International Organization of Masters

National Labor Relations Board - Board Decisions

Sep 8, 1975

220 N.L.R.B. 164 (N.L.R.B. 1975)

164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
International Organization of Masters , Mates and Pi-
lots, AFL-CIO and Seatrain Lines, Inc. Case 2-
CE-68
September 8, 1975
DECISION AND ORDER
By MEMBERS FANNING, JENKINS, AND PENELLO
On April 30, 1975 Administrative Law Judge Mor-
ton D. Friedman issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief and the Charging Party filed a
brief in answer to Respondent's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,' and
conclusions I of the Administrative Law Judge and
to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that Respondent International Organization
of Masters , Mates and Pilots, AFL-CIO, New York,
New York, its officers , agents, and representatives,
shall take the action set forth in the said recommend-
ed Order.
1 In his Decision, the Administrative Law Judge inadvertently referred to
Anndep Shipping Corporation as "Anndepp."
2 In its exceptions, Respondent contends, as it did before the Administra-
tive Law Judge, that it in no way prevented Seatrain from doing business
with any other person within the meaning of Sec. 8(e) of the Act by seeking
to arbitrate Seatrain's failure to comply with the clause of its collective-
bargaining agreement with Respondent which required, as a condition pre-
cedent to the sale of vessels owned by Seatrain or its affiliates, the execution
by the purchaser of a contract with Respondent. In this regard, Respondent
argues that it has made no attempt to prevent the sale of the two vessels
involved herein and has not engaged in coercive action against Seatrain or
the purchasers of the vessels, but rather has merely sought, pursuant to its
contract with Seatrain, damages for the latter's breach of the aforemen-
tioned clause. In concluding that Respondent's attempt to enforce that pro-
vision of the contract through arbitration was unlawful, the Administrative
Law Judge rejected this contention by Respondent based on his finding,
inter alia, that Respondent has not limited its demands to mere damages,
but has sought to force Seatrain to secure the manning of the two vessels by
its members.
We agree with the Administrative Law Judge's conclusion in this regard,
but find additional support therefor. Thus, Respondent, in invoking arbitra-
tion proceedings, has demanded from Seatrain damages for "lost wages .. .
and contributions . . . for the period of time that the T/T Williamsburgh
was, is and remains manned by licensed deck officers other than [those
covered by Respondent's current collective-bargaining agreement]." These
damages, which Respondent 's contract with Seatrain empowers the arbitra-
tor to impose , presumably would continue to mount until such time as
Seatrain secures from the purchasers the execution of Respondent 's agree-
ment . While Respondent has not through its demand for damages in fact
prevented Seatrain from selling its vessels , this factor does not insulate
Respondent 's conduct from the proscription of Sec . 8(e) which , by its very
terms , makes unlawful agreements to cease doing business "whether express
or implied." The Board has long held that where an agreement permits the
doing of business , but only under extremely onerous conditions , such an
agreement impliedly prohibits the doing of business . See Amalgamated Li-
thographers of America (Ind.) and Local No. 17 of the Amalgamated Lithogra-
phers of America (Ind.), 130 NLRB 985, 987-988 ( 1961). Seatrain's potential
liability for open -ended damages , demanded by Respondent pursuant to its
collective-bargaining agreement , imposes such onerous conditions upon
Seatrain's sale of its vessels as to clearly fall within this category.
DECISION
STATEMENT OF THE CASE
MORTON D. FRIEDMAN , Administrative Law Judge: This
case was heard on January 13, 14, and 17 , 1975, at New
York City upon the complaint of the General Counsel is-
sued December 17, 1974, and a charge filed by Seatrain
Lines, Inc., herein called the Charging Party or Seatrain,
on October 1, 1974. The complaint alleges that the Respon-
dent, International Organization of Masters , Mates and Pi-
lots, AFL-CIO, herein called the Respondent or MM&P,
has violated and is violating Section 8 (e) of the Act. The
Respondent 's answer , while admitting certain allegations
of the complaint , denies the commission of any unfair la-
bor practices and alleges certain affirmative defenses. At
the close of the hearing , the parties waived oral argument.
Thereafter the Respondent, the Charging Party, and the
General Counsel filed briefs in support of their respective
positions.
Upon the entire record and from my observation of the
demeanor of the witnesses , and with due consideration giv-
en to the contentions advanced by the parties at the hear-
ing and in their briefs, I make the following:
FINDINGS OF FACT
1. BUSINESS OF AFFECTED EMPLOYERS
Seatrain, a Delaware corporation, maintains an office
and place of business in the city and State of New York
and is engaged in the business of owning and operating
oceangoing vessels which are used in the transportation
of goods and commodities in interstate and foreign com-
merce. During the year immediately preceding the issuance
of the complaint herein, a representative period, Seatrain
derived gross revenues in excess of $1 million from its busi-
ness operations.
Seatrain Shipbuilding, Inc., herein called Shipbuilding, a
wholly owned subsidiary corporation of Seatrain, is en-
gaged in the business of constructing, building, and selling
ships. In the years immediately preceding the issuance of
the complaint herein, Shipbuilding has constructed super-
tankers called the T/T Brooklyn and T/T Williamsburgh.
General Electric Credit Corporation, herein called
GECC, a wholly owned subsidiary of General Electric Co.,
220 NLRB No. 52
INTERNATIONAL ORGANIZATION OF MASTERS 165
is engaged in the business, among other things, of the pur-
chasing and leasing of capital equipment, including, inter
alia, vessels and ships . Seatrain , Shipbuilding, and GECC
are employees and persons engaged in commerce within
the meaning of Section 2(1), (2), (6), and (7) and Section
8(e) of the Act.
11. THE LABOR ORGANIZATION INVOLVED
As hereinafter set forth, it is found that MM&P is a
labor organization within the meaning of Sections 2(5) and
8(e) of the Act.
111. THE UNFAIR LABOR PRACTICES
A. Background and Issues
By contract effective June 16, 1972, through June 15,
1975, Seatrain and MM&P agreed that if Seatrain or any of
its subsidiaries or affiliated companies transferred any of
their vessels either by sale or charter or in any other man-
ner, the purchaser, charterer, or transferee would be re-
quired to execute a collective-bargaining agreement with
MM&P. In substance, the complaint alleges that Ship-
building constructed two supertankers and thereafter
transferred the ownership of the same to GECC which, in
turn, bareboat chartered (without crew) the said vessels to
other companies; that thereafter MM&P demanded arbi-
tration with regard to Seatrain's and Shipbuilding's viola-
tion of the aforementioned contract clause, and that this
action on the part of MM&P constituted a reaffirmance of
the aforesaid clause which violates Section 8(e) of the Act,
and that thereby, by the reaffirmance of the contract,
MM&P has violated and is in violation of Section 8(e) of
the Act.
As noted above, MM&P denies the commission of any
unfair labor practices. Affirmatively, MM&P avers, among
other defenses, that the subject matter of the complaint
herein should be deferred to the grievance and arbitration
procedures of the aforesaid collective-bargaining agree-
ment pursuant to the policy of the Board to defer to arbi-
tration, where such arbitration will satisfactorily dispose of
the issues presented, and will conform to the requirements
that such arbitration and the decision of the arbitrator will
not be repugnant to the policies of the Act. In connection
with the foregoing, the Respondent contends that the arbi-
tration machinery set up would satisfy all of the Board's
requirements for deferment and would satisfactorily dis-
pose of the matters alleged as violations in the complaint.
The answer further affirmatively pleads that in demanding
arbitration pursuant to the grievance and arbitration pro-
cedures of the collective-bargaining agreement, the Re-
spondent did not in any way seek to require Seatrain or
any of its subsidiaries to cease or refrain from handling any
products or to cease doing business with any other person;
that all that MM&P required was arbitration with regard
to damages its members suffered by reason of Seatrain's
failure to honor the provisions of the collective-bargaining
agreement and, further, the agreement itself contained no
obligation on the part of Seatrain to cease doing business
with any other person. Furthermore, the answer of MM&P
alleges that the sales of the T/T Brooklyn and T/T Wil-
liamsburgh were not made in the regular course of
Seatrain's business but were isolated events and did not
constitute "doing business" within the meaning of Section
8(e). Finally, the answer states that the Offshore Division
of MM&P, which is the only division involved herein, can-
not be reached as a violator of Section 8(e) of the Act
because the contract as drawn up between the parties re-
quires only that Seatrain treat with the Offshore Division
and that such Offshore Division confines its membership
to individuals who are supervisors within the meaning of
the Act. Therefore, according to the answer, the Offshore
Division is not a labor organization within the meaning of
the Act.
In addition to the affirmative defenses, at the hearing
and in its brief, the Respondent further contends that the
entire transaction from Seatrain, to Shipbuilding, to
GECC, and finally to the individuals to whom GECC
bareboat chartered the said vessels was of such a nature
that, in reality, the companies to whom the bareboat char-
ters were made are substantially controlled by Seatrain so
that such companies are, in effect, related to Seatrain and
that, therefore, their employees are employees of Seatrain
and, therefore, GECC, the charterers, and their subcon-
tractors are not "other persons" within the meaning of Sec-
tion 8(e) of the Act. Additionally, Respondent contends
that the allegedly offensive clause of the contract was
framed and entered into only for the purpose of preserving
the jobs of the members of the Offshore Division of
MM&P and has no secondary boycott purposes of in any
way to prevent Seatrain, or any of its subsidiaries, from
doing business with any other employer or person.
Thus the issues are framed.
B. The Collective-Bargaining Agreement Provisions and
Events Leading to the Filing of the Charge Herein
The pertinent portions of the collective-bargaining
agreement, which was entered into between Seatrain and
MM&P some time in June of 1969, read as follows:
SECTION V. VESSELS BOUND BY THE
AGREEMENT
1. Coverage of the Agreement
a. Vessel Coverage. This agreement covers the Li-
censed Deck Officers employed on ocean-going U.S.-
flag vessels, owned, operated or bareboat chartered
(both at present or at any time during the life of this
Agreement) by the Company or any of its subsidiaries
or affiliates (whether so at present or at any time dur-
ing the life of this Agreement) as an owner, agent,
operator or bareboat charterer.
b. Subsidiary and Affiliate. The term "subsidiary" or
"affiliate" shall be deemed to include any business en-
tity whether corporate, partnership, trust, individual,
or otherwise, which is effectively controlled by or ef-
fectively controls the Company either directly or indi-
rectly.
2. Sales and Transfers
a. With regard to any sale, charter (but not including
166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a vessel which the Company may be operating under a
bareboat charter and the charter is terminated) or any
manner of transfer (except sales to foreign flag) of the
Company's vessel:
i. At least seventy-two (72) hours prior to the date
of the effective transfer of the vessel, written notice
must be given to the Organization by the Company.
ii. The execution by the purchaser, charterer or
transferee of the Organization's collective bargaining
agreement shall be a condition precedent to any sale,
charter or transfer.
iii. If the Company violates subsection 2(a)(ii)
above, the Arbitrator may include as part of his
award, loss of wages and contributions to the various
Organization Plans.
iv. A violation of subsection 2(a)(ii) above shall
also permit the Organization to cancel the no-strike
provisions of this Agreement."
Section 2 is the portion of the agreement claimed by the
Charging Party and the General Counsel to be violative of
Section 8(e) of the Act. Also, it should be noted that sec-
tion 2.a.iii of the above-quoted portion of the bargaining
agreement relates to the arbitration provisions of the agree-
ment which read as follows:
SECTION XXXVI GRIEVANCE PROCEDURE
AND ARBITRATION
* • s s
All disputes relating to the interpretation or perfor-
mance of this Agreement which may arise between the
parties to this Agreement shall be determined by a
Licensed Personnel Board consisting of two persons
appointed by the Organization and two persons ap-
pointed by the Company. The parties shall submit any
such dispute for decision by the Board and they agree
to be bound by the decision of a majority thereof. The
Board shall agree to such rules of procedure as it may
deem necessary.
In the event no settlement is reached by the Board,
the issue may be referred to the Arbitrator by either
party for arbitration. The cost of the arbitration shall
be borne equally by the Organization and the Compa-
ny involved.
The parties agree that all questions as to whether a
dispute is arbitrable shall be submitted to and decided
by the Arbitrator; provided however, the Arbitrator
shall be without authority to amend the terms of the
collective bargaining agreement. The parties agree
that all questions concerning the interpretation of an
award made by the Arbitrator shall be re-submitted to
the Arbitrator for a decision.
r * * s
d. In the absence of such final disposition by the
Licensed Personnel Board, the Arbitrator will then
have jurisdiction of the case to render a decision as
Arbitrator. Either party may request a further oppor-
tunity to present additional evidence for the purpose
of the arbitration proceeding. In the absence of any
such request or if the Arbitrator should deny such re-
quest, he will proceed to issue an award without the
need of any further hearings.
* s s s
The foregoing section of the collective-bargaining agree-
ment, which is referred to herein in the singular, is con-
tained actually in two separate agreements executed on the
same day between Seatrain and/or its affiliates and the
MM&P. These separate agreements are virtually identical
in all respects and completely identical in the respects here-
to above set forth. The difference in the agreements is
merely in the phase of the Seatrain's business to which the
particular agreement applies, one agreement being the dry
cargo agreement and the other the tanker agreement. For
the purpose of this decision, however, because the agree-
ments are identical in these respects, I refer to them merely
as "the agreement."
It should be further noted, with regard to the execution
of this Agreement, although the agreement was negotiated
by individual members of an association known as the
American Maritime Association, herein called AMA, in
former years, the AMA executed an overall agreement with
MM&P on behalf of its members. However, in the 1972
negotiations preceding the entry and execution of the
above agreement, MM&P refused to negotiate with the
AMA as a bargaining association and permitted the Asso-
ciation representative in the bargaining sessions only as an
observer. Thereafter, MM&P refused to execute a collec-
tive-bargaining agreement with AMA but insisted on exe-
cuting separate bargaining agreements with each of the
members of AMA. Thus, the agreement, heretofore re-
ferred to, was executed by Thomas F. O'Callaghan, presi-
dent of the MM&P, and officers of Seatrain and its subsid-
iaries.
Shipbuilding, through Langfitt Shipping Corporation, a
wholly owned subsidiary of Seatrain, was engaged in the
building of the T/T Brooklyn for Seatrain, but on or about
December 31, 1973, Seatrain sold the Brooklyn, by means
of a complicated participation agreement to GECC. Al-
though the details of the reason why the Brooklyn was sold
to GECC and not retained by Seatrain are not completely
disclosed by the record, it is obvious that the sale was made
for financial reasons, because the original financing ar-
ranged through Langfitt evidently was inadequate. In any
event, GECC is not in the business of operating ships and,
therefore, it chartered the Brooklyn without crew (bare-
boat) to the East River Steamship Corporation, herein
called East River, which company subcontracted the man-
agement of the vessel to Andepp Shipping Corporation
which then contracted the manning of the Brooklyn by
licensed officers to Westchester Marine Shipping Compa-
ny. As part of the foregoing transaction, and probably to
induce GECC to purchase the vessel, Seatrain agreed to be
an absolute guarantor that East River would fully comply
with all the terms of the charter from GECC to East River.
Additionally, in 1972 Shipbuilding, through another sub-
sidiary of Seatrain known as "Tyler," began building a sec-
INTERNATIONAL ORGANIZATION OF MASTERS
and vessel named the T/T Williamsburgh . Before this sec-
ond vessel was completed , Seatrain obtained a letter of
commitment for its sale to Wilmington Trust as trustee for
GECC . GECC , at the time of the events , herein had con-
tracted to bareboat charter the vessel to Kingsway Tank-
ers, Inc ., herein called Kingsway. Again, Westchester
agreed through Andepp, to furnish the officers and crew
for the Williamsburgh . Westchester has a collective-bar-
gaining agreement with Marine Engineers Benevolent As-
sociation , a rival labor organization to MM&P , for the offi-
cer manning of vessels for which Westchester contracts to
furnish such officers.
As a result of the foregoing actions on the part of Sea-
train and its subsidiaries , and in pursuance of the terms of
the 1972 collective-bargaining agreement between Seatrain
and MM&P, on April 17, 1974, Captain Robert J. Lowen,
International secretary -treasurer of MM&P and its con-
tract enforcement officer , notified Seatrain by letter as fol-
lows:
Please be advised that we are placing on the agenda of
the Licensed Personnel Board/Arbitration proceed-
ings scheduled for April 24, 1974, our grievance aris-
ing out of your violation of the terms of the current
IOMM&P Offshore Division collective bargaining
agreement by reason of the failure to man the S/S
Brooklyn with IOMM&P licensed deck officers em-
ployed under that agreement.
It should be noted in connection with the foregoing, that
at the time this letter was written , the Brooklyn was already
being manned . It should also be noted in connection there-
with that neither Seatrain , nor any of its subsidiaries nor
GECC, had ever put a crew of any sort aboard this vessel
during any of the preceding period . Shipbuilding had never
been in the operating end of the shipping business , its ac-
tivities being confined strictly to shipbuilding. GECC had
never engaged in the actual operation of any vessel which
it purchased or financed for the reason that GECC was
primarily a financing corporation which purchased vessels
for the purpose of leasing or chartering the same to actual
operators.
Thereafter, before building of the T/T Williamsburgh
was completed , but after the chartering arrangements were
made by GECC to Kingsway, Captain Lowen, on Septem-
ber 18 , 1974, sent a further letter on behalf of MM&P in
which he demanded arbitration regarding:
1. The manning of the T/T Williamsburgh by
IOMM&P licensed deck officers covered by the cur-
rent IOMM&P Offshore Division Collective Bargain-
ing Agreement.
2. The lost wages, including overtime, and contribu-
tions to the various organization plans for the period
of time that the T/T Williamsburgh was, is and re-
mains manned by licensed deck officers other than
IOMM&P Licensed Deck Officers covered by the cur-
rent IOMM&PP Offshore Division Collective Bar-
gaining Agreement.
Thereafter , Seatrain filed an action in United States Dis-
trict Court to enjoin the arbitration and, at about the same
time , filed the charge in this proceeding . Thereafter, the
167
Regional Director petitioned for and obtained from the
same District Court an injunction against MM&P pursuant
to Section 10(1) of the Act.
Thus ' matters stood at the time of the hearing herein
vis-a-vis Seatrain, its subsidiaries, GECC, East River,
Kingsway, and MM&P.
C. The Respondent's Defense Regarding Deferral to
Arbitration
As heretofore set forth, the Respondent in its answer to
the complaint herein asserts that the subject matter of the
complaint should be deferred to arbitration pursuant to the
policy of the Board adopted in Collyer Insulated Wire, 192
NLRB 137 (1971), and cases evolving from that policy at
both the Board and the Court levels. Respondent argues
that while there has been no Board case in which an al-
leged 8(e) violation has been deferred to arbitration, it con-
tends that the Board and the courts have extended the
theory and policy of Collyer to cases involving unfair labor
practices other than refusals to bargain involving contract
interpretation. Although the argument in support of
Respondent's contention as set forth in its brief is very
aptly presented at great length, basically, the Respondent
relies upon a troika of three cases, one from the Board, one
from the United States Court of Appeals for the Second
Circuit, and one from the Supreme Court.
In substance, the Respondent contends that the policy
set forth in Collyer, supra, requires rejection of Board juris-
diction because the matter set forth in the complaint in-
volves an industrial relations dispute subject to contractu-
ally established grievance and arbitration machinery and
such machinery should be invoked and utilized even if the
conduct complained of is, arguably, also an unfair labor
practice.
In support of the foregoing, the Respondent cites Wil-
liam E. Arnold Co. v. Carpenters District Council of Jackson-
ville and vicinity, 417 U.S. 12., which involved in appeal to
the Supreme Court from a Section 301 action commenced
in a Florida state court for damages allegedly resulting
from a jurisdictional dispute. The union defended the ac-
tion upon the ground that inasmuch as the activity upon
which the suit was based was arguably a violation of Sec-
tion 8(b)(4)(D) of the Act, the Board had exclusive jurisdic-
tion of the case and, therefore, the state court of Florida
had no jurisdiction over the subject matter. In disposing of
this question, the Supreme Court cited Collyer with approv-
al, stating, among other things, that the Board's policy of
declining to exercise jurisdiction over arguably unfair labor
practices, which also violate provisions of collective-bar-
gaining agreements for voluntary adjustments of disputes,
highlighted Congressional purpose that Section 301 suits in
state and federal courts should be the primary means for
"promoting collective bargaining that [ends] with agree-
ments not to strike." The court further went on to state that
inasmuch as 8(b)(4)(D) actions arise out of jurisdiction dis-
putes for which the Act makes a provision for out of Board
settlements under Section 10(k) of the Act, the policy of the
Board followed the policy of the Congress in that it is pre-
ferrable, in such cases, to submit the matter to tribunals
other than the Board and that, in this respect, the Board
168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
does not, therefore, have exclusive jurisdiction.
It should be noted, in the above-cited case, that the Su-
preme Court relied heavily in its approval of the Collyer
doctrine upon the 10(k) provision of the Act in providing
for out-of-Board settlements of jurisdictional disputes.
Moreover, the cited case involved a 301 action and not a
Board case involving an alleged violation of the Act. Final-
ly, it should be noted that Section 8(e) was in no way in-
volved in the cited case. Accordingly, the cited case, inso-
far as the instant proceeding is concerned, merely stands
for the proposition that the Supreme Court approves gener-
ally of the Collyer doctrine but does not necessarily ap-
prove of the application of the Collyer doctrine in situa-
tions such as are presented by the facts of the instant case.
The court of appeals case cited by the Respondent in
support of its contention of arbitrability is United Optical
Workers v. Sterling Optical Co., Inc., 500 F.2d 220 (C.A. 2,
1974). The Sterling Optical case also involved a Section 301
action for damages and, although the issue was not before
it, the Circuit Court noted that determination of whether a
clause violates Section 8(e) initially was in the exclusive
jurisdiction of the arbitrator pursuant to the arbitration
provisions of the contract involved in the dispute. Howev-
er, the 8(e) question was not before the Court and the
Court's approval of the arbitrability of Section 8(e) situa-
tions was dicta. Moreover, the Court dicta held that as
between the District Court and the arbitrator, the arbitra-
tor would be the one who had primary jurisdiction to make
the initial determination as to the legality of the alleged
8(e) clause. However, as stated by counsel for the General
Counsel. "The Court was not faced with a situation where
the matter was pending before the Board in some other
form. We do not know if the court would have taken the
same position if the matter simultaneously was before the
Board."
I agree with this statement of counsel for the General
Counsel. The issue of whether the Board or the arbitrator
should have the initial determination of whether the clause
involved herein is violative of Section 8(e), and therefore
unenforceable, was not before the court in the Sterling Op-
tical case. Accordingly, I do not find that that case is dispo-
sitive of the issue of whether the Board in the instant case
would necessarily defer the subject matter of the complaint
herein to the arbitration provisions of the collective-bar-
gaining agreement between MM&P and Seatrain.
The third case cited by Respondent in support of its
deferability argument is the Board case of Electronic Re-
production Service Corp., 213 NLRB No. 110 (1974), which,
Respondent argues, extended the Collyer doctrine holding
that the Board would defer to arbitration without regard to
whether the alleged violation of the Act was presented or
considered in arbitration so long as it could have been pre-
sented. However, although Collyer is mentioned by the
Board in that decision, in actuality, the decision deals with
the extension of the application of the policy set forth by
the Board in Spielberg Manufacturing Company, 112 NLRB
1080 (1955). Spielberg held that the Board would not enter-
tain an unfair labor practice complaint where the subject
matter of the complaint had been submitted to an arbitra-
tor and the arbitrator's award disposed of the subject mat-
ter in a manner not repugnant to the Act. The Electronic
Reproduction Service Corp., case, supra, merely extends
Spielberg to the extent that the arbitrator's award will be
honored and that the Board will defer to it even though
there might not have been a disposition of the question of
the illegality of the allegedly violative act if, in fact, such a
question, or the evidence which would have resolved such
question, was not presented but could have been presented
to the arbitrator. Thus, the cited case refers only to cases
which have already been decided by an arbitrator and not
one where the subject matter has not as yet been submitted
to an arbitrator as envisioned by the Collyer doctrine. In
the instant case there is no assurance that the arbitrator
would necessarily resolve the unfair labor practice issue of
whether the contract provision and MM&P's demand for
arbitration with regard to the sale or other disposition of
Seatrain's vessel is violative of Section 8(e) of the Act. It is
possible that the arbitrator would look beyond the contract
and consider such statutory principles as are necessary to a
resolution of the dispute. On the other hand, in the event of
a conflict between the provisions of the contract and a
principle of Board law, the arbitrator would most likely not
depart from the requirements of the contract, and accord-
ingly, would not, therefore, dispose of the question of
whether the clause herein involved and the request for ar-
bitration violate Section 8(e) of the Act.'
Accordingly, I find and conclude that the cases cited by
the Respondent, whether considered separately or together,
do not demonstrate that the Board in the instant proceed-
ing would defer to arbitration the resolution of the subject
matter involved and, especially, the legality of the contract
clause in question and its attempted enforcement by
MM&P.
There is further reason herein not to defer to arbitration
aside from the foregoing. GECC, Westchester, and An-
depp are not parties to the collective-bargaining agreement
involved. However, they would necessarily have an interest
in the subject matter of this proceeding or of an arbitration
proceeding because the demand for arbitration, as I read it,
requests that there be a resolution of the issue of manning
the vessels. The Board has held that deferral is not war-
ranted in a situation where all the parties who have impor-
tant interest at stake in the unfair labor practice determina-
tion are not parties to the contract and therefore would not
be represented in the arbitration proceeding.'
In addition to all of the foregoing it would seem that
where the very demand for arbitration is alleged as a reaf-
firmance of the allegedly violative contract clause, and,
therefore, the demand could, in and of itself, constitute a
violation of the Act, the issue of whether the demand for
arbitration constitutes a violation of Section 8(e) could not
be deferred because the mere acceptance of the arbitration
by the arbitrator could, in effect, constitute a compounding
of the unlawful act. Accordingly, I find and conclude by
reason of all of the foregoing, that the Board, under its
principles of Collyer, Spielberg and the spate of cases issu-
ing as a result of Collyer, would find the subject matter of
the complaint herein not to be deferrable to the arbitration
procedures of the collective-bargaining agreement in-
volved.
Cf. George Koch and Sons, Inc., 199 NLRB 166, 168 (1972).
Z White Front San Francisco, Inc., 203 NLRB 548 (1973), fn. 2.
INTERNATIONAL ORGANIZATION OF MASTERS 169
D. The Status of MM&P as a Labor Organization
Having disposed of the issue of deferrability , the next
issue which must be resolved is that raised by the
Respondent's contention that MM&P is not a labor orga-
nization within the meaning of the Act . In essence, the
Respondent's contention would seem to be that the real
party in interest on the labor side of the contract is the
Offshore Division of MM&P , a division of the Respondent
which has as members only individuals who are supervisors
within the meaning of the Act and that therefore , there is
no actual labor organization within the meaning of the Act
involved in this proceeding . It would further seem MM&P
is asserting that the fact of MM&P appearing as the signa-
tory organization on the collective -bargaining agreement
with which this proceeding is involved is merely evidence
of a ministerial act; that MM&P is not directly involved
but, rather , involved herein is the allegedly completely au-
tonomous Offshore Division.
To support its contention that MM&P is not a labor
organization and that the Offshore Division is actually the
only organization involved herein , the Respondent relies
upon the testimony of Captain Lowen , the International
secretary -treasurer and International contract enforcement
officer. Also involved are various documents , the most im-
portant of which is the revised constitution of MM&P. Ac-
cording to the constitution of the Respondent , the very
name implies that it consists of ship captains , mates, and
pilots who command ships in harbors , rivers , inland wa-
ters, and other confined areas . MM&P has about 8,600
members and is divided into five subordinate bodies, or
divisions, of which the Offshore Division is one.
According to Captain Lowen , the Offshore Division has
about 5 ,700 members , all of whom work as supervisory,
licensed deck officers on oceangoing ships . I accept this
testimony .3 The Offshore Division has its own bylaws, its
own officers , its own dues , its own property and treasury,
and files its own separate reports under the Labor Manage-
ment Reporting and Disclosure Act. Moreover , according
to Captain Lowen , the Offshore Division has its own inter-
nal membership disciplinary procedures and appeals pro-
cedures and the members do not pay dues to MM&P. They
pay dues only to the Offshore Division which , in turn, pays
a per capita head tax of $7.50 per member to MM&P.
Moreover, Captain Lowen further testified that with re-
spect to collective-bargaining agreements , the Offshore Di-
vision has its own separate negotiating committee , prepares
its own contract demands based upon solicited member-
ship suggestions . Furthermore , any agreement reached by
the negotiating committee must be ratified exclusively by
members of the Division.
Additionally , Respondent points out that article XI, sec-
tion 4 of its constitution delegates to each division the au-
thority to exclusively negotiate the division 's collective-bar-
7 At the hearing , Charging Party's counsel sought to elicit from Captain
Lowen admissions that second and third mates were not actually superviso-
ry employees . However , a careful reading of the testimony , following the
rather lengthy examination of Captain Lowen in this respect, leads me to
conclude that all deck officers , including the second and third officers, are,
indeed , supervisory personnel.
gaining agreements . Moreover, article X, section 3 of the
Offshore Division 's bylaws provide for bargaining proce-
dures and a bargaining committee which is made up only
of members from various sections of the Offshore Division
from the Pacific coast, Atlantic coast , and Gulf coast in
addition to the officers of the Offshore Division . That the
Offshore Division does not represent or seek to represent
any individuals except licensed deck officers on oceango-
ing vessels is borne out not only by Captain Lowen 's cred-
ited testimony but also by article II , section 1 (a) of the
Offshore Division bylaws which provides , "Persons eligible
for membership in this organization shall possess a valid
United States Coast Guard Merchant Marine Officer's li-
cense certificate or other evidence of professional capabili-
ty."
However, both the dry cargo and tanker contracts of
1972 between MM&P and Seatrain , which contracts are
referred to collectively herein as "the contract ," contain no
mention of the Offshore Division but states in section II of
the agreement , the recognition section , that "the Company
recognizes the organization [MM&P] as the sole represen-
tative of its licensed deck officers on U.S . flag oceangoing
vessels for the purpose of collective -bargaining." While the
contract speaks in terms of licensed deck officers, and
makes specific provisions for each grade of such deck offi-
cers , there is , again, no reference therein to the Offshore
Division . Furthermore , the collective-bargaining agree-
ment is signed by Captain T. F. O'Callaghan, Internation-
al president of MM&P.
Captain Lowen admitted that MM&P does have some
members who are employees within the meaning of the
Act. These employees total approximately 225 to 275 out
of a total MM&P membership of approximately 8,600 indi-
viduals . However , none of these statutory employees are
members of the Offshore Division . Rather , they are mem-
bers of the Inland Division, a separate , autonomous divi-
sion of MM&P. Furthermore , none of these statutory em-
ployees are covered by the collective-bargaining agreement
herein , and none of them participate in the selection of any
individuals involved in the negotations of these agreements
or in their ratification . Furthermore , according to Captain
Lowen , none of these employees work for Seatrain or any
of its affiliates or wholly owned subsidiaries.
As study of MM&P's revised constitution as submitted
in evidence herein reveals , although the separate divisions
of the MM&P have authority to negotiate and ratify their
own collective -bargaining agreements , such agreements
must be made in the name of the International Organiza-
tion of Masters , Mates and Pilots. Furthermore, no agree-
ment may be signed by an officer without receiving the
consent of the International President . Moreover, the
Constitution states "No subordinate body shall purport to
make the organization or any other subordinate body a
party to , or refer to it as a separate entity , in any collective
bargaining or other agreement without the express consent
of the International President."4
4 Article 11, section 4 entitled "Collective Bargaining Agreements," p A8
of the constitution of the International Organization of Masters , Mates and
Pilots, as amended to July 1974.
170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Additionally, the same section of the International
constitution provides that the International president is au-
thorized to direct a subordinate body to take a vote to
accept or reject a proposed contract , either by referendum
ballot or by such procedures as outlined in a subordinate
body's bylaws . The section further provides that prior to a
subordinate body's becoming involved in a strike , lockout,
boycott, law suit , or serious difficulty , such subordinate
body shall notify the International President immediately
of the nature of the difficulty and the action contemplated.
If the action to be taken shall involve other subordinate
bodies of other labor organizations the International presi-
dent shall have the authority to modify or prohibit such
action . Additionally , the International officers are elected
by a plurality vote of the "general membership." 5
The constitution further provides that the International
president has the right to "direct that a referendum vote or
a vote by membership meeting be held by the membership
of any subordinate body on any matter , issue , or proposi-
tion when he believes that the welfare of the membership
of the subordinate body would be protected or enhanced
by such action . Also, the constitution provides that the In-
ternational secretary-treasurer shall act as the financial of-
ficer of all fully formed divisions .6
Finally, with regard to the relationship between the In-
ternational and the Offshore Division the constitution
states 7 "the International President shall be the executive
officer of the Offshore and other fully formed divisions.
The International Executive Vice-President shall be the as-
sistant executive officer of the Offshore and other fully
formed divisions . The International Secretary-Treasurer
shall be the financial officer of the Offshore and other fully
formed divisions."
WIthout further reference to any precedent found by the
Board or the courts that MM&P is not a labor organiza-
tion , or that it is not the organization in interest in the
instant proceeding , I conclude from all of the foregoing
that the interrelationship between MM&P International
and its various divisions , or subordinate bodies, is such
that MM&P, together with its constituent organizations
constitute a labor organization within the meaning of the
Act. Its officers are also officers of the subordinate body.
When its officers assert such control as is above recited
over its subordinate bodies and actively participate in the
affairs of the subordinate bodies it cannot be concluded
that MM&P does not "exist for the purpose, in whole or in
part , of dealing with employers concerning grievances, la-
bor disputes , wages , rates of pay, hours of employment or
conditions of work of statutory employees" within the
meaning of the Act.
However, in addition to the foregoing , it should be noted
that the demands for arbitration as contained in the two
letters from MM&P to Seatrain , the first dated April 17,
1974, and the second dated September 18, 1974, are both
on the letterhead of MM&P and are signed by Captain
Lowen, the International secretary -treasurer and MM&P's
contract enforcement officer . These demands for arbitra-
tion clearly demonstrate that the International is the party
involved herein , and that the request for arbitration was
made by the International and that the conduct of such
arbitration proceedings would be in the name of the Inter-
national . From this it can be assumed that such demands
would be made to employers by the International should it
become necessary to request arbitration on behalf of mem-
bers of any division or subordinate body of the MM&P
which subordinate body does , in fact, represent employees
and are clearly labor organizations within the meaning of
the Act . Accordingly , for this reason also I find and con-
clude that MM&P does represent employees and is there-
fore a labor organization within the meaning of the Act,
and is also the party in interest in the contract and griev-
ance proceedings.
Beyond this , the Board and the courts have decided that
MM&P is a labor organization . On June 12 , 1972, the
Board issued its decision and order in International Organi-
zation of Masters, Mates & Pilots, (Marine and Marketing
International Corporation), 197 NLRB 400, (1972), in which
it found that MM&P did not deny that it was a labor orga-
nization. Furthermore , the court of appeals in its affirma-
tion of this decision 8 stated " . . . our own court has re-
cently held that, because MM&P has certain locals
containing statutory `employees ' it constitutes a `labor or-
ganization ' subject to the restrictions of Section 8(b)." See
International Organization of Masters, Mates & Pilots v.
N.L.R.B., 351 F.2d 771, 777 (C.A.D.C. 1965).
I, therefore , find and conclude that MM&P continues to
be and is a labor organization within the meaning of Sec-
tion 2(5) of the Act . With regard to the Respondent's con-
tention that the activity complained of herein involves only
the Offshore Division as the organization in interest, I con-
clude that through applicable principles of Agency law, the
Respondent Union is responsible for the conduct com-
plained of in this case .9 In the instant proceeding it is clear
that Captain Lowen, the International secretary -treasurer,
the same individual who wrote the letter demanding arbi-
tration , also acts as financial officer of all subordinate or-
ganizations including not only the Offshore Division but
the division of MM &P which clearly represents statutory
employees . Additionally, as noted above , the International
constitution provides specifically that no contract shall be
made in the name of any subordinate organization except
the International . Thus , the International , in all respects,
has acted not only as the principal party in the complained
of activity , but also as the agent of the Offshore Division
for the purposes of contract execution , contract enforce-
ment, and financial supervision. Accordingly , even if
MM&P were not the chief party in interest here, it can
certainly be held that it is the agent of the Offshore Divi-
sion and therefore fully responsible for any violations
which may be found upon the facts involved in this pro-
ceeding.10
8486 F .2d at 1273 (1973).
9 Cf. International Organization of Masters, Mates & Pilots v. N.L R B,
3 Article V , section 3 of the constitution supra at 777, Riley-Stocker Construction Co, 197 NLRB 738, 742-743
6 Article V1 , section 1 , subsection (i); section 3 , subsection (m). (1972 ): W. L Crow Construction Co., 192 NLRB 808 , 812-814 (1971).
7 Article IX, section 8 . 10 See International Organization of Masters, Mates & Pilots Marine Divi-
INTERNATIONAL ORGANIZATION OF MASTERS 171
E. The Violations of Section 8(e)
While the Respondent presents a number of contentions
with regard to the validity of its activities and of the clause
of the contract which it seeks to enforce through the de-
manded arbitration proceeding , the primary question to be
resolved is whether the clause in question was designed
merely for the preservation of unit work or whether, in-
stead , it was aimed not at protecting unit employees , that is
employees in this case of Seatrain , against displacement,
but rather at ensuring that if the unit work is transferred
elsewhere the Union itself will not suffer , or, that members
of MM&P outside the unit will be hired. Otherwise put, the
primary issue here is whether the clause in question guar-
antees unit work preservation or whether it is aimed at
secondary employees who, in futuro, might become owners
of or charterers of vessels owned or operated by Seatrain or
any of its subsidiaries . As noted above , the clause in ques-
tion reads, "The execution by the purchaser, charterer or
transferee of the organization 's collective -bargaining agree-
ment shall be a condition precedent to any sale, charter or
transfer."
In a nearly identical factual situation to the case at bar
the Second Circuit Court of Appeals in the case of
N.L.R.B. v. National Maritime Union of America , AFL-CIO
[Prudential-Grace Lines, Inc.], 486 F .2d 907 (1973); cert.
denied 416 U.S. 970 ( 1974), held that a clause similar to the
clause above recited was an illegal union signatory clause
violative of Section 8(e). In that case, Commerce Tankers
Corporation (Commerce) was party to a bargaining agree-
ment with the National Maritime Union (NMU) which
contained a clause which provided, in substance, that if
Commerce sold a ship to an American flag shipper, not
already under contract with NMU, the ship would be sold
with a crew provided by the NMU and Commerce would
obtain from the purchaser an undertaking to abide by the
NMU contract . (It should be noted at this point that the
provision in the Commerce-NMU contract required only
that the purchaser of a vessel from Commerce be required
to agree to abide by the provisions of the collective-bar-
gaining agreement whereas in a case at bar the clause re-
quires that a purchaser or transferee of vessel from Sea-
train, or any of its subsidiaries , be required to execute an
agreement with MM&P for such vessel 's deck officers.) In
any event, Commerce sold the vessel , S/S Barbara, to Van-
tage Steamship Corporation (Vantage) which , together
with its subsidiaries, operated vessels whose employees
were represented by the Seafarers International Union
(SIU). The sale from Commerce to Vantage was made
without first having required Vantage to be bound by the
terms of NMU 's collective-bargaining agreement with
Commerce . When NMU discovered that the sale was oc-
curring, it sought and obtained an arbitration award
against Commerce preventing the sale of the vessel to any-
one unless such person was required to abide by the NMU
contract . Approximately a month thereafter , the arbitra-
tion award was confirmed and a preliminary injunction
issued in favor of NMU by a United States District Court.
In the interim, Vantage filed a charge with the Board alleg-
ing a violation of Section 8(e). Upon consideration of all of
the foregoing facts, the Board and the Court of Appeals, in
enforcing the Board's order, held that, although the ques-
tion was a close one, the purpose of the contract was not to
preserve the jobs of the men aboard the vessel at the time
of the sale but was, rather, for the purpose of preserving
these jobs for NMU members in general. In other words it
was for the purpose of preserving jobs for all members of
the NMU and not for the purpose of preserving the jobs of
the employees who had been employed on the vessel by
Commerce. The court came to this conclusion, as did the
Board, by reason of the fact that it was a practice to re-
move all seamen from a vessel whenever a vessel was sold.
As a consequence, the men working on the vessel lost their
jobs regardless of which union gained control of the vessel.
The Board and the court reasoned that in view of this prac-
tice, there were no jobs to be preserved.
In applying the clause involved in the case at bar to the
facts, there is even a greater weight to be given the reason-
ing of the Board and the court in the cited case. In the case
at bar, neither of the vessels sold to GECC, the Brooklyn
and the Williamsburgh, had ever been manned by any
crew, let alone a crew represented by MM&P. Accordingly,
in this particular instance the clause becomes not one of
work preservation for crews which had manned the Brook-
lyn and the Williamsburgh but, actually, by attempting to
enforce the provision of the contract in question, MM&P
sought to acquire work for its members in the maritime
industry generally. This, in and of itself, renders the clause
and its demanded application unlawful.
Additionally, the demands for arbitration sent by Cap-
tain Lowen on behalf of MM&P to Seatrain on April 17
and September 18, 1974, constituted reaffirmance of the
foregoing contractual provision within the 6 months pre-
ceding the filing of the charge by Seatrain. This is so be-
cause the action by MM&P to enforce the contract by arbi-
tration constituted a new "entering into" within the
provisions of Section 8(e). The Board, in the past, has
found that a unilateral reaffirmation of an 8(e) clause with-
in the 10(b) period is a violation of the Act." The Board
has stated, "In the instant case, the Respondent concedes
that it refused to deliver or sell beer to Angel in May 1961,
because of its contract with the Union. It is plain that the
Respondent was therefore enforcing or `living up to' clause
17(b)(2) of the contract, which we have found to be unlaw-
ful. As we are persuaded that such enforcement, whether
or not it was sought, assented to, or acquiesced in by the
other party to the contract, is within the scope of the prohi-
bition of Section 8(e) against entering into such contract
we accordingly find that the Respondent by complying
with the terms of the unlawful clause, violated that section
of the Act." 12
Accordingly, I find and conclude that by demanding ar-
bitration of the sale of the Brooklyn and the Williamsburgh
and the manning of such vessels, the Respondent in this
case is "living up to" the contractual clause in question and
sion, International Longshoremen 's Association, AFL-CIO, 219 NLRB No 9 11 See Dan McKinney Co., 137 NLRB 649, 654 (1962); cf., Milk Drivers
(1975). and Dairy Employees, Local Union No. 537, 147 NLRB 230, 231 (1964)
12 Dan McKinney Co, supra, 656-657.
172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that the demand for arbitration , therefore , constitutes a
reaffirmation tantamount to "entering into," within the
prohibition of Section 8(e) of the Act.
We come now to other contentions made by the Respon-
dent in support of its argument that its actions are not
prohibited by Section 8(e) of the Act. One contention
which bears consideration is based upon the fact that Sea-
train, as heretofore set forth, specifically , in writing, has
guaranteed in its participation agreement with GECC and
Wilmington Trust that it would remain responsible for any
violation on the part of the bareboat charterer of the T/T
Brooklyn of the terms of the charter agreement . Inasmuch
as East River, the bareboat charterer of the Brooklyn, has
subcontracted, through Andepp Shipping Corporation, for
the manning of the vessel with officer personnel to be sup-
plied by Westchester, Westchester 's employees are employ-
ees of East River. Since Seatrain remains responsible for
any default on the part of East River , Seatrain is thus effec-
tively the employer of Westchester's employees, the deck
officers . Otherwise put, since under the provisions of
Seatrain's guarantee to GECC, East River's obligation and
liabilities are the obligations and liabilities of Seatrain, the
Brooklyn's officers can look to Seatrain for payment of
their salaries , wages, and other benefits . Seatrain is thus
effectively, their employer. Therefore, the impact of the
alleged 8 (e) clause is primary as applied here.
I cannot, through this rather labyrinthian reasoning,
conclude that Seatrain is the employer of the Westchester-
supplied deck officer crew, or that Seatrain has retained for
itself any control over the vessel sold to GECC. There is no
question as to the legitimacy of the transfer of the vessels
to GECC. Therefore, the sale to GECC falls within the
proscription provided in the collective -bargaining agree-
ment that the execution by the purchaser, charterer, trans-
feree of MM&P 's collective-bargaining agreement shall be
a condition precedent to a any sale, charter, or transfer.
The mere fact that Seatrain guaranteed to GECC that it
would save GECC harmless for any loss it might incur
through bareboat chartering the vessel to any ultimate
charterer was part of the inducement for GECC to take
title to the vessel . There is nothing in this guarantee to save
GECC harmless which gives Seatrain control over the
charterer of the vessel from GECC . There does not exist, so
far as the record in this case reveals , any contractual rela-
tionship between Seatrain and East River. Accordingly, I
find this contention to be without merit.
Another contention raised by the Respondent is that the
sale of the T/T Brooklyn and the TIT Williamsburgh were
not sales which would come within the provision of Section
8(e), which states that a contract which provides that an
employer cease "doing business with any other person or
employer." Respondent claims that the sales of the Wil-
liamsburgh and the Brooklyn were isolated; that ordinarily
Shipbuilding builds only for Seatrain or Seatrain subsid-
iaries and affiliates and not for sale to others and that it
was only a financial crisis which caused Seatrain to sell the
vessels . I find no merit in this contention . I find inapposite
the cases cited by the Respondent in support of this argu-
ment . Introduced into evidence was a brochure of Seatrain
Shipbuilding Corporation for circulation to the maritime
industry in which its facilities at the old Brooklyn Navy
Yard in Brooklyn, New York, are depicted and which
show, furthermore, that these facilities were constructed
for the. building of vessels which certainly would not be
limited to vessels owned only by Seatrain or its subsid-
iaries . This brochure would not have been necessary had
Seatrain created Shipbuilding only for the purpose of
building Seatrain operated ships . Accordingly , I find and
conclude from the entire record, including the record made
in the United States District Court in the 10(1) proceeding
brought by the Regional Director on behalf of the General
Counsel of the Board to enjoin MM&P from proceeding
with the arbitration proceeding, that the construction and
sale of the T/T Brooklyn and the T/T Williamsburgh were
not isolated instances but were examples of the normal
course of business envisioned by Shipbuilding in taking
over the facilities and modernizing the same at the Brook-
lyn Navy Yard.
Moreover, the same defenses were raised in the Vantage
case where the Board held a single transaction , the sale of
a vessel from one owner to another, even though the seller
was not in the ship selling business, constitutes "doing
business ." The Board held that transfers of ships from one
shipping company to another is "the normal course of busi-
ness" in the maritime industry, and such sales , therefore,
constitutes "doing business" within the meaning of Section
8(e) . 13
Another argument advanced by MM&P is that MM&P
has in no way impeded the transfer of the vessels involved
herein and that the seeking of arbitration was merely for
the purpose of assessing damages for the breach of the
contract and the backpay that would be due its members
but for the fact that Seatrain violated the agreement. How-
ever, the letter of September 18 regarding the prospective
sale of the Williamsburgh, which Captain Lowen sent to
Seatrain demanding arbitration, would seem to require
more than the mere fixing of lost earnings. In that letter
MM&P specifically stated that the relief sought was the
following: "The manning of the T/T Williamsburgh by
IOMM&P licensed deck officers covered by the current
IOMM&P Offshore Division collective bargaining agree-
ment."
Accordingly, it must be concluded that more than mere
damages are being sought by the demanded arbitration.
The only interpretation that can be given the above-quoted
excerpt from the letter of September 18 is that MM&P is
requesting the manning of the Williamsburgh, which has
been sold to another person, by members of the MM&P
and, thereby, seeking to force the purchaser of the Wil-
lianuburgh to adhere to the terms of its collective-bargain-
ing agreement with Seatrain. MM&P, through arbitration,
is seeking to enforce the clause proscribed by Section 8(e).
Another theory advanced by the Respondent is that in-
asmuch as the purchaser and the charterer of the vessels
herein had no contract with any other labor organization
to man the vessels, the seeking to enforce the clause by
arbitration in no way prevented Seatrain from doing busi-
ness with any other person within the meaning of Section
8(e). To bolster its position Respondent argues that unlike
13 National Maritime Union ( Vantage Steamship Corporation ), 196 NLRB
1100, 1101 (1972).
INTERNATIONAL ORGANIZATION OF MASTERS
the situation in the Vantage case, supra, there were no at-
tempts by MM&P to prevent the sales before a contract of
sale was signed nor was there any threat of picketing or
any other coercive action by MM&P against Seatrain to
limit the sale to a purchaser who would execute MM&P's
bargaining agreement . Counsel for the General Counsel
answers this contention in the following manner. "In the
instant case the record establishes that there were never
any MM&P employees on the vessels in question. Thus,
without conceding that the vessels prior to their manning
were or logically could be considered as falling within the
scope of any bargaining unit, the MM&P would compound
an already tenuous defense by maintaining that a work
preservation defense applies to jobs in futuro. Such proposi-
tion has not heretofore been sanctioned by either the
Board or the Courts." I agree with the General Counsel's
argument and therefore find this contention of the Respon-
dent to be without merit.
Finally, we come to what seems to be an inference that
East River and Kingsway are nonexistent organizations
and are merely subterfuges to enable Seatrain to man ves-
sels without supplying the officer personnel from the mem-
bership of MM&P. It is true that Captain Lowen testified
that when he sought to make contact with these two orga-
nizations he was unable to find them at the addresses given
nor was he able to find a telephone number for either of
them. However, the sales of the Brooklyn and the Wilhams-
burgh were made not to the charterers but to GECC. Ac-
cordingly, even if it could be inferred that East River and
Kingsway are fictitious organizations fronting for some
other organization, the Section 8(e) prohibition is applica-
ble to the sale of the vessels from the Seatrain to GECC
and not to GECC's charters to East River and Kingsway
from GECC. Therefore, whatever deceit might be inferred
in the formation and use of Kingsway and East River as
charterers cannot be a defense to the Respondent's at-
tempted application of the unlawful contractual clause.
This is especially so inasmuch as the proof that Kingsway
and East River are fictitious organizations was literally left
hanging without any evidentiary tie-in to Seatrain aside
from Seatrain's role as guarantor of East River's perfor-
mance viz-a-viz GECC.
F. Concluding Findings
By reason of all of the foregoing, I find and conclude
that Respondent's demand for arbitration as set forth in its
letters containing such demands on A pril 17 and Septem-
ber 18, 1974, constituted reaffirmance of the contractual
clause which requires the execution by the purchaser, char-
terer, or transferee of the organization's collective-bargain-
ing agreement as a condition precedent to any sale, charter,
or transfer. This provision on its face is clearly unlawful,
the demand for arbitration pursuant to this clause is, there-
fore, a reaffirmance of such clause and under all of the
circumstances heretofore recited, and taking into consider-
ation all of the contentions advanced by the Respondent,
such reaffirmance constitutes violations of Section 8(e) of
the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
173
The unfair labor practices of the Respondent set forth in
section III, above occurring in connection with its opera-
tions set forth above, have a close, intimate, and substan-
tial relation to trade, traffic, and commerce among the sev-
eral States and tend to lead to labor disputes burdening
and obstructing commerce and the free flow thereof.
V. THE REMEDY
Having found Respondent, International Organization
of Masters, Mates and Pilots, AFL-CIO, has engaged in
certain unfair labor practices , it will be ordered that it
cease and desist therefrom and take certain affirmation ac-
tion designed to effectuate the policies of the Act.
CONCLUSIONS OF LAW
1. Seatrain, Shipbuilding, GECC are employers or per-
sons engaged in commerce within the meaning of Section
2(1), (2), (6), and (7) and 8(e) of the Act.
2. MM&P is a labor organization within the meaning of
Section 2(5) of the Act.
3. By demanding arbitration pursuant to article V, sec-
tion 2, subsection it of its collective-bargaining agreement
effective June 16, 1972, through June 15, 1975, with Sea-
train regarding the sale of the T/T Brooklyn and the T/T
Williamsburgh, MM&P has demanded and is demanding
that Seatrain refrain from selling or transferring ownership
of the said vessels without Seatrain first complying fully
with the terms and provisions of the aforesaid collective-
bargaining agreement.
4. By the acts and conduct described in the foregoing
paragraph, MM&P has reaffirmed the agreement with Sea-
train and by said reaffirmation, MM&P has entered into
an agreement requiring Seatrain to cease doing business
with GECC and with other persons and has thereby en-
gaged in and is engaging in unfair labor practices affecting
commerce within the meaning of Section 8(e) of the Act.
Upon the foregoing findings of fact and conclusions of
law, and upon the entire record, and pursuant to Section
10(b) of the Act, I hereby issue the following recommend-
ed:
ORDER 14
Respondent, International Organization of Masters,
Mates and Pilots, AFL-CIO , its officers, agents, and repre-
sentatives shall:
1. Cease and desist from entering into, maintaining and
enforcing or giving effect to article V , section 2 of its col-
lective-bargaining agreement with Seatrain Lines, Inc., ef-
14 In the event no exceptions are filed as provided by Sec. 102 46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec.
102 48 of the Rules and Regulations be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes
174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
fective June 16, 1972 , or any like or related clause or claus-
es in any other collective-bargaining agreement whereby
an employer agrees to cease and refrain from doing busi-
ness with any other person within the meaning of Section
8(e) of the Act.
2. Take the following affirmative action:
(a) Post at the Respondent 's business offices and meet-
ing halls copies of the attached notice marked "Appen-
dix." 15 Copies of said notice, on forms provided by the
Regional Director for Region 2, after being duly signed by
Respondent Master , Mates and Pilots' representatives shall
be posted by said Respondent immediately upon receipt
thereof and be maintained by it for 60 consecutive days
thereafter, in conspicuous places , including all places
where notices to members and employees are customarily
posted . Reasonable steps shall be taken by Respondent to
ensure that said notices are not altered , defaced , or covered
by any other material.
(b) Notify the Regional Director for Region 2, in writ-
ing, within 20 days from the date of this Order, what steps
the Respondent has taken to comply herewith.
APPENDIX
NOTICE To EMPLOYEES AND MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
To all members of International Organization of Masters,
Mates and Pilots , AFL-CIO, and to all employees of Sea-
train Lines, Inc.
WE WILL NOT enter into , maintain, enforce , or give
effect to article V , section 2 , of our collective-bargain-
ing agreement with Seatrain Lines, Inc., effective June
16, 1972 , or any other contract provision whereby any
employer ceases and refrains or agrees to cease or re-
frain from doing business with any other person with-
in the meaning of Section 8(e) of the Act.
INTERNATIONAL ORGANIZATION OF MASTERS, MATES
AND PILOTS , AFL-CIO
15 In the event the Board 's Order is enforced by a Judgment of a United
States Court of Appeals , the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Relations Board."