreement reached with said association cover em- ployees in any unit other than the unit found appropriate for collective-bargaining purposes in Case No. 2-RC-8388 so long as the certification issued in that case remains outstanding and said as- sociation insists on confining the negotiations to the unit found appropriate in said case. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (a) Post at its places of business in all ports from Portland, Maine, to Brownsville, Texas, copies of the notice attached hereto and marked "Appendix B." I Copies of said notice, to be furnished by the Re- gional Director for the Second Region, shall, after being duly signed by the ILA's representative, be posted by the ILA immediately upon receipt thereof, and be maintained by it for sixty (60) consecutive days thereafter, in conspicuous places, including all places where notices 6 In 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." 1484 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to its members are customarily posted. Reasonable steps shall be taken by the ILA to insure that said notices are not altered, defaced, or covered by any other material. (b) Additional copies of Appendix B, to be furnished by the said Regional Director, shall be signed by a representative of the ILA and forthwith returned to said Regional Director. These notices shall be posted, New York Shipping Association, Inc., willing, in all loca- tions where notices to employees of members of said association are customarily posted. (c) Notify the aforesaid Regional Director for the Second Region in writing, within ten (10) days from the date of this Order, what steps have been taken to comply herewith. APPENDIX A LIST OF EMPLOYER -MEMBERS OF NEW YORK SHIPPING ASSOCIATION, INC. Steamship Lines and Agents Alcoa Steamship Company, Inc. 17 Battery Place, New York City 4 American -Israeli Shipping Co., Inc. 19 Rector Street, New York City 6 Anchor Line, Ltd. Charles Hill & Sons, Inc., Agents 1 Broadway , New York City 4 Belgian Line, Incorporated 63 Broad Street , New York City 4 Boise-Griffin Steamship Co., Inc. 90 Broad Street , New York City 4 Boyd, Weir & Sewell, Inc. 24 State Street , New York City 4 Bull-Insular Line, Inc. 115 Broad Street, New York City 4 A. L. Burbank & Company, Ltd. 120 Wall Street, New York City 5 Cosmopolitan Shipping Company, Inc. 42 Broadway , New York City 4 Dichmann , Wright & Pugh, Inc. 44 Whitehall Street, New York City 4 East Coast Overseas Corp. 90 Broad Street , New York City 4 Ellerman's Wilson Line New York, Inc. 24 State Street , New York City 4 Farrell Lines, Incorporated 26 Beaver Street, New York City 4 French Line Compagnie Generale Transatlantique 17 State Street , New York City 4 Furness, Withy & Co., 34 Whitehall Street, New York City 4 Grace Line, Inc. 3 Hanover Square, New York City 4 Holland-America Line 29 Broadway , New York City 6 Isbrandtsen Company, Inc. 26 Broadway , New York City 4 Italian Line "Italia" Society di Navigazione 24 State Street, New York City 4 American Export Lines, Inc. 39 Broadway, New York City 6 American President Lines, Ltd. 29 Broadway, New York City 6 Argentine State Line 24 State Street, New York City 4 Barber Steamship Lines, Inc. 17 Battery Place, New York City 4 Black Diamond Steamship Corp. 39 Broadway, New York City 6 Booth American Shipping Corporation 17 Battery Place, New York City 4 Bristol City Line of Steamships, Ltd. Charles Hill & Sons, Inc., Agents 1 Broadway, New York City 4 Chilean Line Compania Sun-Americana De Vapores 29 Broadway, New York City 4 Cunard Steamship Company, Ltd. 25 Broadway, New York City 4 East Asiatic Company, Inc. 103 Front Street, New York City 5 Thor Eckert & Company, Inc. 19 Rector Street, New York City 6 James W. Elwell & Co., Inc. 17 State Street, New York City 4 Fern Line Messrs. Fearnley & Eger, Inc. 39 Broadway, New York City 6 Funch, Edye & Co., Incorporated 25 Broadway, New York City 4 Garcia & Diaz, Incorporated 25 Broadway New York City 4 Hellenic Lines, Ltd. 39 Broadway, New York City 6 International Freighting Corporation, Inc. 17 Battery Place, New York City 4 Isthmian Lines, Inc. 71 Broadway, New York City 6 Java Pacific Line, Inc. 25 Broadway, New York City 4 Kerr Steamship Company, Inc. 32 Pearl Street, New York City 4 INTERNATIONAL LONGSHOREMEN 'S ASSOCIATION 1485 Lloyd Brasileiro 17 Battery Place, New York City 4 Marine Transport Lines, Inc. 11 Broadway , New York City 4 Moller Steamship Company, Inc. 30 Broad Street , New York City 4 North Atlantic & Gulf Steamship Co., Inc. 120 Wall Street , New York City 5 Norwegian America Line Agency, Inc. 24 State Street , New York City 4 O. S. K. Line (Osaka Shosen Kaisha, Ltd.) 17 Battery Place, New York City 4 Pan-Atlantic Steamship Corporation 19 Rector Street, New York City 6 Prudential Steamship Corporation 17 State Street, New York City 4 Seas Shipping Company, Inc. 39 Cortlandt Street, New York City 7 South Atlantic Steamship Line 17 Battery Place, New York City 7 Stevenson Lines T. J. Stevenson & Co., Inc. 80 Broad Street , New York City 4 Torm Lines North Atlantic and Gulf Steamship Company, Inc., Agents 120 Wall Street, New York City 5 United States Lines Company 1 Broadway , New York City 4 Ward-Garcia Corporation Pier 34, North River, New York City 13 Luckenbach Steamship Company, Inc. 120 Wall Street , New York City 5 Moore-McCormack Lines, Inc. 5 Broadway, New York City 4 Newtex Steamship Corporation 52 Wall Street , New York City 5 Norton, Lilly & Company 26 Beaver Street, New York City 4 N. Y. K. Line (Nippon Yusen Kaisha) 24 State Street , New York City 4 Panama Canal Company 21 West Street, New York City 6 Pope & Talbot, Inc. 19 Rector Street, New York City 6 Royal Netherlands Steamship Company 25 Broadway , New York City 4 Seatrain Lines, Inc. 711 Third Avenue, New York City 17 States Marine Corporation 90 Broad Street , New York City 4 Stockard Steamship Corporation 17 Battery Place, New York City 4 Transportadora Grancolombiana, Ltda. 52 Wall Street , New York City 5 Transportadora Maritima Venezolana, S. A. (Venezuelan Line) 44 Whitehall Street, New York City 4 United States Navigation Co., Inc. 17 Battery Place, New York City 4 Contracting Stevedores Allports Stevedoring Co., Inc. 390 Plandome Road , Manhasset, N. Y. American Stevedores, Inc. 90 Broad Street , New York City 4 Anchor Stevedoring Co., Inc. 518 Hamilton Avenue, Brooklyn 32, N. Y. Atlantic Stevedoring Co., Inc. 17 Battery Place, New York City 4 John T. Clark and Son 17 State Street , New York City 4 Commercial Stevedoring Co., Inc. 42 Broadway , New York City 4 John Dowd Company 95 Broad Street , New York City 6 T. Hogan & Sons, Inc. 531 West 19th Street , New York City 11 Imparato Stevedoring Corp. 50 Church Street , New York City 7 International Elevating Company 2 Broadway , New York City 4 Lipsett Stec ] Products, Inc. Ft. of Doremus Avenue, Port New- ark, New Jersey Marra Bros., Inc. 725 Court Street , Brooklyn 31, N. Y. Alpha Marine Industries, Inc. 138 Van Dyke Street, Brooklyn 31, N. Y. American Sugar Refining Co . of N. Y. 120 Wall Street, New York City 5 Associated Operating Co. 25 Broadway , New York City 4 Bay Ridge Operating Co., Inc. 34 Whitehall Street, New York City 4 Columbia Stevedoring Company, Inc. 17 Battery Place, New York City 4 Daniels & Kennedy, Inc. 290 South Street, New York City 2 Federal Stevedoring Co., Inc. 10 Java Street , Brooklyn 22, N. Y. M. P. Howlett, Inc. 17 State Street , New York City 4 Independent Warehouses, Inc. 415-427 Greenwich Street, New York 13 International Terminal Operating Co., Inc. 27 Whitehall Street, New York City 4 Logue Stevedoring Corporation 415 Lexington Avenue, New York City 17 Maher Stevedoring Corp. Port Authority Bldg. #79, Port Newark, New Jersey 1486 DECISIONS OF NATIONAL LABOR RELATIONS BOARD R. Martorella & Co., Inc. 82 Wall Street, New York City 5 John W. McGrath Corporation 39 Broadway, New York City 6 Morace Stevedoring Corporation 17 State Street, New York City 4 Pittston Stevedoring Corp. 17 Battery Place, New York City 4 F. Rinaldi & Company 116 Broad Street, New York City 4 Rosar Service Corp. Foot of 19th Street, Brooklyn, N. Y. Seaboard Contracting Company, Inc. 8th Street Pier, Hoboken, New Jersey Jules S. Sottnek Company, Inc. 17 Battery Place, New York City 4 States Terminal Corporation Pier 51, Foot of Jane Street, North River, New York City 14 Triboro Stevedoring Corp. 171 West Street, Brooklyn 22, N. Y. United States Stevedoring Corp. 11 Broadway, New York City 4 Weeks Stevedoring Co., Inc. 90 West Street, New York City 6 Contracting Allied Maritime Services, Inc. 75 West Street, New York City 6 Atlantic Piers Co., Inc. Maude-James, Inc. 121-31st Street, Brooklyn, N. Y. Mersey & Hudson Wharfage Corpora- tion 17 Battery Place, New York City 4 Nacirema Operating Co., Inc. 21 State, Street, New York City 4 Ramar Stevedores, Inc. 80 Wall Street, New York City 4 D. J. Roach, Inc. 42 Broadway, New York City 4 M. J. Rudolph Co., Inc. 8-12 Sackett Street, Brooklyn 31, N. Y. Sealand Dock & Terminal Corp. 10 Java Street, Brooklyn 22, N. Y. Sottnek Terminal Corp. 17 Battery Place, New York City 4 Standard Terminals, Inc. 80 Broad Street, New York City 4 Transoceanic Terminal Corporation 63 Broad Street, New York City 4 Turner & Blanchard, Inc. 24 State Street, New York City 4 Universal Terminal & Stevedoring Corp. 24 State Street, New York City 4 Whitehall Operating Co., Inc. 25 Beaver Street, New York City 4 Checker and Clerk 17 Battery Place, New York City 4 Beard's Erie Basin, Inc. 21 State Street , New York City 4 Hamilton Pier Checkers, Inc. 17 Battery Place, New York City 4 Packett Shipping Corporation 39 Broadway , New York City 6 United Port Service Company 26 Beaver Street , New York City 4 Anchor Terminal Service Co., Inc. 90 Broad Street , New York City 4 Bayway Terminal Division Penn-Texas Corporation 666 South Front St., Elizabeth, N. J. Fifth Street Pier Corporation Foot of Fifth Street, Hoboken, N. J. Hickey Stevedoring Co., Inc. 518 Hamilton Avenue, Brooklyn 32, N. Y. Howland & Liesegang, Inc. Foot of 20th Street, Brooklyn 32, N. Y. Contracting Maintenance O'Kane Marine Repair Company Kent Equipment Corporation 1024 Jefferson Street, Hoboken, 10 Java Street, Brooklyn 22, N. Y. N. J. Contracting Marine Carpenters Anbar Marine Company 559 Third Avenue, Brooklyn 15, N. Y. Chelsea Ship Repair Corporation 400 West 23d Street, New York 11 Dayton Contracting Co., Inc. 9315 Ft . Hamilton Parkway, Bklyn, N. Y. Anderson-Linton Lumber Co., Inc. 160-42d Street, Brooklyn 32, N. Y. Court Carpentry & Marine Contractors Co., Inc. 12-20 Union St., Brooklyn, N. Y. Daniel J. Devaney, Inc. 708 Court Street, Brooklyn 31, N. Y. INTERNATIONAL LONGSHOREMEN'S ASSOCIATION 1487 E. G. Griffith Company, Inc. 161 Remsen Street , Brooklyn, N. Y. Frank J. Holleran 616 Court Street , Brooklyn 31, N. Y. Lee & Palmer, Inc. 4209 Farragut Road, Brooklyn, N. Y. Modern Wood Caulking Company 333 Smith Street, Brooklyn 31, N. Y. Timmins Lumber Co., Inc. 688 Court Street, Brooklyn 31, N. Y. Hamilton Marine Contracting Co., Inc. 807 Third Avenue, Brooklyn 32, N. Y. Hooper Lumber Co., Inc. Kane and Columbia Streets, Bklyn, N. Y. Marmarine Contracting Co., Inc. 75 De Graw Street, Brooklyn 2, N. Y. Quin Lumber Co., Inc. - 43 Van Brunt Street , Brooklyn 2, N. Y. Waterfront Lumber Co., Inc. 657 Court Street, Brooklyn 31, N. Y. Contracting Cargo Repairmen Lynch & Donohue & Dee, Inc. 8-10 Bridge Street, New York City 4 APPENDIX B NOTICE TO ALL MEMBERS OF INTERNATIONAL LONGSHOREMEN'S ASSOCIATION, INDEPENDENT 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, we hereby notify you that : 117E WILL NOT demand that any agreement reached with the New York Shipping Association, Inc., cover longshoremen in any port other than in the port of Greater New York and vicinity so long as the certification issued in Case No. 2-RC-8388 remains out- standing and the New York Shipping Association, Inc., insists upon confining the negotiations to the unit found appropriate in said case. I`rE WILL NOT resort to economic pressure , including strike action, or threat of such action, to force the New York Shipping Associ- ation, Inc., to agree that any agreement reached with said associ- ation cover longshoremen in ports other than in the port of Greater New York and vicinity so long as the certification issued in Case No. 2-RC-8388 remains outstanding and the New York Shipping Association, Inc., insists upon confining the negotiations to the twit found appropriate in said case. INTERNATIONAL LONGSIHOREMEN'S ASSOCIATION, INDEPENDENT, Labor Organization. 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. 1488 DECISIONS OF NATIONAL LABOR RELATIONS BOARD INTERMEDIATE REPORT STATEMENT OF THE CASE On October 25, 1956, International Longshoremen's Association, Independent, herein called ILA, was certified as the exclusive bargaining agent for certain employees (longshoremen) in the port of Greater New York and vicinity.' Before and after this certification and after the Employers involved (through the New York Shipping Association, Inc.) attempted to confine the negotiations to negotiations on behalf of employees who were within the unit found appropriate by the Board, the ILA pressed demands that negotiations not be limited to employees (longshoremen) in the port of Greater New York and vicinity but be on behalf of employees (longshore- men) in a coastwide unit .2 The principal issues herein are (1) whether the ILA, as a matter of law, refused to bargain within the meaning and intent of Section 8 (b) (3) of the National Labor Relations Act, as amended (herein called the Act), by pressing this demand after the certification and after the Employers' efforts to confine the negotiations to a unit of employees of the port of Greater New York and vicinity (to the unit found appropriate by the Board), and (2) whether the ILA pressed this demand to such an extent that its conduct, in fact, amounted to bad-faith bargaining- whether the ILA approached the bargaining table with a fixed determination not to bargain except on the basis of a coastwide unit. PRELIMINARY MATTERS Before discussing matters pertinent to the merits of the issues noted above, the undersigned believes it appropriate to discuss certain preliminary matters. On October 17, 1956, pursuant to a Decision and Direction of Election issued by the Board on September 24, 1956,3 an election by secret ballot was conducted among the following employees of the members of the New York Shipping Association: All longshore employees engaged in work pertaining to the rigging of ships, coaling of same, loading and unloading of cargoes, including mail, ships' stores and baggage, handling lines in connection with the docking and undocking of ships, including hatch bosses; cargo repairmen, checkers, clerks and timekeepers and their assistants, includ- ing head receiving and delivery clerks; general maintenance, mechanical and miscel- laneous workers; horse and cattle fitters, grain ceilers, and marine carpenters, in the port of Greater New York and vicinity, but excluding superintendents, hiring agents, hiring foremen, dock foremen, dock bosses, chief clerks, and all other supervisors as defined by the Act. The ILA received a majority of the votes and, on October 25, 1956, was certified as the exclusive collective-bargaining representative of the employees in said unit. The charge involved herein was filed on October 23, 1956, and alleges that the ILA refused to bargain in good faith on various dates "including October 22, 1956, September 4, 1956, and August 1, 2, 9, and 27, 1956." The complaint herein was is- sued on November 21, 1956, and alleges that the ILA refused to bargain "on various dates, including August 2, August 13, August 20, August 27, September 4, October 22, October 25, October 26, October 29, and October 30, 1956, and between November 7 and November 15, 1956 and up to the present time. .. The first amended charge was filed December 14, 1956, and alleges that the ILA refused to bargain in good faith "on various dates, between August 1, and November 21, 1956." On December 14, 1956, an Order Amending Complaint was issued amending the complaint by adding thereto a paragraph stating that copies of the amended charge were served upon Respondents. As noted above, the complaint as originally issued was based upon a charge which alleged bad-faith bargaining during August, September, and to and including October 22, 1956. However, this complaint alleged bad-faith bargaining not only during the periods specified in the charge but also after October 22, 1956. On December 14, 1956, an amended charge was filed alleging bad-faith bargaining before and after 3 Case No. 2-RC-8388. Decision and Direction of Election reported in 1.16 NLRB 1183. 2 The demand, insofar as it is pertinent herein, was that bargaining be for a unit of all longshoremen in all ports from Portland, Maine, to Brownsville, Texas (including the port of New York), or for all longshoremen working for members of the New York Ship- ping Association in all ports from Portland, Dlaine, to Brownsville, Texas (including the port of New York). 3 The Board's Decision and Direction of Election is reported in 116 NLRB 1183. In the hearing to determine the unit for the election (and for the purposes of collective bargaining) the ILA contended that the unit should be a eoastwide unit. The Board did not find this unit appropriate but ordered that the election be in the unit noted above (the port of Greater New York and vicinity). INTERNATIONAL LONGSHOREMEN'S ASSOCIATION 1489 October 22 and the complaint was amended by adding a paragraph thereto stating that copies of the amended charge were served upon Respondents. In Case No. 2-RC-8388, which was pending before this Board from July 31 to October 25, 1956, this Board in its Decision and Direction of Election (issued September 24, 1956) found, inter alia, that a question of representation affecting commerce existed. Re- spondents assert that the original charge is fatally defective and should have been dis- missed because during the period specified in that charge there existed a question concerning representation and a prerequisite to a finding of a refusal to bargain under Section 8 (b) (3) of the Act is a subsidiary finding that no question concerning rep- resentation existed at the time of refusal to bargain-a subsidiary finding that the labor organization involved is the representative for the purposes of collective bargaining of the employees concerned.4 Respondents further assert that the amended charge is not properly an amended charge-that the original charge being fatally defective could not be corrected by amendment-and that the instant proceedings based on a com- plaint sounding on the amended charge should be dismissed. Similar contentions were made in Douds v. International Longshoremen's Associ- ation, Independent, et al., 147 F. Supp. 103.5 In that case Hon. Frederick Bryan, United States District Judge, ruled adversely to Respondents. He concluded that the complaint deals with a violation related to the one involved in the charge 6 and that the complaint was based in substantial part at least on acts subsequent to October 25, 1956, and that allegations of the complaint which relate to acts of the ILA during the period when it was under no duty to bargain are irrelevant. Judge Bryan predi- cated his decision on the assumption that there was no duty to bargain during the period covered by the charge and did not pass upon the contention that even though no duty to bargain existed while a question concerning representation was pending, once the parties undertook to negotiate they were obliged to negotiate in good faith. In William D. Gibson Co.,7 110 NLRB 660, the Board held that while a question of representation exists, an incumbent union 8 and the employer may make a new contract. In that case the Board found that an employer did not engage in an unfair labor practice when it continued recognition of an incumbent union and executed a new contract with the incumbent union, 3 days after it received a request from a rival union and 1 day before it received a copy of the rival union's petition for certifica- tion. In holding that an employer may continue "normal contractual relations" with an incumbent union during the pendency of a representation proceeding the Board stated that stability in industrial relations requires that continuity in collective- bargaining agreements be encouraged,9 even though a rival union is seeking to dis- place an incumbent (see General Electric Company, 110 NLRB 1109). As the Trial Examiner reads the cases noted above, especially the Gibson case, an incumbent union and an employer are not under obligation to bargain while a ques- tion concerning representation exists but may continue "normal contractual relations" and, if they undertake to continue " normal contractual relations ," 10 they are obliged to negotiate in good faith. In view of the foregoing the Trial Examiner rejects Respondents' assertions that the charge herein is fatally defective and that therefore the complaint should be dismissed." 4 Succinctly stated, Respondents claim that a charge which alleges a refusal to bar- gain on a specified date is fatally defective if, in fact, on that date there was a question concerning representation pending. 5 The above noted case involves a petition for a temporary injunction pursuant to Section 10 (j) of the Act, which was filed after issuance of the complaint involved herein. The U. S. District Court for the Southern District of New York issued the temporary injunction and that matter is now pending before the U. S. Court of Appeals for the Second Circuit. The decision by the District Court discusses practically all of the prob- lems involved herein and frequent reference thereto is made in this report. 9 See National Licorice Company v. N. L. It. B., 309 U. S. 350, 369. 7 Cited with approval in Electric Auto-Lite Company, 116 NLRB 788, and in Jersey. Contracting Corp., 112 NLRB 660, 663. 8 It is clear that the ILA herein is an "incumbent union" within the meaning of the decisions of this Board. 9 Stability in industrial relations could not be achieved if bad-faith bargaining were permitted during negotiations freely entered into. 18 It is clear that in the matter under consideration the parties involved undertook to continue "normal contractual relations" within the meaning of the decisions of this Board. u In reaching the conclusions noted above the Trial Examiner has assumed that a ques- tion concerning representation exists during the entire period between the filing of a 450553-58-vol. 118-95 1490 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondents offered in evidence the record made in Case No. 2-RC-8388 (1) to challenge the Board's findings with respect to appropriate bargaining unit and (2) to show that the unit which Respondents sought was not an inappropriate unit. The General Counsel (in the District Court) 12 objected, taking the position that the Board's unit findings in the representation proceeding are not subject to review herein and that Respondents violated the Act even if the unit which the ILA sought was not inappropriate. Judge Bryan rejected Respondent's proffer. In the case before Judge Bryan the General Counsel was proceeding on the theory that Respondents, as a matter of law, refused to bargain by continuing to press its demands for a coast- wide unit after the Board had determined that the appropriate unit consisted of employees of the port of Greater New York and vicinity and after the Employers had insisted upon negotiating solely for employees who were within the unit found ap- propriate by the Board (for employees who were within the unit of the port of Greater New York and vicinity). In the matter before the Trial Examiner the General Counsel is proceeding on alternative theories-the one noted above and in the alternative that the conduct of Respondents in the light of the entire evidence amounted to (was in fact) bad-faith insistence upon a coastwide unit. The Trial Examiner is bound by the Board's unit findings in the representation proceeding and the record made in that proceeding is not admissible evidence in this matter on the theory that the Board's findings with respect to unit are erroneous. Also, on the theory advanced by the General Counsel in the case before Judge Bryan the record in the representation case is not admissible in evidence in the matter before the Trial Examiner. However, it appears to the Trial Examiner that on the alternative theory advanced by the General Counsel it is material and relevant to Respondents' good or bad faith 13 and is admissible in evidence in this matter. REFUSAL TO BARGAIN A. As a matter of law At the hearing before the Trial Examiner Respondents conceded that after the certification the 1LA continued to press as one of its major demands that the negotia- tions concern employees in a coastwide unit, that the Employers objected to bar- gaining on this basis and insisted that the negotiations concern only the employees in the unit found appropriate by the Board (in Case No. 2-RC-8388), and that after the Employers took the position noted above, Respondents continued to press as one of its major demands that the negotiations concern employees in a coastwide unit. After the circumstances noted in the preceding paragraph the ILA called a strike which began at midnight November 15, 1956. It is clear from the record herein that this strike was an economic pressure by the ILA to enforce its major demands and that one of its major demands was coastwise bargaining. Assuming that the coastwide unit sought was not an inappropriate unit and that the ILA represented a majority of the employees in this unit,14 it appears to be con- ceded herein that after the certification the ILA was at liberty to demand bargaining on a coastwide basis and the Employers were at liberty to agree to bargain on this basis. However, the General Counsel asserts that after the certification the Em- ployers were also at liberty to restrict bargaining to a "port of Greater New York and vicinity" basis and that when they (the Employers) exercised this right and insisted that the negotiations concern only the employees in the unit found appro- priate by the Board, Respondents were no longer at liberty to press the demand for bargaining on a coastwide basis and that efforts to do so constitute unfair labor practices within the meaning and intent of Section 8 (b) (3) of the Act. Respond- ents contend that, as a matter of law, the ILA was not required to confine the negotia- tions in the manner insisted upon by the Employers and that whether bargaining petition for certification and the final issuance of a certification and finds it unnecessary to pass upon contentions that this is not a fact. 12 By stipulation the record herein consists primarily of the record made in the District Court and a resumk of the facts and arguments adduced is set forth in Douds v. Inter- national Longshoremen's Association, Independent et al., supra. 33 The record in Case No. 2-RC-8388 contains evidence bearing upon the history of collective bargaining between the Respondents and the Employers involved herein. (See New York Shipping Association, Inc, et al., 116 NLRB 1183.) 14 However, the General Counsel in his Brief to the Trial Examiner states "it is not conceded that this unit (the coastwide unit sought] is appropriate, or that the ILA, represents a majority in the proposed unit." INTERNATIONAL LONGSHOREMEN'S ASSOCIATION 1491 should be on a "port of Greater New York and vicinity" basis or on a coastwide basis was in itself a bargainable matter.15 This issue was considered by Judge Bryan, in Douds v. International Longshore- men's Association, Independent, et at., supra, and Judge Bryan, after noting that the ILA and the Employers were at liberty voluntarily to negotiate on a coastwide basis, stated: 16 Once one of the parties, in this case the Association, insisted on confining the negotiations to the certified appropriate bargaining unit , it was entirely within its rights in so doing. Nor could the ILA then insist upon bargaining for a larger unit because were it permitted to do so it would in effect vitiate the Board's certification and be in a position to compel the Association against its will to disregard the Board's certification. Thus the ILA may have been entirely within its rights in the first instance in asking the Association to negotiate for a contract for all coast ports, and the Association could have accepted this proposal if it wished. But once the Asso- ciation made it unequivocally clear that it was prepared to negotiate only for the unit certified by the Board, the ILA had no right to continue to demand that the unit certification of the Board be disregarded. To permit the ILA to do so would frustrate the Board's statutory duty to determine the appropriate unit. For, by the economic pressure of a strike or lock-out, the stronger party could force the other to accept the unit desired by it in complete disregard of the Board's determination. The Union was not entitled to compel the employer to accept that demand [the demand for coastwide bargaining] by the use of economic pressures, in- cluding strike, because such a demand was outlawed by the determination of the Board that the appropriate bargaining unit was confined to the port of New York and the insistence of the Association that bargaining be limited to that unit. In Anheuser-Busch, Inc., 102 NLRB 800, the Board was confronted with an issue of whether certain production-maintenance workers should be represented on a single- unit basis or on a multiunit basis and after indicating that a single comprehensive unit was appropriate for the purposes of collective bargaining stated (pages 812-813) : . our unit findings here impose upon the AFL Unions, through the AFL Joint Board, in the event they win the election we direct, the duty to bargain only on the basis of the unit or units hereafter found appropriate. At the same time, our unit findings relieve the Employers of all responsibility to deal with any representative, hereafter certified, on the basis of any unit or units different in composition or scope from those we determine to be appropriate, and insure to them the right to invoke our aid against any attempt of any union to compel negotiation on any basis inconsistent with our findings. In Comfort Slipper Corporation, 111 NLRB 188, the Board found as a unit ap- propriate for the purposes of collective bargaining a unit broader than that sought by the petitioner and directed an election in the unit found. In view of this finding the Board gave the petitioner an option to withdraw its petition or go through the election and noted in footnote 8 on page 190: It is clear, however, that our unit finding relieves the Employer of all re- sponsibility to deal with the Petitioner, if certified, on the basis of any unit other than that found appropriate herein. Anheuser-Busch, Inc., 102 NLRB 800, at 812, 813. The Trial Examiner finds and concludes that, as a matter of law, the ILA refused to bargain within the meaning and intent of Section 8 (b) (3) of the Act by pressing 15 Although the parties have cited various cases bearing on the matter under consid- eration, no case squarely in point has been cited. Furthermore, the Trial Examiner has not found any decision, other than Douds v. International Longshoremen's Association, Inde- pendent, et at., supra, establishing that demands for a bargaining unit other than the unit certified after the other party to the negotiations insists on confining the negotia- tions to the certified unit constitutes or does not constitute a violation of the Act. 14 Judge Bryan has expressed well the Trial Examiner's thoughts about this matter and his rationale noted above is hereby adopted. 1492 DECISIONS OF NATIONAL LABOR RELATIONS BOARD its demand for coastwide bargaining after the Employers insisted on confining the negotiations to the certified bargaining unit. Since one of the chief reasons why the ILA resorted to strike action was to enforce its demand for coastwide bargaining and since this was not a legitimate reason, the strike was for an unlawful purpose. It is well settled that where an unlawful reason is a motivating cause, the coexistence of separate lawful reasons do not eliminate the unlawful aspect of the conduct. See N. L. R. B. v. Remington Rand, Inc., 94 F. 2d 862, 872 (C. A. 2), cert. denied 304 U. S. 576 and 304 U. S. 585. In view of the foregoing findings and conclusions and since the remedy which the Trial Examiner deems appropriate is the same whether the ILA refused to bargain as a matter of law or refused to bargain by approaching the bargaining table with a fixed determination not to bargain except on the basis of a coastwide unit, the Trial Examiner is not making detailed findings of fact concerning the negotiations which led to the complaint involved herein and is not passing upon the alternative theory of the General Counsel that the ILA pressed its demands for coastwide bar- gaining to such an extent that its conduct, in fact, amounted to bad-faith bargaining.'' For similar reasons, the Trial Examiner is not determining whether the ILA violated the Act by pressing its demand for coastwide bargaining prior to the certification and prior to the Employers' insistence that negotiations concern only the employees in the unit found appropriate by the Board. The first conference at which the Employers insisted upon limiting the negotiations to the unit found appropriate by the Board and at which the ILA continued to press its demands for a coastwide unit occurred on or about October 26, 1956. Accordingly, the Trial Examiner finds that on this date and thereafter the ILA refused to bargain within the meaning and intent of Sec- tion 8 (b) (3) of the Act.18 ULTIMATE FINDINGS AND CONCLUSIONS In summary, the Trial Examiner finds and concludes: 1. The evidence adduced in this proceeding satisfies the Board's requirements for the assertion of jurisdiction herein.19 2. International Longshoremen's Association, Independent, is a labor organization within the meaning of Section 2 (5) of the Act. 3. William V. Bradley is president of the ILA and one of its agents for the purposes of collective bargaining. 4. Patrick J. Connolly is executive vice president of the ILA and one of its agents for the purposes of collective bargaining. 5. All of the following described employees of the employer-members of the New York Shipping Association constitute a unit appropriate for the purposes of col- lective bargaining within the meaning of Section 9 of the Act: All longshore employees engaged in work pertaining to the rigging of ships, coaling of same, loading and unloading of cargoes, including mail, ships' stores and baggage, handling lines in connection with the docking and undocking of ships, including hatch bosses; cargo repairmen, checkers, clerks and timekeepers and their assistants, including head receiving and delivery clerks; general maintenance , mechanical and miscellaneous workers; horse and cattle fitters, grain ceilers, and marine carpenters, in the port of Greater New York and vicinity, but excluding superintendents, hiring agents, hiring foremen, dock foremen, dock bosses, chief clerks, and all other supervisors as defined by the Act. 6. ILA was on October 17, 1956 , and at all times since has been, the exclusive bar- gaining representative within the meaning of Section 9 (a) of the Act, of all employees in the aforesaid unit for the purposes of collective bargaining. 7. The evidence adduced herein establishes that the ILA has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (b) (3) of the Act, by pressing demands for coastwide bargaining after the Employers insisted on con- fining the negotiations to the certified bargaining unit. 8. The aforesaid unfair labor practice affects commerce within the meaning of Section 2 (6) and (7) of the Act. 17 See Modern Linen & Laundry Service, Inc., 116 NLRB 1974. 28 In view of the findings and conclusions made herein, the Trial Examiner hereby re- jects Respondents' proffer of the record made in Case No. 2-RC-8388. (See section above entitled "Preliminary Matters.") 11 The unfair labor practice involved here affects the operations not only of the steam- ship and stevedore companies in the port of Greater New York who are members of the New York Shipping Association, Inc., but also steamship and stevedore companies in the other ports along the Atlantic and gulf coasts. Millions of dollars of cargo move through these ports annually in interstate and foreign commerce. ADAMS COAL COMPANY, INC. 1493 9. It is not necessary or prudent to rule upon the contention that the ILA pressed demands for coastwide bargaining to such an extent that its conduct, in fact, amounted to bad-faith bargaining within the meaning of Section 8 (b) (3) of the Act. [Recommendations omitted from publication.] Adams Coal Company, Inc. and Coal, Gasoline , Fuel Oil Team- sters, Chauffeurs , Helpers, Oil Burner Installation , Mainte- nance Service Men and Helpers Local 553, IBT , AFL-CIO, Petitioner . Case No. 2-RC-8810. September 30,1957 DECISION AND DIRECTION OF ELECTIONS Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Harry F. Knowlton, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. 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 certain em- ployees of the Employer. 3. Enterprise Association, Metal Trades Branch of Local 638, United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, AFL- CIO, herein called the Plumbers, asserts that the petition is barred by a contract between it and the Employer, covering the oil burner men and installation men, effective from April 4, 1955, until June 30, 1957, and thereafter until a new contract is executed, absent 60 days' notice of modification or termination given by either party to the other. We find no merit in this contention for, apart from other considerations, the petition herein was filed on April 15, 1957, 15 days prior to the Mill B date of contract. 4. The Petitioner seeks an overall unit of truckdrivers, helpers, yard- men, and oil burner installation and servicemen at the Employer's New York City location. The Employer agrees that the unit sought by the Petitioner is appropriate. The Plumbers, however, assert that the appropriate unit is one limited to the oil burner installation and service employees represented by it. The Employer sells fuel oil and coal. It employs yardmen to load and unload coal and fuel oil, truckdrivers and. helpers to deliver these products, and oil burner installation and servicemen to repair oil burners and heating equipment. The oil burner installation and serv- icemen have different working hours and grievance procedures, are paid on a different payroll, and have somewhat higher skills than yard- men and truckdrivers. In addition, as previously noted, they have been separately represented by the Plumbers since at least 1955. 118 NLRB No. 202.