Mid-America Transportation Co.

National Labor Relations Board - Board Decisions

Mar 11, 1963

141 N.L.R.B. 326 (N.L.R.B. 1963)

326 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Mid-America Transportation Company and National Maritime
Union of America , AFL-CIO. Case No. 26-CA-1310. March
11, 1963
DECISION AND ORDER
On November 29, 1962, Trial Examiner Thomas S. Wilson issued
his Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices, and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the attached Inter-
mediate Report. Thereafter, the Respondent filed exceptions to the
Intermediate Report together with a brief in support of these excep-
tions, and the General Counsel filed a brief in support of the Inter-
mediate Report.
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 [Members Leedom, Fanning, and Brown].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in
the case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner as modified herein.'
ORDER
Upon the entire record in the case and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that Respondent, Mid-America Trans-
portation Company, Memphis, Tennessee, and St. Louis, Missouri, its
officers, agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Refusing to bargain collectively with National Maritime TTnion
of America, AFL-CIO, as the exclusive representative of its employees
i In agreement with the Trial Examiner , we find that Respondent failed to comply with
its duty to bargain with the Union in good faith by its adamant insistence that negotia-
tions be conducted only at locations in the State of Tennessee But, as we are not con-
vinced that St. Louis , Missouri, is the only location where negotiations can be conducted
without undue prejudice to the legitimate interests of the parties , we shall modify the
Trial Examiner 's recommended Order by requiring that the Respondent bargain with the
Union , on request , at St. Louis or any other reasonable location.
We also find , as did the Trial Examiner , that Respondent further violated Section
8(a) (1) and ( 5) of the Act by denying authorized union patrolmen the right of access
under reasonable conditions to a vessel on which employees represented by the Union
were employed . We shall remedy this violation by directing that the Respondent, upon
request , grant authorized union patrolmen access to its vessel under reasonable terms
and conditions for the purposes of conferring with the employees in the bargaining unit.
Cf. Richfield Oil Corporation v. N L.R B., 143 F. 2d 860 ( C.A 9). To the extent that
such terms and conditions are bargainable , the bargaining provisions of our Order insure
the Respondent ' s compliance with its bargaining obligations in this respect.
141 NLRB No. 30.
MID-AMTERICA TRANSPORTATION COMPANY 327
in the appropriate unit with respect to wages, rates of pay, hours of
employment, and other terms and conditions of employment, or in
any other manner interfering with the efforts of such Union to bargain
collectively on behalf of such employees. The appropriate bargaining
unit is :
All unlicensed employees of the company's towboat, Eleanor Gor-
don, excluding masters, mates, pilots, chief engineers, assistant engi-
neers, office clerical employees, guards, professional employees, and
supervisors as defined in the Act.
(b) In any like or related manner interfering with, restraining, or
coercing its employees in the exercise of the rights guaranteed in Sec-
tion 7 of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Upon request, bargain collectively in St. Louis, Missouri, or
any other reasonable location, with National Maritime Union of Amer-
ica, AFL-CIO, as the exclusive representative of the employees in
the appropriate unit and embody any understanding which may be
reached in a signed agreement.
(b) Upon request, grant to authorized NMU patrolmen the right
of access to the Eleanor Gordon under reasonable terms and conditions,
for purposes of conferring with employees in the appropriate unit.
(c) Post at its places of business in Memphis, Tennessee, in St.
Louis, Missouri, and aboard the MV Eleanor Gordon, copies of the
attached notice marked "Appendix." Copies of said notice, to be
furnished by the Regional Director for the Twenty-sixth Region,
shall, after they have been duly signed by the authorized representa-
tive of Respondent, be posted by Respondent at the places above men-
tioned immediately upon receipt thereof and be maintained by it for
a period of 60 consecutive days from the date of posting, in conspicuous
places, including all places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondent to insure that
said notices are not altered, defaced, or covered by any other material.
(d) Notify the Regional Director for the Twenty-sixth Region, in
writing, within 10 days from the date of this Order, what steps have
been taken to comply herewith.2
2 In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order."
APPENDIX
NOTICE To ALL EMPLOYEES
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 employees that:
328 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT refuse to bargain collectively with National Mari-
time Union of America, AFL-CIO, as the exclusive representa-
tive of our employees in the appropriate unit described below, or
in any other manner interfere with the efforts of said Union to
bargain collectively on behalf of said employees.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce our employees in the exercise of the rights
guaranteed them in Section 7 of the Act.
WE WILL bargain collectively, in St. Louis, Missouri, or any
other reasonable location, upon request, with the aforesaid Union
as the exclusive bargaining representative of all our employees
in the appropriate unit described below with respect to wages,
rates of pay, hours of employment, and other terms and conditions
of employment and if an understanding is reached, embody such
understanding in a signed agreement. The appropriate unit is :
All unlicensed employees of the company's towboat, Elea-
nor Gordon, excluding masters, mates, pilots, chief engi-
neers, assistant engineers, office clerical employees, guards,
professional employees, and supervisors as defined in the
Act.
WE WILL grant authorized NMU patrolmen a right to board
the Eleanor Gordon under reasonable terms and conditions to
confer with members of the appropriate unit.
MID-AMERICA TRANSPORTATION COMPANY,
Employer.
Dated---------------- By-------------------------------------
(Representative ) (Title)
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.
Employees may communicate directly with the Board's Regional
Office, Falls Building, 22 North Front Street, Memphis, Tennessee,
Telephone No. Jackson 7-5451, if they have any question concerning
this notice or compliance with its provisions.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Upon a charge filed on June 8, 1962, by National Maritime Union of America,
AFL-CIO, hereinafter called the Union, or NMU the General Counsel of the
National Labor Relations Board, hereinafter called the General Counsel1 and
the Board respectively , by the Regional Director for the Twenty-sixth Region
(Memphis, Tennessee ), issued his complaint dated August 3, 1962 , against Mid-
America Transportation Company, herein called the Respondent . The complaint
alleges that Respondent had engaged in, and was engaging in, unfair labor practices
affecting commerce within the meaning of Section 8(a) (1) and (5) and Section 2(6)
and (7) of the Labor Management Relations Act, 1947, as amended , herein called
1 This term specifically includes the attorney appearing for the General Counsel.
MID-AMERICA TRANSPORTATION COMPANY 329
the Act. Copies of the charge, the complaint and notice of hearing thereon were duly
served upon the Union and Respondent.
Respondent duly filed its answer admitting certain allegations of the complaint
but denying the commission of any unfair labor practices.
Pursuant to notice, a hearing thereon 2 was held at Memphis, Tennessee, on Octo-
ber 1 and 2, 1962, before Trial Examiner Thomas S. Wilson. All parties appeared at
the hearing, were represented by counsel and afforded full opportunity to be heard,
to produce, examine and cross-examine witnesses, to introduce evidence material and
pertinent to the issues, and were advised of their right to argue orally upon the
record and to file briefs and proposed findings and conclusions or both. Oral
argument was waived. Briefs were received from each of the parties on Novem-
ber 13, 1962.
Upon the entire record in the case and from his observation of the witnesses, the
Trial Examiner makes the following:
FINDINGS OF FACT
1. BUSINESS OF RESPONDENT
Mid-America Transportation Company is now, and has been at all times
material herein, a Tennessee corporation engaged in contract carriage of bulk com-
modities on inland waterways between and through various States of the United States.
It maintains a corporate office in Memphis, Tennessee, and its "fiscal office" in St.
Louis, Missouri. During the past 12 months, Respondent derived gross revenue in
excess of $50,000 for services performed for the interstate transportation of goods
between various States of the United States.
The complaint alleges, the answer admits, and the Trial Examiner finds that
Respondent is engaged in commerce within the meaning of the Act.
II. THE UNION INVOLVED
National Maritime Union of America, AFL-CIO, is a labor organization
admitting to membership the employees of Respondent.
III. THE UNFAIR LABOR PRACTICES
A. The facts
As of September 12, 1957, Respondent and the Union had negotiated and executed
in Nashville, Tennessee, a 4-year agreement covering all unlicensed employees of
Respondent on vessels owned, chartered, and operated by Respondent which, in this
case, amounted to the MV Eleanor Gordon.
2 On May 29, 1962 , Respondent filed a refusal-to-bargain charge against N31U in this
matter with the Board's Twenty-sixth Regional Office in Memphis, Tennessee, which was
docketed-and subsequently on August 22, 1962, administratively dismissed-as Case
No. 26-CB-192.
On June 8, 1962 , NMU filed its refusal-to-bargain charge against Respondent in the
Board's Fourteenth Regional Office in St . Louis, Missouri, which was there docketed as
Case No. 14-CA-2800.
On June 11, 1962, V. Lee McMahon, as attorney for Respondent, wrote the Regional
Office in St. Louis complaining that "out of courtesy to the Board" the Union should
have forwarded its charge to the Memphis Regional Office, accusing NMU of a "spite
filing," and concluding "it seems appropriate that this charge filed by the Union should
be forwarded and transferred to the Memphis office for consolidation" with Respondent's
charge.
By letter dated June 25, 1962, the General Counsel in Washington, D C, ordered Case
No. 14-CA-2800 transferred to the Twenty-sixth Regional Office in Memphis, Tennessee,
and docketed there as Case No. 26-CA-1310, the present case.
On August 13, 1962, Respondent filed its answer in Case No. 26-CA-1310 without objec-
tion to such transfer.
However, at the commencement of the present hearing in Memphis, Tennessee, on
October 1, 1962, in Case No . 26-CA-1310, Respondent made the following objection to the
introduction of the formal papers herein: ". . . we are going to object to any of the
Fourteenth Regional papers being introduced unless this letter [Respondent's June 11,
1962, letter referred to above] Is introduced along with It."
The objection was overruled.
Subsequently, the June 11 letter referred to was admitted in evidence.
330 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Article I, section 2, of this agreement provided as follows:
SEC. 2. The Company agrees to permit only accredited representatives of the
Union to board its vessels in any port at any time, for the purpose of carrying on
legitimate union activities. The Union agrees to cooperate in the conduct of
union activities aboard the boats, in order that such activities may not interfere
with normal operations of vessels or proper supervision by the master.
This agreement also contained the following section regarding insurance:
SEC. 4. The Union shall take out insurance mutually satisfactory to the
Company and the Union which will protect the Company and its agents, char-
terer, operator, and subsidiary of affiliated companies for any claim, loss, damage,
or liability for loss of life, or injury occurring to a representative of the Union
while on the property or aboard any vessels owned, chartered or leased by the
Company.
At all times material here the Union has had such a blanket insurance policy with
limits of $25,000/$50,000 covering all companies and ships under contract with
NMU, such as Respondent here.
So far as this record shows, things went well under this contract until May 9,
1961. During this period NMU patrolmen regularly visited the Eleanor Gordon
and, in fact, were "welcomed" aboard by the master and the crew at any place in
the river where boarding was possible. On one occasion, at least, such a patrolman
remained aboard the Eleanor Gordon for a 10-hour stretch while the boat plied
between two points in the Mississippi River.
Among other changes made in or about the fall of 1960 was a change in the
corporate structure of Respondent making the same into a Tennessee corporation
rather than the Delaware corporation which it had been previously. In addition
about the same time a change in the home port of the Eleanor Gordon was made from
Wilmington, Delaware, to Memphis, Tennessee.
On May 10, 1961, the Union received the following letter over the signature of
W. G. Heckman, manager insurance department:
MID-AMERICA TRANSPORTATION COMPANY
Fiscal Office: 301 Olive Street
St. Louis 2, Missouri
NATIONAL MARINE UNION OF AMERICA,
2031/2 North 7th Street,
St. Louis 1, Missouri.
MAY 9, 1961.
GENTLEMEN: In my position as manager of insurance for Mid-America Trans-
portation Company, I have advised Operations that no employee of a union
should be permitted to board Mid-America Transportation Company vessels, at
any place, or for any reason, until such time as they have provided Mid-
America Transportation Company with a certificate of insurance covering
accidents of authorized representatives of their particular union.
Limits of this public liability policy should be in the amounts of $100,000/
$300,000 bodily injury. The certificate of insurance should indicate that Mid-
America Transportation Company will not be liable for injuries to such union
representatives while on board.
By letter dated May 25, 1961, the Union notified Respondent that Respondent's
unilateral demand for insurance with such limitations amounted to a violation of the
terms of the existing contract between them.
By letter on the same letterhead dated June 26, 1961, Respondent over the signa-
ture of Noble L. Gordon, president, gave the Union notice of its desire to terminate
the agreement dated September 12, 1957.
That agreement terminated by its own terms on September 12, 1961.
On February 19, 1962, the Board conducted a secret ballot election among "all
unlicensed employees of the Employer's towboat, Eleanor Gordon, excluding mas-
ters, mates, pilots, chief engineers, assistant engineers, office clerical employees,
guards, professional employees, and supervisors," the admitted appropriate unit. As
a result of this election, the Regional Director for the Fourteenth Region certified
NMU as the exclusive collective-bargaining representative of the employees in said
unit.
Sometime in March 1962, but prior to March 23, NMU Port Agent William
Trussa telephoned Respondent at its St. Louis office and requested that negotiations
for a contract covering the employees in the appropriate unit aboard the Eleanor
MID-AMERICA TRANSPORTATION COMPANY 331
Gordon begin. As President Gordon was not available at this time, Trussa left such
a message.
The answer to this request came in the form of a letter from the office of Attor-
neys McMahon and Zempel in St. Louis, Missouri, dated March 23, 1962, which
read as follows:
As labor counsel for Mid-America Transportation Company, we have been
advised of your call to their fiscal office here in St. Louis.
This is to advise you that all labor negotiations are handled by Mr. Thomas
Kirkpatrick, General manager of the Company, who can be reached at their
general offices at 1112 Union Planters Bank Building, Memphis, Tennessee.
All communications concerning labor contract matters should be addressed
to him at that address.
In accordance with this information, Trussa, by letter dated March 28, 1962, to
Thomas Kirkpatrick in Memphis , Tennessee, renewed his request that negotiations
begin. On April 3, Kirkpatrick answered 3 that he was going on vacation until
April 22, but would be glad to meet with NMU "on any day during the week of
April 23 to 28, in Memphis."
On April 9, Trussa suggested on the grounds of the convenience of the parties and
economy that the meeting be held at the Mark Twain Hotel, St. Louis.
Two weeks later, on April 23, 1962, Kirkpatrick answered this letter as follows:
Your letter of April 9, came to my attention upon my return today from
vacation.
My counsel's advice is that under the National Labor Relations Board prece-
dent where attorney's offices are located and where the Union does business is
not paramount. He advises that the cases indicate that bargaining negotiations
should take place where the plant is located and where the controversy exists.
Since our operation is mobile, and we are unable to hold negotiations on the
boat, we must select a convenient location.
We are a Tennessee corporation with principal offices in Memphis, and I am
in charge of operations and labor relations including the bargaining, and at all
times have to be available to the employees and the operations of the Company.
Therefore, we have suggested Memphis as a central location. I am not located
in St. Louis, and it would be extremely inconvenient to me and would work a
hardship on the company operations for me to have to bargain in St. Louis.
Memphis is not only near the center of our operations, but most of our
employees live in the Tennessee-Kentucky area. All these factors were recog-
nized by the National Labor Relations Board when it held the election in
Paducah, Kentucky.
Since you have raised the question of cost, we will provide facilities in
Memphis, Tennessee, at no cost to the Union.
From your letter we are unable to determine whether it was your intention
to suggest a meeting on April 30 or May 3.
We are available on May 3, and suggest a meeting in the Conference Room
at the Holiday Inn, Memphis, Tennessee, at 2:00 p.m. Please confirm this date
and if that was not your intention, please give us a range of dates to select in
keeping with our commitments.
On May 14, Trussa wrote Kirkpatrick that "we consider the Company 's adamant
insistence on meeting in Memphis, Tennessee, for the purpose of negotiations a de-
liberate attempt to put obstacles in the path of reaching a collective-bargaining agree-
ment." After reiterating his belief that St. Louis was "the most practical and accessi-
ble locale" for the negotiations, Trussa suggested "as a compromise" that the
negotiations take place at Paducah, Kentucky, where the Board had conducted the
representative election on February 19.
The letterhead on this and all subsequent letters by Respondent read as follows:
MID-AMERICAN TRANSPORTATION COMPANY
1112 Union Planters Bank Building
Mailing Address : P.O. Box 75
Memphis 1, Tennessee
JAckson 5-5353
The address listed proved to be an office of Peabody Coal Company as did the telephone
number. However, the Mid-America name did appear in a subsidiary location on the
office door.
332 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On May 21, 1962, Kirkpatrick replied in pertinent part as follows:
With reference to your letter of May 14, 1962, we fail to see bow the Com-
pany's desire to meet with you in Memphis, where we maintain our general
office, and in the State of our incorporation is more of an obstacle to collective-
bargaining than your absolute refusal to meet with us there.
Contrary to your analysis of our situation, St. Louis is not "the most practical
and accessible locale" for our Company to meet with you. It so happens that
as general manager of the Company, in charge of labor relations, my work
rarely requires me to be in St. Louis. The location of our attorneys has nothing
to do with the matter of convenience for the Company because they are em-
ployed to work at our convenience. If you expect to have any of the employees
present during the negotiating sessions , Memphis will be more centrally located
and readily accessible to the crew members than will St. Louis. After all, the
Union as well as the Company, should be interested in the individual employees.
The only justification for your suggestion of Paducah, Kentucky, as a meeting
place is that it is located about half way between Memphis and St. Louis. We
do not transact business in the State of Kentucky, and are in no position to enter
into any negotiations or contracts in that State . . . .
If for some reason you are adamant about not meeting with us in Memphis,
you may select any other point in Tennessee, and we will meet with you in the
place of your selection on May 28 .
We await your selection of a city in Tennessee and will hold May 28 avail-
able until we hear from you. [Emphasis supplied.]
Trussa's answer of May 28, 1962, was short and to the point:
We will not be meeting with you on May 28, 1962, and we will take appro-
priate action in view of your refusal to meet in any location except in the State
of Tennessee.
On May 29, 1962, as noted heretofore, Respondent filed refusal-to-bargain
charges against NMU in the Board's Regional Office in Memphis.
The Union filed charges of refusing to bargain against Respondent on June 8,
1962, in the Board's Regional Office in St. Louis.
While that ended all correspondence in regard to bargaining, in the meantime on
May 11, 1962, union patrolman Lloyd Tungent was refused access to the Eleanor
Gordon at lock and dam No. 27 at Granite City, Illinois, on orders of the master.
This set off a new phase of the correspondence.
On May 15 Trussa wrote Kirkpatrick as follows
On May 11, 1962, our representative endeavored to board the M/V Eleanor
Gordon for the purpose of conferring with nonsupervisory employees, off
watch, who we represent
The captain refused to permit our representative to board the boat.
I am calling your attention to this because I am sure you are not aware of
your agent's denying your employees the opportunity of conferring with their
bargaining representative while off watch.
Please reply immediately as to what steps you are taking to correct your
agent 's unfair practice.
Kirkpatrick answered on May 24 as follows:
We have your letter of May 15, 1962.
In order for your representatives to board the M/V Eleanor Gordon it is
necessary that you first obtain a pass issued by myself.
For your information, there are certain requirements that you will neces-
sarily meet before the pass is issued.
If you find that you are interested in a pass, be assured we will be happy
to advise you of the requirements.
After Trussa had expressed interest in obtaining such passes on June 4, Kirk-
patrick informed him on June 15 as follows:
This is with reference to your letter of June 4, 1962, concerning your represen-
tatives boarding our boat for the purpose of conferring with members of your
union.
In order for us to issue a pass to your representatives, we would require, on
advice of our insurance underwriters, a certified copy of an insurance policy
covering our company for death or bodily injury to the union representatives
in amounts of not less than $300,000 for each person and $500,000 for each
accident in American companies satisfactory to Mid-America.
MID-AMERICA TRANSPORTATION COMPANY 333
Also, we will need an agreement from your union, indemnifying Mid-America
Transportation Company, its agents, charterers, operators, subsidiaries or affil-
iated companies, underwriters, vessels, and owners of any vessel for which the
indemnified parties, or any of them act as agent, from and against any claim,
loss, damage or liability for loss of life, bodily injury or damage caused to
property, including that of Mid-America, or any of the other indemnified parties,
caused by the representatives of the Union while on our property or aboard
any vessel owned, operated, chartered or leased by any of the indemnified
parties.
Also, on advice of our underwriters, visits of your representatives shall be
limited to times when the vessel is in port and is not moving barges or otherwise
operating.
Upon receipt of certified copy of proper insurance policies the indemnity
agreement signed by duly authorized union officers, and the name or names of
your representatives you wish to have a pass, we shall be glad to issue a pass
to not more than two representatives to board our vessels .4
On June 11, 1962, at lock and dam No. 26, at Alton, Illinois, NMU patrolman
Barry Wilson asked permission of the master of the MV Eleanor Gordon for per-
mission to come aboard and talk to the crew members. The captain refused such
permission saying that Wilson "would have to call the St. Louis office to get per-
mission to come aboard the Eleanor Gordon."
B. Conclusions
There are in this case only two issues : (1) whether Respondent's adamant-and
it was adamant-refusal to meet for the purpose of negotiations at any place but in
the State of Tennessee constituted a refusal to bargain; (2) whether Respondent's
unilateral changing of the insurance requirements and the requirement of passes in
order to gain access to the MV Eleanor Gordon also amounted to a refusal to bargain
as well as interference , restraint, and coercion.
Upon the certification of NMU as the exclusive representative of the unlicensed
personnel on board the Eleanor Gordon on February 28, 1962, it became incumbent
on Respondent to "meet at reasonable times and confer in good faith" with NMU
upon request. Admittedly that request was made early in March 1962 only to be
met with Attorney McMahan's note that such request had to be made to Kirkpatrick
in Memphis, Tennessee. This little requirement delayed negotiations for a month.
Then upon "counsel's advice" Kirkpatrick, acknowledging that "a convenient loca-
tion ," exclusive of the motor vessel, must be selected for the negotiations, insisted
that such convenient location could only be found in the State of Tennessee. Respond-
ent's brief describes Kirkpatrick's reasoning as follows:
He gave the following reasons why the meeting should be held in Memphis:
(1) that normally bargaining negotiations should take place where the plant
is located and where the controversy exists, but since the operation of a towboat
is a mobile operation, the location should be a convenient one; (2) that the
Respondent is a Tennessee corporation with its principal office in Memphis;
(3) that Kirkpatrick as general manager is in charge of operations and labor
relations including bargaining, and at all times has to be available to the
employees and operations of the Company; (4) that Kirkpatrick is not located
in St. Louis, and it would be extremely inconvenient for him to have to bargain
in St. Louis; and (5) that Memphis is not only near the center of the Company's
operations, but most of the employees reside in the Tennessee-Kentucky area.
On May 14, 1962, Trussa addressed a letter to Respondent at Memphis insist-
ing that St. Louis was the most practical and accessible locale for both sides
for the conduct of negotiations, but proposing "a compromise meeting place"
of Paducah, Kentucky.
The next episode in the correspondence was a letter dated May 21, 1962,
from Kirkpatrick to Trussa denying Trussa's contention that St. Louis was
"the most practical and accessible locale" for the meeting. Kirkpatrick said in
his letter that Memphis would be more readily accessible to the crew members
than St. Louis, that the Respondent does not transact business in the State of
Kentucky and is in no position to enter any negotiations or contracts in that
`During the happier period of relations between the Union and Respondent prior to
May 9, 1961, union patrolmen had been welcomed aboard MV Eleanor Gordon without
the necessity of passes and solely on the strength of the $25,000/$50,000 Insurance policy
mentioned heretofore.
334 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
State, and that transportation in and out of Paducah was very poor. Kirkpatrick
then offered to meet any place in Tennessee on May 28, and suggested Nashville
since that was where the last contract between the Respondent and the Union
was negotiated.
Of the arguments thus put forth by Kirkpatrick, after advising with his attorneys,
only item No. 1 is accurate and true.
As to item No. 2 it is true that Respondent refers in its correspondence to the
office in Memphis as its "principal" office and that in St. Louis as its "fiscal" office.
The evidence, however, disclosed that the Respondent's so-called "principal" office
in Memphis consisted in the main, if not entirely, of the name of Mid-America in a
subsidiary position on the door of a small Peabody Coal Company office and a tele-
phone listing in the telephone directory. When this number was called, the answering
telephone operator announced "Peabody Coal Company" and appeared unfamiliar
with the names of Respondent's personnel.
On the other hand, Respondent's so-called "fiscal" office in St. Louis is exclusively
that of Respondent separate and distinct from Peabody Coal Company. It is also
about twice the size of the combined office in Memphis. It is from this St. Louis
"fiscal" office that the Eleanor Gordon is dispatched and receives its daily orders and
to which she reports daily. It is also the St. Louis office which receives the payroll
records and pays the employees. The record further shows that insurance matters
are handled in the St. Louis office where Insurance Department Manager Heckman
has his office.
Respondent's President Noble L. Gordon, and Capt. W. P. Fouts, Respondent's
dispatcher, as well as Heckman, reside in St. Louis whereas the record shows that
General Manager Kirkpatrick and Respondent's Port Engineer 5 Collins reside in
Paducah, Kentucky. The map of the United States indicates that neither St Louis
nor Paducah is within daily commuting distance of Respondent's "principal" office.
Respondent refused to respond to General Counsel's subpena requesting "the
names, address, title and duty to all employees and officers" of Respondent working
in the Memphis and in the St. Louis office on the somewhat astounding ground that
Respondent "does not have any books, records, correspondence and documents"
showing that information. Nor did Respondent produce any such evidence. Con-
sequently this record does not show a single employee or officer of Respondent who
works in the Memphis office.
Under these circumstances, the Trial Examiner has no hesitation in finding that,
although Respondent is a Tennessee corporation and thus maintains an office in the
State, its main, or "principal," office is located in St. Louis, Missouri.
As to item No 3, Kirkpatrick signs his letters as Respondent's general manager and
Attorney McMahan is on record as stating that Kirkpatrick is in charge of labor
relations. He also did execute the September 12, 1957, bargaining agreement with
NMU. No doubt Kirkpatrick has to be "available to the employees and operations
of the Company." But he would be just as "available" to both in St. Louis as he
would be in Memphis-perhaps more so. This is particularly so in view of the
location of his residence.
As to item No. 4, it is true that Kirkpatrick is not located in St. Louis and no doubt
it would be "inconvenient" for him to bargain there. On this question of convenience
there can be no doubt but that the convenience of everybody else involved in the
negotiations between Respondent and NMU, except that of Kirkpatrick perhaps,
would have been best served by meeting in St. Louis where all the others, including
Respondent's firm of attorneys, were located and where Respondent had its records.
As to item No. 5, contrary to Kirkpatrick, Memphis is not the "center" of the
operations of the Eleanor Gordon. The evidence shows without contradiction that
during the 8 months of the year when the upper Mississippi River is free of ice MV
Eleanor Gordon plied from the Peabody Coal Company dock in St. Louis to the
St. Paul-Minneapolis area with barges of Peabody Coal Company coal and returned
to the Peabody dock in St. Louis with barges loaded with grain. During the other
4 months of the year the evidence showed that the Eleanor Gordon plied between
the Peabody dock in St. Louis and Uniontown, Kentucky, and Green River carrying
coal except for five or six trips it made from the Peabody dock in St. Louis to
Myrtle Grove, Louisiana, and return So far as this record shows these last trips
are the only times that MV Eleanor Gordon even so much as passed Memphis, with
or without stopping, during the past 3 years. Obviously the center of the Eleanor
Gordon's activities was not Memphis or within over 100 miles of Memphis. On the
other hand, St. Louis was such center for it was from St. Louis that the Eleanor
5 Incorrectly described in the transcript as "report engineer."
MID-AMERICA TRANSPORTATION COMPANY 335
Gordon was dispatched , and received all its orders, it was St. Louis to which the
vessel reported , it was from St. Louis that the employees ' payroll records were kept
and the employees paid , and it was in St. Louis that the records including insurance of
the motor vessel were kept. Any reasonable man, not intent on bargaining only in
the State of Tennessee , would recognize St. Louis as the "most practical and accessible
locale" in which to conduct negotiations regarding the appropriate unit involved
here-despite its slight inconvenience for Kirkpatrick personally.
As for the new item introduced in Kirkpatrick's letter of May 21 that "Respondent
does not transact business in the State of Kentucky and is in no position to enter
into negotiations or contracts in that State ," Kirkpatrick must have dreamed this
one up as no respectable lawyer would have so advised him. Perhaps Kirkpatrick
had forgotten the fact that, while Respondent was a Delaware corporation, it had
successfully negotiated its September 12, 1957, contract with NMU in Nashville,
Tennessee.
It is also worthy of note that Kirkpatrick should use such specious reasoning in
order to reject Padacuh , Kentucky, as a compromise place for the negotiations, when
Paducah is where he himself lived and was thus most convenient for him.
Where an employer and the bargaining agent of its employees conduct the negotia-
tions for a labor agreement actually is a matter of little or no moment . The impor-
tant element is that the two parties sit down as reasonable men with the intent and
desire to arrive at a mutually agreeable contract. The locale, of course, should
be the most convenient and economical for all concerned and where records necessary
for the negotiations are readily available.
It is quite obvious that Respondent here was motivated by no such interest. It
is noteworthy that even before his first letter regarding negotiations to Trussa,
Kirkpatrick determined , upon advice of counsel , to conduct such negotiations only
in the State of Tennessee . As noted heretofore even with the advice of able counsel
Respondent was unable to advance one logical-or accurate-reason to sustain its
argument on a point so unimportant that it should never have been raised except
for the purposes of delay or, perhaps, to secure whatever advantage might be con-
sidered available to Respondent from the Tennessee so-called right-to-work law.
A reasonable man intent and desirous of reaching a mutually satisfactory labor
agreement would have seen that convenience and economy dictated St. Louis as
the location of such negotiations if for no other reason than that Respondent's so-
called fiscal office there housed records of the Respondent important to the negotia-
tions as well as the fact that only one man , Kirkpatrick himself, would have had to
travel to reach the bargaining table.
Respondent 's intransigence on this point continued even at the hearing when counsel
for Respondent refused to respond to a Board subpena requesting the names , titles,
and duties of Respondent 's employees in its Memphis and in its St. Louis offices as
well as the "schedule or itinerary" of the Eleanor Gordon from 1960 to date on
counsel 's truly amazing statement that Respondent had no such records. If true,
Respondent is not only a unique organization but also in violation of several other
statutes of the United States.
Under the circumstances here, the Trial Examiner is constrained to find that
Respondent's insistence that bargaining with NMU take place only in the State of
Tennessee was advanced by Respondent as a stratagem to delay or prevent bargaining,
proved Respondent 's bad faith and convicted Respondent of refusing to bargain
with NMU as the exclusive representative of the employees in the appropriate unit
in violation of Section 8(a) (5) and (1) of the Act.
That brings this discussion to the second issue, to wit , whether Respondent's uni-
lateral refusal of access to the Eleanor Gordon to NMU patrolmen and the condi-
tioning of such access upon issuance of greater insurance coverage , allegedly because
of claimed Jones Act liability, and the other conditions unilaterally set by Respondent
also violated Section 8 (a)(5) and (1) of the Act.
The undisputed facts show that the blanket insurance policy with $25,000/$50,000
liability limits has for years proved satisfactory to all shipping companies dealing
with NMU for the granting of access to their vessels to NMU patrolmen . In fact it
had been satisfactory to this Respondent-until May 9, 1961 , some 6 months prior
to the expiration of the then existing agreement between Respondent and NMU. In
addition it is undisputed that in all the years this blanket policy has been in existence
there has never been a recovery made thereon or , as a matter of fact , a claim made
under that policy.
Yet, Respondent here has now demanded as of May 24, 1962, that NMU provide
insurance with $ 100,000/$300,000 liability limits in order for its patrolmen to qualify
for permission to board the Eleanor Gordon "when in port and not operating." It is
of further significance that Respondent with its one vessel valued at something less
336 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
than $1,000,000 should be requiring 12 times the insurance coverage required by
any other shipping company, one of whom, at least, the United States Lines, has one
vessel, SS United States, to which NMU patrolmen have access, valued at more than
65 times that of the Eleanor Gordon. In view of the number of shipping companies
together with the value of their ships which are satisfied with the $25,000/$50,000
insurance limits together with the experience under that blanket insurance policy, it
would seem that Respondent here is making both an unreasonable and unnecessary
demand. In fact the demand is so unreasonable and so unnecessary as to lead to
the conclusion that, like the requirement that bargaining be carried on only in the
State of Tennessee, Respondent's ulterior motive therein is to hinder, if not prevent,
bargaining.
Respondent implied throughout the hearing that the increased liability limits were
necessitated by the increasing size of recoveries under the Jones Act. The one thing
Respondent failed to do-or attempt to do-was to show the applicability of the
Jones Act to NMU patrolmen. That applicability is highly doubtful.
In an effort to justify its position Respondent produced a letter dated May 21, 1962,
on the letterhead of "Neare, Gibbs & Co., River Marine Underwriters" over the
signature of one "Harry M. Mack, President," answering an inquiry of May 16 by
Respondent, which advocated the requirement of insurance with $300,000/$500,000
limits covering the union patrolmen visiting the vessel. The reasoning behind this
opinion is so generalized as to warrant the characterization of nebulous. The
Jones Act is not even mentioned. The author thereof was not called to identify his
work and therefore could not be subjected to cross-examination in regard thereto.
Instead Respondent called Paul Zempel, of counsel for Respondent, who identified
Mack's signature and testified further that he had had this letter before him while
assisting Kirkpatrick draft his letter of June 15, 1962, to NMU in which insurance
with $300,000/$500,000 limits was demanded as a condition to the issuances of
passes to patrolmen.
But it was on May 11, 1962, that Respondent first refused patrolman Lloyd
Tunget access to the Eleanor Gordon and, therefore, some 5 days prior to Respond-
ent's first inquiry of its insurance broker which was made on May 16, the very day
Respondent received NMU's letter of May 15 objecting to such refusal. Conse-
quently Respondent's refusal of access could not have stemmed from advice from
its insurance brokers In fact the dates of the correspondence clearly indicate that the
Neare, Gibbs & Co. letter's was nothing more than an afterthought and attempt to
justify the prior refusal of access which had been made theretofore for other reasons.
Under all the circumstances here the unilaterally made conditions and restrictions
upon the right of access of NMU patrolmen to the crew upon the Eleanor Gordon,
a right long and well established in the law, appeared to have been created by Re-
spondent as one more maneuver or machination in order to hinder and/or prevent
collective bargaining as required by law. Preventing the bargaining representative
from conferring with its members in the appropriate unit must necessarily either
hamper or completely prevent bargaining. As such this maneuver or machination
constitutes a refusal to bargain in violation of Section 8(a)(5) and (1) of the Act.
The Trial Examiner so finds
By refusing to bargain with the Union as herein found, Respondent has interfered
with, restrained, and coerced employees in the exercise of the rights guaranteed to
them in the Act in violation of Section 8(a) (1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with the operations of the Respondent described in section I, 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 and obstructing com-
merce and the free flow of commerce.
6 On May 9, 1961, Heckman had ordered that patrolmen be denied access until insurance
with $100,000/$300,000 was provided. There is no showing that this was done on advice
of the Insurance brokers.
7It must be noted that Zempel was also attorney for Neare, Gibbs & Co. trying their
Jones Act cases. He testified he did not assist in the preparation of the May 21 letter.
Zempel was also Respondent's only witness which recalls the apocryphal story of the
accused awaiting trial who telegraphed his attorney: "Come defend me and bring your
own witnesses " See Canon 19 of the "A B A Canons of Professional Ethics" and
Vanderbilt Products, Inc. v. N.L.RB, 297 F. 2d 833 (C.A. 2).
METROPOLITAN LIFE INSURANCE COMPANY
V. THE REMEDY
337
Having found that the Respondent has engaged in certain unfair labor practices, I
shall recommend that it cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.
The Trial Examiner has found that the Respondent has refused to bargain with
the Union as the exclusive representative of the employees in the appropriate unit.
It will therefore be recommended that, upon request, Respondent bargain collectively
with the Union as the exclusive representative of its employees in the appropriate
unit and that such bargaining take place in St. Louis, Missouri. If an understanding
is reached, such understanding is to be embodied in a signed agreement. Further,
Respondent is to grant to authorized NMU patrolmen access to the Eleanor Gordon
under the same blanket insurance policy with limits of $25,000/$50,000, as has
proved satisfactory to all other shipping companies with agreements with NMU.
Upon the basis of the above findings of fact, and upon the entire record in the
case, the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. Mid-America Transportation Company is an employer within the meaning of
Section 2(2) of the Act, and is engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. National Maritime Union of America, AFL-CIO, is a labor organization within
the meaning of Section 2 (5) of the Act.
3. All unlicensed employees of Respondent's towboat, Eleanor Gordon, excluding
masters, mates, pilots, chief engineers, assistant engineers, office clerical employees,
guards, professional employees, and supervisors as defined in the Act constitute a unit
appropriate for the purposes of collective bargaining within the meaning of Section
9(b) of the Act.
4. On February 28, 1962, and at all times material thereafter, NMU was and now
is the exclusive representative of Respondent's employees in the said appropriate unit
for the purpose of collective bargaining within the meaning of Section 9(a) of the
Act.
5. By its adamant insistence on and after April 3, 1962, that negotiations between
Respondent and NMU take place only in the State of Tennessee and by insisting upon
unnecessary and unreasonable conditions for granting permission to union patrol-
men to board the Eleanor Gordon on and after May 11, 1962, Respondent has re-
fused to bargain with the Union as the exclusive representative of all its employees
in the above-described appropriate unit, and has engaged in and is engaging in unfair
labor practices within the meaning of Section 8(a)(5) of the Act.
6. By the conduct described in paragraph 5, above, Respondent has interfered
with, restrained, and coerced its employees in the exercise of the rights guaranteed
in Section 7 of the Act, and has thereby engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a) (1) of the Act.
7. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommended Order omitted from publication.]
Metropolitan Life Insurance Company and Insurance Workers
International Union , AFL-CIO. Case No. 4-CA.-2769. March
11, 1963
DECISION AND ORDER
On January 7, 1963, Trial Examiner Samuel M. Singer issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices, and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the attached Inter-
141 NLRB No. 37.