United Marine Division Local 333

National Labor Relations Board - Board Decisions

Nov 30, 1976

226 N.L.R.B. 1214 (N.L.R.B. 1976)

1214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
United Marine Division Local 333 and MOTC Acqui-
sitions Corp . Cases 2-CB-5876, 2-CB-5961, and
2-CC-1370
November 30, 1976
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS FANNING
AND JENKINS
On April 14, 1976, Administrative Law Judge Ber-
nard Ness issued the attached Decision in the above-
entitled proceeding, finding that the Respondent,
United Marine Division Local 333, had engaged in
and was engaging in certain unfair labor practices
and recommending that it cease and desist therefrom
and take certain affirmative action. The Administra-
tive Law Judge further found that the Respondent
had not engaged in certain alleged unfair labor prac-
tices and dismissed the portions of the complaint re-
lating thereto. Thereafter, the General Counsel and
the Charging Party, MOTC Acquisitions Corp., filed
limited exceptions and briefs in support thereof, and
the Respondent Union filed a statement of cross-ex-
ceptions to the Administrative Law Judge's Decision,
and an answering brief to the exceptions of the
Charging Party.
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 reviewed the rulings of the Admin-
istrative Law Judge at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Ad-
ministrative Law Judge's Decision, the exceptions,
and briefs, and the entire record in the case, and
hereby adopts the findings, conclusions, and recom-
mendations of the Administrative Law Judge to the
extent consistent herewith.
1. In agreement with the Administrative Law
Judge we find that the Respondent Union coerced
and restrained Berman Enterprises, Incorporated,
herein called Berman, a neutral employer, which is
engaged in providing tugboat services for the unman-
ned barges of MOTC Acquisitions Corp., herein
called MOTC, with an object of forcing or requiring
Berman to cease doing business with MOTC until
MOTC provided two crewmembers on MOTC
barges, and that such conduct constituted threats
within the meaning of Section 8(b)(4)(ii)(B) of the
Act.'
1 The affirmative defense of the Respondent Union was that such man-
We also agree with the findings of the Administra-
tive Law Judge that the Respondent Union's demand
from Berman for additional moneys to be distributed
among its tugboat crew where an unmanned MOTC
barge was towed constituted economic coercion ap-
plied in furtherance of its secondary objective of dis-
rupting business between Berman and MOTC and
was violative of Section 8(b)(4)(n)(B) of the Act.' The
General Counsel and the Charging Party jointly ex-
cept to the Administrative Law Judge's failure to
provide a full remedy by ordering the Respondent
Union to reimburse Berman for any moneys unlaw-
fully exacted. We find merit in these exceptions and,
accordingly, shall amend the Remedy to so provide.'
2. We agree with the findings and the conclusions
of the Administrative Law Judge that the Respon-
dent Union's insistence on a change in working con-
ditions of the tugboat employees whom it repre-
sented, backed up by the threat to enforce this
demand with work stoppages, was in effect an at-
tempt to unilaterally change and modify the working
conditions of the tugboat employees during the mid-
term of its contract covering tugboat employees and
it thereby engaged in bad-faith bargaining in viola-
tion of Section 8(b)(3) and (d) of the Act. The Gener-
al Counsel and the Charging Party except to the fail-
ure of the Administrative Law Judge to find also that
by such conduct the Respondent Union was attempt-
ing to bargain on a nonmandatory subject of bar-
gaining: the composition of the bargaining unit cov-
ered by a collective-bargaining agreement which
MOTC had with another union, Local 996, and over
which the Respondent had no color of claim. We
agree with this characterization of the Respondent
Union's conduct.
The record is clear that MOTC's barge employees
were represented by Local 996, and that Local 996
opposed the requirement that MOTC's barges be
manned with two crewmen. The record further shows
that this attempt by Respondent Union radically to
restructure the unit of employees represented by Lo-
cal 996 had no work preservation purpose since the
activities of the bargemen represented by Local 996
in no manner encroached upon the bargaining unit
work of the tugboat employees represented by Re-
rang was required for safety purposes The record shows no basis for such
contention Indeed, the MOTC operated unmanned barges pursuant to its
collective-bargaining contract with Local 996 International Longshoremen's
Association for approximately 25 years without incident
2 The demand and apparent payments were made without any foundation
in the collective - bargaining contract between Respondent Union and Ber-
man and so far as the record shows have no precedent or prior history
support Cf Sheet Metal Workers International Association , Local 28, AFL-
CIO (Carrier Air Conditioning Company, a Division of Carrier Corporation),
222 NLRB 727 (1976). and cases cited therein
See Sheet Metal Workers International Association , Local Union No 223,
AFL-CIO (Continental Air Filters Company), 196 NLRB 55, 56 (1972)
226 NLRB No. 196
UNITED MARINE DIVISION LOCAL 333 1215
spondent Union. The avowed purpose of the Re-
spondent's demand was to preserve the manning re-
quirements of the barge crews of other employers
with which it had collective-bargaining contracts and
to enhance its position in the negotiation of future
collective-bargaining contracts. In our opinion
MOTC was not required to discuss with Respondent
Union the terms and conditions of employment of
persons represented by another union, and coercive
tactics to compel such compliance constituted bad-
faith bargaining in violation of Section 8(b)(3) of the
Act.4 Accordingly, we shall order the Respondent
Union to cease and desist making such demands.'
THE REMEDY
In our view the purposes of the Act can best be
effectuated by requiring Respondent Union to make
whole Berman for the monetary penalties which were
unlawfully extracted, as described above. Although
the record shows, and the Administrative Law Judge
found, that Respondent directed Berman to pay its
tugboat crew extra pay when Berman tugboats towed
unmanned MOTC barges, and the logsheet showed
extra pay for the tugboat crew, the exact amounts
paid out were not specified. We shall, therefore, leave
the determination of the exact amount to be repaid
to compliance. Such payments shall be made togeth-
er with interest at 6 percent per annum.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent
Union, United Marine Division Local 333, New
York, New York, its officers, agents, and representa-
tives, shall:
See, e g , International Longshoremen's Association, Inc [New York Ship-
ping Association) v N L R B, 277 F.2d 681, 683 (C A.D C. 1960). Smith
Steel Workers, Directly Affiliated Labor Union 19806, AFL-CIO (A 0 Smith
Corporation), 174 NLRB 235, 240 (1969). Retail Clerks International Associa-
tion, Local Union No 1288. AFL-CIO (Nickel's Pay-Less Stores of Tulare
County, incorporated), 163 NLRB 817, 820 (1967)
5 The Respondent Union contends that issues involved herein have been
rendered moot because of the expiration of its collective -bargaining con-
tract with the Marine Towing and Transportation Employer's Association
(to which MOTC is a signatory regarding MOTC's tugboat employees) We
find no merit in this contention Labor relations are a continuum and the
parties are entitled to any legal protection which may have arisen under the
contract To hold otherwise would permit the unfair labor practices commit-
ted by Respondent Union to remain without a remedy and give it license to
commit future unfair labor practices See Henry I Siegel Co. inc v
N L R B, 340 F 2d 309, 311 (C A 2, 1965). enfg 147 NLRB 594, 596 (1964).
International Union, United Automobile, Aircraft and Agricultural Implement
Workers of America (UA W), AFL-CIO, and its Amalgamated Local No 453
(Maremont Automotive Products, Inc), 134 NLRB 1337, 1339 (1961). Los
Angeles Mailer 's Union No 9, a Subordinate Union of the International Typo-
graphical Union (Dow Jones & Company, Inc), 155 NLRB 684, 692 (1965)
1. Cease and desist from:
(a) Threatening, coercing, or restraining Berman
Enterprises, Incorporated, or any other person en-
gaged in commerce or in an industry affecting com-
merce where an object is to force or require any such
employer or person to cease doing business with
MOTC Acquisitions Corp.
(b) Restraining or coercing employees of MOTC
Acquisitions Corp. to engage in unlawful work stop-
pages in violation of a collective-bargaining agree-
ment.
(c) Threatening or causing work stoppages by em-
ployees of MOTC Acquisitions Corp. for the purpose
of modifying a collective-bargaining agreement cov-
ering such employees during its term.
(d) Attempting to force MOTC Acquisitions
Corp. to bargain about the terms and conditions of
employees in the unit of barge employees represented
by Local 996 International Longshoremen's Associa-
tion, AFL-CIO.
2. Take the following affirmative action to effectu-
ate the policies of the Act:
(a) Post at its business office and meeting halls,
copies of the attached notice marked "Appendix." 6
Copies of said notice, on forms provided by the Re-
gional Director for Region 2, after being duly signed
by an authorized representative of Respondent
Union, shall be posted by it immediately upon re-
ceipt thereof, and be maintained by it for 60 consecu-
tive days thereafter, in conspicuous places, including
all places where notices to members are customarily
posted. Reasonable steps shall be taken by Respon-
dent to insure that said notices are not altered, de-
faced, or covered by any other material.
(b) Reimburse Berman Enterprises, Incorporated,
for payments unlawfully extracted from it by Re-
spondent Union in violation of the Act, together with
interest at the rate of 6 percent per annum.
(c) Furnish the Regional Director for Region 2
signed copies of said notice for posting by MOTC
Acquisitions Corp., Berman Enterprises, Incorporat-
ed, and by employer members of Marine Towing and
Transportation Employers' Association, if they are
willing, in places where notices to employees are cus-
tomarily posted. Copies of said notice, on forms pro-
vided by said Regional Director, shall, after being
duly signed by Respondent, be forthwith returned to
the Regional Director for disposition by him.
(d) Notify the Regional Director for Region 2, in
writing, within 20 days from the date of this Order,
6 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 Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board "
1216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
what steps the Respondent has taken to comply here-
with.
MEMBER FANNING, dissenting in part:
I fully agree with the findings and conclusions of
law of the Administrative Law Judge. I also agree
with my colleagues' additional finding that, in order
to provide a full remedy, the Respondent Union be
ordered to reimburse Berman for any moneys unlaw-
fully exacted. However, I do not agree that the facts
in this case warrant an expansion, on additional the-
ories, of the Administrative Law Judge's 8(b)(3) find-
ing.
The Administrative Law Judge concluded that the
Respondent's actions directed towards changing
working conditions midway through the term of a
valid collective-bargaining agreement violated Sec-
tion 8 (b)(3). I agree.
The General Counsel and the Charging Party seek
to enlarge the basis for finding a violation of 8(b)(3).
In his exceptions, the General Counsel argues, with
the concurrence of the Charging Party, that the Re-
spondent's actions amounted to a demand for recog-
nition of employees in another bargaining unit repre-
sented by Local 996 of the ILA. In a similar regard,
the Charging Party alone requests that the 8(3)(b)
finding be enlarged to include that the Respondent's
actions constituted a demand for bargaining on a
nonmandatory subject and thereby disrupted the
peaceful bargaining relationship between MOTC
and Local 996, ILA.
The Board has generally held that a Union' s insis-
tence on representing workers outside of the bargain-
ing unit constitutes a failure to bargain collectively.'
However, to sustain a finding on the theories put
forth by the General Counsel and the Charging Par-
ty, I believe it is necessary to find that a union's dom-
inant motive in taking action was to become the rep-
resentative of the employees outside the bargaining
unit. I do not believe the facts before us justify a
finding that the dominant motive of the Respondent
was to replace Local 996 as the bargaining represen-
tative of the employees manning MOTC's barges.
I agree with my colleagues that the Respondent
did not show in this case that safety considerations
mandated its bargaining position that all barges be
manned. However, I also cannot find that the Gener-
al Counsel has shown that the Respondent sought to
represent the MOTC barge employees. Situations
will frequently arise where the legitimate bargaining
demands of a union will, in some manner, involve
and affect another bargaining unit. It would unduly
limit a union's bargaining rights and obligations to
hold, with the facts before us, that the bargaining
demands herein violated Section 8(b)(3) because
granting the demands would affect another unit.
Where the working conditions of employees outside
the unit vitally affect the working conditions of em-
ployees within the unit, a union may be justified in
seeking certain requirements for those outside the
unit.'
Here, it is clear that the Respondent was not actu-
ally seeking to represent the barge employees. It is
significant that after making its bargaining demands
the Respondent willingly met with both representa-
tives of MOTC and representatives of Local 996 in
order to discuss the dispute. No evidence indicates
that the Respondent took the position at the meeting
that it, rather than Local 996, should represent the
barge employees.' Though the dispute was not settled
at the meeting, the Respondent still took no position
indicating that it demanded to represent the MOTC
barge employees. Under the circumstances, I cannot
accept the theory espoused by the General Counsel
in his exceptions that the Respondent was, in fact,
demanding recognition to represent the barge em-
ployees.
Further, in light of the unusual circumstances
herein, I would not conclude that the Respondent
was insisting upon bargaining about a nonmandatory
subject of bargaining and disrupting the relationship
of MOTC and Local 996. It is clear that the Respon-
dent, in addition to representing the tugboat employ-
ees of members of the Marine Towing and Transpor-
tation Employer's Association, represents most of the
barge employees of the towing companies in the area.
Under these circumstances, should MOTC's proce-
dure of not manning its barges have been adopted by
other members of the Association, the interest of the
Respondent's members may have been adversely af-
fected. Certainly, under these circumstances, there
must be a balancing of the bargaining unit, and the
bargaining over the terms of employment of workers
outside the unit must be limited. However, I am not
convinced that the Respondent was seeking to bar-
gain about matters other than those which vitally af-
fected its own members. Again, as stated above, I
would not characterize the Respondent's actions as
directed towards its replacing Local 996 as represen-
tative of the barge employees. Thus, I would not find
that the Respondent was insisting upon bargaining
about a nonmandatory subject of bargaining (i.e., the
composition of the unit). Rather, based on the evi-
7 See , e g Smith Steel Workers, Directly Affiliated Labor Union 19806 , 8 See, e g , Local 24 of the International Brotherhood of Teamsters , Chauf-
AFL-CIO (A 0 Smith Corporation ), 174 NLRB 235, enfd 420 F 2d I (C A feurs, Warehousemen and Helpers of America, AFL-CIO v Oliver, 358 U S
7, 1969), of Newspaper Production Company, 205 NLRB 738, enfd 503 F 2d 283 (1959)
821 (C A 5, 1974) v No representative of Local 996 was called to testify at the hearing
UNITED MARINE DIVISION LOCAL 333
dence before me, I would find that the Respondent
was attempting to protect the work performed by its
own members. The Respondent's willingness to meet
with both MOTC and Local 996 negates a finding
that it sought to disrupt the relationship between
those parties.
In sum, I agree with the Administrative Law Judge
that the vice in the Respondent's action was its insis-
tence on modifying working conditions during term
of a valid contract and despite the existence of a no-
strike clause. By such action, the Respondent vio-
lated Section 8(b)(3). However, on the evidence be-
fore us, I would not expand the 8(b)(3) findings as do
my colleagues. Absence substantial evidence to show
that the Respondent actually intended to replace Lo-
cal 996 as the bargaining representative of the
MOTC barge employees, I would not find that the
Respondent's actions were a demand for recognition
of the barge employees nor insistence on bargaining
about a nonmandatory subject of bargaining. For the
above reasons, I dissent.
APPENDIX
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT threaten, coerce, or restrain Ber-
man Enterprises, Incorporated, or any other per-
son engaged in commerce or in an industry af-
fecting commerce where an object is to force or
require any such employer or person to cease
doing business with MOTC Acquisitions Corp.
WE WILL NOT restrain or coerce employees of
MOTC Acquisitions Corp. to engage in unlaw-
ful work stoppages in violation of a collective-
bargaining agreement.
WE WILL NOT threaten or cause work stoppag-
es by employees of MOTC Acquisitions Corp.
for the purpose of modifying a collective-bar-
gaining agreement covering such employees dur-
ing its term.
WE WILL NOT attempt to bargain with MOTC
Acquisitions Corp. regarding the unit of barge
employees represented by another Union.
WE WILL reimburse Berman Enterprises, In-
corporated, moneys which we forced it to pay
for using its tugboat to tow unmanned barges of
MOTC Acquisitions Corp, together with interest
at the rate of 6 percent per annum.
UNITED MARINE DIVISION LOCAL 333
DECISION
STATEMENT OF THE CASE
1217
BERNARD NESS, Administrative Law Judge: Upon
charges filed by MOTC Acquisitions Corp., herein called
MOTC, against United Marine Division Local 333, herein
called Respondent, the General Counsel of the National
Labor Relations Board, by the Regional Director for Re-
gion 2, issued complaints which were consolidated alleging
violations of Section 8(b)(1)(A), (3) and (4)(i) and (u)(B) of
the National Labor Relations Act, as amended I The Re-
spondent has denied the commission of any unfair labor
practices. Hearing was held before me on November 17
and 18, 1975, in New York, New York.
Upon the entire record, including my observation of the
witnesses, and after due consideration of the brief filed by
the Charging Party, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYERS
MOTC Acquisitions Corp, a New York corporation with
its office and place of business located in New York, New
York, is engaged in the transshipment of fats and oils on its
tugboat and nonself-propelled barges from and to loca-
tions in the Port of New York. It annually purchases and
caused to be transported to its place of business in New
York from States other than New York supplies and equip-
ment valued in excess of $50,000. During this same period,
it shipped fats and oils valued in excess of $50,000 directly
to firms located outside the State of New York.
Berman Enterprises, Incorporated, is engaged in the Port
of New York in the business of owning and operating tug-
boats and providing tugboat services to other persons.
The parties agreed and I find that each of the companies
named above is an employer and a person engaged in com-
merce or in an industry affecting commerce within the
meaning of Sections 2(6) and (7) and 8(b)(4)(B) of the Act.
11. THE LABOR ORGANIZATIONS INVOLVED
The parties agreed and I find that United Marine Divi-
sion Local 333, the Respondent herein, and Local 996 In-
ternational Longshoremen 's Association , AFL-CIO,
herein called Local 996 , each is a labor organization within
the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Background and Issues
MOTC owns and operates a tugboat and eight nonself-
propelled barges.2 MOTC uses its tugboat to tow only its
1 The charges in Cases 2-CB-5876 and 2-CB-5961 were filed on May 12
and July 17, 1975, respectively The consolidated complaint, based on these
charges was issued on July 31, 1975 The charge in Case 2-CC-1370 was
filed on May 19, 1975, and the complaint was issued on June 27, 1975
2 MOTC was formerly called Manhattan Oil Transportation Co
1218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
own barges. However, when the workload is too heavy for
its own tug, MOTC contracts with other towing companies,
including Berman Enterprises, Inc., herein called Berman,
to tow its barges. For more than 20 years, the Respondent
and Marine Towing and Transportation Employers' Asso-
ciation, a multiemployer association, have had a contractu-
al bargaining relationship covering licensed and unlicensed
personnel on the tugboats. By virtue of MOTC's member-
ship in the Association these many years, its tugboat em-
ployees have been represented by the Respondent The
most recent contract between the parties is from April 1,
1973 to March 31, 1976. Berman's tugboat employees are
also covered by the above-described contract. The Respon-
dent and the Association have also had for many years a
contractual bargaining relationship covering the barge em-
ployees of most of the towing companies in the area. Both
contracts contain union-security and no-strike clauses.3
However, MOTC's barge employees are not represented by
the Respondent. Rather, for more than 20 years, MOTC's
barge employees have been represented by Local 996. The
current contract runs for 3 years, effective October 1,
1973.4
The underlying dispute involves the Respondent' s insis-
tence since September 1974 that MOTC barges be manned
by two bargemen while the barges are being towed, despite
the fact that no Coast Guard regulation required these
barges be manned while being towed and the Respondent
does not represent MOTC's barge employees. For more
than 20 years, these barges have not been manned in the
New York area while being towed.
To properly understand the dispute herein, a description
of MOTC's operations is appropriate. MOTC unloads oil
from a ship onto its barges and then transports the oil to a
customer facility where the oil is discharged. the unmanned
barge is initially towed by a tug alongside a ship from
which the oil is to be unloaded onto the barge. The tugboat
employees make fast the barge to the ship and release the
lines, and the tug then departs. The tugboat crew normally
consists of a captain, an engineer, and two deckhands.5
The barge employees come overland to the pier from where
they are transported by launch out to the ship. They con-
nect the flexible hose from the ship to the tanks inside the
3 The no-strike clause reads as follows
The Union , in its own behalf and in behalf of the Employees, agrees
that during the life of this Agreement , as well as during the pendency of
any proceedings before the Adjustment Committee or Board of Arbi-
tration as provided for in Article II, or during any period of negotia-
tions for a new agreement or for the modification or renewal of this
Agreement, there shall be no strikes , "sit-downs ," sympathy strikes or
stoppage, picketing or cessation of work by the Union or the Employ-
ees and to that end the Union and the Employees agree not to stop,
hinder or restrain , nor to instigate or encourage any other person to
stop , hinder or restrain the Employers' vessels in any manner from
carrying on the Employers' business and Employees who do not abide
by the provisions of this Section may be discharged by the Employers
Upon the violation of this Section by the Union or any of the Employ-
ees, this Agreement may be terminated with respect to and by all or
any of the Employers
MOTC is the only liquid oil barge company in the harbor under con-
tract with Local 996 according to the testimony of Edward Elzer, MOTC's
president
5 The parties agreed that the captain is a supervisor within the meaning of
the Act
barge and open the valves . The oil is then pumped from the
ship into the compartments in the barge . When this is com-
pleted the barge employees close the valves, disconnect the
hoses, and place the lines on the barge . The barge employ-
ees then leave by launch. The barge remains fast to the ship
until a tug arrives . The barge is then towed , unmanned, to
a customer 's terminal or plant where the oil is to be dis-
charged from the barge . The barge employees meet the
barge at the terminal or plant at the scheduled time for
unloading where they then discharge the oil from the
barge . The regular tour of duty for the barge employees is
from 8 a.m. to 5 p.m., but they may be called upon to
unload the barges at night, depending on the scheduled
time for unloading.
As contrasted with the MOTC operation , by virtue of
Respondent's contract with the other towing companies,
two barge employees stay on board the barge round the
clock , normally for a week at a time , obviously including
the time the barge is being towed . MOTC's barges are not
equipped with living accommodations whereas the manned
barges of the other towing companies are equipped with
toilet and cooking facilities , a generator for electricity and,
sleeping accommodations.
In substance, the complaint in Case 2 -CC-1370 alleges
the Respondent violated Section 8(b)(4)(i ) and (n)(B) of the
Act by threats and coercion directed at Berman Enterpris-
es, Incorporated , and by inducing Berman 's employees to
cease work with an object of forcing Berman to cease
doing business with MOTC. The consolidated complaint in
Cases 2-CB-5876 and 2-CB-5961 alleges the Respondent
violated Section 8(b)(1)(A) and (3) of the Act by coercive
conduct directed to Berman and its employees and to
MOTC and its employees . The complaint alleges also that
by the above acts the Respondent was attempting to force
MOTC to bargain for bargemen who were not represented
by the Respondent.
B The Facts 6
1. Respondent's efforts directed towards MOTC and its
employees
In September 1974, Joseph O'Hare, Respondent's presi-
dent, called Edwin Elzer, MOTC's president, and com-
plained about the lack of two men on board MOTC's
barges while they were being towed. Elzer protested that
his contract with Local 996 covering barge employees did
not call for such requirement . O'Hare nevertheless said
such was a requirement in Respondent 's contract covering
bargemen with the other towing companies. O'Hare said
MOTC would have to have bargemen on board.'
On March 12, 1975, Elzer visited the Respondent's office
when O'Hare engaged him in conversation concerning the
barges being unmanned while being towed. Despite Elzer's
explanation that for the past 20 odd years they had been
unmanned while being towed, O'Hare announced that un-
less the barges were manned by two men his men would
6 The Respondent did not present any witnesses
' The above is not alleged in the complaint as a violation of the Act This
relates to conduct more than 6 months prior to the filing of the charges
herein and is considered only as background
UNITED MARINE DIVISION LOCAL 333
not tow the barge.' Elzer said he would discuss the matter
with Murphy, Local 996's president. O'Hare then said he
would hold off for 3 days. On March 17, another meeting
was held, this time with Murphy present. O'Hare kept in-
sisting the barges be manned while Murphy and Elzer ar-
gued there was no such requirement and the MOTC barge
employees preferred not to remain on the barge while it
was being towed. O'Hare remained adamant in his deci-
sion that the tugs would not tow the barges without the
barges being manned.9
Sometime in the latter part of March, Bill Cody, Re-
spondent's delegate, came aboard MOTC's tug, Michael
Tracy, from a launch. 10 The tug was towing two unmanned
MOTC barges. Cody announced to Captain Wilmot and
members of the tugboat crew he was pulling their cards for
towing the barges without men on board. About early
May, Captain Wilmot, together with his crew, went to Re-
spondent's union hall and inquired of O'Hare why they
were not permitted to tow the MOTC barges unless man-
ned while Berman's tugs were towing the barges unman-
ned. O'Hare replied that all the towing companies had
been instructed not to tow the barges unmanned and he
would check on Berman."
On or about May 15, Cody told MOTC tugboat captain,
Edward Elster, and the tugboat crew they should not tow
the MOTC barges without two men on board. Cody
warned their cards would be lifted if they did not comply. 12
About late April, Elzer was discussing with Cornette and
Cody the Respondent's insistence that MOTC barges be
manned. Cornette said the Respondent was concerned that
the other towing companies whose employees the Respon-
dent represented would also want to tow the barges un-
manned if MOTC would be permitted to continue to oper-
ate in that fashion.
2. Respondent's efforts directed towards Berman
James Pease, tugboat captain for Berman, testified that
when he returned from a trip in late April after having
towed unmanned MOTC barges, Anglin told him not to
tow MOTC barges without men on board or his card
would be pulled and he would be brought up on charges
with the Respondent.I3 Several days later Cody came
aboard the tug and directed him to put in for extra pay to
Berman for the trip just made with the MOTC barge un-
manned. The amount would represent pay for two barge-
men and would be divided among the tug crew. In the
presence of Cody and the crew Pease prepared the log
sheet showing this extra pay for the tug crew.
Evelyn Frank, Berman 's president, testified that in the
Referring to the tugboat crews
The above is based on the testimony of Elzer
10 Although Respondent dented Cody or Bill Anglin, another delegate,
was an agent of Respondent, it admitted they were delegates and elected
officials of Respondent I find they were Respondent 's agents Al Cornette
mentioned below is Respondent's treasurer and also an agent thereof11
Based on the testimony of Wilmot He and the other members of the
crew on the tug were members of the Respondent
12
Elster and the other crewmembers were members of Respondent The
above is based on Elster's testimony as corroborated by crewmen John
Flath
13 Pease was a member of the Respondent
1219
latter part of April she was told by O'Hare not to tow
MOTC barges unless two men were aboard the barges. She
was told to so instruct her personnel. When she asked
about the cause of the dispute with MOTC, O'Hare told
her contract negotiations would be coming up with the
towing companies and they would also seek to have their
barges unmanned. Within a day or two, Cornette called her
and told her he wanted the men on board the MOTC
barges because the towing companies with whom the Re-
spondent had contractual relations would also want their
barges unmanned Cornette also told her he wanted the
tugboat crew given additional compensation for the recent
Albany trip when the barge was unmanned.14
Concluding Findings
The Respondent represented the tugboat and barge em-
ployees of most of the towing companies in the area but
not the barge employees of MOTC. They were represented
by Local 966. For more than 20 years the MOTC barges
were unmanned while being towed. It is uncontradicted the
Respondent became apprehensive the towing companies
with whom it had a bargaining relationship would insist on
unmanned barges in their future contract negotiations if
the MOTC barges continued to remain unmanned while
being towed. It is clear that whereas the Respondent had a
labor dispute with MOTC, it had no primary dispute with
Berman. The underlying dispute herein involved was be-
tween the Respondent and MOTC concerning the Respon-
dent's insistence that MOTC barges be manned white
being towed. The uncontradicted testimony amply demon-
strates the Respondent's activities towards achieving this
end were to cause the MOTC and Berman tugs to cease
towing MOTC's barges without the presence of bargemen
aboard. Thus, Berman, the neutral employer, became en-
meshed in the dispute. On the basis of this record, I find
MOTC the primary employer whereas Berman was a neu-
tral to the dispute.
I have found that Anglin directed Pease , Berman's tug-
boat captain and also a member of the Respondent, not to
tow MOTC barges without men on board the barges and
threatened him with internal union discipline if he did not
comply. O'Hare also directed Evelyn Frank, Berman's
president, not to tow unmanned MOTC barges, the clear
implication being a work stoppage by the tugboat crews it
represented could otherwise be anticipated.'5 I find the
above threats within the meaning of Section 8(b)(4)(n)(B)
of the Act, having an object of forcing or requiring Berman
to cease doing business with MOTC, and, as such, consti-
tuted violations of the Act
I have also found above that Cody directed Pease to
demand additional pay from Berman for his tugboat crew
for a trip where they towed an unmanned MOTC barge.
The amount was in direct proportion to the pay of two
14 The parties stipulated that the Respondent entered into a voluntary
IO(1) injunction entry before the Southern District of New York The Re-
spondent did not admit any violations of the Act For a period of time until
the injunction. MOTC had two men on its barges while being towed
1s
Rutherford, Charles, President, Local No 18, International Union of Op-
erating Engineers, AFL-CIO (B D Morgan & Company, inc, and Mecca.
Inc), 285 NLRB 487 (1973)
1220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
bargemen, the money to be divided amongst the tugboat
crew. Cornette also demanded Mrs. Frank to give her tug-
boat crew the additional moneys. I find that the Respon-
dent 's demands from Berman for monetary payments con-
stituted economic coercion applied in furtherance of its
secondary objective; namely, the disruption of business be-
tween Berman and MOTC. I find such conduct violative of
Section 8(b)(4)(ii)(B) of the Act.16
The General Counsel in his complaint in Case 2-CC-
1370 alleged conduct by Respondent directed towards
Berman 's employees as supportive of 8(b )(4)(i)(B) viola-
tions. But there is no testimony in the record to support
these allegations. Neither Captain Pease nor Mrs. Frank
testified that any statement by Respondent's agents were
directed to employees. No Berman employee was called to
testify. The sole testimony which bears on these allegations
and indicates the presence of any Berman employee during
any of the events described above was when Captain
Pease , in the presence of Cody and the crewmembers,
made entries in his log in support of a demand for addi-
tional pay. Such paucity of evidence hardly supports an
inference or a finding that the Respondent unlawfully in-
duced Berman employees and I shall accordingly dismiss
the 8 (b)(4)(i)(B) allegations.
The Respondent also engaged in conduct directed to-
wards MOTC management and its tugboat employees in
furtherance of its aim to have the MOTC barges manned
while being towed. I have found above that Cody threat-
ened MOTC's Captains Wilmot and Elster and the tugboat
crew with union discipline , i.e., pulling their union cards
and preferring of charges, for towing unmanned MOTC
barges. Also O'Hare confirmed to Captain Wilmot and his
tugboat crew at the union hall they were not to tow un-
manned MOTC barges. Although not alleged specifically
in the complaint, I find O'Hare threatened Elzer, MOTC's
president, in March, with a work stoppage unless MOTC
barges were manned while being towed. This testimony
was elicited without objection through Elzer who was ex-
tensively cross-examined.
The General Counsel has alleged in his complaint that
the Respondent violated Section 8(b)(3) of the Act by de-
manding bargemen be on board the MOTC barges while
being towed. He did not file a brief nor is there any expli-
cation in the record of his theory. From an examination of
the complaint, it appears he relies on the conduct directed
towards Berman and its employees 17 and the Respondent's
conduct described immediately above directed to MOTC
and its employees. The General Counsel refers to the fact
that the pressures exerted by Respondent upon MOTC
personnel were at a time when the contract between the
Respondent and MOTC covering the tugboat employees
contained a no-strike clause. The General Counsel alleges
that by the above conduct the Respondent has attempted
to force MOTC to bargain about the terms and conditions
of the MOTC bargemen who are not represented by the
Respondent. The Charging Party, in its brief, argues that
by attempting to force MOTC to apply certain working
16 Sheet Metal Workers International Association , Local Union 223 AFL-
CIO (Continental Air Filters Company), 196 NLRB 55 (1972)
17 1 have already found no unlawful inducement of Berman employees
conditions on the bargemen , namely, manning the barges
while being towed, the Respondent was coercing MOTC to
bargain on a nonmandatory subject and, in effect , extend-
ing the unit coverage beyond the tugboat unit it repre-
sented . The General Counsel also alleges this same conduct
to be violative of Section 8(b)(1)(A) of the Act.18
As stated heretofore , the Respondent 's aim was that
MOTC' s barges be manned while being towed . The Re-
spondent represented only MOTC's tugboat employees but
not the barge employees who were represented by Local
996 The contract covering the tugboat employees con-
tained a union -security clause and a no-strike clause. There
was no requirement in the contract between MOTC and
Local 996 that barge employees be on board while the
barge was being towed. The practice for more than 20
years was to the contrary. And the record shows that both
MOTC and Local 996 objected to Respondent' s insistence
that the practice be changed. The Respondent applied
pressure on Berman in furtherance of its dispute with
MOTC. The Respondent also threatened MOTC with a
work stoppage and directed its MOTC tugboat employee-
members not to tow unmanned barges. I find Respondent's
insistence on a change in the working conditions of the
barge employees constituted a demand for recognition of
the Respondent , albeit only in a limited manner , for the
barge employees. By insisting that MOTC have barge em-
ployees on board the barges during certain periods of oper-
ation, contrary to an existing practice of more than 20
years and contrary to the desires of the parties directly
involved in the representation of the bargemen , namely,
MOTC and Local 996, the Respondent was interposing it-
self into the bargaining relationship between MOTC and
Local 996. But the Respondent was not seeking to expand
the coverage of the bargaining unit it represented; namely,
the tugboat employees of the multiemployer association.
Had this been the case, it could be argued the Respondent
was bargaining in bad faith 19 The vice of the Respondent's
conduct as I see it here is its insistence on changing the
working conditions of the tugboat employees whom it did
represent , during the term of the contract and despite the
existence of a non -strike clause. There is no contention
made here that towing unmanned MOTC barges was viola-
tive of the tugboat contract. But yet the Respondent, by
restraining and coercing MOTC tugboat employees from
continuing to tow the unmanned barges and by threatening
MOTC with work stoppages , in effect , was seeking a
change in the working conditions of the tugboat employees
and a modification of the existing tugboat contract in mid-
term. I find that by such conduct the Respondent refused
to bargain in good faith in violation of Section 8(b)(3) and
8(d) of the Act. I further find that the Respondent re-
strained and coerced the tugboat employees to engage in a
work stoppage in violation of the no-strike clause. By such
conduct the Respondent interfered with their Section 7
rights and thereby violated Section 8(b)(1)(A) of the Act.
18 The monetary penalties demanded by the Respondent are not alleged
to be violative of Sec 8 (b)(1)(A) or 8(b)(3) of the Act
19 Cf International Longshoremen 's Association, Local 1575 , District Coun-
cil of the Ports of Puerto Rico, ILA, AFL-CIO (Sea-Land Service, Inc), 159
NLRB 382 (1966)
UNITED MARINE DIVISION LOCAL 333 1221
CONCLUSIONS OF LAW
1. MOTC and Berman are employers engaged in com-
merce or in an industry affecting commerce within the
meaning of Sections 2(6) and (7) and 8 (b)(4) of the Act.
2. Respondent and Local 996 are labor organizations
within the meaning of Section 2 (5) of the Act.
3. By threatening , coercing , and restraining Berman
with an object of forcing or requiring it to cease doing
business with MOTC , Respondent has engaged in unfair
labor practices within the meaning of Section 8(b)(4)(ii)(B)
of the Act.
4 By threatening MOTC employees with union disci-
pline if they did not engage in work stoppages in violation
of the no-strike provision in the collective -bargaining
agreement , the Respondent has restrained and coerced said
employees in the exercise of their rights under Section 7 of
the Act and Respondent has thereby engaged in unfair la-
bor practices within the meaning of Section 8 (b)(1)(A) of
the Act.
5 By its insistence and by the use of economic pressure
designed to force MOTC to agree to modify during its term
the collective-bargaining agreement with the Respondent
covering the tugboat employees , the Respondent has en-
gaged in unfair labor practices within the meaning of Sec-
tion 8(b)(3) of the Act.
6. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
7 Except for the foregoing , Respondent has committed
no unfair labor practices.
THE REMEDY
Having found that the Respondent has engaged in unfair
labor practices , I shall recommend that it be ordered to
cease and desist therefrom , and that it take certain affirma-
tive action designed to effectuate the policies of the Act.
[Recommended Order omitted from publication.]