Universal Marine Corp.

National Labor Relations Board - Board Decisions

Nov 13, 1979

246 N.L.R.B. 445 (N.L.R.B. 1979)

UNIVERSAL MARINE CORP.
Universal Marine Corp. and Harbour Marine Proper-
ties, Inc. and Local No. 12, International Union of
Operating Engineers, AFL-CIO. Case 21-CA
17044
November 13, 1979
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND PENEI.IO()
On July 19, 1979, Administrative Law Judge David
G. Heilbrun issued the attached Decision in this pro-
ceeding. Thereafter, Respondent filed exceptions and
a supporting brief.
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 brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order, as modified herein.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge, as modified be-
low, and hereby orders that the Respondent,
Universal Marine Corp. and Harbour Marine Proper-
ties, Inc., Long Beach, California, its officers, agents,
successors, and assigns, shall take the action set forth
in the said recommended Order, as so modified:
1. Substitute the following for paragraph I(c):
"(c) In any other manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights
guaranteed them under Section 7 of the Act."
2. Substitute the following for paragraph 2(a):
"(a) Offer Robert Burrows and Willis Popken full
and immediate reinstatement to their former posi-
tions or, if such jobs no longer exist, to substantially
equivalent positions, without prejudice to their se-
niority or other rights and privileges previously en-
joyed, and make them whole for any losses in pay
incurred as a result of being laid off on August 24,
1978, as provided in F. W. Woolworth Company, 90
NLRB 289 (1950), with interest thereon as provided
in Florida Steel Corporation, 231 NLRB 651 (1977).
(See, generally, Isis Plumbing & Heating Co., 138
NLRB 716 (1962)."
3. Substitute the attached notice for that of the
Administrative Law Judge.
APPENDIX
NoI(E To EMPI()YEIES
POSEIED) BY ORDER OF I lit
NAIIO(NAI. LABOR REI.AIIONS BOARD
An Agency of the United States Government
Wt Wll.l. NOT refuse to recognize Local No.
12, International Union of Operating Engineers,
AFL-CIO, and to honor and apply the current
collective-bargaining agreement with it, which is
effective to July 1, 1980, and covers the following
unit for which that Union is exclusive represent-
ative:
All barge crane operators and oil/forklift op-
erators, employed at our Long Beach, Califor-
nia facility, excluding all other employees,
guards and supervisors as defined in the Act.
WE WILL NOI lay off or in any other manner
discriminate against employees to discourage
their membership in the named Union. or in any
other labor organization.
WE WI.. NOT in any other manner interfere
with, restrain, or coerce employees in the exer-
cise of the rights guaranteed them under Section
7 of the Act.
WE. wllt. offer Robert Burrows and Willis
Popken full and immediate reinstatement to their
former positions or, if such jobs no longer exist,
to substantially equivalent positions, without
prejudice to their seniority or other rights and
privileges previously enjoyed.
WE Wli.T. make Robert Burrows and Willis
Popken whole for any losses in pay incurred as a
result of being laid off on August 24, 1978, with
interest.
UNIVERSAl. MARINE CORP. AND HARBOUR
MARINE PROPERTIES, INC.
DECISION
STATEMENT OF THE CASE
DAVID G. HILBRUN, Administrative Law Judge: This
case was heard at Los Angeles, California, on February 20
and 21, 1979, based on a complaint alleging that Universal
Marine Corp. and Harbour Marine Properties, Inc., which
were stipulated at the hearing to be a single employer and
are jointly called Respondent herein, violated Section
8(a)( ), (3), and (5) of the National Labor Relations Act, as
amended, by discharging Robert Burrows and Willis Pop-
ken because they engaged in protected concerted activities,
while contemporaneously repudiating a certain collective-
bargaining agreement with Local No. 12, International
Union of Operating Engineers. AFL CIO, herein called the
Union.
246 NLRB No. 67
445
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the entire record, my observation of witnesses and
consideration of post-hearing briefs, I make the following:
FINDIN(S OF FA(CI ANi) RESuIl IANI CON(CI.USIONS )1
LAW
At all times material herein Donald Budai has been pres-
ident of Universal and John Houchen has been its vice
president, secretary-treasurer, and part owner. These offi-
cials manage a round-the-clock operation at Los Angeles
harbor, in which tugboat operators represented by the In-
land Boatmen's Union (IBU), divers and tenders repre-
sented by the Carpenters Union. laborers who are not rep-
resented by any labor organization, and crane barge
operators and oiler/forklift operators represented by the
Union (herein) are utilized.'
Universal had first conceived a crane barge operation in
July 1975. At that time it approached IBU seeking opera-
tors for a newly modified barge on which a long-boomed
crane had been permanently mounted.' From this contact
Universal was referred appropriately to the Union, and on
September 16, 1975, as an individual employer, signed its
first collective-bargaining agreement with the Union. This
was a short form adopting the master labor agreement of
the Southern California General Contractors Association,
and effective from July 1, 1974, to July 1, 1977.
However, Universal desired an agreement more closely
tailored to its unique crane barge operation and on March
23, 1976, again as an individual employer, signed a second
short form with the Union. This adopted the master labor
contract, commonly referred to as the truck crane agree-
ment, between the Union and the California Trucking As-
sociation. When this expired on June 30, 1977, Universal,
also as an individual employer, and the Union signed their
most recent short form, adopting the current master truck
crane agreement which is effective from July 1, 1977, to
July 1, 1980.
This document provides, in article Ill, E, and H. i, re-
spectively, that:
Employer shall have a rest period of not less than eight
(8) hours between the end of any overtime period and
the beginning of another straight time shift. If employ-
ees do not receive the required eight (8) hours rest pe-
riod, they shall be paid at the applicable overtime rate
for each hour worked until they have received eight (8)
hours rest off the job or project.
* * * e *
When equipment is operated before or after shift or on
Saturdays, Sundays and holidays, the employee oper-
ating such equipment during the regular shift shall
work the overtime, except in cases of emergency, pro-
' Respondent maintains this place of business in Long Beach, California,
where it provides marine services, annually so performing in value exceeding
S50,000 for customers which, in turn, during the same annual period or
periods ship goods and products valued in excess of $50,000 directly to their
own customers located outside California. I therefore find Respondent is an
employer engaged in commerce within the meaning of Sec. 2(6) and (7) of
the Act, and otherwise that the Union is a labor organization within the
meaning of Sec. 2(5).
2 The normal staffing for this equipment was one crane operator and one
oiler/forklift operator per shift.
vided he was available for such work or call out by
verified call. If the above provisions are not met, the
employee regularly assigned to such equipment during
the regular shift shall be compensated at the applicable
overtime rate.
On August 16, 1978. the Union dispatched Robert Bur-
rows at Universal's request as an oiler/forklift operator.'
After Burrows had completed a day shift on August 23,
1978, Universal's dispatcher, William Cologne, called the
Union to request that it send out another oiler for a job to
commence at 4 p.m. that day. Unable to fill this request for
an oiler, Union Business Agent Bob McHale went to Uni-
versal's facility. He discovered that Burrows had worked
the earlier shift, and then had been sent home. McHale
informed Houchen that, according to the truck crane agree-
ment. Universal would have to call Burrows back to work
at the applicable overtime rate.4 Houchen replied that he
could not operate under such a requirement. Nevertheless,
he did call Burrows back to work that same day and paid
him an overtime rate. The next day a meeting was held
between the parties at Houchen's urgent behest, at which
the Union insisted that Universal pay employees overtime
beyond 8 hours per day, even though separate ship servic-
ing on different shifts was involved. To this Houchen re-
plied that he would lay off the crew and sell the barge.'
Later that same day, without further notice. Houchen car-
ried this out by purportedly selling Universal's crane barge
to Harbour, while abruptly terminating Popken and Bur-
rows. Universal continued its tending and lightering of an-
chored vessels by then exclusively leasing the crane barge
from Harbour and hiring a nonunion crew.6
The Union did not learn of these terminations, or of the
crane barge transfer, until September 6. On this date Hou-
chen and Cologne told McHale that Popken was no longer
working there, and the barge was sold to Harbour. McHale
replied to this advice that the barge was still doing the same
work as before, and that he would need an agreement from
Harbour. Houchen declined such an agreement, stating
that since he had no equipment, there was no further need
for McHale's (the Union's) services. McHale asked how he
might locate Harbour, and Houchen replied that it was lo-
cated in Palos Verdes (its corporate mailing address) where
McHale was unsuccessful trying to make contact. On Sep-
tember 7, Houchen wrote to the Union stating:
. . . on August 24, 1978, I terminated the services of
Mr. W. A. Popken and Mr. Robert Burrows of your
union and advised them that there would be no further
employment available through Universal Marine, ad-
ditionally, with the approval of the Board of Directors
All dates and named months hereafter are in 1978, unless shown other-
wise.
' Because no other crane operators were available that day, Universal kept
Willis Popken, its regular crane operator, for the 4 p.m. job and paid him at
overtime rate.
'The principals in charge of Universal had, in or about February 1977.
formed Harbour as a California corporation to be engaged in "holding ma-
nne properties," but had not previously activated it as a business enterprise.
6 Houchen testified that he instructed Cologne to hire a new crane barge
crew for Harbour. He further testified that, as of October 25, no price had
been fixed and no money had been exchanged for the sale of the barge crane
to Harbour; moreover, there were no wnritten lease terms and no money had
been paid for such a lease.
446
UNIVERSAL. MARINE CORP.
of Universal Marine Corp. I arranged for the sale of
both the crane/barge and forklift.'
Subsequently, McHale attempted to investigate further into
the crane barge matter at Respondent's premises, but was
cautioned against trespassing. Although dissolving Harbour
around October, Houchen reacquired the crane barge bear-
ing Universal's same distinctive markings as before, and
now continues its operation on a nonunion basis.
In this factual context Respondent asserts that the suc-
cessive short form agreements were verbally modified by
former Business Agent Frank Blum in understandings
reached by him with management that the 24-hour-a-day,
call-out nature of business excused the written shift require-
ments and their relationship to overtime pay. Further, Re-
spondent contends that for nearly 3 years it pressed for this
understanding to be reduced to writing, but union function-
aries (McHale having succeeded Blum in late 1976) utterly
neglected to do so. As a consequence, and based on unex-
pected disaffection with work by former oiler/forklift op-
erator Roland Wilson around August 9. the emergency sub-
stitution of Foreman John Stevens roused McHale into
claims of contract violation, both in terms of union dis-
patching practices and literal requirements of the truck
crane agreement's article Ill. At a meeting between Hou-
chen and McHale (and others) on August 16, an apparent
interim resolution was achieved whereby Burrows was em-
ployed as a first-time dispatchee for oiler/forklift operator
work and Respondent's lawyer pointedly undertook to coax
a telephone reply from Joseph Waggoner, McHale's seem-
ingly reclusive superior.8 Respondent completes its conten-
tions with explanation that staffing the afternoon job of
August 23 was done after McHale's implied threat to pull
the crane operator from the barge, while its action the fol-
lowing day of terminating employees and establishing a
lease-back for the barge crane from Harbour was primarily
to capture "the attention" of the Union to realistic needs of
the operation, hopefully to be followed by execution of a
document addressing these with respect to terms and condi-
tions of employment as might be experienced by repre-
sented individuals.
I hold fully for the General Counsel in this matter. Re-
spondent's conduct shows unlawful discriminatory treat-
ment of employees, and unwarranted attempt to escape
plain meaning of a duly reached collective-bargaining
agreement. The existence of claimedly justifiable disgust
with personalities and practices of the Union falls short of
excusing the petulant contract repudiation that occurred on
August 24. Had the "special agreement" been so important
to Respondent, 1977 was the time to throw down the gaunt-
let of economic pressure rather than comfortably and con-
veniently renewing the truck crane agreement. Also sug-
gested as modes of past relief are a suit for declaratory
judgment and, more certainly, an 8(h)(3) charge alleging
7This letter also made reference to citations for violation of contractual
hiring procedures, which McHale had delivered to Universal on September
6. The letter stated that these documents were being returned to the Union,
because they were "without validity to Universal Marine."
8 In January. Budai had met with McHtale to press further for the "special
agreement." Respinse at the time was that only Waggoner could approve it.
and in the months following Budai made several futile telephone calls to
Waggoner's office.
the Union's refusal to reduce agreed terms to writing as an
8(d) violation.
The shared, growing dismay of Budai and Houchen
manifested in the latter's expression of animus when, on
August 16, he told McHale that if "these problems" (the
Union's persistence in claiming full application of the truck
crane agreement) continued, Respondent would "have to
take some kind of action." This is logically and inferentially
tied to the drastic "paper transfer" of August 24, coupled
with layoffs that have no sensible explanation but that af-
fected persons were members of the Union and prospective
beneficiaries of the contract provisions McHale was seeking
to enforce.
Respondent counters this prospect with an argument of
defensive lockout based on American Ship Building Co. v.
NV.L.R.B., 380 U.S. 300 (1965), and that the General Coun-
sel is confined to narrow principles of Fibrehoard Paper
Products Corp. v. N.L.R.B., 379 U.S. 203 (1964). in pressing
this case. I reject both theories. Respondent was neither
seeking to preserve collective employer bargaining strength,
nor preemptively neutralizing a labor organization's eco-
nomic weapon calculated to achieve terms and conditions
of employment (these already having been established by
the truck crane agreement). .4merican Ship Building is thus
readily distinguishable and unavailing to Respondent. As to
f'ibreboard, the General counsel made amply clear by the
complaint and opening statement that fundamental repudi-
ation or avoidance of collective-bargaining obligations was
the accusation, and the more structured principles of Fibre-
board need not, under the circumstances. be reached.
Accordingly. I render conclusions of law that Respon-
dent, by refusing to recognize continuingly the Union in an
established and contractually defined appropriate unit, and
by discriminatorily laying off Robert Burrows and Willis
Popken. has engaged in unfair labor practices within the
meaning of Section 8 (a)( ). (3), and (5) of the Act.
Upon the foregoing findings of fact, conclusions of law
and the entire record, and pursuant to Section 10(c) of the
Act. I hereby issue the following recommended:
ORDER'
The Respondent, Universal Marine Corp. and Harbour
Marine Properties, Inc.. Long Beach, California, its officers,
agents, successors, and assigns. shall:
1. Cease and desist from:
(a) Refusing to recognize the Union, and to honor and
apply the current collective-bargaining agreement with the
Union, which is effective to July . 1980, and covers the
following unit for which the Union is exclusive representa-
tive:
' In the eent 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 n Sec 102.48
of the Rules and Regulations, he adopted by the Board and become its
findings, conclusions. and Order. and all objections thereto shall be deemed
waived for all purposes
10The record does not definitlsels establish Itarbour's present business
status beyond thalt it is "dissolved." I deem it appropnate to include Harbour
within scope f the recommended Order because. whether dormant or not
now existing, this corporate form participated In unfair labor practices
herein and the term "successor" shall now, ftirmally enjoin a repetition
447
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
All barge crane operators and oiler/forklift operators,
employed at Respondent's Long Beach, Califbrnia fa-
cility, excluding all other employees, guards and super-
visors as defined in the Act.
(b) Laying off or in any other manner discriminating
against employees to discourage their membership in the
Union, or in any other labor organization.
(c) In any manner interfering with, restraining, or coerc-
ing employees in the exercise of their rights under Section 7
of the Act.
2. Take the following affirmative action to effectuate the
policies of the Act:
(a) Offer Robert Burrows and Willis Popken reinstate-
ment to their former positions of employment without
prejudice to seniority or other rights and privileges, and
make them whole for losses in pay incurred as a result of
being laid off on August 24, 1978, as provided in F. W.
Woolworth Company, 90 NLRB 289 (1950), and Florida
Steel Corporation, 231 NLRB 651 (1977).
(b) Preserve and, upon request, make available to the
Board o its agents, for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports,'and all other records neces-
sary to analyze the amount of backpay due under the terms
of this Order.
(c) Post the attached notice marked "Appendix"" at its
Long Beach, California, place of business. Copies of said
notice, on forms provided by the Regional Director for Re-
gion 21, after being duly signed by Respondent or its autho-
rized representative, shall be conspicuously posted immedi-
ately upon receipt, and be maintained by it for 60
consecutive days thereafter, in all places where notices to
employees are customarily posted. Reasonable steps shall
be taken by Respondent to insure that such notices are not
altered, defaced, or covered by any other material.
(d) Notify the Regional Director, in writing, within 20
days from the date of this Order, what steps have been
taken to comply herewith.
" 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 Judg-
ment of the United States Court of Appeals Enforcing an Order of the Na-
tional l.abor Relations Board."
448