MV Liberator

National Labor Relations Board - Board Decisions

Mar 2, 1962

136 N.L.R.B. 13 (N.L.R.B. 1962)

MV "LIBERATOR," ETC. 13
Paul Biazevich, Dinko Biazevich and Jerry Kusar, d/b/a MV
Liberator; John Grgas,, Nick Gargas, John I. (Jack) Gargas,
and Nick Andrich, Jr. d/b/a MV City of Los Angeles; Vincent
Budrovich and Western Boatbuilding Company, d/b/a MV
Delores M.; John Cvitanich and Tom Mason, d/b/a MV Sea
King; Steve Gargas, Anita Gargas, Francis Trutta, Mate
Trutta and Frank S. Gargas d/b/a MV Columbia; Nick
Marincovich and South Coast Fisheries, d/b/a MV New Sea
Rover; Norman Mezin and Western Boatbuilding Company,
d/b/a MV Western Fisher; Andrew Rafkin, Jr., Matt Dragich,
Peter Dragich and Frank Kostrencich, d/b/a MV Sea Scout;
John Sestich, Dominic Picinich, Nick Mosich, Gloria Wall and
Miles Grades, d/b/a MV Arlene S.; John Stanovich, Nickolas
Stanovich, Carl A. Larsen and French Sardine Company, d/b/a
MV Golden West; John Misetich, Dominick Misetich, Jakov
Misetich, Martin Tarabochia, Anton Karmen Misetich, Charles
A. Curevich and Mathie D. Curevich, d/b/a MV Ronnie M.;
John Zorotovich, Philip Mladineo , Martin Monas, Anton Mise-
tich, Ivan Misetich and Dominick Misetich, d/b/a MV Defense;
Lawrence Zuanich, John A. Zuanich and Constanta Zardeneta,
d/b/a MV Stranger; John K. Vilicich, Administrator of the
Estate of Andrew Vilicich, Deceased, d/b/a MV Marsha Ann;
and American Tuna Committee and Fishermen's Union, Local
33, ILWU and Seine and Line Fishermen's Union of Los
Angeles Harbor Area, Seafarers' International Union of North
America, AFL-CIO, Party to the Contract 1
Seine and Line Fishermen's Union of Los Angeles Harbor Area,
Seafarers' International Union of North America, AFL-CIO
and Fishermen's Union, Local 33, ILWU and American Tuna
Committee, Party to the Contract. Cases Nos. 21-CA-2388, 21-
CA-389, 21-CA-2390, 21-CA-2391, 21-CA-2392, 21-CA-2393,
21-CA-2394, 21-CA-2395, 21-CA-2396, 21-CA-2397, 21-CA-2398,
21-CA-2399, 21-CA-2400, 21-CA-2401, 21-CA-2402, and 21-CB-
772. March 2, 1962
DECISION AND ORDER
On February 9, 1960, Trial Examiner Wallace E. Royster issued
his Intermediate Report in the above-entitled proceeding, finding that
all the Respondents except Lawrence Zuanich, John A. Zuanich and
Constanta Zardeneta, d/b/a MV Stranger, had engaged in and were
1 Fishermen's Union, Local 33, ILWU, Is the Charging Party, and Seine and Line
Fishermen's Union of Los Angeles Harbor Area, Seafarers' International Union of North
America, AFL-CIO, is the Party to the Contract, in Cases Nos 21-'CA-2388 through
21-CA-2402. The individual Employers as well as American Tuna Committee, of which
they are all members, are referred to as Respondent Employers.
136 NLRB No. 1.
1
14 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
engaging in certain unfair labor practices and recommending that they
cease and desist therefrom and take certain affirmative action, as set
forth in the Intermediate Report attached hereto. Thereafter, ex-
ceptions to the Intermediate Report and supporting briefs were filed
by the Respondent Employer, American Tuna Committee (herein re-
ferred to as ATC) ; the Respondent Union, Seine and Line Fisher-
men's Union of Los Angeles Harbor Area, Seafarers' International
Union of North America, AFL-CIO (herein referred to as Seine and
Line) ; the Charging Party, Fishermen's Union, Local 33, ILtiVU
(herein referred to as Local 33) ; and the General Counsel.
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 entire
record in these cases,' including the Intermediate Report and the ex-
ceptions and briefs,' and hereby adopts the findings, conclusions, and
a ATC moved to dismiss the complaint on the ground that the Trial Examiner at the
opening of the hearing erroneously granted the General Counsel' s motion to strike the
following affirmative defenses from the ATC answer. (1) that Local 33 refused to recog-
nize or bargain with ATC or other boatowners between October 26 and December 15, 1955,
in violation of Section 8(b) (3) ; (2 ) that Local 33 called a strike with the object of
forcing the boatowners to designate the Fishermen ' s Cooperative Association (herein
referred to as the Co-op) as their bargaining representative , in violation of Section
8(b) (1) (B) and (4 ) ( A) ; and ( 3) that Local 33 failed to comply with the filing require-
ments set forth at that time in Section 9(f), (g), and ( h). No charges have been filed
alleging that Local 33 engaged in the violations designated as (1) and (2) Furthermore,
there is no contention , and the record does not show, that the Respondents were pre-
cluded from introducing evidence in support of these allegations Moreover , the first
contention is irrelevant as it does not constitute a defense to the violations alleged in
this complaint . To the extent that ( 2) is relevant to the illegal strike issue herein, all
evidence adduced in support thereof has been carefully considered by the Board in its
resolution of this and other issues in these cases . As to ( 3), it is well established that,
prior to the repeal on September 14, 1959, of Section 9 ( f), (g), and (h), the Act re-
quired that a charging party be in compliance therewith only on the date the complaint
was issued Stowe-Woodward, Inc, 123 NLRB 287, 297 Moreover, the factual question
of compliance is litigable only in a collateral proceeding which none of the parties re-
quested Sea View Industries , Inc., 127 NLRB 1402, footnote 1. We are administratively
satisfied that Local 33 was in compliance on the date the complaint was issued, and,
therefore , we find that the striking of the aforesaid defenses by the Trial Examiner was
not prejudicial -
The Respondents also objected to the following rulings by the Trial Examiner : ( 1) Re-
fusal to grant continuances requested by the Respondent Union It is well settled, how-
ever , that continuances are within the discretion of a Trial Examiner Plumbers and
Steam fitters Union Local 100 , affiliated with the United Association of Journeymen it
Apprentices of the Plumbing and Pipe fitting Industry of the U.S and Canada , AFL-CIO,
et at . ( Beard Plumbing Company ), 128 NLRB 398 , 400. (2 ) Rejection of an offer of
proof by ATC that a substantial number of the General Counsel ' s witnesses executed a
document promising to pay attorney fees to the Charging Party' s counsel out of backpay,
leaving the amounts blank so that any or all of their backpay could be claimed. Such
attorney fee arrangements , however, are not relevant in these proceedings The motions
to dismiss on these grounds are therefore hereby denied
2 The Respondents moved to dismiss the complaint because of the Board' s delay in
issuing the complaint and in proceeding with the hearing , allegedly caused by the Board's
decision to litigate first a representation proceeding involving the same parties The
Board's administrative determination to litigate the representation proceeding first, and
the reasons therefor , are fully set forth in its Decision , Order, and Direction of Elections
in that proceeding , Krist Gradis, et al, 121 NLRB 601, 615. See N L.R B v Wilson
Line, Inc., 122 F. 2d 809 , 816 (CA. 3 ). This motion to dismiss is therefore denied
6 The Respondents ' request for oral argument is hereby denied as the record, including
the Respondents ' briefs, adequately presents the issues and positions of the parties
MV "LIBERATOR," ETC. 15
recommendations of the Trial Examiner with the following excep-
tions, modifications, and additions :
1. During the original hearing, the Respondents made several ef-
forts to obtain pretrial statements of the General Counsel's witnesses.
Counsel for the General Counsel refused to produce them, and his re-
fusal was affirmed by the Trial Examiner, the General Counsel, and
the Board on interlocutory appeal, in accord with the Board policy
at that time as expressed in The Great Atlantic and Pacific Tea Com-
pany, National Bakery Division 118 NLRB 1280. After the hearing
closed but before the Trial Examiner issued his Intermediate Report,
the Board, in Ra-Rich, Manufacturing Corporation, 121 NLRB 700,
overruled The Great Atlantic and Pacific Tea case, and required the
production, upon request, for purposes of cross-examination, of pre-
trial affidavits made by witnesses who had testified in Board proceed-
ings. Thereupon the Trial Examiner reopened the record in these
cases and directed the General Counsel to produce all pretrial state-
ments within the purview of the Ra-Rich decision. At the reopened
hearing, the General Counsel and the Charging Party stated that they
had produced all such statements in their possession. The 58 witnesses
who had previously testified for the General Counsel returned and
were cross-examined on the basis of their pretrial statements; 13 addi-
tional witnesses who had previously testified and had made pretrial
statements which were produced did not return for cross-examination
thereon.
The Respondents contend that the complaint should be dismissed
because the pretrial statements were produced too late for effective
cross-examination. It is clear, however, that the Trial Examiner
properly refused to require production of the pretrial statements prior
to the issuance of the Board's decision in Ra-Rich, and the procedure
he followed-ordering production of the statements and reopening
the hearing for cross-examination on the basis thereof after Ra-Rich
was issued-has been approved by the Board and the courts.' More-
over, lapse of time does not, in itself, provide a basis for dismissing
the complaint.
The Respondents further contend that the names of the 13 witnesses
referred to above should be stricken from the complaint, or, alterna-
tively, that their testimony should be stricken from the record.' We
agree with the Respondents that the testimony of these 13 witnesses
should, under the circumstances, be stricken from the record,' and the
5 See, e g, N.L R.B. v. Adhesive Products Corp , 258 F . 2d 403 ( C A. 2) ; Ra-Rich
Manufacturing Corporation, supra; Tidelands Marine Service , Inc., 126 NLRB 261.
9 The 13 are Ante Matura , Peter Uskovich , and Sam IIskovich of the Columbia; Tony
Marincovich of the Defense; Anthony Dulcich ( or Dolcich ) and Jerry Marincovich of the
Delores M ; James Kaseroff and Christ Lisica of the Marsha Ann ; Vince Beato of the
New Sea Rover ; John Starcich of the Sea King , Mike Elich and Marion Petrov of
the Sea Scout; and Vincent Gargas of the Western Fisher
'' Lenscraft Optical Corporation and Rayer Corporation, 128 NLRB 807 , 814; Tidelands
Marine Service, Inc., supra ; Conso Fastener Corporation, 123 NLRB 1161.
16 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondents' motion to that effect is hereby granted. We do not agree,
however, that the names of any of these 13 witnesses, whose alleged
discriminatory discharges are discussed below, should be stricken from
the complaint on this ground.8
The Respondents also except to the credibility findings of the Trial
Examiner, and particularly to his failure-to refer in the Intermediate
Report to the pretrial statements and the cross-examination thereon.
It is well established that the Board will overrule a Trial Examiner's
credibility findings only if it finds that they are- clearly incorrect.'
Having examined the entire record in these cases, we find no basis for
overruling the credibility findings except as specifically provided
herein.10
2. As more fully set forth in the Intermediate Report, Local 33,
which represented the employees of the Respondent boatowners, re-
fused in the late summer of 1955, to agree to accept wages lower than
those required by their current contract. The boatowners, on the
ground that they were unable to operate at a profit because of falling
tuna prices, tied up their boats for the remainder of the year, with-
drew +authority from the Co-op to represent them, formed ATC, and
gave Local 33 timely notice of intent. to terminate their contract at
the end of the year. Late in December 1955, the boatowners instructed
their crews, by letters addressed to their homes, to remove their be-
longings from the boats by' December 31. On December 27, the crew-
members began to picket the ATC boats. On January 3, 1956, the
boatowners met with a representative of Seine and Lille and, in the
early morning of January 4, signed a collective-bargaining agreement
with that Union. Shortly thereafter they resumed tuna\fishing op-
erations with new crews.
We find, in agreement with the Trial Examiner, that the Respondent
boatowners, by telling employees on various occasions during the fall
and winter of 1955 that they could continue to work after the end of
8 Jbid ; see also New Madrid Manufacturing Company, a corporation, and Harold
Jones, an individual, d/b/a Jones Manufacturing Company, 104 NLRB 117, 119-120
enfd as modified 215 F. 2d 908 (CA. 8).
Although several other witnesses testified that they also signed pretrial statements for
the Charging Party or the General Counsel , counsel stated that they were unable to iden-
tify such statements as they did not have them in their possession Counsel for the
General Counsel , in searching Regional Office files for pretrial statements , discovered
several notebooks of a Board agent who had conducted the pretrial investigation and had
examined some of the General Counsel ' s witnesses at the original hearing, but who died
before the hearing was reopened . None of these notes were signed or authenticated by
witnesses . We therefore find that the Trial Examiner properly refused to require the
production of these alleged statements or of the Board agent's notes.
9Standard Dry Wall Products ,. Inc, 91 NLRB 544, enfd . 188 F. 2d 362 (CA 3)
10 We find merit in the Respondents ' exception to the Trial Examiner ' s apparently in-
advertent crediting of the testimony of Vlado Matejic of the Sea Scout that Andrew
Rafkin , Jr, master , told him on December 23, 1955, that everyone in the crew would have
to belong to Seine and Line in order to fish on that vessel, as the parties agreed at the
hearing to strike this testimony. We note, however , that a fellow crewmember , Dragich,
credibly testified to the same effect regarding this incident This apparent inadvertence
is therefore immaterial.
MV "LIBERATOR," ETC. 17
the year only if they joined Seine and Line, interfered with, restrained,
and coerced their employees in violation of Section 8 (a) (1) of the
Act.ll
3. We likewise agree with the Trial Examiner that the Respondent
Employers who own the Liberator, City of Los Angeles, Delores M.,
Sea King, Columbia, New Sea Rover, Sea Scout, Arlene S., Ronnie
M., and Defense discharged the members of their 1955 crews in order
to avoid dealing with Local 33. The discharges were effected by the
"clothes letters" which these boatowners sent to their crews telling
them to remove their belongings from the boats by December 31, 1955.
The record shows that, in accord with industry practice, crewmembers
had an expectation of working aboard the same vessel until they were
discharged or quit; that it was customary, therefore, for crewmem-
bers to leave their clothes and belongings aboard the vessel between
seasons; and that removing them was understood in the industry to
signal the end of employment on that vessel, by quitting if removed
voluntarily, by discharge if removed on orders from management.
ATC contends in its brief that the "clothes letters" were not intended
as discharges, but (1) were sent on advice of counsel to prevent crew-
members from claiming they were hired for the 1956 season and were
therefore entitled to a share in the proceeds of the 1956 season whether
or not they worked that season, pursuant to a court decision in the
Pioneer case,12 or (2) "were somewhat in the nature of a notification
of intent to replace" the picketing crews who, ATC contends, were
engaged in a strike, and the letters therefore "appear, on their face,"
to be a technical maneuver designed to induce the alleged strikers to
resume work. However, these asserted reasons for sending the letters
11 In a special defense to the 8(a) (1) allegations, ATC contends that the Trial Examiner
erred in finding that the testimony of John Zorotovich, master of the Defense, did not in
any substantial way deny the statements attributed to him by mmebers of his crew, and
that Zorotovich's testimony shows that he was merely informing the crew how they could
cause the boats to resume fishing, which was held not unlawful in Mike Trama (F/V
"Sandy Boy"), 125 NLRB 151. Zorotovich testified that he told his crewmembers he had
heard from fishermen that Local 33 employees of ATC boats were going to form an AFL
"B" union ; that, although he did not tell them to change unions, he did tell them they
should check with the AFL and, if the rumors were true, should let him know within
2 days what they were going to do because others were asking for chances to go fishing
with him and he had to go fishing ; and that, when he did not hear from any of his old
crewmembers, he started hiring new men on December 29. It is clear that Zorotovich was
in fact giving his employees a choice of changing unions or being replaced. Such re-
marks have been held unlawful in many cases, including the Sandy Boy case. There is no
indication here, as there was in the remarks found not unlawful in Sandy Boy, that
Zorotovich was only suggesting a way that the crew, the boat, and the master could
resume fishing together. We therefore find no merit in this special defense.
In view of the fact that we have stricken from the record the testimony of the 13 wit-
nesses named in footnote 6, above, we do not adopt any of the Trial Examiner' s findings
of Section 8(a)(1) violations based solely on their testimony, but adopt all his other
findings of 8(a) (1) violations.
12 The Pioneer case was an admiralty proceeding (Vitco v. Joncich, 130 F. Supp. 945)
in which the U.S. District Court, S.D. California, in April 1955, held that a fisherman
hired on the Pioneer in December 1951 to fish for tuna for the next season, but who be-
came ill on board on January 24, 1952, and did not fish thereafter, must be paid his full
share of the boat's proceeds for the calendar year 1952 under maritime law.
18 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
are inconsistent with each other, as well as with the position previously
taken by ATC in a letter to Local 33 dated December 28, 1955, assert-
ing that the crews had quit and that the boats had had no crews for
many months. These reasons not only constitute shifting defenses,
but, in addition, neither reason is supported by the evidence. Thus,
while all eight masters who testified stated that the letters were sent
on advice of counsel, only three of them testified that counsel's advice
was based on the Pioneer case, and none of them gave to any crew-
members with whom they discussed the letters this reason for sending
the letters. Nor do we agree that the letters were meant as notices of
intent to replace strikers because, in addition to the considerations
discussed below, the evidence shows that the decision to send them was
made before the picketing began on December 27, 1955.13 Accordingly,
we find, in agreement with the Trial Examiner, that the "clothes let-
ters" were intended by the boatowners who sent them, and were under-
stood by the crewmembers who received them, to constitute discharges.
The boatowners contend, in effect, that even if the 1955 crewmem-
bers are found to have been discharged, the discharges were not dis-
criminatory as they were motivated solely by economic considera-
tions. Thus, the boatowners assert that they were satisfied with the
work performed by the crewmembers; that, as former members of
Local 33 themselves, they would have preferred continuing to contract
with that Union; and that they did not continue solely because the
economic demands of the crewmembers, voiced through Local 33,
were impossible to meet. Unlike our dissenting colleague, however,
we do not find that the evidence supports the boatowners' contention
that the economic demands of Local 33 were "impossible." In fact,
contrary to the contention that the Local 33 demands were so in-
flexible that it was impossible for the boatowners to deal with that
Union, the record shows that, even though Local 33 had a written
collective-bargaining agreement with the boatowners covering the
year 1955, Local 33 agreed on three occasions during the first 7 months
of 1955 to modify that agreement to provide for progressive reduc-
tions in the rate of pay to crewmembers because of the falling price of
tuna. • When the price fell for the fourth time that year, the Union
attempted to hold the line but, after the boatowners had refused for
13 The following occurred before the picketing began* The master of the Defense told
three members of his crew that they would soon receive the "clothes letters ," and two
others that they would have to join Seine and Line to fish with him in 1956 the master
of the Columbia told a crewman that he would have to join Seine and Line to remain in
his employ ; the master of the Sea Scout told two crewmembers that they would have to
join Seine and Line if they wished to remain with the vessel. the master of the Sea King
told one crewman that he would receive a "clothes letter" and that the master would have
to get a crew that belonged to Seine and Line, and told another crewman that he was
thinking of "going Seine and Line," and , if he did , the old crew would not be retained.
the master of the Ronnie M. handed one crewmember a copy of the "clothes letter" : and
the master of the Arlene S. told two crewmembers that he was going to contract with
Seine and Line. and they should take their clothes off the boat.
MV "LIBERATOR," ETC. 19
about 3 months to operate under the terms of the agreement, Local
33 gave in and offered to modify the written contract in certain re-
spects, including acceptance of payment based on the market price of
tuna. The boatowners, however, failed to pursue this offer of Local
33 to further modify the 1955 agreement. Thereafter, they avoided
all efforts made by Local 33 to negotiate a new agreement for 1956,
and, instead, precipitately entered into a contract with Seine and
Line, in which they agreed to pay the same rate which Local 33 had
previously offered to accept. In addition, the boatowners failed to
substantiate on the record their contention that they could not afford
to pay their crews on the basis of the tuna prices in the Local 33 con-
tract. Moreover, even if there were convincing evidence of economic
hardship, it would not leave the boatowners free to discharge their
employees in order to avoid dealing with their bargaining representa-
tive. The Board and the courts have held that neither good faith
nor economic exigencies justify such discriminatory and coercive
conduct 14
The Respondents further contend that the crewmembers were not
entitled to reinstatement, even if they were discharged, because they
engaged in an illegal strike with the object of forcing the boatowners
to violate Section 8(a) (3) of the Act by renewing the collective-
bargaining agreement between Local 33 and the Respondent boat-
owners, which contained an unlawful union-security clause, or by
executing a new closed-shop contract; and, further, that the strike
was in violation both of a no-strike clause in the Local 33 agreement
and of Section 8(d) of the Act. We are convinced, however, that
the employees were not engaged in a strike at the time they were dis-
charged. When the picketing began on December 27, 1955, the boats
had been tied up for many months, during all of which time the em-
ployees were willing, while the boatowners were unwilling, to work
under the terms of the then current agreement. Moreover, the boats
customarily did no tuna fishing between Christmas and the end of
the year. It is clear, therefore, as the Trial Examiner found, 'that
there was no concerted stoppage of work and withholding of services
because at the time in question no work was being scheduled or per,
mitted by the b6atowners.15
Moreover, even assuming that the picketing was considered to con-
stitute a strike, it would clearly be an unfair labor practice strike.
Continued employment of the old crewmembers in 1956 was con-
14 Weyerhaeuser Company, 134 NLRB 1371; Combustion Engineering,, Inc, 130 NLRB
184, 201-202; N.L.R B. v. J. E. McCarron, et at ., d/b/a Price Valley Lumber Co, rt al.,
216 F. 2d 212, 215 (C A. 9) ; N.L.R.B. v. National Maritime Union of America, et at. (The
Texas Company), 175 F. 2d 686, 689 (C.A. 2) ; N.L R B. v. Gluek Brewing Company and
Bach Transfer and Storage, Company, 144 F. 2d 847, 853 (C.A. 8) ; N.L.R.B. v., Star
Publishing Co, 97 F. 2d 465, 470 (C.A. 9).
15 Wakefield's Deep Sea Trawlers, Inc, and Wakefield Fisheries, Inc., 112 NLRB 1357.
641795-63-vol. 136-3
1
20 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ditioned upon their accepting Seine and Line as their bargaining
representative, and these crewmembers were protected by the' Act in
their refusal to accept employment under such a discriminatory con-
dition."s While one of the original objectives of the picketing was
renewal of the Local 33 agreement, which contained an unlawful
union-security clause, and while Local 33 did later request a closed-
shop contract in return for withdrawal of its wage demands, the
record neither shows that Local 33 was adamant in its union-security
demands, nor that such demands were at any time a major objective
of the picketing. On the contrary, Local 33 clearly indicated on a
number of occasions its willingness to negotiate the terms of a new
agreement with the boatowners. Moreover, as the Trial Examiner
found, the boatowners terminated the Local 33 contract and dis-
charged their employees not because of^ any objection to Local 33's
union-security demands, as shown by the fact that their contract with
Seine and Line contained unlawful union-security provisions, but
because of their desire to replace Local 33 with Seine and Line as the
representative of their employees. Under these circumstances, we
see no justification for depriving these discriminatorily discharged
employees of their rights under the Act 17 because, in the course of
trying to negotiate with the boatowners, Local 33 made certain union-
security demands.
Nor do we agree that the picketing, even assuming that it was a
strike, violated the no-strike clause in the Local 33 agreement in view
of the serious unfair labor practices which we have found in these
cases."' Moreover, the procedure established in the no-strike clause
provided that all disputes must be referred to a committee made up of
representatives of Local 33 and the Co-op. As Local 33 contended in
a letter to ATC dated December 29, 1955, the Respondent Employers'
prior withdrawal of the Co-op's authority to represent it had ren-
dered this provision of the contract inoperative.
We also disagree with the Respondent's contention that the picket-
ing. was unlawful because it occurred within the 60-day period prior
to the expiration date of the contract, in violation of Section 8 (d) of
the Act. We do not believe that Section 8(d) applies in a situation
where, as here, it was the employers who served the 8 (d) (1) notice on
the union of their desire to terminate the contract, and who failed to
offer to meet and confer with the union for the purpose of negotiating
a new contract, as required by Section 8(d) (2), or to notify Federal
and State mediation services of the existence of a dispute, as required
by Section 8(d) (3). Having themselves thus failed to comply with
- J. W. Saltsman doing business as Saltsman Construction Company, 123 NLRB 1176,
1181, enfd . in this respect 283 F. 2d 472 (C.A. 6).
17 Cf. N L R B. v. Sunri8e Lumber & Trim Corp, 241 F. 2d 620, 624-625 (C A. 2), enfg.
115 NLRB 866; Mackay Radio and Telegraph Company, Inc , 96 NLRB 740.
18Arlan's Department Store of Michigan, Inc., 133 NLRB 802.
MV "LIBERATOR," ETC. 21
the requirements of Section 8(d), the Respondent Employers cannot
now invoke the provisions of that section to excuse them from the con-
sequences of their unfair labor practices.ls
Accordingly, we agree with the Trial Examiner that the Respond-
ent Employers discharged the employees whose names are listed in
Appendix A, attached hereto, in order to avoid dealing with Local 33,
,and not for the reasons advanced by the Respondent Employers, and
that the Respondent Employers thereby violated Section 8(a) (3)
and (1) of the Act.
4. Based on credited testimony of the master of the Marsha Awn,
the Trial Examiner found that all the crewmembers of this vessel
except James Kaseroff had been hired in 1955 for one trip only, and
therefore ceased to be employees before the "clothes letters" were sent.
The Trial Examiner credited testimony of Kaseroff, however, that he
had not been told that his employment was for one trip only, and
found that Kaseroff therefore remained an employee after the last
trip until he was discriminatorily discharged by a "clothes letter."
Because Kaseroff did not return to the reopened hearing for cross-
examination on his pretrial affidavit, we have stricken his entire testi-
mony from the record. Without this testimony, the record establishes
that all members of this crew were hired for one trip only. We
therefore find that Kaseroff had ceased to be an employee of the
Marsha Ann before he received the clothes letter, and, accordingly,
that the owners of this vessel have not discriminatorily discharged
any employees.
5. We adopt the Trial Examiner's finding that ATC and its boat-
owner members, except the owners of the Stranger,20 rendered un-
lawful assistance and support to Seine and Line and discriminated
against their employees, and that Seine and Line restrained and
coerced, and caused and attempted to cause ATC and its boatowner
members to discriminate against, such employees by entering into and
enforcing a union-security contract. Seine and Line was not at that
time the majority representative of the employees covered by the con-
tract 2' Moreover, Local 33, which was the incumbent contractural
Union, was vigorously maintaining that it was the continuing ma-
19 Cf. United Electrical, Radio and Machine Workers of America , Local 1119 (Marathon
Electric Manufacturing Corp. ) v. N.L.R.B., 223 F. 2d 338, 342 (C.A.D.C.).
20 All but three of the boatowners signed the Seine and Line contract on January 4,
1956 ; the Marsha Ann signed a few days later. The Golden West was a member of ATC
from its inception ; Its owner recognized Seine and Line as the representative of its crew
at the January 3 to 4 meeting , which he attended ; and he signed the contract in May
1956. The owners of the Stranger did not attend the January 3 to 4 meeting and never
did sign the contract.
21 Cf Bernard-Altmann Texas Corporation , 122 NLRB 1289 , 1291-1292 , enfd 280 F. 2d
616 (CAD C ), affil 366 U S . 731. In the absence of exceptions thereto, we hereby adopt
pro forma the Trial Examiner 's finding that the employees of all the boatowner-members
of ATC constitute an appropriate unit . In finding that Seine and Line did not represent
a majority of employees in this unit on January 4, 1956, we rely on the fact that the
crewmembers found to have been discriminatorily discharged constituted a substantial
majority of the employees ,on these vessels , and they had not designated Seine and Line
22 DECISIONS - OF NATIONAL LABOR RELATIONS BOARD
jority representative 22 Accordingly, we find that, by such conduct,
the Respondent Employers violated Section 8(a) (1), (2), and (3),
and Seine and Line violated Section 8(b) (1) (A) and (2) of the Act.
6. The contract executed by Respondent Employers and Seine and
Line required, as conditions of employment, that all employees (1)
join and pay dues to Seine and Line or, if not members, pay support
money to that Union, without allowing the statutory 30-day grace
period, (2) pay unspecified nonperiodic assessments, and (3) execute
involuntary checkoff authorizations. The contract also called for for-
feiture of earnings by all employees who failed to pay to Seine and
Line the amounts described above and who were not discharged there-
for. By incorporating into their contract and enforcing the aforesaid
union-security provisions, we find, as did the Trial Examiner, that the
Respondent Employers, except the owners of the Stranger, violated
Section 8(a) (1), (2), and (3) of the Act and that Seine and Line
violated Section 8 (b) (1) (A) and (2) of the Act .21
\ THE REMEDY
Having found that the Respondent Employers and the Respondent
Union have engaged in unlawful practices, we shall order that they
cease and desist therefrom and take certain affirmative action neces-
sary to effectuate the policies of the Act.
We have found that all the Respondent Employers, except the own-
ers of the Marsha Ann, Golden West, Western Fisher, and Stranger,
discriminatorily discharged their employees. We shall therefore or-
der them to offer to such employees immediate and full reinstatement
on the vessels from which they were discharged, without prejudice to
their seniority or other rights and privileges, and make each of them
whole for any loss of pay suffered as a result of the discrimination
against him during the period from March 30, 1956,24 until the date
the vessel in question sank, or the date on which he was offered re-
instatement, whichever occurs sooner. As we have found that Seine
and Line, by executing and enforcing the unlawful union-security con-
tract, caused and attempted to cause the boatowners' discrimination
against such employees by requiring as a condition of their continued
employment that they join or pay support money to that Union, we
shall hold the Respondent Union jointly and severally liable with the
as their representative ; we do not rely on Seine and Line's failure to prove, as an
affirmative defense, that it represented a majority, as discussed by the Trial Examiner.
See Local Lodge No. 1424, International Association of Machinists, APL-CIO, et at.
(Bryan, Manufacturing Co.) v. N.L R B , 362 U.S '411„ footnote 7
ra Midwest Piping & Supply Co, Inc, 63 NLRB 1060; Novak Logging Company, 119
NLRB 1573.
x' We do not pass on the Trial Examiner's additional finding that the provision requir-
ing payment of dues 12 months in advance was unlawful, as the record herein is in-
adequate with regard to this matter, and as determination of this issue would not, in
any event, affect the remedy herein.
24 As no exceptions were filed-to the Trial Examiner's recommendation that backpay
should be paid from March 30, 1956, this recommendation is adopted pro forma.
MV "LIBERATOR," ETC. 23
Respondent Employers for backpay until 5 days after it notifies the
Employers, in writing, sending copies to the employees listed in Ap-
pendix A, that it withdraws its objections to their unconditional
reinstatement.
Having found that ATC and its boatowner members have rendered
unlawful assistance and support to Seine and Line, we shall order
them to withdraw recognition from Seine and Line and to cease en-
forcing their contract with that Union. In addition, we shall set aside
the certification of representatives issued conditionally to Seine and
Line on October 20, 1958.25
The record shows that some of the discriminatorily discharged em-
ployees, although they were members of Local 33, later accepted em-
ployment on vessels of the ATC boatowners and, as a condition of re-
taining such employment had to pay dues or support money to Seine
and Line. We find that all such employees who were previously mem-
bers of Local 33 and not of Seine and Line, and either joined or paid
support money to the latter Union, did so involuntarily because the
contract required it as a condition of employment. We shall therefore
provide that these employees be reimbursed, jointly and severally, by
the Respondent Union and, the Respondent Employers for all dues,
initiation fees, assessments, and support money in lieu thereof, paid
under these circumstances 26 However, we shall not require the refund
of sums paid to Seine and Line by other fishermen who were employed
by these vessels after the-Seine and Line contract was signed, who were
previously members of Seine and Line and not of Local 33. The con-
tract did not require, and the evidence does not show, that such em-
ployees joined Seine and Line for the purpose of obtaining these jobs.
As such voluntary members are not shown to have been coerced into
joining, remaining members of, or paying money to, Seine and Line,
we find that the refund of such payments would not serve to dissipate
the effects of the unfair labor practices found herein or effectuate the
policies of the Act 27
ORDER
Upon the entire record in these cases, and pursuant to Section 10(c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that :
26 See %rist Gradi8, et al., supra.
2a Our reimbursement order is not to be construed as requiring refund of a charge of
one-half percent of each crewmember 's share of the catch paid to Seine and Line, as this
charge apparently was made in accordance with industry practice to compensate a union
for services rendered employees in connection with the distribution of the proceeds of
the catch, and not as an obligation of membership in that Union We consider the Trial
Examiner ' s recommendation that "other contributions" be refunded as too vague, and
therefore do not adopt it.
27 Local 60, Unsted Brotherhood of Carpenters and Joiners of America, AFL-CIO, et al.
(dfechanscal Handling Systems ) v. N L B B., 365 U S. 651
24 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A. The Respondent Employers, including the owners and masters
of the vessels Liberator, City of Los Angeles, Delores M., Sea King,
Columbia, New Sea Rover, Western Fisher, Sea Scout, Arlene S.,
Golden West, Ronnie M., Defense, and Marsha Ann, and American
Tuna Committee, jointly and severally, their officers, agents, suc-
cessors, and assigns, shall :
1. Cease and desist from :
(a) Recognizing Seine and Line Fishermen's Union of Los Angeles
Harbor Area, Seafarers' International Union of North America,
AFL-CIO, or any successor thereto, as the representative of any of
their employees for the purpose of dealing with said organization con-
cerning grievances, labor disputes, wages, rates of pay, hours of,em-
ployment, or other conditions of employment, unless and until that
organization shall have been recertified by the Board as the exclusive
representative of such employees.
(b) Performing or giving effect to, or in any way enforcing, their
1956 contract with Seine and Line Fishermen's Union of Los Angeles
Harbor Area, Seafarers' International Union of North America,
AFL-CIO, or any modification, extension, supplement, or renewal
thereof, or any other contract, agreement, or understanding entered
into with it relating to grievances, labor disputes, wages, rates of pay,
hours of employment, or other conditions of employment, unless and
until that organization shall have been recertified by the Board as the
exclusive representative of such employees.
(c) Discouraging membership in Fishermen's Union, Local 33,
ILWU, or in any other labor organization, by discharging or refusing
to hire employees because they are members of that organization, or in
any other manner discriminating against employees or prospective
employees in regard to their hire or tenure of employment or any term
or condition of employment, except to the extent permitted by Section
8(a) (3) of the Act.
(d) Requiring their crewmembers as a condition of continued em-
ployment to join or pay dues or support money to Seine and Line
Fishermen's Union of Los Angeles Harbor Area, Seafarers' Interna-
tional Union of North America, AFL-CIO.
(e) Assisting or contributing support to Seine and Line Fisher-
men's Union of Los Angeles Harbor Area, Seafarers' International
Union of North America, AFL-CIO, in any unlawful manner.
(f) In any other manner interfering with, restraining, or coercing
their employees in the exercise of the rights guaranteed in Section 7
of the Act, except to the extent that such rights may be affected by an
agreement requiring membership in a labor organization as a condi-
tion of employment, as permitted by Section 8(a) (3) of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
MV "LIBERATOR," ETC. 25
(a) Withdraw and withhold recognition from Seine and Line
Fishermen's Union of Los Angeles Harbor Area, Seafarers' Interna-
tional Union of North America, AFL-CIO, as the representative
of their employees unless and until that organization shall have been
recertified by the Board as the exclusive representative of such
employees.
(b) Severally offer to the crewmembers whose names appear on
Appendix A immediate and 'full reinstatement on the vessels from
which they were discharged, unless such vessels have sunk, without
prejudice to their seniority or other rights and privileges.
(c) Jointly and severally with the Respondent Union reimburse
crewmembers for all moneys illegally exacted from them as dues, initi-
ation fees, assessments, or support money, on behalf of the Respondent
Union since January 4, 1956, in the manner and to the extent set forth
in the section of the Intermediate Report entitled "The Remedy" as
modified in the section hereinabove entitled "The Remedy."
(d) Jointly and severally with the Respondent Union make whole
all the employees listed in Appendix A, attached hereto, for any loss
of pay suffered as a result of the discrimination against them from
March 30, 1956, in the manner set forth in the section of the Inter-
mediate Report entitled "The Remedy" as modified by the section
hereinabove entitled "The Remedy."
(e) Preserve and, upon request, make available to the Board or
its agents, for examination and copying, all settlement sheets, payroll
records, social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze and determine
the amount of backpay due, the sums illegally exacted, and the rights
of the employees involved under the terms of this Order.
(f) Provide to each crewmember now employed a signed copy of
the notice attached hereto marked "Appendix B,28 and provide the
Regional Director for the Twenty-first Region with signed copies of
such notices for posting at the offices of Seine and Line Fishermen's
Union of Los Angeles Harbor Area, Seafarers' International Union of
North America, AFL-CIO, and Fishermen's Union, Local 33, ILWl7.
(g) Provide to each crewmember now employed a copy of the
notice attached hereto marked "Appendix C" signed by a representa-
tive of the Respondent Union.
28 The Regional Director is instructed to insert , on separate copies of the attached
notice, the names of the individual vessels in the heading and below the signature line,
and, on the notices to be distributed by the New Sea Rover, Defense, City of Los Angeles,
Columbia, Sea Scout, Liberator, Delores M , and Ronnie M, to insert the words , "We will
offer the following employees immediate and full reinstatement without prejudice to their
seniority or other rights and privileges:" followed by the names, of the employees dis-
criminatorily discharged from the vessel as shown in Appendix A.
In the event that this Order is enforced by a decree of a United States Court of
Appeals , there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order."
26 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(h) Severally notify the Regional Director for the Twenty-first
Region, in writing, within 10 days from the date of this Order, what
steps have been taken to comply herewith.
B. The Respondent Union, Seine and Line Fishermen's Union of
Los Angeles Harbor Area, Seafarers' International Union of North
America, AFL-CIO, San Pedro, California, its officers, representa-
tives, agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Causing or attempting to cause the Respondent Employers
named above to discriminate against employees by imposing any re-
quirement of membership in the Respondent Union or the payment
of any moneys to it as a condition of employment, or to discriminate
in any other manner regarding their hire or tenure of employment
or any term or condition of employment, except to the extent per-
mitted by Section 8 (a) (3) of the Act.
(b) Performing, giving effect to, or in any way enforcing its 1956
contract with the Respondent Employers or to any modification, ex-
tension, supplement, or renewal thereof, or to any other contract,
agreement, or understanding entered into with the Respondent Em-
ployers relating to grievances, labor disputes, wages, rates of pay,
hours of employment, or other conditions of employment, unless and
until it shall have been recertified by the Board as the exclusive rep-'
resentative of such employees.
(c) In any other manner restraining and coercing employees of
the Respondent Employers in the exercise of their rights guaranteed
by Section 7 of the Act, except to the extent that such rights may be
affected by an agreement requiring membership in a labor organiza-
tion as a condition of employment, as authorized by Section 8(a) (3)
of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act. s
(a) Jointly and severally with American Tuna Committee and its
boatowner members named above reimburse crewmembers of such
boatowners for all moneys illegally exacted from them as dues, initia-
tion fees, assessments, or support money, from January 4, 1956, in the
manner and to the extent set forth in the section of the Intermediate
Report entitled "The Remedy," as modified in the section hereinabove
entitled "The Remedy." '
(b) Jointly and severally with the Respondent Employers named
above make whole all crewmembers named in Appendix A for any loss
of pay suffered as a result of the discrimination against them from
March 30, 1956, in the manner set forth in the section of the Inter-
mediate Report entitled "The Remedy," as modified by the section
hereinabove entitled "The Remedy."
MV "LIBERATOR," ETC. 27
(c) Preserve and, upon request, make available to the Board or its
agents, for examination and copying, all records necessary to deter-
mine which employees-are entitled to reimbursement and the amounts
thereof.
(d) Post at its offices, copies of the notice attached hereto marked
"Appendix C" for signature by the Respondent Union. Copies of said
notice, to be furnished by the Regional Director for the Twenty-first
Region, shall, after being duly signed by the Respondent Union's
representative, be posted immediately upon receipt thereof, and be
maintained by the Respondent Union for 60 consecutive days there-
after, in conspicuous places, including all places where notices to
members are customarily posted. Reasonable steps shall be taken by
the Respondent Union to insure that such notices are not altered, de-
faced , or covered by any other material.
(e) Mail to the said Regional Director signed copies of the afore-
said notice for distribution to the Respondent Employers as provided
above.
(f) Notify the Regional Director for the Twenty-first Region, in
writing, within 10 days from the date of this Order, what steps have
been taken to comply herewith.
IT Is FURTHER ORDERED that the certification of representatives issued
to Seine and Line Fishermen's Union of Los Angeles Harbor Area,
Seafarers' International Union of North America, AFL-CIO, in
"Unit E" on October 20, 1958, in Krist Gradis, et at., Cases Nos. 21-
RC-4452 and 21-RC-4631, be, and it hereby is, set aside.
IT IS FURTHER ORDERED that the complaint herein, insofar as it alleges
that Lawrence Zuanich, John A. Zuanich and Constanta Zardeneta
d/b/a MV Stranger violated the Act, be, and it hereby is, dismissed.
MEMBER FANNING concurring in part and dissenting in part:
I agree with'the majority that the Respondent Employers violated
Section 8(a) (1), (2), and (3) of the Act and Respondent Seine and
Line violated Section 8(b) (1) (A) and (2) with respect to the execu-
tion and enforcement of their January 1956 contract.
I disagree, however, with the majority's further conclusion that the
Respondent Employers further violated Section 8(a) (3) of the Act
by notifying their fishermen employees that they would not be re-
sponsible for personal belongings left aboard after December 31, 1955.
The facts with respect to this issue are fully set forth in the Inter-
mediate Report. Briefly stated, there had been a number of contracts
between Local 33 and the Respondent boatowners , the last of which
expired on December 31, 1955. On December 27, 1955, the fishermen
,employees, all members of Local 33, were requested to remove their
personal belongings from the boats before January 1, 1956. This
is DECISIONS OF NATIONAL LABOR RELATIONS BOARD
action of the employers was the culmination of an economic dispute
between the boatowners and Local 33 that had kept most of these
boats inoperative from about July 1955, to December, when the con-
tract was at an end. As the Trial Examiner found, continued em-
ployment of the Local 33 crews would have meant that the boatowners
would have had to settle with their crews on the basis of prices sub-
stantially in excess of the actual market value of the catch. The boat-
owners were unwilling to fish on these terms. Local 33 would not
agree to less. Adding to their dilemma was the fact that two unions,
Local 33 and Respondent Seine and Line, controlled the entire source
of competent fishermen. Both Unions, it should be noted, would fish
only on the terms of an unlawful closed-shop contract, executed before
fishermen were supplied. As the Trial Examiner recognized, the Re-
spondent Employers had little freedom of choice in this case : "They
could try to seek agreement with Local 33 and they had before Oc-
tober done so without success. They could offer the cannery price and
take along any competent person who was willing to go. The second
alternative was chimerical and probably was not even considered.
Local 33 members would not fish without a contract ; nor would mem-
bers of Seine and Line." -In these peculiar circumstances to hold, as
the majority does, that the termination of Local 33 crewmembers was
unlawful discrimination seems to me to go a step beyond the statutory
proscription. Section 8(a) (3) forbids an employer to discriminate
against his employees to encourage or discourage union membership.
The majority find that the boatowners discharged their employees
"to avoid dealing with Local 33." Obviously, an employer, who is
opposed to a union or unionism and discharges an employee to rid
himself of an unwanted union has engaged in discrimination that dis-
courages membership in that union. But the facts in this case do
not, in my opinion, neatly fit that niche. Here the inference is at least
equally valid that the Employers replaced their Local 33 crews be-
cause they found it impossible to meet the economic demands of the
crews, voiced adamantly through Local 33. Indeed, as I read the
record, these boatowners would have preferred continuing to con-
tract with Local 33 if they had thought it economically possible to do
so. Under all the circumstances, I question whether the General
Counsel has proved by a preponderance of the evidence that the ter-
mination of these employees is conduct of the type proscribed by
Section 8(a) (3). Accordingly, I would dismiss this allegation of
the complaint.
CHAIRMAN MCCI7LLOCH and MEMBER RODGERS took no part in the
consideration of the above Decision and Order.
MV "LIBERATOR," ETC.
APPENDIX A
EMPLOYEES ENTITLED TO BE MADE WHOLE
AND TO REINSTATEMENT
New Sea Rover
Vince Beato
Nade Bozin
Jack Tudor
Mike Mavar
Thomas Barcot
Defense
Ferdinand Granich
James Mirkovich
George J. Bush
Tony Marincovich
Vido Druskovich
John Carpenter
Antone Gaspar
George Kirchenschlager
Jerry J. Marincovich
City of Los Angeles
Joe Sunjka
Dusan Gargas
Sreko Matura
Mate Lastavica
Steve Matura
Matt Gargas
Roko Roman
Columbia
Steven Dadich
Frank Lezaj a
Ante Matura
Sam Uskovich
Petar Uskovich
Bob Uglesich
Sea Scout
Milan Platisha
Nick Platisha
Miro Pesic
Marion Petrov
John Brunac
John Dragich
Mike Elich
John Radovich
Vlado Matejic
Sea King
Louis Sasso
Nick Sladich
John Starcich
Liberator
Dominic Lubetich
Andrew Zankich
Anton J. Kruzich
Delores M.
George Anderson
John Budrovich
Kasoma Jennings
Victor Kunst
Jerry Marinkovich
Joe Skefich
Ronnie M.
Joe Evich
Arlene S.
George Bascovich
Jack Zankich
Sam Steve
APPENDIX B
29
NOTICE TO ALL SAN PEDRO FISHERMEN AND CREWMEMBERS OF --------
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify you that :
WE WILL NOT recognize Seine and Line Fishermen's Union of
Los Angeles Harbor Area, Seafarers' International Union of
North America, AFL-CIO, or any successor thereto, as the repre-
sentative of any of our employees for the purpose of dealing with
that organization concerning grievances, labor disputes, wages,
rates of pay, hours of employment, or other conditions of em-
ployment, or perform or give effect to, or in any way enforce, our
30 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1956 contract with that labor organization, or any modification,
extension, supplement, or renewal thereof, or any other contract,
agreement, or understanding 'entered into with that labor or-
ganization relating to grievances, labor disputes, wages, rates of
pay, hours of employment, or other conditions of employment,
unless and until that labor organization shall have been recerti-
fied by the National Labor Relations Board.
WE WILL NOT assist or contribute support to Seine and Line
Fishermen's Union of Los Angeles Harbor Area, Seafarers' In-
ternational Union of North America, AFL-CIO, in any other un-
lawful manner.
WE WILL NOT discharge any crewmember in order to avoid an
obligation to bargain with Fishermen's Union, Local 33, ILIV U,
or with any other labor organization.
WE WILL, jointly and severally with other employer members
of American Tuna Committee and With Seine and Line Fisher-
men's Union of Los Angeles Harbor Area, Seafarers' Interna-
tional Union of North America, AFL-CIO, make whole employees
discriminated against for any loss of earnings suffered as a result
of the discrimination against them, and reimburse crewmembers
who were not members of Seine and Line Fishermen's Union of
Los Angeles Harbor Area, Seafarers' International Union of
North America, AFL-CIO, before January 4, 1956, but who have
been unlawfully required as a condition of employment to make
payments to that organization.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of the rights guaranteed
them in Section 7 of the Act except to the extent that such rights
may be affected by an agreement requiring membership in a labor
organization as a condition of employment, as authorized in
Section 8 (a) (3) of the Act.
All our employees are free to become or remain or to refrain from
becoming or remaining members of Fishermen's Union, Local 33,
ILWU, or any other labor organization, except to the extent that this
right may be affected by an agreement in conformity with Section
8 (a) (3) of the National Labor Relations Act.
RESPONDENT,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional
Office (Eastern Columbia Building, 849 South Broadway, Los An-
MV "LIBERATOR," ETC. 31
geles 14, California; telephone number RIchmond 9-4711, extension
1031) if they have any question concerning this notice or compliance
with its provisions.
APPENDIX C
NOTICE TO ALL FISHERMEN IN SAN PEDRO HARBOR AND TO ALL MEM-
BERS OF SEINE AND LINE FISHERMEN'S UNION OF Los ANGELES
HARBOR AREA, SEAFARERS' INTERNATIONAL UNION OF NORTH AMER-
ICA, AFL-CIO, AND FISHERMEN'S UNION, LOCAL 33, ILWU
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify you that :
WE WILL NOT cause or attempt to cause the owners or masters
of the Liberator, City of Los Angeles, Delores M., Sea King,
Columbia, New Sea Rover, Western Fisher, Sea Scout, Arlene S.,
Golden West, Ronnie M., De tense, or Marsha Ann to discriminate
against employees by requiring membership in, or payment of any
money to, this organization as a condition of employment, or to
discriminate in any other manner regarding their tenure of em-
ployment or any term or condition of employment, except as per-
mitted by Section 8 (a) (3) of the Act.
WE WILL NOT perform, give effect to, or in any way enforce our
1956 contract with any of the above-named vessels or American
Tuna Committee, or any modification, extension, supplement, or
renewal thereof, or any other contract, agreement, or understand-
ing entered into with those employers relating to grievances,
labor disputes, wages, rates of pay, prices, hours of employment,
or other conditions of employment, unless and until we shall have
been recertified by the National Labor Relations Board.
WE WILL NOT in any other manner restrain or coerce employees
of any of these employers in the exercise of their rights guaran-
teed by Section 7 of the Act, except to the extent that such rights
may be affected by a lawful agreement requiring membership in
a labor organization as a condition of employment, as authorized
by Section 8 (a) (3) of the Act.
WE WILL, jointly and severally with the Employer Members of
American Tuna Committee, make whole Vince Beato, Nade Bozin,
Jack Tudor, Mike Mavar, Thomas Barcot (New Sea Rover) ;
Ferdinand Granich, James Mirkovich, George J. Bush, Tony
Marincovich, Vido Druskovich, John Carpenter, Antone Gaspar,
George Kirchenschlager, Jerry J. Marincovich (Defense) ; Joe
Sunjka, Dusan Gargas, Sreko Matura, Mate Lastavica, Steve
Matura, Matt Gargas, Roko Roman (City of Los Angeles);
Steven Dadich, Frank Lezaja, Ante Matura, Sam Uskovich, Peter
32 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Uskovich, Bob Uglesich (Columbia) ; Milan Platisha, Nick Plati-
sha, Miro Pesic, Marion Petrov, John Brunac, John Dragich,
Mike Elich, John Radovich, Vlado Matejic (Sea Scout) ; Louis
Sasso, Nick Sladich, John Starcich (Sea King) ; Dominic Lubet-
ich, Andrew Zankich, Anton J. Kruzich (Liberator) ; George
Anderson, John Budrovich, Kasoma Jennings, Victor Kunst,
Jerry Marinkovich, Joe Skefich (Delores M.) ; Joe Evich (Ronnie
M.) ; George Bascovich, Jack Zankich, Sam Steve (Arlene S.) ;
for any loss of earnings suffered from March 30, 1956, by reason
of the discrimination against them.
WE WILL reimburse all employees of the above-named em-
ployers who were not members of this Union prior to January 4,
1956, and either became members or, in lieu thereof, paid support
money as a condition of employment by such employer.
SEINE AND LINE FISHERMEN 'S UNION
OF Los ANGELES HARBOR AREA, SEA-
FARERS' INTERNATIONAL UNION OF
NORTH AMERICA, AFL-CIO,
Labor Organization.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional
Office (Eastern Columbia Building, 849 South Broadway, Los Angeles
14, California; telephone number RIchmond 9-4711, extension 1031)
if they have any question concerning this notice or compliance with its
provisions.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon separate charges duly filed by Local 33 and served , the General Counsel
of the National Labor Relations Board issued a consolidated complaint against the
captioned Respondents on November 20, 1956, alleging that the Employer Respond-
ents, and each of them , had engaged in and were engaging in unfair labor practices
within the meaning of Section 8(a)(1), (2 ), and (3) of the National Labor Rela-
tions Act, as amended , 61 Stat. 136, and that Respondent Seine and Line had en-
gaged in and was engaging in unfair labor practices within the meaning of Section
8(b)(1) (A) and (2) of the Act. As to all Respondents, it is alleged that the
unfair labor practices complained of are unfair labor practices affecting commerce
within the meaning of Section 2(6) and (7) of the Act.
Upon the consolidated complaint and the answer of the several Respondents,
this matter came on for hearing before Wallace E. Royster, the duly designated
Trial Examiner, in Los Angeles, California, on August 5, 1957. The hearing
continued through several adjournments in Los Angeles and San Pedro , California,
until its close on January 5, 1959.
All parties were represented by counsel throughout the 63 hearing days. Briefs
from the General Counsel, the Respondent Employers , and the Respondent Union
have been received and considered . Upon the entire record in the case, and from
my observation of the witnesses , I make the following:
MV "LIBERATOR," ETC.
FINDINGS OF FACT
33
I. THE BUSINESS OF THE EMPLOYER RESPONDENTS
Throughout 1955 the coowners of the Liberator were Paul Biazevich, Dinko
Biazevich, and Coast Fisheries Division of Quaker Oats Company with Paul Biaze-
vich as master. On and after January 1, 1956, the coowners were Paul Biazevich,
Dinko Biazevich, and Jerry Kusar, with Jerry Kusar as master . At all times ma-
terial herein Liberator Respondents have been engaged in the business of deep-sea
fishing.
Until February 15, 1956, John Grgas, Nick Gargas, and John Ivans Gargas, Jr.,
were the coowners of the MV City of Los Angeles. On and after February 15, 1956,
Nick Andrich, Jr., became and was a coowner. City of Los Angeles Respondents
at all times material herein are and have been engaged in the business of deep-sea
fishing with John Grgas as managing owner and Nick Gargas as master.
Vincent Budrovich, Francis Budrovich, Emil Antonio, Nick Mezin, and Western
Boatbuilding Company, herein called Delores M. Respondents, are coowners of the
MV Delores M. At all times material herein, Delores M. Respondents have been
and are engaged in the business of deep-sea fishing with Vincent Budrovich as master
and Harvey Petrich as managing owner.
John Cvitanich and Tom Mason, herein called Sea King Respondents, are co-
owners of the MV Sea King. At all times material herein, Sea King Respondents
are and have been engaged in the business of deep-sea fishing with John Cvitanich
as managing owner and master.
Steve Gargas, Anita Gargas, Francis Trutta, Mate Trutta, and Frank S. Gargas,
herein called Columbia Respondents, are coowners of the MV Columbia. At all
times material herein, Columbia Respondents are and have been engaged in the
business of deep-sea fishing with Steve Gargas as managing owner and master.
Nick Mariicovich and South Coast Fisheries, herein called New Sea Rover Re-
spondents, are coowners of the MV New Sea Rover. At all times material herein,
New Sea Rover Respondents are and have been engaged in the business of deep-sea
fishing with Nick Marincovich as master.
Norman Mezin and Western Boatbuilding Company, herein called Western
Fisher Respondents, are coowners of the MV Western Fisher. At all times material
herein, Western Fisher Respondents are and have been engaged in the business
of deep-sea fishing with Norman Mezin as managing owner and master.
Andrew Rafkin, Jr., Matt Dragich, Peter Dragich, and Frank Kostrencich, herein
called Sea Scout Respondents, are and have been engaged in the business of deep-sea
fishing with Andrew Rafkin, Jr., as managing owner and master.
John Sestich, Dominic Picinich, Nick Mosich, Gloria Wall, and Miles Grades,
herein called Arlene S. Respondents, are coowners of the MV Arlene S. At all
times material herein, Arlene S. Respondents are and have been engaged in the
business of deep-sea fishing with John Sestich as managing owner and master.
George Stanovich, John Stanovich, Nickolas Stanovich, Carl A. Larsen, Louis
la Mont, William Suyter, and French Sardine -Co., herein called Golden West Re-
spondents, are coowners of the MV Golden West. At all'times material herein,
Golden West Respondents are and have been engaged in the business of deep-sea
fishing with John Stanovich as managing owner and master.
John Misetich in his own interest and as executor of the estate of Jakov Misetich,
deceased, Dominick Misetich, Martin Tarabochia, Anton Karmen Misetich, Charles
A. Curevich, and Mathie D. Curevich, herein called Ronnie M. Respondents, are
coowners of the MV Ronnie M. At all times material herein, Ronnie M. Respond-
ents are and have been engaged in the business of deep-sea fishing with John Misetich
as managing owner and master.
John Zorotovich, Philip Mladineo, Martin Monas, Anton Misetich, Ivan Misetich,
and Dominick Misetich, herein called Defense Respondents, are coowners of the
MV Defense. At all times material herein, Defense Respondents are and have been
engaged in the business of deep-sea fishing with John Zorotovich as managing owner
and master.
Lawrence Zuanich, John A. Zuanich, and Constants Zardeneta, herein called
Stranger Respondents, are coowners of the MV Stranger. At all times material
herein, Stranger Respondents are and have been engaged in the business of deep-
sea fishing with Lawrence Zuanich as managing owner and master.
John K. Vilicich, eiecutor of -the estate of Andrew Vilicich, deceased, is the op-
erator of the MV Marsha Ann. At all times material herein, Andrew Vilicich, owner
34 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and John K. Vilicich, executor of the estate of Andrew Vilicich, deceased, herein
called Marsha Ann Respondents, are and have been engaged in the business of
deep-sea fishing with the MV Marsha Ann.
Respondent American Tuna Committee is an association of the Respondents
named in the paragraphs immediately above, representing them in their dealings
with labor organizations.
Coast Fisheries, Division of Quaker Oats Company, herein called Coast Fish-
eries, is engaged at San Pedro, California, in the business of processing, canning,
and distributing tuna, sardines, and other fish.
Van Camp Sea Foods Company, Inc., herein called Van Camp, at San Pedro,
California, is engaged in the business of processing, canning, and distributing tuna,
sardines, and other fish.
French Sardine Company, a/k/a Star-Kist Foods, Inc., herein called Star-Kist,
at San Pedro, California, is engaged in the business of processing, canning, and
distributing tuna, sardines, and other fish.
South Coast Fisheries, Inc., herein called South Coast, at San Pedro, California,
is engaged in the business of processing , canning, and distributing tuna, sardines,
and other fish.
Each of the canneries named in the last four paragraphs above ships directly to
points located outside of the State of California canned fish valued in excess of
$100,000 annually.
Liberator Respondents in the year 1955 sold and delivered to Coast Fisheries
fresh fish valued at $101,405.27.
City of Los Angeles Respondents in the year 1955 sold and delivered to Van
Camp fresh fish valued at $148,854.31.
Delores M. Respondents in the year 1955 sold and delivered to Van Camp fresh
fish valued at $130,677.30.
Sea King Respondents in the year 1955 sold and delivered to Star-Kist fresh fish
valued at $141,444.77.
Columbia Respondents in the year 1955 sold and delivered to Van Camp fresh
fish valued at $175,707.34.
New Sea Rover Respondents in the year 1955 sold and delivered to South Coast
fresh fish valued at $67,937.30 and sold and delivered to Star-Kist fresh fish valued at
$42,195.61.
Western Fisher Respondents in the year 1955 sold and delivered to Star-Kist
fresh fish valued at $144,434.07.
Sea Scout Respondents in the year 1955 sold and delivered to Star-Kist fresh
fish valued at $118,722.02.
Arlene S. Respondents in the year 1955 sold and delivered to Van Camp fresh
fish valued at $138,842.53.
Golden West Respondents in the year 1955 sold and delivered to Star-Kist fresh
fish valued at $214,121.67.
Ronnie M. Respondents in the year 1955 sold and delivered to Star-Kist fresh
fish valued at $132,121.01.
Defense Respondents in the year 1955 sold and delivered to Star-Kist fresh fish
valued at $117,635.32.
Stranger Respondents in the year 1955 sold and delivered to Star-Kist fresh
fish valued at $154,895.35.
Marsha Ann Respondents in the year 1955 sold and delivered to Star-Kist fresh
fish valued at $139,191.80.
All the Employer Respondents herein named fish for tuna in foreign and inter-
national waters, and each Respondent annually delivers to the San Pedro canneries
above named tuna from foreign and international waters valued in excess of
$100,000.
Each of the Employer Respondents and American Tuna Committee is an em-
ployer within the meaning of Section 2(2) of the Act and at all times material
herein has been engaged in commerce within the meaning of Section 2(6) and (7)
of the Act.
IL THE LABOR ORGANIZATIONS INVOLVED
Seine and Line Fishermen 's Union of Los Angeles Harbor Area , Seafarers' Inter-
national Union of North America, AFL-CIO, herein called Seine and Line, is a labor
organization within the meaning of Section 2 (5) of the Act.
Fishermen's Union, Local 33 , ILWU, herein called Local 33 is a labor organization
within the meaning of Section 2(5) of the Act.
MV "LIBERATOR," ETC.
III. THE UNFAIR LABOR PRACTICES
- 35
In early 1955, the commercial fishing fleet with which we are here concerned was
composed of approximately 120 vessels based at San Pedro, California; 52 were
under contract with Local 33, and 68 with Seine and Line. The Local 33 work agree-
ment dated 1949 was, by reason of its terms, automatically renewed from year to
year. The agreement set forth working conditions and crew shares. Annually, or
perhaps more often if conditions required, a supplemental agreement was negotiated
setting forth the ton prices at which shares would be calculated. The supplemental
agreements remained in effect until changes were negotiated.
The year 1955 witnessed a falling in tuna prices. Masters of vessels sailing in
December 1954, in the expectation of being at sea for some time, inquired of offi-
cials of Local 33 if Local 33 would insist upon payment to crewmembers of shares
based upon the ton prices set forth III the most recent supplement in the event that
the canneries would not buy at that price. Local 33 officials told the masters that
in such a contingency every effort would be made to persuade the crews to accept
lower prices.
In February and March 1955, crews represented by Local 33 adjusted to the lower
cannery prices in making settlements for the catch but as prices continued to decline
during the summer of that year, they refused to accept further cuts. Thus the vessels
here concerned found that they had to settle with their crews on the basis of prices
substantially in excess of those at which the catch could be sold.
Beginning in July 1955, masters of vessels under contract with Local 33, laid up
their vessels in San Pedro finding it unprofitable to fish for tuna under the price
arrangement.
Delayed by a strike of workers in the San Pedro canneries, the sardine fishing season
opened about November 7 and ended, insofar as we are here interested in late
December. Some but not all of the tuna vessels had nets suitable for sardine fishing
and in consequence some of the vessels named in the caption of this report did some
sardine fishing in November and December 1955; others did not.
The 1949 agreement between the masters and owners and Local 33 was terminable
upon 60 days' notice prior to the end of any calendar year. On October 10, 1955,
such a notice of termination was served on Local 33 in behalf of the Sea Scout.
On October 26, through counsel, all of the Employer Respondents except the
Marsha Ann filed similar notices of termination effective January 1, 1956. The
Marsha Ann took the same action on the following day.
Shortly prior to October 26, all of the employer Respondents except the Marsha
Ann formed what now is known as -American Tuna Committee, each binding him-
self not to deal separately with Local 33 and constituting American Tuna Commit-
tee, herein called ATC, as their sole and exclusive bargaining representative in mat-
ters affecting their relations with crewmembers.
It appears to be the fact that all vessels fishing for tuna from San Pedro have been
and are under contract either with Local 33 or Seine and Line in respect to their
crews. It seems not to have been feasible for any master or boatowner to have as-
sembled a crew and to have engaged in fishing without first reaching some sort of
accord with the labor organization representing the crewmembers. The argument
is advanced by the Employer Respondents that the crewmembers are not employees;
that the crew and the master engage in a joint venture, the master supplying the
boat, fishing gear, and his skill; the crew supplying their labor; and all sharing in
predetermined proportion the expenses of the venture. Only when fish are caught
and marketed is any fund accumulated from which expenses may be paid and profits
realized. It happens, of course, that some voyages are unsuccessful; the catch is so
small that expenses are not covered and there is nothing to be distributed as earn-
ings or profits. Clearly there is basis for contention that the relation between
the master and the crew is that of partners. But there are countervailing factors,
among them the fact that the master selects the crew, that they serve at his pleasure,
and that he effectively directs them. Finally, the Board in a recent representation
proceeding i has found the crewmembers here involved to be employees. That de-
cision is dispositive of the issue.
But the relation between the masters and the crews gives color to and permits
understanding of the incidents occurring during the fall and winter of 1955 and
1956. The masters knew that they could expect to man their boats only with indi-
viduals who would be represented by Local 33 or Seine and Line and that they could
hope to sail and to fisb only after an agreement had been signed with one of those
organizations covering crew shares and prices to be paid for the catch. In the fall
i Kriat Gradis, et at., 121 NLRB 601.
641795-63-vol. 136-4
36 DECIbIONS OF NATIONAL LABOR RELATIONS BOARD
of 1955 boats under agreement with Seine and Line were fishing for tuna as Seine
and Line had agreed to accept the prices offered by the canneries. Boats under
agreement with Local 33 were moored in San Pedro, Local 33 not having been per-
suaded to follow the Seine and Line example.
In October 1955 when the Employer Respondents met with counsel and formed
ATC they were casting about for a means to get their boats to fishing and to bring
to a halt the losses which surely were mounting as the boats remained idle. The
first step was to terminate the bargaining agreements with Local 33. The termina-
tions were timely and effective. With the end of the year no contract remained
running between-the Employer Respondents and Local 33.
As the year bore on to a close members of Local 33 were informed by their
union that the Employer Respondents had a purpose to discharge all of them at
the end of the sardine fishing. Anthony Sokolicb, Local 33's secretary, appears
to have equated the letters of termination to withdrawals of recognition. Protesting
that the terminations were not effective, Sokolich in mid-December wrote to Carl
Gould, ATC counsel, asking for a meeting to discuss the terminations and, perhaps,
the negotiations of new contracts. Gould replied that he doubted the majority
status of Local 33 and ignored the request that he set a convenient date for meeting.
Gould took the position ( one maintained throughout the hearing by the Employer
Respondents) that crewmembers ceased to be employees when the boats ended fish-
ing for 1955. Local 33 argued that in practice the composition of crews changed
very little from year to year; that a crewmember had an expectation of continued
employment unless someone in behalf of the employer told the crewmembers other-
wise or unless he quit. This brings into focus a salient point of dispute. The 14
boats involved in this matter were for the most part owned, managed, and manned
by individuals of Yugoslav ancestry. None of the boats carried more than 12
persons including the master and some had smaller complements of personnel. By
reason of kinship, propinquity, and common language, the fishermen were gener-
ally well acquainted. Most masters knew by reputation and observation who the
good fishermen were. Most fishermen knew what vessels promised, by reason of
design, equipment, or skill of the master, the highest earnings. The Yugoslav fish-
ermen constituted in San Pedro harbor an enclave concerned with the fishing in-
dustry. I credit the.witnesses for the General Counsel to the effect that once hired
a crewmember finding his berth satisfactory and hearing no word to the contrary
from the master had an expectation of continuing to work aboard the same vessel?
As it developed, Sokolich was correct in viewing the letters of termination as
withdrawals of recognition. Relying upon the fiction that crewmembers ceased to
be employees at the termination of a season , the Employer Respondents asserted,
through Attorney Gould, that they had no employees and that, therefore, no labor
organization had status as bargaining representative. From the evidence in this
record the likelihood that Local 33 was in fact the majority representative of the
crewmembers seems great but if obligation existed on the part of the Employer
Respondents to meet with and bargain with representatives of Local 33 in 1955 or
thereafter the complaint does not so allege . Thus the refusal of the Employer Re-
spondents to meet with Local 33 in response to the latter's request cannot be and
is not here viewed as a violation of the Act.
But the refusal to bargain is a fact and need not be ignored. In a letter to At-
torney Gould in late December, counsel for Local 33 offered to show satisfactory
evidence that the crews were Local 33 members. No opportunity to make that
showing was afforded.
During the closing months of 1955, representatives of some of the Employer Re-
spondents (these incidents will be set forth in some detail later in this report) told
various crewmembers that Seine and Line would hold the contract for the crews
after January 1 and that Local 33 members would have to join Seine and Line in
order to continue their employment. I credit witnesses for the General Counsel
as to such incidents . One of the factors leading to such a resolution is the position
that the Employer Respondents fouhd themselves in at that time. They were un-
able to fish because the bargaining representative of the crews would not agree to
accept the cannery price. Vessels under contract with Seine and Line were faced
with no such problem. The disadvantage of a Local 33 contract in contrast to one
with Seine and Line was painfully manifest. Viewed simply, the price demands of
the crew constituted a cost of doing business. If a competent crew could be ob-
tained at a lesser price, commonsense demanded a change. But in , truth the Em-
ployer Respondents had no such freedom of choice. They'could try to seek agree-
ment with Local 33 and' they had before October done so without success. They
2 See N L R .B v. Waterman Steamship Corporation, 309 U S. 206.
MV "LIBERATOR," ETC. , 37
could offer the cannery price and take along any competent person who was willing
to go. The second alternative was chimerical and probably was not even considered.
Local 33 members would not fish without a contract; nor would members of Seine
and Line. The Employer Respondents would have been astounded had it been
otherwise.
With few exceptions the Employer Respondents were content with the crews as
they existed when fishing for 1955 ceased. Except as to an individual here or there
each employer would have been pleased to continue into 1956 with ,the same crew
but he knew that he could not do so profitably unless his crew would agree to fish
for the cannery price.
In early November Local 33 offered to let its members fish at the current prices
provided employers would guarantee that boats be unloaded within 10 days after
arrival in port. The Employer Respondents never responded to this proposal.
A letter from Attorney Gould to Local 33 dated December 28, mentions that
Seine and Line claimed the right to represent crews hired by the Employer Re-
spondents. Such a claim could not have had substance in that on that date few
new crewmembers had been hired.
Because the Employer Respondents had terminated the agreements as they existed
in 1955 because it appeared that no opportunity to bargain for new agreements was
to be afforded, and to force the Employer Respondents to continue the bargaining
relationship and the continued employment of the 1955 crews, Local 33 began
picketing the vessels owned by the Employer Respondents on December 27 and
continued to do so until a prohibitory injunction issued against it from a California
court in early January.
On or about December 27, upon advice from Attorney Gould, the Employer Re-
spondents (with exceptions later to be noted) sent to each member of the 1955
crews registered letters reading:
Since the season ends December 31, 1955, and because I do not know if you
will be a member of the crew for the season commencing January 1, 1956,
please see to it that your personal belongings that you may have aboard are not
on the boat after midnight December 31, 1955.
If you do not remove your personal possessions I shall not be responsible
for them after January 1, 1956.
Crewmembers customarily left some clothing aboard the boats between voyages
and ordinarily did not remove them until certain that they would not be making the
next trip. Anyone quitting a boat would naturally remove his belongings. The
General Counsel argues that a direction to remove is tantamount to a discharge.
Witnesses for the Employer Respondents testified that they were following the
advice of their attorney and that they feared, upon such advice, that the 1955 crews
would have an employment contract for 1956 if such a direction was not given.
The wording of the notice constitutes an accurate description of the situation as
it existed in late December. In fact the Employer Respondents did not know if
their old crews were to sail again with them. Evidence that some of these employers
were willing and eager to reship their old crews abounds. So does evidence that the
crewmembers would not then sail without the protection of a contract between the
Employer Respondents and Local 33. As the crews were forming in early January,
members of Local 33 would not go through the picket line then being maintained
by their union.
As the contract between Local 33 and the Employer Respondents contained a
no-strike clause, it is argued that the picketing which began on December 27, before
the end of the contract term, was in violation of that clause, that Local 33 was en-
gaging in an unlawful strike, and that the strikers thus lost status as employees.
This concept deriving from Section 8(d) of the Act postulates an obligation to
bargain on the part of the offending union and is designed to implement Section
8(b)(3) of the Act. There is no allegation in the complaint that Local 33 was
under a duty to bargain with the Respondent Employers or vice versa. I find no
merit in this contention .3
In late December and early January the Employer, Respondents began hiring
crews for the 1956 season. Only a few of those who had sailed with them in 1955
under a Local 33 contract were formally and explicitly offered a "chance" for 1956.
In other years masters merely notified their old crews to prepare to fish. Now, even
before the picketing began, some of the Employer Respondents sought new crew-
members. This did not result from any dissatisfaction with the old crews but rather
9 See also Wakefield's Deep Sea Trawlers, Inc., and Wakefield Fisheries , Inc., 112
NLRB 1357.
38 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
from a conviction that the old crews would not sail unless agreement was reached
with Local 33. The clothes letters, I find, were intended to signal the end of the
employment relation and to leave the employers free to make whatever arrange-
ments proved feasible for the oncoming season.
And so it remained. The employers set about hiring their crews. Local 33 main-
tained its position, insisting that the employers renew the terminated contracts and
that only Local 33 members be hired. By some date in February all the vessels had
left San Pedro for the fishing grounds. On March 29, 1956, Local 33 released its
members to fish on any vessel and under any conditions they found it necessary to
accept.
Having unlawfully discharged their crews in late December, the Employer Re-
spondents were of course thereafter bound to offer reinstatement. But no offers of
that precise nature were made. True it is that some individuals among those com-
prising the 1955 crews were urged to fish and that such offers were uniformly re-
jected. The reasons for rejection were articulated variously by the individuals so
approached. All were firm in one respect. They would not fish without the ap-
proval of Local 33. This reason by its nature had to and did include objection to
accepting Seine and Line as bargaining agent. Some mentioned their reluctance or
unwillingness to join another labor organization. In no circumstance after January 4
was any one of the employers free to make a nondiscriminatory offer of reinstate-
ment or even employment. They were disabled in that respect by the contract with
Seine and Line. They are in no better situation today.
Now it is true that at no time prior to March 29, 1956, could the Employers have
persuaded members of Local 33 to fish without capitulating to the demands of
Local 33. This they were in no respect required to do. It is accurate, I think, to
say that the employers until Local 33 freed its members to do so could not have
hired most of those in the crews that were discharged in late December. Had the
employers not enmeshed themselves in an unlawful contract with Seine and Line,
they could have made _ valid offers of reinstatement at any time and, upon refusal,
hired premanent replacements. But, as has been seen, they have never been in a
situation where, while honoring their contract commitments to Seine and Line,
valid offers could be made. It follows then, and I find, that no valid offers of rein-
statement or of employment have been made to any of the individuals comprising
the discharged crews and that those hired in their stead are not replacements. Know-
ing that they could not assemble crews of reasonable competence except from the
pool of fishermen who were members of Local 33 or of Seine and Line, aware that
they could not sail with any crew without first entering into a contract with one of
those organizations , and seemingly convinced that their economic interests required
them to deal no longer with Local 33, the Employer Respondents at the end of 1955
cleared the decks for the new season by telling the 1955 crews that their employ-
ment in 1956 was uncertain. They were willing enough to go along with the old
crews, indeed, eager to do so, but not if that meant a contract with Local 33. And
they believed, correctly I think, that it did.
So, where to turn? Not, surprisingly, to Seine and Line. Some of the Employer
Respondents with their counsel , Carl Gould, met on January 3 with John Calise, a
representative of Seine and Line. One of their number, Dominic Misetich, under-
took to obtain a list of those who would comprise the 1956 crews and submit it to
Calise. Later that day he did so. That evening, claiming that Seine and Line repre-
sented a majority of the crew members, Calise offered a form of contract for signa-
ture. In the early hours of January 4 some of the individual Employer Respondents
signed. Gould signed for ATC. Seine and Line was not the majority representative
of crewmembers on any of the vessels at that time.
The contract required membership in Seine and Line as a condition of employ-
ment 30 days after hire and, seemingly as an alternative , required nonmembers to
pay "support money" to Seine and Line in amounts equaling dues, assessments, and
other contributions exacted of members. A further provision, clearly affecting non-
members, but not so surely applicable to members , conditions continued employ-
ment upon the execution of a checkoff authorization permitting the master to with-
hold from a crewmember's earnings all sums due Seine and Line.
The Golden West and the Stranger sailed for Peruvian waters on January 4 with-
out crews. The masters or owners of neither boat signed the Seine and Line agreement
on January 4. The Golden West returned to San Pedro in June 1956. The Stranger
remained in South American waters and was lost at sea in 1958.
The working agreements between the Employer Respondents and Local 33-the
agreements which the employers terminated at the expiration of 1955-required as a
condition of employment that crewmembers either be members of or pay dues to
Local 33. In that no 30-day period after employment was permitted to bring about
MV "LIBERATOR,"' ETC. 39
compliance with that condition, the agreements failed to meet the requirements of
Section 8(a)(3) of the Act. The picketing by Local`33 beginning on December 27,
1955, had as one purpose that of forcing the Employer Respondents to renew the
working agreements. Witnesses for the General Counsel who were members of
Local 33 at that time testified that they would not accept employment on the vessels
operated by the Employer Respondents unless an agreement was reached with
Local 33. I find as a fact that the Employer Respondents could not have recruited
crews from among members of Local 33 without first reaching agreement with that
organization. Instances in which job offers were made to individual Local 33
members and rejected will be detailed. On January 16, Anthony Sokolich, Local
33's secretary, wrote to Attorney Gould that members of Local 33 would sail on
vessels of the Employer Respondents if:
1. All members of the crew were members of Local 33.
2. Members of the 1955 crews were given preference for hire.
3. The 1955 agreement was renewed.
Except on the conditions recited members of Local 33 were not available for em-
ployment. Obviously the Employer Respondents could not have accepted the con-
ditions without violating the Act. Just as obviously, it was not the fear of a vio-
lation which held the employers back from compliance with these terms. They
were eager to get about their business; to get their vessels manned and out to where
the fish were to be found. They had found Local 33 unsympathetic to their eco-
nomic plight in contrast to the attitude of Seine and Line. So they signed contracts
with Seine and Line, recognized that organization as the bargaining representative
of crews still largely to be hired, and required crewmembers to become members of
or to pay dues to Seine and Line. This was a violation of the Act that they could
commit without great compunction, for it served to solve, seemingly at least, the
very practical problem of how to get on to fishing with some promise of eventual
profit.
The Seine and Line contracts were unlawful in execution and enforcement. That
organization was not at any time material the bargaining representative of the crews.
From the moment of execution the Seine and Line contracts required crewmembers
to accept as a condition of continued employment the unlawful condition that they
become members of or pay dues to Seine and Line
As members of Local 33 were unwilling to fish in early 1956 unless the Employer
Respondents would come to terms with Local 33 and as "coming to terms" meant the
renewal of an agreement containing provisions repugnant to the Act, the employers
were free to hire their crews where and how they could, permanently replacing those
of the 1955 crews who would not sail under any lawful conditions imposed by the
employers. But the conditions imposed were not lawful. First, the 1956 crews were
obliged to accept a bargaining representative chosen for them by their employer.
Second, they were required as a condition of continued employment either to become
members of or to pay dues to that assisted organization
The argument in support of the complaint is that the 1955 crews were discharged
in late December in order that the employers need no longer deal with Local 33 The
employers had reason to believe, and surely did so, that the 1955 crews would not
fish until and unless agreement was reached with Local 33 The letters telling crew-
members to remove their belongings from the boats evidences that agreement with
Local 33 would not be sought and was not desired. They also told the recipients
that the employers would not, as in the past, assume a continuing employment
relationship. At least to the extent that the crewmembers to whom the letters were
addressed could no longer plan with assurance upon fishing in 1956 on the same
boat as in 1955, the letters amounted to discharges The employment relation was
changed. It is important of course to decide why this was done Except for reasons
forbidden by the Act the employers were wholly free to select their crews. Because
a crewmember had fished on a vessel in 1955 he was not clothed with a right to fill
the same berth in 1956. But he did have a right to have his employment in the
latter year unaffected by any preference he may have held in regard to a bargaining
representative. I consider it to be manifest almost beyond argument that the letters
were sent in order to brine to an end whatever employment relation existed between
the employers and the 1955 crews and that this termination was motivated by the
determination of the employers no longer to deal with Local 33. Although under
the allegations of this complaint, no finding can be made that the employers were
under any sort of duty to deal with Local 33 it does not follow that they could law-
fully terminate their crews in aid of a design to avoid a necessity to deal with that
organization. I find that the letters referred to were designed to accomplish the dis-
charge of the 1955 crewmembers because they were adherents of Local 33. The
discharges were unlawful and in violation of Section 8(a) (1) and (3) of the Act.
40 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Determined as they were to have no contract with Local 33, the employers none-
theless were willing and, indeed, eager to retain some individuals from their 1955
crews. But on and after January 4, 1956, any offer of employment was necessarily
conditioned upon acceptance by the crewmember of Seine and Line as bargaining
representative and entailed the requirement that dues or the equivalent be paid to
Seine and Line. Local 33 members were not available for employment on those
terms. The policy of Local 33 was "No contract, no work."
Because those individual members of the 1955 crews, who will later be identified
as those discharged in late December and not since unconditionally offered reinstate-
ment or employment, were not available for employment from the inception of the
picketing on December 27, 1955, to March 29, 1956, they lost no earnings during that
period. It seems to be true that the decision of Local 33 on March 29 to free its
members to fish wherever opportunity came was not communicated to the employers.
I consider this to be an irrelevancy. The employers were under a continuing obliga-
tion to remedy their unfair labor practices; to seek out and offer unconditional rein-
statement to those they had unlawfully discharged. This they never have done.
That such offers may have been rejected even after March 29, or that the employers
may not have known of the change of position on the part of Local 33, avails them,
nothing. They have yet to offer reinstatement or reemployment to any of those dis-
charged unaccompanied by the condition of Seine and Line representation and the
requirement to pay dues to that organization.
As, for the most part, the 1955 crews were terminated on or about December 31,
1955, for discriminatory reasons, the individuals affected retained their employment
relation to the employers. As those unlawfully terminated constituted a majority of
the crewmembers in the ATC unit, as they were not members of Seine and Line and
had not designated Seine and Line as bargaining representative, it follows that Seine
and Line did not represent a majority of the crewmembers in the ATC unit when the
contracts were signed on January 4, 1956. As will appear, even if the discharges of
the 1955 crews had not been unlawful, Seine and Line on January 4, 1956, did not
represent a majority in the ATC unit for the reason that the employers had not on that
date hired more than a few of those who would comprise the 1956 crews.
Evidence and findings in respect to each of the several Employer Respondents
follows under the heading of the vessel involved.
New Sea Rover
Nick Marincovich became master of the New Sea Rover in 1950 and was still in
that status at the time he testified. With Marincovich and a crew of 11 the boat
ceased fishing for 1955 on July 23 because of the price difficulty. Marincovich told
his crew that he would call them when they were needed Sometime in December
some of the crew assisted Marincovich in removing a portion of the last catch from
storage to a cannery.
In October Marincovich joined the group which later became known as ATC and
empowered Attorney Gould to terminate his contract with Local 33
The complaint alleges that Marincovich on or about December 26, 1955, dis-
charged Vince Beato, Nade Bozin, Jack Tudor, Mike Mavar, and Thomas Barcot
because of their membership in and activity in behalf of Local 33 Each of those
named was at all times material a member of that organization It is further alleged
that on or about December 23, 1955, Marincovich warned employees that he would
deal only with Seine and Line after January 1 and that after that date he refused to
hire any of his discharged employees except upon condition that they join Seine and
Line
On December 29, 1955, after the date when Local 33 pickets appeared at his boat
and those of others comprising the ATC, Marincovich sent a letter to each member
of his 1955 crew asking that personal belongings be removed from the vessel and
saying that he was uncertain whether the addressee would be a member of the crew
for the oncoming season In late December and early January but before January 3,
according to Marincovich. he promised iobs aboard the vessel to six individuals,
none of whom had fished for him or with him before. Of the six only four fished on
the Nrw Sea Rover when it left San Pedro in February 1956 Marincovich he testi-
fied. did not know the union affiliation of any of the six to whom he promised jobs.
On January 4 he signed a contract with Seine and Line recognizing that organization
as the bargaining representative of his crew and agreeing that crewmembers become
members of or pay dues to Seine and Line 30 days after hire as a condition of
emplovment.
On January 3. Marincovich eave a list of names to Dominic Misetich, a partner
on me of the ATC vessels. In his testimony Marincovich said that he could not
recall how many names were on that list. I assume that he did not list anyone to
MV "LIBERATOR," ETC. 41
whom he had not promised a job so that he could have named no more than six.
No more than 4 of these actually became members of the crew so that if all 4 were
members of Seine and Line (and there is no evidence to that effect) they did
not constitute a majority of the crew of 10 which eventually sailed in February.
Marincovich testified that he was satisfied with his 1955 crew and that it was
generally assumed that crewmembers would be continued in their jobs from year to
year unless there was dissatisfaction on the part of the employer or the crewmember.
Marincovich could not explain why the clothes letter was sent to the members of
his 1955 crew. He had said in the summer of 1955 that he would call the crew when
he wanted them but not until he had hired several new men did he make an attempt
to get any of the 1955 crew to return. About the middle of January 1956 he tele-
phoned Thomas Barcot, a member of the 1955 crew, and asked him to fish. Barcot
said that he would have to consult Local 33 and after doing so told Marincovich
that upon the advice of Local 33 he would not go. According to Barcot, Marin-
covich said upon the occasion of the first conversation that he was "over in the
other union." Marincovich denied that he made such a remark. It is unnecessary
to resolve this conflict. Marincovich had by that date signed the Seine and Line
agreement, it was no :secret that he had done so, and Barcot would not fish except
with the approval of Local 33.
When the New Sea Rover began fishing in February, 8 of the crew of 10 had not
been of the crew at the end of the 1955 season. Two, Jack Marincovich and John
Kostranich, had been crewmembers at earlier times.
I find that Marincovich discharged his 1955 crew in order to avoid aealing with
Local 33. Because of this discriminatory motivation the discharges were unlawful.
Local 33 in early 1956 claimed to be the bargaining representative of his crew; so
did Seine and Line. Neither supplied evidence in support of the claim but Local
33 offered to do so. It is hornbook law that in such a situation an employer may not
accept the naked claim of either and if he does so not alone unlawfully assists
the favored union but interferes with the freedom of choice of his employees.4
By extending recognition to Seine and Line in the circumstances given the Respond-
ents owning and operating the New Sea Rover contributed support to Seine and
Line within the meaning of Section 8(a)(2) of the Act. By contracting with Seine
and Line to impose a checkoff arrangement upon employees for the collection of
amounts due to Seine and Line and by withholding and remitting such amounts
to Seine and Line, these Respondents contributed financial support to Seine and
Line in violation of Section 8(a) (2) of the Act.
As has been said, the contract of January 4, 1956, required membership in or the
payment of dues to Seine and Line as a condition of employment. Such a contract
arrangement between a labor organization and an employer find approval in the
Act only if the labor organization is one not assisted by the employer and is in fact
the majority representative of the employees in the bargaining unit. These condi-
tions constitute affirmative defenses to an allegation that the membership or dues
payment requirement is discriminatory and the burden to establish their existence
is upon the employer. Here, as has been seen, Seine and Line was a labor organi-
zation assisted by the Respondents and there is no evidence that Seine and Line
on January 4 was in fact the majority representative of orewmembers in any bargain-
ing unit. The January 4 contract is therefore unlawful and by its execution and
enforcement the New Sea Rover Respondents have interfered with, restrained, and
coerced their employees within the meaning of Section 8(a) (1) of the Act and have
discriminated in regard to hire and tenure of employment to encourage membership
in Seine and Line in violation of Section 8(a) (3) of the Act.
Defense
The Defense in 1955 carried a crew of 12 including the master, John Zorotovich,
and two of his partners, Philip Mladineo and Martin Monsaas. The nine remaining
were members of Local 33. Because of the price dispute the Defense ceased fishing
in July 1955 and remained idle for the rest of the year. In July Zorotovich was hope-
ful that some agreement on price would be reached and that fishing would again
become economically feasible. By November this hope had vanished and the
crew was told that there would be no more fishing that year. In October Zorotovich
joined what became known as ATC, authorized Attorney Gould to terminate the
contract with Local 33, and signed the mutual assistance pact.
Ferdinand Granich, who became a member of the Defense crew in 1948 and
remained so, except for a year interlude, through 1955, testified that on December
4 See Novak Logging Company , 119 NLRB 1573, 1574
42 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
24, 1955 , Zorotovich told him that a letter was on its way to Granich telling him
to remove his belongings from the boat . Granich asked if Zorotovich was going over
to the "other union ." Zorotovich answered that he was. In early January , Granich
asked Zorotovich what his plans were for the year ahead, explaining that he wanted
to look for other employment if that was necessary . Zorotovich asked if Granich
wanted to fish on the Defense. Granich answered that he did . Zorotovich then
explained that Seine and Line was forming a "B " union in which Gramch might ob-
tain membership and thus clear himself for employment on the Defense . Granich
objected that he was content with Local 33. A short time later in a coffeeshop in
the presence of other fishermen , Zorotovich remarked that he preferred to have a
crew comprised of Slav fishermen ; "they're my own people."
James Mirkovich came aboard the Defense in the fall of 1954 and fished during the
1955 season . A member of Local 33 since 1935, Mirkovich testified that Local 33
was composed chiefly of Slavs and that members of other ancestry were usually
cooks or engineers . Sometime in the fall of 1955 , after the Defense had ceased fishing
for the year , Zorotovich told Mirkovich , the latter testified, that he belonged to a
group that had broken away from Local 33; that Seine and Line would be the
bargaining agent for the crews . Mirkovich asked what effect the change would
have on his employment . Zorotovich answered that he did not know, observed
that he would like to have the 1955 crew back with him, and suggested that they
could get some sort of "probationary " membership in Seine and Line. On a still
later occasion near Christmas , Mirkovich again sought to learn of Zorotovich what
the new year would bring . Zorotovich again said that he would like to have his old
crew back if they could make the necessary arrangements with Seine and Line
and suggested that Mirkovich see John Calise of that organization. Mirkovich
answered that he could not make a decision at that moment.
George J. Bush was hired for work on the Defense in July 1954 and worked until
the end of fishing by that vessel in 1955. About Christmas time in 1955 Zoro-
tovich telephoned Bush telling the latter that he would receive a letter asking him
to take his clothes off the boat and saying that Bush could continue as a crewmember
if he joined a Seine and Line "B" union . Bush answered that he did not know if
he could do that . Bush wasthen and had been since 1948 a member of Local 33.
Sometime in 1957 Zorotovich offered Bush employment on the Defense and told
Bush that it would be necessary for him to see John Calise to "sign up." Bush
consulted an official of Local 33 in the matter, learned that Local 33 had no ob-
jection to his accepting the employment , but nonetheless refused the offer telling
Zorotovich that he would like to fish with him after the union dispute had ended.
Tony Marincovich was a crewmember on the Defense continuously from 1951 to
the end of the 1955 season . A day or two before Christmas in 1955 Zorotovich told
him, Marincovich testified , that he was terminating his contract with Local 33 and
dealing with another union . Zorotovich said that he would like to have Marincovich
in his crew but could not do so unless Marincovich joined Seine and Line. Marin-
covich replied that he had been a member of Local 33 too long to do such a thing.
Vido Druskovich made but one trip on the Defense , the last one in 1955. Late
in the year he 'asked Zorotovich what "was happening." Zorotovich replied that
he did not know. Druskovich then said that he had heard it said that the Defense
was "going into another union." Zorotovich said that he had beard nothing of
that. In February 1956, shortly before sailing on his first trip for that year, Zoro-
tovich telephoned Druskovich offering him a chance to come along . After con-
sultation with an official of Local 33 in which be learned that his union opposed
an acceptance of this offer, Druskovich refused it . Another opportunity came in
late March . Druskovich delayed giving a final answer while Local 33 considered
whether it should change its position in regard to letting its members sail on vessels
oper-ted by ATC members . When on March 29, Local 33 decided that it would
no longer discourage such employment, Zorotovich had filled his crew vacancies
and no job remained for Druskovich . In October 1956, Druskovich returned to work
on the Defense and was still of its crew at the time of the hearing . Since some
date in February 1957 he has been paying dues to Seine and Line by means of
deductions made by Zorotovich from his share of the catch.
John Carpenter was hired as a member of the Defense crew in March 1955 and
worked until the vessel tied up in July of that year. In September he took an oppor-
tunity to fish for sardines on another boat. Consulting Zorotovich in this matter,
he was told that it was all right just -so Carpenter held himself ready to sail when
the Defense was ready to leave. On December 24 (the record mistakenly reads
September 24) Zorotovich told Carpenter that he would receive a letter asking
,dim to take his belongings off the Defense; that the letter was a device of a lawyer;
MV "LIBERATOR," ETC. 43
and that an attempt was being made to fashion some sort of arrangement with
Seine and Line so that Carpenter could continue as a crewmember. Carpenter
answered that he would have to consult with Local 33. Carpenter has had no
communication with Zorotovich since except to receive the letter mentioned in the
last conversation.
Antone Gaspar was the cook on the Defense from 1952 until July 1955. In
November 1955 when Zorotovich told the crew that he would not go out again Gaspar
got other employment ashore. About December 29, according to Gaspar, Zoroto-
vich telephoned and asked Gaspar to be a member of the 1956 crew adding that
Gaspar would have to join a Seine and Line "B" union. Gaspar refused saying
that he wanted to stay in Local 33. Again in March Zorotovich telephoned to
offer employment. Gaspar said that he intended to stay with Local 33 and not
to join any other union.
George Kirchenschlager,first sailed on the Defense in January 1954 and remained
a crewmember through 1955. He joined Local 33 in 1947. In late November or
early December 1955, according to Kirchenschlager, he asked Zorotovich what lay
in the future. Zorotovich replied that "he couldn't meet the price," that Kirchen-
schlager wanted to fish he would have to get a "B" card in Seine and Line. Kirchen-
schlager answered that his action would be determined by what Local 33 agreed to.
On December 30 or 31, 1955, learning from other crewmembers of the requirement
that he remove his clothing from the Defense, Kirchenschlager telephoned Zorotovich
to discover what his status might -be. Zorotovich said that he was going to fish under
a contract wiht Seine and Line and that if Kirchenschlager wanted to come along
he would have to make arrangement with Seine and Line. Kirchenschlager said
that he would do what Local 33 permitted. In March 1956, Zorotovich offered
him another chance on the Defense saying that Local 33 now had no objection.
Kirchenschlager refused saying that he had other employment. At the beginning
of 1956, according to Kirchenschlager, he had no plan except to fish on the Defense
but in late March an opportunity which might lead to steady work as a longshoreman
was developing. This caused him to refuse the March offer from Zorotovich. In
1957 he made one trip on the Defense. The record does not suggest that he could
not then have continued aboard that vessel had he desired to do so.
Jerry'J. Marincovich came aboard the Defense in October 1954 and remained
through the 1955 season. In late December 1955 Zorotovich phoned Marincovich
saying that a letter was being mailed relative to removing his clothes from the vessel
and that Marincovich would have to join Seine and Line in order to fish on the
Defense. Marincovich expressed doubt that Local 33 would permit him to fish
under such conditions and said that he would notify Zorotovich after consultation
with Local 33. Approval was not forthcoming from Local 33 and Marincovich did
not accept employment under the condition imposed by Zorotovich.
John Zorotovich, the master and part owner of the Defense, testified that he
joined with other boatowners and masters in the fall of 1955 to follow the advice
of Attorney Gould in an attempt to reach some sort of arrangement that would
permit fishing on a basis that might be profitable. The price requirements of Local
33 in 1955 could not be met. Thus he went along with the decision to terminate the
contract with Local 33 and to require members of the 1955 crew to remove their
possessions from the Defense. Zorotovich asserted that he did not intend to dis-
charge any crewmember and agreed that he was satisfied with the crew. Zorotovich
conceded that in conversations with crewmembers in the fall of 1955 he mentioned
that there seemed to be a possibility that Seine and Line would be the bargaining
representative in 1956; said that he had heard of the formation of a "B" union in
that organization; and suggested that the crewmembers go to Seine and Line to
learn what was going on in that connection. On January 3, 1956, Zorotovich gave
a list of crewmembers to his partner, Dominic Misetich, but could not recall how
many names were on the list. Zorotovich did not begin hiring for 1956 until after
December 29, 1955, and did not sail until February 4, 1956. He could not recall
in his testimony who had been hired, if indeed anyone, before he signed the Seine
and Line contract on January 4, 1956. The crew that sailed with him on Febru-
ary 4 seems to have been woefully inadequate. At the conclusion of one trip Zoro-
tovich discharged them. He testified: "I did not keep the crew after the first trip. I
couldn't. Either I had to get off the boat or I had to replace the crew. I mean there
was no choice."
The sum of Zorotovich's testimony is an admission of the allegations of the com-
plaint as to the Defense Respondents. He could not fish with profit under the price
arrangement with Local 33 as it existed in 1955. • He despaired as did the other ATC
Respondents of gaining 'an acceptable contract from Local 33 and placed his problem
in the hands of Attorney Gould for solution. Zorotovich followed the advice of
44 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
his counsel in an unquestioning fashion asking only that some accord be reached that
would permit him to fish with hope of profit. He had no desire to rid himself of the
1955 crew. On the contrary he desired to keep that group as its members had
proved their proficiency as fishermen and apparently constituted a congenial as-
semblage. The latter consideration was important. The Defense was often at sea
for several weeks and the crewmembers both lived and worked together for such
periods.
I credit the testimony of the crewmembers of the Defense as set forth above. I
think that the testimony of Zorotovich does not in any substantial way deny the
remarks or conduct so attributed to him.
I find that Granich, Mirkovich, Bush, Tony Marincovich, Druskovich, Carpenter,
Gaspar, Kirchenschlager, and Jerry J. Marincovich were discharged by Zorotovich
on or about December 28, 1955, in furtherance of a plan to avoid entering into any
sort of collectiveibargaining agreement with Local 33 and to deprive Local 33 of
any claim of right to represent members of the crew of the Defense. Of course
the discharges discouraged -membership in Local 33 and thus constituted violations
of Section 8(a) (3) of the Act.
By telling members of the 1955 crew that employment in 1956 would be condi-
tioned upon membership in Seine and Line, or a "B" union or "another union," and
by discharging the 1955 crew in the circumstances given, the Defense Respondents
have interfered with, restrained, and coerced their employees in the exercise of rights
guaranteed in Section 7 of the Act, and have thereby violated Section 8 (a) (1) of the
Act.
By signing the Seine and Line agreement on January 4, 1956, and thereafter giv-
ing effect to it, the Defense Respondents assisted that organization and contributed
financial support to it in violation of Section 8(a) (2) and (1) of the Act.
Marsha Ann
'Until his death on April 24, 1956, Andrew Vilicich managed the affairs of the
Marsha Ann with the assistance of his son John. Although on more than one oc-
casion in years past Vilicich had terminated his agreement with Local 33, for the
year 1955 he was party with Local. 33 to the same agreement as the other vessels
with which this report is concerned. On October 27, 1955, Vilicich sent a letter of
termination to Local 33. He did not then however join the ATC which was forming
or retain the services of Attorney Gould. About December 29, 1955, following the
example of other ATC boatowners, he sent letters to members of the 1955 crew re-
questing that they remove their belongings from the vessel.
The master in charge of the Marsha Ann at the beginning of 1955, Vincent
Yelusich, quit in June or July of that year and Anthony J. Vidovich, a crewmember
but one with some experience as a master , was given command for the last tuna trip
of 1955. Under instruction from John Vilicich, Vidovich told the crew before sail-
ing that their employment was for one trip only. The last trip ended in early Sep-
tember but a cannery strike delayed unloading until late November. While waiting
to unload the crewmembers stood watches or employed others to do so.
Anthony Vidovich testified that in the fall of 1955, John Vilicich told him that
he had terminated the Local 33 contract and at the beginning of the new year would
deal with the "other" union. He assured Vidovich that the latter's job would not
be affected.
In late December 1955, Vidovich and John Razevich, who had been hired as a
crewmember for one trip in July 1955, were aboard the Marsha Ann doing some
repair or maintenance work on an hourly pay basis when Local 33 pickets appeared.
Both Vidovich and Razevich stopped working and left the vessel.
As the end of 1955 approached, Vilicich was uncertain as to who he might hire
as master for the coming year. Late in December or in early January, Vilicich ar-
ranged with one Mate Trutta to take over command of the vessel intending that
Vidovich remain aboard as wheelman. Trutta did not testify. Andrew Vilicich
died before the hearing opened. John Vilicich testified that Trutta in early January
had assembled eight crewmen for 1956. None of these were from the 1955 crew.
But Trutta soon discovered that other commitments did not permit him to take the
job and Vidovich was asked by Andrew Vilicich to remain as master. On the
occasion of this offer, according to Vidovich, Andrew Vilicich handed him a list of
eight persons as those who would, in part, comprise the 1956 crew. Vidovich asked,
he testified, if he might not retain some of the good men from the 1955 crew and
was told that Vilicich wanted no Local 33 members on the boat. Vidovich tenta-
tively accepted the job but seems not to have greatly desired it for almost immedi-
ately cast about for a similar post on another vessel and ultimately found one.
Joseph Vilicich, a relative of Andrew and John , sailed as master when the Marsha
MV "LIBERATOR," ETC. 45
Ann left San Pedro on February 7, 1956. None of the crew had been aboard the
vessel in 1955 and only one or two of those allegedly hired by Trutta went along.
Sometime in early January, on or before January 8, John Vilicich signed the
agreement with Seine and Line which already bore the signatures of other Employer
Respondents . On January 4, Vilicich joined in an action with the other Employer
Respondents to restrain picketing by Local 33. Joseph Vilicich upon becoming
master selected his own crew. There is no evidence that Seine and Line ever repre-
sented to any Vilicich that it represented a majority of any crew of the Marsha Ann.
The complaint alleges that James Kaseroff and Christ Lisica of the 1955 crew were
discharged on or about December 26, 1955, because of their membership in or
activity in behalf of Local 33. Both were Local 33 members. Lisica was hired in
July 1955 for one trip but still could have had an expectation of going along on the
1956 trips. He testified, however, that he did not go back on the Marsha Ann be-
cause Vidovich quit. Kaseroff who was hired in 1954 testified that he just waited to
be recalled for 1956 and was not.
I find that the letters of December 29 to remove clothes from the vessel consti-
tuted discharges of those to whom they were addressed who at the time of receipt
were employees of Vilicich. I conclude under the evidence here that Lisica was not
in that category. Although he testified that Vidovich did not tell him that his em-
ployment was limited to the last tuna trip in 1955, I thing that' the testimony of
Vidovich must be credited on this point. The owners of the Marsha Ann in the
summer of 1955 were uncommitted to the hire of Vidovich on any permanent basis
and it is probable that he was instructed as both he and John Vilicich said that he,
was to tell the crew not to expect employment for more than one trip. I find that
the employment of the crew of the Marsha Ann ended when the catch was unloaded
in November or December 1955 and that the letters to those individuals in late
December had no effect on their employment. It remains true, however, that the
letters were a part of a design to rid the Marsha Ann of Local 33 members to insure
that no obligation to bargain with Local 33 would devolve upon the owners
The situation of Kaseroff is, I think, distinguishable from that of the rest of the
crew. He testified that he was hired in the latter part of 1954 with the understand-
ing that he could stay as long as be desired. I think it apparent enough from his
testimony that no express promise to that effect was made by Andrew Vilicich on the
occasion of his hire, but I have no doubt that Kaseroff thought that he had taken
employment of indefinite tenure. Thus I credit his testimony that he was not told
in the summer of 1955 by the skipper, Vidovich, or anyone else in behalf of the
Marsha Ann Respondents that his employment would end with the completion of
the last tuna trip. I have the impression gained from this record that unlike deck-
hands, engineers are more frequently chosen by the owners of the vessels rather
than by the skippers and that they look more directly to the owners as their em-
ployer than to the skipper. I credit Kaseroff's testimony that he expected to con-
tinue aboard the Marsha Ann and in late 1955 awaited recall. The clothes letter in
late December of course told him that he was discharged. John Vilicich testified to
some dissatisfaction with Kaseroff and Steve Vilicich said that he was not a satis-
factory engineer. The basis for this evaluation is alleged to be the failure of Kaseroff
to make some machinery or equipment repairs during the last voyage of 1955. But
it is significant that Kaseroff was not discharged until the clothes letter was sent in
late December. John Vilicich testified that he sent the letter because he was advised
that the other Employer Respondents were doing so upon advice of their counsel.
Vilicich said that when he sent the letters he had reached no decision on whether
he would keep the members of his 1955 crew thus it seems evident that the employ-
ment of Kaseroff for 1956 was still in contemplation until the letters were sent. ,
The letters, as has been found, were an implementation of a design to rid the
Employer Respondents of crews having Local 33 as a bargaining representative. I
find that the Marsha Ann Respondents were party to this plan and that the letter
sent to Kaseroff was intended as a discharge. It may be true, as John Vilicich testi-
fied, that he thought Kaseroff to be a member of a union other than Local 33. In
fact Kaseroff, according to his testimony, was a member of three unions, among them
Local 33 This circumstance, I find, is immaterial. Given the purpose of the clothes
letter as found, the fact that it accomplished the discharge of one or several who
were not members or not believed to be members of Local 33 provides no defense
to the Respondents.
Both John and Steve Vilicich testified that they were present on occasions when
Vidovich spoke with Andrew Vilicich in January 1956 and that they did not re-
member any direction from their father that members of Local 33 not be hired.
As the Marsha Ann Respondents were attempting to rid themselves of any obli-
gation to deal with Local 33 and as they had discharged at least one of the 1955
46 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
crew in furtherance of the attempt, the likelihood that Andrew Vilicich gave such a
direction to Vidovich is great, particularly when this was done in connection with
the suggestion of Vidovich that he rehire some of the old crew. I credit Vidovich
on this point. '
I find that the Marsha Ann Respondents discharged James Kaseroff in aid of a
plan to deprive Local 33 of representative status thus discouraging membership in
Local 33 and that Marsha Ann Respondents thereby violated Section 8(a)(3) of
the Act..
Although it appears that some individuals were being considered for employment
before January 8, 1956, there is no competent evidence that any crew had been hired
before that date. It follows that the contract signed on January 8 by the Marsha
Ann Respondents with Seine and Line was not with a majority representative of the
. rew for no crew had been assembled. By extending recognition to and contracting
with Seine and Line in the circumstances given and by giving effect to the contract,
the Marsha Ann Respondents assisted that organization and contributed financial
support to it in violation of Section 8(a)(2) of the Act.
By the discharge of James Kaseroff and by contracting with Seine and Line the
Marsha Ann Respondents interfered with, restrained, and coerced their employees
in respect to rights guaranteed in Section 7 of the Act, and thereby violated Section
8(a)(1) of the Act.
City of Los Angeles
It is alleged that in late December 1955, John Grgas, the principal owner of the
City of Los Angeles, discriminatorily discharged Dusan Gargas, Roko Roman,
Matt Gargas, Mate Lastavica, Joe Sunjka, Sreko Matura, and Steve Matura thereby
discouraging membership in Local 33.
In August 1955 because of his impending absence from the United States, the
master, John Grgas, gave command of the vessel to his son Nick. With Nick
Gargas as master the boat made one trip in August for tuna and during the fall
fished for sardines until about December 18. As agent for the owners, Nick Gargas
joined the other vessel owners in terminating the contract with Local 33 and in em-
powering Attorney Gould to act for him. John Grgas returned in December and late
that month letters were sent to the crewmembers named above directing them to re-
move their belongings from the vessel. On behalf of the owners of the City of Los
Angeles but without information about the representative status of Seine and Line,
Nick Gargas signed the contract with that organization on January 4, 1956. The boat
is still operating under that contract.
Joe Sunjka came aboard the City of Los Angeles in December 1954 as cook.
He remained in that capacity throughout the tuna and sardine seasons of 1955. After
receiving the clothes letter Sunjka went to the boat and there met John Grgas who
said, according to Sunjka's credited and undenied testimony, that it was not his fault
but rather that of his son Nick that he had gotten into this "trouble." John Grgas
went on to say that he was going to sell the boat and that he would give the crew first
opportunity to buy it.
Sunjka obtained other employment but in June 1956 asked John Grgas for a
chance. In a few days he was rehired to his job as cook and remained in that
employment to the date of his testimony.
Dusan Gargas became employed aboard the City of Los Angeles in early 1953
and remained there until the end of the sardine season in 1955. According to Gargas
during the sardine season of 1955 Nick Gargas who was then the skipper said that
he thought the vessel would break away from Local 33 and perhaps enter into a
contract with Seine and Line. In early January 1956, still according to Dusan Gargas,
Nick Gargas said that the boat was going out under a Seine and Line contract and
that of the 1955 crew only Dusan Gargas, Lucky Matura, and Matt Gargas could
be employed. Dusan Gargas said that he wanted to think the offer over and later
decided not to accept it because he did not want to join another union . In October
1956, he was reemployed aboard the City of Los Angeles.
Sreko Matura, more commonly known as Lucky, became a crewmember on the
City of Los Angeles in 1946 and remained there until told to remove his belongings
in late December 1955. As in the case of Dusan Gargas, Matura was offered em-
ployment by Nick Gargas in early January 1956 which he did not accept. He
refused a further offer of employment aboard that vessel in June of that year
because of illness and finally went back to work in his old job in October 1956.
Mate Lastavica came on the City of Los Angeles in January 1953 and worked
through the 1955 sardine season. In late 1955, according to Lastavica, Nick Gargas
said he was going to terminate the contract with Local 33 and hire another crew for
1956. Nick Gargassaid, Lastavica testified, that as a Local 33 member he too would
MV "LIBERATOR," ETC. 47
lose his employment. After removing his belongings from the vessel in response
to the instruction in a letter from John Grgas, Lastavica, he testified, had a conver-
sation with John Grgas in which John Grgas said that he was satisfied with his 1955
'crew but had gotten into something he could not get out of.
About January 4, 1956, according to Lastavica, Nick Gargas offered him employ-
ment aboard the vessel saying that Lastavica would have to join Seine and Line. A
few days later Lastavica refused the offer saying that he did not want to leave his union.
Some time in January 1956, according to Lastavica, John Grgas said he was trying
to get at least three or four of his old crew to come back but none seemed to want
to come. John Grgas said that he wanted to get out of the agreement he had made
but it would cost hun $10,000 or $15,000 to do so. In October 1956, Lastavica was
reemployed aboard the City of Los Angeles.
Steve Matura, a crewmember on the City of Los Angeles since early 1950, re-
moved his belongings from the vessel after receipt of the clothes letter. In January
1956, Nick Gargas said, Matura testified, that he needed four or five men for the
crew. Matura asked what the conditions of employment were and Gargas answered
the same as before but under a Seine and Line contract. Matura said that he would
be willing to go back if the entire 1955 crew was retained but not otherwise. In
July 1956 John Grgas offered Matura employment which the latter refused because
he was then working on another vessel and could not leave in midseason.
Matt Gargas, a crewmember on the City of Los Angeles for most of the years
from 1945 through 1955, testified that in late December 1955, Nick Gargas said that
he could stay on the boat if he wanted to join Seine and Line. Matt Gargas removed
his belongings from the vessel but was reemployed on it in November 1956.
Roko Roman, after working on the City of Los Angeles for 71/2 years, was in-
structed to remove his belongings in late December 1955. In that same month, ac-
cording to Roman, Nick Gargas said that he was going to change unions. Roman has
not been employed on the City of Los Angeles since.
Nick Gargas testified that he was skipper of the City of Los Angeles from August
to December 18, 1955, during the absence of his father. Gargas denied that he
told any of the crew in the fall of 1955 that the vessel would be under a Seine and Line
contract for the next year and denied saying to anyone of them that he could stay
in his employment only on condition that he join Seine and Line. Acting for the
owners of the City of Los Angeles, Nick Gargas signed the Seine and Line contract
on January 4, 1956, without information he conceded that Seine and Line repre-
sented a majority of his crew. Gargas denied speaking to Lastavica about fishing in
January 1956 or having a phone conversation with Lastavica about a union.
The situation of the City of Los Angeles Respondents was no different from that
of the other Employer Respondents. They had terminated the contract with Local 33
and evidenced an intent no longer to deal with that organization. As a practical
matter it followed that they had to contract with Seine and Line or find employment
other than fishing for their vessel. These circumstances weigh heavily against credit-
ing the denials of Nick Gargas that he told crewmembers in the fall of 1955 that a
contract with Seine and Line was in the offing and that membership in that organiza-
tion would become a condition of employment in 1956. I credit the witnesses for
the General Counsel who testified to that effect.
I find that the City of Los Angeles Respondents sent the clothes letters in late
1955 in order to discharge the 1955 crewmembers and to relieve themselves of any
obligation to bargain with' Local 33. The discharges discouraged membership in
Local 33 and, given the discriminatory motivation found above, constituted violations
of Section 8(a) (3) of the Act.
By signing the Seine and Line contract on January 4, 1956, at a time when Local 33
claimed a right to represent the crew and without evidence that Seine and Line in fact
represented a majority of the crew the City of Los Angeles Respondents assisted
Seine and Line and by reason of the contract contributed financial support to that
organization in violation of Section 8(a) (2) of the Act. -
By the discharge, by extending recognition to and contracting with Seine and Line,
and by telling employees that employment was conditioned upon obtaining member-
ship in Seine and Line, the City of Los Angeles Respondents interfered with, re-
strained, and coerced employees in the exercise of rights guaranteed in Section 7
of the Act and thereby violated Section 8(a)(1) of the Act.
Columbia
The complaint, has amended, alleges that in late December 1955, the Columbia
Respondents discriminatorily discharged Steven Dadich, Ante Matura, Sam Uskovich,
Petar Uskovich, Bob Uglesica, and Frank Lezaja, and that the discharged employees
were refused reemployment except on condition that they join Seine and Line.
48 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It is admitted that letters were sent on December 28, 1955, to all members of the
1955 crew directing that they remove their belongings from the Columbia.
Frank Gargas was skipper of the Columbia in 1955 and 1956. The last tuna trip
for 1955 ended August 6. The vessel fished for sardines from about November 7
to December 2, 1955.
Steven Dadich worked on the Columbia for 3 years until his discharge in Decem-
ber 1955. He was offered employment aboard the vessel in June or July 1957 but
refused it because of other plans.
Frank Lezaja, on the Columbia since 1951 was discharged in late December 1955.
Bob Uglesich testified that he was hired in December 1955 as a cook with the
understanding from Frank Gargas that he would remain through the 1956 tuna
season. At the end of the sardine fishing, according to Uglesich, on a date which
seems to be about December 21 or 22, Frank Gargas told Uglesich he would have to
join Seine and Line in order to remain in his employment. Uglesich refused to
switch from Local 33 and has not been employed on the Columbia since.
Ante Matura was employed on the Columbia from late 1952 until late December
1955, the date he was discharged.
Sam Uskovich was on the Columbia for 1 year. In December 1955 he had a
chance to go aboard the Pioneer and seriously considered taking the offer but he did
not in fact accept it until January 1956. Uskovich conceded that the Pioneer offered a
better chance for earnings than the Columbia.
Petar Uskovich became employed on the Columbia in April or May 1955 and
stayed until his discharge in late December of that year.
Frank Gargas, the skipper of the vessel, on and after December 1954, testified
that Sam Uskovich quit his job in December 1955. Gargas who signed the Seine and
Line contract on January 4, 1956, testified that he started hiring a new crew for the
Columbia about December 21, 1955. 1 find it impossible to determine from Gargas'
testimony just how many crewmembers he had hired before signing the Seine and
Line agreement. It is possible that by that date he had assembled a crew of eight.
There is evidence from which it may be found that the crewmembers removed
their clothes from the Columbia before any instruction to do so came from Gargas.
After the end of sardine fishing the vessel was taken to a repair yard where it re-
mained until early 1956. Some of the crew if not all took their clothes from the vessel
at that time and all shared in a division of the groceries. There is no contention, how-
ever, by any party that the crew was discharged at that time.
Following the advice of his counsel, Frank Gargas sent the clothes letters to his
crew on December 28. I find that the clothes letters were intended to signal the
discharge of those to whom they were addressed. Because I am convinced that
Gargas, like the other skippers, knew in December 1955 that he would enter into a
contract with Seine and Line for 1956 as the only practicable alternative to continuing
a relationship with Local 33, I find it easy to believe, despite his denial, that he told
Uglesich in late December that the latter would have to join Seine and Line in
order to keep his job. I credit the testimony of Uglesich in this particular.
If, as the evidence seems to indicate, Gargas had assembled 8 of an eventual crewof
11 when he signed the Seine and Line contract on January 4, 1956, and there being
no evidence that all 8 were not members of Seine and Line, these circumstances would
not validate that agreement. First, the extension of recognition was unlawful be-
cause Local 33 too was claiming a right to recognition and could back its claim by a
history of bargaining with Columbia Respondents. Second, the contract contained
union-security provisions permissible only in an agreement with a majority repre-
sentative. There is no evidence that Seine and Line was on that date such a
representative.
I find that the Columbia Respondents discharged Dadich, Matura, Uglesich, Petar
Uskovich, Sam Uskovich, and Frank Lezaja in late December 1955 in aid of a de-
sign to cease bargaining with Local 33 and to facilitate bargaining with Seine and
Line. I credit the testimony of Sam Uskovich that he did not quit his employment
although he was considering doing so and thus disbelieve the contrary testimony of
Gargas. I think that the testimony of Uskovich is the more reliable in that it is un-
likely that he suffered any loss of earnings because of his discharge and thus has no
financial stake in a resolution of that question. I recognize that the transcript of
testimony fails to record his answer that he would not want to leave his present
employment to return to the Columbia and grant the motion of counsel for the
Columbia Respondents to correct the transcript in that particular. He is nonetheless
entitled to an offer or reinstatement and it will be recommended that Columbia
Respondents be required to make one.
By the discharges Columbia Respondents discouraged membership in Local 33
and because of the discriminatory motivation violated Section 8(a) (3) of the Act.
MV "LIBERATOR," ETC. 49
By extending recognition to and contracting with Seine and Line Columbia Re-
spondents assisted that organization and by virtue of the union-security provisions of
the contract provided financial support to it. Columbia Respondents thereby violated
Section 8(a) (2) of the Act.
By the discharges, by recognizing Seine and Line thus imposing a bargaining rep-
resentative on their employees, and by telling Uglesich that continued employment
was conditioned upon Seine and Line membership, Columbia Respondents interfered
with, restrained, and coerced their employees in the exercise of rights guaranteed
in Section 7 of the Act and thereby violated Section 8 (a) (1) of the Act.
Sea Scout
The complaint alleges that Sea Scout Respondents in late December discrimina-
torily discharged Milan Platisha, Nick Platisha, Miro Pesic, Marion Petrov, John
Brunac, John Dragich, Mike Elich, John Radovich, and Vlailo Matejic.
From and after the fall of 1954, Andrew Rafkin, Jr., was the Sea Scout's skipper.
In 1955 the last tuna trip ended in July. With the same crew, the vessel fished for
sardines from early November to about December 23. On December 31, 1955,
Rafkin sent a letter to each crewmember telling him to remove his belongings from
the vessel.
John Dragich, a crewmember for 3 years, testified that after he got the letter from
Rafkin, he and Matejic went to the vessel. Rafkin told them according to Dragich,
on this occasion, that he would like to have them back in his crew but that they
would have to join Seine and Line. Dragich also testified to having a similar if
not identical conversation with Rafkin in .the presence of Matejic on December 23.
I am uncertain that Dragich in fact had two such conversations and my findings
are based upon the assumption that there was but one.
Vlado Matejic, a crewmember for 10 years, testified that at the close of sardine
season on December 23, Rafkin said that everyone would have to belong to Seine
and Line in order to fish on the Sea Scout.
Milan Platisha came on the Sea Scout in December 1954 but had been fishing for
Rafkin on other vessels since 1948. In early December 1955, according to Platisha,
Rafkin said that he had terminated the contract with Local 33; that Platisha was
welcome to stay in the crew but that he would have to join the "other union." On
the last day of the sardine season, according to Platisha, Rafkin told the crew that
they knew "what was going on" and that it was up to them to decide what they
wanted to do
Nick Platisha had fished with Rafkin for 5 or 6 years on other vessels and 1 year
on the Sea Scout. In December 1955, according to Platisha, Rafkin said that he
had an agreement with Seine and Line for 1956. It seems to be the fact that from
January to June in 1956, Nick Platisha found it necessary to remain ashore in order
to care for an injured brother. In June 1956 he went back to his employment on
the Sea Scout.
John Brunac worked for Rafkin on another vessel for 7 years and came to the
Sea Scout with Rafkin in December 1954. In November 1955, according to Brunac,
Rafkin said that he had terminated the contract with Local 33 and would have a
contract with Seine and Line for 1956. Rafkin said that Brunac knew what he had
to do if he wanted to stay on the vessel. Brunac commented that he saw no reason
to leave Local 33 for another union . At the end of the sardine fishing, still accord-
ing to Brunac, Rafkin said that he would like to have the entire crew back but told
them that they knew what they would have to do.
Miro Pesic, who had been employed by Rafkin since 1951, testified that on the
last day of sardine fishing in 1955, Rafkin said, "You know, boys what is going on."
Marion Petrov, Rafkin's father-in-law, worked for Rafkin on other vessels and
then on the Sea Scout. At the end of the sardine season , according to Petrov, Rafkin
said he did not know what he was going to do. Petrov came back to work on the
Sea Scout in August 1956.
John Radovich, an employee of Rafkin' s since 1952 and a member of the crew
of the Sea Scout in 1955, testified that after removing his belongings from the Sea
Scout in early January 1956, he did not fish again from that vessel until offered em-
ployment in 1957. For reasons of health, Radovich quit that employment in
July 1957.
Mike Elich became a member of the crew in April 1955. According to Mich, in
November of that year, Rafkin said that he was going to have a contract with Seine
and Line for the 1956 tuna season and asked Elich if he would fish in that circum-
stance. Elich said that he would and Rafkin commented that he would like to keep
the same crew that he then had. After getting the letter to remove his belongings,
Elich worked on the vessel in making repairs but as an employee of an engine
50 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
company. During this period, according to Elich, he again told Rafkin that he was
willing to fish with him. About January 13, 1956, Elich phoned Rafkin to tell him
that he would not go fishing but thereafter took employment on another vessel.
Although at one point in his testimony Elich said that he told Rafkin that he would
not fish for him because he thought it not a good idea to change unions. He later
conceded that he may have given as a reason the illness of his wife.
Andrew Rafkin, Jr., who became skipper of the Sea Scout in the fall of 1954,
testified that for the second and third tuna trips in 1955, he was forced to pay his
crew by reason of his agreement with Local 33 on the basis of a higher price than
that he received from the canneries who purchased the catch.
On October 10, 1955, Rafkin notified Local 33 that he was terminating the con-
tract with that organization at the end of the year. Thereafter he signed a power of
attorney and a mutual assistance pact thus joining the other Employer Respondents
in presenting a united front to Local 33.
Rafkin denied in his testimony that he told any crewmember in 1955 that he
would have a contract with Seine and Line the following year; denied telling Brunac
that Local 33 would never again represent the crew; and denied telling Milan
Platisha or any other crewmember that employment in 1956 would be contingent
upon membership in Seine and Line.
Rafkin conceded that he was content with his 1955 crew and asserted that he did
not intend when he sent each of them a letter asking that belongings be removed
from the vessel to discharge any of them. Nonetheless, Rafkin did hire some new
crewmembers before Christmas thus indicating an awareness that not all of his
old crewmembers would return.
Rafkin signed the Seine and Line agreement on January 4, 1956, at a time when
ro more than 4 of the crew of 10 had been hired. Rafkin testified that some time in
January 1956, Elich notified him that he would be unable to fish because of the
illness of Elich's wife. Rafkin denied that anything was said in this conversation
ab out unions.
Here, as in the cases of the other vessels set forth earlier in this report, we again
encounter the incongruity of a skipper discharging a crew with which he was en-
tiroly content. The clothes letters I find were notifications of discharge. Again the
only motivation for the discharges is to be found in the determination of Sea Scout
Respondents no longer to deal with Local 33 and to enter into a bargaining relation
with Seine and Line. I credit the testimony of witnesses for the General Counsel
to the effect that in November and December 1955, Rafkin told crewmembers that
he would contract with Seine and Line for 1956 and that the crewmembers would
have to join Seine and Line in order to retain employment. I find that such some-
what cryptic comments as "you know, boys, what is going on" and others similarly
phrased had reference to and were understood to have reference to the switch
from Local 33 to Seine and Line.
With less than half of his 1956 crew hired Rafkin signed the Seine and Line agree-
ment on January 4. Obviously Seine and Line could not then have been a ma-
jority representative and in any event Local 33 was then claiming recognition.
I find that by the discharge of Milan Platisha, Nick Platisha, Miro Pesic , Marion
Petrov, John Brunac, John Dragich, Mike Elich, John Radovich, and Vlado Matejic,
Sea Scout Respondents discouraged membership in Local 33 and as the discharges
were discriminatorily motivated they were in violation of Section 8(a) (3) of the Act.
By extending recognition to Seine and Line at a time when that organization was
not a majority representative of the crew and at a time when Local 33 was claiming
the right to recognition; Sea Scout Respondents assisted Seine and Line. By includ-
ing union-security provisions in the contract, Sea Scout Respondents contributed
financial support to Seine and Line. This assistance and financial support were given
in violation of Section 8 (a) (2) of the Act.
By the discharges, by recognizing and contracting with Seine and Line, and by
telling employees that continued employment required membership in Seine and
Line, Sea Scout Respondents interfered with, restrained, and coerced employees in
the exercise of rights guaranteed in Section 7 of the Act, and thereby violated
Section 8 (a)( 1 ) of the Act.
Sea King
The complaint alleges that Sea King Respondents discriminatorily discharged
Lawrence Hanson and John Rukavina in September 1955 and John Starcich, Nick
Sladich, and Louis Sasso in December of that year.
Tuna fishing ended for .the Sea King in August 1955. The skipper John Cvitanich,
when the tuna was unloaded, told his crew that he had no suitable net and was un-
certain whether he would fish for sardines . Some time later that fall, he obtained
a net and the vessel fished for sardines briefly and with little success. Sea King
MV "LIBERATOR," ETC. 51
Respondents joined the other employers in terminating the contract with Local 33
and in late December 1955, notified all of the 1955 crew.members to remove their
belongings from the vessel.
Lawrence Hanson testified that he came aboard the vessel in October 1954.
After the completion of the last tuna trip in 1955, according to Hanson, Cvitanich
told the crew that he was ending the season and did not know what would happen
in the future . Cvitanich went on to say, according to Hanson , that he was thinking
of "going AFL" and if so, the old crew would not be retained. Hanson suggested
that in such a situation the groceries then aboard the vessel should be divided among
the erewmembers. After some discussion, agreement was reached to divide the
perishables and beer leaving canned goods and staples aboard. Hanson found other
employment and removed his belongings from the vessel. Hanson testified that
because of the low price that fish was bringing and because of the labor disputes,
he was unwilling to return to fishing at the time of the hearing.
John Rukavina came on the Sea King in October 1954. Rukavina testified that
on two occasions in August 1955, Cvitanich said he was going to have an AFL con-
tract in 1956. The first such expression was made privately to Rukavina; the second
to other crewmembers as well. According to Rukavina it was this expressed inten-
tion on the part of Cvitanich which resulted in the division of the perishables and
beer. Rukavina has not worked on the Sea King since August or September 1955.
In February 1956, he was offered an opportunity to do so but answered that he
would not accept. Rukavina explained in his testimony that his refusal was caused
by an unwillingness to join Seine and Line.
Louis Sasso was first employed September 27, 1955, and was told by Cvitanich,
he testified, that his employment would extend through the 1956 tuna season. While
fishing for sardines in November 1955, according to Sasso, Cvitanich asked him
in the presence and hearing of the cook, Starcich, what union he belonged to. Sasso
answered Local 33. Cvitanich then said that he was going to terminate his contract
with Local 33 before going to Mexico for tuna. Sasso asked why he had not been
given that information earlier for he had left -another vessel to take employment on
the Sea King. Cvitanich commented, according to Sasso, that the latter did not
have to starve; that he could get membership in Seine and Line. Sasso answered
that he would not go to another union whereupon Cvitanich said "that is all I can
tell you. That is it, I will have to get another crew that does belong to the AFL."
Saying that it was pointless for him to stay on fishing for sardines if he could not
work in the tuna season, Sasso told Cvitamch that he would leave the vessel when
it returned to port and did so in early November. According to Sasso, some time
later, Cvitanich telephoned saying that Sasso would receive a letter requiring him
to remove his clothes from the boat and asking if Sasso had given more thought to
joining Seine and Line.
Nick Sladich, who became a crewmember in October 1954, testified that when
the vessel stopped fishing for sardines in 1955, Cvitanich said that the boat might
go out again if he managed to get a better net but if any of the crewmembers found
other employment they were free to take it.
On December 30, 1955, Sladich received a letter from Cvitanich telling him to
remove his belongings and went to the vessel several days later to do so. Speaking
to Cvitanich on this last occasion, Sladich asked if it was necessary to join Seine
and Line in order to fish on the Sea King. Cvitanich answered that such a decision
would have to be made by John Calise. A few days later, Cvitanich telephoned
Sladich to tell him that his job was still available. Sladich refused to return saying
that Local 33 had decided that all of the old crewmembers had to return or none
would.
John Starcich, the cook on the Sea King since 1951, testified that on the last night
of sardine fishing in 1955 , Cvitanich told him that the vessel would be under contract
with Seine and Line in 1956 and asked what Starcich intended to do. Starcich
answered that he did not know. After getting the clothes letter, Starcich removed
his belongings from the vessel. In early January, Cvitanich asked Starcich to return
to work but because Local 33 would not permit its members to go aboard the Sea
King, he did not do so. Starcich testified that he had no recollection of any remarks
by Cvitanich concerning unions when the groceries were divided at the end of tuna
fishing and that he did not overhear any conversation between Cvitanich and Sasso
relating to Local 33 or Seine and Line.
Dick Tomich, whose employment on the Sea King began in 1951, left the vessel
at the end of tuna fishing in 1955. Tomich then took a job ashore to see how price
movements affected the earnings of fishermen. He too received -a clothes letter but
had long before taken his belongings from the vessel.
641795-63-vol. 136-5
52 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
John Cvitanich, the skipper, testified that he quit tuna fishing in August 1955
because of the price squeeze and told the crew to find other employment. Cvitanich
denied making any mention of the AFL on the occasion when the groceries were
divided and denied telling Rukavina that he was going to contract with the AFL
for 1956. According to Cvitanich, Hanson constituted a problem in that he drank
too much and for that reason did not want him to continue in the crew. Cvitanich
denied that he told Sasso that he was hired for the 1956 tuna season and denied
that he had any conversation with Sasso concerning the termination of the Local
33 contract or any intention of contracting with Seine and Line. Sasso quit during
the sardine season, according Cvitanich, because the net in use was inadequate
and because of a warning from Local 33 that their members were going to lose their
employment at the end of the year in any event. Cvitanich denied making any
suggestion to Sasso that the latter should consider joining Seine and Line. He also
denied telling Starcich of any intention to sign a contract with Seine and Line.
According to Cvitanich, he had hired at least five new crewmembers before
signing the Seine and Line contract on January 4. The Sea King was lost at sea
November 28, 1956.
Sea King Respondents were under the same compulsion as the other Employer
Respondents to find an arrangement which would permit their vessel to fish profitably.
Tuna fishing ended in August 1955 only because Local 33 would not agree to modify
its supplemental agreement to meet the prices offered by the canneries. Thus it is
not improbable that in late August the skipper, John Cvitanich, said that he was
going to or might contract with Seine and Line for 1956 as Hanson and Rukavina
testified. Cvitanich denied saying anything of the sort but think that the evidence
to the contrary is persuasive. Both Hanson and Rukavina by their demeanor im-
pressed me as witnesses to be believed. I have considered in making this resolution
that other witnesses for the General Counsel, Sladich, Starcich, and Tomich, said
that they heard no such statement made at the end of the tuna fishing. Jerry
Lucich testified that Tom Mason, a partner in the vessel, told him in the presence
of Hanson that the season was over for the Sea King and that he left the vessel
then to find other employment. I think it likely that some of the crew heard
Cvitanich and others heard Mason speak in connection with ending the season and
that those who were spoken to by Mason heard nothing about a possibility of a
Seine and Line contract.
Hanson, Rukavina, and Tomich found other employment. Tomich decided that
he would try working 'ashore for a time because the tuna prices were too low to
promise good earnings.
When a sardine net was obtained none of the three was asked to return to the
boat. Cvitanich testified that he had no address for Tomich, thought that Rukavina
was working on another boat, and did not want to rehire Hanson because of the
latter's drinking habits. The Sea King was still operating under a Local 33 contract
and I find nothing sinister in the circumstance that the three men under discussion
were not called to work during the sardine season. I credit the testimony of
Cvitanich on this point. Furthermore, I find that there was no discrimination in the
terminations of employment in respect to Rukavina, Hanson, and Tomich in
September 1955. Cvitanich's statement that he would or might have a Seine and
Line contract in 1956 did not in my opinion constitute any sort of discharge in
September or condition further employment on the vessel for the remaining months
of 1955 on acceptance of Seine and Line.
The testimony of Louis Sasso as to his conversations with Cvitanich is convincing
and is credited. Although Sasso was lamentably confused as to some dates and as to
periods of time I have no doubt as to the accuracy or honesty of his memory in
his recount of the remarks attributed to Cvitanich. It is true that Starcich said he
had no recollection of hearing Cvitanich speak to Sasso as the latter testified and
that Starcich heard nothing in that vein from Cvitanich until later. I think that this
circumstance does not weigh against Sasso's credit. If his testimony was a fabrica-
tion it is unlikely that he would provide Cvitanich with the name of a witness who
could expose it. I conclude that Starcich was present as Sasso testified but by
reason of preoccupation or distraction did not hear what was said.
By sending the clothes letters to Sasso, Sladich, and Starcich, Cvitanich discharged
them. Starcich was willing to fish for Cvitanich; apparently even to join Seine and
Line but finally refused to go as to do so would be contrary to Local 33's policy.
Sladich refused a job offer in January 1956 for the same reason. Sasso told
Cvitanich on a date which must have been in late December and which is so found
that he had not changed his mind and still would not change to the Seine and Line
union. I find that upon this occasion Cvitanich was inquiring of Sasso if the latter
was available for employment.
MV "LIBERATOR," ETC. 53
Cvitanich signed the Seine and Line contract on January 4, 1956, and had hired
six crewmembers on that date. These six constituted a majority of the crew that
sailed on January 21. But there is no evidence that any of them was a member
of Seine and Line. Local 33 claimed the right to represent the crew and had been
recognized as bargaining agent for some time past. In that situation, of course,
Sea King Respondents could not lawfully arrogate to themselves the decision
concerning who should be the representative of the crew. Furthermore, Sea King
Respondents could not lawfully sign an agreement containing union-security pro-
visions with any organization not the majority representative. In this aspect of
the Act the burden is upon the employer to show the majority status. No such
showing has been made.
I find that Sasso, Sladich, and Starcich were discharged by Sea King Respondents
in order to avoid bargaining with Local 33. The discharges discouraged member-
ship in Local 33 and because of the discriminatory motivation were in violation of
Section 8(a) (3) of the Act.
By extending recognition to and contracting with Seine and Line on January 4,
1956, Sea King Respondents assisted that organization and by giving effect to the
union-security provisions of the contract contributed financial support to it. Because
recognition was extended at a time when Local 33 was claiming the right to repre-
sent the crew and as that claim gave rise to a question concerning representation
the act of recognition was unlawful. Because union-security provisions were
included in the contract without a showing that Seine and Line was in fact the choice
of a majority of the crew a further violation took place. The Sea King Respond-
ents thus violated Section 8(a) (2) of the Act.
By telling Sasso that he would have to recruit his crew from "the AFL" and by
suggesting that Sasso could continue to work by joining Seine and Line, by telling
Sladich that whether Sladich would have to join Seine and Line lay within the
discretion of John Calise, by telling Starcich on one occasion and Hanson and
Rukavina on another that he would contract with Seine and Line with the implica-
tion that their job tenure would be thus jeopardized, by the discharges, and by
recognizing and contracting with Seine and Line, Cvitanich, and thus Sea King
Respondents, interfered with, restrained, and coerced employees in the exercise
of rights guaranteed in Section 7 of the Act, and thereby violated Section 8(a)(1)
of the Act.
Liberator
In 1955 the Liberator fished for tuna until July 20, and from November 7 until
shortly before Christmas fished for sardines. On December 28, 1955, the skipper,
Paul Biazevich, sent clothes letters to all members of the 1955 crew. The complaint
alleges that as to the three individuals whose testimony is outlined below, the
letters constituted discriminatory discharges.
Dominic Lubetich, who had fished on the Liberator since September 1953, went to
the vessel to get his clothes in January and met Biazevich there. Lubetich said
that he had been fishing for 30 years and now for the first time had been discharged.
Biazevich commented "there are times that one must do something that you do not
care to do but you just have to do it." A few weeks later having been offered em-
ployment by Biazevich on the Liberator, Lubetich inquired of Local 33 to learn if he
should accept it. Finding that he would have to work under a Seine and Line con-
tract, he told Biazevich that he could not meet that condition. Biazevich commented
that others would do so.
Andrew Zankich who came on the Liberator in October 1954, testified that he con-
templated remaining on that vessel until he received the clothes letter. He has not
since been offered employment on the Liberator and in April 1956 testified that he no
longer cared to fish for a living.
Anton J. Kruzich worked on the Liberator from January 1952 through the sardine
season of 1955. Going to the vessel to get his clothing in early January 1956, he
encountered Biazevich who said "maybe when things get straightened out with the
union you will come back." Kruzich has not since worked on the Liberator.
Paul Biazevich, the skipper of the Liberator, joined the group which became known
as American Tuna Committee in October 1955 and thereafter acted in concert with
the other members of that organization. On January 4, 1956, before hiring anyone
for the new season, he signed the Seine and Line contract. He intended, he testi-
fied, on January 4 to bring back all of those who constituted the 1955 crew. When
Lubetich refused to come back to work, Biazevich telephoned another 1955 crew-
member and received the same answer. Because he then concluded that none of the
old crew would return, Biazevich set about hiring a new one.
I find that Lubetich, Zankich, and Kruzich were discharged by Liberator Respond-
ents by the clothes letters received in late December 1955. The discharges were made
54 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in order to relieve Liberator Respondents of any obligation to bargain with Local 33.
Biazevich testified truthfully that he intended to keep his 1955 crew but by signing
the Seine and Line contract imposed discriminatory conditions upon their employ-
ment which they would not accept.
On January 4, 1956 , at the time he signed the Seine and Line agreement , Biazevich
had hired no new crewmembers and there exists nothing to indicate that Seine and
Line had any sort of status entitling it to recognition.
By extending recognition to Seine and Line when that organization was not the
bargaining representative of the crew and by contr ibuting financial support to Seine
and Line through the union -security provisions of the contract , the Libet ator Respond-
ents have assisted that organization in violation of Section 8(a) (2) of the Act.
By discharging Lubetich , Zankich , and Kruzich upon a discriminatory motivation
Liberator Respondents have discouraged membership in Local 33 and have thus vio-
lated Section 8 (a) (3) of the Act.
By the discharges and by recognizing and contracting with Seine and Line, Liberator
Respondents have interfered with, restrained , and coerced employees in the exercise
of rights guaranteed in Section 7 of the Act, and have thereby violated Section
8(a)(1) of the Act.
Delores M.
As amended , the complaint alleges that Delores M. Respondents in late December
1955, discriminatorily discharged George Anderson , John Budrovich , Kasoma Jen-
nings, Victor Kunst, Jerry Marmkovich , and Joe Skefich . Each of these had been a
member of the 1955 crew and received, in late December 1955 , clothes letters from
Delores M. Respondents.
For Delores M. fishing, in 1955 , ended in October . Shortly thereafter in concert
with other Employer Respondents , Delores M. Respondents notified Local 33 of an
intention to terminate the contract.
Victor Kunst, who had worked on the vessel for 7 years, testified that in mid-
January 1956 , the skipper , Vincent Budrovich , told him that he was welcome to come
back to work but that he would have to join Seine and Line. Kunst answered that
he would not accept that condition.
Joe Skefich , who had been on the vessel for 5 years, testified that he too was offered
employment by Budrovich in mid -January and when he inquired what the conditions
of employment would be, Budrovich answered , "You know the score." Skefich re-
fused the offer . In January 1957 , Skefich asked for employment and was hired.
Budrovich told Skefich that he would have to make some arrangement with Seine and
Line in order to work and Skefich did so.
George Anderson , the cook on the Delores M. since 1944 , was hospitalized in late
October 1955 and not released until late January 1956 . Reporting to Budrovich on
January 28, 1956 , Budrovich said that his job was available for him but that he had
better find out "the score" before taking it. Learning from Local 33 that Budrovich
had signed a contract with Seine and Line, Anderson told Budrovich that he could
not sail with him. In June 1956 , Anderson took employment aboard another vessel
and signed an agreement to pay dues to Seine and Line.
Kasoma Jennings , who had worked on Delores M. since 1951, was offered employ-
ment by Budrovich in January 1956 . Jennings refused the chance, saying that in
order to accept it he would have to change unions. He refused a second offer of
employment aboard the vessel in early 1957 because he had already agreed to work
elsewhere.
Jerry Marinkovich , who was first employed on Delores M. in November 1954, was
unable to leave San Pedro in early 1956 because of the murder of his father -in-law.
Vincent Budrovich, his brother-in-law , was of course aware of this tragedy and knew
that Marinkovich was not available for employment.
John Budrovich , a brother of the skipper , Vincent , fished for 2 years on Delores M.
After Local 33 released its members from instruction not to fish on certain vessels,
among them Delores M., John Budrovich , probably in April 1956 , asked his brother.
Vincent , for employment but there was no opening for him. John Budrovich testified
that until he got the clothes letter, he intended to stay on the Delores M
Anthony Dulcich, who had quit his employment on Delores M. in October 1955,
asked Vincent Budrovich for employment in late December of that year . . Budrovich
said that he had jobs open but that Dulcich would have to see John Calise. In
January 1956 , according to Dulcich , Budrovich telephoned to inquire if Dulcich was
coming to work ; Dulcich answered that he would not change unions and thus could
not work on Delores M.
Vincent Budrovich testified that he did not intend to discharge his crew by sending
the clothes letters. On January 3, 1956 , Budrovich supplied a list of those who had
applied for work and who he intended to hire for examination by John Calise.
MV "LIBERATOR,"' ETC. 55
Hearing later that day that Calise claimed to represent a majority of those named on
such lists, Budrovich signed the Seine and Line contract. Budrovich testified that he
had not hired more than one person before signing the contract and later in his
testimony that he did not consider a man to be hired until he came to work on the
vessel. The new crew came aboard about February 1, 1956. Budrovich testified that
he had no recollection of mentioning any union in his conversation with Dulcich and
said that Skefich refused employment in January 1956 without giving a reason. Still,
according to Vincent Budrovich, his brother John said that he did not want to fish
with the men he understood Vincent to have hired and that nothing was said in this
conversation or in any conversation with Kasoma Jennings about a Seine and Line
contract or any union. Budrovich testified that it was necessary to have a contract
with some union in order to fish.
I am sure that Vincent Budrovich did not desire to discharge his 1955 crew and
that he hoped to find some way to retain its members for 1956. But the clothes letters
were not merely a gesture. They had a serious purpose-to deprive the addressees
of any color of right to claim 1956 employment and thus were intended to be and
were instruments of discharge.
All of those whom it is alleged were discriminatorily discharged had an expectation
of employment for 1956; some of them had been steadily employed aboard the
vessel for several years. None had indicated an intention to quit and except for the
clothes letters had received no indication that their employer was dissatisfied with
them.
I credit the testimony of Dulcich that he was told by Vincent Budrovich in late
December of a necessity to consult John Calise in order to be employed aboard the
Delores M. I am unconvinced that Seine and Line appeared suddenly on the scene
on January 3. I have no doubt but that Budrovich and the other Employer Re-
spondents were aware long before that date that their determination not to deal with
Local 33 inevitably meant that they must come to terms with Seine and Line. It is
entirely reasonable to suppose that Budrovich in anticipation of this development
expressed himself to Dulcich as the latter testified.
Whether Budrovich told others among the 1955 crew in January 1956 that em-
ployment was conditioned upon membership in Seine and Line is a matter of no
moment. The contract which he had signed contained that requirement and Local 33
members quickly became aware of it. Membership in Seine and Line was necessary
in order to work on Delores M.
I find that Delores M. Respondents discharged Anderson, Budrovich, Jennings,
Kunst, Marinkovich, and Skefich in late December 1955 to implement a purpose to
deprive Local 33 of status as bargaining representative. By these discharges Delores
M. Respondents discouraged membership in Local 33 and because of the motivation
violated Section 8(a) (3) of the Act.
I find on the basis of the testimony of Vincent Budrovich that on January 4, 1956,
he had hired no more than one of those who later constituted his 1956 crew. Thus
by extending recognition to and contracting with Seine and Line on that date, he was
dealing with a labor organization which could not, in the circumstances given, have
been the majority representative of any crew. By the recognition and the contract
Delores M. Respondents assisted Seine and Line and provided financial support to it
Delores M. Respondents thereby violated Section 8(a) (2) of the Act.
By the discharges, by recognizing and contracting with Seine and Line thus im-
posing a bargaining representative on their employees, and by telling Budrovich
that employment was somehow conditioned upon approval by John Calise, Delores M.
Respondents interfered with, restrained, and coerced their employees in the exer-
cise of rights guaranteed in Section 7 of the Act, and thereby violated Section
8(a)(1) of the Act.
Ronnie M.
It is alleged that in late December 1955, the Ronnie M. Respondents discrimi-
natorily discharged Joe Evich.
Joe Evich worked on Ronnie M. from 1950 until the last tuna trip in June 1955.
On Christmas Day 1955, the skipper, John Misetich, handed him a clothes letter.
Evich removed his clothes from the vessel and thereafter sought and found other
employment. On October 8, 1957, he was offered employment aboard Ronnie M.
and accepted it.
John Misetich signed the Seine and Line contract on January 4, 1956. Thereis no evidence that he had hired any crewmembers on or before that date and no evi-
dence that he submitted the names of any crewmembers to ascertain their union
affiliation.
The testimony of Joe Evich stands undenied and is credited. John Misetich didnot testify. Because Misetich, in behalf of Ronnie M. Respondents, signed the Seine
56 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and Line agreement on January 4, 1956 , at a time when a question of representation
concerning the crew of that vessel existed by reason of the conflicting claim of
Local 33 and because there is entire lack of evidence to show that any crew had
been hired on that date, I find that by the extension of recognition, Ronnie M. Re-
spondents assisted Seine and Line and by reason of the union -security provisions in
the contract provided financial support to it. Ronnie M. Respondents thereby vio-
lated Section 8 (a) (2) of the Act.
Because the discharge of Joe Evich in late December 1955 sprang from a design
to avoid bargaining with Local 33, the discharge discouraged membership in Local
33 and because of the motivation violated Section 8(a)(3) of the Act.
By the discharge, by recognizing and contracting with Seine and Line, thus im-
posing a bargaining representative on their employees , Ronnie M. Respondents inter-
fered with, restrained, and coerced their employees in the exercise of rights guaran-
teed in Section 7 of the Act, and thereby violated Section 8 (a)( I) of the Act.
Western Fisher
As to Western Fisher Respondents, the complaint alleges only that they signed
the Seine and Line contract in January 1956 at a time when Seine and Line did not
represent a majority of the crewmembers. The skipper of Western Fisher did sign
the Seine and Line agreement on January 4, 1956. There is no evidence that prior
to that date any replacements had been hired for the 1955 crew and no evidence
that any of the 1956 crew was a member of any labor organization.
Because Western Fisher Respondents signed the Seine and Line contract in
January 1956, in the face of the conflicting claim to recognition of Local 33, Western
Fisher Respondents assisted that organization and by reason of the union-security
provision of the contract, provided financial support to it. Western Fisher Re-
spondents thereby violated Section 8(a) (2) of the Act.
By recognizing and contracting with Seine and Line thus imposing a bargaining
representative on their employees, Western Fisher Respondents interfered with, re-
strained, and coerced their employees in the exercise of rights guaranteed in Section
7 of the Act, and thereby violated Section 8(a) (1) of the Act
Arlene S.
It is alleged that Arlene S. Respondents in late December 1955, discriminatorily
discharged George Bascovich and about the same time discriminatorily refused em-
ployment to Sam Steve and Jack Zankich.
John Ruzich, who came on the vessel in October 1954, testified that in Septem-
ber 1955, the skipper, John Sestich, told the crew that he would no longer deal
with Local 33 and that if the crew did not want to "change over" they should tell
him so. Ruzich then quit. A few days later, according to Ruzich, Sestich said that
he was glad to get away from Local 33 for with Seine and Line he could do pretty
much as he liked and would have no trouble.
George Bascovich, who had been on Arlene S. since 1947 and had worked under
Sestich on that vessel and others for 14 years, testified that about December 10, 1955,
Sestich said that he would have to go out without Bascovitch because "I think I
have to go in the other union." Two or three days later, according to Bascovich,
Sestich told him to pick up his clothes from the vessel and Bascovich did so. Some
time in the summer of 1956 Bascovich learned that he could have employment on
Arlene S. whenever he liked but testified that he did not attempt to gain such em-
ployment because he did not want to pay money to Seine and Line.
Jack Zankich was hired by Sestich in September 1955 leaving employment on
another vessel. After getting the clothes letter, Zankich complained to Sestich that
hiring for the new season had generally been completed and that he would have diffi-
culty in finding another chance. Sestich answered merely that he had to find a crew
out of "the other union."
Sam Steve testified that Sestich hired him in August 1955 and said that he would
notify Steve when he was ready to go fishing. Steve put his clothes and gear aboard
Arlene S. Some time before Christmas, according to Steve, Sestich said that he
was going to contract with another union and that Steve should take his belongings
off the vessel. Some months later in 1956, Sestich offered to pay plane fare to
Steve if he would join the vessel at some point in Mexico. Steve refused the oppor-
tunity and testified that he was unwilling to join Seine and Line.
John Sestich did not testify. He signed the Seine and Line contract on January 4,
1956. There is no evidence that any of his crew had designated Seine and Line as
bargaining representative.
MV "LIBERATOR," ETC. 57
By extending recognition to and contracting with Seine and Line on January 4,
1956, at a time when Local 33 was claiming right to such recognition, and in the
absence of any evidence that any crew had been hired by that date, I find that
Arlene S. Respondents assisted that organization and by reason of the union-security
provisions of the contract provided financial support to it. Arlene S. Respondents
thereby violated Section 8(a) (2) of the Act.
On the basis of uncontroverted testimony of Bascovich, Zankich, and Steve, I find
that Arlene S. Respondents discharged each of them in December 1955 to implement
a purpose to avoid the necessity of dealing with Local 33. The discharges dis-
couraged membership in Local 33 and, because of the motivation found, violated
Section 8 (a) (3) of the Act.
I credit the uncontradicted testimony of John Ruzich that in September 1955, the
skipper, John Sestigh, said in effect that continued employment would require leav-
ing Local 33. By recognizing and contracting with Seine and Line, by the dis-
charges, and by the statement to Ruzich, Arlene S. Respondents interfered with, re-
strained, and coerced their employees in the exercise of rights guaranteed in Section
7 of the Act, and thereby violated Section 8 (a) (1) of the Act.
Golden West
It is alleged that Golden West Respondents in September 1955 discriminatorily
discharged John Matich. At the end of tuna fishing in 1955, the skipper, John Stano-
vich, told the crew that he did not know what his future plans might be but that
he could not fish for tuna and take a $40 a ton loss. The crew then divided meat
and other perishables from the ship's stores.
John Matich, the only member of the 1955 crew to testify, said that Stanovich,
on this occasion, said he did not think he would be working with Local 33 anymore.
Matich, learning that another crewmember had gotten a clothes letter, removed his
gear from the vessel in late December. The clothes letter addressed to him was
not received until about January 10, some time after the vessel had left San Pedro.
John Stanovich, the skipper, denied that he made any mention of an intention no
longer to deal with Local 33 in the fall of 1955. According to Stanovich, he had
been considering for some time an arrangement to fish off the coast of Peru and to
deliver his catch to a freezing plant in that country. In late November 1955 he de-
cided to do this. On January 4, 1956, the Golden West, with Stanovich, his brother,
and an engineer, left San Pedro. A crew was hired in Costa Rica and the vessel
then remained in South American waters for several months. In May 1956, Stano-
vich returned to San Pedro by plane and in June, about the time the Golden West
was due to arrive with a cargo of fish, John Calise of the Seine and Line Union
said that the vessel might be picketed. Stanovich began assembling a crew and after
he had hired five members a representative of Seine and Line said that three of them
were its members. Stanovich then signed a contract with Seine and Line identical
to that which other skippers signed on January 4, 1956. He then filled out his
crew to 11 and has since been fishing out of San Pedro.
I am convinced that falling prices and the refusal of Local 33 to make further
adjustments in connection with the amounts to be received by crewmembers caused
Stanovich to decide in the fall of 1955 to try fishing for the freezing plant in Peru.
I think it likely that in the circumstances he said to Matich and perhaps others, that
he did not think he would be working with Local 33 anymore. I credit the testimony
of Matich in that connection I am of the opinion, however, that Stanovich did not
violate the Act in any particular by leaving San Pedro as he did in early 1956. The
decision to take this action seems clearly to have been motivated by economic con-
siderations. I find therefore, that the discharge of Matich, if it is proper to term it
such, was not discriminatory.
However, when Golden West Respondents extended recognition to Seine and Line
in June 1956 when the vessel returned to San Pedro at a time when only 3 of a full
crew of 11 were members of Seine and Line, Golden West Respondents assisted
that organization and by reason of the union-security provisions of the contract pro-
vided financial support to it. Golden West Respondents thereby violated Section
8(a)(2) and (1) of the Act.
Stranger
It is alleged that the Stranger Respondents on December 1955, discriminatorily
discharged Tony Vitalich, Anton Bogdanovich, Dado Bariros, and Mitchell Vicovich.
The Stranger ceased fishing operations in 1955 some time in November and at
58 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that time the skipper, Larry Zuanich, said that he was going to South America at the
beginning of the new year and fish with a native crew. On or about December 30,
1955, the four crewmembers concerning whom complaint is made received the
clothes letter. On January 4, the Stranger left San Pedro without a crew and
fished in South American waters for some time thereafter. The Stranger was lost
at sea in early 1958 . Alone among the employees , Anton Bogdanovich testified
that some time in November Zuanich told him to look for another job because
Zuanich was going to deal with another union.
Stranger Respondents have never recognized Seine and Line. It seems obvious
and I find that the Stranger decided to quit fishing from San Pedro because of
economic considerations . I find no violation of the Act to be presented in the
circumstances that the Stranger left San Pedro without a crew and fished off
the South American coast until it was lost. Although I credit the undenied testimony
of Bogdanovich that Zuanich told him in effect that he could not work aboard the
vessel because of an intention to deal with another union , it is the fact that this
intention was not carried out. In the circumstances , I consider that a remedial
order as to this statement would be futile.
The Seine and Line Contract
In the Krist Grad is decision , supra, the Board found the vessels comprising
American Tuna Committee to constitute an appropriate unit for purposes of
bargaining. The contract of January 4, 1956, was signed on that date or later
by all members of ATC except for the Stranger. I consider the Board's finding as
to unit to be dispositive of any question in that particular and, in any event, make
the game finding.
Aside from the fact that the contract was signed at a time when a question
concerning representation existed with Local 33 and Seine and Line as rival
claimants to status as bargaining representative of the crewmembers in the unit,
it is clamorously evident that even in the absence of rival claim, Seine and Line
did not on January 4, 1956, or at any other time pertinent here represent an un-
coerced majority of the crews. On January 4, many less than half of the approxi-
mately 100 persons who eventually sailed as crewmembers had been hired. The
Employer Respondents did not know who would be hired; neither did Seine and
Line. Obviously no basis existed for Seine and Line to assert majority status or
the Employer Respondents to believe such an assertion if made. Plainly, Seine
and Line was recognized because to do so fell in nicely with the plan of the
Employer Respondents to divorce themselves from Local 33.
The contract resulting is alleged to be unlawful because it was signed with a
minority union, as it was, but also because of the following provisions:
Union Security
On or after the 30th day following an employee's first employment in the
Fishing Industry of San Pedro Harbor, or connected or associated therewith,
or following the date of this agreement , whichever is the later, such employee
shall become a member of the Union in good standing and shall, as a condition
of employment , continue and remain a member of the Union in good standing.
The parties hereto further recognize that the Union, as the exclusive bargain-
ing representative of all the crews covered by this agreement, does render
services in representing all said crews in collective bargaining They further
recognize that any non-union fisherman and/or individual performing work
in connection with the boat in any of the respects covered by this collective
bargaining agreement between the Union and the Master, and in consideration
of the terms of such agreement establishing wages, hours, and working condi-
tions, and the services performed by the Union in securing such wages, hours,
and working conditions , shall contribute "support money" to the Union in like
amount and terms as the Union dues and assessments and other contributions
required of Union members, 'and pursuant to the same conditions of a person
becoming or remaining a member of the Union , and the Master agrees in
further consideration of these premises that no individual shall be permitted
to perform any services on or in connection with the boat or the operation
thereof or engage actively in any fishing trip or the operation thereof, who
refuse to authorize checkoff of the amounts herein described in like manner
with the Union members. If any fisherman fails to pay the sum due the Union,
MV "LIBERATOR," ETC. 59
or any part thereof, the Employer agrees that within five (5) days after
receiving notice thereof from the Union, such fisherman shall be discharged.
If such fisherman is not discharged and continues to perform services on the
boat, his share of the catch shall accrue to that of and be distributed among the
other crew members as part of their share.
Checkoff
The Master shall pay to the Seine and Line Fishermen's Union of San Pedro
one half ('/z) of one percent (1%) of the gross share of each fisherman's
wage due him for his employment on the vessel, plus One Dollar ($1.00) per
month, plus any other Union assessments of which the Master is notified,
such amounts representing dues to the Union, as authorized in writing by the
individual members of the crew. A check for the amount due the Union
separately drawn in the amount of the total deductions due from each crew
member shall be delivered to the agent of the Union at the Union offices in
San Pedro, California. This deduction shall be made each time the crew is
paid. All tuna boats shall pay the One Dollar ($1.00) per month portion of
the dues to the Union for twelve months in advance upon completion of the
first trip under this contract.
I think that one requirement should be graved on stone and be carried about by
all who would negotiate union-security agreements. Phrase it so clearly and so
simply that any employee who may be affected by its terms is enabled to understand
it. The first paragraph under "Union Security" exemplifies the need. Who could
know surely whether within the meaning of that paragraph he was one who had been
"connected or associated" with the fishing industry of San Pedro Harbor. Perhaps,
if he had been working out of San Diego, he could conclude with some assurance
that he was not required to become a member of Seine and Line until 30 days after
his employment on an ATC vessel. But what if he had been working in a San
Pedro cannery; or in a boatyard where fishing vessels are maintained and repaired;
or in a business supplying to fishermen; or fishing from a small vessel for the fresh
fish market? I think that the contract language referred to might well apply and
be intended to apply to any or all of the individuals in the described situations. If
these comments appear somewhat captious, and I think that they are not, it remains
true that by this contract provision Seine and Line is attempting to impose upon
anyone who has fished on another vessel out of San Pedro and who perhaps is a
member of another labor organization, a requirement that he become a member
of Seine and Line immediately upon obtaining employment on an ATC vessel. It
is the equivalent of saying that anyone who fishes from San Pedro Harbor (passing
"connected or associated therewith") has somehow, without being given a voice in
the matter, subjected himself to the reach of Seine and Line sanctions. I think that
the contract is overreaching in this particular; that Seine and Line not being the
bargaining representative of all those employed "in the Fishing Industry of San
Pedro Harbor, or connected or associated therewith," or, indeed, of those employed
aboard the ATC boats, may not lawfully so condition continued employment with
an ATC employer.
The General Counsel characterizes the support money provisions of the contract
as "clearly illegal." I am referred to no authority to support this conclusion and
I have found none. I think it implicit in Union Starch & Refining Company (Grain
Processors' Independent Union, Local No. 1), 87 NLRB 779, enfd 186 F. 2d 1008
(C.A. 7), that at least in a situation where membership in a union is available,
support money provisions are not unlawful I find no violation of the Act in respect
to the support money provision.
It is argued that the requirement to pay "assessments and other contributions"
imposes upon employees something more ,than the burden of tendering the "periodic
dues and initiation fees" of which the Act speaks. The words "assessment" and
"contribution" have acquired an offensive gloss when used in connection with dues
payments. Counsel for Seine and Line asserts that the assessments and contributions
are, in fact, part of the dues structure and that the contract makes this clear. I
cannot agree. If his contention is correct, the offending words are unnecessary and
serve no purpose in the contract. But they are there and must be given their ordinary
meaning. The Act does not permit that continued employment be conditioned
upon such payments and their inclusion in a bargaining agreement imposes a require-
ment upon employees which I find to be unlawful.
60 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The General Counsel contends that conditioning continued employment upon the
execution of a checkoff authorization is unlawful. Upon consideration that an
employee is not required by the Act to do more than tender dues and initiation fees
and surely may satisfy that requirement by making the tender directly to the entitled
union rather than by means of employer deductions, I find merit in this contention
and find that the contract in that particular violates the Act.
To find the contract offensive to the Act in the requirement that dues be paid
12 months in advance may seem to be evidence of straining. The dues involved
amount only to $1 a month but I suppose that the principle is not to be minimized
by that circumstance. Dues to a labor organization are generally payable monthly
although I believe that a requirement of payment quarterly in advance may not be
uncommon. But when employment is conditioned upon payment I think that the
reasonableness of such a requirement may be scrutinized. Certainly, it is not a
reasonable application of the power given to a union under a valid union-shop
contract to exact a year's dues from an employee who may have an expectation
of only a few months employment. Some fishermen fill in for others for a trip or
two during a season and would find themselves required to pay dues for many
months when they might be employed outside the industry. Dues to Seine and
Line are assessed on a monthly basis and, thus, "periodic dues" as used in the Act
has reference here to a monthly period. Seine and Line could not lawfully condi-
tion employment upon a requirement that dues be paid for 12 periods in advance.
I do not interpret the contract as calling for the forfeiture of earnings by a crew-
member who does not comply with the contract conditions and thus find no merit
in the contention of the General Counsel in that particular. Similarly except to
the extent already found, I do not think that a fair reading of the contract imposes
a requirement that the $1 monthly dues be paid by those whose obligation to become
members of Seine and Line has not matured.
I find that Seine and Line by entering into a contract with ATC and the Respondent
Employers at a time when it was not the majority representative of the crews af-
fected restrained and coerced employees in the exercise of rights guaranteed in
Section 7 of the Act and thereby violated Section 8(b) (1) (A) of the Act.
By contracting so as to impose upon the crewmembers of the Respondent Em-
ployers an obligation to become and remain members of Seine and Line or to
contribute financial support to it, Seine and Line has caused or attempted to cause
the Respondent Employers to discriminate against employees in violation of Section
8(a) (3) of the Act and has thereby violated Section 8(b) (2) and (1) (A) of the Act.
The record does not support a finding that Seine and Line caused or attempted to
cause any of the discharges herein found to have been discriminatory. However, the
contract of January 4, 1956, constituted upon its execution and thereafter an at-
tempt to cause such forbidden discrimination and I find that the contract prevented
the Respondent Employers at all times following its execution from making uncon-
ditional offers of reinstatement to the unlawfully discharged crewmembers. The re-
sponsibility for this is no less that of Seine and Line than of the Employer Respond-
ents. I find the violation of Section 8(b) (2) and (1) (A) set forth in the paragraph
above to be a continuing one and thus Seine and Line will be required to participate
with the Employer Respondents in making whole the discharged employees for any
losses of earnings occurring after March 29, 1956, the date when Local 33 freed its
members to accept employment on ATC vessels upon any conditions they found it
necessary to accept.
W. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of ATC and the Respondent Employers occurring in connnection
with the activities of Seine and Line, have a close, intimate, and substantial relation to
trade, traffic, and commerce among the several States, and have led to labor disputes
burdening and obstructing commerce and the free flow of commerce.
V. THE REMEDY
Having found that Respondent Employers have contributed unlawful financial and
other assistance and support to Seine and Line and that ATC, the Respondent Em-
ployers and Seine and Line have restrained and coerced employees in the exercise of
rights guaranteed in Section 7 of the Act, including the right to join or assist labor
organizations or to refrain therefrom, it would not effectuate the policies of the Act to
permit Seine and Line to continue to enjoy a representative status which was foisted
upon the crewmembers and has been strengthened and perpetuated by unlawful con-
duct. It would not effectuate the policies of the Act to permit Seine and Line to re-
MV "LIBERATOR," ETC. 61
tain the payments which have been unlawfully exacted from the crewmembers or to
permit the Respondent Employers to reap the benefit of their unlawful recognition,
financial assistance, and support of Seine and Line at the expense of crewmembers. In
order therefore that the remedy may be commensurate with the unfair labor practices
found and that rights which have been denied be restored to the crewmembers, it
will be recommended that ATC and the Respondent Employers withdraw and with-
hold recognition from Seine and Line and cease giving effect to the current agreement
with that organization or to any modification, extension, supplement, or renewal
thereof, unless and until Seine and Line shall have established its majority status
pursuant to a Board-conducted election among the crewmembers involved. The Re-
spondent Employers are not, however, required to abandon or vary prices or wage
agreements or other lawful substantive features of the relationship between them and
their employees. It will also be recommended that the Respondent Employers and
Seine and Line jointly and severally reimburse all crewmembers who since January 4,
1956, have, as a condition of continued employment, been unlawfully required to
pay dues, initiation fees, assessments, or any other contributions to Seine and Line.
Having found that all of the Employer Respondents, except in connection with
Western Fisher, Golden West, and Stranger, have discriminatorily discharged em-
ployees it will be recommended that each such employee be offered immediate and
full reinstatement each to his former or substantially equivalent employment and that
each be made whole for any loss of earnings he may have sustained by reason of the
discrimination against him from March 30, 1956, to the date of offer of reinstate-
ment less net earnings during that period. Loss of pay shall be calculated in the
manner prescribed in F. W. Woolworth Company, 90 NLRB 289. The period for
backpay will begin on March 30, 1956, as that is the date of the day following the
abandonment by Local 33 of its policy to prevent its members from sailing on the
vessels comprising ATC. Seine and Line will be required jointly and severally
with the Employer Respondents to make the discharged crewmembers whole.
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, I make the following:
CONCLUSIONS OF LAW
1. Seine and Line and Local 33 are labor organizations within the meaning of
Section 2(5) of the Act.
2. By discriminating in regard to the hire and tenure of employees the Respondent
Employers, except only those operating Western Fisher, Golden West, and Stranger,
have engaged in and are engaging in unfair labor practices within the meaning of
Section 8 (a) (3) of the Act.
3. By entering into a union-security agreement with Seine and Line the Respondent
Employers, except the Stranger, have discriminated in regard to the hire and tenure
of employment of employees and have engaged in and are engaging in unfair labor
practices within the meaning of Section 8(a) (3) of the Act.
4. By recognizing and contracting with Seine and Line at a time when Seine and
Line was not the majority representative of the crewmembers affected and by there-
after contributing financial support to that organization, the Respondent Employers,
other than the Stranger, have engaged in and are engaging in unfair labor practices
within the meaning of Section 8(a) (2) of the Act.
5. By the discrimination in respect to employment, by assisting and supporting
Seine and Line, and by unlawfully contracting with Seine and Line, the Respondent
Employers, other than the Stranger, have engaged in and are engaging in unfair labor
practices within the meaning of Section 8(a) (1) of the Act.
6. By causing and attempting to cause the Respondent Employers to discriminate
against employees within the meaning of Section 8(a)(3) of the Act, Seine and
Line has engaged in and is engaging in unfair labor practices within the meaning
of Section 8(b) (2) of the Act.
7. By undertaking to act as collective-bargaining representative of crewmembers
of the Respondent Employers without having majority status and by contracting so
as to make membership in, or payment of dues to, Seine and Line as a condition of
continued employment, that organization has restrained and coerced employees in
the exercise of rights guaranteed in Section 7 of the Act, and has thereby engaged in
unfair labor practices within the meaning of Section 8(b) (1) (A) of the Act
8. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act. "
[Recommendations omitted from publication.]