International Organization of Masters, Mates and Pilots

National Labor Relations Board - Board Decisions

Jul 9, 1975

219 N.L.R.B. 26 (N.L.R.B. 1975)

26 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
International Organization of Masters, Mates and
Pilots, Marine Division , International Long-
shoremen's Association , AFL-CIO and Westches-
ter Marine Shipping Co., Inc.; Pyramid Sugar
Transport , Inc.; and California and Hawaiian Sugar
Company. Cases 15-CB-1474 and 15-CB-1475
July 9, 1975
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS JENKINS
AND KENNEDY
On January 17, 1975, Administrative Law Judge
Frank H. Itkin issued the attached Decision in this
proceeding . Thereafter, the General Counsel and Re-
spondent filed exceptions and supporting briefs, and
the Charging Parties and the Intervenors , District
No. 1, Pacific Coast District , Marine Engineers Ben-
eficial Association , AFL-CIO (MEBA), and District
No. 2, Marine Engineers Beneficial Association, As-
sociated Maritime Officers , AFL-CIO, filed briefs in
support of the Administrative Law Judge's Decision.
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 of the Administrative Law Judge only to
the extent consistent herewith.
We find no merit in Respondent 's exceptions and
agree with the Administrative Law Judge that Re-
spondent violated Section 8(b)(l)(B) of the Act by
picketing the Charging Party Employers with an ob-
ject of forcing the Employers to replace their licensed
deck officers , who are their representatives for the
purpose of the adjustment of grievances, with similar
individuals who are members of Respondent
(MMP).'
However , in agreement with the General Counsel,
upon all the facts of this case , we deem it necessary
to order Respondent to also cease picketing for the
objects of forcing the Employers to recognize Re-
spondent as the collective-bargaining representative
of the Employers ' licensed deck officers and/or to
i We also agree with the Administrative Law Judge' s findings , as set forth
in fn . 26 of the attached Decision , that Respondent 's picketing was not
"area standards" picketing . Respondent 's admitted objective was to install
its members aboard the vessels as licensed deck officers and to gain recogni-
tion and gain a contract , all of which is far beyond that which is needed to
protect area standards . See Houston Building and Construction Trades Coun-
cil (Claude Everett Construction Company), 136 NLRB 321, 323 (1962).
force the Employers to enter into a collective-bar-
gaining agreement with Respondent setting the terms
and conditions of their employment .2 Respondent's
conduct constitutes coercion of the Employers to se-
cure a contract which sets the employment terms of
their 8(b)(1)(B) representatives in a manner and kind
other than those chosen by the Employers them-
selves. Such objects equally interfere with the Em-
ployers' right to select their own 8(b)(1)(B) represen-
tatives and to secure their loyalty. The purpose and
effect of Respondent's picketing literally and directly
contravened the statutory policy of allowing an em-
ployer the unimpeded right to select its 8(b)(1)(B)
representatives.
We also find no merit in Respondent's argument
that Section 8(b)(1)(B) was not intended to prohibit a
union, which represents supervisors, from engaging
in picketing solely to protect and improve the wages,
hours, and working conditions of its members, and in
particular to prevent the erosion of labor standards
which Respondent has established over years of col-
lective bargaining, and that Congress did not intend
to prohibit picketing for the kinds of objectives
which Respondent was pursuing here; i.e., recogni-
tion and/or a collective-bargaining agreement.3 In
other words, Respondent argues that Section
8(b)(1)(B) was designed only to prohibit a union
from seeking to interfere with the employer' s literal
"selection" of his 8(b)(1)(B) representatives. This ar-
gument is contrary to both the facts and the law.
Thus, as the Administrative Law Judge found, the
purpose of the picketing of both vessels herein was to
coerce the Employers to cancel their contracts with
MEBA, to fire the masters and mates, and to hire
instead Respondent's members. This conduct is at
best inconsistent with Respondent's claims that it
merely wanted to represent the 8(b)(1)(B) representa-
tives.
Furthermore, this argument is contrary to both
Board and court law 4 In Marine Marketing, the
court noted that there was no evidence that Congress
intended not to reach this type of conduct. In the
words of the court:
2 The situation is such that picketing for recognition and/or a contract
becomes almost indistinguishable from picketing for the removal or replace-
ment of 8(b )( 1)(B) represen tatives See Miscellaneous Warehousemen Drivers
and Helpers, Local 986, affiliated with International Brotherhood of Teamsters.
Chauffeurs, Warehousemen and Helpers of America (Tak-Trak. Inc), 145
NLRB 1511. 1518 (1964)
3 While these may be lawful objectives , a labor organization is clearly not
free to utilize any means it chooses in order to achieve a desired result Meat
Cutters Union Local 81 of the Amalgamated Meat Cutters and Butcher Work-
men of North America, AFL-CIO [Safeway Stores] v. N L R B., 458 F.2d 794
(C.A D.C, 1972), enfg. 185 NLRB 884 (1970)
4 international Organization of Masters, Mates and Pilots, International
Marine Division, ILA-AFL-CIO (Marine and Marketing International Cor-
poration), 197 NLRB 400 (1972), enfd . 486 F.2d 1271 (C A D.C., 1973), cert
denied 85 LRRM 3018. See also New Mexico District Council of Carpenters
and Joiners of America (A S. Horner, Inc ), 177 NLRB 500, 502 ( 1969).
219 NLRB No. 9
INTL. ORGANIZATION OF MASTERS, MATES AND PILOTS
Petitioners next contend that, even if they are
subject to its restrictions, Section 8(b)(1)(B) was
never intended to reach the picketing that took
place here. They argue that Section 8(b)(1)(B),
so far as it pertains to grievance adjusters, is
concerned solely with attempts by a labor orga-
nization to change the person utilized by the em-
ployer to adjust the grievances of members of
the same organization. For example, there
would be an unfair labor practice under Section
8(b)(1)(B) here if SIU attempted to coerce the
selection of the master and mates since the unli-
censed seamen represented by SIU have their
grievances adjusted by the master and mates.
We have examined the legislative history with
care, and there is some evidence that Congress'
primary concern was with situations falling
within petitioner's interpretation of the Act. See
2 Legislative History, supra, at 1012, 1077. But
we have found nothing showing that Congress
intended not to reach conduct of the sort that
took place in this case-conduct which all par-
ties agree comes within the statute's literal
scope. If anything, Congress simply did not ad-
dress itself to the specific problem that has ari-
sen here, probably because it assumed that su-
pervisors wanting to engage in this kind of
picketing would avail themselves of the opportu-
nity not to be classified as a "labor organiza-
tion" and thus be free of all the restraints of
Section 8(b).
While we are aware that labor legislation does
not readily adapt itself to the "plain meaning"
school of jurisprudence, see, e .g., National
Woodwork Manufacturers Assn. v. N. L.R.B., 386
U.S. 612, 619, 64 LRRM 2801 (1967), we believe
several factors militate against judicially creat-
ing an exception that would immunize MM&P's
conduct here. First, petitioners concede in their
brief that if the company's desire to deal with
MEBA rather than MM&P was based on a valid
Section 8(b)(1)(B) interest, i.e., the company's
interest in the supervisory skills , qualifications
or loyalties of the members of the respective
unions , rather than upon financial consider-
ations, then its decision to choose one union
over the other should properly be free from
coercion under the statute. This would mean
that in each case where a labor organization
such as MM&P or MEBA sought to put its men
on a vessel presently staffed with officers of the
other, the legality of their picketing would de-
pend on the employer' s reasons for ultimately
choosing one union rather than the other. We
doubt that Congress intended any such post hoc
27
inquiry into the employer's motives where the
union's action is directly and inherently destruc-
tive of a right guaranteed in the statute-the
right to be free from coercion in the selection of
grievance adjusters [486 F.2d at 12741.
We agree with the General Counsel, therefore, that
Respondent's entire course of conduct, which was
admittedly aimed also to secure recognition as bar-
gaining agent and to impose on the Employers its
contract for licensed deck officers, interfered with
the Employers' freedom to select and control their
8(b)(1)(B) representatives. It follows therefore, that
this conduct which interferes with the Employers'
freedom to set the terms and conditions of employ-
ment of 8(b)(1)(B) representatives in the context of
this case necessarily interferes with their selection of
persons to serve as representatives. Sheet Metal
Workers' International Association, Local Union No.
17, AFL-CIO (George Koch Sons, Inc.), 199 NLRB
166 (1972). As the Board noted in George Koch Sons,
the type of conduct herein is a warning to an employ-
er not to select a supervisor unless the union ap-
proves of the terms and conditions of employment.
The Board held:
We think it equally clear that the work stoppag-
es which were initiated by Respondent were for
the purpose of requiring Koch to accede to the
union-dictated terms and conditions of
Ziltener's employment and thus coerced the Em-
ployer in the same manner as the fines levied on
Ziltener [the 8(b)(1)(B) representative] himself,
and we find such conduct on the part of the
Union also to be violative of Section 8(b)(1)(B).5
Accordingly, in addition to ordering Respondent
to cease picketing to force the displacement of li-
censed deck officers of both Employers, we shall also
order that Respondent cease and desist from picket-
ing to obtain recognition and its contract for the Em-
ployers' 8(b)(1)(B) representatives.
THE REMEDY
Having found that Respondent Union has en-
gaged in conduct violative of Section 8(b)(1)(B) of
the Act, we shall order that it cease and desist from
engaging in such conduct and take certain affirma-
tive action necessary to effectuate the purposes and
policies of the Act. The Board has found that Re-
spondent Union previously engaged in similar acts of
misconduct in Marine and Marketing International
5 199 NLRB at 167 Sheet Metal Workers International Association Local
Union No Forty, AFL-CIO (The Capitol Ventilating Company), 202 NLRB
958, 960-961 (1973)
28 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Corporation, supra, in violation of Section 8(b)(1)(B).
Further, we note that the record in the instant case
reflects that the Ultrasea, a sister ship of the Ultra-
mar, was similarly picketed. Under these circum-
stances, and in order to effectuate the purposes and
policies of the Act, we shall therefore order that Re-
spondent cease and desist from in any other manner
restraining or coercing Employers Westchester Ma-
rine Shipping Co., Inc., or Pyramid Sugar Transport,
Inc., in the selection of their representatives for the
purpose of the adjustment of grievances.
MEMBER JENKINS, dissenting in part:
For the reasons given by the Administrative Law
Judge, I would affirm his decision. I see nothing in
Section 8(b)(1)(B) which prohibits any union activity
except interference with the employer's selection of
his bargaining-grievance representative.
6 In the event that this 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 Labor Relations Board "
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor Re-
lations Board hereby orders that Respondent, Inter-
national Organization of Masters , Mates and Pilots,
Marine Division , International Longshoremen's As-
sociation , AFL-CIO, New Orleans , Louisiana , its of-
ficers , agents, and representatives, shall:
1. Cease and desist from:
(a) Picketing the vessels Ultramar or Sugar Island-
er with the object of causing Transport , Inc., to re-
place their licensed deck officers who are represented
by and who are members of Intervenors, District No.
1, Pacific Coast District , Marine Engineers Benefi-
cial Association , AFL-CIO, or District No. 2, Ma-
rine Engineers Beneficial Association , Associated
Maritime Officers , AFL-CIO, with licensed deck of-
ficers who are members of and who are represented
by Respondent Union; to obtain recognition as sole
collective-bargaining representative of licensed deck
officers ; to enter into a collective -bargaining agree-
ment ; or to impose its terms and conditions of em-
ployment on the licensed deck officers.
(b) In any other manner . restraining or coercing
said Employers in the selection of their representa-
tives for the purpose of the adjustment of grievances.
2. Take the following affirmative action:
(a) Post at its offices and meeting halls copies of
the attached notice marked "Appendix." 6 Copies of
said notice , on forms provided by the Regional Di-
rector for Region 15, after being duly signed by
Respondent's authorized representative , shall be
posted by Respondent Union immediately upon re-
ceipt thereof, and be maintained by it for 60 consecu-
tive days thereafter , in conspicuous places, including
all places where notices to members are customarily
posted . Reasonable steps shall be taken by the Re-
spondent Union to insure that said notices are not
altered , defaced, or covered by any other material.
(b) Notify the Regional Director for Region 15, in
writing , within 20 days from the date of this Order,
what steps the Respondent has taken to comply here-
with.
APPENDIX
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT picket the vessels Ultramar or
Sugar Islander with the object of causing Em-
ployers Westchester Marine Shipping Co., Inc.,
or Pyramid Sugar Transport, Inc., to replace
their licensed deck officers, who are represented
by and are members of District No. 1, Pacific
Coast District, Marine Engineers Beneficial As-
sociation, AFL-CIO, or District No. 2, Marine
Engineers Beneficial Association, Associated
Maritime Officers, AFL-CIO, with licensed
deck officers who are members of and are repre-
sented by our Union; to obtain recognition as
sole collective-bargaining representative of li-
censed deck officers; to enter into a collective-
bargaining agreement covering the terms and
conditions of employment of licensed deck offi-
cers; and/or to impose on all such licensed deck
officers our terms and conditions of employ-
ment.
WE WILL NOT, in any other manner, restrain or
coerce Employers Westchester or Pyramid in the
selection of their representatives for the purpose
of the adjustment of grievances.
INTERNATIONAL ORGANIZATION OF MASTERS,
MATES AND PILOTS , MARINE DIVISION,
INTERNATIONAL LONGSHOREMEN'S
ASSOCIATION , AFL-CIO
DECISION
FRANK H. ITKIN, Administrative Law Judge. These con-
solidated cases were tried before me on September 11, 12
and 13 and October 1 and 2, 1974, in New Orleans, Louisi-
ana. Unfair labor practice charges were filed by Westches-
ter Marine Shipping Co., Inc. ("Westchester") and Pyra-
INTL. ORGANIZATION OF MASTERS, MATES AND PILOTS
mid Sugar Transport , Inc. ("Pyramid") on January 4, 1974,
and by California and Hawaiian Sugar Company ("C &
H") on January 8, 1974 . A consolidated unfair labor prac-
tice complaint issued on February 1, 1974. District No. 1,
Pacific Coast District , Marine Engineers Beneficial Associ-
ation , AFL-CIO ("Dist . No. 1, MEBA") and District No.
2, Marine Engineers Beneficial Association , Associated
Maritime Officers , AFL-CIO ("Dist . No. 2, MEBA-
AMO") were permitted to intervene in these proceedings.
Section 8(b)(1)(B) of the National Labor Relations Act
forbids a labor organization or its agents "to restrain or
coerce . . . an employer in the selection of his representa-
tives for the purposes of collective bargaining or the adjust-
ment of grievances ." The principal issue presented in these
proceedings is whether Respondent Union , in violation of
Section 8 (b)(1)(B), has restrained and coerced Employers
Westchester and Pyramid in the selection of their represen-
tatives for the purposes of the adjustment of grievances by
picketing the vessels Ultramar and Sugar Islander with ob-
jects of causing the Employers : ( 1) to replace licensed per-
sonnel who are represented by and who are members of
Dist . No. I MEBA and District No. 2 MEBA-AMO with
licensed personnel who are members of and who are repre-
sented by Respondent Union; (2) to recognize Respondent
Union as the sole collective-bargaining representative of
such licensed personnel ; (3) to enter into a collective-bar-
gaining agreement with Respondent Union covering the
terms and conditions of employment of such licensed per-
sonnel ; and/or (4) to implement for all such licensed per-
sonnel the terms and conditions of employment which are
provided for licensed personnel who are represented by
Respondent Union . Respondent Union argues that the
picketing complained of in these proceedings was in fact
conducted by the Offshore Division of the International
Organization of Masters , Mates and Pilots ; that the Off-
shore Division is not a labor organization within the mean-
ing of the National Labor Relations Act; and that Respon-
dent Union is not otherwise responsible for this conduct.
Respondent also argues that, arguendo, even if the Interna-
tional Organization of Masters , Mates and Pilots be found
responsible for the picketing , Section 8(b)(1)(B) of the Act
was never intended and should not be construed to prohib-
it a union which represents supervisors from engaging in
picketing or other concerted activities solely to protect or
promote the interests of its supervisory membership. Coun-
sel for Respondent asserts in his brief:
Section 8(b)(1)(B) was designed to protect the
employer's control over the performance of his own
collective bargaining and grievance -adjusting func-
tions . But that is not what the dispute in this case is
about at all . The dispute , rather, is over which organi-
zation-MEBA or MMP-will supply and represent
the employers ' licensed deck officers and what the
terms and conditions of those licensed deck officers
shall be . Section 8(b)(1)(B) was never intended to have
any application to such a dispute.
The facts pertaining to these and related issues are dis-
cussed below.
Upon the entire record before me, including my observa-
tion of the witnesses , and after due consideration of the
29
briefs filed by all counsel, I make the following findings of
fact and conclusions of law:
FINDINGS OF FACT
1. INTRODUCTION; JURISDICTION
Westchester, a New York corporation with its principal
office and place of business in New York, New York, is
engaged in the operation of the M/V Ultramar, an Ameri-
can flag vessel carrying oil, grain, and other commodities
between various States of the United States and in foreign
commerce. Since the commencement of its operations
about August 8, 1973, the Ultramar has transported oil,
grain, and other commodities valued in excess of $50,000
between the various States and in foreign commerce. Aries
Marine Shipping Company ("Aries"), a New York corpo-
ration with its principal office and place of business in
New York, New York, is the bare boat charterer of the
Ultramar. Since the commencement of the Ultramar's op-
erations, Aries has derived revenues in excess of $50,000
for services performed in connection with the chartering of
the Ultramar. I find and conclude that Westchester and
Aries are employers engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
Pyramid, a Louisiana corporation with its principal of-
fice and place of business in New Orleans, Louisiana, is
engaged in the operation of the M/V Sugar Islander, an
American flag vessel carrying bulk sugar between Hawaii
and various continental States, including Louisiana. Since
the commencement of its operations in 1973, the Sugar
Islander has transported raw sugar valued in excess of
$50,000 from Hawaii to Louisiana. C & H, a California
corporation with its principal office and place of business
in San Francisco, California, is charterer of the Sugar Is-
lander under a 20-year time-charter. Since the commence-
ment of the Sugar Islander's operations, C & H has derived
revenues in excess of $50,000 for services performed in
connection with the chartering of this vessel. I find and
conclude that Pyramid and C & H are employers engaged
in commerce within the meaning of Section 2(6) and (7) of
the Act.
The essentially undisputed and credible evidence of rec-
ord, as discussed below, establishes and I find and con-
clude that the licensed deck officers, as well as licensed
engineers, employed by Westchester aboard the Ultramar
and by Pyramid aboard the Sugar Islander are supervisors
within the meaning of Section 2(11) of the Act and, in
addition, possess authority on behalf of their respective
employers to adjust grievances of the unlicensed nonsuper-
visory personnel aboard the two vessels.' Further, the es-
sentially undisputed evidence of record, as discussed be-
low, establishes and I find and conclude that since about
'Respondent, although admitting in its answer that "all licensed deck
officers are supervisors within the meaning of Section 2(11) of the Act,"
denies that the licensed deck officers possess the authority on behalf of the
employers to adjust grievances of the unlicensed nonsupervisory personnel.
As discussed infra, sec. III , C, the credible evidence of record establishes
that the licensed deck officers aboard the two vessels possess and in fact
have exercised such grievance -adjusting authority on behalf of their re-
spective employers-Westchester and Pyramid.
30 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
August 8, 1973, the terms and conditions of employment of
all licensed deck officers , as well as licensed engineers, em-
ployed by Westchester aboard the Ultramar have been and
continue to be covered by a collective-bargaining agree-
ment entered into between Westchester and Intervenor
Dist. No. I MEBA; that since about June 25, 1973, the
terms and conditions of employment of all licensed deck
officers, as well as licensed engineers , employed by Pyra-
mid aboard the Sugar Islander have been and continue to
be covered by a collective-bargaining agreement entered
into between Pyramid and Dist. No. 2 MEBA-AMO; and
that, consequently, since about August 8, 1973, and contin-
uing to date, Dist. No. I MEBA has been and continues to
be the recognized collective-bargaining agent of all li-
censed deck officers, as well as engineers, employed by
Westchester aboard the Ultramar and, further, since about
June 25, 1973, and continuing to date, Dist. No. 2 MEBA-
AMO has been and continues to be the recognized collec-
tive-bargaining agent of all licensed deck officers, as well
as engineers, employed by Pyramid aboard the Sugar Is-
lander.
And, although Respondent Union denies in its answer
that it is a labor organization as alleged, I find and con-
clude, as discussed infra, that Respondent Union-Interna-
tional Organization of Masters, Mates and Pilots, Marine
Division, International Longshoremen's Association,
AFL-CIO-is an organization in which employees partici-
pate and which exists for the purpose, in whole or in part,
of dealing with employers concerning grievances, labor dis-
putes, wages, rates of pay, hours of employment, and con-
ditions of work, within the meaning of Section 2(5) of the
Act.
II. BACKGROUND ; THE GENERAL STRUCTURE OF RESPONDENT
UNION AND THE COLLECTIVE -BARGAINING AGREEMENTS
PERTINENT TO THESE PROCEEDINGS ; THE RIVALRY BETWEEN
RESPONDENT UNION AND MEBA
The current structure of Respondent Union-Interna-
tional Organization of Masters, Mates and Pilots, Marine
Division, International Longshoremen's Association,
AFL-CIO-was established by its revised constitution
adopted in 1970. Prior to that time, the Union was divided
into locals. There were so-called "offshore" locals in major
ports consisting of licensed deck officers on large ocean-
going vessels; there were so-called "in land" locals consist-
ing of licensed deck officers on smaller vessels such as tug-
boats, barges and ferries; there were Associated Maritime
Workers ("AMW") locals consisting of unlicensed person-
nel on these smaller vessels ; and there were so-called "pi-
lots" locals consisting of pilots. Respondent's 1970 consti-
tution provides , inter alia, for the merger of these locals
into divisions. The "Offshore Division" was to replace the
"offshore" locals; the "Inland Division" was to replace the
"inland" and "AMW" locals; and the "Pilots Division"
was to replace the "Pilots locals." (See G. C. Exh. 10, pp.
A-1 to A-8). The "offshore" members voted to form the
"Offshore Division" and the "pilots" voted to form the
"Pilots Division" as generally contemplated by the revised
constitution. However, as Respondent's President Thomas
F. O'Callaghan credibly testified, the so-called "Inland Di-
vision" is not yet "fully formed"; "It just has not reached
that stage yet"; "It is not created yet." Instead, there is an
"Atlantic Region" and a "Pacific Region" of the so-called
"Inland Division." O'Callaghan explained:
The Atlantic Region is in existence and the Pacific
Region is in existence, but we do not have an Inland
. .. Division fully formed. . . . The entire union is
going through a transition period to where it is becom-
ing a firm body now, rather than a whole lot of sepa-
rate locals going on their own way.
In short, according to O'Callaghan, "It is not one cohesive
body," but it is "headed in that direction." 2
Respondent Union's Offshore and Pilots Division and
its two Inland Regions have their own bylaws adopted by
their own membership; their own officers, treasury, and
dues; and file separate disclosure reports with the Depart-
ment of Labor. However, Respondent's constitution does
provide that its International president, executive vice pres-
ident and secretary-treasurer also act as executive officer,
assistant executive officer, and financial officer of the "ful-
ly formed" divisions. Thomas F. O'Callaghan is president
of Respondent Union and is also executive officer of the
Offshore Division. Robert J. Lowen is secretary-treasurer
of Respondent Union and is also contract-enforcement
and chief fiscal officer of its Offshore Division. Further,
although other officers or officials are elected separately by
each division's membership, I note, as President O'Calla-
ghan acknowledged, a number of persons are officials of
both Respondent's Offshore Division and the Regions of
its not yet "fully formed" Inland Division. For example, A.
Scott is port agent for Respondent's Offshore Division and
is also branch agent for its Atlantic and Gulf Region of the
Inland Division. The same is generally true for J. Bierne,
M. Weinstein, F. Kyser, and W. Beech. And, as Respon-
dent Union's Secretary-Treasurer Robert Lowen acknowl-
edged, Respondent Union's two Regions of the Inland Di-
vision are composed of licensed supervisory personnel and
approximately 200 to 250 rank-and-file personnel who are
admittedly "statutory employees" under the Act 3
Membership in the Offshore Division is limited to li-
censed deck officers on large oceangoing vessels.4 The Off-
shore Division has its own negotiating committee which
2 Respondent Union Secretary-Treasurer Robert J. Lowen credibly ex-
plained that in addition to the above "two fully formed divisions"- i.e.,
Offshore and Pilots-
.. there are four remaining subordinate bodies-the Atlantic and
Gulf Region of the Inland Division . the Pacific Region of the
Inland Division , [and] Local 27 and Local 30 . . . in the Panama Ca-
nal.
And, although the Union 's constitution provides for a Government employ-
ees' division and a shoreside division , there are presently no members in
these named divisions.
3 In addition , by letter dated June 28, 1971, ILA President Thomas W.
Gleason wrote Respondent Union President O'Callaghan to . . confirm
the arrangements under which the International Organization of Masters,
Mates and Pilots [MMP] is being affiliated with the International
Longshoremen's Association [ILA] to become known as the International
Organization of Masters, Mates and Pilots, the International Marine Divi-
sion of the ILA [Marine Division].... " See, generally, G.C.-Exh. I I and
attachments.
The Offshore Division has some 6,000 members (see Resp. Exh. 12).
INTL. ORGANIZATION OF MASTERS , MATES AND PILOTS 31
prepares contract demands, negotiates contracts, and calls
strikes . Contracts negotiated by the Offshore Division's
committee are subject to ratification vote by its members.
The current Offshore Division collective -bargaining agree-
ment is Respondent Exhibit 7.5 The agreement provides,
inter alia:
1. Masters and Chief Officers selected by employers
must be members of the Union (sec. II, (2) ).
2. Licensed deck officers, except Masters and Chief
Officers , must be hired through the Union (sec. II,
(3), and (4) ).
3. Licensed deck officers will not be discharged or re-
jected except for "just cause" (sec. III).
4. A "minimum" "manning" requirement for certain
classes of vessels of one Master, one non-watch-
standing Chief Officer, one Second Officer and two
Third Officers (sec. VII).
5. Employer-financed jointly administered pension,
welfare and training programs . (Secs . XXIX and
XXX.) (And see Respondent Exhibit 25-the pen-
sion plan; and Respondent Exhibit 24-the welfare
plan).
Respondent Union for a number of years has repre-
sented licensed deck officers of the United States merchant
marine . The Marine Engineers Beneficial Association
("MEBA") has represented licensed engineers. However,
during late 1950 or early 1960, MEBA, through its affiliate
the Associated Maritime Officers ("AMO"), began to com-
pete with Respondent by negotiating collective-bargaining
agreements covering licensed deck officers , as well as li-
censed engineers . ILA President Thomas W. Gleason, in a
letter to AFL-CIO President George Meany, dated Febru-
ary 15, 1974 (G.C. Exh. 12), attempts "to invoke [AFL-
CIO] assistance to resolve a problem that is becoming in-
creasingly acute for the . . . ILA and its affiliate, the Inter-
national Organization of Masters , Mates and Pilots... .
As Gleason explains in his letter:
national Union], to sign up ships from top to bottom
(that is, from master to ablebodied seamen) before
they have even been launched and well before any
employees are to be hired. This effectively squeezes
out the IOMM&P which is the only Union actually
chartered by the AFL-CIO to represent deck officers.
s s s s
The technological change in the American Mer-
chant Marine and the Government's new shipbuilding
program has caused AMO to emerge as a far more
dangerous threat than ever before.
s s s s 11
The launching of the new ships began in 1970 as a
result of the Government's program to revitalize the
merchant marine. These vessels represented the first
new merchant ships built in many years. The ships of
the 1970s bear little resemblance to existing vessels.
They are so much bigger and faster that they move
cargo at a rate ten and twenty and more times that of
present vessels. In the case of the huge new tankers,
any comparison with their conventional counterparts
absolutely boggles the mind.
The problem is not imaginary. Already AMO has
contracts with at least six companies covering a dozen
ships already built. As new ships are launched, with
still more new owners, AMO will threaten not only
IOMM&P jurisdiction, but also the structure of its
collective bargaining agreements and the economic
base of the IOMM&P pension plan .6
III. THE EVENTS CULMINATING IN THE PICKETING OF THE
ULTRAMAR AND SUGAR ISLANDER
This problem concerns the continuing campaign by
the Associated Maritime Officers ("AMO") to sign
pre-hire contracts with newly-formed companies, cov-
ering licensed deck officers aboard ships not yet
launched. Under these agreements , AMO supplies the
deck officers for these vessels and prescribes the con-
ditions under which they are employed. Although the
IOMM&P [Respondent] is the sole union chartered by
the AFL-CIO to represent licensed deck officers,
AMO now represents a serious threat to its jurisdic-
tional integrity, its contract standards, the jobs of its
members, and the rather fragile peace of the maritime
industry itself.
What we are faced with now is a concerted cam-
paign on the part of AMO, aided by its parent, Dis-
trict 2, MEBA, and its ally, the SIU [Seafarers Inter-
3 Resp . Exh. 7 is the "Master Collective Bargaining Agreement (Dry Car-
go and Tanker Sections) Covering All Vessels Under Contract With the
International Organization of Masters, Mates and Pilots-Offshore Divi-
sion."
A. The Ultramar
On June 1, 1971, Aries applied to the United States
Maritime Administration and Maritime Subsidy Board for
financial aid in the operation of the first American flag
"OBO" (ore-bulk-oil carrier) vessels . The vessels in-
volved were the Ultramar and a sister ship, the Ultrasea.
On June 20, 1971, the Maritime subsidy board approved
the negotiated price for the construction of each of these
vessels and granted a construction differential subsidy to
aid in their construction. Also approved were "the plans
and specifications, as satisfying the commercial require-
ments of the applicant's service.... " The plans and
specifications listed a crew of 26 persons aboard the Ultra-
mar.7
6 Also see Respondent Union President O'Callaghan's article entitled: "A
Background Report on the AMO Threat to the IOMM&P," August 1974
(G.C. Exh 10, pp. 2-3), and Gleason's letter to Meany dated May 14, 1974
(G.C. Exh. 13) with Respondent President O'Callaghan's accompanying
memorandum concerning "Recent New Pre-hire Agreements Covering Li-
censed Deck Officers Aboard Newly Constructed Vessels," specifically list-
in^ inter alia, the Sugar Islander and the Ultrainar.
Schedule I to the proceedings before the Maritime subsidy board (Reap.
Continued
32 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Captain Leo V. Berger is president and principal share-
holder of Aries . He credibly explained that construction of
the Ultramar was completed about August 8 , 1973, at
which time the vessel set sail from the National Ship Build-
ing and Steel Company shipyard in San Diego, California.
Aries transferred ownership to CIT . CIT appointed Bank-
ers Trust as its trustee of ownership . Bankers Trust in turn
bareboat chartered (or leased) the vessel to Aries for 20
years . And, about August 3 , 1973, Aries entered into a
"Crew Husbanding Agency Agreement" with Westchester.
Westchester thus became "the crew husbanding agent of
Aries for the crewing . . . of each and all of the vessels
now owned or which may hereafter be acquired by Aries
.... " Westchester was "authorized to take charge of and
attend the employment and discharge of masters, crews
and other help, in and about the operation of said vessels,
and the fixing of all compensation to be paid ; it being
understood and agreed , however , that all costs and expen-
ses of wages of masters , crew and other persons employed
in and about said vessels shall be charged directly to and
paid by Aries" (see G .C. Exh. 22).8
On August 8, 1973 , Westchester and Dist . No. 1 MEBA
entered into a 3-year collective -bargaining agreement cov-
ering the terms and conditions of employment of all li-
censed deck and engine officers employed by Westchester
aboard the Ultramar. Percy Overman , president of West-
chester, credibly testified that, before signing these agree-
ments, the "management of [his] Company"-
... discussed with me [Overman] the unions that
would probably be used . I [Overman] also spoke with
Captain Berger who recommended the union ... .
Overman recalled that Berger had recommended Dist. No.
I MEBA as the "Union to represent the licensed deck offi-
cers .,, 9 In addition, Berger testified that he "thought
[Westchester] would take [his] recommendation , because of
[his] previous background in the industry ." 10 The MEBA
collective-bargaining agreement applicable to licensed
deck officers provides for a complement of only four li-
censed deck officers aboard the Ultramar-a master and
three mates-rather than the master and four mates which
are, according to the witnesses of Respondent , generally
required by Respondent Union's Offshore Division con-
tract for comparable vessels . According to the testimony of
Respondent Union Secretary-Treasurer Robert Lowen, the
MEBA agreement provides in effect for one less deck offi-
cer and for lower wage rates than those which are provided
Exh. 3) lists a crew of 26, consisting of one master, one chief mate, one
second mate , one third mate, and 22 other persons. Thus, the crew aboard
the Ultramar would have included only four licensed deck officers-a mas-
ter and three mates.
8 The "Crew Husbanding Agency Agreement" could be canceled on 90
days written notice by either party.
Overman explained- "I think the reason" why Westchester contacted
and entered into an agreement with District No. I MEBA "was we [West-
chester] agreed with Captain Berger essentially with the philosophy of hav-
mg the one arrangement ..." with one union. Westchester executed agree-
ments for the unlicensed personnel on August 8, 1973, with the Seafarers
International Union.
ie As Berger put it, ".. If they [Westchester ] were smart, they would
" Aries, of course, could cancel Westchester's agency agreement on a
90-day notice and Berger was president and principal stockholder of Aries.
for on comparable vessels under contract with the
Respondent's Offshore Division."
Captain Berger previously had entered into collective-
bargaining agreements with Respondent Union from about
1968 to 1972 for vessels operated by three companies in
which he was the principal party--Oneida Steamship Com-
pany , Inc.; Oswego Steamship Company , Inc.; and Gene-
va Steamship Company , Inc. When Berger's last collective-
bargaining agreement with Respondent Union expired in
June 1972, Berger notified Respondent that he had merged
all of his other shipping companies into Oswego and had
sold Oswego to a third party. Thus, Berger formally ap-
prised Respondent on June 26, 1972:
... this communication is to advise you of the termi-
nation of the collective bargaining agreement between
[Respondent] and [Oswego] as of June 15, 1972.
Thereafter, that contract is no longer in effect and
there are no vessels to which it is applicable . Please
consider this communication to be the appropriate no-
tice of the termination of this collective bargaining
agreement... .
In the meantime , during 1971, shortly after construction
had commenced on the Ultramar, Respondent Union Pres-
ident O'Callaghan , as he credibly testified , met with Berger
"and had some discussion about the ships that he [Berger]
was building ." O'Callaghan recalled that Berger then "stat-
ed that our contractual relationship would remain the
same." O'Callaghan testified:
I [O'Callaghan] mentioned it [to Berger] because there
was a number of sweetheart agreements being given
out by AMO, and I knew that they were approaching
various companies , and I wanted to make sure that
there was nothing underhanded going with Berger. He
[Berger] assured me there wasn't... .
Subsequently , during late May or early June 1973, when
construction of the Ultramar was nearly completed , O'Cal-
laghan and Berger met again. Berger testified:
We discussed the values of the M,M & P. And Cap-
tain O'Callaghan advised me of the quality of the M,
M & P and he has on hand any officers that I might
need to fulfill the ship's licensed officers for deck.
Captain O'Callaghan advised me that he could supply
a full crew from top to bottom , meaning he could sup-
ply me engineers , mates and arrange for unlicensed
personnel. And we also discussed-and Captain
O'Callaghan says , "Remember you won't need engi-
neers." And previously he said , "MEBA is offering
and also AMO is offering the same up and down con-
tract." And Captain O'Callaghan also reminded me
it Berger testified that the Merchant Marine Act of 1970 "was [intended]
to revitalize the American Merchant Marine . . to set up certain standards
with respect to getting subsidies . "; "They have to do this in order to be
competitive with foreign ships of equal stature ... ", ". . they will subsi-
dize three mates and a master . . . If you want to subsidize [or hire] more,
you can't be competitive with foreign ships .... " And, at the time when
Captain Berger recommended to Westchester that District No. I MEBA
supply the licensed deck officers for the Ultramar, he was aware that
MEBA 's manning scale would in effect be one master and three mates. The
United States Coast Guard had approved a minimum total complement of
9 licensed and 17 unlicensed personnel for the Ultramar, which included
only one master and three mates as licensed deck officers.
INTL. ORGANIZATION OF MASTERS , MATES AND PILOTS 33
with the new concept of shipping, mode of shipping
such as gas turbines and unmanned engine rooms,
that we wouldn 't be needing engineers . So he would be
better qualified to supply than someone else would.
That's where we left that discussion.
O'Callaghan acknowledged in his testimony that he had
"asked [Berger] point blank, Are we going to be getting the
contract?" O'Callaghan, however, credibly explained that
Respondent Union was only interested in the licensed deck
officers aboard the Ultramar and he denied that he had
"advised Berger [he] could supply a full crew from top to
bottom. . . . "12
On July 19, 1973, Respondent Union President O'Calla-
ghan wrote Captain Berger, in part as follows:
Dear Captain Berger:
The International Organization of Masters, Mates
and Pilots, the International Marine Division of the
International Longshoremen's Association, AFL-
CIO, made up of the most highly trained Officers in
any merchant marine in the world, possesses the only
charter issued by the AFL-CIO for Masters and other
Licensed Deck Officers on oceangoing vessels regis-
tered under the U.S. flag.
• • s s
We are particularly pleased to be able to have the
opportunity to demonstrate that the continuing exclu-
sive recognition of the IOMM&P in representing the
Master and other Licensed Deck Officers aboard the
new OBO-type construction should be of paramount
importance in providing labor stability and continuing
the previously excellent labor-management relation-
ships between you and your Companies and this Orga-
nization while our seagoing Officers serve as your ves-
sel manager to increase the potential return on your
investment. Our affiliation with the International
Longshoremen's Association cannot help but provide
additional insurance against unwarranted work stop-
pages in view of the nature of employment of OBO-
type construction.
A copy of our current collective bargaining agree-
ment is attached . We recognize that certain aspects of
this agreement may have to be changed in the light of
the new type of operation and we are agreeable to
resolving any problems you envision might arise so as
to ensure a long and profitable relationship together.13
12 Insofar as O'Callaghan 's version of this particular meeting differs with
Berger's version , I credit O 'Callaghan . The evidence of record , as discussed
herein , persuades me that Respondent was only seeking to represent the
licensed deck officers aboard the vessels involved. I was impressed with
O'Callaghan 's candor in answering the questions put to him by counsel. His
answers were in my view complete and trustworthy and appear reasonable
when assessed against the complete chronology as summarized herein and
the related testimony of Robert Lowen . I note in this respect that Percy
Overman , president of Westchester, acknowledged that he "wasn't aware
that [MESA and MMP] were offering also the same agreement to handle
both the deck and engine officers.... " And see , C & H Exh . 3, a letter
from O 'Callaghan to Berger dated July 19 , 1973, quoted infra.
13 In addition , also during mid-July 1973, according to the uneontrovert-
ed testimony of Berger, ILA President Gleason telephoned Berger and stat-
Berger recalled that between August 3 and 8, 1973, Re-
spondent Union's Secretary-Treasurer Robert Lowen vis-
ited Berger's office in New York. Berger testified:
Mr. Lowen began explaining to me the quality of
the Masters, Mates & Pilots and went into long detail
regarding the school that M, M & P has in Baltimore.
And in fact invited me down there to visit it. And
Captain Lowen also advised me that since I am a
Kings Point graduate that the union could give us the
best qualified [sic]. He went into detail regarding this
unique ship and we have to have a different agreement
than any other presently in force. And, during this
conversation, the number of mates to be supplied
came up and Captain Lowen said they would supply
as many as three or as many as necessary or anybody
else would supply like MEBA or anybody else. And,
after the discussion, Captain Lowen, before we went
to lunch, gave me a brochure on the school and also
an agreement. one-page agreement, if I wanted to sign
with the Masters, Mates & Pilots. During this conver-
sation I advised Captain Lowen that Westchester Ma-
rine was crewing the vessel. I gave him the address. I
may have also given the phone number... .
Lowen, in his testimony, recalled that he first spoke with
Berger on the telephone, "I [Lowen] told him [Berger] I was
calling about the Ultramar . . . about the licensed deck
officers.... " Lowen and Berger, according to Lowen,
subsequently met for lunch. Lowen credibly testified that
at this meeting, Berger "indicated there had been no deci-
sion at that moment as to who the deck officers would be."
Lowen recalled: "It seemed that the single most important
criteria to Captain Berger was whether Mr. Calhoon [Presi-
dent of MEBA] would decide who the deck officers were
going to be." According to Lowen, Berger-
... indicated in no uncertain terms that the only rea-
son he had the . . . contracts for the Ultramar .. .
was that Mr. Calhoon had arranged the financing for
him and that [Berger] was totally committed to doing
what he [Calhoon] wanted to do in respect to man-
ning, but [Berger] said the only union that had been
decided upon was MEBA District 1 for the engineers.
There was, as Lowen explained, no discussion "with re-
spect to the grievance adjustability of the MMP licensed
deck officers or the MEBA licensed deck officers." 14
Berger testified without contradiction that,
On August 7, I got a call from Captain [William M.]
Caldwell late in the afternoon in which he kept asking
me what unions were going to man the ship. And I
ed that,... he would be manning the Ultramar with other MM&P officers.
. [Berger] advised [Gleason] that I [Berger] am not handling that. And
[Gleason] in turn advised that, "This cannot go on and I will tie up all the
American ships if I have to ." And [Berger] replied to him that, "you do
whatever you have to, Mr Gleason."
14 Insofar as the above summarized testimony of Lowen with respect to
this particular meeting differs with the testimony of Berger as stated above,
I credit Lowen. Lowen's explanations impressed me as more candid and
complete in this respect Lowen 's testimony impressed me as credible and
reasonable in the context of the other credible evidence of record including
documentary evidence and the related testimony of O'Callaghan concerning
his talks with Berger.
34 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
kept telling him it's being handled, again, being
crewed and the matter [was] being handled by West-
chester Marine . He kept insisting and asking me and I
didn't tell him and he asked me whether the ship
would sail that afternoon and I told him it would sail
the next day. He said, "We are going to harass that
ship until you would be glad to sell it for scrap."
Caldwell is Respondent Union's executive vice president.
During mid-November 1973, Berger received a tele-
phone call from O'Callaghan. Berger credibly testified:
The middle of November, we had a telephone con-
versation with Captain O'Callaghan. And he started
his conversation by saying, "What is going on here,
Leo? What is this crap?" I told him, "I am not han-
dling it. Westchester Marine is handling the crewing
of the vessel ," referring to the Ultramar. And he said,
"Don't give me that crap. I have been around the
waterfront a long time." I said, "Cap, why don't you
and Calhoon [president of MEDA] get together and
straighten this matter out. It's a matter that could be
taken care of by the CIO-AFL-CIO." His response
was, "Leo, what? Have you been talking to Calhoon";
like that I said, "No." And I said, "My door is open to
come in and sign a contract whenever you are ready."
About November 29, 1973, the Ultramar was picketed in
the vicinity of the Bunge Corporation Grain Elevator in
Destrehan, Louisiana, with signs stating:
S. S. ULTRAMAR
Works its Deck Officers Under
LOWER STANDARDS
than those worked under
by Deck Officers
REPRESENTED BY
MASTERS , MATES AND
PILOTS
MARINE DIVISION OF THE
INTERNATIONAL LONGSHOREMEN'S ASSOCIATION
AFL-CIO
Respondent Union President O'Callaghan testified
that previously he "had spoken to the top officers of the
Union . . . "; O'Callaghan "suggested and we all agreed
that we had to take action to protect our contracts and to
protect our Union and would take whatever action was
necessary to do that." O'Callaghan conferred with the "two
International Officers and three district vice presidents of
the Offshore Division." O'Callaghan, as he testified:
... more or less turned the whole operation over to
the contract enforcement officer, Bob Lowen, to han-
dle, but I [O'Callaghan] did tell him to make sure that
we make everyone aware of the fact that we wanted
that contract.
O'Callaghan acknowledged that he-
... notified Teddy Gleason [ILA president] that I
[O'Callaghan] was going to have a picket line around
the Ultramar when she got into port.
The picketing was conducted by members of Respondent's
Offshore Division.
O'Callaghan admitted that an object of the picketing
was: "I wanted a contract with them"-O'Callaghan
"wanted members of the Masters, Mates and Pilots serving
aboard those vessels as licensed deck officers." Lowen,
when asked what were the objectives of the picketing, testi-
fied as follows:
... we actually were going out for economic reprisal,
among other things, to stop other people from engag-
ing in the same type of practice to the detriment of our
collective bargaining agreements, our membership,
our pension plan, the whole ball of wax.
We didn't know what we could really accomplish.
Maybe they would give us the ships back. Maybe the
people on the waterfront would just flat out refuse to
touch their picket lines. Maybe the company would go
broke. Whatever we hoped to accomplish, we hoped
to accomplish by picketing.
B. The Sugar Islander
Donald Hare, vice president for C & H, credibly testified
that C & H was the "inspiration" behind the construction
of the Sugar Islander. C & H is a cooperative engaged in
marketing Hawaiian raw sugar. The Marine Division of
Reynolds Metal Company, in previous years, transported
C & H sugar to the Gulf area. Reynolds, however, an-
nounced that its vessels would not be available for this
purpose at the termination of its 10-year contract in 1973.15
C & H became "the ultimate time charterer" of the Sugar
Islander and Pyramid became the bareboat charterer and
operator of the vessel. C & H selected Pyramid as bareboat
charterer, according to Hare, because, inter alia, Pyramid
.,was established in the New Orleans area where almost all
of [C & H's] sugar . . . is sold." C & H was also "ac-
quainted" with Pyramid personnel and "impressed with
their capability."tb
Hare acknowledged that C & H knew that there was "a
distinct possibility" that Pyramid would in turn enter into
an agreement with MEBA to furnish licensed deck officers
for the Sugar Islander. Further, as Hare testified, C & H
was concerned with the stability and economy of the Sugar
Islander's operation. Hare understood that a crew com-
posed of MEBA licensed personnel and SIU, Seafarers In-
ternational Union, unlicensed personnel would not exceed
the approved Coast Guard manning of 22 persons for the
Sugar Islander and would give stability to labor or person-
nel relations . Hare admittedly made it known to his "pro-
15 Hare also recalled that C & H had carnage of sugar on Matson Ship-
ping Company vessels and Matson had a collective -bargaining contract
with Respondent Union for the licensed deck officers. Hare was generally
aware that the minimum manning requirements for licensed deck officers
on the Matson vessels, in accordance with Respondent Union's contract,
exceeded the manning as ultimately required for the Sugar Islander.
16 Hare acknowledged:
In making the decision [to select Pyramid] we did not at anytime to the
best of my recollection give conscious thought to the relative grievance
adjusting ability of one union over another.
INTL. ORGANIZATION OF MASTERS, MATES AND PILOTS 35
posed bareboat charterer," Pyramid, that he was "interest-
ed" in MEBA.
Captain Peter Johnson, executive vice president for Pyr-
amid, credibly testified that, ". . . in order to operate this
ship [Sugar Islander] properly we needed to have one
union that covered all licensed officers.... " And, on
June 25, 1973, Pyramid, as bareboat charterer of the Sugar
Islander, and Dist. 2 MEBA-AMO entered into a 3-year
collective-bargaining agreement for all licensed personnel
employed by Pyramid aboard the Sugar Islander. On Au-
gust 24, 1973, Pyramid also entered into a collective-bar-
gaining agreement with SIU for the ship's unlicensed per-
sonnel . Johnson recalled that the Sugar Islander was
delivered to Pyramid from Lockheed Shipbuilding Compa-
ny on August 24, 1973, in Portland, Oregon.
Respondent Union previously had requested C & H to
recognize its Offshore Division as bargaining agent for the
licensed deck officers aboard the Sugar Islander. Thus, on
November 22, 1971, Captain Robert E. Durkin,
Respondent's International vice president, wrote Boyd Mc-
Naughton, C & H's board chairman, in part as follows:
I am sure that you recognize that to construct the
subject vessel [Sugar Islander] without having the air
cleared as to Labor Agreements which would permit
involvement wherein the Parties can square away any
problems that may relate to the construction of the
new vessel, is not wise. Wisdom dictates s-a Collective
Bargaining Agreement in the form of a Memorandum
of Agreement should be executed as soon as possible.
I urge most strongly that you authorize such a
Memorandum to be executed by whomsoever is so
authorized who will be involved in the operation of
the vessel. A suggested type of Memorandum of
Agreement with this Organization is attached and
even though the delivery of the vessel is a long time
away in one sense, the problems that would have to be
resolved will arise long before the vessel is completed.
Should this vessel be operated by an existing Com-
pany with whom this Organization already has a Col-
lective Bargaining Agreement , then such a Memoran-
dum would not be necessary . Please advise.
Thereafter, during late October through early December
1972, Respondent Union President O'Callaghan and Secre-
tary-Treasurer Lowen discussed the Sugar Islander with
Wayne Brobst , vice president of industrial relations of
Matson Navigation Company. These discussions occurred
in Respondent's offices during their bargaining sessions
with the Pacific Maritime Association. Brobst credibly tes-
tified that O'Callaghan and Lowen repeatedly stated that
"they would take whatever steps were necessary to secure
the manning of the Sugar Islander." Matson was accused
by Respondent 's representatives of "rigging the deal
whereby the crew arrangements [for the Sugar Islander]
had been worked out that did not include MMP represen-
tation."17 Lowen, in his testimony, generally admitted his
attempt to discuss the mmanning of the Sugar Islander
with Brobst during the above meetings.
17 Brobst recalled that O'Callaghan and Lowen also made similar and
related accusations during April 1973.
About September 26 and 27, 1973, the Sugar Islander
was picketed in the vicinity of the Gulf Elevator and
Transfer Company launch landing site in the New Orleans
area with signs stating:
MTV SUGAR ISLANDER
UNFAIR TO THE
MASTERS, MATES AND PILOTS
MARINE DIVISION OF THE
INTERNATIONAL LONGSHOREMEN'S
ASSOCIATION, AFL-CIO
The directions and instructions for this picketing came
from Respondent Union President O'Callaghan to Captain
Henry Stegall, Respondent's New Orleans port agent."
About January 2, 1974, the Sugar Islander was also pick-
eted in the vicinity of the Godchaux-Henderson Sugar Re-
finery in Reserve, Louisiana. The signs stated:
M.V. SUGAR ISLANDER
Works Its Deck Officers Under
LOWER STANDARDS
than those worked under
by Deck Officers
REPRESENTED BY
MASTERS, MATES AND PILOTS
MARINE DIVISION OF THE
INTERNATIONAL LONGSHOREMEN'S
ASSOCIATION
AFL-CIO
The Sugar Islander was picketed with similar signs about
January 7, 1974, near the Burnside, Louisiana, terminal
and about January 25 and 26, 1974, near the Texaco dock
in Mobile, Alabama. The picketing was, as in the case of
the Ultramar, conducted by members of Respondent's Off-
shore Division.19
C. The Grievance -Adjusting Functions of Licensed Deck
Officers Aboard the Ultramar and Sugar Islander
The credible evidence of record establishes that the li-
censed deck officers aboard the Ultramar and Sugar Is-
lander are authorized to and do perform grievance adjust-
ing functions with respect to the unlicensed nonsupervisory
personnel aboard the vessels . Thus, the collective-bargain-
ing agreements between the Seafarers International Union
and both Pyramid (G.C. Exh. 20) and Westchester (G.C.
Exh. 23) for the nonsupervisory unlicensed personnel
aboard the two vessels clearly contemplate the adjustment
of grievances by the licensed supervisory officers arising
under the SIU contracts. See, generally, G.C. Exhs. 20 and
23, art. II, Secs . 2 and 3, providing for "delegates," a "per-
18 Enus Parks, employed by District 2 MEBA-AMO, credibly testified
that Port Agent Stegall told him during late September 1973 that "it was his
[Stegall'sl intention to stay there [picketing ] until the injunction was served
, he [Stegall] intended to stay until the injunction was served and stop
that business if he could because those were MMP jobs and MEBA didn't
have any business representing those officers on that ship... "
19 A petition for a temporary injunction against Respondent Union was
filed on February 15, 1974, in the United States District Court for the East-
ern Distnct of Louisiana, pursuant to Sec. 10(j) of the Act. On March 14,
1974, the parties stipulated that, pending final disposition by the Board of
the matters involved herein, Respondent Union would not, inter aha, picket
the Ultramar or Sugar Islander. (See Intl . Exhs. I and 2 )
36 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
manent ship's comittee" consisting of the "boatswain," the
"chief steward and the chief electrician" or "pumpman,"
the presentment of grievances to "superior officers," and
"weekly meetings" in order "to make sure that all problems
concerning the unlicensed crew are brought to light and
resolved as quickly as possible.... "
Pyramid's Executive Vice President Peter Johnson met
with the master of the Sugar Islander, Captain William Mc-
Auliffe, and the ship' s engineers prior to delivery of the
ship in order to familiarize them with the provisions of the
SIU contract, including the handling of grievances con-
cerning the unlicensed personnel aboard the vessel. As
Captain McAuliffe credibly testified:
I was advised that I was the Company's representative
in handling these things [resolving grievances] and I
was to try to resolve them on the vessel if possible and
bring as few problems back as possible, try to make an
amicable agreement between the seaman and the com-
pany and to do it on the ship as far as possible.
Likewise, Westchester President Overman discussed with
the master of the Ultramar, Captain Faust, prior to that
ship's initial voyage, the applicable grievance-adjusting
procedures. Overman similarly instructed Faust "to settle
any disputes that did arise."
Captain McAuliffe cited instances of grievance resolu-
tion at various levels aboard the Sugar Islander. One such
grievance concerned overtime payable under the SIU con-
tract. The seaman affected presented the grievance to his
duly elected departmental representative (delegate), who,
in turn, discussed the matter with the chief mate . The dele-
gate and chief mate were unable to agree upon a resolution
of the grievance and the matter was referred to the ship's
chairman (the vessel's unlicensed crew representative) and
the master. The Captain's interpretation of the contract
was not accepted by the unlicensed personnel who ap-
pealed the grievance determination to the SIU's patrolman
or port representative when the vessel reached port. The
matter was then discussed by the SIU's port representative
with Captain McAuliffe, Pyramid's representative, at the
payoff in port. Calftain McAuliffe reconsidered his former
interpretation of the contract and agreed to resolve the
grievance by paying the disputed overtime . Another such
grievance cited by Captain McAuliffe concerned a lodging
claim by unlicensed crew. The crew complained that vessel
malfunctions while in port in Japan during the winter
caused insufficient heat during a 3-day period. The crew's
grievance was presented directly to the ship's chairman,
who, in turn, discussed the matter with the master. The
grievance was resolved by Captain McAuliffe's authoriza-
tion of a 3-day lodging allowance per crewmember. Cap-
tain McAuliffe also recalled an instance of grievance which
was resolved without his involvement. The third mate was
supervising the discharge of the ship's cargo when the crew
claimed that an additional crew member was needed. The
third mate determined to add on a crewmember.
As for the Ultramar, Captain Louis Kingma, the ship's
master, cited an instance when he and the SIU patrolman
or shore representative resolved grievances concerning the
overtime rate to be applied in cleaning the hull in accor-
dance with the SIU representative's interpretation of the
contract. In addition, Kingma recalled that he was con-
fronted by the ship's chairman with the crew's grievance
that the vessel had not been properly secured for sea prior
to leaving port in accordance with the terms of the SIU
contract. The grievance was resolved by Kingma agreeing
to pay the unlicensed crew the requested financial penalty.
Captain Kingma also noted in his testimony that he re-
solved numerous overtime grievances aboard the ship.20
IV. DISCUSSION
The principal issue raised here, as stated, is whether Re-
spondent Union restrained and coerced Employers Pyra-
mid and Westchester in the selection of their representa-
tives for the purposes of the adjustment of grievances by
picketing the vessels Ultramar and Sugar Islander in order
to force the Employers to replace their licensed deck offi-
cers who had grievance adjustment functions with others
who were members of Respondent Union. A similar issue
was recently resolved by the Board and the Court of Ap-
peals for the District of Columbia Circuit in Marine and
Marketing International Corporation, 197 NLRB 400 (1972),
enf. 486 F.2d 1271 (C.A.D.C., 1973), cert. denied 85
LRRM 3018 (1974). In that case, the Board found that the
union, the Respondent in the instant proceeding, violated
Section 8(b)(l)(B) of the Act by picketing a ship, the Flor-
idian, with the object of requiring the employer to replace
its captain and mates with a captain and mates who were
members of Respondent Union, thereby coercing the em-
ployer to change its selection of individuals whose duties
include the adjustment of employee grievances. The court
of appeals, Chief Judge Bazelon dissenting, upheld the
Board's findings, conclusions and order. The Supreme
Court denied certiorari.
The Court of Appeals, in sustaining the Board in Marine
and Marketing, supra, 486 F.2d at 1273, stated:
It is conceded by all parties that MM&P's [Respon-
dent Union] actions come within the literal purview of
the statutory language. The admitted purpose of the
picketing was to pressure the company to break its
contract with MEBA, fire the new MEBA master and
mates, and rehire the former MM&P master and
mates. The Board was obviously correct in concluding
that the master and mates are representatives of the
employer for the adjustment of grievances. Therefore,
under the statutory language, the picketing was in-
tended to coerce the employer in the selection of his
grievance adjusting representatives.
The court of appeals agreed that "Section 8(b)(1)(B) would
be inapplicable . . . provided petitioners [Respondent here]
are not a labor union protected by the Act and therefore
subject to its restrictions" because, as the court explained,
Section 8(b), by its terms,- applies only to "a labor or-
ganization or its agents.... " A union composed
solely of supervisors is not a "labor organization" as
that term is defined in the Act [Section 2(5)]. It has no
20 The record reflects other related and similar instances in which griev-
ances were resolved aboard the vessels.
INTL. ORGANIZATION OF MASTERS, MATES AND PILOTS 37
statutory "employees" [Section 2(3)]. Such a union,
therefore , cannot commit an unfair labor practice un-
der any of the subsections of Section 8(b)... .
However, as the court observed:
The main difficulty with MM&P's position in the
present case is that it admittedly is a "labor organiza-
tion" under the Act. Indeed , our own court has recent-
ly held that, because MM&P has certain locals con-
taining statutory "employees ," it constitutes a "labor
organization" subject to the restrictions of Section
8(b). See Int. Org. of Masters, Mates & Pilots v.
N.L.R.B., 351 F.2d 771, 777 [(C.A.D.C.,] 1965).
Further , the court of appeals , quoting from the Second
Circuit's decision in National Maritime Union, AFL-CIO,
National Marine Engineers Beneficial Association v.
N.L.R.B. [S & S Towing Co.], 274 F.2d 167, 173 (C.A. 2, ,
1960), agreed that-
... the legislative history is far from being so definite
or persuasive as to justify our reading the Act, in a
manner opposed to its plain language , so as to permit
a union in which "employees participate" to engage in
acts branded as unfair labor practices by § 8(b) simply
because the workers on whose behalf the union was
acting are all supervisors.
In sum , the court of appeals concluded:
... even though we agree with the general proposi-
tion that Congress intended to permit supervisors to
resort to self-help, a supervisors' union cannot have it
both ways . If it allows statutory "employees" to par-
ticipate , it becomes a "labor organization " entitled to
the protections given such organizations and subject
to the restrictions imposed by Section 8(b) on such
organizations . If it does not allow any "employees" to
participate , it is freed of any responsibilities under
Section 8 (b) at the price of forfeiting the protection of
Section 8(a)... .
In Marine and Marketing, supra , 486 F.2d at 1274, as in
the instant case, Respondent Union asserted that the re-
strictions of Section 8(b)(1)(B) were "never intended to
reach the picketing that took place . . . . They [Respon-
dent Union] argue that Section 8 (b)(1)(B), so far as it per-
tains to grievance adjusters, is concerned solely with at-
tempts by a labor organization to change the person
utilized by the employer to adjust the grievances of mem-
bers of that same organization ." The court of appeals, after
having "examined the legislative history with care ...
concluded:
... we have found nothing showing that Congress
intended not to reach conduct of the sort that took
place in this case-conduct which all parties agree
comes within the statute 's literal scope.
The court declined to create an exception that "would im-
munize MM&P's conduct here ." The court stated:
The coercive nature of MM&P's picketing , especially
in light of MM&P's successful efforts to capitalize on
its affiliation with ILA, precludes resting the legality
of MM&P's picketing on an open -ended inquiry into
the company's "real purpose" in choosing MEBA over
MM&P. The company has an interest in being free
from coercion from labor organizations in the selec-
tion of its grievance adjusters, no matter what its rea-
sons for choosing one union over the other.21
The principles applied by the Board and upheld by the
court of appeals in Marine and Marketing, supra, are con-
trolling in the instant proceeding. And, applying these
principles here, I find and conclude that Respondent
Union violated the prohibition of Section 8(b)(1)(B) of the
Act by picketing the Ultramar and Sugar Islander in order
to force Employers Westchester and Pyramid to replace
their MEBA licensed deck officers who had grievance ad-
justing functions with licensed deck officers who were
members of Respondent. Respondent Union, by the fore-
going conduct, has thus restrained and coerced employers
in the selection of their representatives for the purposes of
the adjustment of grievances.
The credible evidence of record, as detailed supra, estab-
lishes that the purpose of the picketing in the instant case,
as in Marine and Marketing, supra, was to pressure Em-
ployers Westchester and Pyramid to break their contracts
with MEBA, fire the masters and mates, and hire instead
Respondent's masters and mates. Thus, in the case of the
Ultramar, Respondent Union President O'Callaghan first
discussed this subject with Berger, an officer and principal
stockholder in Aries, during 1971, while the Ultramar was
under construction. O'Callaghan was then reassured by
Berger "that our contractual relationship would remain the
same" and that "there was nothing under-handed going
with Berger" and MEBA. Subsequently, during late May
or early June 1973, when construction of the Ultramar was
nearly completed, O'Callaghan again met with Berger and
"asked [Berger] point blank," "Are we going to get the
contract" for the licensed deck officers aboard the Ultra-
mar. About this same time , on July 19, 1973, O'Callaghan
also wrote Berger:
The International Organization of Masters, Mates
and Pilots, the International Marine Division of the
International Longshoremen's Association, made up
of the most highly trained officers in any merchant
marine in the world, possesses the only charter issued
by the AFL-CIO for Masters and other Licensed
Deck Officers on ocean going vessels registered under
the U.S. flag.
2i The court of appeals distinguished the Supreme Court's decision in
Hanna Mining Co. v. District 2, Marine Engineers Beneficial Association, 382
U.S. 181 (1965). In that case, as the court of appeals noted (486 F.2d at
1275, In. 3), MEBA picketed a vessel claiming that the employer unfairly
had refused to recognize the union as bargaining agent of the vessel 's engi-
neers. The Supreme Court held that state court jurisdiction to enjoin the
picketing was not preempted by federal law since the conduct was not argu-
ably proscribed by Section 8(b) of the Act. The court of appeals , in distin-
guishing Hanna Mining Co, states:
While this may constitute an implicit holding that the picketing there
did not violate § 8(b)(1)(B), an obvious difference distinguishes the
Hanna picketing from that which took place in the instant case. In
Hanna, the picketing was not directed at having certain engineers fired
and replaced , as was the case here , but rather at having MEBA recog-
nized as the bargaining representative of the employed engineers, a
majority of whom allegedly desired MEBA as their representative.
38 DECISIONS OF NATIONAL LABOR RELATIONS-BOARD
O'Callaghan stated in his letter that he was "pleased to be
able to have the opportunity to demonstrate that the con-
tinuing exclusive recognition of the IOMM & P [Respon-
dent] in representing the Master and other Licensed Deck
Officers aboard the new OBO type construction should
be of paramount importance in providing labor stabil-
ity. . . . " O'Callaghan noted that "Our affiliation with the
International Longshoremen's Association cannot help but
provide additional insurance against unwarranted work
stoppages in view of the nature of employment of OBO
type construction." O'Callaghan enclosed with his letter a
"copy of our collective bargaining agreement.... "
About this same time , also during mid-July 1973, ILA
President Gleason apprised Berger that "he would be man-
ning the Ultramar with other MM&P officers.... " ILA
President Gleason admonished Berger that Gleason "will
tie up all American ships if I [Gleason] have to."
Respondent Union Secretary-Treasurer Lowen similarly
spoke with Berger during early August 1973. Lowen was
concerned "who the deck officers would be" on the Ultra-
mar and he urged Berger to sign a collective -bargaining
agreement . And, about August 7, 1973, Respondent Union
Executive Vice President William Caldwell telephoned
Berger in order to ascertain "what unions were going to
man the ship." Caldwell, unsatisfied with Berger's answer,
warned Berger : "We are going to harass that ship until you
would be glad to sell it for scrap." Thereafter, during mid-
November 1973, O'Callaghan expressed his strong displea-
sure to Berger when advised by Berger that Westchester "is
handling the crewing" of the Ultramar.
About November 29, 1973, the Ultramar was picketed in
the vicinity of the Bunge Corporation Grain Elevator in
Destrehan, Louisiana, with signs asserting that the Ultra-
mar works its deck officers "under lower standards" than
those worked under by deck officers represented by Re-
spondent Union-"Masters, Mates and Pilots, Marine Di-
vision of the International Longshoremen's Association,
AFL-CIO." O'Callaghan acknowledged that he "had spo-
ken to the top officers of the Union"; O'Callaghan had
"suggested and we all agreed that we had to take action to
protect our contracts and to protect our Union and would
take whatever action was necessary to do that." O'Calla-
ghan had conferred with the two International Officers and
three district vice presidents of the Offshore Division. Fur-
ther, O'Callaghan had "notified Teddy Gleason [ILA presi-
dent] that I [O'Callaghan ] was going to have a picket line
around the Ultramar when she got into port." O'Callaghan
admittedly "wanted a contract"; he admittedly "wanted
members of the Masters, Mates and Pilots serving aboard
those vessels as licensed deck officers." Respondent Union
Secretary-Treasurer Lowen, when asked what were, in his
view, the objectives of the picketing in this case, acknowl-
edged, in part: We didn't know what we really could ac-
complish. Maybe they would give us the ships back. °22
22 O'Callaghan testified that he had "more or less turned the whole opera-
tion over to Contract Enforcement Officer Bob Lowen, but I [O'Callaghan]
did tell him [Lowen] to make sure that we make everyone aware of the fact
that we wanted that contract ." Lowen, Respondent's secretary-treasurer,
was also responsible for the picketing of the Floridian in Marine and Mar-
The credible evidence of record, as recited supra, also
establishes a similar purpose or objective with respect to
the picketing of the Sugar Islander. During late 1971, while
the Sugar Islander was under construction, Captain Robert
E. Durkin, Respondent's Vice President, wrote Boyd Mc-
Naughton, C & H's board chairman, urging his company
or whatever company operates the vessel to sign a collec-
tive bargaining agreement "as soon as possible ." During
late 1972, Respondent Union President O'Callaghan and
Respondent Union Secretary-Treasurer Lowen repeatedly
apprised representatives of Matson Navigation Company
that "they would take whatever steps were necessary to
secure the manning of the Sugar Islander." And, during
late September 1973, the Sugar Islander was picketed in the
Gulf Area with signs stating that it was "unfair to the Mas-
ters, Mates and Pilots, Marine Division, of the Internation-
al Longshoremen's Association, AFL-CIO." The direc-
tions and instructions for this picketing, like in the case of
the Ultramar, came from Respondent Union President
O'Callaghan. The Sugar Islander was later picketed during
January 1974 with signs identical to those used against the
Ultramar. As stated, these picket signs named "Masters,
Mates and Pilots, Marine Division of the International
Longshoremen's Association, AFL-CIO." There is no ref-
erence in the picket sign to Respondent's "Offshore Divi-
sion."
And, as discussed in section III, C, supra, the essentially
undisputed and credible evidence of record shows that the
licensed supervisory deck officers aboard the Ultramar and
Sugar Islander, as was the case in Marine and Marketing,
supra, perform grievance adjusting functions with respect
to the unlicensed nonsupervisory personnel. The collective-
bargaining, contracts between Employers Pyramid and
Westchester and the SIU for the unlicensed personnel con-
template the adjustment of such grievances by these "supe-
rior officers." The credible testimony of both Captain Mc-
Auliffe and Captain Kingma provide examples of such
grievance adjusting. Respondent, in its posthearing brief,
does not seriously dispute the fact that ". . . licensed deck
officers aboard the two ships are supervisors who in fact
perform grievance adjusting functions for their respective
Employers.
Respondent Union, in its answer, denies that it is a labor
organization under the Act. In Marine and Marketing, su-
pra, as the court of appeals noted, Respondent "admittedly
is a labor organization under the Act." Further, the court
of appeals recalled (486 F.2d at 1273): -
... our own court has recently held that, because
MM&P has certain locals containing statutory "em-
ployees", it constitutes a "labor organization" subject
to the restrictions of Section 8(b). See Int. Org. of Mas-
ters, Mates & Pilots v. N.L.R.B., 351 F.2d 771, 777
(C.A.D.C. 1965).
The credible evidence of record in the instant case amply
keting, supra The picket sign in that case, as here, only referred to "Masters,
Mates and Pilots, Marine Division , ILA, AFL-CIO" and did not refer to
Respondent's "Offshore Division " The ILA honored the picket line in that
case, as here. And, as the Board found in Marine and Marketing, supra, 197
NLRB at 401, O'Callaghan told that employer: "by tradition those jobs
belonged to us" and "we are going to stop the ship."
INTL. ORGANIZATION OF MASTERS , MATES AND PILOTS 39
establishes that the status of Respondent has not been
changed in any material manner . Respondent Union still
has "certain locals containing statutory employees" and
continues to be a "labor organization" within the meaning
of the Act. Thus, as discussed supra, section II,
Respondent's regions of its not yet "fully formed" Inland
Division are composed of some 200 to 250 rank-and-file
personnel who are admittedly "statutory employees." 23
The provisions of Respondent's 1970 constitution also
reflect the continuing role of the International (Respon-
dent) in the affairs of its subordinate locals. For example,
the constitution provides:
Subordinate bodies shall have authority to negotiate
agreements affecting their locality and jurisdiction ex-
clusively. The agreements must be made in the name
of the International Organization of Masters, Mates and
Pilots. No agreement shall be signed by an officer with-
out receiving the consent of the International President
, ... [Emphasis supplied.]
And, the 1970 constitution provides that International
president (O'Callaghan) act as the executive officer of fully
formed divisions and render services thereto. The Interna-
tional executive vice president (Caldwell) is empowered to,
inter alia, act as the assistant executive officer of the fully
formed divisions. And, the duties of the International sec-
retary-Treasurer (Lowen) include acting as financial officer
of all fully formed divisions.24
In sum , I find and conclude that Respondent Union
continues to be and is a labor organization within the
meaning of Section 2(5) of the Act. Respondent asserts
(br., pp. 21-25) that "the picketing complained of in this
case was conducted by the Offshore Division of MM P
which is not a labor organization within the meaning of the
Act." However, under applicable principles of agency law,
Respondent Union is responsible for the conduct com-
plained of in this case . Cf. International Organization of
Masters, Mates and Pilots v. N.L.R.B., supra, 351 F.2d at
777; Riley-Stocker Construction Co., 197 NLRB 738, 742-
743 (1972); W.L. Crow Construction Co., 192 NLRB 808,
812-814 ( 1971). Here , Respondent's International officers
23 Respondent , in its posthearing brief states:
Although MM P, as its name implies , is composed primarily of Masters
and Mates (licensed deck officers) and pilots-all of whom are "super-
visors" within the meaning of the Act-some of its subordinate bodies
do represent a small number of "employees" as defined in the Act.
principally unlicensed personnel (such as deck hands or cooks) on tug-
boats, ferries and similar vessels, which, because they employ such few
people, are frequently employed on a "top to bottom " basis.... It is
because of this small number of "employee" members that the Board
regards MM&P as a "labor organization" as defined in the Act. See,
e.g International Organization of Masters, Mates and Pilots, 144 NLRB
1172 (1963), enfd. 351 F.2d 771 (C.A.D.C., 1965)
24 The record reflects that a number of Respondent's representatives such
as A. Scott, M. Weinstein , W. Beech , J. Bierne , and F . Kyser serve in dual
capacities with respect to Respondent 's Offshore Division and the regions of
its not yet "fully formed" Inland Division . Further, the record reflects that
Respondent continues to avail itself of the Board's processes as a labor
organization. Cf. Timbaher Towing Co., 208 NLRB 613 (1974); B.F. Dia-
mond Construction Co., 163 NLRB 161 (1967), enfd . 410 F.2d 462 (C.A. 5,
1969); and A.L. Mechhng Barge Lines, 192 NLRB 1118 (1971). All members
of Respondent , including those of its inland regions , participated in electing
the International Officers and in the adoption of the 1970 constitution.
repeatedly contacted representatives of the employers who
were involved in the operation of the two vessels in an
effort to have Respondent's licensed deck officers em-
ployed aboard the vessels instead of those officers who
were members of MEBA. Respondent's International offi-
cers participated in the decision to picket the vessels. In-
deed, Respondent Union President O'Callaghan issued the
directives and instructions for the picketing and gave ILA
President Gleason advance notification of the picketing.
The picket signs name only Respondent Union and make
no reference to its "Offshore Division." And, assessed in
the context of the background rivalry between Respondent
Union and MEBA with respect to the licensed deck offi-
cers and the relationship of Respondent Union to its re-
gions and divisions, I find and conclude that Respondent is
fully responsible for the Section 8(b)(1)(B) conduct in this
case. 5
Respondent argues that the Board and Court of
Appeal's decision in Marine and Marketing, supra, is no
longer controlling because of the Supreme Court's subse-
quent decision in Florida Power & Light Co. v. International
Brotherhood of Electrical Workers. Local 641, 417 U.S. 790
(1974). However, Florida Power dealt with the question of
whether Section 8(b)(1)(B) proscribes union discipline of
supervisor members for performing rank-and-file work
during an economic strike. Here, we are concerned with
direct union pressure upon employers to replace and
change the identity of representatives selected by the em-
ployers for grievance adjustment functions. Accordingly,
in my view, the Florida Power holding is not controlling
here. I note, in this respect, that Judges Wright and Mack-
innon, who, respectively, wrote the Court of Appeals ma-
jority and dissenting opinions in the Florida Power cases,
formed the majority in the Marine and Marketing case.
And, as stated, the Supreme Court denied certiorari in Ma-
rine and Marketing.26
The complaint in the instant case alleges that Respon-
dent Union violated Section 8(b)(1)(B) of the Act by pick-
eting the Employer's ships with the object of causing the
employers to replace their licensed personnel, represented
by and members of MEBA, with members of Respondent
Union. Applying the principles stated in Marine and Mar-
keting, supra, I find and conclude, as discussed above, that
picketing for such an objective, in the circumstances of this
25 Respondent, in its brief , relies on DiGorgio Wine Co, 87 NLRB 720
(1949), affd 191 F.2d 642 (C.A.D.C, 1951), cert. denied 342 U.S. 869. Di-
Gorgio is not controlling here because "statutory employees" are members
of and participate in Respondent as demonstrated above; the picketing here
was conducted under direction and instruction from Respondent ; and the
interests of Respondent and its "Offshore Division" are identical.
26 At the hearing , counsel for Respondent argued that the picketing in this
case was for a lawful so-called area standards objective . Cf. Keith Riggs
Plumbing, 137 NLRB 1125, 1126 (1962); Claude Everett Construction Co,
136 NLRB 321 (1962); Retail Clerks International Association, 166 NLRB
818, 823-824 (1967), enfd. 404 F 2d 855 (C A 9, 1968). The Board, in de-
termining whether a union has picketed for an unlawful objective, is not
bound by the union 's self-serving declarations of lawful object Cf. N.L R B
v Local 182, International Brotherhood of Teamsters [Woodward Motors],
314 F 2d 53, 58-59 (C A. 2, 1963).In the instant case , it is clear that Respon-
dent was in fact picketing for a proscribed objective. Respondent Union
President O'Callaghan acknowledged that , inter aha, he "wanted members
of the Masters, Mates and Pilots serving aboard those vessels as licensed
deck officers"-"That's right . That's all I wanted ." I therefore reject this
contention as not supported by the credible evidence of record.
40 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
case, is proscribed by Section 8(b)(1)(B) of the Act. How-
ever, General Counsel argues that Respondent 's picketing
was further violative of Section 8(b)(1)(B) because its ob-
ject was, in addition , to cause the employers "to recognize
Respondent as the sole collective bargaining representative
of all licensed personnel"; "to enter into a collective bar-
gaining agreement with Respondent covering the terms
and conditions of the licensed personnel," and/or "to im-
plement for all licensed personnel the terms and conditions
of employment provided licensed personnel represented by
Respondent." As General Counsel argues, ". . . if the only
object of Respondent 's picketing were . . . to gain recogni-
tion as representative of the supervisors already employed,
picketing for this object alone would have violated Section
8(b)(1)(B) in the circumstances of the instant case ." Since I
have found the 8 (b)(1)(B) violation based upon what may
be termed the replacement rationale as applied in Marine
and Marketing, supra, and in view of the order which I
recommend to remedy this violation , I deem it unnecessary
to determine whether or not Respondent also violated this
Section because its picketing was also for recognition, or
collective-bargaining agreement , or union -standards objec-
tives . In declining to reach these additional and alternative
issues raised by General Counsel , I note that Section 14(a)
of the Act states:
Nothing herein shall prohibit any individual employed
as a supervisor from becoming or remaining a member
of a labor organization, but no employer subject to
this Act shall be compelled to deem individuals de-
fined herein as supervisors as employees for the pur-
pose of any law, either national or local, relating to
collective bargaining.
And, as the Supreme Court stated in Florida Power, supra:
By its terms, the statute proscribes only union restraint
or coercion of an employer "in the selection of his
representatives for purposes of collective bargaining
or the adjustment of grievances", and the legislative
history makes clear that in enacting the provision
Congress was exclusively concerned with union at-
tempts to dictate to employers who would represent
them in collective bargaining and grievance adjust-
ment.
n D
Nowhere in the legislative history is there to be found
any implication that Congress sought to extend pro-
tection to the employer from union restraint or coer-
cion when engaged in any activity other than the selec-
tion of its representatives for the purposes of collective
bargaining and grievance adjustment.
Cf. Hanna Mining Co. v. District 2, MEBA, 382 U.S. 181
(1965) as distinguished by the court of appeals in Marine
and Marketing, supra, 486 F.2d at 1275, fn. 3.
CONCLUSIONS OF LAW
1. Westchester, Aries, Pyramid , and C & H are employ-
ers engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. Respondent International Organization of Masters,
Mates, and Pilots, Marine Division , International
Longshoremen's Association , AFL-CIO, is a labor organi-
zation within the meaning of Section 2(5) of the Act.
3. Respondent Union has restrained and coerced Em-
ployers Westchester and Pyramid in the selection of their
representatives for the purposes of the adjustment of griev-
ances by picketing the vessels Ultramar and Sugar Islander
with an object of causing the Employers to replace their
licensed deck officers who are members of and who are
represented by Dist . No. I MEBA and District No. 2
MEBA-AMO with licensed deck officers who are mem-
bers of and who are represented by Respondent Union, in
violation of Section 8(b)(1)(B) of the Act.
4. The unfair labor practices found herein affect com-
merce within the meaning of Section 2(6) and (7) of the
Act.
THE REMEDY
Having found that Respondent Union has engaged in
conduct violative of Section 8(b)(1)(B) of the Act, I shall
recommend that it cease and desist from engaging in such
conduct and take certain affirmative action necessary to
effectuate the purposes and policies of the Act. The Board
has found that Respondent Union previously engaged in
similar acts of misconduct in Marine and Marketing, supra,
in violation of Section 8(b)(1)(B). Further, I note that the
record in the instant case reflects that the Ultrasea, a sister
ship of the Ultramar, was similarly picketed. Under these
circumstances, and in order to effectuate the purposes and
policies of the Act, I shall therefore recommend that Re-
spondent cease and desist from in any other manner re-
straining or coercing Employers Westchester or Pyramid in
the selection of their representatives for the purpose of the
adjustment of grievances.
[Recommended Order omitted from publication.]