M/V Denise Marie

National Labor Relations Board - Board Decisions

Aug 15, 1972

198 N.L.R.B. 918 (N.L.R.B. 1972)

918 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Epsilon Fishing Co., Inc. d/b/a M/V Denise Marie
and Cannery Workers & Fishermen's Union of
San Diego , Seafarers International Union of North
America, AFL-CIO
Fishermen's & Allied Workers' Union, Local #33 of
San Diego and San Pedro , International Long-
shoremen 's and Warehousemen 's Union (Epsilon
Fishing Co ., Inc. d/b/a M/V Denise Marie) and
Cannery Workers & Fishermen's Union of San
Diego, Seafarers International Union of North
America, AFL-CIO. Cases 21-CA-10244 and
21-CB-4090
August 15, 1972
DECISION AND ORDER
BY MEMBERS JENKINS, KENNEDY, AND
PENELLO
On May 17, 1972, Trial Examiner James R.
Webster issued the attached Decision in this pro-
ceeding . Thereafter , the Respondent Union filed
exceptions 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
authority in this proceeding to a three-member panel.
The Board has considered the record and the Trial
Examiner 's Decision in light of the exceptions and
brief and has decided to affirm the Trial Examiner's
rulings, findings , and conclusions and to adopt his
recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Trial Examiner and hereby orders
that the Respondent Employer, Epsilon Fishing Co.,
Inc. d/b/a M/V Denise Marie, its officers, agents,
successors, and assigns, and Respondent Union,
Fishermen's & Allied Workers' Union, Local # 33 of
San Diego and San Pedro, International Longshore-
men's and Warehousemen's Union its officers,
agents, and representatives, shall take the action set
forth in the Trial Examiner's recommended Order.
TRIAL EXAMINER 'S DECISION
STATEMENT OF THE CASE
JAMES R. WEBSTER , Trial Examiner : This case , with all
parties represented, was heard in San Diego , California, on
March 14, 1972, on complaint of the General Counsel and
answers of Epsilon Fishing Co., Inc . d/b/a M/V Denise
Marie , herein referred to as Respondent Employer, and
Fishermen 's & Allied Workers ' Union , Local # 33 of San
Diego and San Pedro , International Longshoremen's and
Warehousemen's Union , herein referred to as Respondent
Union or ILWU. The complaint was issued on October 28,
1971, on charges filed August 24 and October 20, 1971.
The complaint alleges that the Respondents have violated
the Act by entering into a labor agreement while a question
of representation existed and that Sections 8(a)(1), (2), and
(3) and 8(b)(1)(A) and (2) of the National Labor Relations
Act, herein called the Act, have been violated thereby.
Briefs have been filed by the General Counsel and the
Respondent Union , and these have been carefully consid-
ered. Upon the entire record and my observation of the
witnesses , I hereby make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT EMPLOYER
Respondent Employer, a Puerto Rican corporation, is
the owner of a fishing vessel , M/V Denise Marie, and is
engaged in the deep sea tuna fishing industry. In a 12-
month period, Respondent Employer will catch fish on the
high seas valued in excess of $50,000, which it will sell and
deliver to Star-Kist Foods, Inc. Star-Kist Foods, Inc.,
processes, cans , and distributes fish products directly to
points outside the State of California valued in excess of
$50,000 annually.
I find that Respondent Employer is an employer
engaged in commerce and in an operation affecting
commerce within the meaning of Section 2 (2), (6), and (7)
of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
Cannery Workers and Fishermen's Union of San Diego,
Seafarers International Union of North America, AFL-CI-
O, herein referred to as SIU, and Fishermen's and Allied
Workers' Union, Local #33 of San Diego and San Pedro,
International Longshoremen 's and Warehousemen's Un-
ion, herein referred to as ILWU or Respondent Union, are
labor organizations within the meaning of Section 2 (5) q 1`
the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issues
Whether a question of representation existed on August
19, 1971, when Respondents executed their cbllective-
bargaining agreement . Did evidence of majoritfr status
presented by Respondent Union to Respondent Employer
on August 19, 1971, in the absence of independent unfair
labor practices, constitute a valid resolution of any
question of representation.
B. Organizational Activities by SIU and ILWU
Respondent Employer purchased the Denise Marie in
August 1971 , and it arrived in San Diego in the early
morning of August 17, 1971. John J. Silveira is captain of
the Denise Marie ; he is also a part owner of Respondent
Employer. Besides the captain , the vessel has a crew of I 1
198 NLRB No. 133
M/V DENISE MARIE 919
persons. The bargaining unit includes a navigator, who
also serves as relief captain , a chief engineer , an assistant
engineer, a deck boss , a cook , and seamen.
On July 22, 1971, Respondent Union received by mail
one of its authorization forms bearing the signature of
Rudolf Blazevich , a crew member of the Denise Marie.
Business Agent Rudolph Crnko of Respondent Union
filled in the date , July 22, 1971, and printed the name of
Blazevich next to the signature . On the same day, Jose Da
Luz came to the office of Respondent Union to inquire
about his dues status and health and welfare payments and
stated that he was going to Panama as a crew member
aboard the Denise Marie . He was asked if he would sign a
union authorization form and he did so on that date.
When the Denise Marie arrived in San Diego from the
State of Washington on August 17, 1971, Crnko and Union
Representative Phil Silva went to the vessel and started
talking to members of the crew . Crew members Jose De
Carvalho and Manuel Da Luz signed an authorization
form for Respondent Union . Both of these persons are
citizens of Portugal and do not speak English. Their
signatures were solicited by using Jose Da Luz to translate;
Jose Da Luz is a brother of Manuel Da Luz. Crnko and
Silva were in the area of the boat from about 9 a.m. to I
p.m. or 2 p.m. that day. They did not see Captain Silveira
but did see SIU Representatives Marino and Correa.
On the same day, August 17, 1971, Carl Marino and
Arthur Correa, representatives of the SIU, went to the
Denise Marie and stated to the man on watch that they
wanted to talk with Captain Silveira . Silveira was not on
board and they returned to the union office.
On August 18, Crnko and Silva of the ILWU returned to
the boat and talked with members of the crew from
approximately 8 a.m. to about 3 p.m. but obtained no
signatures on authorization forms.
On August 18, Marino and Correa of the SIU also went
to the boat and talked with members of the crew.
Signatures on authorization cards were obtained . As they
left the boat , they saw Silveira sitting in an automobile with
another person . When he got out of the car, they
approached him and informed him that they represented a
majority of the crew and wanted to negotiate a contract.
Siheira told them that he was busy right then and could
not talk to them . Marino did not show him the authoriza-
tion cards he had in his possession . Eight crew members
signed authorization cards for the SIU on August 18.
On the next morning, August 19, Marino and Correa
again went to the boat and told Silveira that they
represented a majority of the crew and that they wanted
him to sign a contract . Marino handed Silveira a letter
dated August 19 which stated that "The Cannery Workers
and Fishermen 's Union , AFL-CIO of San Diego , Califor-
nia repre :,ents the majority of your crew members and we
are therefore requesting that you sign an Agreement with
this organization ." Silveira read the letter and said , "Okay,
this is:-fine," and told them to bring down the contract on
the following morning.
On the morning of August 19, Crnko and Silva of the
ILWU returned to the Denise Marie to solicit authoriza-
tions. Crnko obtained the signature of Lloyd H. Nelson,
the navigator for the Denise Marie. Silva talked with crew
member Robert Barker about signing a card and Barker,
who had signed an authorization for the SIU on the
previous day, told him that if Respondent Union obtained
enough signatures to where his signature would be the
deciding signature to make a majority , he would then sign.
After Nelson signed , the fifth signature, Baker agreed to
and did sign an authorization form for the ILWU.
As Crnko and Silva left the boat , they met Captain
Silveira and presented him with the authorization forms
and asked him for recognition . He stated that he was very
busy and for them to come back later . They returned to the
Union's office . While Crnko was writing a letter requesting
recognition, Silva observed Silveira driving by the office.
He assumed that Silveira might be going to the offices of
the Star-Kist Company about two blocks from the office of
the Respondent Union. They then went to the office of the
Star-Kist Company and met Silveira there . They showed
him the authorization signatures and presented him with a
copy of a contract . This was about 9:30 a .m. Silveira asked
them if they were sure they had a . majority. Crnko stated
that 6 out of 11 is a majority. He then signed the contract.
On the afternoon of August 19, 1971, Marino and Correa
came to the Denise Marie and handed Silveira a copy of a
contract. Silveira had signed a contract that morning with
the ILWU but stated to them that he was not going to sign
anything until he read it . He got in his car and went to the
office of the ILWU and asked Crnko and Silva about the
situation and if they were sure that they had a majority and
were doing things right . He was told not to worry about it,
that they had signatures of six employees and that this was
a majority.
On the morning of August 20, Marino and Correa of the
SIU returned to the Denise Mane and asked Silveira for
the contract . Silveira then stated , "Look, I didn 't want you
to feel bad yesterday, but I already had the contracts
signed." Marino told him that he had a problem and
Silveira replied that the problem was between the ILWU
and the SIU.
C. Contract Between Respondent Employer and
Respondent Union
The contract that Respondent Employer executed with
Respondent Union on August 19, 1971, was effective from
that date to August 15, 1974, and covering the following
unit of employees:
All employees aboard the M/V DENISE MARIE,
provided that "employees" as used herein , shall not
extent to part owners and officers of the owner
organized as a corporation , partnership or co-owner-
ship.
The contract contains the following union security
provisions:
2. UNION SECURITY. Thirty (30) days after a
crewmember is hired or following the date of execution
of this Working Agreement, whichever is the later, each
crewmember shall be or become a member of the
UNION in good standing, and as a condition of his
employment , thereafter, shall be and remain a member
of the UNION in good standing , provided that such
condition of employment shall not extend to crew
members who are part owners and officers of the
920 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
OWNER organized as a corporation, partnership or
co-ownership.
If any employee of the OWNER thus required to
become and remain a UNION member fails to pay the
sum due the UNION as uniform periodic dues and
initiation fees, the OWNER agrees that upon receipt of
written notice from the UNION, such employee shall
be immediately discharged.
D. The Alleged Interrogation
On August 18, 1971, Silveira asked crew member
Francisco Da Silva if he had already signed a card for a
union . Da Silva replied that he had . Da Silva is related by
marriage to Silveira.
There is no testimony that Silveira asked him which
union he had signed with nor made any statement to him
to encourage him to sign for either one of the unions
involved.
Da Silva signed an authorization card for the SIU on
August 18 , 1971. He has not signed an authorization for
the ILWU.
I find that the inquiry of Captain Silveira to employee
Francisco Da Silva on August 18, 1971, did not constitute
illegal interrogation.[
E. Conclusions
There is no evidence that the Respondent Employer
engaged in any acts of assistance to Respondent Union
other than the signing of the agreement on August 19. The
question in this case is whether an employer, who is
approached by one union with a claim to represent a
majority of employees and a request for recognition and
then later is approached by another union with a similar
claim and request, violates the Act by entering into a
collective-bargaining agreement with the second union,
which shows authorizations signed by 6 of the 11
employees in the bargaining unit.
Dual membership in the industry involved herein is not
uncommon and in fact each union herein had been
authorized by a majority of the employees as their
representative. A real question of representation existed.
Captain Silveira resolved this question himself based on
the signed authorization of six crew members. Silveira did
not wait to review the SIU's claim to majority status. The
SIU had signed authorization cards from eight of the crew
members.
In view of the fact (1) that Respondent Employer had
been approached by the SIU first with a claim to represent
a majority of the employees; (2) that the SIU did in fact
have authorizations at that time from a majority of the
employees; (3) that Respondent Employer thereafter
signed a contract with Respondent Union, which had a
bare majority; and (4) that dual union membership in the
industry is not uncommon, I find that Respondent
Employer in executing and maintaining a collective-bar-
gaining agreement with Respondent Union under these
i SIU Representative Correa testified that when he solicited crew
member Andre Altavilla to sign an authorization card, he replied, "I was
told by my Skipper to go I L W I am afraid to sign the card " Correa told
him, "This is a free country You decide what to do " Then Altavilla signed
circumstances has assisted said Union in violation of
Section 8(a)(2) of the Act; and by entering into and
enforcing such contract with a union-security provision, it
has discriminated against its employees in violation of
Section 8(a)(3) of the Act; and that by such conduct, it has
interfered with, restrained, and coerced employees in
violation of Section 8(a)(1) of the Act. Respondent Union,
by accepting recognition and entering into and maintain-
ing a contract with Respondent Employer, as described
above, has caused Respondent Employer to discriminate in
regard to its employees and has thereby violated Section
8(b)(2) of the Act, and has restrained and coerced
employees within the meaning of Section 8(b)(1)(A) of the
Act. As stated in the decision in Connie Jean, Inc., "The
Board has consistently and for many years adhered to the
view that where a real question concerning representation
exists, the principle to be applied is that recognition alone
without any extrinsic additional evidence of coercion or
assistance is sufficient to establish the violation."2
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondents set forth in section III
occurring in connection with the operations of Respondent
Employer described in section I, 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.
Upon the basis of the foregoing findings of fact and the
entire record in this case, I make the following:
CONCLUSIONS OF LAW
1. Respondent Employer is an employer engaging in
commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
2. Respondent Union and the SIU are each labor
organizations within the meaning of Section 2(5) of the
Act.
3. A question concerning representation existed among
the crew members of the Denise Mane on August 19, 19"1,
when the agreement between Respondent Employer and
Respondent Union was executed.
4. By recognizing and entering into a contract with
Respondent Union while there was a question concerning
representation, and by enforcing and maintaining such
contract, which contains a union-security clause, Respon-
dent Employer has 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 representatior,' and by
enforcing and maintaining the contract which contains a
union-security clause, Respondent Union has engaged in
unfair labor practices within the meaning of St tion118(b)(1)(A) and (2) of the Act.
a card for the SIU Altavilla did not testify I make no finding of illegal
conduct based on this hearsay testimony
2 Connie Jean, Inc, 162 NLRB 1609, Midwest Piping and Supply
Company, Inc, 63 NLRB 1060
M/V DENISE MARIE 921
6. The aforesaid unfair labor practices are unfair labor
practices within the meaning of Section 2(6) and (7) of the
Act.
7. Respondent Employer has not engaged in illegal
interrogation of crew members.
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 reorganizing and entering
into a contract with Respondent Union while there was a
question concerning representation , and by enforcing and
maintaining such contract which contains 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 Denise Marie
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 represent-
ation , and by enforcing and maintaining a contract which
contains a union-security clause , I shall recommend that
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
Denise Marie unless and until it shall have been certified
by the Board.
On the basis of the foregoing findings of fact and
conclusions of law and the entire record herein, I
recommend that , pursuant to Section 10(c) of the Act, the
Board issue the following: 3
ORDER
A. Epsilon Fishing Co., Inc. d/b/a M/V Denise Marie,
its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Recognizing or contracting with Respondent Union,
or any successor thereto, as the statutory representative of
the crew of the Denise Marie, until and unless such labor
organization shall have been certified by the Board as such
representative.
(b) Enforcing or maintaining its collective-bargaining
contract with Respondent Union entered into on August
19, 1971, or any modification, extension, supplement, or
3 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions , and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions , and Order , and all objections thereto shall be
deemed waived for all purposes.
4 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
renewal thereof, unless and until said labor organization
shall have been certified by the Board as the exclusive
representative of the crew of the Denise Marie, provided,
however, that nothing herein shall require Respondent
Employer to vary or abandon any wage or other substan-
tive feature of its relations with its employees, which they
have established in the performance of said contract, or
prejudice the assertion by the employees of any rights they
may have thereunder.
(c) In any like or related manner interfering with,
restraining , or coercing the crew members of the Denise
Marie 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 Respon-
dent Union, or any successor thereto, unless and until such
labor organization shall have been certified by the Board
as the statutory representative of the crew members of the
Denise Marie.
(b) Post at appropriate places on the Denise Marie copies
of the notice marked "Appendix A."4 Copies of such
notice, to be furnished by the Regional Director for Region
21, shall, after being duly signed by an authorized
representative, 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 receipt of this Decision
what steps Respondent has taken to comply herewith.5
B. Fishermen's Allied Workers' Union Local #33 of
San Diego and San Pedro, 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 con-
tracting with Respondent Employer for the crew of the
Denise Marie as the statutory representative of such crew
members until and unless it shall have been certified by the
Board as such representative.
(b) Enforcing or maintaining its collective-bargaining
contract with Respondent Employer, entered into on
August 19, 1971, or any modifications , extensions, supple-
ments, or renewals thereof unless and until it shall have
been certified by the Board as the statutory representative
of the crew members of the Denise Marie.
(c) In any like or related manner restraining or coercing
employees of Respondent Employer in the exercise of the
rights guaranteed them by Section 7 of the Act.
Order of the National Labor Relations Board" shall read "Posted pursuant
to a Judgment of the United States Court of Appeals enforcing an Order of
the National Labor Relations Board."
5 In the event that this recommended Order is adopted by the Board
after exceptions have been filed, this provision shall be modified to read:
"Notify the Regional Director for Region 21 , in writing, within 20 days
from the date of this Order, what steps the Respondent has taken to comply
herewith."
922 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 Denise Marie copies of the
attached notice marked "Appendix B.."s Copies of such
notice, to be furnished by the Regional Director for Region
21, shall, after being duly signed by an authorized
representative, 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 Denise Marie at
their last known addresses. Reasonable steps shall be taken
by Respondent Union to ensure 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 receipt of this Decision
what steps Respondent Union has taken to comply
herewith.?
It is also ordered that paragraph II of the complaint
alleging illegal interrogation by Respondent Employer be
dismissed.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise
of their rights guaranteed by the National Labor
Relations Act.
EPSILON FISHING CO., INC.
D/B/A M/V DENISE MARIE
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
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.
Any questions concerning this notice or compliance with
,its provisions may be directed to the Board 's Office, 849
South Broadway, Los Angeles, California 90014, Tele-
phone 213-688-5229.
6 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board " shall read "Posted pursuant
to a Judgment of the United States Court of Appeals enforcing an Order of
the National Labor Relations Board."
9 In the event that this recommended Order is adopted by the Board
after exceptions have been filed, this provision shall be modified to read:
"Notify the Regional Director for Region 21, in writing, within 20 days
from the date of this Order, what steps the Respondent has taken to comply
herewith."
APPENDIX A
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discourage membership in Cannery
Workers & Fishermen's Union of San Diego, Seafarers
International Union of North America, AFL-CIO, or
any other labor organization by discriminating as to the
hire, tenure, or other terms or conditions of employ-
ment of any of our employees.
WE WILL withdraw and withhold all recognition
from Fishermen's and Allied Workers' Union Local 33
of San Diego and San Pedro International Longshore-
men'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
August 19, 1971, unless and until such Union is
certified by the National Labor Relations Board as the
exclusive representative of the crew members of the
Denise Marie, provided, however, that nothing herein
shall require that we vary or abandon any wage or
other substantive feature of our relations with our
employees, which they have established in the perform-
ance of said contract, or prejudice the assertion by
them of any rights they may have thereunder.
APPENDIX B
NOTICE TO MEMBER
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT demand or accept recognition from or
contract with Epsilon Fishing Co., Inc., as the repre-
sentative of the crew members of the vessel Denise
Marie nor will we enforce the contract entered into
with said Employer on August 19, 1971, unless and
until we have been certified by the National Labor
Relations Board as the exclusive representative of such
crew members.
WE WILL NOT in any like or related manner restrain
or coerce crew members of the Denise Marie in the
exercise of the rights guaranteed to them by the
National Labor Relations Act.
FISHERMEN 'S & ALLIED WORKERS' UNION,
LOCAL #33 OF SAN DIEGO AND SAN PEDRO,
INTERNATIONAL LONGSHOREMEN'S AND
WAREHOUSEMEN'S UNION
(Labor Organization)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by
lanyone.
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. Any questions concern-
ing this notice or compliance with its provisions may be
!directed to the Board's Office, 849 South Broadway, Los
Angeles, California, 90014, Telephone 213-688-5229.