Natl. Maritime Union

National Labor Relations Board - Board Decisions

Jan 24, 1969

174 N.L.R.B. 216 (N.L.R.B. 1969)

216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
National Maritime Union of America , AFL-CIO and
Overseas Carriers Corporation . Case 20-CP-277
January 24, 1969
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND ZAGORIA
On September 26, 1968, Trial Examiner David
Karasick issued his Decision in the above-entitled
proceeding, finding that Respondent had engaged in
and was engaging in certain unfair labor practices,
and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision.
Thereafter, the General Counsel filed the brief he
had previously submitted to the Trial Examiner.
Respondent filed exceptions to the Trial Examiner's
Decision and a supporting brief. The Charging Party
filed a brief in support of the Trial Examiner's
Decision and a brief in answer to Respondent's
exceptions and brief.
Pursuant to the provisions of Section 33(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions, the briefs, and
the entire record in this case, and hereby adopts the
findings, conclusions, and recommendations of ,the
Trial Examiner with one modification.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby adopts as its Order the
Recommended Order of the Trial Examiner, and
orders that Respondent, National Maritime Union
of America, AFL-CIO, its officers, agents, and
representatives, shall take the action set forth in the
Trial Examiner's Recommended Order.
'The Trial Examiner 's inadvertent error in stating that title to the
Horace Luckenbach passed to Overseas Tramps is hereby corrected to find
that title passed to Overseas Carriers Corporation.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
DAVID KARASICK, Trial Examiner This proceeding
under 10(c) of the National Labor Relations Act, herein
called the Act, was heard at San Francisco, California, on
May 22, 23, and 24, 1968, pursuant to due notice. The
complaint, dated April 12, 1968, as amended at the
hearing, was based upon a charge filed on February 16,
1968, by Overseas Carriers Corporation, herein called the
Charging Party or Overseas Carriers, and alleged that
National Maritime Union of America, AFL-CIO, had
engaged in unfair labdr practices within the meaning of
Section 8(b)(7)(A) of the National Labor Relations Act,
as amended.
On the entire record' in the case, including the able and
helpful briefs filed by the General Counsel, the Charging
Party and the Respondent, and from my observation of
the demeanor of the witnesses, I make the following:
FINDINGS OF FACT
1. BUSINESS OPERATIONS OF THE EMPLOYER
Overseas Carriers, a New York corporation with its
principal office and place of business in New York City, is
engaged in interstate and foreign waterborne shipping
operations. During the past year, Overseas Carriers
received more than $1,000,000 for its services in
transporting cargo between ports in different states of the
United States and between United States ports and ports
of foreign countries. I find that, at all times material
herein, Overseas Carriers has been an employer within the
meaning of Section 2(2) of the Act, engaged in commerce
and in operations affecting commerce within the meaning
of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
National Maritime Union of America, AFL-CIO,
herein called the NMU or the Respondent, and Seafarers
International Union of North America, herein called the
SIU, are labor organizations within the meaning of
Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES ALLEGED
A. The Issues
1. Whether the NMU violated Section 8(b)(7)(A) of the
Act by picketing the SS Overseas Horace commencing on
February 15, 1968, and the SS Overseas Lena
commencing on April 1, 1968.
2. Whether the foregoing vessels are to be considered as
accretions to a fleetwide unit covering the unlicensed
crews on ships owned by Overseas Carriers as a result of
the purchase of those vessels by Overseas Carriers in
December 1967 and their transfer of title on or about
February 15, 1968, and April 1, 1968.
3. Whether Overseas Carriers, as the result of being
party to a collective-bargaining agreement with the SIU
covering unlicensed crew members on its vessels, was
entitled to recognize the SIU, rather than the NMU, as
the collective-bargaining representative of the unlicensed
crew on the SS Overseas Horace and the SS Overseas
Lena.
B. The Facts
1. Introduction
This case arose as the result of picketing by the NMU
of two ships, the SS Overseas Horace from February 15
to April 3, 1968, and the SS Overseas Lena from April I
'The unopposed, posthearing motions of the General Counsel and the
Charging Party to correct certain portions of the transcript are hereby
granted
174 NLRB No. 36
NATL. MARITIME UNION 217
to 3, 1968.
Essentially, the validity of the picketing depends upon
the legal effect to be given the sale and transfer of title to
the vessels in question. The sale, and the events which led
to it, occurred in a setting of . complicated corporate
transactions. Primarily involved in these transactions were
the MOC Group of seven individuals who own all or
controlling interest in 13 American corporations, in
addition to other interests in foreign corporations which
are not involved in this proceeding; Maritime Overseas
Corporation, a corporation formed in January 1953 by the
MOC Group for the purpose of acting as agent to manage
and operate vessels owned by various MOC corporations;
and Luckenbach Steamship Company. These were the
three original entities principally involved beginning in
1961. But as time went on and further transactions
occurred, other corporations were formed. To assist in
identifying the various entities involved in this case, their
names and the abbreviations used to distinguish them
hereafter are set forth in the margin below.'
Maritime Overseas is solely a service organization
which manages ships but owns no vessels or stock in any
shipping corporation. At present, the 13 corporations in
the MOC Group share offices with Maritime Overseas
and use its clerical staff. The individual corporations
comprising the MOC Group employ the members of the
crews aboard the vessels which they own, but have no
shoreside employees except their officers and directors.
Those companies of the MOC Group which own ships use
their vessels in world-wide tramp service. The American
Merchant Marine consists of two main segments, one of
which consists of "liner" vessels which are common
carriers. The second segment of the industry consists of
tramp ships which are not common carriers and which
operate under various forms of charter. Such
arrangements are known as time charters in which a vessel
is used by the chartering party for a designated period of
time at a specified rate computed on a daily or monthly
basis; and voyage charters in which case the chartering
party has use of the vessel to move a designated cargo
from a port in one country to a port in another country
regardless of the period of time involved. Under either of
these two forms of charter, the charterer has use of the
vessel but the owner of the ship is responsible for its
operation and provides necessary repairs and supplies and
furnishes the crews. In addition, there are bareboat
charters where the chartering party hires an empty vessel.
In such a case, the charterer secures the crews and
supplies and is responsible for repairs to the same extent
as though he were the owner. The MOC Group has
always chartered its vessels either on a time or voyage,
but never on a bareboat, basis.
°Luckenbach Steamship Company (Luckenbach Steamship); Luckenbach
Overseas Corporation (formed in 1961) (Luckenbach Overseas); MOC
Group , (the seven investors ) (MOC Group ); Maritime Overseas
Corporation , the operating agent, (Maritime Overseas ), Overseas Carriers
Corporation (Overseas Carriers ); Overseas Tramp Ships , Inc„ formerly
Luckenbach Overseas Corporation, (Overseas Tramps).
In addition to the foregoing , reference will hereafter be made to
American Merchant Marine Institute , herein called AMMI, American
Maritime Association, herein called AMA, SS Horace Luckenbach (now
Overseas Horace ); and SS Lena Luckenbach , (now Overseas Lena) (The
foregoing designations have been adopted from the General Counsel's
brief.)
2. The Luckenbach Shipping Interests
Until recent years, Luckenbach Steamship sailed vessels
in the American Merchant Marine for over a century.
Until 1961, the company operated a liner type service
between ports on the Pacific Coast of the United States,
via the Panama Canal to North Atlantic ports.' In the
operation of its vessels after 1937 or 1938, Luckenbach
Steamship had been party to successive
collective-bargaining agreements with the NMU. These
agreements were negotiated on an industrywide basis with
the AMMI, an employer-association, of which
Luckenbach Steamship was a member. In 1959, the
Luckenbach Steamship fleet consisted of 17 vessels. In
that year the estate of Commodore Edgar Luckenbach,
the second generation head of the company, was settled
and an $8 million inheritance tax obligation was owed to
the Government. At that time, Luckenbach Steamship
sold nine of its vessels to satisfy the tax obligations of the
estate. As a result of the sale of these nine vessels, it'
reduced its service in the intercoastal trade from a weekly
to a fortnightly schedule.
In 1960, as a result of large losses in the intercoastal
trade due to the competition of railroads and the
increased cost of operations, the company found it
necessary to sell two more of its ships. Subsequent efforts
to modernize its fleet and institute a containership
program failed. At this point, the company began to phase
out its intercoastal service, put its ships off shore on
charter voyages and close up many facilities located on
both coasts of the United States. The Luckenbach fleet
dwindled to five ships, one of which was placed on the
market late in 1960 through A. L. Burbank & Company,
a ship broker in New York City, who introduced the
company to the MOC Group.
3. Negotiations between Luckenbach Steamship and
the MOC Group; formation of Luckenbach Overseas
and Overseas Carriers
The negotiations which followed were carried on over a
period of several weeks. Instead of culminating in the sale
of a single vessel, Luckenbach Steamship and the MOC
Group agreed to engage in the steamship business as a
joint venture. On March 15, 1961, the two entities entered
into a contract which provided, inter alia, for the
following.
(1) The formation of two corporations, Luckenbach
Overseas Corporation, herein called Luckenbach
Overseas, and Overseas Carriers Corporation, herein
called Overseas Carriers. Stock of each of the two new
corporations to be divided equally between Luckenbach
Steamship and the MOC Group, each holding 50%, and
each empowered to elect half of the board of directors
in each of the new corporations.
(2) The three officers of Luckenbach Overseas to be
the president, executive vice-president, and secretary of
Luckenbach Steamship. The officers of Overseas
Carriers to be three of the MOC Group principals.
(c) Overseas Carriers to purchase one ship from
Luckenbach Steamship, the SS Robert Luckenbach, to
be renamed Overseas Rose. Overseas Carriers to
purchase three additional ships from the MOC Group,
the latter three vessels to be named or renamed the
Overseas Eva, the Overseas Joyce, and the Overseas
3A liner operation is a regularly scheduled service on stated days of the
week to regularly scheduled ports.
218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Rebecca. Luckenbach Overseas to purchase the four
remaining ships owned by Luckenbach Steamship.
(d) Luckenbach Overseas and Overseas Carriers to
appoint Maritime Overseas as managing agent for all
ships owned by each of the two corporations for an
average fee of $2000 per month per ship plus a
stipulated brokerage fee based on charter earnings.
The provisions of this contract were fully carried out by
each of the parties. When the SS Robert Luckenbach was
sold to Overseas Carriers by Luckenbach Steamship, its
unlicensed crew, which was composed of members of the
NMU, was replaced by an SIU crew. No protest was
made by the NMU on that occasion.
From 1961 to 1967, Luckenbach Overseas and Overseas
Carriers operated separate corporations. Luckenbach
Overseas maintained its offices in the building occupied by
Luckenbach Steamship; its officers were all officers of
Luckenbach Steamship; and the Luckenbach house flag,
stack mark, and bow emblem remained on the ships
owned by Luckenbach Overseas. Collective-bargaining
agreements were signed by Luckenbach Overseas with the
NMU as well as with other unions representing maritime
employees such as the Masters, Mates and Pilots, the
Marine Engineers Beneficial Association; and the
American Radio Operators Association. During this
period, from 1961 to 1967, the collective-bargaining
agreements to which the NMU and Luckenbach Overseas
were parties, had been negotiated on behalf of
Luckenbach Overseas by the AMMI and were signed by
officers of Luckenbach Overseas. The MOC Group took
no part in the negotiation of these contracts. The officers
and employees of Luckenbach Overseas and the crew
members on board Luckenbach Overseas ships were all on
the payroll of Luckenbach Overseas Tax reports covering
wages for the unlicensed crew members showed the
employer to be Maritime Overseas as agent for
Luckenbach Overseas.
On the other hand, Overseas Carriers was an affiliate
of the MOC Group and its officers remained MOC Group
principals; the MOC house flag, stack mark and bow
emblems were placed on Overseas Carriers' ships,
including the vessel formerly owned by Luckenbach
Steamship; its officers were located in the Maritime
Overseas Building where it maintained its corporate
records and shared the clerical staff, telephone and office
staff of Maritime Overseas.
On March 21, 1961, Overseas Carriers, following the
practice which had been followed by other MOC Group
corporations, recognized the SIU as the bargaining
representative of all unlicensed personnel aboard its ships
and on that date entered into a collective-bargaming
agreement with the SIU. According to the terms of that
contract, Overseas Carriers agreed to secure all unlicensed
personnel through the hiring halls of the SIU. Thereafter,
Overseas Carriers entered into successive
collective-bargaining agreements with the SIU, all of
which were negotiated on its behalf by the AMA, of
which Overseas Carriers was a member, and all of which
were signed by officers of Overseas Carriers. These
contracts were identical to those signed by other MOC
Group companies The officers and employees of Overseas
Carriers, other than the crew members on board its ships,
were all on the payroll of Maritime Overseas, as were
other MOC Group companies. During this period. from
1961 to 1967, unlike Luckenbach Overseas which operated
the four vessels it owned without attempting to expand its
activities by additional ships, Overseas Carriers expanded
its operations to include the sale of three ships, the
purchase of a number of other ships, the creation of two
subsidiaries, and the construction of another vessel.
As previously noted, Overseas Carriers and Luckenbach
Overseas entered into an agency agreement with Maritime
Overseas. By the terms of this agreement, Maritime
Overseas, as an agent, was to operate the vessels owned
by each of the two companies and provide chartering and
accounting services Maritime Overseas was empowered to
carry out the terms of the collective-bargaining
agreements covering the unlicensed personnel of each of
the two corporations.' As previously noted, the contracts
between Overseas Carriers and the SIU, which were
signed by officers of Overseas Carriers, had been
negotiated on behalf of that company by the AMA, while
the contracts between Luckenbach Overseas and the
NMU which had been signed by officers of Luckenbach
Overseas were negotiated on behalf of that company by
the AMMI and were signed by officers of Luckenbach
Overseas. The basic labor policies of Luckenbach
Overseas, on the one hand, and of Overseas Carriers on
the other hand, were determined in each instance by each
of those companies separately rather than by Maritime
Overseas, which, through its port captain or other
representatives, merely carried out the policies so
determined in each instance.
From 1961 to 1967, Luckenbach Steamship expanded
its shoreside enterprises which included building terminals,
operating general agencies , and increasing its stevedoring
services. By the latter part of 1967, Luckenbach
Steamship's operations in this area required additional
working capital. The company was also faced at this time
with an outstanding claim due the City of New York and
payment of a note held by a New York City bank.
4. The 1967 Transactions Between Luckenbach
Steamship and the MOC Group
In late 1967, Luckenbach offered to sell 20 percent of
the 50 percent of its holdings in both Luckenbach
Overseas and Overseas Carriers. Two MOC Group
corporations (Ocean Clippers, Inc. and Intercontinental
Carriers, Inc.) offered to purchase this stock at a total
price of $400,000 and agreements to that effect were
entered into by the parties on December 7, 1967. By the
terms of these agreements, Luckenbach Steamship
received $400,000 in promisory notes which it discounted
for cash and deposited to its account. As a result of this
sale, the MOC Group now held 60 percent of the stock in
Overseas Carriers and in Luckenbach Overseas and
Luckenbach Steamship held the remaining 40 percent in
each of those two corporations.
On December 21, 1967, the four officers of Luckenbach
Overseas, all of whom had been identified with
Luckenbach Steamship, resigned and were succeeded by
four officers associated with the MOC Group; two MOC
Group principals were added to the board of directors,
thus increasing the board from six to eight members; and
the' name of the corporation was changed from
Luckenbach Overseas to Overseas Tramp Ships, Inc.,
herein called Overseas Tramps. Thereupon, the newly
named corporation moved its office to the offices of
'The managing agreement provides that Maritime Overseas is
responsible for the "execution of all labor agreements." The evidence
indicates that the term "execution" as used in the agreement was intended
to, and did in fact , refer to the implementation of the terms of the
collective-bargaining contracts between Luckenbach Steamship and the
NMU and Overseas Carriers and the SIU rather than the negotiation and
signing of such contracts by the principals in each instance.
NATL. MARITIME UNION
Maritime Overseas.
Later, but effective as of December 21, 1967,
Luckenbach Steamship canceled a $9,000,000 excess
"umbrella" insurance policy. This policy had protected
Luckenbach Steamship and its affiliated companies during
the period between 1961 and 1967 and had covered the
four vessels owned by Luckenbach Overseas. It was
canceled because the underwriter's requirement of 50
percent control of an affiliate no longer existed. At the
same time , the workman's compensation insurance policy
which had covered the corporate officers of Luckenbach
Overseas was canceled because the officers were no longer
employees of that corporation.
Following this transaction, and also on December 21,
1967, Luckenbach Overseas sold the four ships it then
owned to Overseas Carriers in exchange for 10,000 shares,
or 80 percent of the latter's stock. The shares of stock
were deposited with an escrow agent to deliver upon
receipt of an executed copy of the bill of sale and a
certificate of delivery of the vessels which the parties
agreed would be made to Overseas Carriers between
February 1 and May 31, 1968. An explanation of the
purpose of this sale was given by Milton Kliger, one of
the principals of the MOC Group and treasurer of
Overseas Carriers, who testified without contradiction that
the four ships owned by Luckenbach Overseas were fully
depreciated, which meant that any earnings of those
vessels would be exposed to taxes; that Overseas Carriers,
through subsidiary corporations, owned other vessels in
which there was a great deal of depreciation; that
Overseas Carriers could therefore be placed in a position
to file consolidated tax reports as provided for in the
Internal Revenue Code and take advantage of the
depreciation of the ships which it already owned to offset
the future earnings of the four Luckenbach Overseas
vessels; that to qualify as a subsidiary to file such a
consolidated tax return, Overseas Carriers exchanged 80
percent of its stock for the four Luckenbach Overseas
vessels, which meant that Luckenbach Overseas would no
longer own any ships but instead would own 80 percent of
the stock of Overseas Carriers which in turn owned 100
percent of its two subsidiaries, thus creating four
companies in a consolidating group; and finally that
Overseas Carriers required the earnings of the four
additional ships in question for the construction of new
vessels and otherwise to further its own business purposes.
As a result of these two transactions: first, the sale on
December 7 by Luckenbach Steamship of 20 percent of its
holdings in Luckenbach Overseas and in Overseas Carriers
to the two MOC Group corporations (Ocean Clippers,
Inc. and Intercontinental Carriers, Inc.); and second, the
sale on December 21 by Luckenbach Overseas of its four
vessels to Overseas Carriers, the interest of Luckenbach
Steamship in Overseas Carriers and in Luckenbach
Overseas (now Overseas Tramps) was reduced in each
instance from 50 percent to 40 percent and Luckenbach
Steamship became a minority shareholder in each of the
two corporations.' By acquiring the four vessels from
Luckenbach Overseas, Overseas Carriers then owned six
ships.
'Stated in other terms , 60 percent of the shares of Overseas Tramps was
held by the MOC Group and 40 percent by Luckenbach Steamship
Overseas Tramps, in turn, owned 80 percent of the shares of Overseas
Carriers Of the remaining 20 percent of the shares of Overseas Carriers, 8
percent was owned by Luckenbach Steamship (40 percent of 20 percent)
and 12 percent by the MOC Group (60 percent of 20 percent).
2.19
5. Picketing of the SS Overseas Horace and the SS
Overseas Lena
As each of the four vessels which had been sold arrived
in port, a bill of sale and certificate of ownership was
executed and title then passed to Overseas Carriers. Upon
delivery, the name of each vessel was changed , the MOC
house flag replaced the Luckenbach flag and the MOC
insignia was painted on the bow and other parts of each
vessel.'
The Horace Luckenbach arrived in San Francisco on
February 5, 1968. The crew signed off foreign articles and
was paid from funds of Luckenbach Overseas. On
February 6, the crew was put on port payroll. On
February 13, title to the ship passed to Overseas Tramps.
On the morning of February 13, the master of the vessel
posted the following notice on the ship ' s bulletin board
and on the mess hall tables:
NOTICE TO ALL HANDS:
This vessel is sold . All crew members will be paid off
through Tuesday , February 13, 1968 at 0830 hours
today. All crew members will please remove all their
personal belongings and vacate the vessel immediately
after receiving their wages.
/s/ C. W. Hodson,
Master
The NMU crewmembers refused, however, to accept their
wages and would not leave the ship. On the same day,
NMU Patrolman Richard Hughes told Captain Diaz, port
captain or field representative from Maritime Overseas:
"We are going to stay aboard this vessel come hell or
high water, and we are going to disregard the captain's
and your orders to get off the vessel." Also on the same
day, NMU Field Patrolman Woodie Nayer called Diaz
and said: "What the hell are you doing, selling this ship or
something? You can't do this. We have an agreement with
Mr. Luckenbach that he has to keep an NMU crew." On
February 14, NMU Patrolman Bill Userlich told Diaz:
"Captain, you are in trouble. If we lose in court, we are
going to put a picketline around the main gate, and you
are going to lose, and we are going to man this ship when
it sails."'
The NMU crew members remained on board the ship
until February 15, when they left the vessel following an
order issued by a United States District Court in a
possessory libel action filed by Overseas Carriers to regain
possession of the ship.
As noted above, Overseas Carriers was party to a
contract with the SIU, covering unlicensed crewmembers
aboard its ship. This contract contained an exclusive
hiring hall provision. Pursuant to the terms of the
contract, Overseas Carriers replaced the NMU crew with
an SIU crew which had been hired through the SIU hiring
hall. The vessel at this time was at the Bethlehem
'After their arrival in San Francisco , all four vessels were delivered on
the following dates and their names changed as shown below-
Vessel Date of Delivery New Name
Horace Luckenbach 2/13/67 Overseas Horace
Lena Luckenbach 4/ 1/68 Overseas Lena
Edgar Luckenbach 4/19/68 Overseas Edgar
Audrey Luckenbach 4/29/68 Overseas Audrey
'The foregoing findings regarding the statements made by Hughes,
Nayer and Userlich are based upon the undenied testimony of Diaz
220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
shipyard undergoing repairs. When the SIU crew boarded
the vessel, the NMU set up a picketline outside the gates
of the shipyard The picket signs read as follows
National Maritime Union Protests Lockout of
Unlicensed Crew of S.S. OVERSEAS HORACE (ex
S.S. HORACE LUCKENBACH). We have no dispute
with any other employers on this site.
On March 30, 1968, the SS Lena Luckenbach arrived
in San Francisco. On April 1, title to the vessel was
transferred from Luckenbach Overseas to Overseas
Carriers and the name of the vessel was changed from the
Lena Luckenbach to the Overseas Lena. On the same
date, the Respondent picketed the Overseas Lena with
signs bearing a legend identical with that used in the
picketing of the Overseas Horace. Picketing of both ships
ceased after a Temporary Restraining Order was issued by
the Federal District Court on April 3, 1968, and a
Temporary Injunction, under Section 10 of the Act, on
April 25, 1968 8
James Martin, vice president of the Respondent,
testified that the NMU had decided to picket the Overseas
Horace and the Overseas Lena in protest against the
lockout and firing of the NMU crews; that the
Respondent believed that it was entitled to continued
recognition as the bargaining representative for the
unlicensed crew; and that the only thing the Respondent
wanted was to keep an NMU crew aboard the vessels
under NMU contract.'
On February 13, 1968, at 12:14 p.m., Eastern Standard
Time, Edgar F. Luckenbach, Jr., president of Luckenbach
Overseas, sent a telegram to Joseph Curran, president of
'the NMU, advising Curran that Luckenbach Overseas had
sold its four vessels. At 2:26 p.m. on the same date,
Curran sent a telegram to Luckenbach saying that Curran
had been advised by one of his officials that Luckenbach
had entered into an agreement to transfer its four ships;
that no notice of any kind had been given to the NMU
prior to that day; that the unilateral action of Luckenbach
Overseas was a breach of its collective-bargaining
agreement with the NMU and violated the provisions of
the National Labor Relations Act which required an
employer to negotiate with a union prior to transferring
all or a portion of its operations to another company. The
telegram requested that Luckenbach Overseas meet with
the NMU and discuss the matter before the transfer was
completed. At 6:16 p.m., Luckenbach again wired Curran,
stating, in response to the latter's telegram that afternoon,
that discussion of the matter would serve no purpose since
title to the SS Horace Luckenbach had passed that
morning.
On the following day, February 14, 1968, Curran again
sent a telegram to Luckenbach Overseas stating that the
first telegram which the company had sent had indicated
that it had sold all four vessels in its fleet but its second
telegram only referred to the sale of the Horace
Luckenbach; that there was no apparent reason why the
company could not meet with the NMU to discuss the
'No picketing occurred with respect to the Overseas Edgar or the
Overseas Audrey.
'While the unlicensed crew members aboard the ships who were
members of the NMU were replaced by other personnel who were
members of the SIU, the licensed officers who were represented by other
unions (Masters, Mates & Pilots Union, Marine Engineers Beneficial
Association ; and American Radio Operators Association ) remained aboard
the vessels after title was transferred since Overseas Carriers had
collective-bargaining agreements with each of those unions for supplying
officers within their respective jurisdictions.
three vessels whose title had not yet passed. Curran again
requested that Luckenbach Overseas meet with the NMU
to bargain about the proposed transfer of title of the ships
as well as any possible effects the transaction might have
on the unlicensed crewmembers.
Thereafter, Luckenbach agreed to meet with the NMU
and such a meeting was held on February 27, which was
attended by representatives of both parties. The NMU
representatives at this meeting stated that their purpose
was to get the NMU members back on the four
Luckenbach ships and further stated that the remaining
three vessels had not yet arrived and that they were going
to make certain that the crews on those ships remained on
them.'"
In the meantime, on February 13, Curran sent a
telegram to Overseas Carriers stating that the NMU had
been advised that title to the four Luckenbach Overseas
vessels was being transferred to Overseas Carriers; that
the Union had a collective-bargaining agreement with
Luckenbach Overseas covering these vessels, that the
NMU demanded that Overseas Carriers, as a successor
employer, meet with the NMU to discuss fulfilling its
obligations under the collective-bargaining agreement
"and to discuss conditions of employment affecting your
unlicensed crew members." On the same date, in response
to this telegram, Overseas Carriers wired the NMU that it
declined to meet with that Union because of its contract
with the SIU.
On February 14, the NMU filed an unfair labor
practice charge with Region 2 of the Board against
Luckenbach Overseas, Overseas Carriers and Maritime
Overseas, alleging that these companies had refused to
bargain in good faith with the NMU. This charge was
dismissed by the Regional Director on April 1, 1968. The
NMU appealed the dismissal, and the appeal was denied
by the General Counsel on May 16, 1968.
On April 4, 1968, the NMU filed a complaint in the
United States District Court for the Southern District of
New York, pursuant to Section 301 of the Act, seeking a
declaratory judgment that Overseas Carriers, Luckenbach
Overseas and Maritime Overseas were required to
recognize and bargain with the NMU as
collective-bargaining agent for the unlicensed crew
members aboard the vessels in question. The record does
not show the results of that litigation.
6 Summary and Concluding Findings
As the Respondent correctly points out, the General
Counsel must establish the existence of three basic facts in
order to prove a violation of Section 8(b)(7)(A) of the
Act. These are: (1) that the picketing was for the purpose
of securing recognition; (2) that the employer was lawfully
recognizing another union; and (3) that a question
"The foregoing findings are based upon the testimony of Robert J Tarr,
executive vice president of Luckenbach Steamship James J. Martin, vice
president of the NMU , who was present at this meeting denied that he had
stated at that time that the crews of the three ships whose title had not yet
passed were not going to be discharged or that he heard any other NMU
representative make such a statement during that meeting Martin did not
testify as to what , specifically , was said at the meeting in question and it
well may be that the statement was made as Tarr testified but was not
heard by Martin at the time . In any event , support for Tarr's testimony in
this regard is to be found in the fact that the statement was in keeping and
consistent with other actions and statements made by NMU
representatives throughout the period of the controversy in question
following the time the NMU learned that Luckenbach Overseas had sold,
or was about to sell, the four vessels.
NATL. MARITIME UNION
concerning representation could not properly be raised at
the time the picketing occurred."
With regard to the first of these questions, the NMU at
the hearing denied that its picketing had recognition as an
object. In its brief, while not conceding that fact, the
Respondent states that it "now relies entirely on its
contention that it was entitled to recognition as the
exclusive collective-bargaining representative for the
unlicensed crewmembers employed aboard the vessels
which were the subject of the disputed picketing."
Therefore, the Respondent argues, the employer could not
lawfully recognize any other labor organization and the
picketing was justified. Though not conceded by the
Respondent, the evidence is clear that the picketing of the
Overseas Horace and the Overseas Lena had as an object,
in each instance, the continued recognition of the NMU
as the collective-bargaining agent of the unlicensed crews
aboard those vessels The statements made by its agents,
the declarations contained in its communications, the
allegations made in the litigation it instituted in regard to
this matter, are consistent with, and support, such a
conclusion. Thus, in the period of 2 days between the time
title to the Overseas Horace passed to Overseas Carriers
and the time picketing began, agents of the NMU stated
that the unlicensed crew would stay aboard the vessel
come hell or high water; that Luckenbach had to keep an
NMU crew; and that the NMU was going to put a
picketline around the gate and would man the Horace
when it sailed. These statements accord with the testimony
of James J. Martin, the Respondent's vice president, to
the effect that the Respondent was insisting that the
unlicensed crews aboard the vessels sail under an NMU
contract. In addition, the telegram dispatched to Overseas
Carriers by NMU immediately preceding the picketing
requested that Overseas Carriers recognize and bargain
with the Respondent. Likewise, the charges filed with the
Board and the complaint filed in the- United States
District Court by the Respondent alleged that Overseas
Carriers had refused to recognize and bargain with the
NMU.
The next question to be considered is whether the
employer in this case was lawfully entitled to recognize
the SIU rather than the NMU In that regard, it is the
theory of the General Counsel and the Charging Party
that Overseas Carriers was justified in recognizing the
SIU and that the picketing by the NMU was unlawful
because, upon transfer of title to the vessels in question,
the ships became a part of the fleet of the MOC Group by
a process of accretion.
The Respondent, however, contests this conclusion.
Instead, it argues that the MOC Group was the employer
of the unlicensed crew aboard the vessels in question both
before and after they were transferred; that no transfer
from one employer to another therefore occurred; and
that since the ships remained in the same operation before
and after the transfer, there was no integration into the
MOC Group fleet and the vessels did not "accrete" to a
new bargaining unit. From this, the Respondent argues
that it was entitled to continued recognition as the
bargaining agent of the members of the unlicensed crew
aboard the ships in question. Moreover, the Respondent
argues, even if Overseas Carriers is to be considered as a
new and separate owner and employer following its
acquisition of the vessels, the principle that the ships
became part of the MOC Group fleet is not applicable
because Overseas Carriers stood in the position of a
"N.L.R B v. Local 3, IBEW [Darby Electric Corp 1, 362 F 2d 232
221
successor employer and therefore was obligated to bargain
with the Respondent rather than with the SIU.
Both the General Counsel and the Charging Party, on
the one hand, and the Respondent on the other, primarily
rely for support of their respective positions upon the
Board's decision in Moore-McCormack Lines, Inc, 139
NLRB 796. The pertinent language of the decision in that
case, from which each of the parties here draw comfort, is
as follows-
As a general proposition we agree with the
Petitioner's contention that units of seagoing personnel
should be fleetwide in scope. Thus, as the record shows
in the instant case; the Company bargains for a
fleetwide unit on the Pacific coast, and, with the
exception of the seven former Robin ships, it bargains
for a fleetwide unit on the Atlantic and gulf coasts.
Such units also conform to the pattern presently
prevailing in the maritime industry. Moreover, there are
obvious advantages in such a single unit. the
elimination of interunion rivalry with respect to similar
employees of the same employer and a consequent
diminution of conflicts which may bring on work
stoppages, and the facilitation of transfers of personnel
between ships of the same employer and of ships
between different shipowners. But these reasons for
finding a fleetwide unit appropriate may be overborne
in a particular case by special circumstances which
indicate the injustice or the unsuitability of applying the
general rule.
We believe that the present is such a case. We are
not confronted in this proceeding with a question of
representation relating to employees on ships newly
transferred from one shipowner to another. The transfer
of the Robin Line ships to the Employer took place 5
years ago. At that time, in a Board proceeding
involving a determination as to which union was
entitled to represent the unlicensed seamen on the newly
transferred ships, Petitioner contended, as it does here,
that a separate unit of the former Robin Line ship
employees was not appropriate, that the transferred
ships and employees were an accretion to its existing
unit. The Board rejected this contention and directed
self-determination elections among the unlicensed
personnel on each of the transferred Robin Line ships.
The SIU won the elections on seven of the eight ships
and was certified by the Board as the statutory
representative of the employees on these ships. Since
the certification the SIU has represented and made
collective-bargaining agreements with the Employer for
the employees in its certified unit. For 5 years,
therefore, the Employer and both unions have lived
with this particular bargaining pattern of a separate
seven-ship unit previously established by the Board, and
having adjusted to it, they have invested it with a
validity based on bargaining history which the
Petitioner has not shown sufficiently compelling reasons
to override. There is no change in the composition of
this unit which might otherwise have called for a
reevaluation of the Board determination heretofore
made. We note in this connection also that the
Employer, which is the party normally expected to be
most inconvenienced by the separate seven-ship unit,
did not file the present petition which seeks to abolish
this unit, and did not appeal from the Regional
Director's dismissal of the same. Moreover, David L.
Cole, the highly experienced arbitrator under the
AFL-CIO no-raiding agreement, has issued a
determination and report finding that in filing the
222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
instant petition the Petitioner is in violation of that
agreement. Evidently the arbitrator did not consider the
existing two bargaining units among the Employer's
unlicensed seamen an insuperable obstacle to effective
collective bargaining.
In view of the above, particularly the Board's
previous determination and the bargaining history based
thereon, we find that the Petitioner's proposed unit is
not appropriate. A caveat, however, is in order. The
present decision is not to be construed as indicating
that in the future the transfer of a ship from one owner
to another will necessarily preserve the existing
bargaining unit or the status of the incumbent union.
The present decision rests on the special facts of this
case. It is not a precedent for situations which may be
entirely different.
Based upon the foregoing decision, the General Counsel
and the Charging Party argue that the present case is one
in which the general rule enunciated by the Board in the
Moore-McCormack case should prevail, while the
Respondent contends that special circumstances exist in
this case which demonstrate that application of the
doctrine of accretion would be unwarranted.
As noted above, between 1961 and 1967, Luckenbach
Steamship and the MOC Group were engaged in a joint
venture in which Luckenbach Overseas operated the four
vessels in question and Overseas Carriers operated four
other vessels. Luckenbach Steamship and the MOC
Group each owned 50 percent of the stock issued by
Luckenbach Overseas and by Overseas Carriers and each
appointed an equal number to the board of directors of
each of the two corporations. The officers of Luckenbach
Overseas, however, were appointed by Luckenbach
Steamship, while the officers of Overseas Carriers were
appointed by the MOC Group. Maritime Overseas, a
separate corporation of the MOC Group, acted as the
managing agent for the vessels both of Luckenbach
Overseas and of Overseas Carriers during this period.
Based on these facts, the Respondent argues that the
MOC Group was in effective control of the operations of
Luckenbach Overseas and, therefore, was the employer of
the unlicensed crews of the vessels of that company. The
Respondent argues that this is true because any actions
taken by the officers of Luckenbach Overseas "could not
receive the approval of the Board of Directors or
Stockholders if the MOC interests disapproved since the
Luckenbach Steamship interests did not control a
majority interest." The interests of the MOC Group and
Luckenbach Steamship were co-equal and therefore
neither controlled a majority interest insofar as stock
ownership on the board of directors of Luckenbach
Overseas were concerned. But the officers of the latter
corporation were the appointees of Luckenbach Steamship
and to that extent the determination of policy rested with
Luckenbach, rather than MOC, interests. And while
Maritime Overseas, one of the MOC corporations, acted
as managing agent for the vessels of Luckenbach Overseas
as well as those of other companies, final authority for
what was done rested with Luckenbach Overseas as the
principal.
In this same connection, the Respondent asserts that
the interests of Luckenbach Steamship depended upon
Maritime Overseas as managing agent to provide charter
arrangements and to carry out the "execution of all labor
agreements." The quoted clause appears in the agreement
entered into between Luckenbach Overseas and Maritime
Overseas. That agreement also contained a clause
empowering Maritime Overseas to appoint unlicensed
personnel. The record shows, however, that the word
"execution" as used in that agreement was not intended,
and did not in fact empower, Maritime Overseas to enter
into a collective-bargaining agreement with the NMU
covering unlicensed personnel during the period from 1961
to 1967. Such collective-bargaining contracts with the
NMU were negotiated on behalf of Luckenbach Overseas
by the AMMI and were signed by officers of Luckenbach
Overseas., Neither Maritime Overseas nor any other
representative of the MOC Group played any part in the
negotiations of these agreements. And while the port
captain or agent of Maritime Overseas handled local
grievances or minor matters concerning labor relations
involving the unlicensed crews aboard the vessels of
Luckenbach Overseas, basically labor relations policy
remained in the control of, and was exercised by, the
officers of the latter corporation i i
The authority of Maritime Overseas to appoint
unlicensed crews aboard the vessels of Luckenbach
Overseas meant that, in conformity with the provisions of
the collective-bargaining agreements, it called upon the
hiring hall to furnish crew members as required. Not only
the officers and employees of Luckenbach Overseas but
the crew members on board the four vessels were all paid
by that corporation and Maritime Overseas acted only as
an agent on behalf of Luckenbach Overseas as the
principal.
From the foregoing facts and on the record as a whole,
I cannot find that the MOC Group alone, or through
Maritime Overseas, exercised control or possessed
sufficient control of the unlicensed crew members aboard
the four Luckenbach Overseas vessels prior to their
transfer to justify the finding that the MOC Group alone,
or together with Maritime Overseas, constituted the
employer of such crew members I thus cannot find, as the
Respondent urges, that the employer, both before and
after the transfer in question, was the MOC Group.
As a further factor to be considered in its contention
that no accretion occurred in this case, the Respondent
"In arriving at the foregoing finding, I have considered certain evidence
introduced by the Respondent in support of its assertion that the MOC
Group is to be considered as the actual employer This evidence consists of
three certificates of discharge and pay envelopes of unlicensed crewmen
aboard the Horace Luckenbach during the period in question, a copy of
the shipping articles of the same vessel, and a memorandum agreement,
dated November 13, 1965, between the NMU and "Maritime Overseas
Transportation Corporation" The certificates of discharge lists "Maritime
Overseas Corp." in a space provided for the name of the employer But the
envelopes in which the certificates in each case were enclosed contained the
printed notation "Maritime Overseas Corporation , Agents " The shipping
articles note the name of Maritime Overseas Corporation as the
"operating company on this voyage" of the Horace Luckenbach The
Respondent , however, offered no evidence to show that the term
"operating company" is to be regarded as synonymous with that of owner
of the vessel or employer of its unlicensed crew As for the memorandum
agreement of November 13, 1965, the undisputed evidence shows that it
was signed by a member of the staff of Maritime Overseas on behalf of
Luckenbach Overseas during a weekend when officers of the latter
corporation were unavailable following a dispute which had arisen with the
NMU regarding war bonus payments for the India-Pakistan war zone
Such payments had been the subject of an agreement arrived at a short
time before between the AMMI, which represented Luckenbach Overseas,
and the NMU and was subsequently ratified by Luckenbach Overseas
Delay in sailing of the vessel on that occasion amounted to losses of $4,000
per day I assume that the "Maritime Overseas Transportation
Corporation" referred to in the document is merely a misnomer for the full
name of Maritime Overseas But even if that were so, I do not regard the
signing of the agreement under the emergency conditions then existing as
proof that Maritime Overseas was empowered to act in general in
establishing basic labor relations policies for Luckenbach Overseas
NATL. MARITIME UNION 223
argues in its brief that the four vessels "were not absorbed
into an integrated unit like the other Overseas Carriers
vessels," that instead, they "remained on time charter
under the management, as before, of Maritime Overseas."
It is true that each of the vessels continued to operate
under the time charter arrangement which had preceded
the actual sale and delivery, and in this sense there was a
continuity of operations. But it is also true that a change
had occurred. A new owner took over the vessels. When
title to each of the vessels passed, the name, the house
flag and the emblem on its stack and bow were changed in
a manner which would identify it as a vessel within the
MOC fleet. These changes had more significance than
merely "the lowering and raising of a flag and some
change in paint," as the Respondent asserts in its brief.
The prefix "Overseas" which in this case was adopted as
part of the new name assigned to each of the four ships
uniformly appears on all vessels owned by the MOC
Group. In the liner service type of operation, a fleet
normally consists of vessels owned by one corporation.
But in the tramp shipping industry it is customary to have
a group of corporations owning one or more vessels, and a
fleet would be recognized as all of the ships owned by the
various corporations under common ownership and
control. In accordance with the custom in the industry,
the seller assigned to the buyer the charter for which each
vessel was fixed and secured the consent for such
assignment from the charterer. In addition, the agreement
of sale in this case provided that the buyer was to receive
the proceeds and assume the cost of the operation of each
vessel beginning January 1, 1968, irrespective of the time
each vessel was assigned or delivered to the buyer. With
the passage of title, it is customary for the new owner to
assume the responsibility, not only of providing the stores
and supplies required for each ship but also of furnishing
the crews. And the new owner in this case was party to a
contract with the SIU governing unlicensed crew
personnel. In light of these facts, it is difficult to see what
more could have been done to absorb the four vessels into
an integrated unit with the other ships of Overseas
Carriers which constituted part of the MOC fleet.
Nor can I agree with the Respondent's position that
each of the four vessels were "self-contained operations""
with regard to Overseas Carriers' other vessels. The
Respondent insists that since each of the four vessels
remained on charter, it was the charterer who determined
what cargo would be loaded and at what ports the ships
would touch and therefore there was no unified fleet
operation since there was no deploying of ships for the
purpose of gaining economic or other advantage. While
that is true, it is also true that future charter
arrangements, following expiration of the current charters,
may well be affected by the fact that the ships will be
deployed as part of an MOC fleet comprising some 11
additional vessels rather than a fleet consisting only of the
four ships. On that basis alone, it would seem likely that
some economic or other advantage might well lie.
"This phrase is derived from the finding of the Board in Beacon Photo
Service , Inc, 163 NLRB No. 98, which the Respondent cites in support of
its position In that case , an employer who operated one plant acquired a
second plant some 25 miles away . The Board held that the new plant did
not constitute an accretion to the existing contract unit comprising the old
plant but instead found that each plant was a self-contained operation
This conclusion was reached on the basis of a showing that each had its
own plant manager and supervisors ; kept its own bank account, payroll
accounts and records; and handled its own purchasing and billing In
addition, there was no interchange of personnel, or, for the most part, of
work , between the two plants Beyond the fact that the decision in that
No serious argument is advanced, and the record does
not support, a contention that the sale of the vessels in
question was not bona fide or that it was impelled by
other than legitimate economic considerations. But the
Respondent further asserts that, even if Overseas Carriers
was a new owner and employer, it was nevertheless
required to recognize and bargain with the Respondent.
This argument is predicated on the theory that there was a
continuity of the employment enterprise and that Overseas
Carriers was a successor to Luckenbach Overseas What
has already been said is also an answer to this argument,
to the extent that it relies on a finding that the vessels did
not become an integrated part of the MOC fleet because
they remained on time charter and were therefore subject
to routing and cargo directions by the charterer. This is
not a case where there was merely a change in ownership
of the employment enterprise." All vessels of the MOC
fleet are employed on either a time or voyage charter
basis. If Respondent's argument were to be followed to its
logical conclusion, it would mean that each vessel would
be considered as a self-contained operation and each
would therefore be considered as a separate bargaining
unit. I do not believe that this would reflect either the
intention of the parties or the bargaining position assumed
either by the NMU or the SIU in this case. The record
here shows that the NMU bargained with Luckenbach
Overseas for a period of some 6 years for a fleetwide unit
of the ships which it owned through 196711 and tnat the
SIU bargained with the MOC Group on a similar basis
for a period of some 15 years. The events in this
proceeding make evident the validity of the Board's
observation in the Moore-McCormack case, supra, that
"elimination of interunion rivalry with respect to similar
employees of the same employer and a consequent
diminution of conflicts which may bring on work
stoppages" is one of the considerations pointing to the
advantage of a fleetwide unit.- For the foregoing reasons
I believe that Overseas Carriers lawfully recognized the
SIU as the bargaining representative of the unlicensed
crew members aboard the two vessels in question at the
time title to the ships passed to that employer.
case did not involve the maritime industry , the record in this case shows
that the bank accounts, payroll accounts and records and the purchasing
and billing of each of the four vessels here in question were items which
were not handled by them separately but were centrally managed and
controlled for them by Maritime Overseas as managing agent
"Cf. Cruse Motors, Inc , 105 NLRB 242
"Article I , section I , of the collective-bargaining agreement in effect at
the time of the transfer of the four vessels provided , in pertinent part, as
follows
Section 1 Collective Bargaining Agent The Company in entering into
this agreement hereby recognizes the Union as the sole collective
bargaining agent for the Unlicensed Personnel employed on board all
vessels of the Company where the Company has recognized the Union as
such agent The Company also recognizes the Union as the sole
collective bargaining agent for the Unlicensed Personnel employed by
the Company on board all United States -flag ocean-going vessels
including but not limited to passenger , freighter dry cargo , tanker and
bulk carrier which it owns and operates as bareboat charterer or as
General Agent of the United States or which it may hereafter acquire as
additions to or as replacements of the aforesaid vessels now operated by
it.
"And in giving recognition to such considerations , the Board was
following a principle adverted to later by the Supreme Court in Wiley v
Livingston, 376 U.S. 543, 549 (1964) where the Court stated the
requirement "that the rightful prerogative of owners independently to
arrange their business and even eliminate themselves as employers be
balanced by some protection to the employees from a sudden change in the
employment relationship "
224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
With regard to the final question to be answered in this
case, the Respondent, during oral argument at the close of
the hearing, for the first time asserted that the picketing
in which it had engaged was justified because, at the time
it occurred, a question concerning representation
appropriately could have been raised under Section 9(c) of
the Act. This contention is based on the fact that the
collective-bargaining agreement entered into between
Overseas Carriers and the SIU contained an original
termination date of June 15, 1968, but was extended in
September 1967, by agreement of the parties, until June
15, 1969. The Respondent argues that, under the Board's
contract bar rules, a change in the termination date of the
contract constituted a premature extension as a result of
which a question concerning representation could have
been raised in the 60 to 90-day period prior to the
termination of the original agreement, which in this
instance would be from March 15 to April 15, 1968. The
Respondent picketed the Overseas Horace from February
15 to April 3, 1968. Thus, even if a premature extension
had occurred, the picketing which took place prior to
March 15 was clearly during a period when a question
concerning representation could not appropriately be
raised and to that extent the picketing of that vessel was
not warranted. The picketing of the Overseas Lena, which
occurred between April 1 and April 3, 1968, was likewise
not justified since the Respondent did not represent any of
the employees aboard the vessels of the MOC fleet which
constituted an appropriate unit and, therefore, it could not
raise a question concerning representation based upon a
bare claim to recognition. Deluxe Metal Furniture
Company, 121 NLRB 995. Nor could it raise such a
question limited to the unlicensed crewmembers aboard
either of the two separate vessels since such units were not
appropriate. In any event, the provisions of the
Recommended Order in this case would remain unaffected
whether or not the Respondent's picketing of the Overseas
Lena, as well as that of the Overseas Horace, were to be
regarded as violative of the Act.
The problem posed in this case is a difficult and a
vexing one. The series of intricate corporate transactions
which occurred were dictated by financial necessity and
economic advantage to the employers. There is no
showing that any of these actions were based upon
antiunion motivations or considerations.
The NMU has been justly concerned in protecting such
rights as the unlicensed crewmembers may have had under
the collective-bargaining agreement to which it was a
party. The issue in this case does not directly involve that
question. It well may be that other rights under the
arbitration provisions of the contract are available to the
Respondent, irrespective of such proceedings as have been
pursued before this Board or in other litigation."
For the foregoing reasons and on the record as a whole,
I find that the picketing of the SS Overseas Horace from
February 15 to April 3, 1968, and of the SS Overseas
Lena from April 1 to April 3, 1968, violated Section
8(b)(7)(A) of the Act
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth above,
occurring in connection with the operations of Overseas
Carriers, have a close, intimate, and substantial relation to
"See, e g , Luckenbach Overseas Corporation v Curran , 398 F.2d 403
(C.A 2, 1968).
trade, traffic, and commerce among the several States,
and tend to lead, and have led, to labor disputes
burdening and obstructing commerce and the free flow of
commerce.
V. THE REMEDY
Having found that the Respondent has engaged in
certain unfair labor practices , it shall be recommended
that it cease and desist therefrom and take certain
affirmative action designed to effectuate the policies of the
Act.
CONCLUSIONS OF LAW
1. Overseas Carriers is an employer engaged in
commerce and in operations affecting commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
2. The NMU and SIU are labor organizations within
the meaning of Sections 2(5) and 8(b)(7)(A) of the Act.
3. By picketing the SS Overseas Horace and the SS
Overseas Lena, with an object of forcing or requiring
Overseas Carriers to recognize and bargain with the
Respondent as the collective-bargaining representative of
the employees, who comprised the unlicensed crews
aboard each of those vessels and with a further object of
forcing or requiring such employees to accept or select the
Respondent as their collective-bargaining representative,
at a time when Overseas Carriers had lawfully recognized
the SLU as the collective-bargaining representative of such
employees, and a question concerning representation could
not be raised under Section 9(c) of the Act, the
Respondent has engaged, and is engaging in, unfair labor
practices within the meaning of Section 8(b)(7) of the Act.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the above findings of fact and
conclusions of law and upon the entire record in this
proceeding, it is recommended that the Respondent,
National Maritime Union of America, AFL-CIO, its
representatives, officers, successors, assigns, and agents
shall-
1. Cease and desist from picketing or causing to be
picketed or threatening to picket the SS Overseas Horace,
the SS Overseas Lena, or any other vessels of Overseas
Carriers, or any other employer, under conditions
prohibited by Section 8(b)(7)(A) of the Act, where an
object thereof is forcing or requiring such employer to
recognize and bargain with the Respondent as a
collective-bargaining representative of the unlicensed
crewmembers aboard its vessels, or forcing or requiring
such employees to accept or select the Respondent as their
collective-bargaining representative.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act.
(a) Post in conspicuous places at its business offices,
meeting halls, and at all places where notices to its
members are customarily posted, copies of the Notice
attached hereto as "Appendix."" Copies of said notice, on
forms provided by the Regional Director for Region 20,
shall, after being signed by an authorized representative of
the Respondent, be posted by the Respondent immediately
upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places,
in the event that this Recommended Order be adopted by the Board,
NATL. MARITIME UNION
including all places where notices to members are
customarily posted. Reasonable steps shall be taken by the
Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(b) Forthwith mail to the aforesaid Regional Director
for Region 20, signed copies of said notices for posting by
Overseas Carriers, if it be willing, in places where notices
to its employees are customarily posted.
(c) Notify the Regional Director for Region 20, in
writing, within 20 days from the receipt of this Decision,
what steps have been taken to comply herewith."
the words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner" in the notice . In the further
event that the Board's Order shall be enforced by a decree of the United
States Court of Appeals , the words "a Decree of the United States Court
of Appeals enforcing an Order" shall be substituted for the words "a
Decision and Order."
"In the event that this Recommended Order be adopted by the Board,
this provision shall be modified to read - "Notify the said Regional
Director for Region 20, in writing , within 10 days from the date of this
Order what steps the Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL MEMBERS OF NATIONAL MARITIME
UNION OF AMERICA, AFL-CIO
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify you that:
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WE WILL NOT, under conditions prohibited by
Section 8(b)(7)(A) of the Act, picket, or cause to be
picketed, or threaten to picket, the SS Overseas
Horace, the SS Overseas Lena, or any other vessel of
Overseas Carriers, or any other employer, where an
object thereof is to force or require Overseas Carriers,
or any other employer, to recognize or bargain with us
as the representative of the unlicensed crew members
aboard such vessel or vessels, or forcing or requiring
such employees to accept or select the Respondent as
their collective-bargaining representative.
Dated By
NATIONAL MARITIME
UNION OF AMERICA,
AFL-CIO
(Labor Organization)
(Representative ) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
If members have any question concerning this notice or
compliance with its provisions, they may communicate
directly with the Board's Regional Office, 450 Golden
Gate Avenue, Box 36047, San Francisco, California
94102, Telephone 556-0335.
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