Seafarers

National Labor Relations Board - Board Decisions

Sep 30, 1980

252 N.L.R.B. 736 (N.L.R.B. 1980)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Seafarers International Union of North America, Pa-
cific District, AFL-CIO, and its affiliates and
American Pacific Container Lines, Inc.
(AMPAC)
Sailors Union of the Pacific, AFL-CIO; Marine
Firemen's, Oilers, and Watertenders Union,
AFL-CIO; Seafarers International Union, Pa-
cific of North America District, AFL-CIO and
National Maritime Union of America, AFL-
CIO. Cases 20-CP-731 and 20-CP-732
September 30, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND PFNELLO
On March 18, 1980, Administrative Law Judge
Jay R. Pollack issued the attached Decision in this
proceeding. Thereafter, Respondent Seafarers In-
ternational Union of North America, Pacific Dis-
trict, AFL-CIO, and its Affiliates filed exceptions
and a supporting brief, and the General Counsel
and Charging Party Employer filed briefs in re-
sponse to exceptions. Respondent Seafarers Inter-
national Union of North America, Pacific District,
AFL-CIO, and its Affiliates also filed a "Motion
To Reopen Record," the General Counsel and Em-
ployer Charging Party filed oppositions to this
motion, and Respondent filed a response to their
opposition to reopen. Subsequently, Respondent
Seafarers International filed a "Second Motion To
Reopen" and the General Counsel and Charging
Party National Maritime Union filed oppositions to
this motion.1
I In its first motion to reopen, Respondent Seafarers International re-
quests that the Board reopen the record in this proceeding to admit the
introduction into evidenlce of what purports to be a telex from Thomas J.
Smith, of Farrell Lines, to John Koster, president of AMPAC, dated
February 5, 1979. According to Respondent, this telex, which was not
available to it at the time of the hearing in this proceeding, is further evi-
dence that, as a condition of sale of ships by Farrell Lines to AMPAC,
AMPAC was required to man the ships with employees who were mem-
bers of the National Maritime Union. We note that Respondent requested
the Administrative Law Judge to take judicial notice of this evidence, but
did not request that he reopen the record although he had not yet ren-
dered his Decision In its second motion to reopen, Respondent requested
that the record be reopended to introduce into evidence an undated doc-
ument which purports to be "proposed manning scale for S.S. Austral
Glade 'I ype Vessels" which Respondent represents is signed by officials
of AMPAC and the National Maritime Union, and which it contends is
further evidence that AMPAC had agreed to hire members of the Na-
tional Maritime Union on its ships. Respondent does not, however, ade-
quately support its contention that this document was not available to it
at the time of the hearing, as it apparently was in the possession of its
witness. Riley In any event. it is our opinion that, in light of all the cred-
ited evidence in this case, the proffered documents do not constitute evi-
dence that AMPAC agreed with Farrell Lines to hire members of the
National Maritime Union or that it entered into any unlawful prehire
agreement with that Union to hire its members when AMPAC manned
its ships in 1979 We therefore deny both motions to reopen. In addition,
Member Penello would deny the motions to reopen on the further
ground that charges filed by Respondent alleging violations of Sec
8(a)(l), (2), (3), and (5) concerning AMPAC's relationship with the Na-
tional Maritime Union had been dismissed, and the appeal had been
252 NLRB No. 105
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,2 and conclusions of the Administrative Law
Judge and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the Respodents, Seafarers Inter-
national Union of North America, Pacific District,
AFL-CIO, Sailors Union of the Pacific, AFL-
CIO; Marine Firemen's, Oilers, and Watertenders
Union, AFL-CIO; Seafarers International Union of
North America, ALGIW District, their officers,
agents, and representatives, shall take the action set
forth in the said recommended Order.
denied See Service Employees' International Union. Local No. 227. AFL-
CIO (Children' Rehabilitation Center. Inc.), 211 NLRB 982 (1974). and
his opinion expressed in f. 2 in United Food and Commercial Workers In-
ternational Union. Local No 1063, AFL-CIO (Ileathman Enterprises Lim-
ited) 249 NLRB 372(19080)
Respondent has excepted to certain credibility findings made by the
Administrative Law Judge It is the Board's established policy not to
overrule an administrative lasw judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Products.
Inc., 91 NLRB 544 (1950). eld. 188 F.2d 362 (3d Cir 1951). We have
carefully examined the record and find no basis for reversing his findings
DECISION
STATEMENT OF THE CASE
JAY' R. POLLACK, Administrative Law Judge: This
case was heard at San Francisco, California, on January
24, 25, 28, and 29, 1980. Pursuant to a charge filed
against Seafarers International Union of North America,
Pacific District, AFL-CIO, and its Affiliates' (Respond-
ents) by American Pacific Container Lines, Inc.
(AMPAC), on November 20, 1979,2 and a charge filed
against Respondents by National Maritime Union of
America, AFL-CIO (NMU), on November 21, the Re-
gional Director for Region 20 of the National Labor Re-
lations Board (Board) issued a consolidated complaint
against Respondents on November 29, alleging in sub-
' Seafarers International Union of North America, Pacific District,
AFL-CIO (SIU-PD), is the certified bargaining representative of an ap-
propriate unit of unlicensed shipboard employees employed by the em-
ployer-members of the Pacific Maritime Association (PMA). Aside from
that designation, SIU-PD has no officers and no functions. SIU-PD con-
ducts its business through joint action by representatives of its three
member organizations: Sailors Union of the Pacific; Marine Firemen's
Oilers and Watertenders Union; and Seafarers International Union,
AGLIW District The three labor organizations and their joint designa-
tion are collectively referred to herein as Respondents.
2 All dates hereinafter are in 1979 unless otherwise noted.
73
SEAFARERS INTERNATIONAl. UNION
stance that Respondents violated Section 8(b)(7)(A) of
the National Labor Relations Act, as amended (Act), by
picketing AMPAC's vessels at the ports of San Francis-
co and Long Beach, California, with an object of forcing
or requiring AMPAC to recognize and bargain with Re-
spondent at a time when AMPAC was lawfully recog-
nizing and bargaining with NMU.
The Issues
The issues in this case are whether Respondents pick-
eted AMPAC where (I) an object thereof was forcing or
requiring AMPAC to recognize or bargain with Re-
spondent as the representative of AMPAC's employees;
and (2) AMPAC had lawfully recognized NMU in ac-
cordance with the Act so that a question concerning rep-
resentation could not appropriately be raised.
All parties have been afforded full opportunity to par-
ticipate, to introduce relevant evidence, to examine and
cross-examine witnesses, and to file briefs. Based upon
the entire record,a upon the briefs filed on behalf of the
parties, and upon my observation of the demeanor of the
witnesses, I make the following:
FINDINGS OF FACT
I. JURISDICTION
AMPAC is a Delaware corporation, with its principal
place of business located at San Francisco, California,
where it is engaged in the transportation of cargo by
container ship between the various ports on the West
Coast of North America. From November 23, when
AMPAC commenced operations, to the time of the in-
stant hearing, AMPAC had derived gross revenues in
a Timely briefs were filed o behalf of the General Counsel and
AMPAC. Respondents' brief was filed one day late but was considered
as if timely filed.
Respondents attached to their brief as "Exhibit A" what purports to be
a telex from Thomas J. Smith, of Farrell Lines, to John Koster, President
of AMPAC. dated February 5, 1979. According to Respondents, Exh. A
was not available at the instant hearing but was obtained during discov-
ery in a collateral district court proceeding to which AMPAC, but not
the General Counsel. was a party. Respondents urge that I take judicial
notice of Exh A but have made no motion to reopen the record On
March 7. 1980, AMPAC filed a motion to strike all references to Exh. A
from the record.
I believe it would be improper to take judicial notice of this exhibit
Under Rule 201 of the Federal Rules of Evidence, a court shall take judi-
cial notice of adjudicative facts requested by a party and supplied with
the necessary information. However, the other parties are entitled to an
opportunity to be heard as to the propriety of taking judicial notice and
the tenor of the matter noticed. Respondents did not offer the exhibit at
the hearing nor have they moved to open the record. The General Coun-
sel has had no opportunity for voir dire or cross-examination with respect
to the document.
Respondents cite Lowe v. McDonald, 221 F.2d 228 (9th Cir. 1955). a
case arising prior to the effective date of Rule 201, in support of their
request that I take judicial notice of Exh. A However, that case states
that the general rule is that a court in one case will not take judicial
notice of records of another and distinct case even between the same par-
ties unless trial proceedings are introduced into evidence. The LoHRe case
held that exceptions to the general rule existed where the prior case is
brought into the pleadings in the case on trial, or where the two cases
represent related litigation.
Based on the record before me, I cannot find the two cases to repre-
sent related litigation. No evidence of the nature of the collateral suit is
before me and further it appears that the General Counsel as notl a
party to that proceeding
excess of $50.(XO from the interstate transportation of
goods and materials.4 Accordingly, I find AMPAC is
now, and has been at all times material herein, an em-
ployer engaged in commerce and in a business affecting
commerce within the meaning of Section 2(6) and (7) of
the Act.
1I. THE lABOR ORGANIZATIONS INVOI.VEI)
The complaint alleges, the answer admits, and I find
that Respondents, and each of them, and NMU are
each labor organizations within the meaning of
Section 2(5) of the Act.
III. THE ALLEGED UNFAIR I.ABOR PRACTICES
A. Background
AMPAC was set up in 1976 to operate container ships
on the West Coast of North America. The operation was
to transport goods from vessels in international transit to
various ports on the West Coast. Financing for the ven-
ture was difficult and AMPAC did not actually com-
mence the envisioned operation until November of 1979.
the time material herein. However, there were times,
particularly in 1977, when financing appeared to be
available, that AMPAC geared up for operation only to
find that its plans for financing and/or purchasing of ves-
sels could not be realized. It was not until 1979 that
AMPAC finally purchased the two vessels at issue
herein, the Pacific Endeavor and the Pacific Enterprise.
These vessels when owned by AMPAC's seller. Farrell
Lines, were named the Astral Glade and the Astral
Glen.
SIU-PD is the collective-bargaining representative of
the unlicensed seagoing employees on most West Coast
vessels. 6 However, NMU, which represents the seagoing
employees on the East Coast and other ports, represent-
ed the licensed seagoing personnel on the Astral Glade
and the Astral Glen when those vessels were operated
by Farrell Lines.
Respondents contend that AMPAC as early as 1977
had determined to recognize NMU as the exclusive bar-
gaining representative of the two vessels' unlicensed
4 Respondents urge that AMPAC, having just started its operations on
November 13, was not an employer within the meaning of the Act ait
time of the alleged unfair labor practices. While AMPAC at that time did
not have a sufficient volume of business to meet the Board's discretionary
jurisdictional standards, by the date of the hearing AMPAC received
gross revenues, from its interstates operations, in excess of $50.000. Thus,
it would be appropriate for the Board to assert jurisdiction herein. Poor
Richard'i Pub - a California Corporation. 217 NLRB 102 (1975); N.L.R B
v. Guernsey-Muslngurn Electric Cooperative, Inc., 285 F 2d 8, I I Lth C'r
1960).
Respondents apparently argue that because AMPAC was a new bui-
ness, the General Counsel must prove jurisdiction on a projected basis
However, if the jurisdictional standard is met based on a short period.
there is no purpose for projecting revenues for a full year period Finall,.
it should be noted that assertion of jurisdiction is appropriate 'henl either
jurisdictional standard is met Northgate Cinema. Inc. and Wrandio, Ih'e-
atre, Inc.. 233 NLRB 586 (1977)
I In prior times the vessels were named the Hawaiian Bear and the
Guam Bear
r Traditionally, S UP represents unlicensed deck department emplos-
ees, M FO W represents unlicensed engine room employees and S I t -
AGilI.W' Districtl represents unlicensed stesward departmenl emplosees
737
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
seamen and to exclude members of Respondents from
hiring to accomplish this purpose. In order to reach the
critical issues of this case, these conditions of Respond-
ents must first be considered.
B. The Events of 1977
The principal matters litigated in this proceeding re-
volve around the procedures followed to man the two
vessels, the Pacific Endeavor and the Pacific Enterprise.
Respondents presented Herbert Riley, former executive
vice president of AMPAC, who left the employ of the
Company in the summer of 1977, and who testified to
AMPAC's alleged plan to man the vessels with NMU
members and to recognize NMU in June 1977. Respond-
ents presented evidence of the 1977 plan in support of
their contention that the same plan or a similar plan was
used by the Company to hire NMU members and to rec-
ognize the NMU in November 1979. The General Coun-
sel and the Company deny the existence of any such plan
and contend that Riley harbors animosity toward the
Company and that he wrongfully sought to adversely
affect the Company's interest in this proceeding.
There is merit to the contention that Riley harbored
animosity toward the Company. Riley testified that he
was biased against the Company as follows:
I am strongly biased against AMPAC but at this
particular time I would not like to create any harm
whatsoever to that company since they still owe me
in excess of $25,000 and I would like them to keep
going and make some money.
Riley quit his employment with AMPAC in the summer
of 1977, and it is clear when he testified that he felt that
AMPAC had been unfair in its treatment of him. Riley
sued AMPAC in 1978 alleging, inter alia, a cause of
action based on claims of humiliation, mental anguish,
and emotional and physical distress. 7 Riley's attempt to
tailor his testimony adversely to AMPAC was illustrated
most graphically by his answers with respect to how
AMPAC intended to determine the identity of the NMU
members from its many job applicants. Riley first testi-
fied as follows:
Q. (By Mr. Walsh): Can you tell us please how
. . .you [know] that one was from the SUP and
somebody else was from the NMU?
A. (By Mr. Riley): That was a good question.
How did we determine.
The topic was dropped and later that same day Riley
testified as follows:
Q. (By Mr. Walsh): Would you state, if you can
recall, of course, whether or not there was any dis-
cussions as to how you were going to determine-if
in fact you were going to determine this-which
labor organization an applicant seaman belonged to?
A. (By Mr. Riley): As I recall that point we were
not concerned with the making of such a determina-
tion during the interviews, or by looking at the ap-
' The lawsuit as dismissed on March 16, 1979, and was on appeal at
the time of the instant proceeding.
plications, but that the NMU was going to furnish
us with a list of their members so that we would
know which belonged to that union.
Later in the proceeding, Riley gave testimony which in-
dicated that NMU furnished the Company with a list of
NMU members who had worked on the vessels for the
previous owner. Thereafter Riley vacillated in his testi-
mony and stated that the Company had needed to know
the names of other members of the NMU who were
available for employment. Still later, Riley testified that
the list consisted of NMU members available for work
and/or those who had formerly sailed on the two ves-
sels. Finally, Riley testified that he did not remember
whether the list consisted of the names of former em-
ployees of the vessels or the names of NMU members
applying for work.
Based on Riley's demeanor, his animosity toward
AMPAC, and the internal inconsistencies in his record
testimony, I credit Riley only insofar as his testimony is
corroborated either by credible testimony or by objec-
tive considerations. More specifically, I do not credit
Riley's testimony that he saw in 1977 a manning agree-
ment signed by representatives of AMPAC and NMU.
No such agreement was produced. Philip Bates, who
succeeded Riley at AMPAC, credibly denied any knowl-
edge of such an agreement. James McKinley, the NMU's
West Coast representative, also denied any knowledge of
the manning agreement he was alleged to have signed. I
find insufficient evidence that any manning agreement
existed between AMPAC and NMU in 1977.
Secondly, I do not credit Riley's testimony that he had
an understanding with McKinley that AMPAC would
receive a list of NMU's members so that the Company
would know which applicants were NMU members. As
mentioned above, Riley backtracked from this testimony.
McKinley credibly denied these assertions and, of
course, no list was produced. Riley claimed he could not
find his copy of the list. Based on the record evidence, I
find AMPAC had a list of the former employees of the
vessels but I am unable to determine whether the list was
secured from Farrell Lines or the NMU. Finally, as will
be discussed in more detail below, there was no evidence
to show any list of NMU members was submitted to
AMPAC in November 1979, the time material herein.
I find that in June 1977, based upon attempts to fi-
nance the purchase of the two vessels, which ultimately
fell through, AMPAC sought to hire a crew for each
vessel. Notice of hiring was sent to all maritime unions,
including each of Respondents and the NMU, and all
employment agencies. In addition, advertisements for the
job openings were placed in local newspapers. However,
certain individuals were sent letters offering them an in-
terview a day earlier than the public interviews. Based
on the record evidence, I find that such opportunity was
given to former employees of the vessels rather than to
NMU applicants as urged by Respondents.
The contract proposals for sale of the vessels from
Farrell Lines to AMPAC provided that AMPAC would
use its "best efforts" to engage the same personnel that
were previously employed on the vessels under Farrell
Lines' operations.
738
SEAFARERS INTERNATIONAl. UNION
While such a contract clause may show an intent on
the part of Farrell Lines that NMU and other labor or-
ganizations with which it had agreements continue their
relationship with the employees of the vessels, it does
not prove an unlawful intent on the part of AMPAC.
Preference to former employees of the vessels, experi-
enced with these vessels, appears to be nondiscrimina-
tory and supported by business justifications.
Finally, as no employees were actually hired, it would
not change my ultimate conclusions had such preference
been intended in 1977, as argued by Respondents.
C. The November 1979 Hirings and the Recognition
of NM, U
On October 3, 1979, prior to the hiring of a crew for
either the Pacific Endeavor or the Pacific Enterprise,
Respondents filed an unfair labor practice charge against
AMPAC alleging violation of Section 8(a)(1), (2), (3),
and (5) of the Act.8 The charge alleged, inter alia, that
AMPAC had unlawfully recognized NMU and/or the
Masters, Mates & Pilots,9 implemented a prehire agree-
ment with them, unlawfully failed to hire Respondents'
members, and refused to meet or discuss job opportuni-
ties with Respondents.
According to the testimony of AMPAC's Executive
Vice President Philip Bates, after receipt of the charges,
he and Paul Heylman, the Company's attorney, went to
the Board's Regional Office in San Francisco to discuss
the charges. As the Company had not yet hired any em-
ployees, Bates was assured that the charge would be dis-
missed, absent withdrawal. Bates sought to devise a plan
for the hiring of the crews which would not subject the
Company to liability under the Act. In addition,
AMPAC was required under its loan agreement with the
Economic Development Agency to hire, as at least 40
percent of its work force, women and minority employ-
ees. Pursuant to this plan, Bates issued nondiscriminatory
guidelines to the Company's interviewers. '° In order to
facilitate the affirmative action program, Bates deter-
mined that the entry level positions, which did not re-
quire substantial prior experience, should be filled by
women and minorities. A memo to this effect was also
given to the Company's interviewers.
I Case 20-CA-14892. The charge was initially dismissed by the Re-
gional Director of Region 20, but thereafter, based upon a withdrawal
request, the dismissal was rescinded and the withdrawal approved
9 The Masters. Mates & Pilots represent the licensed supervisory per-
sonnel on board AMPAC's ships
tO The Company's guidelines provided as follows:
AMPAC is currently hiring employees for unlicensed seamen posi-
tions, we have notified all available union halls and placed advertise-
ments in local papers
The National Labor Relations Act requires that employees be se-
lected for employment without regard to union affiliation or lack
thereof You may, therefore. not ask any questions regarding union
affiliation or lack thereof.
Applicable law and EDA regulations require that AMIAC engage
in affirmative action in hiring and promotion Please insure that Sec-
tion 9 of the application is completed correctly
All hiring will be done on the basis of the following factors
( I ) experience and seamanship
(2) disciplinary record
(3) requisite U SCG . [United States Coast Guard] Certification
(4} prior coastwise service experience
(5) applicable minority status
On November 7. 1979, AMPAC sent a notice, by mes-
senger, to each of Respondents and the NMU that it was
accepting applications for unlicensed seamen positions on
the Pacific Endeavor for Thursday, November 8, and
Friday, November 9. For the 16 positions available on
the Endeavor and the 16 positions available on the Pacif-
ic Enterprise, AMPAC received approximately 300 ap-
plications. On Sunday, November 11, employees were
notified of their selection and on November 13 the crew
reported for duty.
On November 13, Bates was called by a security guard
on the Endeavor and requested to come to the ship to
talk to \Willard Manning of the NMU. " Bates accompa-
nied by Attorney Heylman went to the ship after Bates
arrived, Manning identified himself as a business repre-
sentative of the NMU and demanded recognition of his
Union as the bargaining representative of the unlicensed
crew. Heylman recommended a card check and arrange-
ments were made for a priest at a nearby church to com-
pare the signatures on the cards held by Manning w ith
the signatures on the job applications. Bates, Heylman,
Manning. and two employees serving as witnesses went
to the church for the card check. Father Joseph Scarna-
gatta, of St. Peter and Paul's Church in San Francisco,
compared the signed cards with the signed job applica-
tions and certified that NMU had II valid cards in the
unit of 16 employees. 1 2
Following the card check, Bates, Heylman, and Man-
ning went to the offices of James McKinley, the NMLJ's
regional representative, where Bates and McKinley en-
tered into a "Memorandum of Understanding." 3 Bates
also signed a letter granting recognition to the NMU
based on the card check. ' 4
On November 15, Don RotanIs wrote AMPAC de-
manding recognition of Respondents as the exclusive
II Manning testified that he met Bates and requested recognition on
November 12. However, Manning also testified that these events took
place on the same day the ship was first manned and the same day of the
card check. Objective evidence shows both dates to be November 13
Thus, I find in accordance with Bates' testimony; that he went to the En-
deavor and met Manning there on November 13
12 At the time of the card check, AMPAC manned the Pacific En-
deavor as follows
4 unlicensed engine room employees,
4 cooks and stewards, and
8 unlicensed deck department employees
13 The text of the "Memorandum of Understanding" provides as fol-
lows:
Ir Is MtUA II AGRt Et) by the Company ( MII RIC AN P'( IIIl
(ONIAIN R I INES, INC.) and the Union (NA IIONAI M ARIIIMt I NION
Ot M RICA, At -CIO) that the Agreement coLering S Flag
ocean-going dry cargo vessels shall he amended by negotiations be-
tween the parties to cover the company's vessels in the U S Coslal
Trade This shall also include working rules and manning scale
i4 The November 13 letter granting recognition states as follows:
Based on the card check of this date, the American Pacific Con-
tainer Line, Inc. hereby recognizes the National Maritime Union of
America, AFL CIO, as the sole bargaining representatise for all its
unlicensed employees
5 Respondents deny that Rotan as their agent and specifically deny
that he had any authority Io write the November 15 letter demanding
recognition Rotan holds himself out as assistant secretary treasurer of
SIU-AGI.IW District and is west coast associate editor of that Union's
newspaper Rolan's office is located in the same suite of offices used by
Conrinued
739
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
representative of the Pacific Endeavor's employees in the
steward department. Bates, on receipt of the letter,
checked the authorization cards and determined that
NMU had cards for three of the four employees in the
steward department. Bates, on November 16, sent a tele-
gram to Rotan advising Rotan that NMU had valid au-
thorization cards from a majority of the employees of the
Endeavor and had been recognized as majority repre-
sentative by AMPAC.
On November 16, 1979, Respondents began picketing
AMPAC at the Port of San Francisco with placards
bearing the legend: 6
AMPAC OWNE R & OPERATOR
OF S.S. PACIFIC ENDEAVOR
IS
UNFAIR
WE ARE PICKETING IN SUPPORT OF OUR UI.P
CHARGES AGAINST AMPAC
& IN PROIEST OF ITS CONFIICT.
WE HAVE NO I)ISPUTE WITH
ANY OTHER EMPLOYER OR VESSELI
AT TIllS SITEl
SIU
PACIFIC l)ISRICT
On the weekend of November 17 and 18, AMPAC se-
lected and contacted its crew for the Pacific Enterprise
from the applicants of November 7 and 8. On the morn-
ing of November 19, Manning received authorization
cards from the crew of the Enterprise. Bates was called
to the ship and Manning demanded recognition of NMU
for the Enterprise's employees. Bates demanded proof of
the NMU's majority but Manning insisted that the recog-
nition agreement of November 13 covered both ships. Fi-
nally, Manning turned over the cards to Bates and the
parties agreed to another card check by the same priest.
Father Scarnagatta was contacted and he conducted a
card check at AMPAC's offices. The Father certified 14
valid cards out of a crew of 16 for the Enterprise. Bates
was requested to go to McKinley's office where Bates
signed the form NMU agreement entitled "Agreement
Edward Turner, vice president of Seafarers International Union of North
America and senior representative of SIU-AGLIW District. At least by
the time of the injunction proceeding, Turner had knowledge of Rotan's
letter and filing of unfair labor practice charges on behalf of SIU-
AGLIW District but took no steps to repudiate that action Rather.
Turner testified that his union was picketing in support of that charge
Rotan, still in the employ of SIU-AGLIW District, did not testify.
Based on all of the circumstances, I find Rotan to be a agent of SIU-
AGLIW District based on apparent authority and further that SIU-
AGLIW District ratified his acts. Even if true, it is of no consequence
that Rotan did not have actual authority to demand recognition from
AMPAC Sec 2(13) of the Act
' According to the uncontradicted testimony of Bates. which I credit,
an unidentified picket told Bates that Respondents "were going to orga-
nize that ship and wsere going to put a union aboard the ship" Bates re-
sponded that there was a uniotn aboard the ship. A second picket, thought
by Bates to be a picket captain, told the first picket to shut up and told
Bates to call Respondents' lawyer
There is an absence of any evidence of the agency status of the picket.
Further the alleged picket captain's actions are ambiguous and could be
interpreted as countermanding the first picket. Thus, I find insufficient
basis for concluding that the picke's statement was an admission, of the
real objective of the picketing, binding on Respondents I therefore place
no reliance on this statement in making my conclusions herein
Covering U.S. Flat Ocean-Going Dry Cargo Vessels."
On the signature page McKinley printed "This agree-
ment is retroactive to 11/13/79." This addition was ini-
tialed by both McKinley and Bates. The signed copies of
the agreement were kept by McKinley. Thereafter a
copy signed by Shannon Wall, president of NMU, was
returned to Bates. Wall's signature was undated.
On November 16, coinciding with the commencement
of their picketing of AMPAC, Respondents filed a
charge with Region 20 of the National Labor Relations
Board in San Francisco, alleging that the Company had
violated Section 8(a)(1), (2), (3), and (5). The basis of the
charge was the same as the charge filed on October 3. 7
On November 26, Respondents picketed AMPAC at
the Port of Long Beach, California, where the Pacific
Endeavor was berthed, with picket signs bearing the
legend:
AMPAC OWNER OPERATOR
OF S.S. PACIFIC ENDEAVOR
IS
UNFAIR
WE ARE PICKETING IN SUPPORT OF OUR ULP
CHARGES AGAINST AMPAC
& IN PROTEST OF ITS CONDUCT.
WE HAVE NO DISPUTE WITH
ANY OTHER EMPOYER OR VESSEL.
AT THIS SITE
SIU
PACIFIC DISTRICT
The picketing at San Francisco and Long Beach con-
tinued until enjoined on November 30, 1979, by the
United States District Court for the Northern District of
California, pursuant to a petition filed under Section 10(1)
of the Act. t
The unfair labor practice charge filed on November 16
in Case 20-CA-14980 was dismissed by the Regional Di-
rector for Region 20 and was appealed by the Respond-
ents herein. The appeal was denied by the General
Counsel prior to the instant hearing.
IV. ANALYSIS AND CONCI.USIONS
Section 8(b)(7)(A) of the Act, in pertinent part, makes
it an unfair labor practice for a labor organization to
picket an employer "where an object thereof is forcing
or requiring an employer to recognize or bargain with a
labor organization as the representative of his employees
. . where the employer has lawfully recognized in ac-
cordance with this Act any other labor organization and
a question concerning representation may not appropri-
ately be raised under section 9(c) of this Act."
The issue of whether AMPAC had lawfully reacog-
nized NMU, another labor organization, so that a ques-
tion concerning representation (QCR) could not appro-
17 The charge in Case 20-CA-14980 was signed by Jack Ryan, vice
president of SUP, B.C. Shoup. vice president of MFOW, and Don Rotan.
assistant secretary treasurer of SIU-AGI.IWD
i" There is currently in effect a preliminary injunction enjoining Re-
spotdents from picketing AMPAC for recognitional purposes pending
final adjudication of the instant matter by the Board.
740
SEAFARERS INTERNATIONAL UNION
priately he raised was fairly and fully litigated. Respond-
ents, notwithstanding the dismissal of their unfair labor
practice charges, contend that AMPAC and NMU en-
tered into an unlawful prehire agreement. It follows, ac-
cording to Respondents' theory of the case, that such an
unlawful agreement would not operate as a contract bar
and, therefore, a question concerning representation
could appropriately be raised.'19 As discussed more fully
above, there is no factual basis for finding that AMPAC
recognized NMU prior to the card checks of November
13 and 19. However, Respondents' argument is that
AMPAC conducted its hiring in such a manner as to
insure recognition of NMU by unlawfully discriminating
in favor of NMU members and against members of Re-
spondents.
To support their allegations with respect to discrimina-
tion in hiring, Respondents argue, based on Riley's testi-
mony, that AMPAC had a list of NMU members and
hired its crew accordingly. Further, Respondents argue,
even without a list of NMU members, AMPAC ascer-
tained the union status of applicants from their past expe-
riences and hired applicants based on experience with
vessels subject to NMU contracts. To support this con-
tention, Respondents argue that they supplied 49 percent
of the job applicants but received only 7 of the 32 availa-
ble jobs. 2 0 Further, Respondents argue that these statis-
tics support their contention that AMPAC and NMU en-
tered into an unlawful prehire agreement.
As mentioned above, I find no credible evidence that
AMPAC planned to hire or hired from a list of NMU
members. I have carefully considered Respondents' argu-
ment with respect to the alleged discrimination in hiring
between applicants who were members of Respondents
and nonmember applicants. For the reasons stated below,
I reject that argument.
Without much case guidance from the Board with re-
spect to the use of "statistics" to prove discrimination, I
turn to the United States Supreme Court in International
Brotherhood of Teamsters v. United States2 ' a case arising
under Title VII of the Civil Rights Act of 1964:
"9 Under the Board's contract bar rules, a prehire agreement does not
operate as a bar to an election. Western Freight Association, Merchant
Shippers. Incorported: Stor-Dor Forwarding Company,; festland Forwarding
Company, Dependable Consolidators Inc., 172 NLRB 303 (19t8): General
Exrusion Company, 121 NLRB 1165, 1167 (1958).
20 Based on job experience shown by the 213 employment applications
received in evidence, Respondents argue that 104 job applicants were
members of Respondents, 52 were members of NMU, and 57 were neu-
tral (Respondents could not determine the union affiliation. if any of such
applicants).
With respect to the initial 16-member crew of the Pacific Endeavor,
Respondents argue that 8 were members of NMU, 5 were members of
Respondents, and I was neutral, With respect to the initial 16-member
crew of the Pacific Enterprise, Respondents argue that II were members
of NMU, 2 were members of Respondents, and 3 were neutral
AMPAC by its "motion to strike" of March 7, 1980, seeks to strike all
reference to the compilations as to union affiliation from the record. I do
not consider these classifications as evidence Rather, I consider the at-
tempts to so classify the applicants as argument Duane Hewitt. business
agent for SUP, testified that the classifications he made, based on the ap-
plicants' experience with certain companies, constituted an "educated
guess" as to an applicant's union affiliation Hewitt admitted that he did
not consider the possihbility that any applicant was a member of bolth
competing Unions
21 431 US. 324(1977)
[O]ur cases make it unmistakably clear that
"[s]tatistical analyses have served and will continue
to serve an important role" in cases in which the
existence of discrimination is a disputed issue. We
have repeatedly approved the use of statistical
proof, where it reached proportions comparable to
those in this case, to establish a prima facie case of
racial discrimination in jury selection cases ....
Statistics are equally competent in proving employ-
ment discrimination. We caution only that statistics
are not irrefutable. They come in infinite variety,
and like any other kind of evidence, they may be
rebutted. In short, their usefulness depends on all of
the surrounding facts and circumstances.
The Supreme Court's cautionary remarks are well
heeded in this case. The simplistic comparison urged by
Respondents lacks real meaning in the context of this
case. This is not a case where all applicants are fungible
for purposes of determining whether members of Re-
spondents have been unlawfully excluded or more im-
portantly, whether members of NMU have been unlaw-
fully preferred. Further, there is no reliable evidence of
how many applicants were members of Respondents,
members of NMU, members of neither, or members of
both. Moreover, there is no reliable evidence concerning
the union membership status of the minority and women
applicants.
It is noted that in this case nearly 300 individuals ap-
plied for only 32 jobs and, therefore, statistical data
would further be questionable because the small number
of available jobs makes comparison by percentages par-
ticularly suspect. Further there is no evidence that any
AMPAC official classified or could have classified em-
ployees, as to union affiliation based on job experience.22
Respondents contend that AMPAC's failure to give
them an adequate opportunity to participate in the card
checks made the recognition of NMU unlawful. In sup-
port of this contention Respondents argue that their
charge in Case 20-CA-14892, filed on October 2, gave
AMPAC notice of their representational claims. Similar-
ly, Respondents argue that the number of job applicants
referred to AMPAC by them was sufficient notice of
their representational interest.
Under the Board's Midwest Piping doctrine, 2 an em-
ployer faced with conflicting claims of two or more rival
unions which give rise to a real question concerning rep-
2Z I have carefully examined the 213 job applications receised in cs.i-
dence including the interviewers' remarks. I find no evidence of union
considerations in hiring. Rather, the interviewers' remarks track the five
items listed in the Company's guidelines for hiring, i.e, (I) experience, (2)
disciplinary record, (3) Coast Guard certification, (4) prior coastwise ex-
perience. and (5) minority status. The only additional factor ascertainable
from the interviewers' notes is that the Company questioned employees
concerning their willingness to work with women
linally, it is noted, two of the employees hired for the Pacific Endeav-
or specifically noted their affiliation with Respondents No other member
of the crew specifically noted their affiliation with any labor organiza-
tiotn Considering all of the circumstances, including AMPAC's desire to
give job preference to omeln and minorities and he lack of any evi-
dence of dlscriminat,iry intent, I conclude that there is simply insufficient
evidence to find a hiring practice which discriminated in fasor of NMUl
members and which resulted in de facto prehiring agreement
: .Midest Piping & Supp/! Co. In(., h3 NlRB Ii060 (19451
741
DECISIONS OF NATIONAI. LABOR RELATIONS BOARD
resentation may not recognize or enter into a contract
with one of these unions until its right to be recognized
has finally been determined under the representation pro-
cedures provided by the Act. The United States Court of
Appeals for the Ninth Circuit in Intalco Aluiminum,2 4
upheld the Board's finding25 that an employer had un-
lawfully recognized a union on the basis of an impartial
card check under circumstances where the employer and
the union knew of the organizational activities of a rival
union and where the rival union was not given an oppor-
tunity to participate in the card check. Had the rival
union participated in the card check, in Intalco Alumi-
nurn, it could have produced cards showing that the rec-
ognized union had not been designated by a majority of
the employer's employees. 26 The Ninth Circuit's opinion
Buck Knives, Inc. v. N.L.R.B., 549 F.2d 1319, 1320 (9th
Cir. 1977), cited as controlling herein by Respondents,
reaffirmed the Intalco Aluminum rationale in instances
where a nonunion employer is confronted with at least
two unions who are vying for exclusive recognition,
none of which have had prior collective-bargaining
agreements with the employer. But the application of
Midwest Piping and Intalco Aluminum presupposes a real
question concerning representation. In order to invoke
the Midwest Piping doctrine, Respondents must show a
colorable claim of representation at the time recognition
was granted.
I do not find Respondents' filing of unfair labor prac-
tice charges, particularly when the filing occurred prior
to the interviewing or hiring of any employees, sufficient
to raise a question concerning representation. Further I
find that Respondents' referral of job applicants to
AMPAC does not raise a question concerning represen-
tation.
The only evidence of a representational claim by Re-
spondents, present in this case, is the demand letter of
November 15. As mentioned above Respondents deny
responsibility for that demand but I have, contrary to
their contention, imputed liability for Rotan's actions to
Respondents. However, Rotan's letter sought recognition
for a group of employees on the Pacific Endeavor for
which recognition had previously been granted. No rep-
resentational claim was made for the Pacific Enterprise.
Thus, I find Respondents did not have a substantial or
supportable representational claim at the time recognition
was granted to NMU. Finally, it is noted, that unlike In-
talco Aluminum, in this case there is no evidence of any
organizational activity by Respondents prior to recogni-
tion.
Respondents contend the sole and exclusive object of
the picketing activity was to protest AMPAC's unfair
labor practices. The issue is not whether AMPAC had
committed unfair labor practices, but rather, whether "an
object" of Respondents' picketing was recognitional in
purpose or solely in furtherance of Respondents' "belief'
that AMPAC had commited unfair labor practices.
i lntiaco 41umulirn (orporution N. L. R.B 417 F 2d 3 (9th Cir
196'9)
' 9 NL.RB 1034 (1968)
2' [he tne duplicate card i the illstlant case was igned for Respond-
rit after recoignitilon hd ben granted Further. said card does not affect
NMUt's naljority slatus
In International Union, United Automobile, Aerospace
and Agricultural Implement Worker of America (UA W)
amalgamated Local NIo. 55 (Don Davis Pontiac, Inc.), 233
NLRB 853 (1977), the Board overruled an administrative
law judge's finding that a union violated Section
8(b)(7)(A) by picketing a car dealership under circum-
stances where, as here, the union's unfair labor practice
charge had not been found to have merit. The Board
found the purpose of the UAW's picketing was to pre-
serve jobs the union believed rightfully belonged to its
members and found that the object of the UAW's picket-
ing was job preservation. Further, the Board stated:
The General Counsel's subsequent dismissal of
the Respondent's unfair labor practice charges and
representation petition shows that Respondent's
belief regarding the legality of Davis' conduct, at
least in the General Counsel's view, was incorrect,
not that Respondent did not hold such a belief. [Id.
at 854, fn. 4.]
The United States Court of Appeals for the Second
Circuit upon a petition for review and a cross-application
for enforcement reversed and remanded the case to the
Board.2 7 The Board accepted the remand and adopted,
as the law of the case, the court's finding that the
UAW's picketing was for a recognitional purpose. 2 8 My
reading of the court's opinion, in Don Davis, indicates
that it did not disagree with the Board's holding that
picketing for job preservation does not violate Section
8(b)(7)(A), but rather, that on the facts of the Don Davis
case, substantial evidence indicated that the primary
object of the picketing was recognitional in purpose (594
F.2d 327, 332 (1979)). Thus, in the instant case, if the
sole object of Respondents' picketing was to publicize
their good-faith, but mistaken, belief that AMPAC had
committed unfair labor practices, Respondent would not
have picketed for a recognitional object in violation of
Section 8(b)(7)(A).
The Board has held that recognition or organization
need not be the sole or principal object of the picketing;
it is sufficient to make out a violation if one of the
union's objects is recognitional. See, e.g., Building Service
Employees Union, Local No. 87, AFL-CIO (Liberty
House/Rhodes), 223 NLRB 30 (1976).
Ample indicia of recognitional or organizational object
is present in this case. Respondents filed two charges
against AMPAC with the General Counsel alleging, inter
alia, a refusal to bargain in good faith in violation of Sec-
tion 8(a)(5). Further, Respondents commenced picketing
immediately after AMPAC rejected a demand for recog-
nition in the steward department. Moreover, Respond-
ents, in the district court proceedings under Section
1(1(1), admitted representational claims on AMPAC. '2
Thus under all of the circumstances, I find at least "an
object" of Respondents' picketing was to seek or obtain
recognition as the bargaining representative of
27 594 F2d 327 (2d Cir 1979)
2 243 NLRH 414 (1979)
' Respondlents in their opposition to preliminary injunction filed in
tlhe UIS. District Court stated:
742
SEAFARERS INTERNATIONAL UNION
AMPAC's employees on the Pacific Endeavor and the
Pacific Enterprise.to I therefore find and conclude that
at all times from November 16 until on or about Novem-
ber 30, 1979, an object of Respondents' picketing of
AMPAC has been, and is, to force or require AMPAC
to recognize and bargain with Respondents as the collec-
tive-bargaining representative of AMPAC's employees in
the unit currently represented by the NMU in violation
of Section 8(b)(7)(A) of the Act.
'V. TI HI R MI.Y
Having found that Respondents have violated Section
8(b)(7)(A) of the Act, I shall recommend that they cease
and desist therefrom and take certain affirmative action
necessary to effectuate the policies of the Act.
CONCLUSIONS Of LAW
1. AMPAC is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. Respondents and each of them and the NMU are
labor organizations within the meaning of Section 2(5) of
the Act.
3. By picketing AMPAC from November 16 to on or
about November 30, 1979, in the manner described
above, with an object of forcing or requiring AMPAC to
recognize or bargain with Respondents as the representa-
tive of AMPAC's employees where said employer has
lawfully recognized, in accordance with the Act, another
labor organization, and a question concerning representa-
tion may not appropriately be raised under Section 9 (c)
of the Act, Respondents have violated Section 8(b)(7)(A)
of the Act.
4. The unfair labor practices found above, occurring in
connection with the interstate operations of AMPAC,
are unfair labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
30 It is noted that Respondents presented no witness, with knowledge,
to testify as to their object in picketing Edward Turner, senior repre-
sentative of SIU-AGLIW District, testified that Respondents picketed to
protest AMPAC's unfair labor practices. However. Turner had no part in
the decision to picket the Company Turner was out of town when the
decision was made and was subsequently told of the picketing According
to Turner, Paul Dempster, president of SUP, in consultation with Re-
spondents' attorneys, made the decision to picket the Company. Demp-
ster did not testify and his failure to testify) leads to an inference that his
testimony would be unfavorable to Respondents Internarional Union,
Untred Automobile. A.4erospace. and 4grircultural Implement orkers of
America (U.AW)(Gyrndvne Co. of .4merca) v. NL.R.B., 459 F2d 1329.
1336 (DC. Cr. 1972). Golden State Bottling Company. Inc. d/b/a Ppsi-
Cola Bottling Company of Sacramento v. ... R B, 414 U S. 168. 175
(1973}
Respondents filed an unfair labor practice charge ith the NI.RB
on October 2, 1979. charging AMPAC %sith the initiation (of an il-
legal prehiring agreement ith a copy of that ULP Irrespective of
the merits of Respondents' charge, it plainl', put AMPAC and the
NlRB ion notice of Respondents' clainms
Upon the basis of the foregoing findings of fact, con-
clusions of law, and the entire record, and pursuant to
Section 10(c) of the Act, I hereby issue the following
recommended:
ORDER3 '
The Respondents, Seafarers International Union of
North America, Pacific District, AFL-CIO, Sailors
Union of the Pacific, AFL-CIO, Marine Firemen's
Oilers, and Watertenders Union, AFL-CIO, Seafarers
International Union of North America, ALGIW District,
their officers, agents, and representatives, shall:
1. Cease and desist from:
(a) Picketing, or causing to be picketed, American Pa-
cific Container Lines, Inc. (AMPAC), where an object
thereof is forcing or requiring AMPAC to recognize or
bargain with Respondents as the representative of its em-
ployees where AMPAC has lawfully recognized, in ac-
cordance with the Act, National Maritime Union of
America, AFL-CIO, and a question concerning repre-
sentation may not appropriately be raised under Section
9 (c) of the Act.
2. Take the following affirmative action which is nec-
essary to effectuate the policies of the Act:
(a) Post in conspicuous places at their business offices
and meeting halls copies of the attached notice marked
"Appendix. " :'2 Copies of said notice on forms provided
by the Regional Director for Region 20, after being duly
signed by an official representative of each of Respond-
ents, shall be posted by them immediately upon receipt
thereof, and be maintained by them for 60 consecutive
days thereafter, in conspicuous places, including all
places where notices to members are customarily posted.
Reasonable steps shall be taken by each Respondent to
insure that said notices are not altered, defaced, or cov-
ered by any other material.
(b) Upon request of said Regional Director, Respond-
ents shall supply her with a sufficient number of signed
copies of said notice for posting by AMPAC if it desires
to do so, at its places of business.
(c) Notify the Regional Director for Region 20, in
writing, within 20 days from the date of this Order, what
steps each Respondent has taken to comply herewith.
": All outstanding motions inconsistent with this recommended Order
herebs are denied In the event no exceptions are filed as provided by
Sec 102 46 of the Rules and Regulations of the National Labor Relations
Board, the findings, conclusions, and recommended Order herein shall, as
provided in Sec 102 48 of the Rules and Regulations, be adopted bh the
Board and become its findings, conclusions, and Order, and all objections(
thereto shall be deemed waived for all purposes.
:" In the event that this Order is enforced by a Judgment of a United
States Court of Appeals. the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the Natlonal Labor Relations Board."
743