Orfeo Kostrencich

National Labor Relations Board - Board Decisions

Apr 11, 1960

127 N.L.R.B. 96 (N.L.R.B. 1960)

96 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Orfeo Kostrencich , Pete Cekalovich , John Evich and/or John
Kunich, Sam Mircovich , Thorlief Austrem, Andrew Kuljis,
Tony Barcott, Peter Bogdanovic , Paul Petrasich , Frank Marin-
kovich, John Resich , Samuel Carr, Steve Marchins, Tony
Milovilovich , Jerry Thomas, Mike Lonich , Andrew Xitco,
Anthony Padovan , Joe Mardesich , Frank Foretich, Nick
Radocich, Andrew Tipich , Luka Alafetich , Klein Lapov and/or
Matt Simundich, Pete Dragich, Vince Simich, Elmer Duzich,
Matthew Bodul , Nick Trutanich , Matt Karmelich, John Rados,
Joe Dragich , Tony Vidovich , John Zankich , August Felando,
B. A. Walvich and/or Marion Rafkin , Nick Mosich and
Anthony Burich and Seine and Line Fishermen 's Union of
San Pedro, affiliated with Seafarers ' International Union,
AFL-CIO. Case No. 21-CA-2626. April 11, 1960
DECISION AND ORDER
On October 20, 1959, Trial Examiner Wallace E. Royster issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondents had engaged in and were engaging in certain unfair
labor practices and recommending that they cease and desist there-
from and take certain affirmative action, as set forth in the copy of the
Intermediate Report attached hereto. Thereafter, the Respondents
filed exceptions to the Intermediate Report and a supporting brief.
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the In-
termediate Report, the exceptions and brief, and the entire record in
the case, and hereby adopts the Trial Examiner's findings, conclu-
sions, and recommendations, with the following modifications.
As alleged in the complaint, the Trial Examiner found, pursuant to
the summary judgment granted by him, that from October 8, 1956,
to March 6, 1957, the date of the complaint, each Respondent main-
tained in effect and observed identical collective-bargaining agree-
ments with Local 33 containing the following union-security clause :
The parties hereto recognize that the Union as the exclusive
bargaining representative of all the employees covered by this
agreement, does render services in representing all of said em-
ployees in collective bargaining. They further recognize that it
is unfair to have union members alone bear the cost of union
services performed on behalf of all the employees covered by
this agreement and that such cost should be distributed equitably
among all of said employees. The union members bear their
127 NLRB No. 10.
ORFEO KOSTRENCICH, PETE CEKALOVICH, ETC. 97
share of such costs, by the payment of initiation fees, dues and
assessments.
It is therefore agreed that, as a condition of employment, every
employee shall, at such times during the life of this agreement
as he is not a member of the Union, pay to the Union, the sum of
$2.00 per month plus one-half of 1 percent of his net share of the
catch, payable on or before the 10th day of each month.
If any employee fails to pay the sum due the Union or any
part thereof, the employer agrees that within 5 days after re-
ceiving notice thereof from the Union, such employees shall be
discharged.
The Trial Examiner found, and we agree, that this contract pro-
vision requires employees to become members of Local 33 or pay a
portion of their earnings to Local 33 as a condition of employment;
and that because it does not allow the statutory 30-day grace period
for employees to join or pay "support money" to Local 33, such pro-
vision is unlawful, and Respondents have violated Section 8(a) (1),
(2), and (3) by virtue of this provision in their contracts with
Local 33.
We do not agree, however, with his recommendation that the
Brown-Olds remedy, requiring disgorgement of dues and fees paid by
employees to a union by virtue of an illegal union-security contract,'
should be applied in this case. As the union-security clause here is
unlawful only in that it does not provide the 30-day grace period for
employees to join the union, and thus does not give the union control
over the hiring of employees, as with a closed-shop or preferential
hiring provision, so as to constitute a flagrant violation in open
defiance of statutory policy, we shall not apply the Brown-Olds
remedy.2 However, as the Respondents have violated Section 8(a) (2)
by virtue of the unlawful union-security clause, we shall enter our
usual order in such circumstances that Respondents withdraw recog-
nition from Local 33, and cease giving effect to their contracts with
Local 33, unless and until Local 33 has been certified by the Board.'
Nothing in our order, however, shall be deemed to require Respondents
to vary or abandon those wage, hour, seniority, or other substantive
features of its relations with their employees, established in perform-
ance of said contracts, or to prejudice the assertion by the employees
of any rights they may have under such contracts.
1 J. S. Brown-E. F. Olds Plumbing & Heating Corporation , 115 NLRB 594.
'.See Nordberg-Selah Fruit, Inc., et at., 126 NLRB 714; Chun King Sales, Inc., 126
NLRB -851.
Julius Resnick, Inc, 86 NLRB 38.
560940-61-vol. 127-8
98 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER
Upon the entire record in the case, and pursuant to section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that John Rados, Terminal Island,
California, in respect to the Southland and the following all of San
Pedro, California: Orfeo Kostrencich in respect to the Adriatic; Pete
Cekalovich in respect to the Betsy Ross; John Evich and/or John
Kunich in respect to the Clermont; Sam Mircovich in respect to the
City of San Pedro ; Thorlief Austrem in respect to the Commander ;
Andrew Kuljis in respect to the Courageous; Tony Barcott in respect
to the Coral Sea; Peter Bogdanovic in respect to the Comet; Paul
Petrasich in respect to the Corsair; Frank Marinkovich in respect to
the Janis M; John Resich in respect to the Jo-Ann; Samuel Carr in
respect to the Liberty Bell II ; Steve Marchins in respect to the Long
Island; Tony Milovilovich in respect to the Marauder; Jerry Thomas
in respect to the Miss Universe; Mike Lonich in respect to the New
Admiral; Andrew Xitco in respect to the North Queen; Anthony
Padovan in respect to the Olympic; Joe Mardesich in respect to the
Pioneer; Frank Foretich in respect to the Progress; Nick Radocich
in respect to the San Pedro Boy; Andrew Tipich in respect to the
Sea Pride; Luka Alafetich in respect to the Sea Rose; Klein Lapov
and/or Matt Simundich in respect to the Sea Spray; Pete Dragich
in respect to the Sea Ranger; Vince Simich in respect to the Sea
Rover; Elmer Duzich in respect to the Seven Seas; Matthew Bodul
in respect to the Sharon B.; Nick Trutanich in respect to the Star of
San Pedro; Matt Karmelich in respect to the Stanford; Joe Dragich
in respect to the U.S. Liberator; Tony Vidovich in respect to the
Vittoria; John Zankich in respect to the Western Monarch; August
Felando in respect to the Western Sky; B. A. Walvich and/or Marion
Rafkin in respect to the Western Traveler; Nick Mosich in respect to
the Vagabond; and Anthony Burich in respect to the Zephyr; the
agents, successors, and assigns of each, shall :
1. Cease and desist from :
(a) Recognizing Fishermen's Union Local 33, Fishermen and
Allied Workers' Division, International Longshoremen's and Ware-
housemen's Union, or any successor thereto, as the representative of
any of their employees for purposes of dealing with Respondents
concerning rates of pay, wages, hours of employment, or other condi-
tions of employment, unless and until said organization shall have been
certified by the National Labor Relations Board.
(b) Performing or giving effect to their contracts of October 8,
1956, with Fishermen's Union Local 33, Fishermen and Allied
Workers' Division, International Longshoremen's and Warehouse-
ORFEO KOSTRENCICH, PETE CEKALOVICH, ETC. 99
men's Union, or any extension, renewal, modification, or supplement
to that contract, or any other collective-bargaining contract , unless
and until said organization is so certified.
(c) Contributing support to and assisting Local 33 by maintaining
in effect and observing the provisions of any collective-bargaining
agreement containing unlawful union-security provisions.
(d) Encouraging membership in Local 33, or any other labor or-
ganization, by unlawfully requiring membership in or the contribu-
tion of financial support to Local 33, or any other labor organization,
as a condition of employment except in conformity to the requirements
of Section 8(a) (3) of the Act, as modified by the Labor-Management
Reporting and Disclosure Act of 1959.
(e) In any like or similar manner interfering with, restraining, or
coercing employees in the exercise of their right to engage in or to
refrain from engaging in any or all of the activities set forth in Sec-
tion 7 of the Act, except to the extent that such right may be affected
by an agreement requiring membership in a labor organization as a
condition of employment in conformity to the requirements of Section
8 (a) (3) of the Act, as modified by the Labor-Management Reporting
and Disclosure Act of 1959.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Withdraw and withhold all recognition from Local 33 as the
representative of any of Respondents' employees, unless and until said
organization shall have been certified by the National Labor Relations
Board.
(b) Post on his vessel or at any other point where notices to em-
ployees customarily are posted copies of the notice attached hereto
marked "Appendix." 4 Copies of such notices, to be furnished by the
Regional Director for the Twenty-first Region, shall, after being
signed by the appropriate Respondent, be posted by him immediately
upon receipt thereof and be maintained for 60 consecutive days there-
after. Reasonable steps shall be taken by each Respondent to ensure
that said notices are not altered, defaced, or covered by any other
material.
(c) Notify the Regional Director for the Twenty-first Region, in
writing, within 10 days from the date of this Order, what steps he has
taken to comply herewith.
MEMBERS RODGERS and JENKINS took no part in the consideration of
the above Decision and Order.
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."
100 . DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO ALL EMPLOYEES
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 our employees that :
WE WILL NOT assist or contribute support to, or encourage
membership in, Fishermen's Union Local 33, Fishermen and
Allied Workers' Division, International Longshoremen's and
Warehousemen's Union, by maintaining in effect and observing
collective-bargaining agreements with Local 33 which require
membership in or the contribution of support to Local 33 as a
condition of employment.
WE WILL NOT, by maintaining in effect and observing the union-
security provisions as described above, interfere with, restrain,
or coerce our employees in the right to engage in or to refrain
from engaging in any or all of the activities set forth in Section
7 of the National Labor Relations Act except to the extent that
such right may be affected by an agreement requiring member-
ship in a labor organization as a condition of employment in con-
formity to the requirements of Section 8(a) (3) of the Act, as
modified by the Labor-Management Reporting and Disclosure
Act of 1959.
WE WILL withdraw and withhold all recognition from Local 33
as the representative of any of our employees for the purposes
of dealing with us concerning rates of pay, wages, hours, or other
conditions of employment, unless and until Local 33 shall have
been certified by the National Labor Relations Board as bargain-
ing representative.
WE WILL cease performing or giving effect to our contract of
October 8, 1956, with Local 33, or to any extension, renewal,
modification, or supplement to that contract, or any other
collective-bargaining contract with Local 33, unless and until
Local 33 shall have been so certified.
All of our employees are free to become or remain or to refrain
from becoming or remaining members of any labor organization
except to the extent that this right may be affected by an agreement
executed in conformity to Section 8(a) (3) of the Act requiring mem-
bership in a labor organization as a condition of employment, as
modified by the Labor-Management Reporting and Disclosure Act of
1959.
-------------------------------------
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.
ORFEO KOSTRENCICH, PETE CEKALOVICH, ETC. 101
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon a charge duly filed by Seine and Line Fishermen's Union of San Pedro,
affiliated with Seafarers' International Union, AFL-CIO, herein called Seine and
Line, the General Counsel of the National Labor Relations Board issued his com-
plaint dated March 6, 1957, alleging that the individuals above named, herein called
Respondents, and each of them had engaged in and were engaging in certain unfair
labor practices affecting commerce within the meaning of Section 8(a)(1), (2),
and (3) and Section 2(6) and (7) of the National Labor Relations Act, 61 Stat.
136, herein called the Act.
Upon due notice this matter came on for hearing in consolidation with a number
of other complaints before the duly designated Trial Examiner in Los Angeles,
California, on August 5, 1957. No answer having been filed by any of the Respond-
ents and no appearances having been entered in behalf of any of them, I granted
the motion of counsel for the General Counsel to find the allegations of the com-
plaint to be true and to issue an appropriate recommended order. Thereafter hear-
ing on the remaining complaints continued to a close on January 5, 1959.
On August 7, 1959, a motion was filed with me by counsel for Seine and Line
to sever this proceeding from the others with which it had been consolidated, the
motion is hereby granted.
Upon the entire record in the case, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENTS
Each Respondent is managing owner of, master of, or principal partner in the
fishing vessel as set forth below:
Orfeo Kostrencich _ Adriatic Nick Radocich ---- San Pedro Boy
Pete Cekalovich Betsy Ross Andrew Tipich ____ Sea Pride
John Evich and/or Luka Alafetich - - - Sea Rose
John Kunich --- Clermont Klein Lapov and/or
Sam Mircovich ___ City of San Pedro Matt Simundich - Sea Spray
Thorlief Austrem __ Commander Pete Dragich ----- Sea Ranger
Andrew Kuljis ---- Courageous Vince Simich ----- Sea Rover
Tony Barcott - -- -- Coral Sea Elmer Duzich ----- Seven Seas
Peter Bogdanovic __ Comet Matthew Bodul --- Sharon B.
Paul Petrasich - --- Corsair Nick Trutanich --- Star of San Pedro
Frank Marmkovich_ Janis M Matt Karmelich __ Stanford
John Resich ______ Jo-Ann John Rados ------ Southland
Samuel Carr ------ Liberty Bell II Joe Dragich ------ U.S. Liberator
Steve Marchins - - - Long Island Tony Vidovich --- Vittoria
Tony Milovilovich - Marauder John Zankich ----- Western Monarch
Jerry Thomas ---- Miss Universe August Felando -- - Western Sky
Mike Lonich ------ New Admiral B. A. Walvich and/
Andrew Xitco ---- North Queen or Marion Rafkm_ Western Traveler
Anthony Padovan - Olympic Nick Mosich ------ Vagabond
Joe Mardesich ---- Pioneer Anthony Burich __ Zephyr
Frank Foretich ____ Progress
At all times material herein all Respondents are and have been engaged in deep-
sea fishing. Each Respondent sells and delivers fresh fish to one or more of the
following canneries located in San Pedro harbor: Coast Fisheries, Division of
Quaker Oats Company; Van Camp Sea Foods Company, Inc.; French Sardine Com-
pany, also known as Star-Kist Foods, Inc.; South Coast Fisheries, Inc.
Each of the named canneries, is engaged in the business of processing, canning,
and distributing tuna, sardines, and other fish and fish products. Each of them
ships annually, directly to points outside the State of California, canned fish and
fish products valued in excess of $50,000.
Each Respondent is a member of Fishermen's Cooperative Association, a non-
profit California corporation which acts as agent for Respondents in dealing with
the canneries named. Members of this cooperative including the Respondents
annually sell and deliver to the named canneries fish having a value in excess of
$10,000,000. At all times material herein the said cooperative is and has been the
representative of the Respondents for purposes of collective bargaining with Fish-
102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ermen's Union Local 33, Fishermen and Allied Workers' Division, International
Longshoremen's and Warehousemen's Union, herein called Local 33.
Upon the basis of the uncontradicted allegations in the complaint I find that each
Respondent by virtue of his membership in the Fishermen's Cooperative Association
and by reason of his deliveries of fresh fish to the named canneries is engaged
in commerce within the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Local 33 is a labor organization purporting to represent employees of each
Respondent.
HI. THE UNFAIR LABOR PRACTICES
Since on or about October 8, 1956, to and including March 6, 1957, each Respond-
ent has maintained in effect and observed identical collective-bargaining agreements
with Local 33 providing:
The parties hereto recognize that the Union as the exclusive bargaining repre-
sentative of all the employees covered by this agreement, does render services
in representing all of said employees in collective bargaining. They further
recognize that it is unfair to have union members alone bear the cost of union
services performed on behalf of all of the employees covered by this agreement
and that such cost should be distributed equitably among all of said employees.
The union members bear their share of such costs, by the payment of initiation
fees, dues and assessments.
It is therefore agreed that, as a condition of employment, every employee
shall, at such times during the life of this agreement as he is not a member of
the Union, pay to the Union, the sum of $2.00 per month plus one-half of 1
percent of his net share of the catch, payable on or before the 10th day of
each month.
If any employee fails to pay the sum due the Union, or any part thereof, the
employer agrees that within five (5) days after receiving notice thereof from
the Union, such employees shall be discharged.
This contract provision requires of each employee of each Respondent either
that he become a member of Local 33 or pay a portion of his earnings to that
organization as a condition of employment. I find it unnecessary to decide, as
the issue is here presented, whether in any circumstance payments to a labor organi-
zation may be required of an employee as an alternative to obtaining membership.
It is obvious and I find that the cited provisions do not permit a 30-day period
after first employment before membership in Local 33 or payment to Local 33
is required In consequence I find that the collective-bargaining agreements between
each Respondent and Local 33 from on or about October 8, 1956, to and including
March 6, 1957, are unlawful in that they require membership in or payment to
Local 33 before the expiration of 30 days' employment.
By unlawfully requiring of employees, membership in or payment to Local 33,
each of the Respondents has contracted to and given effect to a discriminatory
arrangement encouraging membership in or financial support to Local 33 as a condi-
tion of employment and each Respondent has thereby violated and is violating Sec-
tion 8 (a) (3) of the Act.
By this contract arrangement, each Respondent has unlawfully assisted Local 33
in violation of Section 8 (a) (2) of the Act.
By the contract arrangement by conditioning employment upon membership
in or the contribution of financial support to Local 33, and by thus assisting
Local 33, each Respondent has interfered with, restrained, and coerced his em-
ployees in the exercise of rights guaranteed in Section 7 of the Act and has thereby
violated Section 8(a)( I) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The conduct of each Respondent set forth in section III, above, in connection
with his operations described in section I, above, has a close, intimate, and substan-
tial relation to trade, traffic, and commerce among the several States, and tends to
lead to labor disputes burdening and obstructing commerce and the free flow of
commerce.
V. THE REMEDY
Having found that each Respondent has engaged in unfair labor practices, it will
be recommended that each cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.
CLYDE TAYLOR COMPANY 103
Having found that each Respondent has violated Section 8(a)(1), (2), and (3)
of the Act by maintaining in effect and observing provisions of the collective-bargain-
ing agreement with Local 33 since October 8, 1956, and that the provisions referred
to were unlawful and constituted a coercion upon employees in respect to becoming
members of or contributing financial support to Local 33 as a condition of employ-
ment, it will be recommended that each Respondent refund to his employees any
moneys paid to Local 33 by reason of the unlawful provisions. It will further be
recommended that each Respondent cease and desist from giving effect to any
union-security provision affecting his employees except in conformity to Section
8(a)(3) of the Act.
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. Each Respondent is engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. Local 33 is a labor organization within the meaning of Section 2(5) of the Act.
3. By maintaining in effect and observing the union-security provisions of the
collective-bargaining agreement with Local 33 on and since October 8, 1956, each
Respondent has discriminated in respect to hire and tenure of employment of
employees to encourage membership in and the contribution of financial support
of Local 33 and thus has engaged in unfair labor practices within the meaning of
Section 8 (a) (3) of the Act.
4. By maintaining in effect and observing the union-security provisions of the
contract with Local 33 since October 8, 1956, the Respondent has unlawfully con-
tributed support to and assisted Local 33 and thus has engaged in unfair labor
practices within the meaning of Section 8(a) (2) of the Act.
5. By the conduct referred to in subparagraphs numbered 3 and 4, above, each
Respondent has interfered with, restrained, and coerced his employees in the exer-
cise of rights guaranteed in Section 7 of the Act and thus has engaged in unfair
labor practices within the meaning of Section 8(a) (1) of the Act.
6. 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.]
Clyde Taylor, d/b/a Clyde Taylor Company and Frank M.
Houston, Benjamin F. Riley , Jr., Lyle Fay Rinkel , and H. D.
Cutchen . Cases Nos. 12-CA-520, 1?2-CA-544, 12-CA-546, 12-
CA-807. April 11, 1960
DECISION AND ORDER
On May 5, 1959, Trial Examiner George A. Downing issued his
Intermediate Report in the above-entitled proceeding , finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that he cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. ' Thereafter, the Respondent and
1 For lack of supporting evidence , The Trial Examiner granted at the hearing a motion
by the Respondent to dismiss an allegation of the amended complaint that the Respondent
had threatened to file a civil action against the Charging Parties in the event they testi-
fied in this proceeding. As no exception has been taken to the Trial Examiner's dis-
missal ruling, the allegation referred to Is hereby dismissed pro forma.
127 NLRB No. 6.