Universal Towing Co.

National Labor Relations Board - Board Decisions

Aug 29, 1972

198 N.L.R.B. 1124 (N.L.R.B. 1972)

1124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Universal Towing Company and Great Lakes & Rivers
District, Local 47, Masters, Mates & Pilots and
Marine Officers Association , Local 54, affiliated
with International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of Ameri-
ca, Party to the Contract
D. J. Marine Service„ Inc. and , Great Lakes & Rivers
District, Local 47, Masters, Mates & Pilots and
Marine Officers Association , Local 54, affiliated
with International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of Ameri-
ca, Party to the Contract . Cases 14-CA-5983 and
14-CA-6570
August 29, 1972
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS JENKINS
AND PENELLO
On June 6, 1972, Trial Examiner William F.
Scharnikow issued the attached Decision in this
proceeding.' Thereafter, the Charging Party filed
exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the Trial
Examiner's Decision in light of the exceptions and
brief and has decided to affirm the Trial Examiner's
rulings, findings, and conclusions and to adopt his
recommended Order.2
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Trial Examiner and hereby orders
that the complaint be, and it hereby is, dismissed in
its entirety.
i On May 23, 1972, the Board, through its Acting Executive Secretary,
denied the Charging Party's motion to consolidate the instant proceeding
with A L Mechhng Barge Lines, Inc ,197 NLRB No 89
2 No exceptions were filed with respect to the Tnal Examiner's finding
that the pilots are supervisors
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
WILLIAM F. SCHARNIKOW, Trial Examiner: The unfair
labor practice charges in these cases were filed by Great
Lakes & Rivers District, Local 47, Masters, Mates & Pilots
i A pro forma appearance was filed by the General Counsel on behalf of
Mozart G Ratner, counsel for the Charging Party MMP, although Mr
Ratner did not appear at the hearing The General Counsel explained that
(herein called the MMP) and were served by the Regional
Director on the Respondents, Universal Towing Company
and D. J. Marine Service, Inc., in Case 14-CA-5983 on
December 11, 1970, and in Case 14-CA-6570 on Decem-
ber 2, 1971. After an initial complaint was issued by the
Regional Director in Case 14-CA-5983 on December 2,
1971, the Regional Director on December 14, 1971, issued
an order consolidating the two cases and a consolidated
complaint and notice of hearing, and served them on the
Respondents and upon Marine Officers Association, Local
54, affiliated with International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America
(herein referred to as MOA) as Party to the Contract. On
December 23, 1971, answers to the consolidated complaint
were filed and duly served on the other parties including
the MMP, by the Respondents (jointly) and by the MOA.
The ultimate issue presented by the pleadings in these
cases, is whether the Respondents in the operation of their
river towboats have committed and are committing unfair
labor practices affecting commerce within the meaning of
Sections 8(a)(1) and (2) and 2(6) and (7) of the National
Labor Relations Act, as amended, 29 U.S.C. Sec. 151, et
seq., (herein called the Act), by recognizing and continuing
to recognize the MOA as the exclusive bargaining
representative of both their supervisory and nonsuperviso-
ry towboat and repair personnel, although in separate
bargaining units and under separate contracts. Specifically,
the complaint alleges that the Respondents thereby
interfered with the bargaining rights of their nonsuperviso-
ry personnel in violation of Section 8(a)(1), and interfered
with, assisted, and dominated the MOA as the labor
organization representing them in violation of Section
8(a)(2) because, as members of the MOA, supervisors, as
well as nonsupervisory personnel "vote for its officers, hold
various offices in MOA, participate in the formulation and
establishment of its policies and practices followed in its
representation of employees and participate in negotiations
with employers including Respondent, concerning wages,
hours of employment, and other terms and conditions of
employment of employees, including Respondent's em-
ployees."
Pursuant to notice, a hearing was held in St. Louis,
Missouri, on March 8 and 9, 1972, before me. The General
Counsel, the Respondents, and the MOA appeared by
counsel and were afforded full opportunity to be heard, to
examine and cross-examine witnesses, and to introduce
evidence upon the issues.' Before the close of the hearing,
counsel for the Respondents and for MOA moved to
dismiss the complaint and at the end of the hearing counsel
for MOA submitted a brief oral argument. Since the close
of the hearing, the General Counsel and counsel for MOA
submitted briefs which have been duly considered. The
motions to dismiss are granted in accordance with my
findings and conclusions hereinafter set forth.
Upon the entire record in the case, and from my
observation of the witnesses, I make the following:
this was done in order to assure the mailing to Mr. Ratner of all subsequent
papers and orders in the cases.
198 NLRB No. 165
UNIVERSAL TOWING COMPANY 1125
FINDINGS OF FACT
1. THE BUSINESSES OF THE RESPONDENTS
Respondent, Universal Towing Company, herein some-
times referred to as Respondent Universal, is a Delaware
corporation with an office and place of business in St.
Louis and East Carondelet, in the State of Missouri where
it is, and has been at all material times, engaged in the
business of supplying towing services to barge lines. In the
year ending December 31, 1970, Respondent Universal
received gross revenues in excess of $50,000 for its services
in towing barges on navigable waterways in the transport
of goods, wares, and merchandise from one State of the
United States to other States.
Respondent, D. J. Marine Service, Inc., herein some-
times referred to as Respondent D. J., is a Missouri
corporation with an office and place of business in St.
Louis and East Carondelet, in the State of Missouri, where
it is engaged in the repair and service of marine equipment.
In the year ending December 31, 1970, a representative
period of its operations, Respondent D. J. performed
services valued in excess of $50,000, of which services also
valued in excess of $50,000 were performed for various
enterprises located in States other than the State of
Missouri or Illinois. During the same year, the Respondent
D. J. also performed services valued in excess of $50,000
for various enterprises which are engaged in transporting
goods, wares, and merchandise between the several States
of the United States, each of which enterprises received
gross revenue in excess of $50,000 for such transportation.
Respondent Universal and Respondent D. J., hereinafter
jointly referred to as the Respondents, are, and have been
at all times material herein, affiliated businesses with
common officers, ownership, directors, and managers and
constitute a single-integrated business enterprise. Their
directors and managers formulate and administer a
common labor policy for the two Respondents affecting
their employees.
I find and conclude that the Respondent Universal and
the Respondent D. J., as individual employers and also
jointly as employers, engaged in a single-integrated
business enterprise, are employers engaged in commerce
within the meaning of the Act and it will effectuate the
policies of the Act to entertain jurisdiction of the
consolidated cases.
II. THE LABOR ORGANIZATION INVOLVED
Marine Officers Association, Local 54, affiliated with
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, hereinafter
referred to as the MOA, is a labor organization within the
meaning of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Introduction
The Respondents' and the MOA's present bargaining
relationship is represented by five contracts which they
negotiated and executed since July 1969.2 These contracts
all contain union-security and dues-checkoff provisions
and in combination although in separate, nonoverlapping
contractual units have covered all of the boat crew
personnel and shore-based welders, helpers, and cleanup
men in the repair facility, whom the Respondents have
employed since July 25, 1969.
At that time, the Respondents were engaged with three
or four boats, solely in 3-shift harbor operations at St.
Louis, with each boat crewed by an operator, a utility man,
and a deckhand and with all crew members living ashore
and reporting and working on the boats only during their
respective 8-hour shifts. On July 25, 1969, the Respondents
and the MOA executed 3-year contracts covering the
harbor boat operators in one contractual unit, the utility
men and deckhands on the boats in another contractual
unit, and the welders, welders' helpers, and cleanup crew at
the marine repair facility in the third contractual unit.
In 1970, the Respondents leased the Pacer, a more
powerful towboat, for a line haul operation between St.
Louis and Minneapolis and, having staffed it with two
crews who were to be quartered aboard the Pacer for
alternating periods of 30 days continuous service, entered
into two contracts with the MOA effective on June 16,
1970, one covering the captains and pilots in a single
contractual unit and the other covering the remaining crew
men in a separate unit; i.e., the mates, utility engineers,
cooks, and deckhands. The line haul contracts by their
terms were to be effective for a year, subject to automatic
renewal from year to year, absent written notice to the
contrary given by either party to the other at least 60 days
before any anniversary date. Although the Respondents
actually engaged in this line haul operation only until
October 1970 when the line haul crews were laid off and
the Pacer was put into the harbor operation with the usual
three-man crews, the Respondents and the MOA assert
that the line haul contracts would again become effective
should the Respondents resume a line haul operation.
The dispute in the present unfair labor practice case
focuses attention upon the position and status of the
operators in the harbor operation and of the captains and
pilots in the line haul operation. In substance, the General
Counsel contends, but the Respondents and the MOA
deny, that the Respondents' operators, captains, and pilots
have been supervisors within the meaning of the Act; that,
as members of the MOA, they and a substantial number of
other members who are the equivalent supervisory person-
nel of other riverboat employers have improperly partici-
pated in the affairs and management of the MOA,
including the MOA's representation of nonsupervisory
personnel of the Respondents and other employers; that
such supervisory participation in the affairs and manage-
ment of a union representing nonsupervisory employees to
the extent shown by the present record constitutes an
interference with the employees' rights to the free and
independent representation guaranteed by the Act; and
that, by countenancing this interference by their supervi-
sors and continuing to recognize and bargain with the
2 The Respondents took over their present business sometime before this with MOA, it was not until July 1969 that they negotiated and executed
and, although they "inherited" and observed their predecessor's contract their own contracts with MOA
1126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
MOA as the representative of their employees in the three
clearly nonsupervisory contractual units, the Respondents
interfered with, restrained, and coerced these employees in
the exercise of their statutorily guaranteed rights to
representation thereby committmg an unfair labor practice
within the meaning of Section 8(a)(1) of the Act, and also
interfered with the administration of, and contributed
support to, the MOA, as a labor organization, thereby
committing an unfair labor practice within the meaning of
Section 8(a)(2) of the Act.
B. The Duties and Authority of the Respondents'
Operators, Captains and Pilots
1. The operators in the harbor operation
The Respondents' towing and barge repair business is
conducted by President Donald Bruner and his brother,
Vice President Harold Bruner, from a floating office on an
old naval vessel wheru.orders are received from their barge
line customers and from which instructions are issued to
the towboats and to the repair facility. All hiring is done in
the office. Two-way radio communication is maintained
between the office and the Respondents' boats and orders
are given to the boats through a dispatcher who, in the
absence of both Bruners, is in charge of the office, receives
radio reports from the boats, and has authority to
"discipline" crewmembers. A "crew man," Mike O'Dan-
iels, also works in the office and, in the absence of the
Bruners, shares responsibility with the dispatcher for the
towboat operation. Upon the crewmembers' reporting at
the beginning of each 8-hour watch on the harbor boats,
the dispatcher issues instructions and tow diagrams to the
operator of each tugboat in the harbor operation both at
the beginning of each watch or shift and during the watch
(if changes or additions are necessary) as to the movement
of barges in the harbor, including the breaking of tows and
the building of tows for onriver transportation. Within this
overall general direction from the office and subject to a
requirement that the operator use the radio to report his
completion of each assignment and anything unusual that
may occur, the Respondents' operators are in charge of
their boats during their watches.
The Respondents operate four or five Diesel-engine tugs
in the harbor during a 7-day week. Each boat is crewed by
the operator, a utility man, and a deckhand working, on a
descending pay scale for each of these classifications, in
three 8-hour watches around the clock. To provide for days
off and vacations, the normal payroll consists of about 21
operators and 35 to 38 utility men and deckhands. At the
beginning of each watch, the crew complement of each
boat is determined by the "crew man" at the office where
the men report. The crew for each boat is then changed
either at the Respondents' floating office or, if the boat is
at another point in the harbor, at some nearby shore point
with the Respondents' furnishing the necessary transporta-
tion both to the boarding crew and the crew being relieved.
During his watch, the operator is in charge of the boat
and crew and is responsible for the execution of his general
instructions from the dispatcher. He does no physical work
but steers the boat, directly controls the engines and the
boat's speed and course from the pilot house, with assisting
hand signals from the utility man and deckhand as they
approach a barge or tow, and inspects the work of the
utility man and deckhand, giving them whatever orders or
instructions he finds necessary. The physical work is all
done by the utility man and the deckhand. They board the
barges, either casting off ties or making and tightening ties
to the tug and couplings between barges in a tow. In
addition, the utility man and the deckhand have general
cleanup and maintenance duties, with the utility man
responsible for the engine room and the deckhand
responsible for the deck. Among his duties, the utility man
checks the oil and water for the engines and greases the
winches and steering mechanism.
From the testimony to the foregoing effect given by the
Respondents' president, Donald Bruner, and from his
further testimony, it appears clear that in his relationship
with the utility man and the deckhand, the Respondents'
operator possesses supervisory authority within the mean-
ing of Section 2(11) of the Act. As I have already found,
the operator is charged with seeing that the men perform
their jobs, inspecting their work, and giving them necessary
orders in tying and untying connections between the
tugboats and barges, and in performing their houseclean-
ing and maintenance work aboard the tug. In addition,
although he has no authority to discharge or directly to
discipline or promote, he does make reports and recom-
mendations to the Respondents concerning the work of the
men, and the Respondents, upon consideration of his
reports, have followed his recommendations. Thus the
Respondents have asked the operators for reports on the
work of utility men and deckhands, especially those newly
hired, to determine whether they should be retained.
Operators have also recommended promotions of deck-
hands to the higher paid job of utility man and the
Respondents have followed these recommendations. And
operators have also asked that certain utility men or
deckhands be removed from their boats for nonperfor-
mance of their work, in which cases the Respondents have
acceded to the requests and assigned the men to other
boats. Finally, it appears from the MOA contract covering
the utility men and the deckhands that the Respondents
and the MOA regard the operator as the men's "immediate
superior on the boats" to whom they are to take their
complaints for possible initial adjustment in the first step
of the grievance procedure provided in the contract.
Bruner, in his testimony, sought to minimize the type and
number of complaints brought by utility men and
deckhands to the operators but, consistent with the
contract provision recognizing the operator as the initial
representative of the Respondents in the grievance proce-
dure, he did testify that there were some complaints taken
up first with the operator and that "if it is something he can
correct, yes, he can do that."
Upon the evidence to the foregoing effect, I find and
conclude that the operators have authority, in the interest
of the Respondents, responsibly to direct the work of the
utility men and deckhands on their boats, to adjust their
grievances, and effectively to recommend promotions,
discharges, or transfers to other boats; that the exercise of
such authority requires the use of independent judgment
and is not of a merely routine or clerical nature; and,
UNIVERSAL TOWING COMPANY 1127
therefore, that the operators are supervisors within the
meaning of Section 2(11) of the Act.
2. The captains and the pilots on the line haul
operation
While the Pacer was engaged in the line haul operation
between Minneapolis and St. Louis in 1970, each of its two
crews lived aboard the boat for alternate periods of 30 days
service and consisted of a captain, a pilot, a mate, an
engineer, a cook, and two deckhands. Respondents hired
all personnel at its office in St. Louis. The tows hauled by
the Pacer were already made up in Minneapolis with only
an occasional barge being added thereafter. Regular radio
contacts were made twice a day between the boat and the
Respondents' office, although additional contacts were
sometimes made either directly or, when the Pacer was in a
"blind spot" on the river, by relays through the boat radios
of other companies.
While the Pacer was under way, the captain was in
charge of the boat and crew at all times. He stood a 6-hour
watch during which he steered the boat, controlled its
speed and course, and directed the work of the crew. The
pilot was his second in command. During watches when
the captain was not on duty, he assumed the captain's duty
with respect to the steering and movement of the boat and
his authority over the crew, subject to the right of the
captain to take over at any time. The mate took orders
from either the captain or the pilot, whichever was on duty,
and, as "a sort of straw boss," generally saw to it that the
deckhands did the physical work in making and breaking
tows and moving the boat .3
The captain's authority over the boat and the crew, and
also the authority of the pilot when he was on duty, were
only slightly limited by a requirement that the captain
maintain intermittent radio contact with the Respondents'
office on certain matters. With respect to the operation of
the boat when engine problems arose, the captain decided
whether to continue operating, making repairs or correc-
tions while under way or during a wait at a lock. He could
also decide whether to tie up the boat for repairs, although
except in emergencies he first informed the office and
secured approval by radio. Although the captain had no
authority to discharge a member of the crew, he could,
after getting radioed approval from the office, put the man
off the boat and the office would then hire a substitute and
transport him to wherever the boat happened to be. With
respect to disputes among the men as to the watches to
which he assigned them, the captain was expected to
decide them in accordance with their seniority under the
MOA contract. And, under the MOA contract covering
the rank-and-file line haul crewmen (as in the case of the
contract covering the harbor utility men and deckhands), it
3 Although the General Counsel in his brief refers to President Bruner's
testimony that the mate had some authority when working with the deck
crew, the complaint does not allege that the mate was a supervisor and I
make no such finding
4 References to the MOA, it should be remembered , are references to its
Local 54 which holds the five contracts with the Respondents
8 This is a rough, conservative approximation based on figures supplied
by the MOA at the hearing but it provides the only possible finding justified
by the record. Apparent supervisory members include about 117 "masters"
(equivalent to the Respondents' line haul captains), 117 "pilots," and 14
appears that the Respondents expected the line haul
captain as the Respondents' representative and the men's
"immediate superior on the boat" to attempt to settle or
adjust the men's complaints in the first step of the
contractual grievance procedure. Finally, it is apparent
from Donald Bruner's testimony that, in view of the
Pacer's considerable periods of absence from the St. Louis
area, the Respondents necessarily relied and acted on
reports and recommendations concerning the crewmen.
For, according to Bruner's testimony, the pilot, as well as
the captain, was asked by the Respondents about the work
and conduct of the crewmembers and, as a result in two
instances to which Bruner testified, the Respondents
discharged a cook who "wasn't too good" and cautioned a
deckhand who "was a little sloppy in the way he was
living."
Upon the evidence to the foregoing effect, I find and
conclude that the Respondents' captains and pilots on the
line haul operation had authority, in the interests of the
Respondents, to direct the work of the rank-and-file
crewmen on their boats, to adjust their grievances, and
effectively to recommend disciplinary action; that the
exercise of such authority required the use of independent
judgment and was not of a merely routine or clerical
nature; and therefore that the Respondents' captains and
pilots were supervisors within the meaning of Section 2(11)
of the Act.
C. Participation in Union Affairs by Supervisory
Members of the MOA
The Respondents' operators, captains, and pilots whom I
have found to be supervisors, and the equivalent superviso-
ry personnel of other riverboat employers, are eligible for
membership in the MOA under its constitution and
bylaws,4 and constitute perhaps 30 percent of the MOA's
total membership of 800.5 As members, they are eligible to
nominate and serve as officers of the MOA and, whether
they exercise the rights or not, they have full voting rights
in the MOA's elections and in membership meetings,6 as
well as in mailed referenda concerning the general affairs
of the MOA, but not in matters relating to contracts with
employers unless they are included in the particular
contract units.
The general business of the MOA, whose offices are in
St. Louis, is transacted by four elected officers and an
executive board including the four officers and three
additional elected trustees, which holds quarterly meetings
to examine the MOA's books and make policy decisions.
General membership meetings are held annually and, in
addition, area membership meetings are held each year,
with the St. Louis members, including the Respondents'
operators " Clear nonsupervisory members number approximately 367,
who for the most part are deckhands and utility men but also include a
scattering of welders, helpers, and cleanup men In addition, there are about
125 engineers and 60 mates who are members but who cannot be classified
upon any basis shown by the record either as supervisory or nonsupervisory
6 MOA President David Carlton testified that, "We do not vote at
membership meetings " But art 23, 26, and 26 of the MOA constitution
provide for voting by the membership at their meetings as well as in mailed
referenda
1128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
personnel, attending the executive board's meetings in St.
Louis.
The last election of officers and trustees was held by
ballots mailed to all members in December 1969, with the
votes, also cast by mail, being counted in the beginning of
January 1970. At the time, the Respondents were engaged
solely in the St. Louts harbor operation, and none of its
operators voted in the election. Nor have any of them or
the Respondents' briefly employed line haul captains or
pilots, served either as an MOA officer or as a trustee. As a
result of the 1969-70 election, the MOA's two full-time
officers have been its president and secretary-treasurer who
have been on leaves from their respective jobs as a pilot
and an assistant engineer for two other employers. The
other two officers (its vice president and recording
secretary) have continued to work for their respective
employers, the first as an engineer and the other as a pilot
and sometimes captain. The three elected trustees have
also continued to work for their employers, sometimes as
pilots and sometimes as captains. In Apnl or July 1971,
however, a vacancy occurred in one of these trusteeships
and, under a provision of the MOA's constitution, the
executive board filled it by appointing another member,
who was also a pilot or captain for an employer other than
the Respondents.
Both in its constitution and in practice, the MOA has
compartmentalized the negotiation and ratification of its
various contracts with employers, limiting participation,
with the assistance of its president or secretary-treasurer, to
members m the particular contract unit; i.e., to "the
members who will be affected by the agreement." Thus,
before negotiation of any given contract, the MOA-
members employed in that contract unit are asked to
indicate "the minimum standards . . . they are willing to
accept" on a proposal form provided by the MOA, and at
the same time they elect from among their group a
negotiating committee composed of one member in each
job classification to be covered by the contract. The
committee, accompanied by either the MOA's president or
secretary-treasurer, then meets with the employer's repre-
sentative and negotiates the contract "within the scope of
the minimum standards specified." Before execution of
any agreement resulting from the negotiations, it is
submitted to the members in the contract unit (and only to
them) for ratification or rejection by a majority vote on a
mailed "signature ballot." Only with respect to a possible
strike may any question relating to contract negotiations
be submitted to the entire membership. Thus, the constitu-
tion provides that, if a majority of the members in a
contract unit rejects the negotiated agreement, they may be
a two-thirds vote in a "special mail ballot election vote to
strike" unless in a particular situation, the executive board
should decide that the question be submitted to a two-
thirds vote by the entire membership. There was no
evidence in the present case, however, concerning any
situation in which a strike vote has been held either in
connection with the Respondents' personnel or with the
personnel of any other employer.
In accordance with the testimony given by Respondents
President Donald Bruner and by MOA President David
Carlton, I find that the general practice of the MOA to
limit participation in contract negotiations and ratification
to the personnel employed in the particular contract units
was followed in all five contracts between the Respondents
and the MOA; that the Respondents' supervisory person-
nel participated only with respect to the contracts covering
them; and that they took no part in the negotiation or
ratification of the three contracts separately covering the
Respondents' rank-and-file employees which were handled
solely by the latter's committees in accordance with the
MOA's general practice . I make this finding on the basis of
Bruner's and Carlton's general testimony to this effect,
despite Bruner's testifying that as a preliminary to the
negotiation of the 1969 harbor operation contracts sepa-
rately covering the operators in one contract and the rank-
and-file crewmen and the welders with their helpers in the
two other contracts, MOA Secretary John Harruff had a
general discussion of the purpose of the negotiations with
Bruner and with the operators ' negotiating committeeman
(a D. L. Hurd) and the negotiating committeemen for the
utility men and the deckhands (i.e., utility man Robert
Dobbs and deckhand "Red" Orth).7 For Bruner also
testified, and I credit his testimony and find, that although
operator Hurd made some comments in the presence of the
rank-and-file committeemen , Bruner could not recall what
they were except that they did not relate to the rank-and-
file contract, and that in the ensuing negotiations Hurd
confined himself to a consideration of the operators'
contract and the rank -and-file committeemen along with
Harruff, negotiated the two rank-and-file contracts.
D. Conclusions
The General Counsel actually makes several arguments
for holding that the Respondents, by their continued
recognition of the MOA as the representative of both their
supervisory and nonsupervisory personnel, have deprived
the rank-and-file employees of the free and independent
representation guaranteed by the Act, have interfered with
and assisted the MOA as a labor organization, and have
thereby committed unfair labor practices within the
meaning of Section 8(a)(1) and (2) of the Act. One of the
General Counsel's arguments to this effect is based upon
the Respondents' responsibility for its own supervisors (the
operators, captains, and pilots) as full members of the
MOA in their actual or possible participation in the
MOA's affairs, including those relating to the MOA's
representation of the rank-and-file employees. The second
and broader of the General Counsel's arguments is based
on the Respondents' continued recognition of the MOA as
the representative of their rank-and-file employees al-
though the MOA could not be expected to give the rank-
and-file employees independent and effective representa-
tion free of employer influence because a substantial
r Bruner also testified that the same committeemen were also present in following negotiation of the line haul contracts which , according to the
1970 during a discussion of whether the "Pacer" should be taken out of the credible testimony of MOA President Carlton and Secretary -Treasurer
harbor operation and put on line haul with a different crew . It does not Harruff , were approved by the newly hired line haul personnel.
appear, however , that any of these three men thereafter participated in the
UNIVERSAL TOWING COMPANY 1129
number of supervisors of other riverboat employers as well
as those of the Respondents participated as full members
and even as officers of the MOA and were in a position
where they controlled or could control the MOA's
bargaining for rank-and-file employees.
In support of both these arguments, the General Counsel
relies upon principles laid down by the Board in its
landmark decision in Nassau and Suffolk Contractors'
Association, Inc., 118 NLRB 174, and since applied by it in
numerous cases including cases involving riverboat person-
nel.8 Broadly stated, the Board's holding in Nassau-Suffolk
was that, although under Section 14(a) of the Act
supervisors may join and remain members of a union
representing their employer's rank-and-file employees,
their actual participation in union affairs so far as it affects
the union's representation of the rank-and-file employees
may be attributed to their employer and constitute an
unfair labor practice on the part of the employer either,
under Section 8(a)(1) of the Act, as an interference with or
restraint upon his rank-and-file employees' right to free
and independent representation or, under Section 8(a)(2),
as an interference with , as assistance to, or even as
domination of the union as a labor organization. In
applying this broad principle, the Board in Nassau-Suffolk
made a distinction between "company executives and
high-ranking supervisors," for whose actual union partici-
pation, including voting at union meetings, their employer
was to be held generally responsible, and "low level
supervisors" who in the Nassau-Suffolk case were actually
in the contract unit with rank-and-file employees, and for
whose union activity their employer had a much more
limited degree of responsibility. Furthermore, in develop-
ing the standards of employer responsibility, the Board in
Nassau-Suffolk applied the principle of Respondeat superior
which would have relevance to the first argument made by
the General Counsel in the present case but would furnish
no support for the theory of his second argument generally
casting responsibility upon the employer not only for the
acts of his own supervisors but for a situation created by
the acts of supervisors in the employ of other riverboat
employers with whom the MOA also bargained individual-
ly on behalf of their rank-and-file employees. For a reading
of Nassau-Suffolk shows clearly that an employer's
responsibility for the commission of this type of unfair
labor practice necessarily rests upon the actual and not the
potential activity of his own supervisors in the union's
affairs or (as also appeared in Nassau-Suffolk ) upon a
derivative, chain responsibility (also grounded in respon-
deat superior) for the improper activity of the supervisors
of other members of an employers' association which
negotiates a single, master contract for all its members.
Contrary to the specific allegations of the complaint and
the first argument of the General Counsel in his brief, the
evidence which I have discussed in detail does not show
8 See Mon River Towing v N LR B, 421 F 2d I (C A 3), affg 173 NLRB
1452, G and H Towing Co, 168 NLRB 589, 590 (text and In 7), 596-597
9 In view of these findings and the resulting conclusion, there is no
reason for my considering an argument made by the General Counsel that
the supervisors were "high level supervisors" for whose intraunion activity
that any of the Respondents ' supervisors (i.e., its operators,
captains , and pilots) has voted in any election of MOA
officers, has held any MOA office, or has, by voting in any
election or referendum or by any other act, either
"participated in the formulation and establishment of the
[MOA's] policies and practices . . . in its representation of
employees" or "participate [d ] in negotiations with employ-
ers, including the Respondents , concerning wages , hours of
employment and other terms and conditions of employ-
ment , including the Respondents' employees ." Indeed, the
evidence is all the other way. The Respondents ' supervi-
sors , though eligible as MOA members, have not voted in
any MOA election , have not held MOA office , and have
not participated in the formulation of the contract
objectives, or the negotiation or ratification of any of the
Respondents' contracts with the MOA covering the
Respondents' rank-and-file employees . As the evidence
shows , these contracts were all molded, negotiated, and
ratified by the rank-and-file employees themselves. I
therefore reject the first argument made by the General
Counsel and conclude that the evidence does not support
the General Counsel's contention , based on Nassau-Suf-
folk, that the Respondents , through the intraunion activi-
ties of its supervisors as members of the MOA, have
committed unfair labor practices within the meaning of
Section 8(a)(1) or (2) of the Act .9
Nor do I find any tenable basis either under Nassau-
Suffolk or any reasonable extension of the Nassau-Suffolk
principle for the General Counsel's second argument that
the Respondents committed an unfair labor practice within
the meaning of Section 8(a)(1) or (2) by continuing to
recognize the MOA as the representative of their rank-and-
file employees because supervisor -members of the MOA
employed by other riverboat employers have served as
MOA officers and may have , in some way not shown by
the record, controlled the MOA 's bargaining for rank-and-
file employees . For these supervisors were not the
Respondents' supervisors or its agents and I can conceive
of no basis for holding the Respondents as an employer
responsible for the presently alleged type of unfair labor
practice except on the basis of respondeat superior.
For the foregoing reasons , I have concluded that the
evidence does not show that the Respondents have
committed the unfair labor practices alleged in the
complaint , and I therefore also conclude, in accordance
with the motions made by counsel for the Respondents and
the Union at the hearing, that the complaint should be
dismissed.
I recommend that the Board enter the following:
ORDER
The complaint in the present cases is dismissed in its
entirety.
the Respondents are to be held to the highest degree of accountability under
Nassau-Suffolk because their coverage in separate contracts shows no
community of interest with , and therefore distinguishes them from, the
rank -and-file employees