Intl Oganization Of Masters, Mates and Pilots

National Labor Relations Board - Board Decisions

Jun 23, 1976

224 N.L.R.B. 1626 (N.L.R.B. 1976)

1626 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
International Organ ization of Masters , Mates and Pi-
lots, AFL-CIO and Cove Tankers Corporation
Cases 23-CE-10, 23-CC-609, and 23-CB-1679
June 23, 1976
DECISION AND ORDER
By MEMBERS JENKINS, PENELLO, AND WALTHER
On January 13, 1976, Administrative Law Judge
Sidney J Barban issued the attached Decision in this
proceeding I Thereafter, Respondent filed exceptions
and a supporting brief, the General Counsel and the
Intervenor filed briefs in support of the Administra-
tive Law Judge's Decision, the General Counsel filed
a request for clarification of the Administrative Law
Judge's recommended Order, and the Charging Party
filed a reply brief
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 to the
extent consistent herewith
We agree with the Administrative Law Judge that
Respondent violated Section 8(b)(4)(i) and (ii)(A)
and 8(b)(1)(B) by its picketing activities and by its
action in rem against the Mount Explorer 2 However,
'Associated Maritime Officers Division District 2 Marine Engineers
Beneficial Association AFL-CIO hereinafter referred to as the Intervenor
was permitted to intervene in this proceeding on the basis of its current
collective bargaining agreement with Cove Tankers covering the licensed
deck officers aboard the Mount Explorer
2 With regard to the in rent action the Administrative Law Judge con
eluded that it was filed by Respondent in support of its unlawful picketing
and in furtherance of its larger objective to compel Lawrence and its
subsidiaries to agree to Respondents contract and enforce it aboard the
Mount Explorer In addition, since the Administrative Law Judge also con
eluded that the reason offered by Respondent for its action was an after
thought constituting a strategem to mask Respondents real intent, the
filing of the lawsuit may not have been taken in complete good faith Ac
cordingly since Respondents filing of the lawsuit was in pursuit of an
unlawful objective we agree with the Administrative Law Judge that in
these circumstances Respondent violated Sec 8(b)(1)(B)
In its request for clarification the General Counsel requests that para
graph 2(a) of the Administrative Law Judge s recommended Order provid
mg for the posting of notice be clarified to provide that the notice be posted
at all places where the Respondent does business and maintains meeting
halls throughout the United States By its past similar unlawful activities
the Respondent has exhibited a proclivity to violate the Act In view of this
proclivity we find that it is appropriate to order the broad posting of notice
requested by the General Counsel Accordingly we shall modify the recom
mended Order to provide for the posting of notice by the Respondent at all
of its business offices and meeting halls located within the United States
(including the offices and meeting halls of its Offshore Division)
we do not agree with the Administrative Law Judge
that by these actions Respondent violated Section
8(e) of the Act
For the reasons stated below, we find that the ra-
tionale of the cases relied on by the Administrative
Law Judge, including Seatram Lines, Inc,' is inappli-
cable to the instant case and that Respondent has not
violated Section 8(e) as a result of its picketing activi-
ties or its action in rem against the Mount Explorer
Seatraan involved a situation where the employer
and the union had entered into a collective-bargain-
ing agreement containing a "hot cargo" provision
more than 6 months prior to the time that the unfair
labor practice charges were filed Since the collective-
bargaining agreement had been entered into outside
the 6-month period prescribed in Section 10(b) of the
Act, challenge to the "hot cargo" provision on its
face was barred However, the Board found that the
union's demand for arbitration of the employer's al-
leged breach of the "hot cargo" provision constituted
a reaffirmation of the provision tantamount to an
"entering into" within the prohibition of Section 8(e)
of the Act
By its plain language, Section 8(e) forbids only the
"entering into" of a "hot cargo" agreement Howev-
er, as revealed in Seatraan, supra, the Board has con-
strued the language "to enter into" broadly Thus,
the Board has found that the maintenance, enforce-
ment, and reaffirmation of a "hot cargo" clause con-
stitutes "entering into " 4 Furthermore, in order to
find an "entering into" based on reaffirmation, it is
not necessary that there be compliance as well as a
demand for compliance 5
Here, unlike the situation in Seatraan and related
cases, there was no contract between the Respondent
and the Charging Party which could be maintained,
enforced, or reaffirmed 6 Therefore, although the Re-
spondent attempted by its picketing and action an
rem to compel the Charging Party to enter into and
enforce a bargaining agreement containing provi-
sions prohibited by Section 8(e), there is no basis for
finding the requisite "entering into" under the
Board's construction of that term Accordingly, we
shall dismiss the 8(e) allegations of the complaint
3 International Organization of Masters Mates and Pilots AFL-CIO (Sea
train Lines Inc) 220 NLRB 164 (1975)
4Automotive Petroleum & Allied Industries Employees Union Local 618
affiliated with International Brotherhood of Teamsters Chauffeurs Ware
housemen & Helpers of America (Greater St Louis Automotive Trimmers and
Upholsterers Association Inc) 134 NLRB 1363 (1961) Los Angeles Mailers
Union No 9 1 T U (Hillbro Newspaper Printing Company Division of Hearst
Publishing Company Inc) 135 NLRB 1132 (1962) enfd 311 F2d 121
(C A D C 1962) Dan McKinney Co 137 NLRB 649 (1962)
5 Danielson v International Organization of Masters Mates and Pilots
AFL-CIO 521 F 2d 747 (CA 2 1975)
6 In this regard we agree with the Administrative Law Judge that the
Charging Party was not a party to or bound by the Respondent s bargain
mg agreement
224 NLRB No 206
INTL ORGANIZATION OF MASTERS, MATES AND PILOTS 1627
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent, In-
ternational Organization of Masters, Mates and Pi-
lots, AFL-CIO, Houston, Texas, and New York,
New York, its officers, agents, and representatives,
shall
1 Cease and desist from
(a) Engaging in, or inducing or encouraging any
individual employed by Lawrence Shipping Corpora-
tion, Cove Tankers Corporation, Mount Shipping,
Inc, or by any other person engaged in commerce or
in an industry affecting commerce, to engage in a
strike or refusal in the course of his employment to
perform any services, or threatening, coercing, or re-
straining any of the aforesaid persons, wherein either
case an object thereof is to force or require any em-
ployer to enter into any agreement express or implied
whereby the Employer ceases or refrains or agrees to
cease or refrain from doing business with any other
person within the meaning of Section 8(e) of the Act
(b) Picketing the SS Mount Explorer with an ob-
ject of causing Lawrence Shipping Corporation,
Cove Tankers Corporation, or Mount Shipping, Inc,
to replace the master or chief mate who is repre-
sented by and is a member of Associated Maritime
Officers Division, District 2, ME B A, AFL-CIO,
with a master or chief mate who is represented by
and is a member of Respondent or to obtain recog-
nition as sole collective-bargaining representative of
such officer, or to impose Respondent's terms and
conditions of employment on the selection, hire, or
retention of the master or chief mate
(c) In any other manner causing, or seeking to
cause, any employer to enter into a contract or agree-
ment, express or implied, whereby such employer
ceases or refrains, or agrees to cease or refrain, from
doing business with any other persons or in any other
manner restraining or coercing any employer in the
selection of his representatives for the purpose of col-
lective bargaining or the adjustment of grievances
2 Take the following affirmative action which it is
found will effectuate the policies of the Act
(a) Post at all its business offices and meeting halls
in the United States (including the offices and meet-
ing halls of its Offshore Division) copies of the at-
tached notice marked "Appendix "' Copies of said
notice, on forms provided by the Regional Director
for Region 23, after being duly signed by
7 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
Respondent's representatives , shall be posted by Re-
spondent immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter,
in conspicuous places, including all places where no-
tices to members are customarily posted Reasonable
steps shall be taken by Respondent to insure that
said notices are not altered , defaced , or covered by
any other material
(b) Furnish the Regional Director for Region 23
signed copies of the aforesaid notice for posting by
the companies named above , those companies will-
ing, at places where they customarily post notices to
their employees
(c) Notify the Regional Director for Region 23, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply here-
with
IT IS FURTHER ORDERED that the 8 (e) allegations of
the complaint be, and they hereby are, dismissed
MEMBER JENKINS, dissenting in part
While I agree with my colleagues in the majority
that Respondent's actions in picketing the Mount Ex-
plorer constituted violations of Section 8(b)(4)(1) and
(ii)(A) and 8(b)(1)(B) and that Section 8 (e) was not
here violated , I can find no basis in Board law for
concluding that Respondent 's action in filing a law-
suit , under the circumstances here, was similarly vio-
lative of the Act
It is well established that the Board will "accom-
modate its enforcement of the Act to the right of
persons to litigate their claims in court , rather than
condemn the exercise of such right as an unfair labor
practice " Clyde Taylor, d/b/a Clyde Taylor Compa-
ny, 127 NLRB 103, 109 ( 1960) Subsequent to the
Taylor decision , the Board has held that even if a
lawsuit is filed claiming rights pursuant to an illegal
contract provision under the Act, absent bad faith,
such action will not support a finding that the filing
itself violated the Act International Union of Operat-
ing Engineers, Local Union No 12, AFL-CIO (Robert
E Fulton), 220 NLRB 530 (1975)
The Administrative Law Judge's finding that Re-
spondent decided to file the suit after determining
that its picketing efforts were unsuccessful is no dif-
ferent from the union's decision in Fulton to file a
suit for breach of contract predicated on a provision
which was found violative of Section 8(e) of the Act
There is no contention here that Respondent
brought its lawsuit in bad faith , nor that a former
officer of a vessel has no right to file a maritime lien
against his vessel for both earned and unearned wag-
es Without such an accompanying factual context
there can be no basis for finding, as the majority
does , that merely filing the suit was violative of the
Act
1628 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I would therefore dismiss the complaint insofar as
it alleges violations of the Act by Respondent in the
filing of the lawsuit
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 SS Mount Explorer or
the owners or operators of that vessel , or in any
other manner restrain or coerce the owners or
operators of the Mount Explorer-
(1) to replace the master or the chief mate
aboard the Mount Explorer with a licensed
deck officer who is a member of or is repre-
sented by International Organization of Mas-
ters, Mates and Pilots, AFL-CIO, or
(2) to gain recognition as the sole collec-
tive-bargaining agent of the master or chief
mate selected by the owners or operators of
the Mount Explorer as their representative
aboard that vessel, or
(3) to impose International Organization of
Masters, Mates and Pilots, AFL-CIO, terms
and conditions of employment on the selec-
tion, employment, or retention of the master
or chief mate on the Mount Explorer, or
(4) to enter into any agreement with Inter-
national Organization of Masters, Mates and
Pilots, AFL-CIO, whereby the owners or op-
erators of the Mount Explorer agree to cease
or desist from doing business with any other
person within the meaning of Section 8(e) of
the National Labor Relations Act
WE WILL NOT, by picketing or in any other
manner, cause or seek to cause the owners or
operators of the SS Mount Explorer, or any other
employer, to enter into a collective-bargaining
agreement with International Organization of
Masters, Mates and Pilots, AFL-CIO, whereby
such employer ceases or refrains, or agrees to
cease or refrain, from doing business with any
other person
DECISION
STATEMENT OF THE CASE
SIDNEY J BARBAN, Administrative Law Judge This mat-
ter was heard at Houston, Texas, on July 22, 23, 24, and 25,
1975 (all dates herein are in 1975 unless otherwise noted),
upon a consolidated complaint issued on June 17, in Cases
23-CE-10 and 23-CC-609, and upon a complaint in Case
23-CB-1679, issued on June 18 and consolidated with the
two previous cases by an order dated June 19 1 The com-
plaints allege that the above-named Respondent (herein
sometimes "Respondent IOMMP" or "IOMMP") engaged
in picketing the SS Mount Explorer, a ship owned and oper-
ated by Cove Tankers, with an object of forcing or requir-
ing Cove Tankers to enter into a collective-bargaining con-
tract containing provisions in violation of Section 8(e) of
the Act, thereby violating Sections 8(b)(4)(i) and (ii)(A) of
the Act, and by such picketing and other conduct coerced
and restrained Cove Tankers in the selection of its repre-
sentatives for the purposes of collective bargaining and the
adjustment of grievances in violation of Section 8(b)(1)(B)
of the Act Respondent's answer denies the commission of
the alleged unfair labor practices
Associated Maritime Officers Division, District 2, Ma-
rine Engineers Beneficial Association, AFL-CIO (herein
"AMO-MEBA") was permitted to intervene in this pro-
ceeding on the basis of its current collective-bargaining
agreement with Cove Tankers covering the licensed deck
officers aboard the Mount Explorer
Upon the entire record in this case, from observation of
the witnesses and their demeanor, and after due consider-
ation of the briefs filed by General Counsel, Respondent,
Charging Party, and the Intervenor, I make the following
FINDINGS AND CONCLUSIONS
I JURISDICTIONAL FINDINGS
Cove Tankers, a New York corporation with its princi-
pal office in New York City, engaged in operating ocean-
going vessels, during a recent 12-month period received
gross revenues in excess of $1,000,000 from the operation
of the Mount Explorer in foreign and interstate coastwise
trade Respondent concedes and I find that Cove Tankers
is an employer engaged in commerce within the meaning
of the Act
Respondent contends that IOMMP is not a labor orga-
nization within the meaning of the Act, and further that its
Offshore Division, which IOMMP asserts is solely respon-
sible for activities complained of herein, is not a labor or-
ganization within the meaning of the Act The Board has
found on a number of occasions that IOMMP is a labor
organization within the meaning of Section 2(5) of the Act,
and has found that the Offshore Division of IOMMP is an
integral part of IOMMP, and, in circumstances similar to
those in the present case, acts as an arm or agent of
INTERNATIONAL ORGANIZATION OF MASTERS,
MATES AND PILOTS, AFL-CIO
1 Charges in Cases 23-CE-10, 23-CC-609 and 23-CB- 1679 were filed on
May 15
INTL ORGANIZATION OF MASTERS, MATES AND PILOTS
IOMMP in attempting to enforce the IOMMP bargaining
agreement involved in this case , thus carrying out the joint
purposes of IOMMP and its Offshore Division See, e g ,
International Organization of Masters, Mates and Pilots,
AFL-CIO (Seatram Lines), 220 NLRB 164 ( 1975), Interna-
tional Organization of Maters, Mates and Pilots, Marine
Division, International Lgngshoremen 's Association, AFL-
CIO, (Westchester Marine, Shipping Co, Inc, et al), 219
NLRB 26 (1975) The record in this case fully supports
such findings here
II THE FACTS
A Preliminary
For a considerable number of years since the end of
World War II, AMO -MEBA has been engaged in an in-
tense rivalry with IOMMP in an effort to have owners and
operators of American- flag vessels sign bargaining agree-
ments with AMO-MEBA, and not with members of
IOMMP In some cases AMO-MEBA has been successful
in signing up vessels which had previously operated under
IOMMP agreements , but which had been sold or transfer-
red to new owners Respondent IOMMP 's efforts to count-
er the activities of AMO-MEBA and to compel owners of
ships , both newly launched and previously manned by
IOMMP members to operate those ships under the
IOMMP contract rather than under agreement with AMO-
MEBA, by means of picketing-carried out by its offshore
division-and by other means , have resulted in a number
of cases before the Board See, e g, Seatrain Lines, supra,
Westchester Marine, supra, International Organization of
Masters, Mates and Pilots, International Marine Division,
ILA-AFL-CIO, and Union Trabajadores de Muelles y Ra-
mas Anexas, Local 1740, AFL-CIO (Marine and Marketing
International Corporation), 197 NLRB 400 (1972) This is
another in that line of cases
The vessel involved in this case, previously known as the
William J Fields, was owned by the Syracuse Corporation
and operated by Texas City Tankers Corporation under
the IOMMP contract covering licensed deck officers 2 The
Fields had been laid up and its crew and officers paid off
before the vessel was sold, in the Spring of 1975, to Cove
Tankers It was renamed the Mount Explorer, and has been
operated for Cove by Mount Shipping , Inc (herein "New
Mount") Under an agreement with AMO-MEBA, the
Mount Explorer has been manned with licensed deck offi-
cers secured through the hiring hall of that Union
As set forth in more detail hereinafter , the Mount Explor-
er was picketed on three occasions at locations near Hous-
ton, Texas An action in rem was also instituted against the
vessel claiming wages allegedly due to the displaced deck
officers because of the asserted breach of the IOMMP con-
tract The General Counsel contends that by these actions
Respondent IOMMP sought to compel the new owners
and operators of the Mount Explorer to agree to the
2 This bargaining agreement, which is also involved in this case is clearly
between Respondent IOMMP and the several contracting companies
named The Offshore Division of IOMMP is not a separate party to this
agreement notwithstanding the form of heading in the IOMMP print of the
agreement received in evidence
1629
IOMMP contract, which has been held to contain provi-
sions prohibited by Section 8(e) of the Act, and to compel
the new owners and operators to replace the presently em-
ployed AMO-MEBA master and mates with members of
IOMMP, thus coercing them in the selection of their repre-
sentatives for bargaining and grievance-adjustment, in vio-
lation of the Act, citing, inter alga, the cases set forth here-
mabove Respondent, as noted, denies any violation of the
Act Its specific contentions will be considered hereinafter
B The Picketing
After being fitted out and manned, the Mount Explorer
sailed from Galveston, Texas, to Brady Island in the Port
of Houston, where it was berthed on April 23, 1974 It was
there met with pickets bearing signs stating
WE HAVE A CURRENT COLLECTIVE BARGAINING AGREEMENT
COVERING THIS SHIP IT WAS FORMERLY NAMED THE S/S WIL
LIAM J FIELDS IT IS NOW CALLED THE S/ S MOUNT EXPLORER
OUR COLLECTIVE BARGAINING AGREEMENTS WITH PLAZA SHIP
PING COMPANY AND TEXAS CITY TANKERS CORP COVER THIS
VESSEL 3
OFFSHORE DIVISION
INTERNATIONAL ORGANIZATION
OF MASTERS, MATES AND PILOTS
When the vessel shifted to the Crown refinery shortly
thereafter, it was again met with pickets bearing signs with
the same legend
In the May 1975 issue of The Master, Mate & Pilot, the
official publication of Respondent IOMMP, these events
are described and commented upon at length According
to Captain Arthur Holdeman, a vice president of Respon-
dent IOMMP and of its Offshore Division-Gulf, "Notice
[of the manning of the Mount Explorer by AMO-MEBA)
was sent to the International We, the Gulf, were
warned about all the injunctions against the MM&P for
picketing But no one said `don't picket' We decided
to picket International Counsel requested a delay until he
could figure the wording for the signs "
In an unsigned first page article in this same issue, it was
explained, "The reason that the ship was picketed was that
the Mount Explorer was, up until April 11 of this year, the
SS William J Fields which was manned by the IOMM&P,
MEBA District 1 and the National Maritime Union Fol-
lowing its sale and violation of the MM&P collective-bar-
gaining agreement, the vessel was manned with an SIU,
Meba District 2 and AMO crew " The article continued
that after the picketing was found to be unsuccessful, "on
April 25th, following a meeting between Marvin Schwartz,
the MM&P International Counsel, and Gulf officials, it
was decided to file a libel for wages against the SS Mount
Explorer The libel action was filed on the basis of
potential wages which would have been earned by the
MM&P members had the Organization's collective-bar-
gaining agreement not been broken " 4 The asserted
3 Plaza Shipping Company to which we shall have further reference here
inafter never owned or operated the Fields so far as this record shows
4It is noted that the Respondent IOMMP is commonly referred to as the
Con tin ued
1630 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
object of the libel action was to secure wages for the dis-
placed IOMMP master and mates from the date of their
"pay-off [from the Fields] to the end of the contract," ac-
cording to Captain Holdeman's article Pursuant to this
action, a lien was placed against the vessel , apparently on
April 25 The vessel was released upon the posting of a
bond in the amount of $100,000 5
During this period, while the Mount Explorer was at an-
other dock in the vicinity, Respondent had copies of a
statement composed by Captain Holdeman, containing his
explanation of the rivalry between IOMMP and AMO-
MEBA and the actions being taken against the vessel, de-
livered to the master and the mates of the Mount Explorer
When next the Mount Explorer visited the Port of Hous-
ton, Texas, it was picketed at the Union Equity Coopera-
tive grain elevator, on June 15 and 16, 1975, with signs
reading
WE ARE NOT CLAIMING ANY RIGHT TO THE JOBS ON THE S/S
MOUNT EXPLORER AS A RESULT OF ITS HAVING BEEN OPERATED
AS THE S /S WILLIAM J FIELDS BY THE TEXAS CITY TANKER COM
PANY WE DO CONTEND THAT PACK KAHN AND BERKE
THROUGH THEIR CONTROLLED CORPORATIONS AND AFFILIATES
HAVE VIOLATED THEIR COMMON LAW CONTRACTUAL OBLIGA
TIONS WITH THE 1 0 M M & P OFFSHORE DIVISION RELATING TO
THE OPERATION OF THE S/S MOUNT EXPLORER THIS VESSEL IS
BEING OPERATED WITH SUBSTANDARD MANNING WE HAVE NO
DISPUTE WITH ANY OTHER VESSEL AT THIS FACILITY
INTERNATIONAL ORDER OF MASTER MATES &
PILOTS OFFSHORE DIVISION 6
Captain Holdeman was questioned as to the reason for
the changes in the wording of the picket signs According
to his written statements made before the hearing, the
wording of the original signs was composed by
Respondent's counsel The decision to change the word-
ing thereafter, according to Holdeman's testimony, also
was "a decision that came through the attornies " After
considerable questioning as to the reason for the change,
Holdeman pointed to an alleged inaccuracy in the first
sign in which Respondent claimed contractual rights over
the Mount Explorer flowing from Texas City Tankers
Corp Holdeman stated "the prior statement was made
due to a lack of proper knowledge and the intent here
was to correct it " Holdeman next stated that the contrac-
tual obligations flowed to Respondent from Plaza Ship-
ping, but then reverted to the original position on the
sign, asserting that the contractual obligation existed
"also on the basis of Texas City Tankers Corporation "
In respect to Captain Holdeman's assertion that the
original sign was inaccurate due to "lack of proper
Organization in the Constitution of IOMMP in its bargaining contract
and in its official paper
5 There is some testimony by Captain Holdeman indicating that this ac
lion was initiated by the individuals in whose names it was brought This is
not credited The record as a whole and the articles in the May 1975 Mas
ter Mate & Pilot by Heideman and another writer make it clear that this
action was initiated sponsored and supported by Respondent IOMMP in
furtherance of Respondents picketing objectives
6 The wording of this sign is taken from the admitted allegation of the
complaint I have no doubt however that the original sign used the word
Organization rather than Order
knowledge," he also claimed that he was not informed
that Cove Tankers had purchased the Mount Explorer un-
til 12 hours after the picketing had begun on April 23 I
do not credit this It is undisputed that Respondent was
notified of this sale, in writing, on April I 1 A notation on
the copy supplied by Respondent which was received in
evidence indicates that Respondent 's counsel was advised
of this Captain Holdeman, by his own testimony, had
considerable contact with Respondent's officers at its
headquarters, and with its counsel, with reference to the
vessel and the necessity of picketing it, before the original
signs were made
Finally, it is noted that much prior to the inception of
the picketing, as Holdeman states, he had already noti-
fied agents in Galveston and elsewhere to keep watch on
the vessel and report its movements and the flag it was
operating under to him In the absence of any other ex-
planation, I infer that these actions were taken because
Holdeman had been informed of the sale 7 On the record
as a whole, I find that the purposes of the picketing were
not altered because of the alteration of the picket signs
In each instance in which Respondent picketed the ves-
sel, the picket line operated in areas in which it would
serve to induce or encourage employees employed aboard
the vessel, or employees dealing with the vessel to honor
the picket line In fact, according to the May 5 issue of
The Master, Mate & Pilot, the picketing at Brady Island
and the Crown facility was unsuccessful "because of the
refusal by the Explorer's crew to honor the picket line "
Longshoremen, members of the International
Longshoremen's Association, with which Respondent
IOMMP is affiliated, did honor the picket line at the
Union Equity dock
C The Contract
The principal provisions of the IOMMP contract relied
upon by the parties are the following
SECTION V VESSELS BOUND BY THE AGREEMENT
I Coverage of Agreement
a Vessel Coverage This agreement covers the Li-
censed Deck Officers employed on oceangoing U S -
flag vessels, owned, operated or bareboat chartered
(both at present or at any time during the life of this
agreement) by the Company or any of its subsidiaries
or affiliates (whether so at present or at any time dur-
ing the life of this agreement) as an owner, agent, op-
erator or bareboat charterer
b Subsidiary and Affiliate The term "subsidiary" or
"affiliate" shall be deemed to include any business en-
tity whether corporate, partnership, trust, individual,
or otherwise, which is effectively controlled by or ef-
fectively controls the Company either directly or indi-
rectly
c Requirement of Subsidiary or Affiliate to Execute
the Collective Bargaining Agreement The Organization
7 Captain Holdeman s testimony throughout was generally most unim
pressive It tended to be evasive unresponsive and on occasions inconsis
tent on cross examination I am left with the strong impression that he was
attempting to conform his testimony to a preconceived pattern and theory
of defense
INTL ORGANIZATION OF MASTERS, MATES AND PILOTS 1631
may at its discretion at any time require that any such
subsidiary or affiliate execute this agreement and a
refusal to do so will give the Organization the right,
upon ten (10) day written notice to the Company, to
cancel this Agreement The failure of the Organization
to request a subsidiary or affiliate to sign this Agree-
ment shall not in any way affect the obligation of the
Company herein that this Agreement does cover and
include all the licensed Deck Officers on all the vessels
described above whether owned or operated by the
Company or any of its subsidiaries or affiliates
2 Sales and Transfers
a With regard to any sale , charter (but not includ-
ing a vessel which the Company may be operating un-
der a bareboat charter and the charter is terminated)
or any manner of transfer (except sales to foreign flag)
or the Company 's vessel
i At least seventy-two (72 ) hours prior to the date
of the effective transfer of the vessel , written notice
must be given to the Organization by the Company
u The execution by the purchaser , charterer or
transferree of the Organization's collective bargaining
agreement shall be a condition precedent to any sale,
charter or transfer
in If the Company violates subsection 2(a)(1i)
above, the Arbitrator may include as part of his
award, loss of wages and contributions to the various
Organization plans
iv A violation of subsection 2(a)(u) above shall
also permit the Organization to cancel the no-strike
provisions of this Agreement
The General Counsel contends , as the Board held in
Seatrain, supra, that certain provisions set forth in section
V (2) above are prohibited by Section 8(e) of the Act and
further contends that by picketing and other action de-
signed to force or require Cove Tankers to enter into an
agreement containing such provisions, and to apply the
agreement to the Mount Explorer, Respondent violated the
Act
Respondent IOMMP, in its brief , assumes that section
V(2) set out above "does in fact violate §8(e) as the Second
Circuit held in Danielson v International Organization of
Masters, Mates and Pilots, AFL-CIO, supra [521 F 2d 747
(C A 2, 1975) ]," but asserts "that the union was not seek-
ing to enforce this provision of the contract but was pro-
ceeding under the subsidiaries and affiliates clause [section
V(I) above] "
In accordance with that contention , Respondent argues
that the companies which own and operate the Mount Ex-
plorer are obligated to be bound and abide by the terms of
the IOMMP agreement in the operation of that vessel be-
cause those companies are allegedly owned or controlled
by persons who were, assertedly , "subsidiaries" or "affili-
ates" (within the meaning of section V ( 1) of the Agreement
above) of other companies who were signatory to the
IOMMP contract Thus , it is alleged that the picketing, and
the action in rem against the vessel were designed to en-
force that asserted obligation
D The Alleged Subsidiaries and Affiliates
The facts concerning this issue tend to become quite
convoluted They center upon the business activities of two
men, Samual Kahn and Herman Berke Kahn was the
president of Hudson Waterways, a wholly owned subsid-
iary of Seatram Lines, Inc (sometimes herein "Seatrain")
and an officer and director of Seatram Lines As such he
apparently controlled the labor relations policies of Hud-
son Waterways (herein sometimes "Hudson") and signed
the IOMMP contract covering the operations of that com-
pany and apparently of Seatrain Lines and some others
affiliated with it Respondent argues that inasmuch as
Kahn might be said to "effectively control" Hudson Wa-
terways, a "company" within the meaning of section V(1)
of the IOMMP agreement signed by Hudson, therefore
Kahn, by the terms of that section, is a "subsidiary" or
"affiliate" of Hudson In the same manner, Respondent
argues that Kahn also effectively controlled Seatrain and
therefore was an "affiliate" or "subsidiary" of Seatrain
also 8
Herman Berke at one time had control over Plaza Ship-
ping, Inc (which owned a vessel, the Julie), and over
Mount Shipping, Inc (herein "Old Mount") which operat-
ed the Julie Plaza and Old Mount were parties to the
IOMMP contract and the Julie was operated under the
agreement By the same intricate reasoning applied to
Kahn above, it is argued that Berke was a "subsidiary" or
"affiliate" of Plaza or Old Mount within the terms of the
IOMMP agreement
Kahn submitted his resignation from Seatram in No-
vember 1972 because he felt that he no longer had any
influence over the policies and operations of that company,
and was not consulted in regard to these matters Although
he continues to own stock in Seatram, and the company
continued to owe him a substantial amount of money,
Kahn has had no connection with the operations of Sea-
train or its subsidiaries since at least March 1973
In the summer of 1973, Plaza was dissolved after the
Julie was sold to a Panamanian corporation, which was also
owned or controlled by Berke, Old Mount apparently be-
came inactive (its name was thereafter formally changed)
Between the time Kahn resigned from Seatrain and the
date he severed all connections with that company and its
subsidiaries, Kahn formed Lawrence Shipping Corporation
(herein "Lawrence"), which did not own or operate any
vessel until the spring of 1974, when a Panamanian subsid-
iary of Lawrence purchased the Julie, which had been sail-
mg under a foreign flag About this same time, Herman
Berke and Warren Pack (who had previously been associ-
ated with a subsidiary of Seatrain) became equal owners
with Kahn in Lawrence Cove Tankers and New Mount
were thereafter formed as subsidiaries of Lawrence In the
spring of 1975, Cove Tankers purchased the Mount Explor-
8 In its brief Respondent stresses the fact that after Kahn had severed his
connection with Seatrain that company filed a form with the SEC in which
it was asserted that Kahn might be deemed a pa-ent of Seatram within
the definitions set forth by the SEC thus indicating some control over Sea
train There is indication in the record that this notation on the SEC form
was incorrect In any event in the circumstances of this case I believe this
notation has no probative value
1632 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
er from Syracuse, as has been noted New Mount is the
operating agent for the Explorer
At no time has Seatrain or any of its subsidiaries (in the
usual sense of that word), or Plaza had any connection
with Lawrence, Cove Tankers, or New Mount, or the oper-
ations of those companies, nor have those companies had
any connection with Seatrain or its subsidiaries (again in
the usual sense of the term) or Plaza, or with the operations
of these latter companies, so far as this record shows
On the above facts, Respondent argues that Kahn, be-
cause, allegedly, "he is a `parent' of a contract company
(Seatrain)" and Berke, because he "was the sole stockhold-
er or had complete control over Plaza," are "subsid-
iaries" or "affiliates" within the meaning of the IOMMP
contract, and since these two control Lawrence, Cove
Tankers and New Mount, either directly or indirectly,
therefore Lawrence, Cove Tankers, and New Mount must
also be considered "subsidiaries" or "affiliates" within the
meaning of the IOMMP contract
The conclusion that Respondent apparently desires to be
drawn from this chain of reasoning is that by reason of
IOMMP's contracts with Plaza, Hudson and Seatrain,
therefore Lawrence, Cove Tankers, and New Mount are
parties to, or are bound by the terms of that contract, not-
withstanding that Lawrence, New Mount and Cove Tank-
ers have never accepted or agreed to the IOMMP con-
tract 9
It should be noted at this point that neither Syracuse,
from which Cove Tankers purchased the William J Fields
(now Mount Explorer), nor Texas City Tankers which oper-
ated the Fields under the IOMMP contract, are shown to
have had at any time material herein any connection with
Lawrence, Cove Tankers, New Mount, Seatrain, Hudson
Waterways, or any company subsidiary to any of these, or
with the operations of these companies, with the sole ex-
ception of the sale of the Fields to Cove Tankers There is
no evidence that the sale of the Fields on this occasion was
other than an arm's-length business transaction
E Authority to Adjust Grievances
The unlicensed crew aboard the Mount Explorer are rep-
resented by Seafarers International Union, AFL-CIO, un-
der a bargaining contract which provides (art II, sec 2(a) )
that the crew representatives shall stay aware of "all condi-
tions, problems and grievances in their respective depart-
ments, and present to their superior officers all facts,
opinions and circumstances concerning any matters which
may require adjustment or improvement " The record in
this case makes clear that any such grievances would first
be brought, in appropriate cases, to the chief mate for ad-
justment Only where the problem was not satisfactorily
9 As expressed at one point in Resp brief Thus it is clear that affiliate
Herman Berke, and affiliate Sam Kahn joined with Warren Pack and
formed a partnership to operate vessels One of the companies taken into
the partnership was affiliate Mount Shipping Inc we respectfully con
tend that the new company [ New Mount ] was itself an affiliate (it was
controlled by affiliates and operated through an affiliate) and therefore
under section V(1)(a) of the Offshore Division contract was bound under
the terms of [that] contract during the term of that agreement-up to
June 15 1975
adjusted by the chief mate would the grievance or problem
be brought to the master of the Mount Explorer who has
the authority to adjust such grievances No such grievances
arose on the Explorer during the period material to this
case, but the master gave illustrations from his past experi-
ences of such grievances adjusted on vessels operating un-
der bargaining contracts with the SIU and AMO-MEBA
The Board considered a quite similar situation in
IOMM&P (Marine and Marketing), supra In accordance
with the above findings, the record in this case, and the
Board's decision in Marine and Marketing, I find the mas-
ter and the chief mate of the Mount Explorer, at the times
material to this proceeding, were representatives of and se-
lected by Cove Tankers for the purpose of grievance ad-
justment aboard that vessel within the meaning of Section
8(b)(1)(B) of the Act
III ANALYSIS AND CONCLUSIONS
A Responsibility for the Picketing and the In Rem Action
Respondent IOMMP contends that the decision to pick-
et the Mount Explorer was made by officers of the Offshore
Division of the IOMMP and by that Division alone (which
Division assertedly is not a labor organization), and not by
the IOMMP, which disclaims responsibility for the
Division's actions As previously noted, the Board has on
other occasions dealt with this contention and has rejected
it on the basis that the Offshore Division is an integral part
of IOMMP and in these circumstances acts as its agent
The facts in this case support such findings here In short,
the chief executive officers of the IOMMP are also the
chief executive officers of the Offshore Division, and the
officer of the Division who testified that he made the deci-
sion to picket, Captain Holdeman, is also an officer of
IOMMP It is clear that the decision to picket was only
made after consultation with other officers of IOMMP and
because they did not forbid Captain Holdeman to engage
in such conduct Holdeman asserted that he, in fact, held
off picketing the vessel at the request of IOMMP counsel
(who was also identified as counsel to the Division), in
order that counsel might provide wording for the picket
signs
In any event, as the Court of Appeals for the Second
Circuit stated, in response to an identical contention, in
Danielson v IOMM&P, 521 F 2d at 756 "[t]he simple and
complete answer is that the party to the agreement here is
not the Offshore Division but the MM&P itself, which is
clearly a `labor organization ' " Those actions of the Off-
shore Division in seeking to implement and enforce the
terms of the IOMMP agreement by picketing the Mount
Explorer, and by means of the action in rem, made with the
knowledge and assistance of IOMMP, are, in the circum-
stances of this case, binding upon Respondent IOMMP
B The Alleged Violation of Section 8(e) and 8(b)(4)
To the extent applicable here, Section 8(e) of the Act
provides that "It shall be an unfair labor practice for any
labor organization and any employer to enter into any con-
tract or agreement, express or implied, whereby such em-
INTL ORGANIZATION OF MASTERS, MATES AND PILOTS 1633
ployer agrees to cease doing business with any
other person, and any contract or agreement entered into
containing such an agreement shall be to such extent
unenforceable and void "
Section 8(b)(4)(A), insofar as pertinent, provides that it
is a violation of the Act for a labor organization or its
agents to strike or induce or encourage an individual em-
ployed in an industry affecting commerce to strike, or for
such organization or its agents to threaten or coerce any
person engaged in an industry affecting commerce, where,
in either case , an object of such conduct is "forcing or
requiring any employer to enter into any agreement
which is prohibited by Section 8(e) "
The Board has held that bargaining agreements contain-
ing provisions which forbid or inhibit the sale of vessels
subject to such agreements unless the purchaser of the ves-
sel accepts and abides by the terms of such agreements
after purchase come within the prohibition of Section 8(e)
as "union signatory clauses," and umon actions to secure
or enforce such clauses constitute unfair labor practices
within the meaning of the Act See National Maritime
Union of America, AFL-CIO, Commerce Tankers Corpora-
tion (Vantage Steamship Corp), 196 NLRB 1100 (1972),
Sea train Lines, supra In the Seatrain case, the Board held
that the specific provisions of Respondent IOMMP's con-
tract here involved are interdicted by Section 8(e) of the
Act
Respondent contends, however, that the only clauses in
its contract which have been held violative of the Act are
section V, paragraphs 2a(i), (n), (ni), and (iv) relating to
"Sales and Transfers," and asserts that in this case it did
not seek to enforce or maintain these provisions, but was
proceeding under other paragraphs, 1(a), (b), and (c) of
section V of its contract entitled "Coverage of Agreement "
This contention, which has be en set forth in detail herein-
above, is clearly without merit In the first instance, as in-
terpreted by Respondent in this proceeding, the contract
provisions upon which Respondent relies are likewise
"union-signatory" clauses withm the prohibition of Section
8(e) Thus, like the clauses considered in Seatrain, supra,
these clauses, according to Respondent, also require the
purchaser and operator of the vessel to be bound and abide
by the terms of the IOMMP contract as a condition of
acquiring and operating the vessel in question
Further, notwithstanding Respondent's contentions
here, the entire record in this matter, and the prior history
of the dispute between IOMMP and AMO-MEBA, is con-
vincing that Respondent's purpose here is the same as in
Marine & Marketing, to cause the purchaser of the vessel
previously manned under the IOMMP contract to recog-
nize IOMMP and apply the terms of its contract to the
purchased vessel
It is well settled that even a direct successor to an enter-
prise holding a bargaining contract covering its operations
is not bound by such an agre ement-absent consent there-
to-merely because the predecessor enterprise was party to
the agreement See N L R B v The William J Burns Inter-
national Detective Agency, Inc, 406 U S 272 (1972) I see
no reason therefore that Lawrence, Cove Tankers, or New
Mount here should be held to have assumed Respondent's
bargaining agreement-to which they did not assent-
merely because Seatrain Lines, Plaza Shipping, and Texas
City Tankers had previously executed that agreement
Only Texas City Tankers had any contact with the Mount
Explorer before it was sold to Cove Tankers and Respon-
dent seems to disclaim any connection between the two
companies There is no showing that Lawrence, Cove
Tankers, or New Mount was formed to avoid any obhga-
tion of Seatrain Lines, Plaza, Syracuse (the prior owner of
the vessel), or Texas City Tankers (the prior operator of the
vessel) under Respondent's contract Nor is there any
showing that these latter companies have any identity of
interest or control with Lawrence, Cove Tankers, or New
Mount
Respondent does argue that some manipulation is shown
because Lawrence chose not to use Old Mount, which had
contractual obligations to Respondent, as the operating
agent of the newly purchased Mount Explorer, but chose to
incorporate another company, New Mount, for that pur-
pose However, Old Mount had never had any connection
with the vessel before the sale, and I find nothing inconsis-
tent with the terms of the purposes of the Act in the man-
agement decision not to use it to operate the vessel after
the sale
For the reasons stated and upon the record as a whole, I
find that neither Lawrence, Cove Tankers, or New Mount,
during the period with which we are concerned, was a par-
ty to or was bound by Respondent IOMMP's bargaining
agreement
The facts set forth and the entire record make it manifest
and that an essential purpose of Respondent 's actions in
this matter was to compel Lawrence, Cove Tankers, and
New Mount to recognize Respondent as the representative
of those persons employed aboard the Mount Explorer in
the capacity of master and mates, and to accept and abide
by the terms of Respondent's bargaining contract (An im-
portant incident of such purpose, as discussed in a later
section of this decision, was that the owners and operators
of the Mount Explorer should replace its master and mates
with others who were members in good standing of Re-
spondent IOMMP) As I have previously found, I am fur-
ther convinced that this purpose remained constant
throughout the picketing, although Captain Holdeman in-
dicates some shift in purpose coinciding with a subsequent
shift in wording on the picket signs 10 I have previously
noted my lack of confidence in Captain Holdeman' s testi-
mony as to these asserted changes
There is some contention by Captain Holdeman that the
purpose of the picketing was to protest the failure of Law-
rence and its subsidiaries to pay the wages of the master
and mates, members of Respondent IOMMP previously
employed aboard the William J Fields, who had been dis-
placed when the vessel was laid up and were not rehired
when the vessel was recommissioned as the Mount Explorer
after sale to Cove Tankers In support of this contention,
Respondent seems to rely on the fact that after the initial
picketing of the Mount Explorer and before the picket sign
10 However even the changed picket signs stated in pertinent part We
do contend that Pack Kahn and Berke through their controlled corpora
bons and affiliates have violated their common law contractual obligations
with the IOMM&P Offshore Division relating to the SS Mount Explorer
1634 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was changed, an action in rem was filed to secure such
wages on a theory of breach of contract because of alleged
unjust discharge This claim does not seem to stand analy-
sis First, if these members had, in fact, been unjustly dis-
charged, it would be reasonable to expect that Respondent
would be picketing to protest that fact and to seek their
reinstatement But Respondent denies any such purpose,
asserting that it has no desire that they be reinstated-only
that they be paid for not working, to the end of the con-
tract term Secondly, the record shows, as has been found,
that the in rem action was adopted by Respondent, upon
consultation with its attorneys, to bolster its picketing and
its purpose of causing Lawrence and its subsidiaries to ac-
cept and apply its bargaining agreement to the vessel-
indeed, the alleged basis of the action was the failure and
refusal of those companies to comply with that agreement
Lastly, and possibly most significant, none of
Respondent's picket signs, so carefully composed by coun-
sel, state any such purpose I find that this asserted pur-
pose, is indeed an afterthought, constituting a strategem to
mask Respondent's real intent
Of a similar character is Respondent's claim, first made
on its last picket sign, that it was picketing to protest sub-
standard manning aboard the Mount Explorer No doubt
Respondent desired to have a larger complement of mates
employed aboard the vessel However, I am further con-
vinced that Respondent desired to accomplish this, as I
have found, by forcing the acceptance of all of the terms of
its bargaining agreement and their application to the oper-
ation of the vessel It is noteworthy that Respondent did
not refer to this alleged purpose in its original picketing,
but advanced it as a separate support for its actions against
the vessel only 2 months later
In its brief Respondent suggests that its picketing was
designed to secure and enforce "work preservation" claus-
es in its contract In analogous situations, in other cases,
this contention has been rejected by the Board and the
Courts See Seatrain, supra, Marine and Marketing, supra,
NMU (Vantage Tankers), supra, Danielson v IOMM&P,
supra I find it has no merit here
On the basis of the above, and upon the record as a
whole, I find that Respondent IOMMP, by its picketing of
the Mount Explorer, engaged in or induced or encouraged
individuals employed in an industry affecting commerce to
engage in a strike, or refusal to perform services in the
course of their employment, with an object of requiring
Lawrence, Cove Tankers, New Mount, or all of them to
enter into and enforce a contract prohibited by Section 8(e)
of the Act, and thereby violated Sections 8(b)(4)(i) and
(ii)(A), and 8(e) of the Act tl
General Counsel also alleges that the filing of the in rem
Respondent argues that an unsuccessful attempt to secure a contract
prohibited by Sec 8(e) does not violate that section by its terms However it
has long been established that picketing may violate Sec 8(b)(4) even if
unsuccessful In Retail Clerks International Association Local Union No
1288 AFL-CIO (Nickels Pay Less Stores of Tulare County Incorporated)
163 NLRB 817, 820 (1967) the Board tound that the unions attempts to
get employers to agree to contract clauses in violation of Sec 8(e) violated
Sec 8(b)(4) In the various cases cited heremabove the Board and the courts
have uniformly found unsuccessful attempts to secure 8(e) contracts to vio
late Sec 8(e) of the Act
action against the Mount Explorer requiring the owners of
the vessel to obtain security in the amount of $100,000 to
secure the vessel's release further violated Section 8(e) of
the Act Respondent argues that the Board may not dis-
place the "ancient and traditional rights" of the former
officers of the vessel in filing "a maritime lien against his
vessel for both earned and unearned wages " We are here
not concerned, however, with the rights of individuals
against the vessel or any other entity The record here
makes quite clear that the in rem action was instigated and
caused by Respondent to be filed in this instance in sup-
port of its picketing activities and in furtherance of its
"larger objective" of compelling Lawrence and its subsid-
iaries to agree to Respondent's contract and enforce it
aboard the Mount Explorer It is therefore found that Re-
spondent, by instigating the in rem action, causing it to be
filed, and supporting the action violated Section 8(e) of the
Act See, e g , Danielson v Masters, Mates and Pilots, supra
C The Alleged Violation of Section 8(b)(1)(B)
It is a violation of Section 8(b)(1)(B) of the Act for a
labor organization or its agents "to restrain or coerce
an employer in the selection of his representatives for the
purpose of collective bargaining or the adjustment of griev-
ances " As has been found previously, the Master and the
Chief Mate of the Mount Explorer were selected by the
owners and operators of the vessel as their representative
for the purpose of grievance adjustment aboard the Mount
Explorer within the meaning of this Section
The General Counsel contends that Respondent
IOMMP, by its picketing, distribution of certain literature,
and the institution and support of the in rem action against
the vessel, sought to compel Lawrence, Cove Tankers, and
New Mount (hereinafter collectively "the owners") to re-
place the Master and all the mates (members of AMO-
MEBA) selected by the owners to serve on the Explorer
with members of Respondent IOMMP, against the owners'
wishes, in violation of Section 8(b)(1)(B) General Counsel
relies particularly upon the Board's decision in Westchester
Marine Shipping, supra and Marine and Marketing, supra,
where in similar circumstances, the Board held that picket-
ing by Respondent IOMMP in order to secure the replace-
ment of masters and mates (members of AMO-MEBA)
who had grievance-adjusting functions with members of
IOMMP violated Section 8(b)(1)(B) of the Act General
Counsel argues by analogy to the Court's holding in Dan-
ielson v IOMM&P, supra, that the libel action in rem
against the vessel is a damage action which serves
Respondent's larger purpose of compelling the owners to
accept Respondent's bargaining agreement and to enforce
it aboard the Mount Explorer, and to replace the AMO-
MEBA master and mates with an IOMMP master and
mates
Respondent contends that it had no purpose of causing
the owners to replace the AMO-MEBA master and mates
with Respondent's members Respondent points to the fact
that 2 months after the beginning of its picketing it
changed its picket signs to specifically disclaim any claim
for jobs aboard the Explorer, and states it was seeking only
wages for the displaced master and mates and not their
INTL ORGANIZATION OF MASTERS, MATES AND PILOTS 1635
reinstatement Captain Holdeman testified that this was
Respondent's purpose from the outset of the picketing,
even though the initial picket signs did not say so Respon-
dent also relies, in support of this position, upon an assert-
ed interpretation of its bargaining agreement, not ad-
vanced in any prior case apparently, which will be
considered hereinafter
It is not possible to read the prior cases arising out of the
rivalry between the IOMMP and AMO-MEBA, and the
evidence in this case, without comprehending that an es-
sential element of that rivalry is a battle over lobs-a battle
to determine whether the ships involved shall be manned
by members of IOMMP dispatched from its hiring halls or
by AMO-MEBA members from that union's hiring halls
Thus in Marine and Marketing, supra, Respondent sought
to have the employer secure licensed deck officers for its
vessel there from Respondent, not AMO-MEBA, asserting
that "by tradition those jobs belonged to us " 197 NLRB at
401 In Westchester Marine, supra, Respondent asserted
that "the dispute is over which organization-MEBA
or MMP-will supply and represent the employer's li-
censed deck officers and what the terms and conditions of
those licensed deck officers shall be " (219 NLRB 26),
Respondent's president actively sought to have the em-
ployer secure its manning from Respondent and both
Respondent's president and its secretary-treasurer, Robert
Lowen, "repeatedly stated that they would take whatever
steps were necessary to secure the manning of the [vessel]"
(219 NLRB 26), and another agent of Respondent stated,
"those were MMP jobs and MEBA didn't have any busi-
ness representing those officers on that ship " (219 NLRB
26) In Seatrain, supra, Respondent specifically sought, by
arbitration, to require the employer to man the ships in-
volved through Respondent
The record in the present case makes it abundantly clear
that Respondent's actions in this case continues to be vital-
ly concerned with the issue of jobs for its members As an
example, it is noted that the heading of Captain
Holdeman's article on the inception of the picketing of the
Explorer in Respondent's official paper, "The Master,
Mate & Pilot," is headed "M M & P TO FIGHT FOR JOBS ON RUN
AWAY SHIP MOUNT EXPLORER (Emphasis supplied) The body
of the article is concerned in significant part with the rival-
ry for jobs, stating in part that if IOMMP would be so
foolish as to merge with MEBA, "within a very few years,
we would be out of jobs or in the AMO "
On the basis of the facts, and upon the entire record in
this case, I find that Respondent's purpose did not change,
and its picketing and in rem action against the Mount Exp-
lorer were designed, in large part, to compel the owners to
replace the AMO-MEBA master and mates aboard the
vessel with others supplied by IOMMP, in violation of Sec-
tion 8(b)(1)(B) of the Act Indeed, even if it were assumed,
as Respondent argues, that the purpose of the picketing
and the libel action were solely to secure wages for the
displaced IOMMP master and mates, and not to have
them put back to work (which I do not believe), the result
would be the same Such action, contemplating that the
owners would be forced to pay two sets of licensed deck
officers (of which only one set would work) for the dura-
tion of the contract imposes such an onerous burden upon
the owners as to restrain or coerce the owners in the selec-
tion of their grievance-adjustment representatives on the
vessel within the meaning of Section 8(b)(1)(B) of the Act
Cf Danielson v IOMM&P, supra, Seatrain, supra
In coming to these conclusions, I have fully considered
Respondent's contention that even if the owners had ac-
cepted and enforced Respondent's contract, the owners
would not have been required to displace their AMO-
MEBA master and mates with licensed deck officers dis-
patched from Respondent's hiring halls Thus Respondent
argues that under the provisions of section II, 2 of its con-
tract, the owners are "free to select any Master (and Chief
Mate) it desires " This is indeed a startling contention that
any contracting employer under Respondent's contract is
free to obtain manning from any other union's hiring hall,
including that of Respondent's chief rival' The contention
is not credible Indeed, this position is quite inconsistent
with Respondent's main contention, discussed previously,
that the owners have been engaged in a continuing breach
of Respondent's contract by replacing the IOMMP Master
and Mates with those selected by the owners Thus if we
were to credit Respondent's contention that Respondent's
agreement permits the owners to select and employ the
masters and mates it has employed, Respondent's alleged
basis for its picketing and libel action-that the contract
was breached because the owners did not select and em-
ploy other, IOMMP deck officers-cannot stand In fact, I
find neither position valid
Section II of Respondent's contract, upon which it here
relies, is a long, complicated, and many paragraphed arti-
cle entitled "Recognition and Preference of Employment "
Paragraph 2(a) of that section provides that "The Compa-
ny shall have the right once to designate by name, one
permanent Master, and one permanent Chief Officer from
the ranks of its licensed deck officers for each active vessel
provided they maintain their membership in good
standing in the Organization [Respondent IOMMP]
This initial designation shall be submitted to the Organization
prior to the signing of this agreement " (Emphasis supplied )
There are a number of reasons on the face of the contract
why Respondent's contention does not appear valid For
example, this provision, together with the other provisions
of section Il of the contract, clearly contemplates that the
owners would have secured its licensed deck officers from
Respondent before the designation of the master and chief
officer Secondly, it is Respondent's position that the con-
tract covering the vessel was signed prior to its acquisition
by the owners and continues to apply to the vessel (It is on
this contention, again, that Respondent asserts the rights of
the former master and mates) It therefore follows from
Respondent's interpretation of its contract that the owners
would not be eligible to make an "initial designation
prior to the signing of this agreement," as the contract re-
quires Section II, 2, b of the agreement provides that
thereafter the master and chief mate selected must have
been members of Respondent for 5 years
In any event, as the Board has previously held, union
insistence that the employer designate his grievance-adjust-
ment representatives only in accordance with the terms of
the union's bargaining agreement-which the employer has
not assumed-constitutes restraint and coercion of the em-
1636 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployer in the selection of his representatives Westchester
Marine, supra The intricate provisions of section II of
Respondent's contract as well as other provisions of the
agreement, containing detailed restrictions on the selec-
tion, terms, conditions, and termination of employment of
masters and mates constitute such restraint and coercion of
employers in the selection of their grievance-adjustment
representatives
On the basis of the above, and the record as a whole, it
is found that Respondent IOMMP, by its picketing and by
its action in rem against the Mount Explorer, restrained and
coerced the owners in the selection of their representatives
for the purpose of grievance adjustment aboard that vessel,
and thereby violated Section 8(b)(1)(B) of the Act
D Posthearing Motions
After the above had been typed in final form, but before
issuance, a letter dated November 26, 1975, was received
from Respondent requesting that I receive into evidence a
portion of a deposition of Herman Berke taken in the in
rem proceeding, or reopen the hearing in this matter to take
similar evidence from Berke, who did not testify in the
original hearing 12 Respondent asserts that Berke's deposi-
tion should be received as substantive evidence in this case
This is resisted by the General Counsel and Cove Tankers
Since the General Counsel was not a party to and did not
participate in the in rem proceeding, I cannot accept this
posthearing deposition over the objection of General
Counsel
Respondent states that Berke's testimony would show
that Old Mount was utilized to operate "the Juhe after the
sale to Sfakia up until the time that New Mount was orga-
nized and then New Mount began operating the Mount
Julie (ex-Julie) Thus the continuity of business enterprise
is established by Mr Berke's testimony " However, the fact
that Lawrence (or Cove) utilized Old Mount to operate the
Julie for Sfakia (if indeed that is the fact), does not estab-
lish an obligation to use Old Mount to operate the Mount
Explorer or to operate that vessel under the terms and con-
ditions of Respondent's contract In essence, Respondent
contends that this additional fact supports its contention
that Lawrence and Cove engaged in some sort of improper
conduct in connection with Old Mount and New Mount
This has been previously considered The single additional
fact here offered adds little to the case and does not affect
the analysis previously made I find that the offer of proof
made must be rejected and there is therefore no reason to
reopen the hearing to take this material
On December 12, 1975, Respondent made another addi-
tional request that I accept into evidence a letter of the
Regional Director for Region 2 of the Board dismissing a
charge against the National Maritime Union (NMU) filed
by Texas City Tankers Corporation, and an arbitration de-
cision involving NMU and Texas City Tankers Re-
spondent's position seems to be that these documents
support an argument that Respondent was justified in
picketing the Mount Explorer because Texas City Tankers
allegedly failed to give proper notice of the sale of the Ex-
plorer to Cove Tankers General Counsel duly filed an ob-
jection to this request
Respondent's request asserts in pertinent part "In the
instant case it is undisputed that Texas City Tankers failed
to give the required contractual notice 13 and, therefore
M M &P did have a contract claim against Texas City
Tankers not violative of §8(e) The first picket sign com-
plained that `our contract with Texas City Tankers covers
this vessel' Although it is true that this picket information
was predicated on the erroneous belief that Texas City
Tankers and Cove were related companies, even if we are
`stuck' with the language of the first picket, it cannot be
held violative of §8(e) of the Act at least in so far as the
notice provision of the M M &P contract is concerned "
The request that I receive into evidence the Regional
Director's letter and the arbitration decision is denied
There is no indication that these matters have the slightest
relevance or materiality as evidence in this hearing I have,
however, considered them as arguments in support of
Respondent's position that it was justified in picketing the
Explorer because of an alleged failure of Texas City to give
due notice of the sale of the vessel to Cove The argument
is without merit In the first place, it is clearly an after-
thought At no time did Respondent claim during the
course of this proceeding, or in its brief, that its picketing
had the purpose now advanced, and on the entire record I
do not credit the contention that this late suggestion was in
fact Respondent's reason for its picketing activities
Respondent's letter itself acknowledges as much
Since the issue was not litigated, there was no occasion
for the other parties to dispute or to agree with
Respondent's contention that "Texas City Tankers failed
to give the required contractual notice," contrary to the
claim in Respondent's letter The record shows only that
Texas City Tankers gave notice to the Respondent of the
sale of the vessel to Cove and that Respondent was aware
of this for a considerable period before the vessel was
moved from Galveston where it had been laid up In the
absence of any other facts, I would infer that Texas City
Tankers complied with its contract in this matter and gave
due notice prior to the "effective transfer" of the vessel
Upon full consideration of Respondent's offers of proof,
as set forth, and the arguments advanced, I find no reason
to alter the findings and conclusions made hereinabove
CONCLUSIONS OF LAW
I Respondent IOMMP is a labor organization within
the meaning of Section 2(5) of the Act
2 Lawrence, Cove Tankers, and New Mount are em-
ployers as defined in Section 2(2) of the Act engaged in
13 The contractual provision referred to apparently is sec 2 a i quoted
12 For the convenient reference of the parties I have marked the various previously which provides that at least 72 hours prior to the effective
communications concerning Respondents posthearing requests to have ad transfer of a vessel covered by Respondents contract written notice of the
ditional evidence received sale or transfer of the vessel must be given to Respondent
INTL ORGANIZATION OF MASTERS, MATES AND PILOTS
commerce or in an industry affecting commerce within the
meaning of Sections 2(6) and (7) and 8(b)(4) of the Act
3 By its picketing activities and by its action in rem
against the Mount Explorer, as found hereinabove, Respon-
dent IOMMP has engaged in unfair labor practices in vio-
lation of Section 8(b)(4)(i) and (n)(A), 8(e), and 8(b)(1)(B)
of the Act, affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act
THE REMEDY
1637
Having found that Respondent IOMMP has engaged in
certain unfair labor practices , it will be recommended that
the Respondent cease and desist therefrom and take cer-
tain affirmative action designed to effectuate the purposes
of the Act
[Recommended Order omitted from publication ]