Louisiana Bunkers, Inc.

National Labor Relations Board - Board Decisions

Mar 28, 1967

163 N.L.R.B. 656 (N.L.R.B. 1967)

656 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by the Regional Director for Region 5, after being signed
by the Respondent 's representative , shall be posted by it
immediately upon receipt thereof , and maintained by it for
at least 60 consecutive days thereafter, in conspicuous
places , including all places where notices to employees are
customarily posted . Reasonable steps shall be taken by
the Respondent to ensure that said notices are not altered,
defaced, or covered by any material.
(d) Notify the Regional Director for Region 5, in writing,
within 20 days from the receipt of this Decision, what steps
the Respondent has taken to comply herewith. I t
IT IS FURTHER RECOMMENDED that the complaint be
dismissed insofar as it alleges that the Respondent
violated Section 8(a)(3) of the Act.
"In the event that this Recommended Order is adopted by the
Board , this provision shall be modified to read: "Notify said
Regional Director , in writing, within 10 days from the date of this
Order, what steps Respondent has taken to comply herewith."
APPENDIX
NOTICE To ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board, and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our
employees that:
WE WILL NOT discharge , transfer , or otherwise
discriminate against you because you engage in
concerted activities that are protected by the National
Labor Relations Act.
WE WILL NOT interrogate you concerning your
union activities.
WE WILL NOT violate any of the rights which you
have under the National Labor Relations Act to join a
union of your own choice and to engage in union or
concerted activities , or not to join a union and not to
engage in such activities.
WE WILL offer Kyle Reed immediate and full
reinstatement to his former job or an equivalent one.
WE WILL pay Kyle Reed and Glen Roberts backpay
to cover the earnings which they lost because we
discriminated against them.
JEWELL SMOKELESS COAL
CORPORATION
(Employer)
Dated By
(Representative) (Title)
NOTE: If Kyle Reed should currently be serving in the
Armed Forces of the United States, we will notify him of
his right to full reinstatement upon application after
discharge from the Armed Forces in accordance with the
Selective Service Act and the Universal Military Training
and Service Act, as amended.
This notice must remain posted for 60 consecutive days
from the date of posting , and must not be altered , defaced,
or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions ; they may communicate
directly with the Board' s Regional Office, 6th Floor, 707
North Calvert Street, Baltimore , Maryland 21202,
Telephone 301-752-8460, Extension 2159.
Louisiana Bunkers, Inc. and Surprise, Inc.,
Successor to Patterson Menhaden Corp.
and Fish , Seafood, Agricultural and Allied
Workers Union No. 300 , Amalgamated
Meat Cutters and Butcher Workmen of
North America, AFL-CIO. Cases 15-CA-2716
and 15-CA-2717.
March 28,1967
DECISION AND ORDER
BY MEMBERS BROWN, JENKINS, AND ZAGORIA
On November 3, 1966, Trial Examiner W. Edwin
Youngblood issued his Decision in the above-entitled
proceeding, finding that Respondents had engaged
in and was engaging in certain unfair labor practices
within the meaning of the National Labor Relations
Act, as amended, and recommending that it cease
and desist therefrom and take certain affirmative
action, as set forth in the attached Trial Examiner's
Decision. Thereafter, Respondents jointly filed
exceptions to the Trial Examiner's Decision, and a
supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions , the brief, and
the entire record in the case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner and
hereby orders that the Respondents, Louisiana
Bunkers, Inc., and Surprise, Inc., Successor to
Patterson Menhaden Corp., Cameron, Louisiana,
their officers, agents, successors, and assigns, shall
take the action set forth in the Trial Examiner's
Recommended Order.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This proceeding arises upon the consolidated
complaints of the General Counsel issued February 28,
1966 , in Cases 15-CA-2716 and 15-CA-2717 upon charges
filed September 28, 1965, by Fish , Seafood , Agricultural
and Allied Workers Union No. 300 , Amalgamated Meat
Cutters and Butcher Workmen of North America,
AFL-CIO , herein called the Union . The complaint in Case
163 NLRB No. 83
LOUISIANA BUNKERS, INC. 657
15-CA-2716 alleges that Louisiana Bunkers, Inc., herein
called Respondent Bunkers, violated Section 8 (a)(5) and
(1) of the Act by refusing to bargain collectively with the
Union . The complaint in Case 15-CA-2717 alleges that
Surprise , Inc., Successor to Patterson Menhaden Corp.,
herein called Respondent Surprise , violated Section 8(a)(5)
and (1 ) of the Act by refusing to bargain collectively with
the Union . Respondents ' answers to the complaints deny
the commission of any unfair labor practices .' All parties
were represented at the hearing which I conducted on
May 11, 1966, in New Orleans , Louisiana . Briefs have
been received from the General Counsel and the
Respondent.
Upon the entire record , including my evaluation of the
witnesses based on the evidence and my observation of
their demeanor , I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENTS
Respondent Bunkers, a Louisiana corporation with its
home office in New Orleans, Louisiana, is engaged in the
operation of fishing boats in the fishing industry.
Respondent Bunkers annually sells and performs services
valued in excess of $50,000 to firms which in turn made
sales to customers outside the State of Louisiana valued in
excess of $50,000. Respondent Bunkers admits and I find
that it is engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
Respondent Surprise is a Louisiana corporation with its
home office in Patterson, Louisiana, and is engaged in the
operation of fishing boats in the fishing industry.
Respondent Surprise annually makes sales and performs
services valued in excess of $50,000 to firms which in turn
make sales to customers outside the State of Louisiana
valued in excess of $50,000. Respondent Surprise admits
and I find that it is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
At the hearing, Respondents amended their answers to
admit , and I find, that the Union is a labor organization
within the meaning of Section 2(5) of the Act. Fishermen's
Union Local No. 300 , 'Amalgamated Meat Cutters and
Butcher Workmen of North America , AFL-CIO, was the
Petitioner in Aggie & Millie, Inc., Case 15-RC-2726, a
representation proceeding involved herein . At the hearing,
Respondents also amended their answers to admit that the
Union filing the charges herein is the same labor
organization that was the Petitioner in Case 15-RC-2726.
III. THE UNFAIR LABOR PRACTICES
The facts in this proceeding are virtually undisputed.
On September 13, 1963, in Aggie & Millie, Inc., supra, the
Regional Director for the Board's Region 15 issued a
decision and direction of election in which he found
appropriate separate units of employees on eight vessesls,
including the Gallant Man and the Jack T. Styron, the
vessels involved herein. The units were described as
follows: "Separate units on each of the vessels Aggie &
Millie, Gallant Man, the Frenchman, Vasco de Gama, the
Admiral, Commander, Jack T. Styron and Sea Raider,
each unit described as follows: All employees on
Employer's fishing boat at Cameron, Louisiana, including
pilots, excluding all other employees, captains, mates,
engineers, and supervisors as defined in the Act."
Thereafter the Union and the Employers filed requests for
review of the said decision. On October 7, 1963, the Board
issued an order denying the requests for review filed by
the Union and the Employers. On October 18, 1963, eight
separate elections were conducted at Cameron, Louisiana.
Following the elections, four of the employers filed
objections to the conduct of the election and the Union
filed objections to conduct affecting the results of the
election. On May 11, 1964, the Regional Director issued a
supplemental decision and certification of representatives.
Thereafter certain employers filed with the Board a
request for review of the supplemental decision and on
July 16, 1964, the Board issued an order directing that a
hearing be held to resolve the issues. On September 25,
1964, the Hearing Officer's report was issued and on
October 19, 1964, certain employers filed exceptions to the
Hearing Officer's report. Thereafter on February 9, 1965,
the Board issued a decision on review and certifications of
representatives. In these certifications of representatives
the Union was certified as the exclusive bargaining agent
in five separate units for all employees aboard five
separate vessels including the Gallant Man and the Jack
T. Styron, the vessels involved herein. The Gallant Man is
owned by the Patterson Menhaden Corporation and the
Jack T. Styron was owned by Respondent Bunkers.
Following the conclusion of the 1963 fishing season, and
prior to the beginning of the 1964 season, the Gallant Man
was sent to Empire, Louisiana, where it has remained
since that time. Respondent Surprise was incorporated in
1964 and it commissioned the vessel Surprise which has
fished each season at Cameron since 1964 except for a
brief interval in 1965 when it fished in Empire, Louisiana.
Following the conclusion of the 1964 fishing season,
Respondent Bunkers decommissioned and sold the Jack
T. Styron. During the 1965 and 1966 seasons, Respondent
Bunkers has owned and operated the Sea Leader at
Cameron, Louisiana. The only vessels Respondent
Bunkers has owned which fished out of Cameron,
Louisiana, during the years 1963, 1964, 1965, and 1966 are
the Jack T. Styron and the Sea Leader. The only vessel that
the Patterson Menhaden Corporation2 owned and
operated out Cameron, Louisiana, in 1963 was the Gallant
Man which vessel was operated out of Empire, Louisiana,
in 1964 and 1965. Patterson Menhaden Corporation did not
operate a vessel out of Cameron, Louisiana, in 1964, 1965,
or 1966. Respondent Surprise has owned and operated
only one vessel, the Surprise fishing out of Cameron,
Louisiana, in 1964 and 1965. In 1966, Respondent Surprise
continued to operate the Surprise fishing out of Cameron,
Louisiana, and added another vessel, the Fighter, also
fishing out of Cameron, Louisiana.
On March 12, 1965, the first meeting between the
parties following the certifications was held and the Union
requested that Respondent Bunkers bargain for a unit of
employees working aboard the Sea Leader taking the
position that this was a successor vessel to the Jack T.
' Respondents' unopposed motion to correct the transcript of NLRB 1795, that that corporation and Surprise, Inc , constitute a
proceedings is hereby granted
1 The Board held in Patterson Menhaden Corporation, 154
single employer within the meaning of the Act
658 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Styron.3 Respondent Bunkers refused this request taking
the position in effect that no obligation to bargain existed
for a unit of employees aboard the Sea Leader because
there had not been a Board election regarding this boat,
and the certification involving the Jack T. Styron did not
extend to any other vessel . The Union also requested that
the Respondent Surprise bargain for a unit of employees
working aboard the Surprise . Attorney Stout stated that he
was prepared to bargain for the Gallant Man but refused
to bargain for the Surprise stating that he did not think that
the certification of the Gallant Man transferred to the
Surprise . Stout explained that the Employer 's position was
that each vessel constituted a separate bargaining unit.'
The position of the parties regarding bargaining for the Sea
Leader and the Surprise was reiterated at subsequent
meetings which were held on April 1 and 12, 1965, and
various dates thereafter . On April 1, 1965 , Stout again
refused recognition of the Union for the Sea Leader and
the Surprise again explaining that he did not think the
certifications applied regarding these vessels. At the
April 12 meeting , Mitchell stated that he thought the
Board would sustain his position and Stout suggested that
Mitchell might file a new petition or a petition for
clarification . On September 24, 1965, after separate
contracts had been signed for the Vasco de Gama, the
Admiral and the Frenchman, Mitchell asked Stout to give
the Union the same contract for the Sea Leader and the
Surprise . Stout declined and suggested that Mitchell file a
petition for a new election or seek clarification or
amendment of the certifications . Mitchell asked if the
Respondents would oppose the filing of a petition and
Stout replied in the negative . Stout explained , however, in
effect that this did not mean a change in Respondents'
position ; their position at the hearing would be the same as
it had been . Further , Stout stated that the Respondents
would abide by the Board's decision subject ',.o their right
to request review of any decision of the Regional Director.
Mitchell replied that he would consider this. A few days
later the charges in this proceeding were filed.
It is clear that the Union has not requested Respondents
to submit to a card check , nor have Respondents
requested a card check.
During 1963 Jack T. Styron was captained by Larnie
Johnson. During the 1964 season the Jack T. Styron was
captained by Lee Hewitt who was mate to Captain
Johnson in 1963. In 1965 the newly commissioned Sea
Leader was captained by Larnie Johnson who was still
employed as her captain at the time of the hearing herein.
Both the Jack T. Styron and the Sea Leader are described
as "pogy" boats which catch menhaden fish in the Gulf of
Mexico and bring their catch to the docks of Louisiana
Menhaden Company at Cameron , Louisiana , where they
are unloaded and processed . The crew of the Jack T.
Styron in 1963 was made up of the '.illowing
classifications : captain, mate , engineer , pilot, cook,
seineman , and combination pursekoat engineer /assistant
engineer . The classifications of employees on board the
Sea Leader during the 1965 season were the same with the
addition of ring setter and combination seineman/assistant
pilot . The captain and engineer of the Sea Leader in 1965
were the same men who occupied these positions in 1963
on the Jack T. Styron. It will be recalled that captains and
engineers were excluded from the units as supervisors.
Eight of the fifteen members of the crew of the Jack T.
Styron who were on the eligibility list for the election were
employed aboard the Sea Leader during the 1965 season.
Of the 17 employees in the crew of the Jack T. Styron on
the payroll dated October 3 , 1964 (presumably the last
payroll of the Jack T. Styron before she was
decommissioned) none were employed on the crew of the
Sea Leader on the payroll dated May 22, 1965 (presumably
the first payroll for the Sea Leader. ) The fishing season is
from about mid-April to September or October.
During 1963 , Fletcher Miller captained the Gallant Man
and in 1965, Miller captained the Surprise . Both the
Gallant Man and the Surprise are "pogy" boats with
similar classifications of employees who catch menhaden
fish in the Gulf of Mexico and bring their catch to the
docks of Louisiana Menhaden Company. The Fighter is
being captained by Fletcher Miller in the 1966 season. The
Board in Patterson Menhaden Corporation , supra, ordered
the Respondent therein to reinstate former crewmen of the
Gallant Man preferably aboard a vessel captained by
Fletcher Miller.
The Contentions , Discussion , and Findings
A determination of the issues in this proceeding
requires that the following questions be answered : (1) was
Respondent Bunkers obligated to bargain with the Union
under the certification as collective - bargaining
representative of employees in a unit aboard the Sea
Leader? (2) Was Respondent Surprise obligated to bargain
with the Union under the certification as collective-
bargaining representative of employees in a unit aboard
the Surprise ? General Counsel strongly asserts that
Respondents did have such obligation and that their
refusing to do so violates Section 8(a)(5) of the Act. In
support of his position regarding Respondent Bunkers,
General Counsel contends that the Sea Leader was the
successor vessel to the Jack T. Styron and in his brief lists
the following factors in support of this contention : ( 1) both
the Jack T. Styron and the Sea Leader were owned and
operated by Respondent Bunkers. The Jack T. Styron was
the only vessel operated by Respondent Bunkers fishing
out of Cameron, Louisiana , at the time of the election and
up to its decommissioning and since its decommissioning
the Sea Leader had been the only vessel operated by
Respondent Bunkers fishing out of Cameron , Louisiana.
(2) Both the Jack T. Styron and Sea Leader performed
exactly the same operation for Respondent Bunkers with
crews in similar job classifications . In addition , the captain
and engineer of the Jack T. Styron in 1963 are the same
individuals who were captain and engineer of the Sea
Leader in 1965. (3) There was substantial continuity in
employees. Of 15 employees aboard the Jack T. Styron in
1963 who were eligible to vote in the election, 8 of these
employees were aboard the Sea Leader during the 1965
season. Additionally , of the 14 employees aboard the Sea
Leader on May 22, 1965 (the first payroll period for the
J The name Sea Leader was not used because although the
parties knew that Respondent Bunkers had a new vessel under
construction or already constructed which would fish out of
Cameron , Louisiana , they did not know the actual name of the
vessel
There is no real dispute as to the facts in this case, however,
H.L Mitchell , International representative of the Union, did not
recall any discussion involving the Sea Leader or the Surprise at
the first meeting The findings above are based on the testimony
of Stout which was given in a positive way and demonstrated a
clearer recollection on this point than the testimony of Mitchell.
LOUISIANA BUNKERS, INC.
season) 8 had been employed on the Jack T. Styron and
were eligible to vote in the election in 1963. Finally, the
man who was pilot on the Jack T. Styron in 1963 was also
employed as pilot on the Sea Leader in 1965.
Regarding Respondent Surprise , General Counsel urges
the following points in his brief : (1) The Board held in
Patterson Menhaden Corporation, supra, that Patterson
Menhaden Corporation and Surprise , Inc., constituted a
single employer within the meaning of the Act. (2) During
the 1963 season Patterson Menhaden Corporation owned
and operated one vessel , the Gallant Man, fishing out of
Cameron, Louisiana, and Fletcher Miller was captain of
this vessel . During the 1964 and 1965 seasons the Gallant
Man fished out of Empire, Louisiana. During the 1964 and
the 1965 season, Respondent Surprise owned and
operated one vessel fishing out of Cameron, Louisiana, the
Surprise, which was captained by Fletcher Miller. (3) The
Gallant Man and the Surprise were engaged in the
operation of fishing out of Cameron, Louisiana, with crews
having similar classifications and the same individual
serving as captain . (4) The General Counsel argues that
continuity of employment must be presumed because the
Board in Patterson Menhaden Corporation, supra, held
that Patterson Menhaden Corporation violated Section
8(a)(1) and (3) of the Act by the conduct of Captain Miller
in discriminatorily refusing to hire 14 crew members of the
Gallant Man during the 1963 season on the Surprise for
the 1964 season . The Board then ordered Patterson
Menhaden Corporation to reinstate the former crewmen of
the Gallant Man preferably aboard a vessel under Captain
Miller.
In summary, the General Counsel argues that the Board
certified the Union to represent employees in certain units
on vessels fishing out of Cameron , Louisiana , and these
certifications survived, albeit, Respondents changed the
vessels on which employees in these units worked.
Respondents therefore, contends the General Counsel,
by refusing to bargain with the Union regarding the
employees in these units have violated Section 8(a)(5) of
the Act.
Respondents' defenses, while conceding their refusal to
bargain with the Union, include the following points:
(1) No obligation to bargain was ever created because the
elections involving the crews of the Gallant Man and Jack
T. Styron were tainted. Respondents base this contention
on the asserted fact that Matthew Hooper and Desire
Bishop, both clearly supervisors within the meaning of the
Act, exercised undue influence in connection with the
union campaign and elections as reflected in the transcript
in Patterson Menhaden Corporation, supra. Respondents
did not specify the evidence in the transcript upon which
they relied in this regard. Respondents stipulated that this
point was never raised prior to the instant hearing.
Respondents' attorney stated at the hearing that he was
unaware of this conduct "until we litigated" Patterson
Menhaden Corporation, supra. That case was tried in
Lake Charles, Louisiana, on December 14, 15, and 16,
1964, which was before the certifications were issued and
before the refusals to bargain occurred in this proceeding.
Respondents stipulated that that point was not raised in
connection with their refusals to bargain with the Union.
Both the General Counsel and the Union objected at the
hearing to my consideration of Respondents' tainted
5 Peninsular & Occidental Steamship Company , 132 NLRB 10,
25, NeuhoffBrothers , Packers, Inc , 154 NLRB 438
6 Pittsburgh Plate Glass Company v N L R B, 313 U .S. 146.
659
election defense to the refusal-to-bargain charge. I stated
at the hearing that I considered myself bound by the
Board's decision in the representation proceeding. There
is no showing that any of this evidence was unavailable to
Respondents at the representation hearing.s I do not
consider that this defense comes within the category of
previously unavailable or newly discovered evidence so as
to fall within the Board's rule permitting Respondents to
relitigate the representation case herein.6 I adhere to the
ruling made at the hearing. Respondents also contend that
the certifications are invalid for reasons previously
asserted by Respondents in the representation case
proceedings and previously rejected by the Board. This
contention also is rejected. (2) Section 10(b) of the Act
precludes the issuance of the order sought by the General
Counsel because the charges were not filed within 6
months of Respondents' refusal to recognize and bargain
with the Union. Respondents point to the fact that the
Union was told on March 12, 1965, that Respondents
would not recognize or bargain with the Union regarding
the Sea Leader and the Surprise, and the fact that the
charges were not filed until September 28, 1965. However
it is clear that the Union renewed its demand that
Respondents bargain with it regarding these vessels on
April 1, 1965, and various dates thereafter, which dates
were within 6 months of the filing of the charges and which
demands Respondents refused. The Board has held that
each new and separate demand creates the obligation to
bargain and each new and different refusal constitutes a
new and independent violation.7 This contention is
rejected. (3) Respondents had no obligation to bargain with
the Union regarding the Sea Leader and the Surprise
because the Union has never established its majority
status aboard these vessels. In their brief, Respondents
point out that none of the employees who were employed
in the unit aboard the Gallant Man at the time of the
election in 1963 are now employed in the unit aboard the
Surprise. Furthermore, the present crew of the Sea Leader
contains only five men who were employed in the unit
aboard the Jack T. Styron in 1963. In short, the
certifications regarding the Jack T. Styron and the Gallant
Man did not extend to the Sea Leader and Surprise
respectively.
We turn to the issues forming the crux of this
proceeding. We start with the fact that the Board certified
the Union on February 9, 1965, as bargaining
representative of employees of certain employers in units
defined as certain classifications of employees working on
certain vessels fishing out of Cameron, Louisiana. The
next month, March, Respondents commenced their
refusal to bargain with the Union. It is well established
that an employer must bargain with the Union as
representative of its employees for a reasonable period of
time after certification usually 1 year absent special
circumstances." The philosophy behind this rule is to
foster stability in collective bargaining by requiring that
the employer deal with the union until a new election is
sanctioned, or until the Board indicates that the employer
need no longer bargain with the previously certified union.
"A certification would be futile and meaningless, could an
employer, shortly thereafter, prior to carrying on any
bargaining with the certified representative, by the simple
expedient of raising some question as to the continuing
validity of the certification, require the certified
T Cumberland Shoe Corporation, 156 NLRB 1130.
8 Ray Brooks v N.L.R B, 348 U S 96.
295-269 0-69-43
660 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
representative to prove anew its status as a majority
representative. Collective bargaining under such
circumstances could be indefinitely delayed by employers
and the right of the employees to bargain collectively
would be rendered illusory and the policies of the Act
thwarted.'" The question that necessarily arises is
whether the facts in this proceeding constitute special
circumstances which warrant an exception to the general
rule? The special circumstances referred to in Brooks v.
N.L.R.B , supra, were those in which the certified union
was dissolved, became defunct, experienced a schism or
the size of the bargaining unit fluctuated radically within a
short time. Obviously none of those conditions are present
here. But it is true, as Respondents assert in their brief,
that the identity of employees in the certified units has
changed considerably. Indeed, in addition to the factors
alluded to in Respondents' brief, I note that when the Sea
Leader commenced operations none of the employees on
the Jack T. Styron who were employed at the end of the
season were employed on board the Sea Leader. The
Board has repeatedly held, however, that high labor
turnover does not destroy the obligation to bargain."' It is
clear that even actual loss of majority through no fault of
the employer does not relieve the employer of his
obligation to bargain with the Union" The Brooks case
and other cases12 set forth the requirement that the
employer who doubts the Union's majority status during
the certification year has the responsibility to petition the
Board for relief while continuing to bargain with the
Union. The employer is not justified in self-help. Once his
employees have designated their bargaining
representative in accordance with the Act, recognition of
that representative is not a matter which an employer may
or may not grant when and as he chooses. I conclude
therefore that the fact that substantial or even complete
changes may have occurred in the identity of the
employees in the bargaining units does not relieve the
employers of their obligation to bargain with the Union
their employees have selected as their collective-
bargaining representative.
The remaining question is whether the fact that the
vessels involved were changed relieves the Employers of
their obligations to bargain. It is clear, as the General
Counsel contends in his brief, that Sea Leader replaced
the Jack T. Styron in performing Respondent Bunker's
fishing operations out of Cameron, Louisiana." As the
General Counsel also points out in his brief, the Board has
held that a certification retains its vitality even though the
company involved closed its store and opened another
store 1-1/2 miles away.''
In Kentucky Utilities Company, supra, extensive
changes were made in the unit-one district being
exchanged for another. The Board held that the
certification retained its validity pointing out that the unit
still remained identifiable. I do not believe that the
0 The quoted material is from Whittier Mills Company, 15
NLRB 457, 463
10 Whittier Mills Company, supra, Kentucky Utilities
Company, 58 NLRB 335, Reliance Clay Products Company, 115
NLRB 1736
' 1 Ray Brooks v. N L R B, supra
12 See for example N.L R B. v U S. Sonics Corp , 312 F 2d 610
(C A 1), enfg in part 135 NLRB 818
" In making this finding, I place no reliance on the identity of
the individuals in supervisory or other positions on the vessels or
the "substantial continuity" point urged in General Counsel's
brief
substitution of the Sea Leader for the Jack T. Styron was a
change of such extent and character that it destroyed the
identity of the unit which the Board found appropriate.
I note the Board's holding in Patterson Menhaden
Corporation, supra, that Patterson Menhaden Corporation
and Surprise, Inc , constitute a single employer. In similar
situations, the Board has found companies so interrelated
to be a single employer for bargaining purposes.1`1 1 so find
herein. I further find that when Patterson Menhaden
Corporation transferred the Gallant Man from Cameron,
Louisiana, to Empire, Louisiana, this action resulted in
taking the Gallant Man out of the bargaining unit which it
will be recalled was described as vessels fishing out of
Cameron, Louisiana."' I note in that connection that
Empire, Louisiana, is over 200 miles from Cameron,
Louisiana." It is clear, as the General Counsel contends in
his brief, that the Surprise took the Gallant Man's place in
performing the fishing operations out of Cameron,
Louisiana, formerly performed by Patterson Menhaden
Corporation and now performed by Respondent
Surprise.'" I do not believe that the replacement of the
Gallant Man by the Surprise was a change of such
magnitude as to destroy the identity of the unit. I therefore
reject the contention of Respondent Surprise that the
certified unit was the vessel wherever she was, and find
that it was obligated to bargain with the Union regarding
employees aboard the Surprise after the transfer of the
Gallant Man to Empire, Louisiana. A consideration of the
consequences of holding otherwise strengthens the above
findings. It would be very difficult if not impossible for
employees to achieve collective-bargaining rights in
industries such as this if with every change such as vessels
being decommissioned or moved to distant ports
employees were required to resort to the Board's
processes in order to demonstrate again a desire to be
represented by a union. It would best effectuate the
policies of the Act under circumstances like these if
employers were required to bargain with the Union and the
Union were left free to devote itself to its function as
bargaining agent for at least a normal operative period
before the validity of the certification is tested again. "'
Accordingly, I find and conclude that Respondents on
February 9, 1965, and thereafter were obligated to bargain
with the Union as collective-bargaining representative of
employees employed in the appropriate units aboard the
Sea Leader and the Surprise. Their admitted refusals on
April 1, 1965, and thereafter to perform this obligation
therefore constituted violations of Section 8(a)(5) of the
Act. This is so even though, as here, there is no finding
that the employer acted in bad faith. It is clear that an
employer who withholds recognition from a statutory
bargaining representative at an inappropriate time violates
the Act.'" I therefore find and conclude that Respondents
by the conduct described above have violated Section
8(a)(5) of the Act
Martin-BurnsSportables, Inc , 129 NLRB 364
6 Royal Oak Tool & Machine Company, 132 NLRB 1361, enfd
320 F 2d 77 (C A. 6)
16 Cf Krist Grades, 121 NLRB 601, 613
17 Rand McNally and Company, "Standard Highway Mileage
Guide "
18 In making this finding, I do not rely on the identity of the
individuals involved on the two vessels or the "continuity of
employment" point urged in General Counsel's brief
0 Cf Maintenance Incorporated, 148 NLRB 1299
20 Cf N L.R B v Berne Katz, 369 U S 736
LOUISIANA BUNKERS , INC. 661
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of Respondents found to be unfair labor
practices in section III, above, occurring in connection
with the operations of Respondents described in section I,
above, have a close, intimate , and substantial relation to
trade, traffic, and commerce among the several States and
tend to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
V. THE REMEDY
Having found that Respondents have engaged in certain
unfair labor practices, 1 shall recommend that they be
ordered to cease and desist therefrom, and to take certain
affirmative action to effectuate the policies of the Act.
Because of the absence of a showing of bad faith, I shall
not recommend that Respondents cease and desist from
the commission of any other unfair labor practices.
I have found above that the vessel Surprise replaced the
vessel Gallant Man and that Respondents' refusal to
bargain with the Union as representative of employees in a
unit aboard the Surprise violated the Act. Although this
finding is in accord with the General Counsel's contention
and the allegations of the complaint, in his brief, General
Counsel urges that Respondent Surprise be ordered to
bargain with the Union as representative of the employees
aboard the Fighter because the captain of the Surprise in
1965 is the captain of the Fighter in 1966, and because the
1963 crew of the Gallant Man may be aboard the Fighter.
It is to be noted that the Board's order in Patterson
Menhaden Corporation, supra, if complied with, probably
means that at least part of the crew of the Gallant Man is
now aboard the Fighter. I must reject this contention
because, as I have found above, the certification is not
dependent on the identity of the crew. In addition, it seems
clear from the wording of the certification that it is not
dependent on the identity of the captain. As I have
indicated above, I believe and find that the certification is
based inter alia on employees in certain named
classifications working on vessels fishing out of Cameron,
Louisiana, for certain named Employers. And this
certification is not destroyed by removal of vessels from
the geographical area, or the decommissioning of vessels
where the Employer replaced these vessels with other
vessels. Nevertheless some need for flexibility seems
required in the type of employing industry involved herein.
I shall recommend therefore that Respondents Bunkers
and Surprise each be ordered to bargain upon request
with the Union as exclusive representative of all their
employees in the appropriate units as defined above
consisting of employees aboard the Sea Leader or the
Surprise or if either or both of these vessels are no longer
fishing out of Cameron, Louisiana, the employees in the
appropriate units aboard any successor vessel or vessels
either Respondent or Respondents may be operating out of
Cameron, Louisiana.
Upon the basis of the foregoing findings of fact and upon
the entire record, I make the following:
CONCLUSIONS OF LAW
1. Respondent Bunkers and Respondent Surprise are
employers within the meaning of Section 2(2) of the Act,
and are engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2 Fish, Seafood, Agricultural and Allied Workers
Union No. 300, Amalgamated Meat Cutters and Butcher
Workmen of North America, AFL-CIO, is a labor
organization within the meaning of Section 2(5), and at all
times since its certification has been the exclusive
bargaining representative of all employees of Louisiana
Bunkers, Inc., aboard the vessel Sea Leader fishing out of
Cameron, Louisiana, including pilots, but excluding all
other employees, captains, mates, engineers, and
supervisors as defined in the Act.
3. The Union at all times since its certification has been
the exclusive bargaining representative of all employees of
Surprise, Inc., aboard the vessel Surprise fishing out of
Cameron, Louisiana, including pilots, but excluding all
other employees, captains, mates, engineers, and
supervisors, as defined in the Act.
4. By refusing to bargain collectively with the statutory
bargaining representative of employees aboard the Sea
Leader and the Surprise on and after April 1, 1965,
Respondents Bunkers and Surprise have each failed and
refused to bargain collectively with the exclusive
bargaining representative of their employees in ap-
propriate units in violation of Section 8(a)(5) of the Act.
5. By said acts, Respondents have interfered with,
restrained, and coerced their employees in the exercise of
the rights guaranteed in Section 7 of the Act, thereby
engaging in unfair labor practices within the meaning of
Section 8(a)(1) of the Act.
6. The aforesaid unfair labor practices are unfair labor
practices within the meaning of Section 2(6) and (7) of the
Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law, and pursuant to Section 10(c) of the
National Labor Relations Act, as amended, it is
recommended that Respondents Louisiana Bunkers, Inc.,
and Surprise , Inc., successor to Patterson Menhaden
Corporation , their officers , agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with Fish , Seafood,
Agricultural and Allied Workers Union No. 300,
Amalgamated Meat Cutters and Butcher Workmen of
North America, AFL-CIO, as the exclusive bargaining
representative of all employees in the units found
appropriate for the purposes of collective bargaining.
(b) In any like or related manner interfering with,
restraining , or coercing their employees in the exercise of
their right to self-organization , to form , join, or assist Fish,
Seafood, Agricultural and Allied Workers Union No. 300,
Amalgamated Meat Cutters and Butcher Workmen of
North America , AFL-CIO, or any other labor organization,
to bargain collectively through representatives of their
own choosing and to engage in other concerted activities
for the purposes of collective bargaining or other mutual
aid or protection and to refrain from any or all such
activities except to the extent that such right may be
affected by an agreement requiring membership in a labor
organization as a condition of employment as authorized in
Section 8(a)(3) of the Act, as modified by the Labor-
Management Reporting and Disclosure Act of 1959.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Respondent Louisiana Bunkers, Inc., and
Respondent Surprise , Inc., successor to Patterson
Menhaden Corporation , shall each recognize and, upon
request, bargain collectively with Fish , Seafood,
662 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Agricultural and Allied Workers Union No. 300,
Amalgamated Meat Cutters and Butcher Workmen of
North America , AFL-CIO, as the exclusive bargaining
agent in the appropriate units with respect to rates of pay,
wages , hours of employment , or other conditions of
employment.
(b) Respondent Louisiana Bunkers , Inc., shall post in
conspicuous places at its place of business at New
Orleans , Louisiana , and on its fishing vessel , the Sea
Leader, operating out of Cameron , Louisiana, or any
successor vessel thereto , copies of the attached notice
marked "Appendix A."'' Respondent Surprise, Inc.,
successor to Patterson Menhaden Corporation , shall post
in its place of business at Patterson , Louisiana , and on its
fishing boat , the Surprise , operating out of Cameron,
Louisiana , or any successor vessel thereto , copies of the
attached notice marked "Appendix B ." Copies of said
notices , to be furnished by the Regional Director for
Region 15, after being duly signed by an authorized
representative of each Respondent , shall be posted by
each Respondent immediately upon receipt thereof, and
maintained by each Respondent for 60 consecutive days
thereafter , in conspicuous places , including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by each Respondent to
insure that said notices are not altered, defaced, or
covered by any other material.
(c) Each Respondent shall notify said Regional
Director , in writing , within 20 days from the receipt of this
Decision what steps each Respondent has taken to comply
herewith.22
" In the event that this Recommended Order is adopted by the
Board, the words "a Decision and Order" shall be substituted for
the words "the Recommended Order of a Trial Examiner" in the
notices marked "Appendix A" and "Appendix B." In the further
event that the Board's Order is enforced by a decree of a United
States Court of Appeals, the words "a Decree of the United States
Court of Appeals Enforcing an Order" shall be substituted for the
words "a Decision and Order "
LI In the event that this Recommended Order is adopted by the
Board , this provision shall be modified to read "Notify said
Regional Director , in writing , within 10 days from the date of this
Order , what steps Respondent has taken to comply herewith "
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of the National
Labor Relations Board, and in order to effectuate the
policies of the National Labor Relations Act, as amended,
we hereby notify our employees that:
WE WILL NOT refuse to bargain collectively with
Fish, Seafood, Agricultural and Allied Workers Union
No. 300 , Amalgamated Meat Cutters and Butcher
Workmen of North America, AFL-CIO, as the
exclusive representative of all our employees in the
appropriate unit described below and will, upon
request , bargain with it in such unit with respect to
rates of pay , wages, hours of employment , and other
terms and conditions of employment and if an
agreement is reached will embody such agreement in
a signed contract . The appropriate unit consists of:
All employees on Respondent 's fishing boat, the
Sea Leader at Cameron , Louisiana , including
pilots, but excluding all other employees,
captains, mates, engineers and supervisors as
defined in the Act.
WE WILL NOT in any like or related manner
interfere with , restrain , or coerce our employees in
the exercise of their rights guaranteed in Section 7 of
the Act , except to the extent that such rights may be
affected by the proviso in Section 8(a)(3) of the Act.
LOUISIANA BUNKERS, INC.
(Employer)
Dated By
(Representativ e) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting, and must not be altered , defaced,
or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions , they may communicate
directly with the Board ' s Regional Office, T6024 Federal
Building (Loyola), 701 Loyola Avenue, New Orleans,
Louisiana 70113, Telephone 527-6391.
APPENDIX B
NOTICE TO ALL EMPLOYEES
Pursuant' to the Recommended Order of the National
Labor Relations Board , and in order to effectuate the
policies of the National Labor Relations Act, as amended,
we hereby notify our employees that:
WE WILL NOT refuse to bargain collectively with
Fish, Seafood, Agricultural and Allied Workers Union
No. 300, Amalgamated Meat Cutters and Butcher
Workmen of North America, AFL-CIO, as the
exclusive representative of all our employees in the
appropriate unit described below and will, upon
request , bargain with it in such unit with respect to
rates of pay , wages, hours of employment, and other
terms and conditions of employment and if an
agreement is reached we will embody such agreement
in a signed contract . The appropriate unit consists of:
All employees on Respondent 's fishing boat, the
Surprise , operating out of Cameron , Louisiana,
including pilots, but excluding all other
employees , captains , mates, engineers, and
supervisors as defined in the Act.
WE WILL NOT in any like or related manner
interfere with , restrain , or coerce our employees in
the exercise of their rights guaranteed in Section 7 of
the Act, except to the extent that such rights may be
affected by the proviso in Section 8(a)(3) of the Act.
SURPRISE, INC., SUCCESSOR
TO PATTERSON MENHADEN
CORP.
(Employer)
Dated By
(Representative) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting, and must not be altered, defaced,
or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions , they may communicate
directly with the Board's Regional Office, T6024 Federal
Building (Loyola), 701 Loyola Avenue, New Orleans,
Louisiana 70113, Telephone 527-6391.