Owens-Illinois Glass Co.

National Labor Relations Board - Board Decisions

Mar 19, 1962

136 N.L.R.B. 389 (N.L.R.B. 1962)

OWENS-ILLINOIS GLASS COMPANY 389
NLRB 939, 949-950 ; The Frohman Manufacturing Co., Inc., 107 NLRB 1308, 1314.
The Stanley Works, 108 NLRB 734 , 746; and Frank L. Sample, Jr., Inc., 118
NLRB 1496 , 1500-1501 , upon which the General Counsel relies , are inapposite.
In Stanley Works, "the Respondent appealed directly to the employees themselves
to accept the final offer , which the Union 's membership had already rejected ." Here,
the employees in question had, in effect , been authorized by their union to carry on
their own negotiations.
In Sample, the company took its own poll of the employees on a matter concerning
which the union had already expressed its desires at a union meeting. There, the
company defended its conduct on the ground "that its action was taken with the
acquiescence of the collective bargaining agency and was, therefore , protected." The
Board found , however, there was "no evidence to support the foregoing assertion of
the Company . . . At the earliest opportunity after the union committee, made
up of plant employees , learned of the Respondent 's plan to poll the employees, it
registered a vigorous but ineffective protest over the proposed balloting. In the
light of these facts , therefore , it can hardly be said that the Union acquiesced in the
Company's plan to poll the employees on the lunch hour question."
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in section III, above , occurring in connec-
tion with the operations of Respondent described in section I, above, have a close,
intimate , and substantial relation to trade, traffic , and commerce among the several
States, and tend to lead to labor disputes burdening and obstructing commerce and
the free flow thereof.
V. THE REMEDY
Having found that Respondent has engaged in unfair labor practices , I recom-
mend that it cease and desist therefrom and take certain affirmative action designed
to effectuate the policies of the Act.
Though I have found that Respondent unlawfully discharged Compton and Boone
on July 22, 1960, both men were offered reinstatement and backpay on July 23, and
were again offered reinstatement on July 25, both of which offers were rejected.
Under these circumstances , I find no authority which authorizes me to require that
Respondent repeat its offer to these two men.7
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. Respondent is engaged in commerce , and the Union is a labor organization,
both within the meaning of the Act.
2. By threatening Compton and Boone with discharge unless they signed the
letter of intent , and by discharging them on July 22, 1960 , Respondent interfered
with, restrained , and coerced its employees in the exercise of their guaranteed rights
in violation of Section 8(a) (1) of the Act.
3. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and ( 7) of the Act.
4. Respondent did not discriminate against Compton and Boone by refusing to
reinstate them after they rejected previous offers of reinstatement.
[Recommendations omitted from publication.]
In this connection , it should be noted that Respondent apparently has been able to
satisfy its needs for plumbers by the staff that remained after Compton and Boone were
discharged . No replacements have been hired since that time.
Owens-Illinois Glass Company and United Marine Division,
NMU, AFL-CIO, Local 333, Petitioner . Case No. 12-RC-1293.
March 19, 1962
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before M. E. Stadler, hearing offi-
136 NLRB No. 32.
390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cer. The hearing officer's rulings made at the hearing are free from
prejudicial error and are hereby affirmed.
Upon the entire record in this case, the Board finds :
1. Jurisdiction : The Petitioner seeks an overall unit of employees
aboard the Employer's tugs Linden and Parris Island and barges
Pulpwood No. 1 and Pulpwood No. 2. Though the Employer con-
cedes that it is engaged in interstate commerce within the meaning of
the Act, it contends that the Board does not have and should not as-
sert jurisdiction over the operations of the above-named vessels as
they are of foreign registry and manned exclusively by nonresident
aliens and , in the case of the Parris Island, that tug does not operate
in American waters.
The Employer is an Ohio corporation doing business in several
States including Florida. During the past year the Employer pur-
chased and received from without the State of Florida raw materials
valued in excess of $50,000. During the same period the Employer
shipped to points outside Florida paperboard and other finished prod-
ucts valued in excess of $50,000.
The vessels in question are engaged in transporting pulpwood be-
tween the Bahamas and Jacksonville, Florida. The wood is cut in the
Bahamas by Owens-Illinois Glass Company of the Bahamas, Limited,
hereinafter referred to as Owens-Illinois-Bahamas, a wholly owned
subsidiary of the Employer, and is sold to the Employer. A single
individual, James W. Haley, manages both the marine department of
Owens-Illinois Glass Company, the owner-operator of the vessels, and
its foreign subsidiary, Owens-Illinois-Bahamas, from a single office
at 4300 Talleyrand Avenue, Jacksonville, Florida.
Owens-Illinois-Bahamas delivers the cut wood to a dock at Snake
Cay in the Bahamas and loads it onto the the barges Pulpwood No. 1
and No. 2. The tug Parris Island, of Honduran registry, then tows
the pulpwood-laden barge to Matanilla Shoals where it is transferred
to the Liberian-registered tug Linden for towing to Jacksonville. At
Matanilla Shoals the Parris Island receives an empty barge from the
Linden. Thus, with the exception of one trip a year to Florida for
purposes of drydocking, the Parris Island does not touch the conti-
nental United States. Moreover, the deep draft of the Linden pre-
vents its making the voyage between Snake Cay and Matanilla Shoals.
The Parris Island carries a complement of 10 unlicensed crewmen,
the Linden 13, and the Pulpwood No. 1 and Pulpwood No. 2, 2 each.
All are nonresident aliens. The crew of the Parris Island sign Hon-
duran articles while the crews of the remaining vessels sign Liberian
articles.
The Linden makes approximately seven trips per month to Jack-
sonville, Florida, each trip requiring it to be docked there for about
8 hours. Consequently, each barge averages 31/2 trips per month with
OWENS-ILLINOIS GLASS COMPANY 391
docking time identical to that of the Linden. All fuel for the tugs, the
cost of which per tug exceeds $10,000 annually, is obtained in the
United States. All provisions for the tugs are obtained in the
United States. The cost of provisioning each vessel is approximately
$12,000 annually. Each of the vessels in question is drydocked an-
nually at Jacksonville, Florida. The cost of drydocking each tug is
$18,000 per year. The combined operations of the 4 vessels result in
the transportation to the United States of approximately $3 million
worth of pulpwood each year.
Thus, with respect to the Linden, Pulpwood No. 1 and Pulpwood
No. 2 we have before us vessels owned and operated from the United
States by a domestic United States shipowner and which ply regularly
between a foreign nation and a State of the United States. Conse-
quently, such maritime operations possess those substantial United
States contacts which bring them, despite their foreign aspects, within
the jurisdictional coverage of the Act.'
As for the Parris Island, it does not, like the other vessels , have in
its usual operations physical contacts with United States ports or
territorial waters. This fact, it is argued, precludes, in view of the
foreign registry, application of the Act to the vessel. As the facts set
forth above clearly show, the trips which the Parris Island made are
either the initial or final stages in through voyages between Snake
Cay in the Bahamas and Jacksonville, Florida. The tug makes no
trips to, and has no commercial contacts with, Honduras, its flag
state; neither does it take the barges from port to port in the Bahamas
for purposes of loading them. Rather, when it picks them up at Snake
Cay they are set for their international voyage; and the Parris Island
becomes a part of that voyage which runs between a foreign nation
and a State of the United States. Similarly, on the return of the
barges to Snake Cay, the tug operates only as the concluding link in
a through international voyage. To consider the mechanical act of
changing tugs at Matanilla Shoals as a decisive factor in determining
the nature of the commerce involved here would be to sacrifice sub-
stance to form. The essential nature of the voyage is thus fixed when
the tugs leave either Snake Cay or Jacksonville and the voyages are
clearly trade or transportation between a foreign nation and a State
of the United States? Consequently, as the Parris Island operates as
an integral part of such trade and transportation and in view of its
domestic ownership and operation, we find that the Parris Island and
its operations possess those substantial United States contacts which
place them under the jurisdictional converge of the Act.
In view of the foregoing, we find that the maritime operations,
subject of the petition , are in and affect commerce within the meaning
i See, West India Fruit and Steamship Company, 130 NLRB 343; Hamilton Bros, Inc.,
133 NLRB 868.
2 See, Grace Lines, Inc., 135 NLRB 775.
392 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of Section 2(6) and (7) of the Act and that it will effectuate the
policies of the Act to assert jurisdiction in this proceeding.
2. The labor organization involved claims to represent certain em-
ployees of the Employer.
3. A question affecting commerce exists concerning the representa-
tion of employees of the Employer within the meaning of Section
9(c) (1) and Section 2(6) and (7) of the Act.
4. The Appropriate Unit: The Petitioner seeks a single unit, more
fully described below, of crew members aboard all of the four vessels
in question. The Employer, without contesting the unit composition,
contends that four separate units are alone appropriate, each limited
to the crew members of a single vessel. The unit sought by the Peti-
tioner covers, insofar as the record indicates, all unlicensed personnel
employed in the Employer's shipping operations. Being employer-
wide in scope, it is presumptively appropriate .3 Furthermore, though
the facts relied upon by the Employer are some evidence that single
vessel units might be appropriate, they do not show that the requested
employerwide unit is inappropriate. Accordingly, we find that the
following employees of the Employer constitute a unit appropriate for
the purposes of collective bargaining within the meaning of Sec-
tion 9(b) of the Act: all crew members of the tugs Linden and Parris
Island and of the barges Pulpwood No. I and Pulpwood No. 2, ex-
cluding guards and supervisors as defined in the Act.
Text of Direction of Election omitted from publication.
MEMBER RODGERS, dissenting :
The Petitioner seeks an election among a unit of employees employed
aboard two tugs and two barges. One of the tugs and both barges are
registered under Liberian law. The remaining tug bears Honduran
registry. The 2 tugs carry an unlicensed crew of 23, and each of
the 2 barges has a 2-man crew. None of these persons is either a
resident or citizen of the United States. The articles which these
crewmembers sign are either Liberian or Honduran and each contract
of employment recites that the governing law and regulations is to be
that of either Liberia or Honduras, as the case may be.
Contrary to my colleagues, and for the reasons stated by the United
States District Court for the District of Columbia in Socieddd de
Marineros de Honduras v. Frank W. McCulloch, Chairman (United
Fruit Company), 49 LRRM 2434, 2441 (D.C.D.C.), the United States
Court of Appeals for the Second Circuit in Ivan C. McLeod, Reg. Dir.
v. Empresa Hondurena de Vapores (United Fruit Company), 49
LRRM 2442 (C.A. 2), and my dissenting opinions in West India Fruit
and Steamship Company, Inc., 130 NLRB 343, and Hamilton Bros.
Inc., 133 NLRB 868, I would dismiss the instant petition.
8 Miratile Manufacturing Company, Inc., 124 NLRB 48, 49-50 ; We8tern Etectrze Com-
pany, Incorporated, 98 NLRB 1018, 1032.