Exxon Shipping Co.

National Labor Relations Board - Board Decisions

Sep 30, 1993

312 N.L.R.B. 566 (N.L.R.B. 1993)

566
312 NLRB No. 93
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 Exxon Shipping Co. v. NLRB, Docket Nos. 91–3230 and 91–3283
(unpublished judgment).
2 302 NLRB 290 (1991). Member Raudabaugh did not participate
in this case.
3 Brief for Petitioner to the Court of Appeals for the Third Circuit,
Addendum, pp. 12–14.
4 Respondent’s reply brief to the Court of Appeals for the Third
Circuit, Exh. 1.
5 The Coast Guard—somewhat ambiguously given the context of
this case—stated that the terms in such agreements are largely con-
sidered to be matters best discussed and resolved during labor man-
agement negotiations. Finally, the Coast Guard stated that it does not
have a program to actively review the content of these documents.
Exxon Shipping Company and Exxon Seamen’s
Union. Case 22–CA–15637
September 30, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
On December 27, 1991, the United States Court of
Appeals for the Third Circuit remanded this case to the
National Labor Relations Board with directions to so-
licit comments from the Department of Transportation
‘‘concerning the interpretation of statutory provisions
governing allotments from seamen’s wages.’’1 The
Board had found that the Respondent, Exxon Shipping
Company, had violated Section 8(a)(3) and (1) of the
National Labor Relations Act by discriminatorily refus-
ing to process employees’ draw check orders made
payable to the Union for monthly union dues, and had
violated Section 8(a)(5) and (1) of the Act by imposing
new restrictions on the use of the draw check order
system without bargaining with the Union.2
In the underlying proceeding, the Board found that
the Respondent had failed to meet its burden of show-
ing that, apart from union considerations, it would
have refused to process the draw check order forms
that did not meet the requirements of 46 U.S.C.
§ 10315. The Board further found that the Respondent,
which is engaged, inter alia, in the coastwise shipping
of petroleum products, had failed to prove that Section
10315 was applicable to coastwise voyages. Finally,
the Board found that, even assuming the statutory pro-
visions were applicable to coastwise shipping, the draw
check orders at issue here were not prohibited by the
maritime statutes.
On appeal to the Court of Appeals for the Third Cir-
cuit, the Respondent relied for the first time on an in-
ternal Coast Guard memorandum dated February 18,
1989, which stated that a separate provision of the
maritime statute, 46 U.S.C. § 10502(c), prohibited the
allotment of wages for coastwise shipping.3 The Re-
spondent further attached to its reply brief to the court
a letter from the Coast Guard dated June 13, 1991,
which reiterated the Coast Guard’s position that the
maritime laws prohibited the allotment of wages for
seamen sailing on coastwise articles.4
The court remanded this case to the Board with in-
structions to solicit the Department of Transportation’s
views on the applicable shipping statutes. Pursuant to
this direction, the Board queried the Department (1)
whether it is a violation of 46 U.S.C. § 10502(c) or
other maritime statutes to permit allotments for seamen
sailing on coastwise articles; (2) whether draw check
orders are within the definition of allotments; and (3)
how the provisions regulating allotments are enforced?
On April 27, 1992, the Board received a reply from
the Department of Transportation, through the office of
the Commandant of the U.S. Coast Guard, dated April
22, 1992. The Coast Guard informed the Board that,
in March 1989, it had corresponded with a representa-
tive of the General Counsel regarding the interpretation
of 46 U.S.C. § 10502(c). In that March 9, 1989 cor-
respondence with the Board’s Regional Office in New-
ark, New Jersey, the Coast Guard informed the Gen-
eral Counsel that its review of the legislative history
of the maritime statute warranted the conclusion that
Congress intended to prohibit allotments for seamen
sailing on coastwise articles under 46 U.S.C.
§ 10502(c). The Coast Guard attached the February 18,
1989 internal memorandum and the March 9, 1989
correspondence with the General Counsel to its April
22, 1992 letter.
The Coast Guard expressed the view that if Con-
gress had intended to permit an assignment of sea-
men’s wages as payment of union dues, it would have
made an explicit provision in the statute which is pre-
cise in limiting the allocation of wages. The Coast
Guard noted that although the term ‘‘allotment’’ is not
defined by statute, it appears intended to include any
deduction from seamen wages which are assigned by
the seamen for payment by the employer. The Coast
Guard observed that a ‘‘draw check order,’’ as defined
in the Board’s Decision and Order is a ‘‘system by
which employees could direct that a portion of their
wages be sent to a bank or a specified name and ad-
dress.’’ This description of a draw check order clearly
falls within the general dictionary meaning of the stat-
utory term, ‘‘allotment,’’ i.e., a portion set aside for a
special use or purpose.
The Coast Guard further observed that 46 U.S.C.
§ 10502(c) explicitly provides that the shipping articles
agreement for coastwise voyages ‘‘may not contain a
provision on the allotment of wages.’’5 It found that
the shipping articles agreement encompasses the em-
ployment contract signed by the seamen and any appli-
cable collective-bargaining agreement. The Coast
Guard opined that if allotments were permitted outside
the framework of this written agreement, the statutory
restrictions would be easily circumvented and become
largely meaningless. Accordingly, the Coast Guard in-
567EXXON SHIPPING CO.
6 The General Counsel does not contend that the Coast Guard has
deferred its application of the statute to the parties in a collective-
bargaining context. See fn. 5, above.
terpreted 46 U.S.C. § 10502(c) to prohibit allotments
for seamen sailing on coastwise articles.
After receipt of the Coast Guard’s views, the Board
invited the parties to submit statements of position.
The General Counsel argues that the Board properly
ordered the Respondent to remedy its 8(a)(1), (3), and
(5) violations by making draw check orders available
to pay union dues because the orders, which seamen
could revoke at will, were not prohibited ‘‘allotments’’
under maritime law. The General Counsel contends
that the Coast Guard has failed to adequately address
the ultimate issue of whether the definition of the legal
term ‘‘allotments’’ encompasses the draw check orders
used by the Respondent.
The General Counsel argues that the Coast Guard’s
opinion, devoid of any case authority, merely relies on
a general dictionary meaning of the term ‘‘allotment’’
and fails to reconcile that meaning with the Federal
court’s application of the term in Skandalis v. M/V
Galini, 1974 A.M.C. 1671 (E.D. Va. 1974), relied on
by the Board to conclude that the draw check orders
were not unlawful allotments under maritime law. 302
NLRB 290 at 292. The Board noted that the Skandalis
court considered the purpose of the allotment provi-
sions, to protect the seaman from his folly, and deter-
mined that the limitation on allotments refers only to
deductions which are ‘‘an irrevocable assignment of
future wages.’’ Id. The General Counsel argues that
the Board properly applied this reasoning to the instant
case and determined that the draw check orders were
not irrevocable assignments of future wages and, thus,
not forbidden under the maritime statute. Id.
The General Counsel further argues that although
the Board was considering the term ‘‘allotment’’ under
46 U.S.C. § 10315, the statutory provision relied on by
the Respondent at the time, the same analysis holds
under 46 U.S.C. § 10502(c) because both statutory pro-
visions are concerned with limiting allotments from
seamen’s wages and neither statutory provision defines
‘‘allotment.’’ The General Counsel concludes that the
Board must adhere to its original Decision and Order
and rely on reasoned judicial authority rather than a
statement of position from a Federal agency that ad-
mittedly does not exercise its enforcement authority
over the content of these shipping articles.6
The Respondent’s statement of position contends
that the Coast Guard’s opinion, that seamen draw
check orders for payment of union dues are prohibited
allotments under Federal maritime law, precludes find-
ing a violation of Section 8(a)(1), (3), and (5) of the
Act. The Respondent argues that the Board may not
substitute its views for those of Congress as explicated
by the Coast Guard, or ‘‘make it impossible for a reg-
ulated entity to conform its behavior to both [the Coast
Guard and NLRB] regimes.’’ New York Shipping Assn.
v. Federal Maritime Commission, 854 F.2d 1338, 1371
(D.C. Cir. 1988), cert. denied 488 U.S. 1041 (1989);
see also Southern Steamship Co. v. NLRB, 316 U.S.
31, 47 (1942). The Respondent requests that the Board
vacate its earlier Order and dismiss the complaint
based on the Coast Guard memoranda.
Having reconsidered our original Decision and
Order in light of the court’s remand, the Coast Guard’s
interpretation of the statutory provisions governing al-
lotments from seamen’s wages, and the parties’ state-
ments of position, we have decided to reverse our
original Decision and Order and dismiss the complaint.
In doing so, we give substantial weight to the interpre-
tation of the Coast Guard.
The Coast Guard has concluded that 46 U.S.C.
§ 10502(c) prohibits allotments for seamen sailing on
coastwise articles, that a draw check order is a form
of allotment, and that the allotment statute remains ef-
fective notwithstanding the abolition of shipping com-
missioners to enforce it. In giving substantial weight to
this interpretation of maritime law received from the
Coast Guard, we are in accord with prior cases finding
that employment in this industry is uniquely subject to
pervasive regulation by Federal maritime statutes, and
that the Act often must be accommodated to those stat-
utes. See, e.g., Southern Steamship Co. v. NLRB, 316
U.S. 31 (1942) (strike on ship at dock in violation of
maritime law unlawful, notwithstanding protections
otherwise afforded by NLRA); U.S. Bulk Carriers v.
Arguelles, 400 U.S. 351 (1971) (employer not entitled
to compel arbitration of seaman’s wage claim pursuant
to collective-bargaining agreement in light of provi-
sions of Federal maritime law granting seamen right to
bring such actions in court). Thus, reaffirming our
original decision ordering the Respondent not to dis-
criminate in its processing of draw check orders nor to
change those procedures unilaterally would require the
Respondent to violate the Coast Guard’s interpretation
of 46 U.S.C. § 10502(c) and be contrary to our accept-
ance of the remand.
568 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
In all these circumstances, we find that the Respond-
ent was permitted to adopt a rule that complied with
Federal maritime law. Accordingly, we find no viola-
tion of the Act. Cf. Murphy Oil USA, 286 NLRB 1039,
1042 (1987); Standard Candy Co., 147 NLRB 1070,
1073 (1964).
ORDER
The complaint is dismissed.