Transmarine Navigation Corp.

National Labor Relations Board - Board Decisions

May 28, 1965

152 N.L.R.B. 998 (N.L.R.B. 1965)

998 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
would now have but for the application of the superseniority provisions, without
prejudice to their and other employees' seniority according to date of employment,
and other rights and privileges; and make them whole for any loss sustained by
reason of the discrimination against them, with interest at 6 percent, computation to
be made in the customary manner.18 I shall further recommend that the Board
order the Company to preserve and make available to the Board, upon request,
payroll and other records to facilitate the checking of the amount of backpay due.
As pointed out in Lundy,la the remedy should properly reflect the background or
prelimitations period. While execution and maintenance of the agreement have not
been found violative, the Company will be directed to cease and desist from enforc-
ing or giving effect to the superseniority provisions of its agreement with the Union.
Upon the basis of the above findings of fact and upon the entire record in the
case, I make the following
CONCLUSIONS OF LAW
1. International Chemical Workers Union, Local 427, is a labor organization
within the meaning of Section 2(5) of the Act.
2. By enforcing, giving effect to, and applying strike superseniority provisions of
its agreement with the Union, and by otherwise discriminating in regard to the hire,
tenure, and conditions of employment of Pritchard, Thompson, and Whetstine,
thereby discouraging membership in a labor organization and interfering with,
restraining, and coercing employees in the rights guaranteed in Section 7 of the Act,
the Company has engaged in and is engaging in unfair labor practices within the
meaning of Section 8(a) (3) and (1) of the Act.
3. The aforesaid labor practices are unfair labor practices affecting commerce,
within the meaning of Section 2(6) and (7) of the Act.
[Recommended Order omitted from publication ]
18 The Chase National Bank of the City of New York, San Juan, Puerto Rico, Branch,
65 NLRB 827; Crossett Lumber Company, 8 NLRB 440, Republic Steel Corporation v.
N.L R B., 311 U S. 7; F W. Woolworth Company, 90 NLRB 289, 291-294; Isis Plumbing
it Heating Co., 138 NLRB 716
10 Footnote 16, sups a, 1233-1234
Transmarine Navigation Corporation and Its Subsidiary , Inter-
national Terminals, Inc. and American Federation of Guards,
Local #1. Case No. 21-CA-5766. May 18, 1965
DECISION AND ORDER
On November 17, 1964, Trial Examiner Eugene K. Kennedy issued
his Decision in the above-entitled proceeding, finding that the Respond-
ent had engaged in and was engaging in certain unfair labor practices
within the meaning of the National Labor Relations Act, as amended,
and recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's Deci-
sion. Thereafter, the Respondent filed exceptions to the Trial Exam-
iner's Decision and a supporting brief.
Pursuant to the provisions of Section 3 (b) of the Act, the National
Labor Relations Board has delegated its powers in connection with this
case to a three-member panel [Chairman McCulloch and Members
Brown and Jenkins].
152 NLRB No. 107.
TRANSMARINE NAVIGATION CORPORATION, ETC. 999
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 Respondent's exceptions and brief, and the
entire record in the case, and hereby adopts the findings, conclusions,
and recommendations of the Trial Examiner with the following
addition.
In accordance with the limited remedy request of the General Coun-
sel, the Trial Examiner recommended that the Respondent be required
to make whole the employees involved from the date of the closing of
the terminal, on or about November 1, 1963, until June 25, 1964, the
date on which the Respondent offered, in writing, to bargain with the
Union about any matter in dispute. The Trial Examiner relied in this
connection on Jersey Farms Milk Service, Inc., 148 NLRB 1392.
The Respondent contends that, in accord with the Jersey Farms deci-
sion, it satisfied its obligation to bargain with the Union at an earlier
date, namely, on October 30, 1963, prior to the termination of its
employees on November 1, 1963, and that it therefore has no backpay
obligation. This contention is based on the fact that Walker, the
Union's business agent, telephoned Linn, the Respondent's vice presi-
dent, on October 30, and asked whether the guards in question could be
employed at the Long Beach operation, to which Linn replied that he
had already made arrangements to hire another guard service. That
was apparently the entire conversation. This telephone inquiry and
answer fall short of constituting collective bargaining within the Act's
meaning about the status of the terminated employees, and therefore
does not warrant cutting off the Respondent's backpay obligation. And
it is unlike the situation in Jersey Farms, where the employees and
the Union did, in fact, meet for purposes of bargaining and, as the
Board found there, discharged that duty.' Accordingly, in agreement
with the Trial Examiner, we shall require the Respondent to make the
affected employees whole from the closing of the terminal until
June 25, 1964, the date on which it offered to bargain with the Union
with respect to any matter in dispute.
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, as modified
herein, and orders that the Respondent, Transmarine Navigation Cor-
'The Respondent also adverts in its brief to a conversation with walker in November.
while walker telephoned Linn during the last week of November, the record shows only
that he asked if Linn was going to honor the collective-bargaining agreement. It does
not reveal what the answer was. We find that this conversation, likewise, does not con-
stitute bargaining within the meaning of the Act.
1000 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
poration and its Subsidiary, International Terminals, Inc., Los
Angeles and San Francisco, California, its officers, agents, successors,
and assigns, shall take the action set forth in the Trial Examiner's
Recommended Order, as so modified:
Delete paragraph 1(f) from the Trial Examiner's Recommended
Order, and the "note" paragraph from the Appendix attached thereto.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
A hearing in this matter was conducted before Trial Examiner Eugene K. Kennedy
in Los Angeles, California, on August 6 and 7, 1964.1 In essence, the complaint
alleges that Respondent, by unilaterally terminating the employment of six of its
employees and moving its place of operation, failed to fulfill its statutory collective-
bargaining obligation.
Upon the entire record and my observation of the demeanor of the witnesses, and
upon consideration of the briefs submitted by the General Counsel and Respondent, I
make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT AND THE JURISDICTION OF THE BOARD
Transmarine Navigation Corporation, herein called Transmarine, at all times
material herein has been a California corporation with its principal offices in Los
Angeles and San Francisco, California. It is engaged in the business of acting as
freight agent, shipbroker, and steamship agent.
International Terminals, Inc., herein called International, at all times material
herein has been a California corporation with its principal office in Los Angeles,
California, where it is engaged in the business of operating a steamship cargo
terminal.
At all times material herein, Max J. Linder has been president of Transmarine and
International, owning 100 percent of the corporate stock of both corporations.
During 1963 Transmarine performed services valued in excess of $400,000. Of
this amount, $50,000 worth of services were performed for employers engaged in
interstate and foreign commerce located in the States other than California. During
1963 International performed services valued in excess of $350,000, of which
$50,000 worth were performed for employers in Los Angeles, California, said
employers having sales of goods and materials valued in excess of $50,000 directly
to customers located in States other than the State of California.
At all times material herein, Transmarine and International are, and have been,
a single employer engaged in commerce and in a business affecting commerce within
the meaning of the Act .2
H. THE LABOR ORGANIZATION INVOLVED
American Federation of Guards, Local No. 1, herein called the Union, is, and
has been at all times material herein, a labor organization within the meaning of
the Act.
III. THE UNFAIR LABOR PRACTICES
A. The appropriate unit and union majority
On February 15, 1960, the Union was certified as a collective-bargaining repre-
sentative of an appropriate unit described as follows:
INCLUDED: All guards, as defined in the Labor-Management Relations
Act of 1947, as amended, employed by Associated-Banning Company, Williams-
Dimond & Company, International Terminals, Inc, Outer Harbor Dock &
Wharf, Inc., Indies Terminal Corporation, Pope & Talbot, Inc., and Ocean
Terminals who work in the sheds, on the docks or in adjacent cargo storage
1 The original charge was filed on February 7, 1964, followed by an amended charge
on April 14 and a second amended charge on June 5, 1964 . The complaint was issued
on June 12, 1964.
2 Transmarine and its subsidiary, International, at times herein will be designated
Respondent.
TRANSMARINE NAVIGATION CORPORATION, ETC. 1001
areas, and , in the case of Pope & Talbot, Inc., on vessels owned and operated
by it, at the harbors of Los Angeles -Long Beach , California , and who have
worked as such guards for said Employers a minimum of 400 hours in the pay-
roll year ending Dec. 21, 1959. [Emphasis supplied.]
EXCLUDED : All other employees of said Employers , including professional
employees and supervisors as defined in the Act.
The most recent collective -bargaining agreement in effect between Respondent and
the Union became effective on June 30 , 1962, and expires on June 30 , 1965. This
agreement covered guards in the employ of the signatory employers , including
Respondent , in the Long Beach and Los Angeles area. It is found that the Union
at all times herein , has been the representative of the employees in the above-
described unit for the purposes of collective bargaining within the meaning of Sec-
tion 9(a) of the Act.
B. The events
Respondent, prior to November 1963, was operating in the Los Angeles area and
employed its guards directly through the Union.
On or about September 5, 1963, Respondent executed a joint venture agreement
with Jones Stevedoring and California Maritime, providing for operations in the
Long Beach area, rather than Los Angeles. Lloyd Linn, the vice president of Inter-
national, did not know what the needs for guards would be at the new facility when
the joint venture agreement was executed.
California Maritime and Respondent each had a 40 percent interest in the joint
venture, and Jones Stevedoring, the remaining 20 percent. Prior to the formation of
the joint venture, known as Sierra Terminals, the terminal facilities were occupied by
a company known as Twin Harbors which had a contracting arrangement with New-
ton Security Patrol to supply guards. The rates of pay received by employees pro-
vided by Newton, along with the question as to whether the organization that repre-
sented Newton employees had jurisdiction over the Long Beach facility, will be
included in the factors considered in fashioning a remedy for the breach of Respond-
ent's obligation to bargain with the Union as established by the events.
As noted previously, on September 5, 1963, Respondent entered into an arrange-
ment whereby it would move its operations from Los Angeles to Long Beach in
connection with the formation of the joint venture known as Sierra Terminals. On
October 24, 1963, the owner of Respondent, in a bulletin addressed to all employees
labeled as a report of company activities, advised the employees that they would be
terminated as employees of International and reemployed by Sierra Terminals in
Long Beach. The bulletin also recited that this change would take place on Novem-
ber 1, 1963. Copies of these bulletins were not distributed to the guards.
On October 28, 1963, Vice President Linn, of International, wrote the following
letter to the business manager of the Union:
Mr. Curtis W. Walker, Business Manager
American Federation of Guards, Local # 1
4157 West Fifth Street
Los Angeles 5, California
Dear Mr. Walker: We regret to inform you that on October 31, 1963, Inter-
national Terminals, Inc., will cease business. Accordingly, on that date our
agreement of June 30, 1962, will no longer be operative.
We are sorry that this event will terminate the employment of the guards who
are members of your organization. We are doing all possible to secure other
employment for them. We take this opportunity to express our appreciation to
you for your consideration and cooperation in this matter.
Very truly yours,
INTERNATIONAL TERMINALS, INC.
(S) L.A.Linn,
L.A. LINN,
LAL/mm
Vice President.
C. Events relating to and status of Ernest McClintock
McClintock was employed by Respondent in April 1961 as a guard. McClintock
described himself and the other keymen who worked on the swing shift and the third
shift, as a "kind of supervisor." The keymen's duties included following general
instructions by Vice President Linn in calling the union hall when another guard was
needed. Additional guards were required when cargo loading or unloading from
1002 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ships was taking place. The number of guards employed would vary because on
occasion there would be no ships and, hence, not as much activity. According to
the credited testimony of McClintock, three guards were the most employed at one
time. Respondent had four keymen, hired by Linn, who worked on a permanent
basis. Inasmuch as there were three shifts, the fourth keyman was required so that
all the keymen would have 2 days a week when they would not be required to work
McClintock was the keyman on the day shift. Normally McClintock and one
other regular man were employed daytime and on rare occasions a third man was
called in. On some occasions, the regular man, in addition to McClintock, would
patrol an area where cargo was stored even though a ship was not loading or dis-
charging cargo. On the occasions that McClintock would suggest an area for one
of the other guards to patrol, it was in accoid with the general instructions given
him by Vice President Linn. The only advantage enjoyed by McClintock over the
other guards employed by Respondent was that he was guaranteed a certain number
of hours of work per month. He received the same hourly wage, and did not have
authority to hire except in the sense of calling the guard service for employees
approved by Linn. He did not have the authority to fire or hire employees, or to
effectively recommend hiring or firing. Consequently, it is found that McClintock
is an employee and not a supervisor within the meaning of the Act.3
Vice President Linn, of International, testified that he regarded McClintock as a
member of the unit covered by the collective-bargaining contract. As noted, McClin-
tock was paid at the same rate as other guards. Hence, the characteristics by Linn
that McClintock was in charge of the security operations and that he was a person
possessed of unique judgment and experience do not affect the determination that
McClintock was not a supervisor
On September 15, 1963, Vice President Linn told McClintock that Respondent was
thinking of closing its terminal in Los Angeles and of merging with companies in
Long Beach. Linn asked McClintock to keep this confidential, and also asked
McClintock if he would be interested in being the head of the security services with
the new company. Nothing eventuated from Linn's attempts, if any, to have Sierra
Terminals employ McClintock as their head security man About a week or 10 days
later, McClintock was told by Linn to advise the guards they would be terminated
on or about November 1, 1963. On this occasion McClintock was told by Linn that
Sierra Terminals was going to use Newton Security Patrol at Long Beach for guard
services. On or about October 15 Linn told McClintock that he would talk to
Newton and see what could be done with respect to the employment of the guards
employed by Respondent. At this time there were only the four keymen at Interna-
tional The record does not establish the last working day of the other two regular
guards.
On or about October 17, 1963, after Linn spoke to Newton, at Linn's suggestion,
McClintock spoke to Newton about employment of himself and other men at Long
Beach. Newton offered McClintock and the other guards jobs at $1.82 an hour.
McClintock was offered a job with Sierra Terminals but the other three keymen, as
related by Newton, would have to work off the board, that is to be called in when
needed. McClintock and the other guards declined Newton's offer of employment
because at that time they were making $2 70 an hour as opposed to $1 82 offered by
Newton. The four keymen employed by Respondent were Ernest McClintock,
Russel Betterton, William Sheid, and Glen Isted Linn was advised of this decision
by McClintock, and then McClintock and Betterton and possibly the other two
keymen asked for letters of recommendation from Linn to be used in seeking other
employment.
In September 1963 McClintock told Walker, the secretary-treasurer of the Union,
that there were rumors that the terminal was going to be closed. In the latter part
of October, McClintock had an occasion to see Walker and at that time told him
that the guards were going to he terminated On this occasion, in response to a ques-
tion by McClintock, Walker stated that he had not received notice from Respondent
concerning the termination of the guards at the Los Angeles facility. Respondent's
first direct communication to Walker about moving the terminal and the termination
of the guards was on October 28, 1963. The record reflects that prior to this conver-
a At the hearing there was considerable testimony, in large part developed by Respond-
ent, apparently aimed at establishing McClintock as a supervisor. In its brief, Respond-
ent does not press this point but, on the other hand, maintains that, in effect, McClintock
was an agent of the Union for the purposes of collective bargaining as he had the
ostensible authority to represent the Union It is manifest that if McClintock was a
supervisor, that collective bargaining between Respondent and its own supervisors would
not be of the type contemplated by the Act Consequently, it is assumed that Respondent
at least implicitly has conceded in its brief that McClintock was not a supervisor.
TRANSMARINE NAVIGATION CORPORATION, ETC. 1003
sation there was some publicity with relation to the movement of Respondent to
Long Beach. The record does not establish that these was any publicity concerning
termination of the guards. Hence there is no basis for a finding that Walker was
aware of Respondent's decision to terminate the guards prior to late October when
he was so informed by McClintock.
D. The asserted jurisdiction of Local 1
International Union of Guards and Watchmen
It is Respondent's contention that theie is some basis for finding that Local 1,
International Union of Guards and Watchmen had jurisdiction at the facility where
Sierra Terminals operated. This contention is made although none of the joint
venturers were operating at that location prior to the formation of the joint venture.
There was however a company known as Twin Harbors that did operate there prior
to the Sierra Terminals' using the facility, and this company utilized the services of
Newton Security Patrol at this location.
A Ralph Moody, whose occupation was secretary-treasurer of Local 1, Interna-
tional Union of Guards and Watchmen since 1950, testified on this point. Newton
is the only employer that this union had a contract with. The wage rate of $1.82 as
contrasted with $2.70 received by the employees of the American Federation of
Guards and, the fact that the International Union does not have any health or welfare
plan as does the Union, demonstrate that the International Union of Guards has been
far less successful in obtaining economic benefits for its members than the American
Federation of Guards reterred to herein as the Union. It tollows that an offer of a
job with Newton did not constitute an offer of comparable employment to the termi-
nated guards. Moody's testimony reflects that on some occasions the American
Federation of Guards claimed jurisdiction where his men were working and his men
left. The record does not suggest that the opposite ever took place, that is, that the
Union ever surrendered jurisdiction to Moody's organization. Further, the last time
that this was a subject for discussion between Moody and any representative of the
Union was in 1957. The record falls considerably short of establishing a custom
where the Union would have jurisdiction in a location irrespective of the employer
and the International Union of Guards would have the same privilege. It only
appears to establish that on some occasions the International Union of Guards,
which has a contract with only one employer, that is Newton, was required to relin-
quish some work because of the claims by the Union. Moody admitted that, although
Walker had been the business manager of the American Federation of Guards since
1960, the geographical jurisdiction question was never discussed.4 Even assuming
the jurisdictional custom claimed by Respondent did exist, it would not operate to
relieve Respondent from its obligation to bargain about the termination of the guards.
E. Discussion and concluding findings
The central fact establishing Respondent's failure to comply with the mandate of
the Act is that it executed a contract obligating it to leave its place of business and
become a minority party to a joint venture without consultation with the Union. The
consequences of this action on the employment of the guards employed by Respond-
ent at its Los Angeles facility, according to Vice President Linn, was not clearly
known at the time of the execution of the contract. In any event, by the time the
Union had received formal notification on October 28 in a letter from Linn, the
joint venture had concluded a contractual arrangement with the Newton Security
Patrol which obviated the necessity of the employment of guards directly by the joint
venture
Respondent contends that the Union is charged with the knowledge of the closing
of the terminal and the discharge of the employees by reason of the fact that Vice
President Linn told McClintock of this on or about October 1, 1963. Respondent
relies on Motoresearcli Company and Kerns Corpoiation, 138 NLRB 1490, as author-
ity for the proposition that knowledge communicated to the employees was imputable
to the Union If so, Respondent argues, the Union waived its right to bargain about
the closing of the terminal and the termination of the guards because it did not request
such bargaining. The factual distinction in Motoresearcli Company is considerable.
4 At one point in his testimony, Moody says that the geographical arrangement for his
members and the members of the Union has been in effect since 1960 He previously
testified that the only people he had ever discussed this with were individuals named
Anderson and Camp representing the Union. He testified that Camp died about 1956
and the last time that he saw Anderson was in 1957.
1004 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In that case a member of the union negotiating committee saw the Company moving
equipment and, for a period of approximately 5 months after that, no mention was
made by this member of the union negotiating committee or any other member even
though it was evident that the removal of such equipment would have an effect upon
the jobs of employees who were represented by the Union, and this question was not
raised during 18 bargaining sessions after such notice. McClintock and the other
keymen guards were employed without official or unofficial union office or capacity.
The letter of Linn of October 28, 1963, reflects a belated recognition that the Union,
as such, was entitled to notice about the closing of the terminal and hence the advice
of Linn to McClintock about the closing of the terminal was apparently not regarded
by Linn as the equivalent of notification to the Union.
In any event, even assuming the knowldege of the union members with respect
to the closing of the terminal and the termination of their jobs was imputable to the
Union, such knowledge was available only after the Respondent had made a uni-
lateral commitment to become a minority member of the joint venture, at which
point bargaining would reasonably be regarded as futile by the Union.
This action of Respondent manifestly is a violation of its obligation to bargain with
the Union. Jersey Farms Milk Service, Inc., 148 NLRB 1392.
Respondent urges that Linn's conversation with McClintock constituted bargaining
with respect to the effect of closing the terminal on the union members. Its conten-
tion is rejected as the record does not give any support to the premise that McClintock
was placed in a position of ostensible authority to represent the Union.
Walker, the union representative, undoubtedly regarded a request to bargain as a
futile gesture concerning the decision of Respondent with respect to moving its
facilities and the termination of the guards. He did seek to have Respondent offer
equivalent employment to the displaced guards but without success. In shoat, when
a union is advised of an employer's final decision with respect to a matter that should
be bargained about, it is not incumbent on the union to make a useless request to
bargain about something that has already been accomplished.
Finally Respondent urges that the Union should have resorted to the grievance pro-
cedure and that this is a proper method of disposing the controversy here presented.
Section 10 of the collective-bargaining agreement in effect between the Union and
Respondent reads as follows:
SECTION 10
A committee of four, to be known as a "Joint Guards Committee" shall be
appointed, two to be, selected by the Union and two by the Employer, such
Committee to have authortiy to see that this Agreement is carried out faithfully
by both parties and to adjust disputes. In considering formal motions, the
Employers and the Union shall each have one vote. The decision of the Com-
mittee shall be binding upon both parties. In the event the Committee fails to
agree on any matter, it may be referred for decision to any disinterested person
mutually acceptable to them. Should the members of the Committee fail to
agree upon the disinterested person, they shall request the Director of the Con-
ciliation Service of the United States Department of Labor to select such disin-
terested person who shall be located within the geographical area covered by the
scope of this Agreement. Any expenses in connection therewith and any other
expenses incurred by order of the Committee shall be equally divided between
the parties thereto. Nothing in this rule shall be construed to prevent the parties
hereto from agreeing upon other means of deciding matters upon which there
has been disagreement.
It appears highly questionable that section 10 necessarily encompasses the subject
matter of the dispute involved in this proceeding. In any event, neither the Employer
nor the Union have invoked section 10 of the agreement and there is nothing in the
agreement which suggests that the displaced guards might have a right to initiate
the grievance procedure set forth in section 10. Under these circumstances, Respond-
ent's contention that the lack of invoking section 10 provides it with a defense in this
proceeding must be rejected as without merit. The William J. Burns International
Detective Agency, Inc, 148 NLRB 1267. _
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in section III, above, occurring in connection
with the operations of Respondent described in section I, above, have a close, inti-
mate, 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 of commerce.
TRANSMARINE NAVIGATION CORPORATION, ETC. 1005
V. THE REMEDY
In framing a recommended order, the expression of the Board in the Jersey Farms
case, supra, will be utilized as a guidepost. In that case the Board stated: "In fash-
ioning our affirmative orders, we bear in mind that the remedy should be molded to
the particular situation requiring redress."
There are many similar factors in the Jersey Farms case that exist here reflected
by the language of the Board following the above quotation. "Having scrutinized
the record and weighed the particular facts and circumstances surrounding this case,
including cumulatively (a) Respondent's earlier history of harmonious labor rela-
tions with the Union; (b) the absence of any apparent antiunion motivation in the
unilateral subcontracting; (c) the economic hardship both to Respondent and to
third party interests that full restoration of the status quo ante would entail; and
(d) Respondent's subsequent willingness to bargain with the Union about the sub-
contract as detailed below, we agree with the finding of the Trial Examiner that an
order to restore the status quo ante is inappropriate in this case."
It is noteworthy in the case at hand, the General Counsel specifically disclaimed
seeking a remedy restoring the status quo ante or giving employment to the displaced
guards. The General Counsel further conceded that the economic reasons for mov-
ing the terminal from Los Angeles to Long Beach were valid. This record would
not support a finding that the reason for moving was at least, in part, motivated by
a desire to avoid the contractual obligations on the part of Respondent with the
Union.
This record presents some special difficulties in framing a remedial order. The
complaint alleges that six individuals were displaced by the action of Respondent in
terminating its Los Angeles operations without bargaining with the Union. At the
time of termination, the record establishes that Russel D. Betterton, Glen Isted,
Ernest McClintock, and William H. Shied were the four keymen that were employed.
The complaint alleges that a William M. Campbell and C. W. Gill were also wrong-
fully terminated. There was no direct testimony establishing that these individuals
were employed by Respondent. There is testimony by McClintock that Linn had
authorized two individuals to be called and presumably these were the individuals
characterized in the record as regular guards. Utilizing an approach paralleling rec-
ommended orders in discriminatory discharge situations, it will be recommended that
the guards regularly employed by Respondent as of September 5, 1963, shall be enti-
tled to the remedial redress set forth below.
A further difficulty that suggests itself in connection with a recommended order is
that the joint venture, Sierra Terminals, as far as this record reflects, employed only
two regular guards, whereas Respondent employed at least four and probably six.
Since it is impossible to speculate retrospectively with any degree of certitude what
would be the effect of bargaining with respect to the continued employment of the
six individuals named in the complaint and who might be the individuals selected in
the event, such bargaining was successful from the Union's viewpoint, it is consid-
ered appropriate that Respondent bear the burden of offering redress to all employ-
ees regularly employed as guards as of September 5, 1963.
Consideration of the communications between Respondent's attorney and the
attorney for the Union are factors which, together with the other circumstances
present, are deemed relevant in making a recommended remedial order.
On June 24, 1964, the attorney for the Union wrote to the attorney for the
Respondent as follows:
As you know our office represents the Union relative to the above captioned
pending matter.
If you have any thoughts regarding the possibility to work out a compromise
settlement of this pending matter, then would you please contact me so that we
may discuss the situation.
On June 25, 1964, the attorney for Respondent wrote the following letter in
response to the letter of June 24 from the Union's attorney:
We will be pleased to discuss this matter with you at your convenience.
It is noted that since your last communication with us your client has charged
that Transmarine and International Terminals refuse to bargain about the mat-
ters in dispute. In order to avoid any misunderstanding on this point, you
should know that our clients are now and always have been willing to bargain
about any matters in dispute.
1006 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Inasmuch as Respondent is a minority member of Sierra Terminals joint venture,
it is apparent that no remedial order would be effective which would bind the entire
joint venture. Consequently the question of reemployment or reinstatement of the
guards need not be considered, particularly as the General Counsel has disclaimed
that he is seeking such a result as part of the remedy. Under all the circumstances
present in this case, it would appear to be an exercise in futility to recommend that
the Respondent and the Union bargain concerning the shutting down of the termi-
nal or the employment of guards
It is noted that in Jersey Farins, supra, the Board utilized an arbitrary cutoff date
for backpay even though the violation was not fully remedied It would seem that
an adequate remedy here would be one that would provide the displaced employees
for any loss of wages they may have suffered between the closing of the terminal
and June 25, 1964, when Respondent offered to bargain with respect to any matter
in dispute. In an ivmg at this conclusion several factors are borne in mind Absent
Respondent's error in not negotiating the matter properly with the Union prior to
its closing of its Los Angeles terminal, Respondent could have avoided any liability
by complying with the mandate of the Act by engaging in good-faith bargaining.
Even though the Union was successful in prevailing upon Respondent to induce the
Sierra Terminals to employ guards directly, it would appear that only two would be
employed regularly rather than the four or six employed by Respondent. Although
it may be argued that Respondent's offer on June 25 to bargain concerning the
closing of the terminal was belated to say the least, it cannot be assumed that this
is necessarily a bad-faith offer as the Union did not, as far as this record goes, choose
to accept the Respondent's offer to bargain concerning the question of Respondent,
in effect, granting some severance pay.
CONCLUSIONS OF LAW
Upon the basis of the foregoing findings of fact and upon the entire record in this
proceeding, I make the following conclusions of law.
1. Transmarine Navigation Corporation and its Subsidiary, International Termi-
nals, Inc., designated Respondent herein, is an employer within the meaning of the
Act.
2. American Federation of Guards, Local #1 is a labor organization within the
meaning of the Act.
B. By entering into an agreement with Jones Stevedoring and California Maritime
on September 5, 1963, which affected the employment of the employees in the unit
described below, without consultation or bargaining with the Union, Respondent has
committed unfair labor practices violative of Section 8(a) (5) and 8(a) (1) of the Act.
4. At all times material herein, the Union has represented a majority of the
employees in the unit described as follows:
INCLUDED: All guards, as defined in the Labor-Management Relations Act
of 1947, as amended, employed by Associated-Banning Company, Williams-
Dimond & Company, Inteinational Terminals, Inc., Outer Harbor Dock &
Wharf, Inc, and Ocean Terminals who work in the sheds, on the docks or in
adjacent cargo storage areas, and, in the case of Pope & Talbot, Inc., on vessels
owned and operated by it, at the harbors of Los Angeles-Long Beach, California,
and who have worked as such guards for said Employers a minimum of 400
hours in the payroll year ending Dec. 21, 1959. [Emphasis supplied.]
EXCLUDED- All other employees of said Employers, including professional
employees and supervisors as defined in the Act.
5 The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law and upon
the entire record in this case and pursuant to Section 10(c) of the National Labor
Relations Act, as amended, it is recommended that Respondent, Transmarine Navi-
gation Corporation and its subsidiary, International Terminals, Inc., Los Angeles
and San Francisco, California, its officers, agents, successors, and assigns, shall take
the following affirmative action which it is found will effectuate the policies of
the Act;
(a) Make whole Russel D. Betterton, Glen Isted, Ernest McClintock, and Wil-
liam H. Sheid for any loss of pay suffered by them in the matter set forth in the
section entitled "The Remedy."
TRANSMARINE NAVIGATION CORPORATION, ETC. 1007
(b) Make whole William M. Campbell and C. W. Gill in the event these employ-
ees were regular employees on the payroll of Respondent as of September 5, 1964,
for any loss of pay suffered by them in the manner set forth in the section entitled
"The Remedy."
(c) Preserve - and, upon request , make available to the Board or its agents, for
examination and copying , all payroll records , social security payment records, time-
cards, personnel records and reports, and all records necessary to analyze the amount
of backpay due under the terms of this Recommended Order.
(d) Post at a place in Sierra Terminals , Long Beach , California , copies of the
attached notice marked "Appendix." 6 Copies of said notice , to be furnished by the
Regional Director for Region 21 shall , after having been signed by Respondent's
representatives , be posted by Respondent immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter, in conspicuous places, or in
places where notices to employees are usually posted. Reasonable steps shall be
taken to insure that all notices are not altered , defaced, or covered by any other
material.
(e) Notify the Regional Director for Region 21, in writing , within 20 days from
the receipt of this Trial Examiner 's Decision , what steps Respondent has taken to
comply therewith 7
(f) Respondent shall notify any of the above-named employees if presently serv-
ing in the Armed Forces of the United States of their right to full reinstatement
upon application in accordance with the Selective Service Act and the Universal
Military Training and Service Act of 1948 , as amended , after discharge from the
Armed Forces
It is further recommended that unless , within 20 days from the date of the receipt
of this Trial Examiner 's Decision the Respondent notify said Regional Director that
it will comply with the foregoing recommendations , the Board issue an order requir-
ing Respondent to take the aforesaid action.
5 Any pay loss shall be computed according to the formula in F. W Woolwoi th Com-
pany, 90 NLRB 289 , and Isis Plumbing & Heating Co, 138 NLRB 716.
81t this Recommended Order is adopted by the Board , the words "a Decision and
Order" shall be substituted for the words "the Recommended Order of a Trial Examiner"
in the notice If the Board ' s Order is enforced by a decree of a United States Court
of Appeals , the notice will be further amended by the substitution of the words "a
Decree of the United States Court of Appeals , Enforcing an Order " for the words "a
Decision and Order "
7 If this Recommended Order is adopted by the Board , this provision shall be modified
to read: "Notify the Regional Director for Region 21, in writing, within 10 days from
the date of this Order, what steps the Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
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 Rela-
tions Act, as amended, we hereby notify our employees that -
THIS WILL NOTIFY our guard employees that in the future we will not make
arrangements which will affect their employment without bargaining with their
lawful representative , if they have one at such time.
WE WILL make whole for any loss of wages our guard employees have suf-
fered who were formerly employed at the Los Angeles Terminal in the manner
set forth in the Decision.
TRANSMARINE NAVIGATION CORPORATION,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
INTERNATIONAL TERMINALS, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
1008 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
NoTE.-We will notify any of the above-named employees if presently serving in
the Armed Forces of the United States of their right to full reinstatement upon
application in accordance with the Selective Service Act and the Universal Military
Training and Service Act of 1948, as amended, after discharge from the Armed
Forces.
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.
Employees may communicate directly with the Board's Regional Office, 849
South Broadway, Los Angeles, California, Telephone No. 688-5204, if they have
any questions concerning this notice or compliance with its provisions.
The Dade County , Florida, Tile, Marble and Terrazzo Contractors
Association and its Agent , Anthony Scremin and Marble Pol-
ishers, Machine Operators & Helpers, Local 121, AFL-CIO and
Independent Terrazzo , Tile and Allied Trades Union
L. M. Penzi & Son Tile Co., Inc. and Marble Polishers, Machine
Operators & Helpers, Local 121 , AFL-CIO and Independent
Terrazzo , Tile and Allied Trades Union . Cases Nos. 12-CA-
2768-1, 12-CA-2952, 12-CA-2768-3, and 12-CA-2996. May 28,
1965
DECISION AND ORDER
On February 15, 1965, Trial Examiner Lloyd Buchanan issued his
Decision in the above-entitled proceedings, finding that the Respond-
ents had not engaged in the unfair labor practices alleged in the com-
plaint and recommending that the complaint be dismissed in its
entirety. The General Counsel thereupon filed exceptions to the Trial
Examiner's Decision and a brief in support thereof.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with these cases to a three-member
panel [Members Fanning, Brown, and Jenkins].
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 and brief, and the entire record
in these cases, and hereby adopts the Trial Examiner's findings, con-
clusions, and recommendations with the following additions and
modifications.
Like the Trial Examiner, we do not view the Paul-Rastatter con-
versations regarding the position available with the Intervenor as suf-
ficient evidence to warrant a conclusion that the Association has
rendered or is rendering unlawful aid, assistance, or support to the
Intervenor. The record demonstrates that Paul, attorney for the Asso-
ciation, merely mentioned to Rastatter, during a casual conversation,
that the Independent Union, according to his information, had an
opening for a business agent. Paul gave Rastatter the name and
152 NLRB No. 105.