Mon River Towing, Inc.

National Labor Relations Board - Board Decisions

Jan 2, 1969

173 N.L.R.B. 1452 (N.L.R.B. 1969)

1452 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Mon River Towing , Inc. and National Maritime Union
of America , AFL-CIO and International Union of
District 50 , United Mine Workers of America, and
its Local Union # 14693 , Party to the Contract.
Case 6-CA-4140
January 2, 1969
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND ZAGORIA
On August 19, 1968, Trial Examiner Josephine H.
Klein issued her Decision in the above-entitled case,
finding that the Respondent had engaged in and was
engaging in certain unfair labor practices, and recom-
mending that it cease and desist therefrom and take
certain affirmative action, as set forth in the attached
Trial Examiner's Decision. The Trial Examiner also
found that the Respondent had not engaged in certain
other unfair labor practices and recommended that
these allegations of the complaint be dismissed.
Thereafter, the Respondent and General Counsel filed
exceptions to the Trial Examiner's Decision and
supporting briefs, and the Charging Party filed a beef
in answer to the Respondent's 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 and briefs, and
the entire record in this proceeding, and hereby
adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner, as modified herein.'
ORDER
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
JOSEPHINE H. KLEIN, Trial Examiner Pursuant to a
charge filed on January 12, 1968 (amended March 25, 1968),
by the National Maritime Union of America, AFL-CIO
(NMU), a complaint was issued on March 25, 1968, against
Mon River Towing, Inc. (Respondent), alleging the commission
of unfair labor practices within Section 8(a)(1) and (2) of the
Act.' Pursuant to notice, a hearing was held at Pittsburgh,
Pennsylvania, on May 7 and 8, 1968. The General Counsel, the
Respondent, the Charging Party, and the Party to the
Contract, International Union of District 50, United Mine
Workers of America, and its Local #14693 (District 50),
appeared by counsel. All were afforded full opportunity to be
heard, to examine and cross-examine witnesses, to introduce
evidence, and to present argument. Briefs filed by the General
Counsel, the Respondent, and the Charging Party have been
duly considered.
Upon the entire record,' from careful observation of the
witnesses, and on consideration of the briefs, the Trial
Examiner makes the following
FINDINGS OF FACT
I JURISDICTIONAL FINDINGS
The complaint alleges, Respondent admits, and the Exam-
iner finds that
A. Respondent, a Pennsylvania corporation with its prin-
cipal office in Pittsburgh, Pennsylvania, is engaged in the
operation of tow boats on navigable waters between various
States. Within the 12-month period immediately preceding the
issuance of the complaint, a representative period, Respondent
transported goods and materials valued in excess of $50,000
from points outside Pennsylvania directly to points within
Pennsylvania. Respondent is now, and has been at all times
material herein, an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
B District 50 and NMU are labor organizations within the
meaning of Section 2(5) of the Act.
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby adopts as its Order the
Recommended Order of the Trial Examiner, and
orders that the Respondent, Mon River Towing, Inc.,
Pennsylvania, its officers, agents, successors, and
assigns, shall take the action set forth in the Trial
Examiner's Recommended Order.
I In the absence of exceptions thereto, we adopt , pro forma, the
Trial Examiner 's finding that the Respondent did not violate the Act by
causing or permitting supervisor Cowan to vote in a contract ratification
election
In agreeing with the Trial Examiner that Cowan's urging of
employees to vote for ratification of the contract, at meetings on the
boats, was an unlawful interference with the internal affairs of the
Union, and thus violated Section 8 (a)(2) and (1), we rely solely on the
fact that Cowan was then acting in his capacity as a member of the
union negotiating committee , while at the same time serving as a
supervisor.
11 THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issues
The issues presented are- (1) whether Respondent unlaw-
fully assisted District 50 in contravention of Section 8(a)(2) by
negotiating a collective-bargaining agreement with a union
committee that included a supervisor and by permitting such
alleged supervisor to engage in certain union activities, and (2)
whether Respondent interfered with its employees' rights in
violation of Section 8(a)(1) and (2) in connection with the
employees' ratification of the collective-bargaining agreement.
I National Labor Relations Act, as amended , 29 U.S.C. Sec 151, et
seq.
2 The General Counsel's unopposed motion to correct the transcript
is hereby granted.
173 NLRB No. 224
MON RIVER TOWING, INC. 1453
B. The Facts
Respondent and District 50 entered a collective-bargaining
agreement on December 26, 1964. In January 1965, pursuant
to a consent election held on a petition filed by the NMU,
District 50 was certified as the representative of Respondent's
river boat employees, excluding boat captains and pilots.' At
the hearing, the parties stipulated that.
Thereafter, following a privately conducted election, the
Respondent recognized District 50 for the captains and
pilots and included them in the same contract with Board
certified unit.
The evidence establishes that the captains and pilots had signed
authorization cards before the contract was executed 4 The
agreement as originally executed on December 26, 1964, was
to expire on December 31, 1967. However, it was later
revised,' with the termination date changed to March 31, 1968.
No District 50 meetings were held until July 18, 1967,
when one was held on an excursion barge which had been
rented by Respondent. John Shrmchick, District 50's orga-
nizer, testified that regular meetings were difficult to arrange
because the members were away on boats a great deal of the
time, and thus the total membership was rarely available in
town. The July 1967 meeting was held during the annual
miners' vacation, when coal haulage is generally suspended.6
The purpose of the July 1967 meeting was to name a
committee to negotiate with Respondent. About 14 to 17
members attended the meeting, which was chaired by Shim-
chick. Four persons were named to the committee: Archie
Cowan, a captain; Russell Cowell, Jr., a tankerman, Nicholas
Young, a deckhand, and Steven Crum, a cook Employees
Cowell, Jr., and Young testified that the committee was
appointed by nominations from the floor. One person was
nominated or suggested by a member of each of the four
occupational classifications (Captains and pilots, tankermen,
deckhands, and cooks) and there was no discussion or
opposition as to any of them. There then was a show-of-hands
vote for the four-man committee so nominated. Cowan, called
by Respondent, testified that there was no hand vote at all.
Employee Cripps, testifying on behalf of Respondent, said that
there was a separate show-of-hands vote by each group electing
its representative. He denied that there was any vote electing
the committee as a whole. Shimchick's testimony on the
procedure for electing the committee was less precise than the
rest, but he said that "Each group selected their own
[representative] ." The Examiner credits Cowell, Jr., and
Young. On all the evidence, the Examiner finds that the
committee was named by informal action at the meeting of
July 18 and by general understanding was constituted of one
member of each occupational classification. It is undisputed
that Shrmchick, apparently without consulting the committee
or the membership, appointed Cripps to the committee when
Crum left Respondent's employ.'
So far as the record shows, after it lost the election in
December 1964, the NMU did not engage in any organizing
activities until late in the summer of 1967. The precise date on
which NMU renewed its activity does not appear. However, the
evidence is undisputed that it was in the "late" summer of
1967, from which the Examiner concludes that it postdated
the District 50 meeting at which a negotiating committee was
appointed.
In November 1967 District 50 and Respondent commenced
negotiations for a new contract. District 50 was represented by
Shimchick and the four employee committee members. Re-
spondent was represented primarily by its President, Howard
Guttman, with participation by his brother, Leo Guttman, and
Respondent's accountant.8
Negotiations were held on November 22 and December 11
and 13. The last meeting, which lasted from about 9 a.m. until
9:30 p.m., resulted in agreement as to the terms of a contract
among the negotiators. The union committee then requested
that the agreement so reached be submitted to the membership
for ratification, Howard Guttman, representing the Company,
agreed to such request. (See discussion below.) Shrmchick
testified that the original plan was to have the ratification vote
taken on December 24, when all the boats were due to be in
the home port, at Speers Landing, near Pittsburgh, and a letter
so advising the employees was prepared. But this plan was
discarded because of the anticipated difficulty in getting the
men to attend to any such matter on Christmas Eve. It was
than agreed that the vote would be taken boat by boat.
On December 15 a vote was taken on the Martin G, which
was then at Speers Landing. The union committee9 boarded
the boat, explained the terms of the contract to the em-
ployees, and then proceeded to have them vote on ballots,
which had been prepared in Respondent's office. The executed
ballots were deposited in a sealed can. While the evidence is
not entirely clear on this point, it appears that the union
committee then proceeded to secure the votes of the crew on
the Jesse G, which had just come into home port. The
3 The certification defined the unit as "all employees employed by
Mon River Towing, Inc , on all vessels . . excluding Captains (Masters)
and Pilots , office clerical employees and guards , professional employees
and supervisors as defined in the Act ." The NMU representation
petition had excluded "guards, professional employees and supervisors
as defined in the Act."
4 The original contract , dated December 26, 1964, almost a month
before the certification , provided, "The term 'employee ' as used in this
Agreement shall mean full -time employees of the Company working on
any of the Company's river boats ," with no specific mention made
of captains or pilots
5 The record does not disclose precisely when this revision was
made, but it appears to have been within a short time after execution of
the agreement.
6 In a footnote to his brief , the General Counsel says "The
propriety of holding a union meeting on a company barge is rather
questionable. .. Such conduct serves to emphasize the Respondent's
extreme degree of interference with the administration of, and its
unlawful assistance to District 50."
The complaint contains no such allegation In any event , under the
circumstances of this case , the Examiner has no hesitation in holding
that Respondent did not unlawfully assist District 50 in making its
rented barge available for the July union meeting (apparently not held
on company time ), or in having the contract ratification ballots
produced in Respondent 's office . Cf., e.g , Jolog Sportswear, Inc, 128
NLRB 886, affd. sub nom Mary Kimbrell v. N L R B, 290 F.2d 799
(C A 4). Newman-Green, Inc, 161 NLRB 1062 , 1067, cited by the
General Counsel, is clearly distinguishable from the present case in that,
inter aka, the meetings there were held on company time, the union was
an independent union, with no constitution , etc , and the election
overseers were selected by a foreman.
7 Cripps was a deckhand . According to Shrmchick , Young then
became the cooks' "representative " on the committee , since he worked
as a cook as well as a deckhand.
8 Russell Cowell, Sr., Respondent' s port manager (general operating
manager ), participated in the first negotiating session When his son
refused to withdraw from the negotiations on behalf of the Union,
Cowell, Sr., did not thereafter participate because he felt it was improper
for father and son to sit on opposite sides of the bargaining table
9 Shimchick testified that he was not present at the balloting on the
first two boats , the Martin G, and the Jacob G
1454 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
committee next boarded the Jacob G and took the vote of its
crew. This time Howard Guttman, Respondent's president,
boarded the boat with the union committee.' 0 The content of
his remarks to the crew is in dispute. The relevant evidence will
be discussed below. It is undisputed, however, that Guttman
left the boat before the actual balloting, as he did at each of
the five boats he visited. After leaving the Jacob G, the four
employee committee members cast their ballots in the Com-
pany's office building
On the next day, Saturday, December 16, balloting was
conducted among the new relief crew of the Jesse G Then the
committee, with Guttman and Shimchick, drove to Browns-
ville, Pennsylvania, where balloting was conducted on the
Envoy. According to Shimchick, after the balloting on the
Envoy, before the committee separated for the day, the ballot
box was opened and a subcount of votes was taken. The vote
at this time was 18 to 17 in favor of ratification.
About 7 a.m. on Sunday, December 17, a group set out in
two automobiles to secure the votes on Respondent's re-
maining boats, which were then away from home port. In
addition to the union committee (including Shimchick but
excluding Young), the group included Howard Guttman and
Russell Cowell, Sr. The boats were stopped and boarded and
ballots were conducted as follows The Express at Yorkville,
Ohio, about noontime; the Rose G at Greenup, Kentucky,
about 11:30 p.m. to midnight;" and the Explorer near North
Bend , Ohio, about 4:30 to 5 a.m., Monday, December 18.' 2
At each boat, Guttman boarded along with the union
representatives.' 3 Again, the nature of his remarks to the
crews is in dispute, and the evidence will be considered below.
The final vote was 37 to 22 in favor of ratification.
C. Discussion
1. Alleged violations of Section 8(a)(2)
The General Counsel maintains that Respondent violated
Section 8(a)(2) by negotiating with the union committee,
which included boat captain, Archie Cowan, who the General
Counsel contends was a supervisor.
a. Cowan's status
The General Counsel contends that Archie Cowan, as a
boat captain, is a supervisor within the statutory definition.
Respondent maintains that the boat captains are in effect only
"leadmen," with authority to direct other employees in
routine, nondiscretionary matters.' 4
In its brief, Respondent says that "the only discretion left
to the ship's captain is that dealing with emergency safety
matters which don't permit time for instructions from the port
captain " However, Cowan himself testified that he personally
was "directly responsible for the safety of the boat and the
crew and the cargo. I can be held liable because I am a licensed
master pilot under the Coast Guard." Cowan tried to minimize
the responsibility of his position by stating.
Well, as far as the boat, cargo and the safety of the crew
aboard of her, I could say we would have high winds, that
we're swamping the barges. I would take it upon myself to
tie the boat up due to the unsafe navigation conditions, but
I would also as soon as I got tied up call Herb Carpenter and
report my location and tell him why I am tied up, and the
same for fog. If I tied up for fog, whether the radar is
working or not, I would call him and give him my position
and tell him why I am tied up.
But the fact that the boat captain may report to the personnel
manager as to the whereabouts of the boat does not negative
the fact that it is the captain himself who makes the important
decisions and is responsible for the operation of the boat
Port Captain Cowell, Sr., testified as follows.
Q.... Today don't the captains have to exercise some
independent judgment in the operation of the boat and the
direction of the crew?
A. Where safety of cargo and personnel are concerned,
yes.
Q. Now, what would be an example of where safety of
cargo and personnel would be concerned9
A Weather conditions, high water conditions, unsafe
practices within the working crew, unsafe equipment that
we're handling.
A.... I mean, the motor vehicles do not come under
inspection, but yet they are covered by the Coast Guard
rules of the road, which are safety measures
Q. And the boat captain has to see that they're
complied with?
A. That's right.
Employees Cowell, Jr., and Young testified that the boat
captains regularly granted requests of crewmembers for permis-
sion to leave the boats during their off-duty hours while the
boats were away on trips. They testified that such permission
was generally granted on the spot, with the captain not
postponing action on the request until he had had time to
check with the home office.' s Cowan denied that he had
atithonty to grant such permission . The Examiner credits
Cowell, Jr , and Young, and discredits Cowan on this question.
Accidents on board ship are reported to the captain, who
prepares and submits accident reports to the company office.
It is the captain who decides whether any injury sustained by a
crewman is sufficiently serious to warrant having the man
taken off the boat for treatment or hospitalization. Addition-
ally, the boat captain keeps full daily logs and maintains time
and pay records for the crewmembers.
10 Although the record is somewhat unclear, the Examiner credits
Guttman 's testimony that " I did not go on the Martin G or the Jesse
Guttman. I went on all the others."
t 1 Between the visits to the Express and the Rose G, Shimchick,
Cowell, Jr., and Cripps Made a side trip to the home of one off-duty
deckhand in Pleasant Point , West Virginia Cowell, Sr., had previously
telephoned him to see that he would be at home Cowan stayed with
Guttman and Cowell, Sr
12 At this point Guttman and Cowell, Sr., flew back to Pittsburgh,
and Cowell, Jr , drove his father's car back.
13 Cowell, Sr., also boarded at least one of the boats, but it does not
affirmatively appear that he participated in any discussion concerning
the agreement to be ratified.
14 In its brief Respondent says "The operation of a small fleet of
barges on the local rivers is a far cry from the sailing vessel on the high
seas for many months, or military ships Furthermore , one must
consider that this is the age of instant communications, changing the
amount of on-board supervision required even on ocean vessels, to say
nothing of river barges . .." This argument is at odds with Respond-
ent's contention that it was necessary for Guttman to accompany the
union committee on its ratification vote tour because the boats' radio
and/or telephone systems were unreliable and thus could not be relied
on to stop the boats
15 According to Young, the boat captain's authority to pass on such
requests was revoked sometime in April 1968, long after the events here
involved.
MON RIVER TOWING, INC. 1455
The credited evidence also establishes that Captain Cowan
put one crewman, Ronnie Sawyer, off a boat during a trip for
having slept while on watch and that Cowan's action was
confirmed by Personnel Manager Carpenter's subsequent rejec-
tion of Sawyer's request for reinstatement. Cowan testified
that Personnel Manager Carpenter had previously authorized or
instructed Cowan to put Sawyer off the boat if his conduct
was unsatisfactory. Cowan also indicated that he had commu-
nicated with Carpenter between the time he told Sawyer he
was going to be put off and the time several hours later that he
was actually put off. However, Cowan concedes it was left to
his judgment whether Sawyer's conduct was unsatisfactory and
there is no suggestion that Sawyer was told either that his
being discharged was dependent on Carpenter's decision or
that Carpenter had been consulted before Sawyer was actually
put off at Speers Landing about 2 a.m. on December 30.
Cowan exercised the discretion of keeping Sawyer in pay
status for the full day.
Boat Captain Gosgo also discharged deckhand Nick Young.
While Port Captain Cowell, Sr., subsequently recalled Young,
Gosgo's conduct was respected to the extent that Young was
not reassigned to work under Gosgo but rather was put on
boats with other captains.
Trips range from 2 to 10 days. For the shorter trips, the
boat's cook submits his store list to the port captain; but on
the longer, "down south" trips,16 the lists are given to the
boat captain for review, and it is the captain who tells the cook
where supplies are to be purchased.
On all the evidence, the Examiner concludes that Respond-
ent's boat captains are supervisors within the statutory
definition, since, inter aka, they are responsible for the safety
of the crews, the cargo, and the boats, they have the authority
to discharge employees while the boats are underway; they
make watch and work assignments 17 and can require overtime
work;' 8 they evaluate employees' ability and experience, and
they finally pass on requests by crewmembers for permission
to leave the boats while they are underway.
As contended by the General Counsel, the functions and
authority of Respondent's boat captains are very similar to
those of the masters and captains in Mardnl, Inc., 119 NLRB
1174, 1181, whom the Board held to be supervisors. Indeed,
except for Mardril, it does not appear that the supervisory
status of boat or barge captains has ever been seriously
questioned.' 9 See, e.g , the following decisions in which the
status of lower ranking crewmembers was litigated
Mississippi Valley Barge Line Co., 151 NLRB 676, enfd.
sub nom, District 2, Marine Engineers Beneficial Association v.
N.L.R.B., 353 F.2d 904 (C.A.D.C.)-chief engineers and
assistant engineers held supervisors; Bernhardt Bros Tugboat
(Service, Inc., 142 NLRB 851, 854, enfd. 328 F.2d (C.A.
7)-pilots found supervisors;20 Local 28, International Organi-
zation of Masters, Mates & Pilots, 136 NLRB 1175, 1203,
enfd. 321 F.2d 376 (C.A.D.C.)-pilots and mates held super-
visory, Great Lakes Towing Co., 168 NLRB No. 87-engineers
held nonsupervisory, Licensed Tugmens' and Pilo ts'Pro tective
Association (Twin City Barge and Towing Company), 138
NLRB 222.
Even if the boat captains' authority were substantially
more circumscribed than it is, they would reasonably be found
to be supervisors because otherwise "the Company's em-
ployees were entirely without supervision a large part of the
time." Rafael Vega v. N.L.R B., 341 F.2d 576 (C.A. 1), cert.
denied 382 U.S. 862. It is inconceivable that employees on an
around-the-clock operation for several days (or even, on
occasion, weeks) at a time would be left without present
supervision.
b. The contract negotiation
It is undisputed that Captain Cowan was a member of the
District 50 committee which negotiated with Respondent for
the collective-bargaining agreement executed in December
1967.2 i Since Cowan has been found to have been a
supervisor, Respondent was in violation of Section 8(a)(2) by
negotiating with the committee. Respondent's present conten-
tions are all discussed and rejected in G & H Towing Company,
168 NLRB No. 82 (TXD), and authorities there cited.
Respondent's major contention is that the committee
consisted of "representatives" of four separate occupational
classifications, with each member limiting his participation to
matters of particular importance to his group. The record,
however, fails to bear out this contention. As previously
found, while the committee was constituted by members of
the four classifications, it was elected by the members present
at a meeting as a whole. Most of the provisions of the contract
applied to all boat personnel equally In particular, there was
an initial disagreement among the employees as to the demand
they should make as to days on-and-off duty. Two or more
proposals were presented to the Company, but uniform work
schedules were agreed on, applicable to all personnel on a
boat.2 2 Cowan participated fully in the negotiating sessions,
addressing himself to provisions applicable to all personnel
alike. Respondent's present contention is fully disposed of by
G & H Towing Co., supra.
c. Other conduct by Cowan
The complaint alleges, and the General Counsel contends,
that Respondent also violated Section 8(a)(2) "by causing or
permitting Archie Cowan to participate in such internal
District 50 affairs as holding office in District 50 and voting in
contract ratification elections." There is no evidence, however,
that Cowan held any union office other than membership on
the negotiating committee, which has been discussed above.
16 Guttman testified that the two boats in the southern trade come
to the Pittsburgh area only every 4 or 5 months.
17 It does appear that , to a large extent , experienced crewmembers
know their duties and require little in the way of continuing supervision
or specific assignment . However, Cowan conceded that he makes
reassignments of duties on his own initiative , and assigns new employees
to their duties
18 Although Cowan denied that he had authority to require
overtime, he conceded that if he needed an experienced crewman who
was off duty, he could wake him and require him to go on duty.
19 Respondent cites no authority, saying "No other case would be
controlling on the issue as to whether the captains and pilots of Mon
River were supervisors as defined by the Act since there apparently is a
great disparity between the authority vested in captains and pilots in
various organizations and various types of craft."
20 In holding that Respondent 's captains are "supervisors" in the
present case , the Examiner makes no finding and expresses no opinion
concerning the status of pilots on Respondent 's boats
21 Boat Captain Handley also attended one negotiation meeting,
apparently as a union "observer " According to Shimchick, Handley was
present because he was engaged in oil products transportation while
Cowan was in the coal trade
22 Different work schedules are provided for the petroleum and coal
trades, but each of these schedules applied to all classes of employees
within the trade
1456 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Shrmchlck testified that no Mon River employee held any
office in Local #14693, which is an amalgamated local of
miscellaneous groups, with the Mon River employees being the
only boat workers included. Additionally, it does not appear
that Respondent "encouraged, authorized, or ratified" any
intraunion activity by Cowan or "acted in such a manner as to
lead employees reasonably to believe that [he was] acting for
and on behalf of management" in rntraumon affairs. Ac-
cordingly, any intraunion activities by Cowan cannot be
ascribed to Respondent. National Gypsum Company, 139
NLRB 916, 920-921, Banner Yam Dyeing Corporation, 139
NLRB 1018; The Powers Regulator Co., 149 NLRB 1185 at
1188. Certainly it cannot be said that the Act requires that
Cowan be prohibited from voting with other employees on
ratification of an agreement which governs his wages and
working conditions as a member of the unit.
On the other hand, the Examiner believes that Respondent
did run afoul of Section 8(a)(1) and (2) in permitting Cowan,
as a negotiating committee member, to accompany the other
members and Guttman onto the boats and to talk to the
crewmembers before they voted on ratification of the con-
tract. In such situation, Guttman's presence with the commit-
tee would have a natural tendency to place the stamp of
Respondent's authorization, approval or ratification on
Cowan's statements concerning the contract, thus involving
Respondent in rntraumon matters Further, Cowan's super-
visory status would itself tend to restrict the freedom of
thought, discussion, and action among the rank-and-file crew-
members. As a member of the committee, Cowan favored
approval of the contract.23
2. Ratification of the contract
The complaint alleges that Respondent "threatened em-
ployees with cessation of operations if they did not ratify the
contract agreed upon by and between Respondent and District
50." In support of this allegation, the General Counsel
produced as witnesses Russell Cowell, Jr., and Nicholas Young,
employees who had been members of the union negotiating
committee and, as such, had visited the boats when the
ratification balloting was held? 4
Cowell, Jr , testified as follows concerning Guttman's state-
ment to the crew when the group boarded the Jacob G, the
first boat Guttman boarded with the committee:
[Guttman said] that he was there, that this was about
the best agreement that he could agree on, that this was a
fair agreement and a just agreement that they had come up
with and negotiated, and if they couldn't come to a suitable
agreement that he would have to more than likely let the
coal trade and the gas contracts as they came in, let them go
also
Cowell, Jr., testified further that Guttman made about the
same statements to the crews of the Express and the Explorer
as he had made on the Jacob G Young corroborated Cowell's
testimony concerning Guttman's statements on the Jacob G,
and testified that Guttman made the same statements to the
crew of the Envoy.
Guttman denied having made any such statements when he
boarded the boats before the ratification balloting He
maintained that all he said in each instance was that the union
committee had come to take a vote on ratification of the
contract and that he and the committee were there to answer
any questions the men might have concerning the agreement.
Cowan, who had been present on all occasions, testified that
he heard Guttman say only that the committee had come with
a tentative agreement for "acception or rejection." On one
boat, Guttman added that the men could vote as they saw fit,
or not vote at all, if they so desired. Shimchick first testified
that he had not heard Guttman say anything, but later
testified that Guttman had told the crews the purpose of the
visits. Shimchick denied having heard Guttman say anything to
the effect that the proposed contract was fair and the best he
could give without endangering the coal and possibly the oil
trade.
The Examiner credits the testimony of Cowell, Jr., and
Young and discredits the denials by Respondent's witnesses.
Guttman explained that he had made the long and arduous
trip from Pittsburgh to beyond Cincinnati merely for the
purpose of stopping the boats and had boarded them only to
introduce the committee to the crews and tell them the
purpose of the visits According to Guttman, the captains of
the boats would not stop and pull into shore except on orders
of a company representative. This explanation is most uncon-
vincing for several reasons. First, Cowell, Sr., Respondent's
port captain, was also along on the trip. His presence was
explained by his superior knowledge of the rivers, he having
previously been a boat captain for many years. There is not the
slightest reason to believe that the boat captains would not
have acceded to Cowell, Sr's., request, since he was their
superior and chief of operations. According to Shrmchlck,
Respondent' s witness , it was Cowell, Sr., who directed the
Explorer in to shore. Second, it was conceded that the boats
were equipped with telephones and/or radios. While there was
some testimony to the effect that such equipment "some-
times" did not work, there was no indication that the office
had been unable to communicate with the boats sufficiently
well to conduct its operations Cowan conceded that he never
had been unable to reach the home office when necessary and
indicated that any difficulty with radio communication gener-
ally occurred only when the boats were near home base 2 5 The
boats boarded on Sunday and Monday were at a distance up to
about 300 miles Indeed, as heretofore noted, Respondent now
relies on the presence of radio and telephone equipment as an
argument in favor of its contention that the boat captains are
23 Shimchick denied that he personally recommended approval, but
said that "The negotiating committee indicated ratification."
24 Cowell, Jr , was not present at the visits to the Jesse G and the
Envoy and Young did not go on the Sunday-to-Monday trip to the Rose
G, Enterprise, and Envoy.
25 Cowan's testimony was " . the radios . They're supposed to be
over a certain range, but it seems like in this close locality, they're not
as favorable as they are maybe a hundred miles."
MON RIVER TOWING, INC. 1457
not supervisors 2 6 Further, the evidence shows that, if
necessary, messages may be telephoned to the locks and are
then transmitted to the personnel on the boats when they pass
through the locks. Perhaps most telling against Guttman's
explanation of his having made the long automobile trip is the
fact that he had boarded the Jacob G while it was at Speers
Landing, where there was no need that it be "stopped" by a
company official In this connection it may be noted that the
collective-bargaining agreement then in effect2 ° specifically
provided that
Authorized representatives of the Union may visit the boats
during working hours ...
Further, Respondent does not undertake to explain why,
having stopped the boats, it was necessary for Guttman to
board them in order to "introduce" to the employees their
own union negotiating committee.
Shimchick's testimony in support of Respondent's explana-
tion was most unconvincing
Q . So you had the right to go on board without Mr.
Guttman going on with you, didn't you?
A. If the boat was where we could get at it, but we did
not have the right to assemble the people in the galley and
get them out of bed
Q. So Mr Guttman had to go on board to tell the
captain to assemble everybody, is that right?
A. And to introduce us to the people.
Q Do you mean the people didn't know their union
representative and the negotiating committee?
A. In the south, they didn't know me. I was never down
south
Q. They didn't know the negotiating committee?
A. That I don't know.
Q. So you say the reason Mr. Guttman had to go on
board was to introduce you to the crew, is that right?
A And to assemble the people.
Q. Couldn't the captain have assembled the people?
A. Probably could have.
Testifying on behalf of Respondent, Cowan said-
The purpose of Mr Guttman was not to introduce us,
counselor, but to see that these boats were stopped. He was
the only one with authority to bring them in, to stop their
navigation of them while the vote was being taken.
One other fact suggests that Guttman's boarding the boats
and talking to the crews was affirmatively motivated by an
urgent desire that the contract be ratified. As stated above,
District 50 Representative Shimchick testified that two "sub-
counts" had been taken of the ballots One of them showed
that the vote was very close, being 18 in favor of ratification,
17 opposed. This obviously was the count made on Saturday
afternoon because, according to Shimchick, the second was
made Monday morning, after all the boats had been visited,
and the total was 59 (37 to 22). Since the committee members
themselves had voted before the first subcount, and they
presumably voted in favor of the contract they had negotiated,
ratification obviously was not a foregone conclusion. Shim-
chick testified that he requested Guttman's presence, ap-
parently after the subcount Guttman's making the arduous
boat-hopping trip bespeaks anxiety, undoubtedly occasioned
by the closeness of the subcount vote
On all these considerations, together with observation of
Guttman's demeanor, the Examiner discredits his testimony as
to the purpose of his going on the trips and boarding five of
the seven boats. The Examiner finds that Guttman's purpose
was to assure, if possible, that the employees would ratify the
agreement he had reached with the union committee 31h
months before the expiration of the existing contract, at a
time when other unions were engaged in organizational activity
among his employees. Having so found, the Examiner also
finds that, in furtherance of his objective, Guttman made the
statements attributed to him by Cowell, Jr., and Young. Both
of these witnesses (particularly young Cowell) impressed the
Examiner very favorably as being honest, frank, and con-
scientious. Further corroboration of the present finding is the
fact that Guttman himself conceded having made substantially
this statement in the course of negotiations. Concerning the
negotiations, he said*
But during those negotiations, I would have said that if
the demands were too much that we could not afford to do
this and that we could perhaps could not economically be
feasible to remain in the business if we cannot come to a
mutual satisfaction [sic].
Captain Cowan, who testified on behalf of Respondent,
corroborated the testimony concerning Guttman's statements
during the negotiations, testifying as follows:
Well, in opening negotiations [Guttman] just explained,
which all companies do because I've been on quite a few
negotiating committees, that he hoped that we could come
to a fair and good agreement that wouldn't be too costly to
have them have to give up the coal operation
There was credited testimony that, at the negotiation meeting
he attended, Boat Captain Handley had supported Guttman's
position, saying that there were several companies just ready to
pick up Respondent's work at lower rates.
Guttman's statements to the crews of the boats, as reported
by Cowell, Jr., and Young, clearly amounted to threats to
discontinue all or part of Respondent's operations if the
employees rejected the agreement and insisted on higher
wages. As such they were coercive and violative of Section
8(a)(1). See Lawn-Boy Division Outboard Marine Corp., 143
NLRB 535, 538, 543; Paranite Wire & Cable Division Essex
Wire Corp., 164 NLRB No. 48. Respondent seeks to distin-
guish Paranite on several grounds. (1)InParanite the threat by
26 Respondent's witness Cowan was caught in this obvious dilemma
as follows
Q In your opinion , was there any reason why the Company
couldn't have called from the main office, couldn't have called each
boat from the main office and say, "Look, there's a committee
that 's going to be out, when you wave or when they wave you in or
when you see them, pull ashore and let everybody aboard and take
care of the ratification "? Why couldn't that have been done?
A Well, there were times, really , that phones will not work I
had an incident , approximately two weeks ago, where my daughter
had to go to the hospital. .
Q [Carpenter] finally got in touch with you by land phone?
A. Land phone at Dachell 's lock at 2 00 A.M. the next morning.
r . k x w
Q. The boat was at the lock when he called, is that what you
mean?
A. He left orders He called the lock and left orders for the
Martin G to call him at home right away So the phones do not work
efficiently all the time, so there could be that possibility
Q So that means if the communications system isn't working
efficiently and you 're on the boat and you have to make a decision
and you can 't contact the shore, you would have to go ahead and
make that decision , right9
A If I can't. It's never arisen yet. But I guess I would
2 As well as the renewal contract then being ratified.
1458 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Respondent's counsel was not very subtle, whereas in the
present case, according to Respondent's brief, "the alleged
statement by Guttman relative to getting out of the coal
business was purely speculative and in no way a positive
threat " However, Guttman's statement, as reported by
Cowell, Jr., and Young, referred to both the oil and coal trades
and could have left no doubt that, in the words of the Board in
Paranite, "the possible consequence of failure to ratify the
contract was the complete closing of the plant and cessation of
business," since Respondent's operation consisted solely of
coal and oil transportation. Cf. Lawn-Boy Division Outboard
Manne Corp, supra, holding that an employer violated Section
8(a)(1) by telling an employee that "there was a possibility
that if the Union persisted in trying to secure additional money
for the electricians, the Company might plan a reduction." (2)
In Paranite there was testimony that at least one employee felt
threatened, whereas in the instant case, according to Respond-
ent, "there is no testimony on the record of any reaction on
the part of the employees that they felt that they were in any
way being threatened or coerced by Guttman's alleged
statement ." It is well established that the coercive quality of
employer statements is to be judged not by their success or
effect upon specific employees but by the words themselves
and their natural tendency to coerce. N.L.R B v Brown-
Dunkin Company, 287 F.2d 17 (C.A. 10) (3) In Paranite it
appeared that "an overwhelming majority of the employees"
were dissatisfied and prepared to reject the agreement whereas
in the present case, according to Respondent, "The result of
the vote by the employees ... was substantially in favor of
such acceptance " The fact is that in Paranite the contract was
ratified by a vote of 7 to 5 (TXD), and the evidence in the
present case establishes that the union committee requested
that the contract be submitted for ratification because
considerable opposition was anticipated Respondent's circular
argument that the ratification vote establishes the validity of
the balloting is clearly invalid. Here, as in Paranite (TXD), "the
approval of the contract was obtained in circumstances where
the employees affected were led to believe that their choice
was to accept the contract or to chance the closing of the
plant s2 8
In its brief, Respondent maintains as a defense that
ratification of the agreement was not essential. In this
connection it says.
It is the contention of the Respondent that the agreement
negotiated and entered into between Respondent and
District 50 was effective without the requirement of
ratification, and being effective any statements allegedly
made by Guttman subsequent to the execution of the
agreement could under no circumstances be threatening or
coercive against the employees ...
In the Examiner's opinion, Respondent' s argument is a non
sequitur. The employees may well have been (and the
Examiner finds that they were), coerced into ratifying the
agreement even if their ratification had not been requisite to
the validity of the contract. If ratification were not necessary
to the effectiveness of the agreement, there might be a
question as to the appropriate remedy, but there would be no
question as to the unfair labor practice, i e., the use of
improper methods to influence the employees' choice in a
matter of intraumon concern.
In any event, the record is clear that the parties agreed that
the agreement reached and signed by the committee would not
be effective unless ratified by the employees.29 Cowell, Jr.,
credibly testified that the union committee, knowing the
agreement would meet opposition, insisted that it not be
considered binding until ratified by the membership. Shim-
chick testified that the membership had been promised an
opportunity to vote on any contract negotiated. At the final
meeting on December 13, when the agreement was reached,
Guttman agreed to having the contract submitted for member-
ship ratification and had prepared a letter to that effect. The
letter, addressed to the negotiating committee and signed by
Guttman, reads as follows
It is my understanding as President of Mon River Towing,
Inc , that we have reached an amicable agreement on all
issues relating to a new Collective Bargaining Agreement to
go into effect January 1, 1968
It is my further understanding that Business Representative
of United Mine Workers District 50, John Shimchick, and
all the members of the Negotiating Committee will execute
the Memorandum Agreement and that we will also execute
the Collective Bargaining Agreement when prepared in full.
This letter will indicate that the Company has no objection
following the signing of this agreement in submitting this
agreement to the members of the Union for their approval.
On the bottom of the original of that letter, which was
retained by Respondent, Shimchick and the four employee
committee members had affixed their signatures after the
legend. "ACCEPTED THIS DATE."
The letter is ambiguous. It might be read as meaning that
the agreement was binding when the memorandum was signed
by the committee, which was then finally obligated to execute
the final, formal agreement when it was prepared. However,
such reading would mean that the letter prepared by Guttman
called for a totally vain act by the employees The Examiner
will not ascribe to Guttman any intention so to mislead. His
making the arduous trip to secure employee ratification is
inconsistent with any view that employee ratification would be
only a post facto expression of the employees' opinion
concerning a 3-year contract by which they were bound
regardless of the result of the balloting Further, the final
agreement was not signed by the committee and dated until
December 19, 1967, after the ratification vote had been
completed 30
On all the evidence, therefore, the Examiner concludes that
the parties fully understood and agreed that employee ratifica-
tion was essential to the effectiveness of the contract and the
ratification was vitiated by Respondent's coercive conduct in
connection therewith
28 Similar statements made by Guttman in the course of negotia-
tions are not alleged or found to be violative. See Lawn-Boy Division
Outboard Marine Corp , supra, 143 NLRB at 542. Compare Frontier
Homes Corp., 153 NLRB 1070.
29 The strongest statement Respondent can make is "The record is
very confusing as to whether or not there was any requirement for
ratification by the employees before the contract would be effective.
However, one salient fact is evident and that is that no such requirement
was contained in the agreement prepared and signed by the parties on
December 14, 1967."
30 The evidence indicates that the original agreement of December
1964 had been ratified by the membership, but in a less formal manner
than the secret balloting used in 1967
MON RIVER TOWING, INC. 1459
CONCLUSIONS OF LAW
1. Mon River Towing, Inc., is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of the Act.
2. International Union of District 50, United Mine Workers
of America, and its local Union # 14693, and National
Maritime Union of America, AFL-CIO, are labor organiza-
tions within the meaning of Section 2(5) of the Act.
3. Boat Captain Archie Cowan is a supervisor within the
meaning of Section 2(11) of the Act.
4. By negotiating a collective-bargaining agreement with a
committee of District 50 of which Supervisor Archie Cowan
was a member, Respondent has engaged in and is engaging in
unfair labor practices affecting commerce within the meaning
of Section 8(a)(2) and (1) of the Act.
5. In permitting Archie Cowan, a supervisor, to serve as a
committee member in seeking employee ratification of a
collective-bargaining agreement, Respondent has engaged in
and is engaging in unfair labor practices affecting commerce
within the meaning of Section 8(a)(2) and (1) of the Act.
6. In threatening to discontinue part or all of its operations
if the employees did not vote to ratify a collective-bargaining
agreement reached with a negotiating committee of District
50, Respondent has engaged in and is engaging in unfair labor
practices affecting commerce within the meaning of Section
8(a)(2) and (1) of the Act.
7. Except to the extent that violations of the Act have
been specifically found herein, the preponderance of the
evidence fails to establish that Respondent has engaged in
other unfair labor practices and it will be recommended that
the allegations of the complaint to that extent be dismissed.
THE REMEDY
Having found that the collective-bargaining agreement was
negotiated with a union committee containing a supervisor and
was ratified after coercive conduct by Respondent, the
Examiner will recommend that the agreement be set aside and
that Respondent be ordered to cease giving effect thereto.
Paranite Wire & Cable Division, supra, 164 NLRB No. 48. The
Examiner will also recommend, however, that the order
expressly state that the setting aside of the contract does not
require Respondent to depart from the substantive terms of
the contract. The Powers Regulator Co., 149 NLRB 1185,
1189-90, Anchorage Businessmen 's Association , 124 NLRB
662,670 .31
The General Counsel (but not the Charging Party) requests
additionally that Respondent be ordered "to withdraw and
withhold recognition from District 50 ... unless and until such
labor organization is certified by the Board." The Examiner
believes that this remedy is not warranted on the present
record. Cf. G & H Towing Co., supra, 168 NLRB No. 82
(TXD). So far as appears, District 50 fully established its
original majority status and there is not a scintilla of evidence
that it has since lost its majority. While the agreement was in
part the product of employer coercion, no similar finding is
warranted as to District 50's representative status. All that
appears is that NMU (and the Marine Officers' Association and
possibly the Masters, Mates & Pilots) has since instituted an
organizing campaign. With the recent District 50 collective-
bargaining agreement set aside, the way will be clear to test its
majority status and determine the employees' present desires if
such action appears appropriate.
The General Counsel (again without joinder by the
Charging Party) also requests a broad cease-and-desist order
and a requirement that the notice be read to the assembled
employees as prescribed by the Board in J. P. Stevens & Co.,
167 NLRB No. 37. In the Examiner's opinion, the record does
not establish that Respondent's unfair labor practices have
been either so flagrant or so widespread as to justify the
requested remedies. Respondent has negotiated with and had
apparently amicable relations with District 50 since December
1964.32 District 50 established its majority and defeated the
NMU in a Board-conducted election. The present complaint
does not allege, and the evidence does not tend to show, that
Respondent has unlawfully assisted the incumbent District 50
to the detriment of NMU. The proven misconduct by
Respondent is limited to negotiation of the contract.3 3
As requested by the General Counsel, to the extent the
Examiner's linguistic facility pernuts, the notice will be
couched in "clear and simple language ... so that the
employees will be fully informed of their rights, how those
rights were violated, and by what process they have been
upheld."
RECOMMENDED ORDER
On the basis of the foregoing findings of fact and
conclusions of law, and upon the entire record in this case, the
Trial Examiner recommends that Mon River Towing, Inc.,
Pittsburgh, Pennsylvania, its officers, agents, successors, and
assigns, shall:
1. Cease and desist from•
(a) Interfering with the administration of International
Union of District 50, United Mine Workers of America, and its
Local Union # 14693, or with the formation or administration
of any other labor organization of its employees.
(b) Giving effect to the collective-bargaining agreement
executed in December 1967 by Respondent and District 50;
provided nothing herein shall be taken to require Respondent
to vary or abandon any wage, hour, seniority, or other
substantive feature of its relations with its employees which
Respondent has established in the performance of this agree-
ment.
(c) Negotiating with any committee on behalf of the
employees which includes any boat captain or other super-
visor.
(d) Encouraging or permitting any boat captain or other
31 The Examiner will not , however, recommend that the employees
be given the right, in effect, to enforce the contract against Respondent,
as the Board did in Golden State Bottling Company, 147 NLRB 410,
411 In enforcing the Board 's Golden State Order in part , the Court of
Appeals for the Ninth Circuit "refuse [ d] to direct such one-sided
enforcement ." N.L.R.B. v. Golden State Bottling Company, 353 F 2d
667, 671 (C A 9). Although, so far as the Examiner is aware, the Board
has not expressly accepted the Ninth Circuit 's ruling, it does not appear
that the Board has since that decision adopted the unilateral portion of
the Golden State remedy . In the recent Paranite case, supra , 164 NLRB
No 48, the Board 's Order requires the employer to cease and desist
from "Enforcing or giving effect to the contract . or any modifica-
tion, extension , or renewal thereof," without any added proviso.
32 The General Counsel apparently suspects that the relationship
between Respondent and District 50 may be overly amicable. However,
suspicion cannot substitute for allegation and proof , which are absent.
33 Significantly , the complaint does not allege the "premature"
negotiation of the collective-bargaining agreement in December 1967 as
violative of Section 8(a)(2) Cf H. & F. Bmch Co, 168 NLRB No. 128
(TXD).
1460 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
supervisor to participate in the conduct of any balloting or
voting concerning ratification of a collective-bargaining agree-
ment, provided that nothing herein shall prevent any member
of the bargaining unit covered by a collective-bargaining
agreement from casting his own ballot on the question of
ratification
(e) Threatening discontinuation of all or any part of
Respondent's operations to influence the employees' votes on
ratification of any collective-bargaining agreement negotiated
on their behalf.
(f) In any like or related manner interfering with the
conduct of the affairs of said District 50 or any other labor
organization.
2. Take the following affirmative action, which will effec-
tuate the policies of the Act.
(a) Post at Respondent's offices at Speers Landing, Pitts-
burgh, Pennsylvania, and on each of its boats, copies of the
attached notice marked "Appendix."34 Copies of said notice,
on forms to be provided by the Regional Director for Region
6, after being duly signed by a representative of Respondent,
shall be posted by Respondent immediately upon receipt
thereof, and be maintained for 60 consecutive days thereafter
in conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall be
taken by Respondent to insure that said notices are not
altered, defaced or covered by any other material.
(b) Notify the Regional Director for Region 6, in writing,
within 20 days from the receipt of this Decision, what steps
Respondent has taken to comply herewith .3 5
The complaint is dismissed insofar as it alleges violations
other than those herein specifically found.
34 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."
35 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.
After a trial in which all parties had the opportunity to
present their evidence, a Trial Examiner of the National Labor
Relations Board has found that we violated the law and has
ordered us to post this notice and then keep the promises that
we make in this notice.
WE WILL NOT negotiate a collective-bargaining agree-
ment with any committee for the employees which includes
a boat captain or any other supervisor.
WE WILL NOT threaten that we will give up all or any
part of our business if you do not vote to ratify a
collective-bargaining agreement negotiated by us with any
negotiating committee acting or representing you or Inter-
national Union of District 50, United Mine Workers of
America, or Local Union 1/ 14693 of District 50.
WE WILL NOT give effect to our contract with District
50 executed in December 1967.
WE WILL NOT encourage or permit any representative
of management, any boat captain, or any other supervisor
to participate in the conduct of any voting or balloting on
ratification of any collective-bargaining agreement which
may be negotiated by the Company and any committee on
behalf of the employees or a union; but this does not
prevent any employee covered by any such collective-
bargaining agreement from casting his own vote on the
question of ratification.
WE WILL NOT in any similar manner interfere with
your right to join or not to join any labor organization or
with the conduct of the affairs of any labor organization.
MON RIVER TOWING, INC.
(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 di-
rectly with the Board's Regional Office, 1536 Federal
Building, 1000 Liberty Avenue, Pittsburgh, Pennsylvania
15222, Telephone 962-2822.