M.v.Eastern Pacific

National Labor Relations Board - Board Decisions

Mar 31, 1967

163 N.L.R.B. 798 (N.L.R.B. 1967)

798 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
eligibility shall be that immediately preceding the
date of this Decision.'
4 An amended eligibility list, containing the names and
addresses of all the eligible employees in voting group A; and an
amended eligibility list, containing the names and addresses of all
the eligible employees in voting group B, must be filed with the
Regional Director for Region 20 within 7 days after the date of this
Decision and Direction of Elections . The Regional Director shall
make the lists available to all parties to the election No extension
of time to file each list shall be granted by the Regional Director
except in extraordinary circumstances . Failure to comply with
this requirement shall be grounds for setting aside the elections
whenever proper objections are filed. Excelsior Underwear Inc.,
156 NLRB 1236
William A. Magellan , Joseph S. Martinac,
Frederick T. Borovich , G. E. Skewis,
Eugene Dahout , and J . M. Martinac
Shipbuilding Corporation, d/b/a
M. V. Eastern Pacific and Cannery Workers
& Fishermen 's Union of San Diego,
AFL-CIO.
Fishermen 's Union Local 33, International
Longshoremen's and Warehousemen's
Union (William A. Magellan , et at., d/b/a
M. V. Eastern Pacific ) and Cannery Work-
ers & Fishermen's Union of San Diego,
AFL-CIO. Cases 21-CA-6896 and 21-CB-2620.
March 31, 1967
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND ZAGORIA
On December 20, 1966, Trial Examiner Allen
Sinsheimer, Jr., issued his Decision in the above-
entitled proceeding, finding that Respondents had
engaged in and were engaging in certain unfair labor
practices and recommending that they cease and
desist therefrom and take certain affirmative action,
as set forth in the attached Trial Examiner's
Decision. Thereafter, the Respondent Union filed
exceptions to the Decision and a supporting brief
and the General Counsel filed an answering 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 and finds that no prejudicial error was
committed. The rulings are hereby affirmed. The
Board has considered the Trial Examiner's Decision,
the exceptions and brief, and the entire record in the
' The complaint issued on February 28, 1966, and was amended
on April 4, 1966. It is based on separate charges filed on
August 23 , 1965, in Cases 21-CA-6896 and 21-CB-2620. Copies
of the complaint and the amendments thereto and the charges
were duly served on Respondents.
163 NLRB No. 110
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 as
modified below, and hereby orders that the
Respondents, William A. Magellan, Joseph S. Mar-
tinac, Frederick T. Borovich, G. E. Skewis, Eugene
Dahout; and J. M. Martinac Shipbuilding Corpora-
tion, d/b/a M. V. Eastern Pacific, and its officers,
agents, successors, and assigns, and Fishermen's
Union Local 33, International Longshoremen's
and Warehousemen's Union, its officers, agents,
and representatives, shall take the action set forth
in the Trial Examiner's Recommended Order, as
herein modified.
Add the following at the end of subparagraph
1(b) of paragraph A of the Trial Examiner's Recom-
mended Order, and at the end of the second
paragraph of Appendix C:
"... , provided, however, that nothing herein shall
require Respondent to vary or abandon any wage or
other substantive feature of their relations with their
employees, which they have established in the
performance of said agreement, or prejudice the
assertion by the employees of any rights they may
have thereunder."
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
ALLEN SINSHEIMER, JR., Trial Examiner: This
proceeding, with all parties represented, was heard before
me in Los Angeles, California, on May 31 and June 1, 1966,
upon a consolidated complaint of the General Counsel, as
amended , and answers by William A . Magellan, et al.,
d/b/a M. V. Eastern Pacific, called Respondent Employer,
and Fishermen's Union, Local 33, International
Longshoremen's and Warehousemen's Union, herein
called Respondent Union.' The issues litigated were
whether Respondent Employer violated Section 8(a)(1), (2),
and (3), and whether Respondent Union violated Section
8(b)(1)(A) and (2) of the National Labor Relations Act, as
amended, herein called the Act.
Upon the entire record, including consideration of
excellent briefs filed by the General Counsel and
Respondent Union ,2 and upon my observation of the
witnesses , I hereby make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER
The individuals named as employer are coowners and
2 Respondent Employer signified that it joined in the positions
taken by Respondent Union.
M V. EASTERN PACIFIC 799
operators of a fishing vessel named the Eastern Pacific
which was built in Tacoma, Washington, and launched on
April 14, 1965. About August 12, 1965, said vessel sailed
on its maiden voyage from San Diego, California.
Respondent Employer is engaged in tuna fishing on the
high seas between Mexico and Chile. In the course and
conduct of such business Respondent Employer will sell
and deliver tuna valued in excess of $50,000 to canneries
located in California. No issue is raised with respect to the
Board's jurisdiction. I find that the Respondent Employer
is engaged in commerce or in operations affecting
commerce within the meaning of the Act and that it will
effectuate the policies of the Act to assert jurisdiction
herein.
It. THE LABOR ORGANIZATION INVOLVED
Respondent Union and Cannery Workers &
Fishermen 's Union of San Diego , AFL-CIO, herein called
Charging Union , are each labor organizations within the
meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
The principal issue herein is whether Respondent
Employer and Respondent Union violated the Act by
apparently orally agreeing to a collective-bargaining
agreement on May 10, 1965, and subsequently executing a
written collective-bargaining contract on June 19, 1965.
The General Counsel contends: (1) that a real question
concerning the representation of the crew existed when
Respondent Employer executed the contract with
Respondent Union on June 19, because of the conflicting
claim of the Charging Union assertedly made many times
since March and based on membership therein;3 and
(2) that by certain conduct on May 3, Respondent
Employer rendered unlawful assistance and support to
Respondent Union thereby tainting its majority status.
Respondent Employer and Respondent Union contend
that there was no violation since they say there was no real
question concerning representation at the time the
agreement was executed;4 that even in the face of
conflicting claims a collective-bargaining contract
executed with a union representing an uncoerced or
unassisted majority5 is lawful, and that no unlawful
conduct or assistance took place on May 3 or any other
time. Subordinate issues to be considered are: (1) Was a
specific demand for recognition between May 3 and
May 10 by the Charging Union a prerequisite to affecting a
real or substantial claim for representation? (2) Is an oral
agreement so effective and binding as to preclude a
question of representation from developing thereafter?
(3) Was there such a question of representation before the
alleged oral agreement? (4) Was there a complete oral
agreement? (5) What significance should be given to union
membership as a basis for a claim of representation under
the circumstances here existing? (6) Did Respondent
Employer render unlawful or improper assistance to
Respondent Union by its conduct on May 3?
A. Background
William Magellan who was part owner of the Eastern
Pacifies was in charge of hiring the crew.7
Magellan had previously been part owner and skipper of
the fishing vessel, Southern Pacific, until May 1964. When
Magellan delivered the Southern Pacific to its new owner,
he called the crew on the dock and told them that they
would be welcome to a job on his new vessel;" i.e., the
Eastern Pacific. Eight (or nine") of these men eventually
became members of the first crew of eleven of the Eastern
Pacific, excluding Magellan and the Master Gonsalves.
The Southern Pacific at the time had been under a labor
contract with Seine and Line Fishermen's Union of San
Pedro, a union different from both unions here involved.
After leaving the Southern Pacific, Magellan served as
skipper of the fishing vessel Coimbra. Four of the crew
who began work on the Eastern Pacific nets in May 1965
were among the crew of the Coimbra. There is no evidence
that Magellan ever made any offer of employment on the
Eastern Pacific to the crew of the Coimbra. At the time
Magellan was master, the Coimbra was under contract to
the Charging Union.to
Thereafter Magellan was skipper of the fishing vessel,
Antoinette B, which was under contract with Respondent
Union. When he left that vessel, Magellan told the men
they were welcome to sail on the Eastern Pacific and they
should be ready at a specified time. Eight of them became
part of the aforesaid first crew of eleven of the Eastern
Pacific. I t
As previously set forth and also shown in Appendix A of
The General Counsel takes the position that the purported
oral agreement of May 10 is immaterial for reasons to be
discussed post
Respondent Union places this time as of May 10, the date of
the oral agreement but also contends that at no time (after
May 39) was there a real or substantial question concerning
representation Respondent Union asserts that the Charging
Union had no clear or substantial representation at any material
time, made no valid or effective request for recognition at any
time (particularly not before the oral agreement of May 10), and
was not recognized at any time by Respondent Employer
5 A majority in the stipulated bargaining unit signed a paper
designating Respondent Union as bargaining representative on
May 3 See post
" Magellan was also a licensed master although the listed
master of the Eastern Pacific was John Gonsalves
The crew was hired the day it began to work on the nets
(May 3) as this is the time the employment relationship is
established on fishing vessels such as here involved Accordingly,
on May 3, 9 persons began employment and a week later, 2 more,
making a total of 11 in the bargaining unit
s Magellan with a 25-percent interest was one of the owners,
the remaining interests were Martinac , 40 percent, Borovich, a
partner with Martinac in Martinac Shipbuilding Co , 20 percent,
Skewis, designer for Martinac Shipbuilding Co , 5 percent,
Dahout, 5 percent, and Martinac Shipbuilding Co., 5 percent
See discussion re Carvalho post
During this time two of the men, Jerry Correia and Tony
Dutra, then serving on the Coimbra, who became crew members
of the Eastern Pacific, had a dispute with the Charging Union over
back dues, which they paid They told Magellan they would never
return to the Charging Union as long as they lived
" For convenience attached hereto as Appendix A is a copy of
Appendix A from Respondent Union's brief, as corrected (The
corrections show Carvalho instead of Costa as having worked on
the Coimbra, and omit therefrom Manuel Silva whom Magellan
first testified had been on the Coimbra but later said had not.)
This lists the crew members of Eastern Pacific and reflects who
worked on the other vessels referred to and who had dues records
in the Charging Union The latter will be referred to in more detail
post
800 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the crew of 11 on the Eastern Pacific, 8 (or 9 ) 12 had worked
with Magellan on the Southern Pacific, 4 on the Coimbra,
and 8 on the Antoinette B. Also as shown on that exhibit, 8
of the crew of 11 signed a designation for the Respondent
Union . Seven of these eight signed it as set forth post on
May 3, the day they began work on the nets , and one of the
eight signers, Jerry Correia , signed the designation on
April 3 but did not commence work until May 10. Of the
eight signers, six had worked with Magellan on the
Southern Pacific, one (Manuel Pelicas ) had not and the
record does not specifically reflect whether one (Harry
Carvalho) had or had not.13 Of the eight signers, four
worked under Magellan on the Coimbra, three (Manuel
Pelicas. Manuel Silva, and Joseph Cruz) had not and the
record does not reflect whether one kEeonard Ingrandie)
had or had not. Of the eight signers, seven worked under
Magellan on the Antoinette B and the record does not
reflect whether one (Leonard Ingrandie) had or had not. Of
the crew of 11, 8 appear to have been in good standing in
the Charging Union in May and June 1965 according to its
records. These and their significance will be discussed
more fully post.
The General Counsel contends that commencing in
about March, representatives of the Charging Union
contacted Magellan and Martinac relative to a collective-
bargaining agreement with the Charging Union , and the
Respondent Employer's repeated responses were to the
effect that it was too soon, they (the Charging Union), had
the men, so why worry and when it was time they could get
together. 14
As previously set forth, the Respondent Union on the
other hand contends that the Charging Union at no proper
time15 requested recognition prior to the Respondent
Union entering into an oral agreement on May 10,16 that it
never presented proof of majority, and did not even
attempt to submit a written request for recognition to
Respondent Employer until after Respondent Employer
and Respondent Union executed a written contract on
June 19. The Respondent Union further contends that any
recognition by Respondent Employer prior to May 3 (when
employment commenced) would have been illegal, and
that the record does not support a request of any kind by
the Charging Union between May 3 and May 10 when
Respondent Union and Respondent Employer entered into
the oral agreement. Respondent Union further asserts that
Magellan speaking for Respondent Employer qualified his
responses to the Charging Union's representatives by
repeatedly asserting that it was up to the crew to decide
(who should represent them).
The General Counsel, in addition to his position that
there was a real question of representation when the
Respondent Employer and Respondent Union entered into
a contract17 also asserts the designations of Respondent
2 See discussion below re Carvalho
" Magellan at one point specifically names those who had
served on the Southern Pacific but was not asked about and hence
did not respond as to Carvalho Prior to this Magellan had named
those of the crew of the Eastern Pacific who had not served on the
Southern Pacific and since he did not name Carvalho, it could be
inferred that he had been on the Southern Pacific
Union on May 3 were improperly obtained through the
assistance of Respondent Employer.
B. The May 3 Meeting
As set forth prior to May 3 and thereafter, Magellan had
numerous discussions with representatives of the
Charging Union to be considered post. Prior to May 3,
representatives of both Respondent Union and the
Charging Union had been invited to the launching of the
Eastern Pacific which took place April 14.
On May 3, the same day, men were hired and work on
the nets began. Rudy Crnko, a representative of
Respondent Union, appeared at the place where the men
were working on the nets,18 which was a large room about
100 feet by 75 feet. Crnko asked Magellan if he could talk
to the men and was told he could during the lunch period.
Magellan called the men into a group and introduced
Crnko. Magellan told the men, "This is the big shot from
the I.L.W.U." At that time he made no recommendations
to the men. Crnko spoke to and answered questions from
the men (mostly about medical plans), for about an hour.
After that Magellan, who was present, was asked by the
men what he thought . He first testified that he replied: "I
says it did not make any difference to me what union they
went to, because they are all the same, as far as I was
concerned, but I did prefer I.L.W.U." Then in response to
a question as to whether he said anything to the men with
reference to expressing their views, Magellan testified: "I
says, `Don't hold no punches back. Either way you guys
want to go, go."' Subsequently Magellan testified that in
response to the men asking what he thought, "I says, `I
don't care which way you guys go. Does it make any
difference? It does not make any difference at all to me
but I think I prefer I.L.W.U."' Magellan was asked who
requested the men to sign a designation of Respondent
Union as bargaining agent. He testified: "Rudy said, `Here
is the paper, you guys want to sign it, or don't you?"'
Magellan testified that before the men signed it, they
asked him, "What do you think about it, Bill?" According
to Magellan, "I said, `It did not make any difference to me.
You can do anything you want. I prefer I.L.W.U."'
Magellan did not ask the men to sign but remained
present, at a distance of about 2 feet, while they signed.
The following stipulation entered into by the parties is
pertinent:
Concerning the voluntariness of these signatures on
Respondent Union's Exhibit No. 1, it is stipulated that
the only issues to be litigated here are the effect of
Mr. Magellan's statement of preference before these
signatures were affixed to the document on May 3,
1965, and his physical presence in the room at a
distance close enough to observe the act of signing
and to be observed by the signers, and that otherwise
" The record reflects numerous conversations to be discussed
more fully post
See fn 4
It further contends such oral agreement precludes any claim
to recognition by the Charging Union thereafter
'r The General Counsel contends that the written contract
executed June 19 and not the oral agreement of May 10 is the only
one that can properly be considered
11 There is no evidence that he had been invited
M. V. EASTERN PACIFIC 801
no inferences will be drawn or urged concerning his March and April, Magellan was asked about signing a
physical proximity to the signers.19 contract and would reply in substance that they had the
C. The May 10 Oral Agreement and June 19 Written
Agreement
On Sunday, May 9, following the designation of
Respondent Union as bargaining representative by a
majority of the crew, John Royal, secretary-treasurer of
Respondent Union, and Magellan traveled from Los
Angeles to Tacoma by an airplane. Each paid for his own
ticket. They met with Martinac in Tacoma and discussed a
form contract, made certain changes there including an
addendum to bring the Eastern Pacific contract in line
with the outcome of negotiations between San Diego boat
owners and the Respondent Union pertaining to treatment
of outboard motor boat expenses. There was also a
discussion of substituting Blue Shield coverage for the
health and welfare plan covered in the form contract
which Royal had submitted. It was agreed that this would
be done if possible but, if not, the coverage would be as set
forth. On May 10, the parties thereto "made a handshake"
that they would subsequently sign the contract.20
It was contemplated that the parties would execute a
written agreement within 2 weeks after May 10, but due to
illness in Royal's family, a written agreement was not
signed until June 19. At that time Magellan and Crnko
signed a contract which incorporated the health and
welfare clause contained in the proposal as agreed to on
May 10.
D. Discussions Between Magellan and Various
Representatives of the Charging Union
Commencing in March and continuing through April,
May, June, July, and August, several representatives of
the Charging Union either singly or together talked with
Magellan on numerous occasions21 and with Martinac on a
few occasions with respect to signing a contract with the
Charging Union. According to Magellan, he told the
Charging Union's vice president, Tarantino, a number of
times that Martinac controlled 75 percent of the vessel and
they would have to talk to him since he had the say.
According to Vice President Tarantino and Business
Agent Silva of the Charging Union, on several occasions in
i0 Also the following colloquy between the Trial Examiner and
General Counsel's representative should be noted
TRIAL EXAMINER As I understand it, Mr Shapiro, under
this stipulation you are not contending that there is anything,
or was anything improper about allowing Mr Crnko to talk
with the employees, or permitting him to have a question and
answer period with these employees 9
MR SHAPIRO - No, there was not
The Employer's act of inviting, however you want to
characterize Mr Crnko's meeting with the employees, the
act of him coming on the property is not-we are not relying
on that in any way as a violation of the law, or to support any
violation of the law
20 For the purposes of this matter it may be concluded that
Respondent Union and Respondent Employer entered into on
May 10 a complete oral collective - bargaining agreement subject
only to the qualifications set forth
21 These were Jack Tarantino, vice president, who said he
talked to Magellan twice in March, several times in April, once in
May, once in June, once in July, and once in August (compare
Magellan who said he probably had 50 conversations with
Tarantino during this period), Joseph Silva, business agent, who
testified to conversations involving Magellan at least twice a
month during March, April, May, June, and July, Carl Marino,
crew and when the time came they would get together. For
reasons set forth, supra (footnote 21) and hereafter, I
credit their version insofar as inconsistent with that of
Magellan who on numerous occasions made statements
clearly susceptible of interpretation by the Charging Union
to the effect that it would get a contract or that he would
sign with it when the time came . In apparent conflict with
Magellan as to who would act for Respondent Employer,
Martinac , in a conversation with Tarantino early in April,
told him that Magellan was going to take care of a contract.
Martinac also told Charging Union Business Agent Silva
substantially the same thing at the time of the launching of
the Eastern Pacific in April.
In addition to the above, in his various conversations
with Tarantino, Silva, and Marino in March, April, May,
and later, Magellan in substance, according to them, and
also Balinger , secretary-treasurer of the Charging Union
(with respect to a conversation in June), said in response to
their request for a contract that it was early, that they had
nothing to worry about since they had the crew, and they
would get a contract when the time was right.22
Magellan claimed at times that what he said or intended
was that if the crew was for them, they would get a
contract-that it was "up to the crew." Respondent Union
claims that this is a correct interpretation or version of
Magellan's remarks and that Tarantino, to whom he spoke
on at least a dozen occasions, so understood this.
Respondent refers to the first part of the following
testimony of Tarantino:
Q. (Mr. McTernan) Isn't it true that he said in
words or in substance in this conversation that as far
as he was concerned, it was up to the crew to decide
which union they wanted?
A. He always did say that there might turn out to
be an election, yes.
Q. I want to be very specific about this. Did he in
March of 1965 tell you in words or in substance that it
was up to the crew to decide which union the boat had
a contract with?
A. No.
Q. Did he tell you that at any time in 1965?
A. No.
fish inspector and organizer , who testified to conversations with
Magellan two or three times in March , twice in April , once or
twice in May , twice in June in person and also a phone
conversation (about the Respondent Union ), and once in July.
Magellan admitted having two phone conversations with Marino,
testifying at one point that he had only two conversations and at
an earlier time in his testimony that he probably had more than
two with Marino In view of this indefiniteness on the part of
Magellan, the consistency of Marino's testimony with the
undemed testimony of other witnesses , Tarantino, Silva, and
Balinger, and , to a certain extent, the testimony of Magellan
himself, which will be specifically referred to, and my appraisal of
Marino and Magellan, I would credit Marino's testimony as to
both the number of conversations and what was said . Additional
conversations were had between Lester Balinger, executive
secretary and treasurer , and Magellan , one being in early June
and one in July None of the foregoing were specifically pinned
down to the May 3 to 10 period, although Silva indicated a
conversation either on Tuesday, May 8, or June 8. Since June 8
was a Tuesday and May 8 was not, such a conversation would
appear to have taken place on June 8 rather than May 8 The
significance, if any, of this will be considered post.
12 This was varied and stated in numerous ways according to
the testimony of Tarantino, Silva, and Marino
802 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Q. Isn't it a fact that he repeatedly told you it was a
question as far as he was concerned of what the crew
wanted?
A. No.
Q. Do you recall his telling you so far as he was
concerned his preference was for the I.L.W.U. but it
was up to the crew?
A. No.
In addition to the statement by Tarantino above where his
answer is that he always did say "there might turn out to
be an election" which is stressed by Respondent (but not
that which follows), Respondent Union refers to the
testimony of Magellan with respect to Tarantino as
follows:
Q. What was said by you and by him on this
subject?
A. Well, he asked me, "When are you going to sign
up, B;11? Quit fooling around." I told him "Jack, you
know darn well I cannot sign up." No, wait a minute. I
says, "Quit bugging me. When I want to sign up, I will
sign up." And he says, "You cannot sign up with
nobody." He says, "You have to get an election on
this boat." I says, "What are you talking about?" I
says, "A brand new boat, we don't need an election."
He says, "Bill, brand new or old, you need an
election." And I says, "O.K., quit bugging me. You
get the crew." And I walked off.
The above, according to Magellan, took place during the
course of his various conversations with Tarantino.
Respondent Union points out that Silva and Marino denied
that Magellan told them it was up to the crew to decide
which union the vessel signed with. It contends that
Tarantino's failure to deny such23 (presumably coupled
with Tarantino's testimony relative to an election set forth
above) establishes that Magellan conditioned his
statements to the Charging Union on its having a majority
of the crew and so informed the representatives of the
Charging Union.
I do not agree. While it is possible that Magellan may
have so intended, an examination of all the testimony will
not support Respondent's contentions. Among the
statements made to Tarantino, Silva, Marino, and Balinger
were the following according to their testimony which I am
crediting.24 Tarantino testified as to conversations in
March:
Q. (By Mr. Shapiro) Directing your attention to the
first conversation, what was said? Tell us what you
said , and what Mr. Magellan said, and what Mr. Silva
said, if anything, what he said.
A. I asked Mr. Magellan about getting the contract
signed, and he says, "What are you worried about?
The crews belong to this Union, anyway," and "Yet
there is a lot of time. Don't worry about it."
Q. Directing your attention to the second
conversation , tell us what was said and who said it.
A. About the same thing.
Q. State it. What was said, what you said.
A. I asked him about the contract, and he says,
"What are you worried about? The crew belongs to
you guys."
23 It should be noted that Silva's and Marino's denials were
elicited by Respondent Union counsel and not the General
Counsel
24 See discussion , supra, In 21, and also Magellan's own varied
versions post
Then Tarantino testified with respect to the first of two
conversations in April:
Q. Directing your attention to the first
conversation in time, what did you say, what did
Mr. Magellan say?
A. First I complimented him on the car that he
had, and then I asked him again, and he gave me the
same answer, "Don't worry. The crew belongs to you
guys. When it is time, we will get together."
According to Tarantino, Magellan repeatedly told them
that they were not to worry about it, and that they would
get together when it was time. In May Magellan, while at
the Charging Union's office'25 was asked, "When are you
going to sign a contract?" He replied, according to
Tarantino, "The smart thing to do is send out a letter." In
June, when Tarantino asked Magellan when they were
going to get together, Magellan told him it was going to be
awhile yet, probably in August when the boat got down to
San Diego.
According to Marino, in March he asked Magellan about
when he was going to sign a contract with the Charging
Union and Magellan would reply: "Well, don't worry about
it. The boat is not yet ready. You have nothing to worry
about. You have all the crew from San Diego on it."
In June, Marino, after hearing rumors that Magellan was
meeting with Respondent Union, called Magellan and
asked if this was true. Magellan replied, "Yes." Marino
then arranged to meet Magellan on June 18 and told him it
was about time they got together and signed a contract.
Magellan told him he shouldn't worry about it, that the
boat wasn't ready, and that when the boat was ready, they
would talk about it. Magellan also told Marino he should
have his office write them a letter with respect to a
contract. Silva was present at several of the meetings that
Tarantino had with Magellan including some in March and
April and corroborated Tarantino's testimony.
Lester Balinger, secretary-treasurer of the Charging
Union, had a discussion with Magellan on June 5 at which,
according to Balinger, the following occurred:
Q. (Mr. Shapiro) What did you say, sir, and what
did Mr. Magellan say, and if anyone else said
anything, what did they say in connection with this
conversation?
A. Well, I called Bill over, and we greeted each
other cordially and kidded, and then I said, "Bill, we
have had enough baloney about this contract. When
are we going to sit down and negotiate an agreement?
And he gave me his usual smile and said, "Well,
hasn't Carl told you?"
I said, "Well, Carl tells me lots of things, Bill, but
let us get your name on an agreement."
He said, "Let us don't worry about a thing. You got
all the guys aboard the boat. When the boat gets down
here we will sit down and negotiate an agreement.
Don't worry about a thing."
And I said, "O.K., I will take your work for that,
Bill. I won't worry about a thing then."
Magellan admitted having a conversation with Balinger at
that time but said he couldn't recall what Balinger said or
what he said. Magellan was then asked:
is Where he could sign necessary papers to receive
unemployment compensation from the State
M. V. EASTERN PACIFIC
Q. (Mr. McTernan) Did you ever say to
Mr. Balinger that, in words or in substance, that when
the Eastern Pacific got down to San Diego you would
sit down with him and negotiate a contract with his
union?
A. Yes, I did.
Q. I says, the same statements again . "You have
the crew. Don't bother me. When the boat gets here
we will sit down," or "You got the crew. We will make
an agreement with you, sign a contract with you," but
they never did do anything.
Magellan further testified as follows with respect to
conversations with Tarantino:
Q. (Mr. McTernan) Is it true that he did ask you to
sign a contract on the Eastern Pacific?
A. That is correct.
Q. With the Cannery Workers Union?
A. Yes.
Q. When he broached this subject to you, what
statement did you make to him, if any?
A. I made several statements to him.
Q. Tell us what you said.
A. Sometimes I would say, "It is not up to me,"
that I only own 25 percent of the boat, and let us put
the cards on'the table.
If you were in my boots, and you owned 25 percent,
and somebody else owned 75 percent, who is the
boss? And he agreed with me that Martinac was the
boss.
Q. Did you tell him that Martinac had 75 percent
interest?
A. Yes.
Q. All right.
A. On other occasions I told him, "What are you
worried about? The crew all belongs to you, anyhow."
Q. Were there any occasions on which you made
these statements to him, "It depends on what the
crew wants to do," and "What are you worried about?
They all belong to you anyway," in the same
conversation?
A. Yes, I did make the statement.
Q. Did you ever tell Mr. Tarantino in words or in
substance that you would sign a contract with his
union?
A. Yes, I did.
Q. What did you say?
A. I said, "If the time ever arrived, we would sign a
contract. We would sign a contract with you." If the
men wanted to go that way, I would sign a contract
with them.
Subsequently, Magellan testified:
Q. (Mr. McTernan) In these conversations with
Cannery Workers Union representatives, other than
Tarantino, did you make any statement with them
dealing with being guided by what the crew wanted?
A. I always told them, "What the crew wanted."
In spite of the last assertion above, Magellan's testimony,
as set forth, indicates a variety of positions. According to
his own admission, he had several different statements
that he made to the Charging Union. Further from the
26 About which it appears to have heard something, in May or
June, although exactly what or when is not clear However, the
Charging Union was aware that Respondent Union had been
invited to the launching of the Eastern Pacific which occurred on
April 14 and it knew that the Respondent Union was a oval in
organizing activities
803
versions of Tarantino, Silva, and Marino, it is evident that
he indicated to them that Respondent Employer would
enter into an agreement for a contract with the Charging
Union at such time as he considered it timely or proper. In
addition, there was his conversation with Balinger on
June 5 (after the May 10 oral agreement), at which he told
Balinger that when the boat got down to San Diego they
would sit down and negotiate a contract. The foregoing
supports an understanding on the part of the Charging
Union that Respondent Employer was recognizing it and
would enter into a contract. Based on Magellan's
statements, such understanding could reasonably have
been had by the Charging Union commencing in March
and continuing thereafter subject to its knowledge of
Respondent Employer's meeting with Respondent
Union. 26 But even as to this, it was constantly being
reassured by Magellan (both before and after the oral
agreement of May 10) that it had the crew and Respondent
Employer would sit down and negotiate with it when the
time came.
The foregoing, in addition to indicating a basis for a
valid belief on the part of the Charging Union that it was
recognized by Respondent Employer and would obtain a
contract, also may explain why it made no effort to file a
petition. Balinger testified that the reason why no petition
was filed was because: "Well, we did not feel it necessary
to file a petition. We felt, generally speaking, and I am
talking now about after consultation with the various
people that I talked to that had talked to Magellan, and
that he had recognized us as the bargaining agent, and we
had no necessity of filing a petition."27
The Charging Union relies on its membership dues
records to support its claim of having a majority. This
latter requires separate consideration.
E. The Charging Union's Dues Membership Records as
Support for Claim to Majority Representation
The General Counsel contends that the dues
membership records of the Charging Union indicate or
support a claim for representation on its part such as to
give rise to at least a substantial question concerning
representation. He refers not only to use of such records as
a basis for the required 30-percent showing by a petitioner
in representation case proceedings under the Act but also
as a basis for establishing a majority in complaint
proceedings under the Act, alleging refusal to bargain.28
Respondent contends that the facts pertaining to
"membership" involved here negate any inference from
membership in the Charging Union that such membership
would indicate a desire on the part of a "member" of
having the Charging Union represent him. Respondent
Union points to the fact employees constantly ship on
different vessels which may be under contract with one of
at least three different unions, each of which may require
membership therein. Hence according to Respondent
Union, employees, including some of those herein, may
retain membership in several unions at the same time, and
that such was the case of those members of the crew of the
Eastern Pacific retaining membership in the Charging
21 Whether the Charging Union did or did not represent a
majority of the employees is another question discussed post
2" Harris-Woodson Co , Inc , 77 NLRB 819, 833-834, and cases
cited See also United States Gypsum Company, 90 NLRB 964,
983
295-269 0-69-52
804 DECISIONS OF NATIONAL
Union. Respondent Union points to at least three or four
members of the crew of the Eastern Pacific having served
on three other vessels in the preceding year on each of
which the crew was represented by a different union
(including the two here involved ). 29 It also refers to the fact
that several persons ( apparently four ) paid dues to the
Charging Union while working on the Antoinette B which
was then under contract with Respondent Union.
Respondent Union points out that among the
circumstances to be considered are that the Charging
Union has a $125 initiation fee contrasted with only a $1
monthly fee to remain in good standing and with
reinstatement without a $ 125 fee in the discretion of either
a committee according to the union constitution but in
actuality the discretion of the secretary -treasurer,
Balinger. Respondent argues that accordingly a person
would have good reason to remain in the Charging Union
without necessarily desiring it as bargaining
representative . The record also reflects certain other
benefits derivable from continuing membership in the
Charging Union including death benefits , emergency fund
benefits , a health and welfare program, and ability to file
unemployment compensation claims through the Charging
Union under California Unemployment Compensation
Law procedure . The record reflects30 that membership
was rather sporadically maintained and that a member
remained in good standing until he was 6 months
delinquent in payment of dues at which time he would be
automatically expelled. Of the 11 members of the crew of
the Eastern Pacific on May 3, 9 apparently had been or
were members of the Charging Union.31 Of these, on
May 3, eight were in good standing and one would have
been expelled since he had paid no dues since August 31,
1964 . Two of the eight were fully current in payment of
dues while the other six, although behind, were still in
good standing . Of these six , three had paid their dues
through March 31, 1965, and the other three through
December 31, 1964.
The foregoing may raise a question of whether a finding
of majority representation on the part of the Charging
Union could have been made at any material time involved
herein . However , that is not the issue here. The question is
whether there has been demonstrated sufficient evidence
i" See Appendix A for individuals and vessels involved The
transcript establishes that at the time involved the vessel
Southern Pacific was under contract with the Seine and Line
Fishermen's Union of San Pedro, the vessel Coimbra with the
Charging Union, and the vessel Antoinette B with the Respondent
Union
Note that the name of Manuel Carrea appearing on the General
Counsel's list of the crew of the Eastern Pacific appears in the
dues records as Correia which latter is correct, also that
Tony Dutra goes under the name of Tony Dutra, Jr , on the dues
records, Joseph Cruz appears on the dues records as Jose 'laSilva
Cruz and Jerry Correia is shown on the dues records as Jeremias
Correia.
30 Appendix B.
3i See Appendix B
32 Midwest Piping & Supply Co , Inc., 63 NLRB 1060
33 Midwest Piping & Supply Co., Inc, supra.
34 119 NLRB 1573 at 1574.
as Among such are N L R.B v. Air Master Corporation, 339
F 2d 553, 556 (C A 3, 1964), setting aside 142 NLRB 181, Iowa
Beef Packers, Inc v N L R B , 331 F 2d 176, 182 (C A 8, 1964),
enfg 144 NLRB 615, but on basis of employer assistance,
N L R B v Swift & Company, 294 F 2d 285 (C A 3, 1964 ), setting
aside 128 NLRB 732, District 50, United Mine Workers v
N L R B , 234 F 2d 565 (C A 4, 1956), setting aside and remanding
114 NLRB 193
LABOR RELATIONS BOARD
of representation by the Charging Union to give rise to a
real or substantial question of representation at the time
that the Respondent Employer and Respondent Union
entered into a contract either on May 10 or June 19. I think
at either time there was sufficient indication of such
representation on the part of the Charging Union as to give
rise to a real question of representation and to bring into
play the Board's Midwest Piping concept.32
Discussions and Conclusions
The two principal items or issues to be considered are
(1) the applicability of the aforesaid Midwest Piping
doctrine33 and (2 ) the effect , if any, of the signing on May 3
of the designation for Respondent Union by a majority of
the crew in the presence of Magellan following his
statement of preference for I .L.W.U.
Under the Midwest Piping doctrine as stated in Novak
Logging Company, 34 "an employer faced with conflicting
claims of two or more rival unions which give rise to a real
question [ emphasis supplied] concerning representation
may not recognize or enter into a contract with one of
these unions until its right to be recognized has finally
been determined under the special procedures provided in
the Act." Numerous decisions of the Board and the courts
have involved the Midwest Piping rule in a variety of
situations and with varying emphasis. In several cases the
courts have differed from the Board and refused to find a
violation where the employer entered into a contract with
one union at a time when two unions were claiming to be
the bargaining representative. In these cases the Board
had concluded there was a real question concerning
representation which could not be resolved by the
employer . The courts did not agree under the facts
therein.3s
These cases may be helpful in illustrating the problems,
variations , and contentions involved. However, for reasons
set forth hereafter, I do not consider that they would lead
to any different result in the instant case than the
application of Board precedents . Even if they were to do
so, with due deference to the courts , I would be
constrained to follow Boaid precedents and guides until
In N.L R B v Air Master, supra, the court said at p 557 "To
recognize one of two competing unions while the employees'
choice between them is demonstrably in doubt, is an unfair labor
practice under what the courts have accepted as the normal and
proper application of the Midwest Piping doctrine [Citing cases ]
And in principle the same result follows when majority support for
the recognized union exists , but has been achieved by coercion or
some other unfair labor practice [Citing cases ] But where a
clear majority of the employees , without subjection to coercion or
other unlawful influence, have made manifest their desire to be
represented by a particular union , there is no factual basis for a
contention that the employer's action thereafter in recognizing the
union or contracting with it i- an interference with their freedom
of choice [Citing cases ]"
As set forth, the court' s criterion is if the employees' choice is
"demonstrably in doubt," then the employer may not recognize
one of two competing unions but if "a clear majority of the
employees, without subject to coercion or other unlawful
influence have made manifest their desire to be represented by a
particular union," an employer may properly do so. Without
attempting to analyze whether or how this may or may not differ
from the Board's position, I believe, for reasons stated post, that
the employees' choice herein, is "demonstrably in doubt" and
also that the designations of Respondent Union were obtained
under improper circumstances
M. V. EASTERN PACIFIC 805
changed by either the Supreme Court of the United States
or the Board itself.36
There still remains the question to resolve under the
Midwest Piping doctrine as reflected in subsequent Board
decisions of whether or not there was a real question
concerning representation when Respondent Employer
and Respondent Union entered into a binding collective-
bargaining agreement.
Two preliminary questions raised by Respondent Union
are: (1) Was the oral agreement of May 10 determinative so
as to prevent a question concerning representation from
arising thereafter?; (2) if so, was any effective or operative
claim to representation made by the Charging Union prior
to May 10?
First, I do not consider that the oral agreement of
May 10 would preclude a claim thereafter.37
I recognize that a party (employer or union ) who refuses
to sign a contract after agreeing to all of its terms, can be
required to sign it .38 However, there is another line of
cases39 which hold that an oral agreement does not
constitute a bar to proceeding, thereafter, with a timely
perfected claim to representation, or a representation
petition. Where the delay between the time of the oral
agreement and execution of the written agreement is
voluntary, as here, one of the risks the parties take is the
possibility of an intervening claim to representation. Were
there an unjustified refusal to execute a valid oral
agreement entered into at a time when no substantial
question of representation existed or had been raised,
such would constitute an unfair labor practice and
preclude the raising of a question concerning
representation. But that is not the case here.
This conclusion eliminates the necessity for resolution
of the contention that no operative claim was made before
May 10. However, assuming arguendo Respondent
Union's contention that the May 10 oral agreement
precluded a claim thereafter, I would conclude that the
Charging Union had raised an operative claim prior
thereto. While the record does not definitely establish a
specific claim to representation by the Charging Union
between May 3 and 10, it does show such a claim and
contractual request on numerous occasions prior to May 3.
Respondent contends that such could not be operative
because there was no crew before May 3 and hence any
agreement entered into before May 3 would be illegal.
While the latter may be correct it does not alter the fact
that the claims and requests for a contract by the Charging
Union before May 3 made Respondent Employer aware of
the Charging Union's position not only before May 3 but
thereafter as well. Moreover, the Respondent Employer
was aware of the basis of the Charging Union's claim
commencing in March and continuously thereafter.40 I
think it clear that if the basis of the Charging Union's
claim is sufficient for a real question of representation
then there was a real question of representation on May 3
and at all times thereafter including particularly May 10
and June 19.
The next question to resolve is: do the union member-
ship records of the Charging Union, under the facts relat-
ing thereto here involved, sufficiently support a claim for
representation on the part of the Charging Union so as to
give rise to a real question concerning representation. As
previously set forth, union membership records have been
held sufficient to support a finding of majority
representation in refusal-to-bargain case s.41 However,
those cases involved only one union and there was no
evidence such as here to indicate either multipurpose or
ambiguity in union membership. Of course union
• membership historically and presently does include
fraternal, social, and welfare aspects other than merely
bargaining representation. But this ordinarily would not
include a situation where employees often change vessels
and with each change may work under a contract involving
a different union , each of which usually requires a
membership therein. This latter requirement of
membership is particularly pertinent when it is shown, as
here, that within a period of a year several of the same
employees worked on three different vessels, each under
contract with a different union .42 Were union membership
merely a matter of paying dues, this might not be too
important, but in the case of the Charging Union there was
presented either a $125 initiation fee (or discretionary
reinstatement) against $1 monthly dues to remain in good
standing. This could well result in retention of
membership without intending current representation .43 1
think there is ambiguity as to what membership in the
Charging Union as demonstrated herein signifies . But I do
not consider its claim to be a specious or empty one and
within the ambit of the Midwest Piping rule as applied and
interpreted by the Board, I conclude that it does give rise
to a real question of representation. There is present much
more than the required 30-percent representation case
showing (not subject to collateral attack), which was
involved in N.L.R.B. v. Swift, supra.44 The membership
records here showed a majority were in good standing in
the Charging Union when Respondent Union and
Respondent Employer executed the contract. I recognize
that it can be argued that a petition or designation of
another union freely executed constitutes proof to the
contrary-proof resolving the ambiguity arising from
36 See Iowa Beef Packers, supra at 616, citing cases
31 Such claim was admittedly made by the Charging Union on
several occasions after May 10 and prior to June 19, particularly
in the discussion between Balinger and Magellan on June 5
33 H J Heinz Co v. N.L R B , 311 U.S. 514,525-526, et al
39 Appalachian Shale Products Co , 121 NLRB 1160, 1161-62,
et at
40 That such awareness, plus Respondent Employer's
indications of both recognition of the Charging Union and the
basis of its claim, would obviate the necessity of the Charging
Union filing a petition, see Hackett Engineering Company, 118
NLRB 749, 750-751, citing cases Moreover, the Midwest Piping
doctrine as enunciated by the Board does not require the filing of
a petition but is also applicable where there is a known substantial
or real question concerning representation involving two unions.
See Novak Logging Company, supra, Air Master, supra at p 188,
citing cases
41 See fn 28.
42 The record (see Appendix A) indicates three or four of the
same employees were on three different vessels and six or seven
of the same employees on two different vessels-in each instance
working under contract involving a different union.
43 The fact that dues in numerous instances at times were
several months or more in arrears is possibly another ambiguous
circumstance in view of the constitutional provision for explosion
after 6 months' arrearage
44 Even in the situation of such representation case showing, as
possibly opposed to a numerical majority designating another
union, the Board recently stated in Iowa Beef Packers, supra at
619, that numerical superiority in signed authorizations or
numerical percentage of employees represented by one of the
contending unions "does not foreclose the existence of a real
dispute as to representation so as to privilege a premature
recognition "
806 DECISIONS OF NATIONAL
majority membership in the Charging Union. Under the
circumstances, a properly conducted election would
constitute such proof but it has long been recognized that
the signing of cards or designations in the presence of
others (leaving out, for the moment, an owner) is a kind of
proof less readily acceptable, particularly where two or
more unions are involved .45 I am satisfied that under the
Board decisions referred to post46 an employer who enters
into an agreement under the foregoing circumstances
arrogates to himself the determination of a bargaining
representative when there is a real question of
representation and violates Section 8(a)(1) and (2) of the
Act and where the contract provides for union security as
here,47 also Section 8(a)(3).98 Accordingly I find that
Respondent Employer by entering into the aforesaid
contract with Respondent Union violated said section and
that Respondent Union by entering into said contract
violated Section 8(b)(1)(A) and (2) of the Act.
In addition to the foregoing and as further support for
the above finding, apart from (or in conjunction with) the
application of the Midwest Piping doctrine are the
circumstances under which the authorizations of
Respondent Union were executed on May 3.
These were signed following Magellan's statement of
preference for Respondent Union and in his presence99 I
do not consider Magellan' s statement of preference, alone,
to be a violation of the Act under the provisions of
Section 8(c) thereof but his statement, plus his presence,
make unacceptable the signed designations of
Respondent. Even assuming their validity, if signed
outside Magellan's presence, they should not be accepted
when signed in his presence particularly after his assertion
of preference. Signatures so obtained cannot be said to be
uncoerced no matter how often the employees may be told
to sign as they choose. The Board in conducting its
elections requires the greatest secrecy in the conduct of
the ballot and in freedom from coercive influences. It has
set aside elections when employers were in the vicinity of
the polls because such presence could inhibit the free
choice of employees in casting their ballots.50
The manner of obtaining the majority of designations of
Respondent Union on May 3 in the continued presence of
Magellan after his expression of preference constitutes
such interference or coercion as to nullify their validity as
proof of majority. Even if there were not otherwise a
"demonstrable doubt" as to representation, this latter
would cause such a doubt.51
In conclusion, an employer commits an unfair labor
practice who, before hiring any employees, repeatedly
tells one union, which, in fact, has as members a majority
of the crew when employed, that it "has the crew" and he
will deal with it, then tells the crew on the day of hiring he
prefers another union , remains present while a majority
designates the second union as representative, and
subsequently enters into a union -security contract with
that union . A fortiori the union party to such contract also
commits an unfair labor practice.
"Iowa Beef Packers, supra at 619
48 I find no court cases contra under facts such as here
4e The written contract entered into June 19, 1965, between
Respondent Union and Respondent Employer provides that
members of the crew shall become and remain members in good
standing in Respondent Union
48 Iowa Beef Packers, Novak Logging Co , Midwest Piping Co.,
supra, et at
49 See discussion,supra
50 Belk's Department Store of Savannah, Go , Inc., 98 NLR B
LABOR RELATIONS BOARD
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of Respondents set forth in section III,
above, occurring in connection with the operations of
Respondent Employer, described in section 1, 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, I shall recommend that they be
ordered to cease and desist therefrom and take certain
affirmative action in order to effectuate the policies of the
Act.
Having found that Respondent Employer violated
Section 8(a)(1), (2), and (3) by unlawfully assisting
Respondent Union and by recognizing, and entering into a
contract with, Respondent Union both while there was a
question concerning representation, and following its
unlawful assistance, and by enforcing and maintaining
such contract which contained a union-security clause, I
shall recommend that Respondent Employer cease and
desist from enforcing and maintaining such contract and
withdraw and withhold all recognition from Respondent
Union, or any successor as the collective- bargaining
representative of the crew of the Eastern Pacific unless
and until such labor organization shall have been certified
by the Board. Having found that Respondent Union
violated Section 8(b)(1)(A) and (2) by demanding and
accepting recognition from, and entering into a contract
with, Respondent Employer while there was a question
concerning representation and after it had been unlawfully
assisted by Respondent Employer, and by enforcing and
maintaining a contract which contained a union-security
clause, I shall recommend that the Respondent Union
cease and desist from enforcing and maintaining such
contract and from demanding or accepting recognition
from Respondent Employer as the collective-bargaining
representative of the crew of the Eastern Pacific unless
and until it shall have been certified by the Board.
Because of the narrow scope of the unfair labor
practices found herein, I shall recommend a narrow cease-
and-desist order.
Upon the basis of the foregoing factual findings and
conclusions, and upon the entire record in the case, I
make the following:
CONCLUSIONS OF LAW
1. Respondent Employer is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act.
2. Respondent Union and Charging Union are each
280 at 282 , Performance Measurements Co , Inc , 148 NLRB 1657
at 1659
s' See N L R B v Burke Oldsmobile, Inc , 288 F 2d 14 (C A 2)
While Respondent seeks to distinguish this cast, it appears clear
that the court considered the employer's presence , when a vote as
between two unions was taken by a show of hands, as sufficient to
nullify the "election " because "not shown to have been
sufficiently free from possible influence by the employer to insure
an untrammeled vote "
M. V. EASTERN PACIFIC
labor organizations within the meaning of Section 2(5) of
the Act.
3. A question concerning representation existed among
the crew of the Eastern Pacific at all times between their
employment on May 3, 1966 , and the entry into either the
oral or written agreement between Respondent Union and
Respondent Employer as described above.
4. By recognizing and entering into a contract with
Respondent Union , while there was a question concerning
representation , and by unlawfully assisting Respondent
Union prior thereto, and by enforcing and maintaining
such contract , which contained a union -security clause,
Respondent Employer engaged in unfair labor practices
within the meaning of Section 8 (a)(1), (2), and (3) of the Act.
5. By demanding and accepting recognition from, and
entering into a contract with , Respondent Employer while
there was a question concerning representation and after
it had been unlawfully assisted by Respondent Employer
and by enforcing and maintaining the contract which
contained a union - security clause, Respondent Union
engaged in unfair labor practices within the meaning of
Section 8 (b)(1)(A) and (2) 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 upon the entire record in the case,
I recommend that:
A. William A. Magellan, Joseph S. Martinac , Frederick
T. Borovich, G. E. Skewis, Eugene Dahout, and J. M.
Martinac Shipbuilding Corporation, d/b/a M. V. Eastern
Pacific and their officers , agents, successors , and assigns,
shall:
1. Cease and desist from:
(a) Recognizing or contracting with Respondent
Fishermen ' s Union Local 33, International Longshore-
men's and Warehousemen 's Union, or any successor
thereto, as the statutory representative of the crew of the
Eastern Pacific until such labor organization shall have
been certified by the Board.
(b) Enforcing or maintaining their collective -bargaining
contract with Fishermen 's Union Local 33, International
Longshoremen 's and Warehousemen 's Union entered into
on June 19, 1965, or any modification , extension,
supplement , or renewal thereof unless and until said labor
organization shall have been certified by the Board as the
exclusive representative of the crew of the Eastern
Pacific.
(c) In any like or related manner interfering with,
restraining , or coercing the crew members of the Eastern
Pacific in the exercise of the rights guaranteed them by
Section 7 of the Act.
2. Take the following affirmative action which I find
will effectuate the policies of the Act:
(a) Withdraw and withhold all recognition from
Fishermen ' s Union Local 33, International Longshore-
men's and Warehousemen 's Union, or any successor
52 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
notice 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."
807
thereto, unless and until such labor organization shall have
been certified by the Board as the statutory representa-
tive of the crew members of the Eastern Pacific.
(b) Post at appropriate places on the vessel Eastern
Pacific copies of the notice marked "Appendix C."52
Copies of such notice to be furnished by the Regional
Director for Region 21, after being duly signed by an
authorized representative , shall be posted immediately
upon receipt thereof and be maintained for a period of 60
consecutive days thereafter , in conspicuous places,
including all places where notices to the crew are
customarily posted . Reasonable steps shall be taken by
Respondent Employer to insure that such notices are not
altered , defaced, or covered by any other material.
(c) Notify the Regional Director for Region 21, in
writing, within 20 days from the date of the receipt of this
Decision , what steps Respondent had taken to comply
herewith.53
B. Fishermen 's Union Local 33, International
Longshoremen 's and Warehousemen ' s Union , its officers,
agents, and representatives , shall:
1. Cease and desist from:
(a) Demanding or accepting recognition from or
contracting with William A. Magellan, Joseph S. Martinac,
Frederick T. Borovich, G. E. Skewis, Eugene Dahout,
and J . M. Martinac Shipbuilding Corporation, d/b/a
M. V. Eastern Pacific, for the crew of the vessel , Eastern
Pacific, as the statutory representative of such crew
members until it shall have been certified by the Board as
such representative.
(b) Enforcing or maintaining its collective -bargaining
contract with William A. Magellan , captain and/or owner
of the vessel Eastern Pacific, entered into on June 19,
1965, or any modifications , extensions, supplements, or
renewals thereof unless and until it shall have been
certified by the Board as the statutory representative of
the crew members of the Eastern Pacific.
(c) In any like or related manner restraining or coercing
employees of the Eastern Pacific in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action which I find
will effectuate the policies of the Act:
(a) Post at its offices and meeting halls and mail to each
of the crew members of the Eastern Pacific copies of the
attached notice marked "Appendix D."54 Copies of such
notice to be furnished by the Regional Director for
Region 21 , after being duly signed by an authorized
representative, shall be posted immediately upon receipt
thereof and maintained for a period of 60 days thereafter,
in conspicuous places, including such places where
notices to members are customarily posted, and
immediately mailed by regular mail to crew members of
the Eastern Pacific at their last known addresses.
Reasonable steps shall be taken by Respondent Union to
insure that such notices are not altered , defaced, or
covered by any other material.
(b) Notify the Regional Director for Region 21, in
writing, within 20 days from the date of receipt of this
Decision , what steps Respondent Union has taken to
comply herewith.55
sa 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
54 See fn 52.
55 See In 53
NAME (Listed in
Order ap earing
on G.C. M. 3 _
Spelling corrected
p. 21/7 to p. 23/2
Forked on EASTERN
PACIFIC net on
Date Shown
(p. 20/3; p. 20/6-10;
p. 20/17-20
Signed ILWU
Designation
Lxh.
Union
. 1.)
Forked on SOUTHERN
PACIFIC under
MAGELLAN (p. 216/2
to p. 217/8; p.216/21;
p. 217/4,6)
- Worked on COIMBRA
Under MAGELLAN
(p. 219/7-21)
worked on ANTOIN_
ETTE B. under
MAGELLAN
(p. 225/12 to
p. 226/4)
Johnnie Gonsalves 7/6/65 No
William A. Magellan
Manuel A. Correia 5/3/65 Yes
Manuel J. Silva 5/3/65 Yes Yes No Yes
Joseph S. Cruz 5/3/65 Yes Yes No Yes
Harry J. Carvalho 5/3/65 Yes 9 Yes Yes
Jose L. Costa 5/3/65 No
Manuel Pelicas 5/3/65 Yes No No Yes
Jerry Correia 5/10/65 Yes Yes Yes Yes
Leonard Ingrande 5/3/65 Yes Yes
Tony A. Dutra 5/3/65 Yes Yes Yes Yes
John Correia 5/10/65 Yes No Yes
David Felando 5/3/65 Yes Yes Yes Yes
NOTE: Names underscored have dues records in Charging Union (G.C. Exh. 2).
(From Respondent Union's brief with two corrections as set forth in opinion based
on check of entire record including transcript.)
M. V. EASTERN PACIFIC
APPENDIX B
Dues records of members of Charging Union employed on Eastern Pacific.
809
HARRY J. CARVALIIO 5/25/64
3/8/65
1/6/66
Payment for period 6/1/62
Payment for period 6/1/64
Payment for period 4/1/65
to
to
to
5/31/64
3/31/65
12/31/65
JOHN CORREIA 3/24/64
11/10/64
/3/65
Payment for period 4/1/63 to 8/31/63
Testimony indicated
Payment for period 2/1/64 to 12/31/64
But record also appears to indicate
Payment for period 9/1/63 to 2/1/64
Payment for period 1/1/65 to 7/31/65
JERRY CORREIA 10/27/64 Payment for period 5/1/60 to 8/31/64
MANUEL CORREI'A 5/12/64
3/31/65
Payment for period 6/1/64 to 12/31/64
Payment for period 1/1/65 to 12/31/65
Prior to May 1, 1964, MANUEL CORREIA had been on
withdrawal since May 7, 1953.
JOE CRUZ 5/21/64
3/16/65
11/8/65
5/16/66
Payment for period 8/1/63
Payment for period 6/1/64
Payment for period 1/1/65
Payment for period 1/1/66
to
to
to
to
5/31/64
12/31/64
12/31/65
12/31/66
TONY DUTRA, JR. 1/7/65 Payment for period 11/1/60 to 12/31/64
Expelled Notice 7/28/65-
5/27/66 Payment for period 1/1/65 to 5/31/66
5/27/66 Withdrawal
LEONARDINGRANDE 5/1/64 Payment for period 8/1/62 to 4/30/64
3/17/65 Expelled notice
3/22/65 Payment for period 5/1/64 to 3/31/65
10/27/65 Payment for period 4/1/65 to 10/31/65
10/27/65 Withdrawal
MANUEL PELICAS 3/31/64 Payment for period 3/1/64 to 7/31/64
3/16/65 Payment for period 8/1/64 to 3/31/65
1/26/66 Expelled notice
MANUEL SILVA 11/4/64 Payment for period 6/1/61 to 6/30/64
3/11/65 Payment for period 7/1/64 to 3/31/65
4/1/65 Payment for period 4/1/65 to 6/30/65
7/1/65 Payment for period of 7/65
2/2/66 Expelled notice
(From Respondent Union's brief with several changes or corrections based on
check of dues records in exhibit file and transcript testimony.)
It should be noted that both stipulation and the constitution of Charging Union
establish that failure to pay dues for 6 months automatically results in explusion.
810 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX C
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 discourage membership in Cannery
Workers & Fishermen's Union of San Diego,
AFL-CIO, or any other labor organization by
discriminating as to the hire, tenure, or other terms or
conditions of employment of any of our employees.
WE WILL withdraw and withhold all recognition
from Fishermen's Union Local 33, International
Longshoremen's and Warehousemen's Union, as the
exclusive representative of our employees, and we
will not enforce the contract entered into with such
Union on June 19, 1965, unless and until such Union is
certified by the National Labor Relations Board as the
exclusive representative of the crewmembers of the
Eastern Pacific.
WE WILL NOT in any like or related manner
interfere with the rights of our employees as
guaranteed by Section 7 of the Act.
WILLIAM A. MAGELLAN,
JOSEPH S. MARTINAC,
FREDERICK T. BOROVICH,
G. E. SKEWIS,
EUGENE DAHOUT, AND
J. M. MARTINAC
SHIPBUILDING
CORPORATION D/B/A
M. V. EASTERN PACIFIC
(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, Eastern
Columbia Building , 849 South Broadway, Los Angeles,
California, Telephone 688-5229.
APPENDIX D
NOTICE TO ALL MEMBERS OF FISHERMEN 'S UNION
LOCAL 33, INTERNATIONAL LONGSHOREMEN'S AND
WAREHOUSEMEN'S UNION
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 you that:
WE WILL NOT demand or accept recognition from
or contract with William A. Magellan, Joseph S. Mar-
tinac, Frederick T. Borovich, G. E. Skewis, Eugene
Dahout, and J. M. Martinac Shipbuilding Corporation
d/b/a M. V. Eastern Pacific as the representative of
the crewmembers of the vessel Eastern Pacific, nor
will we enforce the contract entered into with
William Magellan, as captain or owner of the Eastern
Pacific on or about June 19, 1965, unless and until we
have been certified by the National Labor Relations
Board as the exclusive representative of such
crewmembers.
FISHERMEN 'S UNION
LOCAL 33, INTERNATIONAL
LONGSHOREMEN'S AND
WAREHOUSEMEN 'S UNION
(Labor Organization)
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 members have any question concerning this notice or
compliance with its provisions, they may communicate
directly with the Board's Regional Office, Eastern
Columbia Building, 849 South Broadway, Los Angeles,
California, Telephone 688-5229.
Midwest Timer Service, Inc. and Thelma L.
Hazlewood . Case 7-CA-5592.
March 31, 1967
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING
AND ZAGORIA
On December 9, 1966, Trial Examiner Max
Rosenberg issued his Decision in the above-entitled
proceeding, finding that the Respondent had
engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision.
Thereafter, the Respondent 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 Respondent's exceptions
and 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
163 NLRB No. 111