Maximillion Cruises, Inc.

National Labor Relations Board - Board Decisions

Sep 14, 1999

329 N.L.R.B. 137 (N.L.R.B. 1999)

MAXIMILLION CRUISES, INC. 137
Maximillion Cruises, Inc. and Seafarers International
Union, AFL–CIO. Case 29–CA–22509
September 14, 1999
DECISION AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS FOX
AND LIEBMAN
On July 2, 1999, Administrative Law Judge Howard
Edelman issued the attached decision. The Respondent
filed exceptions.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and has decided to affirm the
judge’s rulings, findings, and conclusions and to adopt
the recommended Order as modified and set forth in full
below.1
The judge’s remedy is modified as follows: The Re-
spondent shall pay its terminated employees backpay at
the rate of their normal wages when last in the Respon-
dent’s employ from 5 days after the date of this Decision
and Order until occurrence of the earliest of the follow-
ing conditions: (1) the date the Respondent bargains to
agreement with the Union on those subjects pertaining to
the effects of the closing of its facility on its employees;
(2) a bona fide impasse in bargaining; (3) the Union’s
failure to request bargaining within 5 business days after
receipt of this Decision and Order, or to commence nego-
tiations within 5 business days after receipt of the Re-
spondent’s notice of its desire to bargain with the Union;
and (4) the Union’s subsequent failure to bargain in good
faith, but in no event shall the sum paid to these employ-
ees exceed the amount they would have earned as wages
from the date on which the Respondent closed its Brook-
lyn, New York facility operations, to the time they se-
cured equivalent employment elsewhere, or the date on
which the Respondent shall have offered to bargain in
good faith, whichever occurs sooner; provided, however,
that in no event shall this sum be less than the employees
would have earned for a 2-week period at the rate of their
normal wages when last in the Respondent’s employ.
Backpay shall be based on earnings which the terminated
employees would normally have received during the ap-
plicable period, less any net interim earnings, and shall
be computed in accordance with F. W. Woolworth Co.,
90 NLRB 289 (1950), with interest as prescribed in New
Horizons for the Retarded, 283 NLRB 1173 (1987).

1 We shall modify the judge’s Transmarine remedy language to con-
form with changes the Board adopted in Melody Toyota, 325 NLRB
846 (1998). We shall also modify the judge’s recommended Order in
accordance with Indian Hills Care Center, 321 NLRB 144 (1996).
Finally, we shall modify the notice to conform with the recommended
Order as modified.
ORDER
The National Labor Relations Board orders that the
Respondent, Maximillion Cruises, Inc., Fort Lauderdale,
Florida, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain with Seafarers International Union,
AFL–CIO with respect to the effects of its decision to close
its Brooklyn, New York facility operations on represented
employees in the following unit:

All full-time and regular part-time Navigational crew,
including mates, dock hands, able-bodied seamen, oil-
ers and engineers employed by the Respondent out of
its Brooklyn, New York facility, excluding captains,
guards and supervisors as defined in the Act.

(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Pay to the unit employees limited backpay in the
manner set forth in this decision.
(b) On request, bargain collectively with the Union
with respect to the effects on the unit employees of its
decision to close its Brooklyn, New York facility opera-
tions, and reduce to writing any agreement reached as a
result of the bargaining.
(c) Preserve and, within 14 days of a request, make
available to the Board or its agents for examination and
copying, all payroll records, social security payment re-
cords, timecards, personnel records and reports, and all
other records necessary to analyze the amount of back-
pay due under the terms of this Order.
(d) Within 14 days after service by the Region, mail, at
its own expense and after being signed by the Respon-
dent’s authorized representative, an exact copy of the
attached notice, marked “Appendix,”2 to the Union and
to all former unit employees who were employed when
the Respondent closed its Brooklyn, New York facility
operations.
(e) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
2 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
329 NLRB No. 16
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 138

APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us to
post and abide by this notice.

Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.

WE WILL NOT refuse to bargain with Seafarers Interna-
tional Union, AFL–CIO with respect to the effects of our
decision to close our Brooklyn, New York facility opera-
tions on the following unit of employees:

All full-time and regular part-time Navigational crew,
including mates, dock hands, able-bodied seamen, oil-
ers and engineers employed by us out of our Brooklyn,
New York facility, excluding captains, guards and su-
pervisors as defined in the Act.

WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL pay to the unit employees described above
limited backpay in the manner set forth in the Board’s
decision.
WE WILL, on request, bargain collectively with the Un-
ion with respect to the effects on the unit employees of
our decision to close our Brooklyn, New York facility
operations, and reduce to writing any agreement reached
as a result of the bargaining.
MAXIMILLION CRUISES, INC.

Haydee Rosario, Esq., for the General Counsel.
Catherine McVeigh, Esq., for the Respondent.

BENCH DECISION
STATEMENT OF THE CASE
HOWARD EDELMAN, Administrative Law Judge. The trial
was held before me on May 5, 1999, in Brooklyn, New York.
The complaint alleged that following a Board election and
certification, Respondent Maximillion Cruises, Inc. refused to
meet with and bargain with the Seafarers International Union
(the Union), in violation of Section 8(a)(1) and (5) of the Act.
Based on counsel for Respondent’s admission that Respondent
had terminated its business operation on or about September
30, 1998, counsel for the General Counsel moved to amend its
complaint to include an allegation that since such termination,
Respondent has refused to bargain with the Union concerning
the effects of such termination. Counsel for Respondent did not
object to the amendment, and such amendment was granted.
Based on the entire record in this case, my observation of the
demeanor of the single witness presented by the General Coun-
sel, and on the oral argument by the General Counsel, I make
the following findings of fact, and conclusions of law.1
Respondent, is a Florida corporation, with its principle office
and place of business located in Fort Lauderdale, Florida, and
another place of business located in Brooklyn, New York (the
Brooklyn facility), has been engaged in the business of operat-
ing a gambling boat. Respondent annually, in the course of its
business operations, derives gross revenues in excess of
$500,000. Respondent annually purchases and receives at its’
Brooklyn facility food, liquor, and other supplies for its gam-
bling business valued at in excess of $500,000 directly from
enterprises located outside the State of New York.
I find that Respondent is an employer engaged in business
within the meaning of Section 2(2), (6), and (7) of the Act.2
It is admitted and I find that the Union is a labor organization
within the meaning of Section 2 (5) of the Act.
On August 28, 1998, the Union filed a petition for certifica-
tion of representative in Case 20–RC–9103, seeking of a unit of
employees, described below. On September 25, 1998, an elec-
tion was conducted and on October 21, 1998, the Union was
certified as the exclusive collective-bargaining representative
of:

All full-time and regular part-time Navigational crew, includ-
ing mates, dock hands, able-bodied seamen, oilers and engi-
neers, employed by the employer out of its Brooklyn facility,
excluding captains, guards and supervisors as defined in Sec-
tion 2(11) of the Act.

On December 1, 1998, David Ross, Respondent’s president,
met with Jack Caffey, Union’s vice president, to discuss terms
for a collective-bargaining agreement. Caffey gave Ross writ-
ten proposals for a collective-bargaining agreement. Ross did
not submit any counterproposals. Ross did not inform Caffey
that he intended to, or had ceased doing business.
Thereafter, by telephone calls and by a letter dated December
15, 1998, the Union attempted to contact Ross to arrange for
further meetings. Ross has failed to respond.
The evidence establishes that Respondent had discontinued
its operation prior to meeting with the Union on December 1,
and failed to disclose this to the Union. Moreover, notwith-
standing further requests by the Union to bargain, Respondent
refused to reply to such requests or to notify the Union that it
had discontinued its operation. By engaging in such conduct, I
find that Respondent violated Section 8(a)(1) and (5) of the
Act. Sea Jet Trucking Corp., 327 NLRB 540 (1999); Transma-
rine Navigation Corp., 170 NLRB 389 (1968).
Accordingly, I shall recommend that Respondent be ordered
to bargain with the Union, on request, about the effects upon
employees in the unit set forth above, and to pay these employ-

1 Counsel for Respondent declined to make an oral argument. Coun-
sel for the General Counsel and counsel for Respondent waived the
filing of briefs.
2 Counsel for the Respondent did not admit to the conclusion of the
Board’s jurisdiction, however, in view of the Board’s certification,
described below, I conclude Respondent is an employer as defined in
the Act. Spring Valley Farms, Inc., 274 NLRB 643, 644 (1985).
MAXIMILLION CRUISES, INC. 139
ees amounts at the rate of their normal wages when last in Re-
spondent’s employ from 5 days after the date of this decision
until the occurrence of the earliest of the following conditions:
(1) the date Respondent bargains for agreement with the Union
on those subjects pertaining to the effects of the closing of its
business operations at its Brooklyn facility; (2) a bona fide
impasse in bargaining; (3) the failure of the Union to request
bargaining within 5 days of this decision, or to commence ne-
gotiations within 5 days of the Respondent’s notice of its desire
to bargain with the Union; or (4) the subsequent failure of the
Union to bargain in good faith; but in no event shall this sum be
less than these employees would have earned for a 2-week
period at the rate of their normal wages when last employed by
Respondent.
[Recommended Order omitted from publication.]
.