MV Dominator

National Labor Relations Board - Board Decisions

Feb 8, 1967

162 N.L.R.B. 1514 (N.L.R.B. 1967)

1514 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
originally performed by a metallurgist, and, by 1950, had increased
to an extent that required full-time work by three or four employees.
The record also shows that the Petitioner has not represented employ-
ees in this category, and, in fact, the Petitioner, which has repre-
sented a unit of hourly paid employees, does not allege that it ever
represented the Brinell testers, who are salaried.
The Petitioner contends that the Brinell testers are covered by the
unit description and should therefore be expressly included by the
Board. The Employer urges dismissal of the petition on the grounds
that : the function performed by these employees has existed since
before the certification in 1946; the employees engaged in this work
have never been represented by the Petitioner; these employees are
not includable because they lack a community of interest with the
employees in the unit; and, in any event, the inclusion of Brinell
testers in the unit after so many years of bargaining history which
did not cover them should be only pursuant to a self-determination
election.
In view of the foregoing, and bearing in mind particularly that the
function of Brinell testing was in existence at the time of the certifi-
cation in 1946, that neither the certification nor any contract since
1946 included these employees in the unit description, and that the
Petitioner has made no effort to represent these employees until 20
years after the certification, we find that the petition for clarification
raises a question concerning representation which may not be resolved
through a clarification of the existing unit. The proper procedure is
a petition pursuant to Section 9(c) of the Act seeking an election.'
We shall therefore grant the Employer's motion that the Petitioner's
petition be denied.3
[The Board dismissed the petition for clarification of the unit.]
2 Beaunit Fibers, Inc., 153 NLRB 987.
3In view of our disposition of this matter, we find it unnecessary to pass upon the Em-
ployer's contentions that the Brinell testers are supervisors , or that they lack a sufficient
community of interest to be included with the unit employees.
Joseph Madruga and Duarte R. Madruga , a partnership, d/b/a
MV Dominator and Cannery Workers & Fishermen 's Union
of San Diego , affiliated with the Seafarers ' International Union
of North America , AFL-CIO, Petitioner . Case 931-RC-10147.
February 8, 1967
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 ( c) of the National
Labor Relations Act, as amended , a hearing was held before Hearing
162 NLRB No. 134.
JOSEPH MADRUGA ET'AL.,/D/B/A"DOMINATOR,. 1515
Officer Claude R. Marston. The Hearing'Oflicer's rulings made at the
hearing are free from prejudicial error and are hereby affirmed. The
Employer, the Petitioner, and the Fisherman's Union Local 33, Inter-
national Longshoremen's and Warehousemen's Union, herein called
the Intervenor, filed briefs.
Pursuant to the provisions of Section 3 (b) of the Act, the National
Labor Relations Board has delegated its powers in connection with
this case to a three-member panel [Chairman McCulloch and Mem-
bers Fanning and Jenkins].
Upon the entire record in this case, the Board finds :
1. The Employer 1 is engaged in commerce within the meaning of
the Act.
2. The labor organizations involved claim to represent certain
employees of the Employer.
3. The Employer and the Intervenor contend, in part, that a
collective-bargaining agreement between the Intervenor and the Em-
ployer's predecessor was properly assumed and given effect by the
Employer and therefore bars a present determination of collective-
bargaining representative. On the other hand, the Petitioner contends
that "there was no unequivocal binding assumption" of the contract
as required by the Board, and therefore the contract in question does
not bar an election.
' The record shows that prior to June 7, 1966, George P. and
Dorothy M. Soares owned and operated.the MV Dominator, herein
referred to as Dominator or the vessel, a commercial tuna fishing
vessel, operating out of the ports of San Diego and San' Pedro, in the
waters off the coasts of Mexico and Central and South America. On
March 30, 1963, the Soares entered into a 3-year collective bargaining
agreement with the Intervenor covering the crew of the Dominator.
This collective-bargaining agreement included among other provi-
sions, union-security, dues checkoff, and arbitration provisions, and
also provided for a welfare fund, and a formula for determining the
percentage of the crew's share of the catch. The contract also con-
tained an automatic renewal clause, providing that in the absence of
60-day notification prior to April 1, 1966, by either party, of a desire
to amend or terminate the agreement, the contract would automati-
cally be renewed for another 3-year period. It appears that neither
party gave notice of a desire to amend or, terminate the agreement
and that the contract was thus renewed and was to continue in force
until March 30, 1969.
In early June 1966, after the automatic renewal of the collective-
bargaining agreement, the Soares entered into negotiations with the
Employer for the sale of the Dominator. During the course of negoti-
i The Employer's name appears as amended at the hearing.
1516 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ations the Employer orally informed George P. Soares that it had
"all the intentions of assuming and running the contracts that you
have just the way as it was before," and that it had no intention of
making any changes in the crew of the Dominator or in the method of
operating the vessel. However, it is undisputed that the Employer's
oral assurance to Soares was not reduced to writing and the Employer
did not notify the Intervenor of its intention to be bound by the
collective-bargaining agreement in issue.
On the day the sale was consummated, June 7, 1966, the Dominator
was away from port on a fishing expedition, and when the vessel
returned the Employer received the receipts of the catch, and paid
the expenses of the trip including dues checkoffs, patrol fees, health
and welfare funds to the Intervenor, and in all other matters
appeared to have fulfilled the provisions of the collective-bargaining
agreement. The record further shows that the Dominator sailed again
on July 14 and August 12 with some changes in the crew's foster .2
Again, on both occasions after the Dominator returned to port, the
Employer fulfilled all the requirements of the collective-bargaining
agreement in making settlement as to the catch.
The Board has long held that "the assumption of the operations by
a purchaser in good faith who had not bound himself to assume the
bargaining agreement of the prior owner of the establishment
removes the contract as a bar...." 3 In addition, the Board has long
required that for contract-bar purposes such an assumption of a prior
contract by a new employer must be expressed and in writing.4
Applying these long-held rules to the instant case, it is clear that
no such express-written adoption of the collective-bargaining agree-
ment was made. Accordingly, and without reaching the question as to
whether or not the contract between the Employer's predecessor and
the Intervenor may have survived the sale for other purposes, we find
that the contract does not bar a present determination of collective-
bargaining representative,-' and, therefore, that a question affecting
commerce exists concerning representation of employees of the
Employer within the meaning of Sections 9(c) (1) and 2(6) and (7)
of the Act.
2 It appears that for the July 14 sailings , the crew of the Dominator remained the same
as it had been under Soares ' ownership except that the chief engineer and one crewman
were employed to replace two former crew members who voluntarily left the vessel after
the June 3 voyage . Prior to the August 12 departure , the master quit, for personal reasons,
and the Employer hired another master for that voyage.
3 See General Extrusion Company, Inc ., et al., 121 NLRB 1165, 1168.
4 See American Concrete Pipe of Hawaii, Inc., 128 NLRB 720.
5 Grainger Brothers Co., 146 NLRB 609, and M. B. Fannin Lumber Co., 117 NLRB 575,
relied on by the Employer and Intervenor, are inapposite. In both of those cases the
Board found that a shift in the ownership of the corporate stock did not change the corpo-
rate entity, and that the corporate employer was identical to that employer who signed
the earlier agreement . Those critical facts are not present in this case.
SOUTHERN CALIFORNIA STATIONERS 1 517
4. We find, in accordance with the stipulation of the parties, that
the following employees of the Employer constitute a unit appropri-
ate for the purposes of collective bargaining within the meaning of
Section 9 (b) of the Act.
All crew members of the MV Dominator, excluding the skipper,
owner, part owners, and supervisors as defined in the Act.
[Text of Direction of Election omitted from publication.]6
6 An election eligibility list, containing the names and addresses of all the eligible voters,
must be filed by the Employer with the Regional Director for Region 21 within 7 days
after the date of this Decision and Direction of Election . The Regional Director shall
make the list available to all parties to the election . No extension of time to file this list
shall be granted by the Regional Director except in extraordinary circumstances . Failure
to comply with this requirement shall be grounds for setting aside the election whenever
proper objections are filed. Excelsior Underwear Inc., 156 NLRB 1236.
Southern California Stationers ; Wallace Printing Co. and Book-
binders & Bindery Women's Local No. 63-63A, International
Brotherhood of Bookbinders , AFL-CIO. Case 21-CA-6650.
February 9, 1967
DECISION AND ORDER
On September 22, 1966, Trial Examiner Maurice M. Miller issued
his Decision in the above-entitled proceeding, finding that Respond-
ents had not engaged in the unfair labor practices alleged in the com-
plaint and recommending that the complaint be dismissed, as set forth
in the attached Trial Examiner's Decision. Thereafter, the General
Counsel filed exceptions to the Decision and a supporting brief.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Jenkins and Zagoria].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions, the brief, and the entire record
in the case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner.
[The Board adopts the Trial Examiner's Recommended Order dis-
missing the case.]
162 NLRB No. 146.