Mississippi Valley Barge Line Co.

National Labor Relations Board - Board Decisions

Mar 15, 1965

151 N.L.R.B. 676 (N.L.R.B. 1965)

676 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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, 1200
Rialto Building, 906 Grand Avenue, Kansas City, Missouri , Telephone No. Baltimore
1-7000, Extension 731 if they have any question concerning this notice or compliance
with its provisions.
Mississippi Valley Barge Line Co. and District 2, Marine Engi-
neers Beneficial Association , AFL-CIO and Marine Officers' As-
sociation , Party to the Contract . Case No. 14-CA-3017 (for-
merly Case No. 13-CA-5480). March 15, 1965
DECISION AND ORDER
On July 9 1964, Trial Examiner Thomas S. Wilson issued his
Decision in the above-entitled proceeding, finding that Respondent
had engaged in and was engaging in certain unfair labor practices
alleged in the complaint and recommending that it cease and desist
therefrom and take certain affirmative action, as set forth in the
attached Trial Examiner's Decision. The Respondent and the
Party to the Contract filed exceptions and supporting briefs. The
Charging Party filed cross-exceptions and a brief in support
thereof, and the General Counsel and the Charging Party both filed
answering briefs.
The National Labor Relations Board 1 has reviewed the rulings
of the Trial Examiner made at the hearing and finds that no prej-
udicial error was committed. The rulings are hereby affirmed. The
Board has considered the Trial Examiner's Decision, the exceptions
and briefs, and the entire record in the case, and hereby adopts
the findings, conclusions , and recommendations of the Trial Exam-
iner only to the extent consistent with this Decision and Order.
The complaint alleges that Respondent violated Section 8(a) (3)
and (1) by interrogating and subsequently discharging certain
of its chief and assistant engineers who favored representation by
District 2, Marine Engineers Beneficial Association (MEBA) when
the Respondent had recognized the Marine Officers' Association
(MOA). It further alleged that the Respondent had rendered
illegal assistance to MOA through the coercion of the MEBA
engineers in violation of Section 8(a) (2). Both the Respondent
and MOA contend that both the chief and the assistant engineers
are supervisors , are not protected by the Act, and, therefore, that
no violations of the Act have occurred.
The Trial Examiner found that the assistant engineers were not
supervisors and indicated that but for a stipulation that the chief
'Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as
amended, the Board has delegated its powers in connection with this case to a three-
member panel [ Chairman McCulloch and Members Fanning and Brown].
151 NLRB No. 74.
MISSISSIPPI VALLEY BARGE LINE CO. 677
engineers were supervisors he would have found them to be employ-
ees under the Act too. We do not agree.
Respondent, Mississippi Valley Barge Line, operates towboats
and barges on the Mississippi, Ohio, and Illinois Rivers as a
common carrier. It operates up to nineteen 2-screw towboats
which range in size from 1,000 to 6,000 horsepower and in value
from $300,000 to $2,000,000 (60 percent of the value of the boat is
its engines). The crew of each of these towboats consists of a
master-pilot (the captain), a pilot, two mates, two engineers, six
deckhands, two strikers (or oilers), a cook, and a waiter-utility
man.
The two engineers work alternate 6-hour shifts, the chief's being
6 a.m. to noon and 6 p.m. to midnight. Each has a single striker
working for him who checks gauges on machines and records the
readings on the engineroom log, oils machinery, mops oil spots,
and cleans the walls of the engineroom. The engineers, in addition
to checking the machinery, are responsible for preventive mainte-
nance and repairs when the ship is underway. The engineers are
also responsible for the water purification and the firefighting
systems.
The authority of the engineers over the strikers was the sub-
ject of extensive testimony before the Trial Examiner. One engi-
neer testified that he had been told by management when he was
hired that he had authority to discipline or discharge a striker.
The other engineers who testified, both on behalf of the Respondent
and of the Charging Party, MEBA, indicated that although they
had never been specifically told that they had authority to dis-
charge a striker, they assumed that they did and acted accordingly.
Record testimony also indicates that at least four assistant engi-
neers and a number of chief engineers had at one time or another
discharged a striker. In addition, it is undisputed that the engi-
neers on watch have authority to authorize overtime and penalty
pay, to require a striker to undertake extra duties, and to call an
off-watch striker back on duty. The watch engineer also tells
the captain what to write on the striker's efficiency report at the
-end of each tour of duty, and the engineers are able either to refuse
the assignment of a striker to their watch or to request a striker's
replacement at any time. Although none of these indicia of author-
ity is frequently exercised, the Respondent has never indicated that
it disapproved of the engineers' exercise of such authority, but
on the contrary has always upheld the engineers.2
2 The Trial Examiner pointed out that certain of the discharged strikers were sub-
sequently rehired by the Respondent and even reappeared on the same boats, thereby
implying that the discharge was merely a temporary reassignment There is no record
evidence to support such a conclusion.
678 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Section 2(11) of the Act states :
The term "supervisor" means any individual having authority,
in the interest of the employer, to hire, transfer, suspend, lay
off, recall, promote, discharge, assign, reward, or discipline
other employees, or responsibly to direct them, or to adjust
their grievances, or effectively to recommend such action, if
in connection with the foregoing the exercise of such authority
is not of a merely routine or clerical nature, but requires the
use of independent judgment.
Applying this definition to the record before us, it is apparent
that both chief and assistant engineers employed by the Respondent
have supervisory authority. They may recommend the transfer,
reassignment, or discharge of strikers working for them, and they
have in fact actually directed the transfer, reassignment, or dis-
charge of individual strikers.
Despite this, MEBA contends that such actions have not been
taken with sufficient frequency to meet the statutory definition.
We cannot agree that this is the proper test. As the statute clearly
indicates, it is the right to exercise the authority conferred by an
employer that is controlling. Because the engineers were generally
satisfied with the strikers' performance and had infrequent occasion
to exercise the attributes of supervisory authority does not mean
that such authority atrophied through lack of use.
Since the evidence of record clearly indicates that both the
chief and the assistant engineers possess indicia of supervisory
authority listed in the statute, we find them to be supervisors and
not employees within the meaning of the Act.
As the unfair labor practices allegations of the complaint are
bottomed on the theory that the engineers are employees within
the meaning of the Act, and as the record does not provide support
therefor, it follows that no statutory violation has been made out.
Accordingly, we shall dismiss the complaint.
[The Board dismissed the complaint.]
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon a charge and an amended charge duly filed on March 13 , and July 23, 1963,1
by District 2, Marine Engineers Beneficial Association , AFL-CIO, herein called
MEBA , the General Counsel of the National Labor Relations Board, hereinafter
called the General Counsel 2 and the Board respectively , by the Regional Director
1 The original charge herein was filed by MEBA with Region 13 of the Board on March 13,
1963, and assigned the Docket No. 13-CA-5480 On March 19, 1963, by order of the
General Counsel of the Board said charge was transferred to Region 14 of the Board
and assigned Docket No 14-CA-3017.
2 This term specifically includes the attorney appearing for the General Counsel at
the hearing.
MISSISSIPPI VALLEY BARGE LINE CO. 679
for Region 14 (St. Louis, Missouri), issued its complaint dated July 26, 1963, against
Mississippi Valley Barge Line Co., herein called the Respondent, and against Marine
Officers' Association, herein referred to as MOA, as the Party to the Contract.
The complaint alleged that Respondent had engaged in and was engaging in, unfair
labor practices affecting commerce within the meaning of Section 8(a) (1), (2), and
(3) and Section 2(6) and (7) of the Labor-Management Relations Act, 1947, as
amended, herein called the Act. Copies of the charges, complaint, and notice of
hearing thereon were duly served upon Respondent, MEBA, and MOA.
Respondent and MOA duly filed individual answers admitting certain allegations
of the complaint but denying the commission of any unfair labor practices.
Pursuant to notice, a hearing thereon was held at St. Louis, Missouri, on Novem-
ber 20, 21, and 22, December 10, 11, 12, 13, 14, and 16, 1963, and on January 20
and 21, 1964, inclusive, 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 propose findings and conclusions or both. Oral
argument was waived. Briefs have been received from General Counsel, Respondent,
and MEBA on March 26, 1964.
Upon the entire record in the case, and from his observation of the witnesses, I
make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Mississippi Valley Barge Line Co., is and has been at all times material herein a
corporation duly organized under and existing by virtue of the laws of the State of
Missouri. At all times material herein, Respondent maintained its principal office
at 4011 North Seventh Street, in the city of St. Louis, State of Missouri, and is and
has been at all times material herein continuously engaged at said office in the busi-
ness of providing tug and tow boat service for the transportation of commodities on
the Mississippi River and its tributaries including the Illinois River. Respondent
annually derives in excess of $50,000 gross revenue from the operation of its tugboat
and towboat services in transporting goods, wares, merchandise and commodities in
interstate commerce between points in the State of Illinois, Missouri, and other States
bordering upon the Mississippi River and its tributaries including the Illinois River.
The complaint alleged, the answer admitted, and I find that Respondent is engaged
in commerce within the meaning of the Act.
H. THE LABOR ORGANIZATIONS INVOLVED
District 2, Marine Engineers Beneficial Association , AFL-CIO, is a labor organi-
zation admitting to membership the engineer officer employees of Respondent.
Marine Officers Association is also a labor organization admitting to membership
the officer employees of Respondent.
III. THE UNFAIR LABOR PRACTICES
A. The facts
In 1948 Respondent recognized District 2, Marine Engineers Beneficial Associa-
tion, AFL-CIO (MEBA) as the exclusive bargaining agent for the chief engineers
and assistant engineers employed upon its tugboats and had negotiated contracts with
MEBA covering the wages, hours, and working conditions for these officers.3 The
last contract executed by these parties was by its terms to extend from April 15, 1959,
to midnight August 14, 1962.
Respondent and MEBA were in the process of negotiating a renewal agreement
when on June 27, 1962, a new organization signing itself "Marine Officers Associa-
tion, Room 405 Cottonbelt Building, 408 Pine Street, St. Louis, Missouri" (MOA) 4
3 For some years Respondent also had recognized and contracted with Local 25, In-
ternational Organization of Masters, Mates & Pilots (Local 25 MMP) for and on behalf
of Respondent's master-pilot and pilots as well as Local 28, International Organization
of Masters, Mates & Pilots (Local 28 MMP) for .and on behalf of Respondent's first and
second mates employed on such boats.
' Subsequently It developed that MOA was an adjunct of, assisted by, or affiliated with,
the Teamsters Union.
680 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
notified Respondent by telegram that "a majority of your masters, pilots, mates and
engineers" had "voluntarily" designated MOA as their bargaining representative and
request an immediate meeting "to negotiate a contract on behalf of the above listed
classifications of employees." On June 28 Respondent advised MEBA and the MMP
organizations of the receipt of this telegram from MOA.
On June 29, 1962, Respondent answered MOA by telegram that it was currently
bargaining with unions which had for years represented its employees and also had
"no evidence to date of your right to represent the employees concerned."
By letter dated July 3, 1962, on the letterhead of "Wiley, Craig, Armbruster &
Wilburn-Attorneys and Counselors" and over the signature of Attorney Harry H.
Craig as "agents and attorneys for MOA," MOA "renewed its demand for recogni-
tion." This letter contained the following suggestion:
We realize, of course, that the question of representation cannot be settled by
election proceedings conducted by the National Labor Relations Board. Never-
theless, the question must be settled and we suggest that you agree that this firm
and your attorneys carefully check and verify the written authorizations which
are in our possession and let verification in that manner determine which organi-
zation represents a majority of your employees. This is a quick, easy, and inex-
pensive way of verifying majority representation and when the authenticity of
written authorizations is established as a fact, you will then be in a position to
know for certain the particular labor organization chosen by your employees.
By letter dated July 6, 1962, and addressed to Attorney Craig over the signature
of W. J. Barta, then Respondent's executive vice president and in 1962 its president,
with copies to all the Unions involved, Respondent answered rejecting the idea of
a card check and suggesting: "In our opinion the only fair and equitable method for
determining majority status in such a situation is through a secret ballot election
conducted by an impartial third party."
By letter dated July 9, 1962, Attorney Armbruster answered, in pertinent part, as
follows.
This will confirm my conversation with you this morning in which I stated that
the Marine Officers Association agrees to participate in a secret ballot election
conducted by an impartial third party to determine if that organization does,
in fact, represent your employees in the unit described in that organization's
demand for recognition.5
... So far as the impartial person to conduct the election is concerned, you
mentioned Father Brown of St. Louis University and I suggested Professor
Elmer Hilpert of Washington University ... c
On July 9, Business Agent McKay for MEBA telephoned Respondent and told
Barta that MEBA would not participate in a consent election at that time as it was
not then prepared for an election and requested Barta to "stall" as long as possible
which Barta agreed to do. McKay then threatened Respondent with a long, hard
fight before MEBA would lose its right to the representation of the engineers.
At 1:36 p.m. July 16, 1962, following conversation with MOA representatives,
Respondent dispatched a wire to all the interested Unions stating that it was Respond-
ent's opinion that the only fair and equitable way to solve the representation prob-
lem was by a secret ballot election and suggested Prof. Elmer Hilpert as a suitable
third party to conduct same.
At 2.30 p.m. that same day Respondent dispatched a second telegram to all parties
reading as follows:
Please refer to my wire earlier today concerning a meeting with Professor
Elmer Hilpert.
A meeting has been arranged for 10 a in. Wednesday, July 18 in conference
room No. two at the Missouri Athletic Club, 405 Washington Avenue, St. Louis,
Missouri. Urgent you be represented.7
5 This is the first explicit mention of the unit problem. Obviously, there were four
possible units involved: The traditional MEBA unit of engineers, the traditional MMP
Local 25 unit of masters and pilots as well as the traditional Local 28 unit of mates
together with the new MOA unit comprising the above traditional three units into a
single unit.
e A carbon copy of this letter was sent to MOA at its new office in Room 808 located
in the same building as formerly.
7 This telegram was actually delivered to MEBA the morning of July 17 although it had
been read over the telephone to Mrs McFadden the night before.
MISSISSIPPI VALLEY BARGE LINE CO. 681
At 3:55 p.m. July 17 McFadden, vice president of MEBA, answered by telegram
as follows:
Due to prior commitments MEBA will not be represented at meeting you sched-
uled for July 18. Suggest meeting be postponed to a mutually agreeable date
in near future.
McKay and Calhoun for MEBA also telephoned to Barta saying that they could
not be present and requesting a postponement of the July 18 meeting.8
Local 25, MMP also notified Respondent of its inability to be present at the July 18
meeting.
Consequently when the meeting convened at 10 a.m. on July 18, 1962, at the Mis-
souri Athletic Club, attendance was limited to Respondent, MOA and Local 28 MMP
with Professor Hilpert. That day was spent in argument. MOA adamantly insisted
upon an election in the one "industrial type" unit of captains, pilots, mates, and
engineers, MMP Local 28 originally argued strenuously for the three traditional type
units of masters and pilots, of mates and of engineers and Barta, I sincerely believe,
held out for "Globe" type elections in the three traditional units with all four labor
organizations on the ballot.
However, according to Barta's testimony, Hilpert ruled that MEBA and Local 25
MMP could not be on the ballot as those organizations had no representation at the
meeting. Faced with this decision Local 28 MMP caucused and decided to oppose
MOA on the ballot in the industrial type unit. Barta finally capitulated and on
July 20 a "consent election agreement" was drawn up providing for one inclusive
unit comprising captains, pilots, mates, and engineers with only Local 28 MMP and
MOA on the ballot. The agreement provided for an eligibility date of July 19 with
a notice of election to be mailed to all eligible voters on July 20 and ballots to be
mailed to the same eligibles on July 27 returnable on August 6 and for the counting
of ballots set for 3 p.m. August 10. The election agreement was signed by Respond-
ent, MMP,° Local 28 MMP and MOA.
For reasons best known to himself, Hilpert included in the notice of election and
sample ballots sent out per the consent agreement the following mimeographed note
to all eligible voters over his signature:
To all eligible voters:
Nothing in the form of the enclosed ballot, or in the instructions for voting,
is intended to prevent a "write-in" vote for any organization whose name does
not appear on the printed ballot.10
On July 22, Richardson, assistant to the president of District 2, MEBA, telephoned
Barta vehemently protesting the setup of the election and requesting that MEBA be
placed on the ballot.
On July 23 MEBA by telegram to Respondent protested the consent election pro-
cedure and demanded a place on the ballot in the traditional engineers unit. Respond-
ent answered in pertinent part as follows:
. The Company has never had any objection to your (MEBA) participation
in the election but obviously any change in the election as presently set up
requires approval of MMP and MOA.
At the request of Respondent, sent on July 28, another meeting was held in the
Oxford Room of the Mayfair Hotel in St. Louis on August 2, 1962. On this occa-
sion MOA, Local 28 MMP, Local 25 MMP, MEBA, and Respondent were all pres-
ent in force. The result was more acrimony than light. MEBA argued for elections
in the traditional units, Locals 25 and 28 MMP were split with Local 28 favoring
the so-called one industrial unit and Local 25 the traditional ones. MOA was still
adamant for its single overall unit refusing even to consider a Globe-type election.
s The facts show about July 9 MEBA had requested Respondent to release its local
bargaining committee composed of Chief Engineers Carl Jackson, August Dermotta,
and Lesley J. Walker from their assignments on Respondent's boats so that MEBA
could hold a meeting to discuss the election issue. For reasons undisclosed in this
record Respondent had not been able to relieve Jackson, at least, until July 17. With
that information MEBA had scheduled its meeting for July 18 in New York City. One
might ask why New York City was chosen.
6 Just who MMP, in the person of Captain Coates, purported to represent is unclear.
But it was not Local 25 MMP.
10 Although there was nothing in the consent election agreement to authorize any such.
additional notice, the record indicates that MOA, at least, consented to its inclusion.
There is nothing in this record indicating that Local 28 Mi'JP was consulted
682 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The meeting concluded with Respondent's attorney, V. Lee McMahon, pontificating
that MEBA and Local 25 MMP had rejected their "opportunity" to get on the ballot
by refusing to attend the July 18 meeting and that Respondent, being bound by the
consent election agreement, could not change it without the consent of Local 28
MMP and MOA. And so the consent election continued.
On August 8, 2 days prior to the date set for the counting of the ballots under the
existing consent-election agreement, MEBA filed a suit in equity m the Circuit Court
in the County of St. Louis, State of Missouri, Case No. 2-48358, to enjoin Professor
Hilpert, Respondent, MOA, and Local 28 MMP from proceeding with the election,
from counting the ballots and to impound the ballots uncounted
On September 4, 1962, following a 6-day hearing, Judge Weinstein issued a decree
in the above matter finding the consent-election agreement of July 20, 1962, null and
void and ordering the ballots impounded.
By telegram sent at 11:53 a.m that same day MEBA requested "an immediate
meeting" with Respondent in order to negotiate the renewal of its contract covering
the engineers and offering to demonstrate MEBA's majority. To this Respondent
replied by telegram at 5:45 p.m. as follows:
We have your telegram of September 4, 1962, and we understand your posi-
tion to be the same as in the past several months namely, you insist upon a
contract.
However the Company's position is that we cannot bargain with you or any
other union until such time as we are convinced that that union represents a
majority of our employees.
Paul Steinberg, representing MOA, was also in personal touch with Barta that day.
He again offered to prove MOA's claims to majoiity representation by checking the
MOA authorization cards. Barta again refused Steinberg then threatened to tie up
Respondent's boats to prove MOA's majority. As a starter he suggested that MOA
would tie up a boat in each of the three principal rivers upon which Respondent's
boats operated and continue until MOA was recognized. Barta still refused
recognition.
That day Steinberg had messages sent to one boat in each of the three principal
rivers instructing it to tie up until further orders from MOA. The only boat so
advised, which the parties at the hearing could recall, was one which was then tied
up at a dock in Pittsburgh awaiting a tow.
Barta testified at the hearing that his sleep that night was disturbed by multitu-
dinous messages from numerous boats in various rivers about to be or already tied
up in accordance with MOA's orders. But, like the other witnesses, Barta's only
vivid recollection was in regard to this boat tied up at Pittsburgh for other reasons.
So at 9:20 a.m. the following morning, September 5, 1962, Respondent wired all
the Unions involved except MOA as follows. "Company has today recognized MOA
as representing all its boat officers after work stoppage last night."
At 11:10 a m. on September 5 MEBA wired Respondent as follows:
Your recognition of MOA constitutes flagrant violation of rights of [Respond-
ent's] engineers. MEBA represents majority of engineers in your fleet and is
prepared to prove our majority, as we notified you by wire yesterday Septem-
ber 4, 1962.
Also at some undisclosed time on September 5 Respondent and MOA, through
Harry H. Craig as its attorney, executed a 3-page "recognition agreement" in which
Respondent recognized MOA "as the sole exclusive collective-bargaining representa-
tive for and on behalf of all supervisory marine officers, consisting of master-pilots,
pilots, mates and engineers" employed by Respondent on the inland waterways of
the United States This agreement also provided that these parties would subse-
quently engage in good-faith collective bargaining.
One result of MEBA's numerous telephonic protests against this recognition was
that representatives of MEBA and of Respondent broke bread together at the Lawyers'
Club in St. Louis at 6.15 p m on September 5. At that meeting McFadden for
MEBA protested the unfairness of the Respondent's recognition of MOA based, as
it was, upon what he called a "showing of strength" from the alleged tying up of
three towboats already tied up awaiting tows. Attorney McMahon for Respondent
answered that Respondent had made its own decision and that MEBA had had its
chance but "muffed it" twice: by not attending the July 18 meeting and again by
MEBA's attorney's attitude at the August 2 meeting. MEBA replied that, if Respond-
ent was going to rely upon a "show of strength" as the basis for recognition, MEBA
could, and would, easily put on a "show of strength" and injure Respondent's busi-
ness. The meeting broke up about 9 p.m. with nothing further accomplished.
MISSISSIPPI VALLEY BARGE LINE CO. 683
On September 7 Respondent's tugboat Glenn Traer was at the dock at Juliet At
that time Russell Lesker was aboard as chief engineer with Riley R. Hurley as assist-
ant chief. While Hurley was on the dock Captain Sullivan, then Respondent' s marine
superintendent, approached and asked Hurley "Are you still Carl Jackson's boy?"
Hurley answered, "If that means do I still belong to MEBA, I am still that, I am "
Sullivan asked Hurley if he would change his affiliation from MEBA to MOA stating
that he, Sullivan, would put the chief [Lesker] off the boat and give Hurley the chief's
job if he would change over. Hurley answered, "I don't want no job under those
circumstances " Sullivan replied that he, Sullivan, "would have to get a replacement
if [Hurley] persisted in being that way." Hurley said, "Get the replacement."
Twenty-four hours later Hurley was replaced 11
After leaving the dock at Juliet on September 7 Captain Schibrowsky of the Truer
called Chief Lesker to the pilothouse and informed Lesker that he would be relieved
as soon as his relief showed up at Romeo Bridge When Lesker asked why he was
being relieved Schibrowsky told Lesker that Lesker "should know why I was being
relieved. He said I was an old hand at Valley Line and I was making a mistake."
Schibrowsky then argued with Lesker that if all the "deck hoofers" belong to the one
union, MOA. instead of being represented independently by MEBA and MMP, there
would be "safety in numbers." This argument lasted until Lesker "got tempered"
and departed. Lesker was relieved 11/ hours later at Romeo Bridge.12
Also on September 7 the MV Valley Transporter was operating in the Mississippi
near Memphis going north with Earl Strobel running as chief engineer and George
Hosp as assistant. As Strobel was getting himself a cup of coffee in the mess, Cap-
tain Horton, who had just come aboard the boat in relief of the previous captain,
informed Strobel that he had orders that Strobel and Hosp had to get off and added,
"all I know is that I just got on an hour ago and my orders are to tell you to go on
accumulated time." 13 Strobel remarked that this was the first time he had ever been
relieved after only 21 days aboard, the usual time aboard being about 35 days
Horton also informed Hosp that he would be relieved Strobel and Hosp were
relieved 1 hour later and were put ashore on the "boondocks" near Memphis.14
On or about September 9 MEBA issued a strike call to Respondent's engineers and
began picketing at Havanna, Illinois, "in the vicinity of the Commonwealth Edison
and C.E. & I. Railway property" where Respondent conducted part of its business.
The following engineers employed by Respondent picketed at Havanna: Everett
Medley, Leslie J. Walker, George J. Hosp, Harold Cummings, Lenard E Van Meter,
T. W. Sumner, Carl Jackson, August Dermotta, Riley R. Hurley, Louis Lottie, Russell
Lesker, Earl J. Strobel, Jesse K. Griffin, Willis Chilcote, and Paul Evers. At the
same time engineers Paul Adams and Walter P. Coram began picketing Respondent's
office and dock in St. Louis, Missouri. The pickets both at Havanna and St Louis
carried identical picket signs which read:
On Strike
MVBL Unfair
Company denies democratic right of Marine Engineers to choose MEBA as
their bargaining agent. Circuit Court ruled that Company acts are illegal,
unlawful, and improper interference with constitutional rights of its Marine
Engineers.
We are striking only against Mississippi Valley Barge Lines and its unlawful
acts.
This strike is not against any other employer or Company.
Marine Engineer 's Beneficial Ass'n,
AFL-CIO, (MEBA) District No. 2
During the latter part of September 1962, while Engineer Harry F. Stewart was
picketing in front of the Respondent' s offices in St. Louis, George Bohm, then
Respondent 's industrial relations consultant , asked Stewart why he was picketing and,
upon being told , warned that if Stewart continued picketing, he "would probably
have his picture taken, receive a telegram stating that [he] was discharged for actions
against the Company if [he] had not already received such a telegram ." On another
11 Subsequently about March 1963 Hurley telephoned Captain Sullivan and asked for his
job back with the Company. Sullivan said that he could not use Hurley as "he had been
stung once and he didn't feel like being stung again."
12 Lesker was known to be a strong MEBA adherent.
For every day worked on board Respondent ' s officers accumulate an equal amount
of paid time to be spent ashore. This is referred to as "accumulated time"
14 Botb Strobel and Hosp were known to be staunch MEBA adherents.
684 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
occasion while Stewart was picketing Respondent's office, Captain Taylor, then
Respondent's president, suggested to Stewart that Stewart "go over and see Paul
Steinberg and get [himself] squared away with the MOA and return to work" as
Captain Taylor would like to see Stewart "come back to work."
One evening in either September or October 1962, Engineer Everett Medley had
a conversation with Raymond McGirl, then Respondent's vice president in charge of
operations and maintenance, in Havanna, Illinois, when McGirl asked Medley why
Medley did not go home and quit "that foolishness" and then added "you know you
will be branded, that you can't work for any organized line or unorganized line on
the river because you will be branded as an agitator."
On September 16 Respondent over the name of McGirl sent each of the above-
named engineers identical telegrams reading as follows:
Your picketing and/or striking is in violation of the recognition agreement
between MOA and the Company. Company reserves the right to take appro-
priate disciplinary action upon completion of Company investigation.
In addition, however, this telegram is to advise you that you are to immedi-
ately cease picketing, striking or in any manner interfering with the Company's
operations effective immediately.
Again over the signature of McGirl Respondent sent on September 18, 1962, the
same engineers the following identical telegrams:
Your services with Mississippi Valley Barge Line are hereby terminated. This
is in conformity with our telegram of Sunday, September 16, 1962. Your final
check for any amount due will be mailed.
Sometime about the middle of September, Engineer James Evers was picketing in
front of Respondent's office building when Barta and Chief Engineer O'Leary came
out of Respondent's office building. After a conference among themselves, O'Leary
came over to Evers and asked Evers "to go off of the picket line, leave the MEBA
and join his group [MOA]." When Evers refused, O'Leary said, "you are trusting the
wrong people and I don't want to see you get hurt . . . if you continue to follow your
present policy you are going to get hurt and hurt bad." 15 When Barta nodded his
head, O'Leary returned to his group.
On October 16, 1962, Respondent and MOA agreed to and executed a collective-
bargaining agreement which was predated to October 1, 1962, and by its terms was
to continue in existence "to and including August 15, 1967."
ARTICLE I Section 2 of this agreement provided:
The Company, by this Agreement recognizes the Union [MOA] as the sole and
exclusive representative of the Company's Supervisory Marine Officers, consist-
ing of Master-Pilots, Pilots, Mates and Engineers, for the purpose of collective
bargaining in connection with all matters affecting the wages, hours and working
conditions of all such officers and matters affecting their employment.
ARTICLE II Section 2 provided as follows:
The Company and the Union agree to cooperate in every way in order to secure
properly qualified officers. The Company agrees that when employing new deck
or engineer officers, such officers shall be obtained through the office of the
Union, provided that the deck or engineer officer furnished by the Union shall
be qualified to fill the available position. When the Union is unable to furnish
a deck or engineer officer, the Union shall immediately notify the Company
which shall then be free to secure such officer from any source.
Subsequent to the execution of this agreement certain of the striking engineers
telephoned Respondent or Respondent telephoned to them about jobs as engineers
on Respondent's boats. Respondent made it clear in these telephone calls that the
engineers would have to join MOA and would have to be cleared by that Union in
order to secure employment. At the instance of Respondent a number of the striking
engineers did clear through Paul Steinberg, Teamsters Union adviser to MOA, who
forwarded that striking engineer an application for membership in MOA and, upon
its receipt signed, cleared that engineer with Respondent. Strikers Paul Adams and
Walter Coram were two such strikers who accepted employment with Respondent
through MOA. Respondent made it plain to all such engineers that they were being
hired as new employees and that their seniority would date from the date of their
new hire. Respondent paid certain bonuses to its officers based upon their length
of service. This new seniority date thus affected the amount of that bonus.
15All the above-found statements remained uncontradicted at the hearing.
MISSISSIPPI VALLEY BARGE LINE CO. 685
The evidence is clear that, until a striking engineer had joined MOA and been
cleared by MOA, he was unable to secure employment from Respondent even as a
new employee. Clearance for employment by MOA was dependent upon the appli-
cant's membership in MOA.
B. Conclusions-unfair labor practices and Respondent's defenses
Such are the stipulated or uncontroverted facts of the instant controversy.
Assuming, without deciding, the applicability of the Act hereto, the mere recital
of these facts proves that Respondent has been guilty of violations of:
(1) Section 8(a)(1) by those oral threats made by Respondent officials Taylor,
Sullivan, Bohm, and McGirl during the middle of September 1962, to the striking
MEBA engineers and by the coercive telegrams of September 16 and 18, 1962, all
of which tended and were intended to force said engineers to abandon their own
chosen affiliation with MEBA and to join MOA which Respondent then preferred
and was assisting.
(2) Section 8(a) (2) by rendering illegal assistance to MOA through the aforemen-
tioned coercion of the MEBA engineers and through the negotiation and execution
on October 16, 1962, of that collective-bargaining agreement with MOA bearing
date of October 1, 1962, in the face of a then-existing real question concerning the
majority status of MOA.16
( 3) Section 8 (a) (3) and (1) 17 by discharging the striking MEBA engineers on
September 18, 1962, because of the obviously interdicted reasons so explicitly stated
by Respondent in its telegram of September 16 and because those engineers chose to
remain adherents of MEBA instead of shifting their affiliation to MOA as required
by Respondent.18
Respondent 's main , if not only, defense here, as suggested supra in this section of
this Decision , is that Respondent's assistant engineers aboard its tugboats are "super-
visors" within the meaning of Section 2(11) of the Act and, therefore, the Act is
not applicable to the instant case. Thus, it becomes necessary to study the position
and authority of assistant engineers on board Respondent 's tugboats.
ie As of October 16, 1962, and until approximately March 5, 1963, a very real ques-
tion concerning the right to represent Respondent ' s engineers existed due to the con-
flicting claims thereto by MOA and MEBA. Until this latter date, the legality of
Respondent 's September 5 so-called recognition of MOA, based as it was upon the tenuous
"showing of strength" by MOA the previous night in supposedly causing the tieup of
three of Respondent's tugboats, one of which at least had already tied up in Pittsburgh
for reasons completely unrelated to the representation question , was definitely in question
and attackable But when MEBA failed to file the charges in the instant matter within
6 months of that recognition agreement by approximately 9 days, then Section 10(b)
of the Act and the principle of law enunciated in the Bryan Manufacturing Co. case, 362
U S. 411 eliminated the possibility of an attack upon the legality of that recognition
agreement of September 5, 1962, and thus endowed it with unassailable legality here
Hence , for the purposes of this case , I find the recognition agreement of September 5
to have been legal from and after March 5, 1963.
However, contrary to the suggestion contained in Respondent ' s brief that the individual
engineers here are not entitled to reinstatement because of having engaged in an illegal
strike against that recognition agreement , a consideration of the dates involved shows
that, while current, the MEBA strike against the September 5 recognition of MOA was
a legal strike Fortunately for this Trial Examiner , other possible ramifications arising
from the sudden legalization of this recognition agreement upon the expiration of the
6-month limitation period are not here involved , and happily remain in the realm of
interesting legal speculation.
ii The discharges of the chief engineers violate only Section 8 ( a)(1) because of the
stipulation regarding their supervisory capacity.
>e In its brief Respondent seeks to exonerate itself in these discharges on the ground
that these discharges were made pursuant to a legal union-security clause . The fallacy
of this contention is, of course , that this allegedly exculpating union-security clause did
not come into existence until about 1 month after the discharges had been accomplished.
The now legal recognition agreement of September 5 contained no union-security clause
justifying the discharges . There is no legal method by which the contract dated Octo-
ber 1, 1962 , which did contain the union -security clause for the first time , can be related
back to the now legal recognition agreement of September 5.
686 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
One of Respondent's main arguments on this point as stated in its brief is as follows:
All parties involved, including MEBA, the Company, MOA and MMP, consid-
ered that these people [assistant chief engineers] were supervisors. The parties
in the past had considered all officers to be supervisors and outside the jurisdic-
tion of the National Labor Relations Board. When the instant problem arose
and was discussed, all the participants concerned agreed that the individuals
involved were supervisors and did not come within the jurisdiction of the
National Labor Relations Act and the National Labor Relations Board. Crimp-
tex, Inc , supra. Note that all parties were represented by counsel with long
experience in the field of labor relations who, from time to time, indicated that
in their opinion and in the judgment the officers were supervisors and did not
come within the coverage of the National Labor Relations Act [Emphasis
supplied.]
The key phrase in the above are the words "from time to time." That phrase is
pithy with meaning.
It is quite true that:
(1) MEBA Attorney Pressman stated on August 2, 1962, without contradiction
from anybody present. "Everybody around this table knows that the supervisor [sic]
be they engineers or masters, mates or pilots, are so-called supervisors and therefore
don't come under the National Labor Relations Act, and you can't have elections
under that Act "
(2) MEBA Attorney David Scribner in MVBL v. MESA, District 2, before the
Circuit Court of Mason County, State of Illinois, Chancery No. 4712, stipulated that
all engineer-members of MEBA in the employ of MVBL, including chief engineers
and assistant engineers, were supervisors.
(3) MEBA attorneys alleged in their bill to enjoin the proposed election of July 18
that ". all such positions [including chief engineer and assistant engineer] are
supervisory in nature and remove the persons occupying such positions from the
benefits of the National Labor Relations Act, as amended, and in particular from
the benefits of Section 9 thereof."
Yet, presumably with the approval of these same attorneys, on December 20, 1962,
MEBA filed charges in Region 14 (St Louis, Missouri) identical to those upon which
the present complaint is based and, upon the dismissal of those charges in March 1963
by that Region, went "shopping for a more favorable Region," as Respondent's brief
succinctly phrases it, and refiled the charges in Region 13 (Chicago, Illinois), on
March 13, 1963. These charges, of course, are premised upon the proposition that
Respondent's engineers are "employees," and not "supervisors."
But, before the kettle begins calling the pot black, it is necessary to look at the
other side of the picture.
It is also true that*
(1) Respondent's Attorney V. Lee McMahon who sat in silent agreement as
Pressman made his above-noted statement on August 2, filed exceptions to the decree
of Judge Weinsteih in the injunction matter against Hilpert, et al., which read as
follows-
7. The court erred in making the following conclusions of law (a) That all
licensed engineers, masters, mates, and pilots employed by defendant [Respond-
ent here] are supervisors within the meaning of the National Labor Relations Act.
(2) Respondent's present attorneys, however, are defending the instant matter on
the ground that assistant engineers are "supervisors." 13
(3) Barta testified that Respondent had consciously attempted to keep its engi-
neers from being classed as supervisors.
Thus it becomes apparent that what the phrase "from time to time" really means
is that everytime one of these experienced labor relation counsel is employed to
defend a charge against his client, the engineers become "supervisors" but, when
counsel's client desires to file a charge with the Board, then the engineers become
"employees." The record discloses that counsel have been consistent to that extent
from time to time.
Consistency on the question involved here is rare indeed. The cases are obviously
sui generis•as indicated by the Board's own decisions in Material Service Division,
General Dynamic Corp., Case No. 13-RC-9219, 144 NLRB 908, and in Midwevt
Towing Co., Inc., Case No. 14-RC-4764 [151 NLRB 6581, decided respectively on
October 2, 1963, and April 29, 1964. Also see the intermediate Report of Trial Exam-
"Presumably MOA's position in the above two matters coincide with that expre'.wd
by Respondent.
MISSISSIPPI VALLEY BARGE LINE CO. 687
iner Whittemore in District 2, MEBA and Chicago and Illinois Midland Railway
Company, dated May 7, 1963, Case No. 13-CC-320, together with the Board's
Decision therein dated June 11, 1963.
Thus theme seems to be Board authority also on each side of the question. How-
ever the facts here show that at all times material Respondent has been operating
from 9 to 19 diesel-powered tugboats ranging in value from about $2,000,000 to
$300,000 and in horsepower from 6,000 to 1,000.
Each of Respondent's tugboats carries a crew of 17. The licensed officer person-
nel aboard consist of the master-pilot, pilot, first and second mates and the chief
and assistant engineers. Company rules, but not the Coast Guard regulations,
require each of the above to carry a Coast Guard license. However once a chief or
assistant engineer has secured a Coast Guard diesel license of any horsepower, the
company rule is satisfied regardless of the fact that the engineer may be serving on
a boat of much greater horsepower than that specified on his license.
The unlicensed personnel consists of 6 deckhands, 2 "strikers," a utility man, a
cook, and a waiter.
The day aboard the boat is divided into alternating "forward" and "after" watches
of 6 hours apiece The master-pilot, the first mate with deckhands, and the chief
engineer with a striker stand the forward watch. The other licensed personnel with
similar unlicensed personnel stand the after watch. The cook, waiter, and utility
man work as occasion demands.
The master-pilot is the captain or master in charge of the boat, tow, and person-
nel. On his watch he runs the boat from the pilothouse. From here he handles the
deck matters of the boat and tow through the mate and deckhands. From here he
also handles the engines through direct mechanical controls located in the pi'.ot-
house Only in cases of a breakdown of these mechanical controls of the engines
does the pilot control the engines through direct orders to the engineer on watch in
the engineroom. During his watch the master-pilot also steers the boat and tow. In
addition to these duties during his watch, the master-pilot also receives the orders
for his boat and makes reports from and to Respondent's home office in St. Louis
by ship-to-shore communications located in the pilothouse In addition the master
does the necessary clerical work and handles the money for the boat.'?o
On the after watch the pilot performs these exact same duties except for the clerical
work and the money.
Just as the mates handle the work on deck, so the chief and assistant engineers are
charged with the maintenance and repair of the engines and engineroom with the
assistance of a striker on each watch. The chief and assistant have regular rounds
checking engine gauges, oiling machinery, etc., to make in the engineroom, as has
the striker on watch. The engineers and strikers also make entries of machine opera-
tions in the engineroom log.
Except in emergencies the engines are actually controlled by the pilot from the
bridge or pilothouse. In emergencies when those controls fail, the pilot can give
direct orders to the engineer on watch who either carries out the order himself or
relays it to the striker. In his testimony Barta made much of one situation where
the engineers can overrule the pilot's orders. This occurs when the pilot orders the
engines put on "overload," i e., that power the engines are capable of over and
beyond their ordinary "maximum" running capacity. If in the opinion of the engi-
neer the engines for some reason are in such mechanical shape that such "over-
loading" would damage the engines, then the engineers have authority to refuse the
pilot's request for overload. This authority proves the engineer's mechanical exper-
tise-but not supervisory authority.
Necessarily in the maintenance and repair of the engines and other mechanical
and electrical devices on the boat which fall within the jurisdiction of the engineers,
the engineer and his striker work together. In the case of minor maintenance or
repair which is within the capability of the less experienced striker the engineer may
send the striker to perform the work. In the case of more major or complicated
maintenance or repair, the engineer may require the assistance of the striker in doing
the work himself . Or in even more complicated situations the engineer may com-
mandeer the services of the off-watch engineer and striker or even other members of
the crew if the situation calls for such extreme measures . These are the usual every-
20 Some years ago Respondent used to have what was called a "roof captain" who
commanded the boat and with the assistance of a clerk or purser handled all the clerical
work but was not required to stand a watch or steer the vessel . Modern mechanical
methods and competition have now eliminated the so -called "roof captain " and his clerk
without trace-as they have many other traditions of the river.
688 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
day occurrences in the mechanical trades where the more experienced and capable
mechanic makes use of every device available, including less experienced and capable
mechanics, in order to complete work which must be done.
Respondent also has a program of preventative maintenance whereby at stated
intervals shore based personnel under a traveling engineer will come aboard the
boat and perform major maintenance work on the engines with the assistance of the
whole engmeroom staff. If sudden repair of a major character beyond the capability
of the engineroom crew occurs, these same shore based traveling engineers with
mechanics will be called aboard to make the same, again with the help of the engine-
room crew.
The duties of the chief and assistant are exactly the same except for the fact that
the chief has the duty to check and report to St. Louis the fuel and engineroom sup-
ply consumption. But again orders as to when and where to refuel come to the boat
from St. Louis.
Respondent points to the fact that chief and assistant engineers, like the other
officers, have their separate rooms aboard which are made up by the utility man or
the waiter whereas the strikers share accommodation with another unlicensed man
and have to keep their quarters by themselves. Respondent also points to the fact
that the officers have their own lounge aboard and allegedly have their own private
places at the mess table with the master-pilot and pilot sitting at the head of the
community mess, the chief or assistant on one side with the mates on the other side
and the unlicensed personnel filling in the remainder of the mess table. Respondent
further points to the fact that the monthly wages of assistant engineers are higher
than those of the unlicensed personnel including strikers. Actually there is nothing
in any of these matters indicating supervisory authority as these prerequisites only
tend to show that sometimes expertise is rewarded.
Next, Respondent calls attention to the fact that during the 1950's Respondent held
a few "supervisory meetings" attended by the licensed personnel, including assistant
engineers, at which matters of safety, of cost and of matters of particular interest to
the officers involved in performing their professional duties were discussed. At one
of these meetings the evidence shows that the assistant engineers, in particular, were
reminded that they would have to be more careful in safety matters. There is noth-
ing in the evidence of these meetings indicating supervisory authority as to the assist-
ant engineers.
That brings this discussion to the relationship between the assistant engineer and
the striker. The only way to rationalize some of the Board decisions on this ques-
tion, so far as I see it, is whether a striker worked in the engineroom department or
not. It seems to be that the presence of a striker in the engineroom apparently
created supervisory capacity in the assistant engineer as it gave the assistant some-
one to "supervise." But it is undenied on this record that none of the chiefs or
assistants (with one possible exception)21 were ever informed by Respondent that
they possessed any of the powers or authority set forth in Section 2(11) of the Act
which determined whether an individual was a supervisor or an employee.
Respondent tried to show that assistant engineers had the authority to discharge,
transfer, and discipline strikers and had, in fact, done so in the past. Although
Respondent went back for a period of 10 to 15 years, its attempt to show the posses-
sion of such authority by the assistants proved to be a faliure.
The evidence indicated that in that period of time there had been something like
three alleged discharges by assistant engineers: One of a striker who due to a speech
impediment could not make himself understood which, of course, jeopardized the
whole boat especially in an emergency; a second of a striker who went berserk aboard
and took on an ax to the assistant engineer and the master; and a third of a striker
who returned to the boat so drunk as to jeopardize not only the boat but also himself.
In each of these cases the assistant supposedly made a successful recommendation
to the captain that the striker be discharged. Such a recommendation hardly seems
necessary under the circumstances. But, to make the story even worse from Respond-
ent's point of view, while each of these three strikers was relieved from the boat
upon which he was then serving, whether on the captain's request or on the recom-
mendation of the assistant, one or more of them was reassigned by Respondent to
other boats subsequently. In other words the striker involved was merely tempo-
rarily relieved and subsequently reassigned by Respondent's St. Louis dispatcher to
another boat. One of them apparently was still in Respondent's employ at the date
of the instant hearing. Consequently, it appears that even the master-pilots aboard
Respondent's boats do not possess the authority to discharge a striker-but merely to
21 This one exception occurred when an assistant was told by an official of Respondent
that the assistant did not possess authority to discharge the striker.
MISSISSIPPI VALLEY BARGE LINE CO. 689
have him temporarily relieved from the boat on which he was then serving. Actu-
ally all the hiring , firing, transferring , assigning , and promoting , etc. of boat person-
nel, including licensed personnel , is done by Respondent 's dispatcher or other shore
based officials. As a matter of fact Barta probably expressed the situation best
when he testified that it was necessary that, in the close quarters of tugboat and two,
the personnel must be able "to live together." When that becomes impossible in an
individual case, then the cantankerous one must be relieved and transferred to a
boat more congenial to him.
Respondent also appears to contend that assistants had the authority to recom-
mend promotions and pay increases for strikers . The evidence produced on this
question was solely that , in casual conversation which is a fine and necessary art
aboard ship, the assistant might casually remark that the striker was a "good guy"
or "not so good." Nothing in this record indicates that such remarks were even
considered as "recommendations " or acted upon as such
During a normal watch in the engineroom the engineer and striker on duty both
have certain routine jobs to perform , such as checking gauges on machines and
recording same in the engineroom log, oiling machinery , changing filters, and other
even more routine tasks such as sooging ( cleaning ) or mopping oil spots, etc. If a
striker might be shirking his duties, the assistant or chief might well call him to task
rather roughly-or even, in extreme cases, request the captain to secure a relief for
the striker. However, from the very paucity of company records to this effect pro-
duced at the hearing, this last appears almost to have been nonexistent.
In fact, Respondent is forced to fall back upon what it refers to as "the tradition
and custom which grew up on the river" in order to try to show the supervisory
authority of the chief and the assistant today. Of course that tradition to which
Respondent refers blossomed in the days of steam when the chief and assistant con-
trolled the engines, the strikers, the oilers, the wipers, the firemen, the coal shovelers
or the wood heavers engaged in essential work in the engineroom. Today with the
advent of diesels, gauges, buttons, and valves, etc., the only remainder of that
so-called tradition is the job title of "chief" or "assistant"-and the two less experi-
enced mechanics know as strikers. Today on diesel boats, disregarding the tradi-
tional titles, all we have left in the engineroom of a tugboat are the two expert
mechanics with their two less experienced helpers. The supervisory control of a
tugboat now resides in the master-pilot and the pilot in the wheelhouse or on shore.
Consequently, contrary to the "from time to time" opinions expressed by the
numerous counsel long experienced in labor relations , I must find in accordance with
the evidence in the instant case that assistant engineers are "employees " and are not
"supervisors" within the meaning of Section 2(11) of the Act even when they are
assisted by strikers.
The above-made finding that assistants are "employees ," as contended by the
General Counsel , and not "supervisors," as contended by Respondent , within the
meaning of the Act means also that the Act is applicable to the matters at issue here.
Apparently anticipating the possibility of such an adverse finding herein, Respond-
ent in its brief sets forth two additional defenses which it contends precludes the
finding of any unfair labor practices against it : (1) That MEBA is an assisted and
dominated organization because of the participation therein of chief engineers who
are here stipulated to be "supervisors" 22 and, thus may not be the beneficiary of any
order here; and (2) that the instant proceeding must be dismissed in toto as barred
by Section 10(b) of the Act, the 6-month statute of limitation section, and the prin-
ciple of law enunciated in the Bryan Manufacturing case, supra.
Respondent's confidence in these two defenses is misplaced.
As to the defense of company domination of MEBA, to permit Respondent to use
its own self-proclaimed wrongdoing in allegedly dominating MEBA as a defense to
the charges here would be to encourage further wrongdoing as well as to permit
Respondent to profit by its own wrong. Furthermore, Respondent's acceptance of
chief engineers on MEBA committees since at least 1948 would seem to raise the
principle of estoppel against Respondent now. This alleged defense lacks merit 23
Respondent's reliance upon Section 10(b) and the Bryan decision is similarly
devoid of merit. The coercive statements and telegrams by Respondent's officials
found here to be violations of Section 8(a)(1) of the Act all took place within the
22 In the absence of such stipulation, the evidence presented here would requile the
same finding as to the nonsupervisory status of chief engineers as has been made in
regard to assistant engineers. However, for the purposes of the instant matter, I
consider myself bound by the stipulation of the parties to the contrary.
23 Cmp Sakrete of Northern California, Inc. v. N L.R.B., 332 F. 2d 902 (C.A. 9).
783-133-66-vol. 151-45
690 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
6-month limitation period and were coercive in, of, and by themselves without rela-
tion or reference to anything beyond that period of limitations . Likewise the illegal
assistance rendered MOA by Respondent (with the sole exception of the recognition
agreement of September 5, 1962, which is not here found to be an unfair labor prac-
tice ) all occurred within that same 6-month period and also are proved illegal with-
out reference to events prior to that period.
Likewise, Respondent discharged the various MEBA oriented chiefs and assistants
on September 18, 1962. The very phraseology Respondent used in its telegrams to
those chiefs and assistants on September 16 and 18, both dates being within the
6-month limitation period , prove without more that Respondent was motivated in
making those discharges by considerations, the men's concerted activities and con-
tinued adherence to MEBA despite Respondent's expressed desires to the contrary,
proscripted by Section 8(a)(1) in the case of the chiefs and of both Section 8(a) (3)
and (1 ) in the case of the assistants.
On the other hand, in its brief, Respondent appears to argue that its discharges of
these chiefs and assistants on September 18, 1962, was justified by the union-security
clause in the agreement negotiated and executed with MOA on October 16, 1962,
which, in some hazy fashion, Respondent appears to relate back to the "legal" Sep-
tember 5 recognition agreement and thus to bring both Section 10(b) and the prin-
ciple of the Bryan case into play, thus exculpating Respondent from liability there-
for. The sockdolager, which Respondent cannot hurdle in its argument on this point,
is that the "legal" September 5 recognition agreement contained neither union-security
nor hiring-hall clauses with which to justify Respondent for these otherwise illegal
discharges. Neither of these clauses which Respondent now attempts to argue
justified these discharges , came into existence until a month after the discharges and
thus well within the 6-month period.
The feature distinguishing the instant case from the Bryan case is that in Bryan
the presection 10(b) agreement contained the union-security clause which justified
the discharges there involved whereas here, as noted, the exculpating clauses were
not in the recognition agreement, presumed legal under Section 10(b) of the Act,
and did not come into being until a month aftei the discharges and well within the
6-month period. Obviously, therefore, neither Section 10(b) nor the Bryan case
are applicable to the facts here
In fact, the record is quite clear in addition that Respondent discharged the MEBA
adherents on September 18, 1962, as an integral part of its plan to prevent MEBA
from making a "showing of strength" similar to that made to MOA on September 4
and 5 so as to again becloud the still festering majority question. Consequently these
discharges on September 18 constitute further illegal assistance rendered by MOA by
Respondent MOA was clearly an illegally assisted Union long prior to the negotia-
tion and execution on October 16, 1962, of the agreement which bears the date of
October 1, 1962, between Respondent and MOA and, thus, this agreement between
Respondent and MOA is also illegal.
Accordingly, the facts require the findings here made that-
(1) Respondent violated Section 8(a) (1) of the Act by the coercive statements
made to MEBA adherents by Taylor, Sullivan, Bohm, and McGirl as well as by the
coercive telegrams of September 16 and 18, 1962, sent to the striking engineers
(2) Respondent violated Section 8(a)(2) by the above-found coercive statements
as well as by Respondent's subsequent illegal attempts to force all its engineers into
MOA, a labor organization not of the employees' own choosing, by discharging
known MEBA adherents in order to force them into membership in MOA and fur-
ther to create the impression that MOA was in fact the majority representative of
the engineers and by negotiating and executing an alleged collective-bargaining
agreement bearing the date of October 1, 1962, with its illegally assisted labor organi-
zation, MOA.
(3) Respondent violated Section 8(a)(1) and (3) by discharging its assistant
engineers and Section 8(a)(1) of the Act by discharging its supervisory chief engi-
neers in order to coerce each of them named below, into abandoning MEBA and
into joining MOA as Respondent desired and because said engineers concertedly
picketed and went on strike against Respondent because of the above-found unfair
labor practices.
IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in section III, above, occurring in connec-
tion with the operations of the Respondent described in section I, have a close, inti-
mate, and substantial relation to trade, traffic, and commerce among the several
States and tend to lead to labor disputes burdening and obstructing commerce and
the free flow of commerce.
MISSISSIPPI VALLEY BARGE LINE CO.
V. THE REMEDY
691
It having been found that Respondent has engaged in certain unfair labor prac-
tices, it will be recommended that it cease and desist therefrom and that it take
certain affirmative action designed to effectuate the policies of the Act.
It having been found that Respondent discriminated in regard to the hire and
tenure of employment of the engineers listed below by discharging them on Sep-
tember 18, 1962, I will recommend that Respondent offer to each of them immediate
and full reinstatement to his former, or substantially equivalent position without
prejudice to his seniority or other rights and privileges and make each of them
whole for any loss of pay he may have suffered by reason of said discrimination
against him by payment to him of a sum of money equal to that he would have
earned as wages from the date of the discrimination against him to the date of his
full and complete reinstatement together with restoration of his original seniority
date less his net earnings during such period in accordance with the formula set
forth in F. W. Woolworth Co., 90 NLRB 289, with interest thereon at 6 percent per
annum:
August F. Dermotta George J. Hosp Willis Chilcote
Harold Cummings Carl Jackson Russell Lesker
Earl J. Strobel Louis Lottie Jesse K. Griffin
Riley R. Hurley Leslie J. Walker T. W. Summer
Everett Medley Paul F. Adams Paul Evers
Leonard E. Van Meter Walter P. Coram Harry F. Stewart
It having been found that Respondent contributed illegal support and assistance
to Marine Officers Association, I will recommend that such assistance and support to
MOA cease and that Respondent cease giving any force or affect to the collective-
bargaining agreement dated October 1, 1962, with MOA unless and until MOA be
certified as the collective-bargaining agent by the Board.
Because of the variety of the unfair labor practices engaged in by Respondent, I
sense an opposition to the policies of the Act in general, and hence I deem it neces-
sary to order that Respondent cease and desist from in any manner infringing upon
the rights guaranteed its employees in Section 7 of the Act.
CONCLUSIONS OF LAW
1. By discriminating in regard to the hire and tenure of employment and in regard
to the terms and conditions of employment of those engineers listed in the Remedy
above, thereby discouraging union activities among its employees, Respondent has
engaged in and is engaging in unfair labor practices within the meaning of Section
8(a)(1) and (3) of the Act.
2. By illegally supporting and assisting Marine Officers Association, Respondent
has engaged in and is engaging in unfair labor practices within the meaning of Sec-
tion 8(a) (2) and (1) of the Act.
3. By interfering with, restraining, and coercing its employees in the exercise of
rights guaranteed to them in Section 7 of the Act, Respondent has engaged in and
is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the
Act.
4 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
Upon the basis of the foregoing findings of fact, and conclusions of law, and
upon the entire record in this case, I recommend that Mississippi Valley Barge Line
Co , St. Louis, Missouri, its officers, agents, successors, and assigns shall:
1. Cease and desist from:
(a) Discriminating in regard to the hire and tenure of employment or the terms
and conditions of employment of any of its engineers thereby discouraging member-
ship and activities on behalf of Marine Engineers Beneficial Association, AFL-CIO,
by discharging any of its engineers or by discriminating against any engineer in any
other manner in regard to their hire and tenure of employment or any term or con-
dition of employment.
(b) Giving support or assistance to Marine Officers Association or giving any
force or effect to its collective-bargaining agreement dated October 1, 1962, with
MOA unless and until MOA be certified by the Board as the bargaining representa-
tive of the engineers.
692 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) In any manner interfering with , restraining , or coercing its employees in the
exercise of their right to self-organization , to form labor organizations , to join or
assist Marine Engineers Beneficial Association , AFL-CIO, or any other labor organi-
zation , to bargain collectively through representatives of their own choosing, and to
engage in other concerted activities for the purposes of collective bargaining or other
mutual aid or protection , or to refrain from any or all such activities , except to the
extent that such right may be affected by an agreement requiring membership in a
labor organization as a condition of employment, as authorized by Section 8(a)(3)
of the Act as amended.
2. Take the following affirmative action which I find will effectuate the purposes
of the Act:
(a) Offer to those engineers listed above in the Remedy section of this report full
reinstatement together with restitution of his original seniority date to his previous,
or substantially equivalent position , and make each of them whole for any loss of
earnings each may have suffered by reason of the discrimination against him in the
manner set forth in this Decision in the section entitled "The Remedy."
(b) Preserve and, upon request , make available to the Board or its agents, for
examination and copying all payroll records, social security payment records, time-
cards, personnel records and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Recommended Order.
(c) Post in its principal office at 411 North Seventh Street, St . Louis, Missouri,
and in each of its tugboats copies of the attached notice marked "Appendix A." 24
Copies of said notice to be furnished by the Regional Director for Region 14, shall,
upon being duly signed by Respondent 's representative , be posted by it immediately
upon receipt thereof , and maintained by it for 60 consecutive days thereafter, in con-
spicuous places, in each of its tugboats , including all places where notices to employ-
ees 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 Region 14, in writing , within 20 days from
the date of the receipt of this Decision as to what steps the Respondent has taken to
comply with the foregoing recommendations.25
I further recommend that unless within 20 days from the date of receipt of this
Decision , Respondent notifies the Regional Director that it will comply with the
foregoing recommendations, the Board issue an order requiring Respondent to take
the aforesaid action.
" If this Recommended Order Is adopted by the Board, the words "a Decision and
Order" shall be substituted for the words "the Recommended Order of a Trial Examiner"
in the notice If the Board's Order Is enforced by a decree of a United States Court
of Appeals , the notice will be further amended by the substitution of the words "a
Decree of the United States Court of Appeals , Enforcing an Order" for the words "a
Decision and Order."
21 If this Recommended Order Is adopted by the Board , this provision shall be modified
to read: "Notify the Regional Director for Region 14, in writing within 10 days from
the date of this Order , what steps the Respondent has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended , we hereby notify you that:
WE WILL offer immediate and full reinstatement, including restoration of the
original seniority dates, to his former or substantially equivalent position to
each of the engineers named below and we will make each of said engineers
whole for any loss of pay he may have suffered by reason of the discrimination
practiced against him:
Riley R. Hurley August F Dermotta Carl Jackson
Harold Cummings Louis Lottie Jesse K Griffin
Earl J. Strobel Leslie J Walker Paul F. Adams
Everett Medley Walter P. Coram Paul Evers
Leonard E. Van Meter Willis Chilcote Harry F. Stewart
T. W. Summers George J. Hosp Russell Lesker
INTERNATIONAL SHOE COMPANY 693
WE WILL cease and desist from giving assistance or support to Marine Officers
Association and will notify our engineers that, due to illegal assistance which
we have rendered to Marine Officers Association, our collective-bargaining
agreement with MOA dated October 1, 1962, is without any force or affect and,
in fact, null and void.
WE WILL NOT in any manner interfere with, restrain, or coerce our engineers
in the exercise of the right to self-organization, to form labor organizations, to
join or assist District 2, Marine Engineers Beneficial Association, AFL-CIO, or
any other labor organization, to bargain collectively through representatives of
their choosing, and to engage in any other concerted activities for the purposes
of collective bargaining or other mutual aid or protection, or to refrain from any
or all such activities, except to the extent that such right may be affected by an
agreement requiring membership in a labor organization as a condition of
employment as authorized in Section 8(a)(3) of the Act as amended.
All our employees are free to become, or remain or to refrain from becoming or
remaining , members of the above-named or in any other labor organization.
MISSISSIPPI VALLEY- BARGE LINE CO.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
NOTE.-We will notify the above-named employees if presently serving in the
Armed Forces of the United States of their right to full reinstatement upon ap-
plication in accordance with the Selective Service Act and the Universal Military
Training and Service Act of 1948, as amended, after discharge from the Armed
Forces.
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, 4459
Federal Building, 1520 Market Street, St. Louis, Missouri, Telephone No. Main
1-8100, Extension 4142, if they have any questions concerning this notice or com-
pliance with its provisions.
International Shoe Company and Local 1820, International Long-
shoremen 's Association , AFL-CIO. Case No'. 14-CA-3327.
March 15, 1965
DECISION AND ORDER
On November 3, 1964, Trial Examiner Joseph I. Nachman issued
his Decision in the above-entitled proceeding, finding that Respond-
ent had not engaged in unfair labor practices as alleged in the com-
plaint, and recommending that the complaint be dismissed in its
entirety, as set forth in the attached Trial Examiner's Decision.
Thereafter, the General Counsel and the Charging Party filed
exceptions to the Trial Examiner's Decision and supporting briefs.
Respondent filed a brief in response to the exceptions filed by the
General Counsel and the Charging Party.
The National Labor Relations Board has reviewed the rulings
of the Trial Examiner made at the hearing and finds that no prej-
udicial error was committed. The rulings are hereby affirmed. The
Board has considered the Trial Examiner's Decision, the exceptions
and briefs, and the entire record in this case, and hereby adopts
the findings, conclusions, and recommendations of the Trial Examiner.
151 NLRB No. 78.