Employees Negotiating Committee

National Labor Relations Board - Board Decisions

Jun 30, 1969

177 N.L.R.B. 754 (N.L.R.B. 1969)

754 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Employees Negotiating Committee ; Bennie Barker,
Robert Glud, Raymond Grange, and Edward
Schrock and Western Boat Operators, Inc. Case
19-CP-119
June 30, 1969
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND ZAGORIA
Upon charges filed by Western Boat Operators,
Inc. (herein called Western Boat), the General
Counsel of the National Labor Relations Board, by
the Regional Director for Region 19, issued a
complaint dated August 12, 1968, against
Employees Negotiating Committee; Bennie Barker,
Robert Glud, Raymond Grange, and Edward
Schrock (referred to herein as Respondents),
alleging that Respondents had engaged in and are
engaging in unfair labor practices affecting
commerce within the meaning of Section 8(b)(7)(B)
of the National Labor Relations Act, as amended.
Copies of the charge, complaint, and notice of
hearing were duly served on Western Boat and
Respondents.
With respect to the unfair labor practices, the
complaint alleges in substance , that, commencing on
or about July 18, 1968, Respondents have demanded
that Western Boat recognize and bargain with them
concerning conditions of employment, as
representative of Western Boat's employees, and
that on or about July 26, 1968, Respondents
picketed Western Boat at its various facilities in
Alaska, all within 12 months of the conduct of a
valid election pursuant to Section 9(c) of the Act,
thereby engaging in unfair labor practices within the
meaning of Section 8(b)(7)(B) of the Act.'
On November 22, 1968, the parties to this
proceeding entered into a Stipulation' in which they
waived a hearing before a Trial Examiner, the
making and finding of facts and conclusions of law
by a Trial Examiner, and the issuance of a Trial
Examiner's Decision , and agreed to submit the case
for findings of fact, conclusions of law, and order
directly to the Board. The parties stipulated to
certain facts and agreed that the stipulation and the
formal papers in the instant case, and the entire
record in the Civil Case A-95-68, held pursuant to a
petition filed by the Acting Regional Director under
Section 10(1) of the Act in the United States
'This section provides in relevant part that "(b) It shall be an unfair
labor practice for a labor organization or its agents - (7) to picket
or cause to be picketed , or threaten to picket or cause to be picketed, any
employer where an object thereof is forcing or requiring an employer to
recognize or bargain with a labor organization as the representative of his
employees ( b) where within the preceding twelve months a valid
election under section 9(c) of this Act has been conducted
'The Respondent and Western Boat signed the stipulation on November
18, and the General Counsel on November 22, 1968.
District Court in the District of Alaska, constitute
the entire record in this proceeding.
By Order of the Board dated December 16, 1968,
the parties' stipulation was approved and made part
of the record herein; this proceeding was transferred
to the Board; and permission was granted to the
parties to file briefs. Thereafter, the General
Counsel and Respondents filed briefs. The General
Counsel also filed a reply brief.
Pursuant to the provisions of Section 3(b) of the
Act, the Board has delegated its powers in
connection with this case to a three-member panel.
Upon the basis of the stipulation, the briefs of
General Counsel and Respondents, and the entire
record in this case, the Board makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE CHARGING PARTY
The Charging Party, Western Boat, is, and has
been at all times material herein, a corporation duly
organized and existing by virtue of the laws of the
State of Texas. Western Boat is engaged in hauling
supplies and equipment for oil drilling rigs located
along the West Coast of the United States and
Canada, and operates approximately five vessels in
Cook Inlet, Alaska, and nearby areas, performing
services of hauling supplies and equipment between
oil drilling rigs located in Cook Inlet and shoreside
docks for three oil companies.
11. JURISDICTION
It was stipulated and agreed that during the past
year Western Boat purchased and received at its
Alaska facilities material and supplies shipped to it
from sources outside the State of Alaska in excess
of $50,000. The parties stipulated, and we find, that
Western Boat is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act, and we
conclude that it will effectuate the policies of the
Act to assert jurisdiction herein.
III. THE UNFAIR LABOR PRACTICES
The unfair labor practices alleged in the
complaint are related to the following events:
1. On or about October 23, 1967, Inland
Boatmen ' s Union of the Pacific Puget Sound
Division , SIU of NA, AFL-CIO, hereinafter
referred to as IBU, filed a petition with the Board
for an election among employees of Western Boat at
its Alaska operations, said petition having been
designated as Case 19-RC-4630 by the Board. By
Decision and Direction of Election issued by the
Acting Regional Director of Region 19 of the Board
on December 27, 1967, in Case 19-RC-4630, the
following unit of employees of Western Boat was
found to constitute an appropriate unit for purposes
of collective bargaining within the meaning of
Section 9 (b) of the Act:
177 NLRB No. 110
EMPLOYEES NEGOTIATING COMMITTEE
All employees of Western Boat employed on
floating equipment operating in Alaska waters,
excluding shoreside personnel, office clerical
employees , professional employees, guards, and
supervisors as defined in the Act.
On or about June 10, 1968, the then Acting
Regional Director for Region 19 issued a
certification of results in Case 19-RC-4630 based
upon an election conducted pursuant to said
petition. The certification of results showed that no
labor organization won a majority in the election.'
2. On or about July 18, 1968, the four individual
Respondents signed a letter directed to Western
Boat stating that the four employees had been
"designated to represent the employees of your
company" and requested a meeting on July 23,
1968, to discuss the following items: (1) Vessel
Classification; (2) Manning of Vessels; (3) Wages;
and, (4) Health , Welfare , and Retirement
(employees and dependents). Max Shores, vice
president of Western Boat, by wire, on July 22,
1968, replied to this letter , stating that because of
such short notice a meeting could not be held on
July 23, but that a later meeting could be arranged.
Three individual Respondents, Benny Barker, Bud
Glud, and Ed Schrock acknowledged by wire (dated
July 23), Shores' telegram , and requested a meeting
no later than Friday noon July 26 . On July 26,
1968, Shores met with three of the Respondents," all
members of the crew of Western Boat's vessel, the
Big Tide. Shores informed these three that if they
represented the IBU, or if they were acting as the
representatives of all the employees he could not
talk to them and further that he doubted that they
represented all of the employees, but he would
discuss matters with them individually. Upon being
informed of this Respondent Bennie Barker, who
Shores states acted as spokesman for the
Committee , ended the meeting by stating "We don't
have anything to talk about."
The same day, almost immediately after the
meeting was held , the three employees started
picketing , carrying placards containing the following
legend : "Western Boat Operators , Inc. Employees
on strike."
Issues Raised by the Pleadings
1. Whether the Respondents constituted a labor
organization within the meaning of Section 2(5) of
the Act.'
2. Whether the picketing engaged in by the
The election resulted in a tie vote. No objections having been filed, the
certification by Regional Director became final and the proceeding
thereupon closed pursuant to the provisions of sec . 102.67 (g), Rules and
Regulations, Series 8 , as amended.
Glud, Barker , and Schrock.
'Sec. 2(5) of the Act defines a labor organization as follows : "The term
'labor organization ' means any organization of any kind , or any agency
employee representation committee or plan , in which employees participate
or which exists for the purpose , in whole or in part, of dealing with
employers concerning grievances , labor disputes , wages, rates of pay, hours
of employment, or conditions of work"
755
striking employees was of the nature proscribed by
Section 8(b)(7)(B) of the Act.
The undenied testimony of employee witnesses,
Glud, Schrock, Grange, Barker, and Sparks clearly
establishes that these employees, individually or
together with other employees had, as far back as
October 1967, and continuing up to July 26, 1968,
requested various officials of Western Boat, such as
Max L. Shores, vice president and area manager,
Callahan, port captain, Smith, and Hogue, its office
manager, and others, for additional crewmembers
on the vessels, comparable to the practices of other
vessel owners operating in the area, for wages
comparable to the wages prevailing in the area for
similar work, for relief from long continuous hours
of work at sea,' without any days off with pay, and
for the remedying of hazardous conditions while
unloading at the platform of the oil drilling rigs at
sea.
Western Boat officials did not respond to all these
requests until sometime in January 1968, when a
group of the employees approached Shores and
Hogue about wage increases and were informed by
Shores and Hogue that no pay raises could be given
at that time because of the pending union election,
but that the employees could look forward to some
time off with pay and a substantial raise . The record
establishes that these requests by the employees to
Western Boat' s management officials for increases
in wages and improvement of working conditions,
such as the addition of another man to the crews,
were practically continuous, with little or no results.
On or about July 18, three members of the crew
of the motor vessel Big Tide, which was docked at
one of Western Boat's facilities, decided, in view of
the general dissatisfaction of Western Boat's
employees as to wages and working conditions, to
appoint themselves as a group to act as spokesman
for all the employees.
On July 18 the aforementioned three employees
and employee Grange signed and sent the following
letter to Max Shores:
We the undersigned men have been designated
to represent the employees of your company
employed on your vessels operating in the Cook
Inlet Area. We would like to discuss the following
items:
1. Vessel Classification
2. Manning of Vessels
3. Wages
4. Health, Welfare & Retirement (employees
and dependents).
We request a meeting with you on Tuesday, July
23, 1968. If this date conflicts with your schedule,
please inform us of another date within reason.
`Robert Glud, who was captain of Western Boat 's supply vessel Big Tide
until July 26, testified that with a four-man crew such crews, were required
to work around the clock in loading and unloading supplies at the oil rigs
with no relief and, upon returning to Western Boat 's facilities to reload
and return to the rig without any days off with pay . Also, the employees
often worked 20, 30, and 40 days in a row
756 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In reply to this letter, Shores, by wire to Glud,
acknowledged the letter, but because of such short
notice suggested a meeting at a later date and stated
in the telegram that he "would be happy to meet
with our employees on any subject at any time." To
this telegram, Barker, Glud, and Schrock sent a
reply requesting a meeting no "later than Friday
noon, July 26, 1968."
On July 26, about 11 a.m., Shores and Callahan
appeared at the dock in Port Nikiski, adjacent to
Western Boat's facility, at which place the Big Tide,
and behind it, the Karl Tide, were berthed. On the
Big Tide at such time were three members of the
Big Tide crew, Glud, Barker, and Schrock. Shores
informed these three employees that he would not
want to discuss wages or work conditions with them
either as a group representing the employees, as he
did not believe they represented all the employees,
or as representatives of the IBU, but stated he
would discuss such matters with each individually.
Glud informed Shores that they did not represent
the IBU and if he didn't want to talk about wages
or work conditions there was nothing left to talk
about. Shores and Callahan thereupon left stating
they were going over to the Karl Tide but did not
do so.'
The record discloses that after Shores and
Callahan left the Big Tide, Barker, Glud, and
Schrock decided to make picket signs as previously
described herein, and started picketing at the head
of Western Boat's dock at Port Nikiski. In the
meantime, all of the crews on the other vessels of
Western Boat, which were at sea, were informed by
the Big Tide crew, via ship-to-shore radio, of the
strike and picketing. All of Western Boat's vessels
reached Port Nikiski before approximately 5 p.m.
on the same day, July 26, and the crews of these
boats joined the strike.
After the start of the strike on July 26, employees
Glud, Barker, and Schrock sent a telegram, in
which they designated themselves as "Employees
Negotiating Committee," to Shores wherein they
offered to end the strike and picketing if they were
given "written assurance you [Shores] will pay total
package earnings equal to that now under
negotiations by the other companies in Cook
Inlet. . . .-
Shores and Callahan returned to the dock about 5
or 5:30 p.m. and noted that additional employees
were picketing. They visited each of the crews and
asked if the men were going to work and upon
receiving negative answers they ordered the crews to
take their vessels to the port of Seldovia, about 60
miles from Port Nikiski. The crews of the various
vessels took the vessels to Seldovia and continued
their strike and picketing at Seldovia until August
19, 1968.
In order for us to conclude that the picketing here
'The above summary is based upon the testimony of employees Glud,
Barker , and Schrock
involved was violative of Section 8(b)(7)(B), all of
the following elements must be shown as to have
existed at the time of the picketing: (1) the picketing
was carried on by a labor organization or its agents;
(2) an object of the picketing was to force the
Employer "to recognize or bargain with a labor
organization;" and, (3) the picketing occurred within
12 months of a valid election. On the facts of this
case, as recited above, we are satisfied that all of
these elements are sufficiently established.
It is not disputed that the picketing here involved
occurred within 12 months of the election which was
conducted in Case 19-RC-4630. We find no merit in
Respondents' contention that that election was not a
valid one under Section 9(c) of the Act.
Respondents rest their contention on the claim that
the Employer (Western Boat) engaged in certain
activity during the preelection period that was
calculated to restrain and coerce employees to vote
against union representation. However, no
objections were ever filed to the election, nor were
any unfair labor practices ever charged by the
Respondents or any individual or other labor
organization with respect to the alleged conduct. In
these circumstances, and particularly in the absence
of any timely challenge to the certification of results
issued by the Acting Regional Director in Case
19-RC-4630, the validity of the election is not now
properly questioned. See Section 102.69 of the
Board's Rules and Regulations.
Although Respondents contend otherwise, the
record amply supports a finding that Respondents'
"Employees Negotiating Committee" constituted a
labor organization within the meaning of Section
2(5) of the Act, and that the individual Respondents,
Bennie Barker, Robert Glud, Raymond Grange, and
Edward Schrock, were agents of such organization.
It is well settled that an employee group or
committee may constitute a labor organization
within the statutory definition even though it is
informally organized and lacks certain attributes of
a more typical labor union, such as officers, a
constitution, and bylaws, or requirements for
payment of dues. See, e.g., N.L.R.B. v.
Kennametal, Inc., 80 NLRB 1481, enfd. 182 F.2d
817 (C.A. 3). The important test is not the form of
the employee organization but its purpose. In the
instant case, it is clear that the employee committee
or group, which was later denominated Employees
Negotiating Committee, was formed by the
individual Respondents for the purpose of
representing all the Company's employees and
dealing collectively for them with the Company with
respect to wages and conditions of work. This, we
believe, is evident without more from the letter
dated July 18, 1968, directed by the individual
Respondents to the Company, wherein they declared
that they had "been designated to represent the
employees of your company" and were therefore
requesting a meeting to discuss the broad range of
items concerning wages and working conditions
EMPLOYEES NEGOTIATING COMMITTEE
specified in that letter. That Respondents were
acting , not as individuals in their own behalf, but as
an employee agency or representation committee is
further evident from the fact that when the
Company declined to recognize Respondents as a
.committee entitled to represent its employees
collectively, and to deal with them on that basis,
Respondents almost immediately thereafter,
instituted the strike and picketing here involved. It
would ignore the clear language of Section 2(5) to
hold in these circumstances that Respondents were
not acting as a labor organization within the
statutory definition.
Finally, we reject as without merit Respondents'
contention that the picketing had no recognitional
aim whatever, but that its only object was to protest
the Employer' s alleged failure to pay prevailing
wages and meet prevailing working conditions in the
area. The facts of this case are clearly to the
contrary. Thus, Respondents' letter of July 18, 1968,
requesting the Employer to meet with them as the
employees "designated" representative; the action of
Respondents in instituting a strike and picketing in
support of their demands immediately following the
Employer's refusal to recognize and deal with them
as representative of its employees; and the very
name selected by Respondents - "Employees
Negotiating Committee" - alldemonstrate an intent
on Respondents' part to gain recognition for the
purpose of negotiating terms and conditions of
employment. Our finding that the picketing was
directed at this objective is buttressed by the
telegram which the Committee addressed to the
Employer after the start of the strike. In it the
Committee offered to terminate the strike and
picketing provided it was given "written
assurance" - in effect a contract - that the
Company would "pay total package earnings equal
to that now under negotiations by other
companies . . ." On these facts, we think it clear
that the picketing constituted an effort on
Respondents' part to force recognition and
bargaining within the purview of Section 8(b)(7).
We conclude, upon the entire record, that
Respondents did constitute a "labor organization or
its agents," and that an object of Respondents'
picketing was to force or require Western Boat to
recognize and bargain with Respondents in that
capacity. We find, accordingly, that by engaging in
such picketing within 12 months of a valid election
Respondents violated Section 8(b)(7)(B) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICE
UPON COMMERCE
The activities of the Respondents, set forth above,
occurring in connection with the operations of the
Employer, also set forth above, have a close,
intimate, and substantial relation to trade, traffic,
and commerce among the several States and tend to
lead to labor disputes burdening commerce and the
free flow thereof.
V. THE REMEDY
757
Having found that the Respondents, Employees
Negotiating Committee; Bennie Barker, Robert
Glud, Raymond Grange, and Edward Schrock, have
engaged in activities violative of Section 8(b)(7)(B),
of the Act we shall order that they cease and desist
therefrom and take certain affirmative action.
CONCLUSIONS OF LAW
1. Employees Negotiating Committee is a labor
organization within the meaning of Section 2(5) of
the Act.
2. Bennie Barker, Robert Glud, Raymond
Grange, and Edward Schrock are agents of the
above-named labor organization within the meaning
of Section 8(b) of the Act.
3. The above-named labor organization and
Bennie Barker, Robert Glud, Raymond Grange, and
Edward Schrock have engaged in unfair labor
practices within the meaning of Section 8(b)(7)(B) of
the Act by picketing Western Boat Operators'
premises for the purposes of forcing their employer,
Western Boat Operators, to recognize and bargain
in a manner proscribed by Section 8(b)(7)(B).
4. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
ORDER
Upon the entire record in this case, and pursuant
to Section 10(c) of the National Labor Relations
Act, as amended, the National Labor Relations
Board hereby orders that Respondent, Employees
Negotiating Committee and its Agents Bennie
Barker, Robert Glud, Raymond Grange, and
Edward Schrock, shall:
1. Cease and desist from picketing or causing to
be picketed Western Boat Operators, Inc., where an
object thereof is forcing or requiring said Company
to recognize and bargain with it as representative of
said Company's employees in violation of Section
8(b)(7) (B).
2. Take the following affirmative action which we
find will effectuate the policies of the Act:
(a) Copies of the attached notice marked
"Appendix" on forms provided by the Regional
Director for Region 19 shall be signed by
Employees Negotiating Committee; Bennie Barker,
Robert Glud, Raymond Grange, and Edward
Schrock.
(b) Mail or deliver to the Regional Director the
signed copies of the attached notice for posting by
Western Boat Operators, Inc., if it so desires. In the
event Western Boat Operators, Inc., elects to post
such notices, they shall be posted immediately upon
receipt thereof and maintained by it for 60
consecutive days thereafter in conspicuous places,
including all places where notices to employees are
758 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
customarily posted . Reasonable steps shall be taken
by Respondent to insure that said notices are not
altered , defaced , or covered by any other material.
(c) Notify the Regional Director , in writing,
within 10 days from the date of this Order, what
steps have been taken to comply herewith.
APPENDIX
NOTICE TO ALL MEMBERS
Pursuant to a Decision and Order of the National
Labor Relations Board and in order to effectuate the
policies of the National Labor Relations Act, as amended,
we hereby notify our members that:
WE WILL NOT picket or cause to be picketed Western
Boat Operators, Inc., where an object thereof is forcing
or requiring said Company to recognize or bargain with
us as the representative of their employees in violation
of Section 8(b)(7)(B) of the National Labor Relations
Act, as amended.
EMPLOYEES
COMMITTEE
NEGOTIATING
(Labor Organization)
Dated By
Bennie Barker (Agent)
Dated By
Robert Glud (Agent)
Dated By
Raymond Grange (Agent)
Dated By
Edward Schrock (Agent)
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered , defaced,
or covered by any other material.
If members have any question concerning this notice or
:ompliance with its provisions, they may communicate
directly with the Board ' s Regional Office , Republic
Building , 10th Floor , 1511 Third Avenue, Seattle,
Washington 98101, Telephone 206-583-4532.