National Maritime Union

National Labor Relations Board - Board Decisions

Aug 14, 1972

198 N.L.R.B. 887 (N.L.R.B. 1972)

NATIONAL MARITIME UNION 887
National Maritime Union of America, AFL-CIO and
Prudential-Grace Lines, Inc. and Seafarers' Inter-
national Union of North America, and its Affiliates
including the Sailors' Union of the Pacific. Case
2-CD-427
August 14, 1972
DECISION AND ORDER
By CHAIRMAN MILLER AND MEMBERS
FANNING AND JENKINS
Upon a charge filed on June 23, 1971, by
Prudential-Grace Lines, Inc., herein called the
Employer, and duly served on National Maritime
Union of America, AFL-CIO, herein called the
Respondent, the General Counsel of the National
Labor Relations Board, by the Regional Director for
Region 2, issued a complaint on February 9, 1972,
against Respondent, alleging that Respondent had
engaged in and was engaging in unfair labor
practices affecting commerce within the meaning of
Section 8(b)(4)(i) and (ii)(D) and Section 2(6) and (7)
of the National Labor Relations Act, as amended.
Copies of the charge, complaint, and notice of
hearing before a Trial Examiner were duly served on
the parties to this proceeding.
With respect to the unfair labor practices, the
complaint alleges in substance that the Respondent
violated the Act (1) by striking the Employer and
refusing to perform services with the object of
forcing and requiring the Employer to assign the
work of manning two ships, the Seajet and Oceanjet,
herein called Jets, to employees who were members
of, or represented by, the Respondent rather than to
employees who were members of, or represented by,
Seafarers' International Union of North America,
and its Affiliates including the Sailors' Union of the
Pacific, herein called SIU and (2) by failing and
refusing to comply with the terms of the Board's
January 20, 1972, Decision and Determination of
Dispute in the 10(k) proceeding.' On February 25,
1972, Respondent filed its answer to the complaint
admitting in part, and denying in part, the allegations
in the complaint.
On March 13, 1972, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment, submitting that the Respon-
dent's answer raises no issues which were not
previously considered and decided by the Board in
the 10(k) proceeding, and that the Respondent
admits that it has not and does not intend to comply
with the Board's Decision and Determination of
Dispute in that proceeding. Subsequently, on April 5,
1972, the Board issued an order transferring the
proceeding to the Board and a Notice To Show
Cause why the General Counsel's Motion for
Summary Judgment should not be granted. Respon-
dent thereafter filed a response to Notice To Show
Cause, called Memorandum in Opposition to Motion
for Summary Judgment, renewing its contentions
made in the prior 10(k) proceeding and submitting
that there is new evidence which indicates that
certain factual findings made by the Board in the
10(k) proceeding are no longer accurate, and that
such evidence requires a hearing on the Respondent's
work preservation objective. By letter dated May 31,
1972, the Respondent submitted an additional
newspaper clipping in support of its memorandum in
opposition. On June 5, 1972, the Employer filed a
reply to the Respondent's memorandum in opposi-
tion arguing against reexamining the Respondent's
work preservation defense and against holding a
hearing because the changed circumstances resulted
from the Employer's compliance with the Board's
10(k) determination. On June 8, 1972, the SIU also
filed a Memorandum in Opposition to the Respon-
dent's Memorandum.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
Upon the entire record in this proceeding, includ-
ing the record in the 10(k) proceeding and the
Board's Decision and Determination of Dispute
therein, the Board makes the following:
Ruling on the Motion for Summary Judgment
Pursuant to Section 10(k) of the Act, following a
charge filed by the Employer alleging that the
Respondent had violated Section 8(b)(4)(i) and
(ii)(D) of the Act, a hearing was held on September
14, 1971. On January 20, 1972, the Board issued a
Decision and Determination of Dispute2 in which it
concluded that the Respondent's work preservation
argument was without merit, found reasonable cause
to believe that the Respondent had violated Section
8(b)(4)(D) of the Act, and awarded the disputed
manning work to employees who were members of,
or represented by, the SIU rather than to employees
who were members of, or represented by, the
Respondent. Thereafter, the Regional Director is-
sued the complaint herein.
In its answer to the complaint and response to the
Notice To Show Cause, including the May 31, 1972,
submission, the Respondent asserts that additional
hearings are required to consider new evidence which
i National Maritime Union of North America , AFL-CIO (Prudential- 2 Ibid
Grace Lines, Inc), 194 NLRB No 199
198 NLRB No. 112
888 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
shows that the Employer has evinced a marked
change in the design of its operations by transferring
vessels other than the Jets and which allegedly
indicates that certain factual findings made by the
Board in the 10(k) proceeding are no longer accurate,
namely, that the introduction of LASH vessels made
the use of Jets on the East Coast economically
unfeasible. The Respondent also submits that, if no
additional hearings are ordered, the Board should
reconsider its conclusion that the Respondent's work
preservation defense is without merit because the
Board's conclusion in this regard was based on an
erroneous application of the facts.
With respect to the alleged new evidence submitted
by the Respondent, we have considered it and have
concluded that it does not raise matters warranting
or requiring additional hearings or a different result
with respect to the Respondent's work preservation
defense which was previously litigated in the 10(k)
proceeding. Assuming, arguendo, the accuracy of the
evidence now sought to be introduced by Respon-
dent, we are not persuaded that it would in any way
affect the ultimate determination previously reached
that Respondent claimed the disputed work involv-
ing the assignment of unlicensed seamen aboard the
Employer's vessels-the dispute arose over the
transfer and manning of the Jets-which are being
transferred from its East Coast to its West Coast
fleet. It is clear that Respondent's members have
never held jobs on the Employer's West Coast vessels
or those of its predecessor. The Board's prior
determination properly focused on Respondent's
object in engaging in the activities there set forth; the
new evidence now offered is immaterial because it
concerns, rather, alleged, recent changes in the
Employer's plans. As a matter of logic, that can have
no effect on what the Respondent's object was in
engaging in threats and other activities previously.
Thus, the Board adheres to its prior view and finding
that this is not a case in which the Respondent is
attempting to protect and preserve work, but rather
is attempting to expand its traditional domain to
acquire work which it never performed. Moreover,
we note that the.proffered evidence deals with the
transfer of vessels other than the Jets and that, in its
Decision and Determination of Dispute, the Board
had considered the likelihood of such further
transfers and had therefore issued a broad award to
3 In its answer to the complaint , the Respondent admits that it advised
the Board that it did not intend to comply with the Board's 10(k)
determination While generally denying the allegation in par 8 of the
complaint that it had engaged in a strike and refusal to perform services, the
Respondent 's admission to complaint par 7 that it stated on June I , 16, and
18, 1972, that the two Jets would not be manned for voyages to the West
Coast unless the Employer agreed that they be manned by employees
represented by the Respondent establishes the aforesaid denied allegation
which is found to be true The Respondent 's denials of sufficient knowledge
cover such future transfers. As all material issues
have been previously decided by the Board or
admitted by the Respondent in its answer,3 and as
the new evidence which Respondent now seeks to
offer would not affect our previous determination
with respect to Respondent's object in threatening
and coercing the Employer, we find that no addition-
al hearings are warranted or required, and grant the
General Counsel's Motion for Summary Judgment.
On the basis of the entire record, the Board makes
the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER
The Employer is and has been at all material times
herein a Delaware corporation with its principal East
Coast office located at New York, New York. It is
engaged in the business of operating American Flag
vessels to transport goods by water in interstate and
foreign commerce.
During the past year, a period representative of its
annual operations generally, the Employer derived a
gross revenue from its business in excess of $50
million.
We find, on the basis of the foregoing, that
Prudential-Grace Lines is, and has been at all times
material herein, a person and an employer engaged
in commerce and in an industry affecting commerce
within the meaning of Section 2(1), (2), (6), and (7) of
the Act, and that it will effectuate the policies of the
Act to assert jurisdiction herein.
II. THE LABOR ORGANIZATIONS INVOLVED
National Maritime Union of America , AFL-CIO,
and Seafarers ' International Union of North Ameri-
ca, and its Affiliates including the Sailors' Union of
the Pacific, are labor organizations within the
meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Background and Facts of the Dispute
Since 1938, the Respondent has represented em-
ployees of the Employer and its predecessors
manning vessels of the Employer's East Coast fleet
operating out of Atlantic and Gulf ports. Since 1965,
the SIU has represented employees of the Employer
and information to form a belief as to complaint allegations in par 4
relating to the history of the Employer' s operations and par 5 relating to the
Employer's decision early in April to transfer the two Jets to the West Coast
are stricken as frivolous and the allegation found to be true because such
facts alleged were presented to, and considered and found by, the Board in
the 10(k) proceeding Finally, while the Respondent denies the proscribed
object alleged in par 12 of the complaint , the Board had also considered
and adjudicated adversely to the Respondent this issue and therefore we
find the allegation in par 12 to be true
NATIONAL MARITIME UNION
and its predecessor manning vessels of the Employ-
er's West Coast fleet. Early in 1971, the Employer
decided to transfer the two Jets from its East, Coast
to its West Coast fleet and, based on prior practice
and custom, the Employer assumed that the Jets
would be manned on the West Coast by employees
represented by the SIU. In early April, and on June
1, 16, and 18, 1971, the Respondent demanded that
the jobs for the unlicensed seamen on the Jets be
assigned to its members and refused to man and sail
the vessels to the West Coast without a prior work
assignment commitment to the Respondent. As a
result, the Jets have not been transferred to the West
Coast.
B. The Determination of the Dispute
On January 20, 1972, the Board issued its Decision
and Determination of Dispute assigning the work of
unlicensed seamen aboard the Employer's Jets which
are being transferred from its East Coast to its West
Coast fleet and aboard any other vessels that may
hereafter be transferred from its East Coast to its
West Coast fleet to employees represented by the
SIU. The Board also found that the Respondent was
not entitled by means proscribed by Section
8(b)(4)(D) of the Act to force or require the
Employer to assign such work to individuals repre-
sented by the Respondent.
C. The Respondent's Refusal To Comply
In addition to its strike and refusal to perform
services, the Respondent has refused, and continues
to refuse, to comply with the Board's Decision and
Determination of Dispute that it is not entitled to
force or require the Employer to assign the disputed
work to the unlicensed seamen represented by it.
On the basis of the foregoing, and the entire record
in this proceeding, we find, as described above, that
the Respondent's strike and refusal to perform
services and its refusal to comply with the Board's
Decision and Determination of Dispute violated
Section 8(b)(4)(ii)(D) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR
PRACTICES UPON COMMERCE
The activities of Respondent set forth in section
III, above, occurring in connection with its opera-
tions described in section I, above, have a close,
intimate, and substantial relationship to trade,
traffic, and commerce among the several States and
tend to lead to labor disputes burdening and
obstructing commerce and the free flow of com-
merce.
V. THE REMEDY
889
Having found that Respondent has engaged in and
is engaging in unfair labor practices within the
meaning of Section 8(b)(4)(i) and (ii)(D) of the Act,
we shall order that it cease and desist therefrom, and
take certain affirmative action designed to effectuate
the purposes of the Act.
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
CONCLUSIONS OF LAW
1. Prudential-Grace Lines, Inc., is an employer
engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. National Maritime Union ' of America,
AFL-CIO, and Seafarers' International Union of
North America, and its Affiliates including the
Sailors' Union of the Pacific, are labor organizations
within the meaning of Section 2(5) of the Act.
3. The Respondent has violated and is violating
Section 8(b)(4)(i) and (ii)(D) of the Act (1) by striking
and refusing to perform services for the Employer
with the object of forcing and requiring the Employ-
er to assign the work of manning the Jets being
transferred from its East Coast to its West Coast fleet
to employees who are members of, or represented by,
the Respondent by means proscribed by Section
8(b)(4)(i) and (ii)(D) of the Act and (2) by failing and
refusing to comply with the Board's Decision and
Determination of Dispute which also covers the
manning of any other of the Employer's vessels that
may hereafter be transferred from its East Coast to
its West Coast fleet.
4. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the mean-
ing of Section 2(6) and (7) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor
Relations Board hereby orders that Respondent,
National Maritime Union of America , AFL-CIO, its
officers , agents, and representatives , shall:
1. Cease and desist from refusing to comply with
the Board 's Decision and Determination of Dispute
or striking or refusing to perform services for
Prudential-Grace Lines , Inc., or any other persons
engaged in commerce or an industry affecting
commerce , where an object is to force or require
Prudential-Grace Lines , Inc., to assign the work of
manning the two Jets , the Seajet and Oceanjet, being
transferred from its East Coast to its West Coast
fleet, or any other vessels that may be transferred
from its East Coast to its West Coast Fleet, to
890 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees who are members of, or represented by,
National Maritime Union of America, AFL-CIO,
rather than to employees who are members of, or
represented by, Seafarers' International Union of
North America, and its Affiliates including the
Sailors' Union of the Pacific.
2. Take the following affirmative action which
the Board finds will effectuate the policies of the Act:
(a) Post at its business offices and meeting halls
copies of the attached notice marked "Appendix."4
Copies of said notice, on forms provided by the
Regional Director for Region 2, after being duly
signed by Respondent's representative, shall be
posted by Respondent immediately upon receipt
thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all
places where notices to members are customarily
posted. Reasonable steps shall be taken by Respon-
dent to insure that said notices are not altered,
defaced, or covered by any other material.
(b) Furnish the Regional Director for Region 2
signed copies of such notice for posting by the
Employer, if willing, in places where notices to
employees are customarily posted.
(c) Notify the Regional Director for Region 2, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
4 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall be changed to read "Posted
Pursuant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board "
APPENDIX
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
Decision and Determination of Dispute awarding
the work of manning Prudential -Grace Lines,
Inc.'s Jets being transferred from its East Coast to
its West Coast fleet or any other vessels that may
be transferred from its East Coast to its West
Coast fleet , or to strike and refuse to perform
services for Prudential -Grace Lines, Inc., or any
other persons engaged in commerce or an
industry affecting commerce , where an object is
to force or require Prudential -Grace Lines, Inc.,
to assign such manning work to employees who
are members of, or represented by, National
Maritime Union of America , AFL-CIO, rather
than to employees who are members of, or
represented by, Seafarers ' International Union of
North America, and its Affiliates Including the
Sailors' Union of the Pacific.
NATIONAL MARITIME
UNION OF AMERICA,
AFL-CIO
(Labor Organization)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be
altered, defaced, or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, 36th Floor, Federal Building, 26
Federal Plaza, New York, New York 10007. Tele-
phone 212-264-3311.
WE WILL NOT refuse to comply with the Board's