Pacific Coast Marine Firemen, Oilers, Watertenders and Wipers Association

National Labor Relations Board - Board Decisions

Dec 29, 1953

107 N.L.R.B. 593 (N.L.R.B. 1953)

PACIFIC COAST MARINE FIREMEN 593
The mere establishment of a new plant does not of itself
justify holding a separate election among the employees of such
plant to determine their bargaining representative. In the
present case , the circumstances connected with the erection of
the Edwards plant, its geographical nearness to the Saco-
Biddeford plant, its integration with that plant , the uniformity of
wages, hours , and working conditions of the two plants , the simi-
larity in working skills , the interchange of employees between
plants, and the centralized managerial control of operations, all
indicate that a unite limited to Edwards plant employees is not
appropriate .' As the Petitioner has not made an adequate show-
ing of interest in the larger unit which the Employer and the In-
tervenor contend is appropriate , we shall dismiss the petition.
[The Board dismissed the petition.]
9 See Hawthorne- Mellody Farms Dairy of Wisconsin , Inc., 99 NLRB 212.
PACIFIC COAST MARINE FIREMEN, OILERS, WATER-
TENDERS AND WIPERS ASSOCIATION, IND. and JAMES J.
PETRESSEN. Case No . 2-CB-878 . December 29, 1953
DECISION AND ORDER
On August 14, 1953, Trial Examiner John H . Eadie issued his
Intermediate Report in the above - entitled proceeding , finding
that the Respondent had engaged in and was engaged in certain
unfair labor practices and recommending that it cease and
desist therefrom and take certain affirmative action, as set
forth in the copy of the Intermediate Report attached hereto.
The Trial Examiner also found that the Respondent had not
engaged in certain other unfair labor practices alleged in the
complaint . Thereafter , the Respondent filed exceptions to the
Intermediate Report and a supporting brief.
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 Intermediate Report, the exceptions and brief,
and the entire record in the case, and hereby adopts the
findings , conclusions , and recommendations of the Trial
Examiner, with the modifications and exceptions noted below.
We agree with the Trial Examiner that the Respondent, in
violation of Section 8 (b) (1) (A ) of the Act , restrained and
coerced the charging party, Petressen , and other applicants
for employment by operating a discriminatory hiring hall in
the manner set forth in the Intermediate Report, despite its
agreement with Pacific Maritime Association to furnish
specified unlicensed personnel without discrimination because
of membership or nonmembership in its organization.' To
I As no exception has been taken to the Trial Examiner 's refusal to find that the foregoing
conduct also violated Section 8 (b) (2), we adopt his determination pro forma, without passing
upon the merits of that allegation.
107 NLRB No, 126.
594 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
remedy this violation, the Trial Examiner only recommended
that the Respondent be directed to cease and desist from the
unlawful conduct. A majority of the Board' believes that, in
addition to the recommended order, effectuation of the policies
of the Act requires the Board to provide a remedy for the
discrimination suffered by Petressen as a result of the Re-
spondent's application of its unlawful hiring-hall practices in
giving preference in job assignments to its members who had
registered for employment later than Petressen.3
In determining the appropriate remedy, we note that em-
ployment on the vessels whose personnel the Respondent sup-
plies is generally not continuous but of relatively short
duration. In such circumstances, the majority of the Board
finds that the policies of the Act can best be served by re-
quiring Respondent to notify Petressen in writing that, on
application, job assignments to vessels operated by members
of Pacific Maritime Association or any other employer
pursuant to an exclusive hiring-hall agreement , arrangement,
or practice will henceforth be available to him on a nondis-
criminatory basis, without reference to membership or non-
membership in its organization and without prejudice to his
standing on the registration list as of the time he was first
discriminatorily denied assignment. We shall also order the
Respondent to, make Petressen whole for any loss of pay
sustained by him because of its discriminatory denial of job
assignments to him.4 In accordance with the Board's practice,
the back-pay computation shall be made in conformity with the
formula prescribed in the Woolworth cases and shall exclude
the period between the date of the Intermediate Report and the
date of this Decision and Order. The Respondent shall also de-
duct from the amount due to Petressen such sums as would
normally have been deducted from his wages for deposit with
State and Federal agencies on account of social security and
other similar benefits. The Respondent shall pay to the ap-
propriate State and Federal agencies, to the credit of Petressen
2 Chairman Farmer, and Members Peterson and Rodgers. However, as hereinafter pro-
vided, the Respondent's obligation to maintain a nondiscriminatory hiring hall shall be
limited to such times as it acts as the exclusive souce of supply of the personnel in question
for Pacific Maritime Association or any other employer pursuant to an agreement , arrange-
ment or practice.
3 The record indicates that between May 27andJune 2, 1952, the Respondent assigned 22 book
men (union members) and not 20 as the Trial Examiner found, to jobs for which Petressen was
qualified, although they had registered for employment later than Petressen. The evidence,
however, is not clear as to whether Petressen applied for a job at the Respondent's hall on
June 2. In such event, if the June 2 referrals of book men with later registration dates were
excluded, the total number of book men in that category given job assignments during the
period Petressen applied for employment would be 17.
4As Petressen's testimony regarding his efforts to secure employment at the Respondent's
hiring hall is vague, and as no exception has been taken to the Trial Examiner's failure to
grant him back pay on such inconclusive evidence, Member Murdock would adopt the Trial
Examiner's recommended order.
5 F. W Woolworth Company, 90 NLRB 289.
PACIFIC COAST MARINE FIREMEN 595
and the employer or employers who would have employed him
but for the discrimination, a sum of money equal to the amount
which, absent the discrimination, would have been deposited
to such credit by the employer or employers, either as a tax
upon the employer or employers or on account of deductions
made from Petressen's wages by the employer or employers,
on account of such social security or other similar benefits.6
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 orders that the Respondent,
Pacific Coast Marine Firemen, Oilers, Watertenders and
Wipers Association, Ind., its officers, representatives, agents,
successors, and assigns , shall:
1. Cease and desist from:
(a) Giving preference to its members over nonmembers in
the assignment to jobs with members of Pacific Maritime
Association or any other employer pursuant to an exclusive
hiring-hall agreement , arrangement , or practice.
(b) Permitting its members to reject job assignments made
pursuant to an exclusive hiring-hall agreement , arrangement
or practice, without suffering any loss of standing on the
registration list, while requiring nonmembers to accept such
job assignments or suffer loss of standing on said registration
list.
(c) Requiring applicants to be members of the Respondent or
holders of working permits issued by it, as a condition of
assignment to jobs with members of Pacific Maritime Associa-
tion or any other employer pursuant to an exclusive hiring-hall
agreement , arrangement , or practice.
(d) In any other manner restraining or coercing employees or
applicants for employment with members of Pacific Maritime
Association or any other employer in the exercise of their
rights guaranteed them in Section 7 of the Act, except to the
extent that such rights may be affected by an agreement re-
quiring membership in a labor organization as a condition of
employment, as authorized in Section 8 (a) (3) of the Act.
2. Take the following affirmative action which the Board
finds will effectuate the policies of the Act:
(a) Make whole James J. Petressen for any loss of pay he
may have suffered by reason of the discrimination against
him, in the manner prescribed in the Board's decision herein.
(b) Notify James J. Petressen in writing that, on application,
assignments to jobs with members of Pacific Maritime
Association or any other employer pursuant to an exclusive
hiring-hall agreement, arrangement, or practice, will hence-
forth be available to him on a nondiscriminatory basis,
without reference to his standing on the registration list as of
6Pen and Pencil Workers Union, Local 19593, AFL, 91 NLRB 883
596 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the time he was first discriminatorily denied assign-
ment.
(c) Upon request, make available to the National Labor
Relations Board or its agents, for examination and copying,
all registration and shipping records necessary to determine
the amount of back pay due and the right to employment under
the terms of this Order.
(d) Post at its hiring halls copies of the notice attached
hereto as an appendix.? Copies of said notice, to be furnished
by the Regional Director for the Second Region, shall, after
being duly signed by an official representative of the Respondent,
be posted by the Respondent immediately upon receipt thereof
and maintained by it for a period of sixty (60)consecutive days
thereafter in conspicuous places, including all places where
notices to members are customarily posted. Reasonable steps
shall be taken by the Respondent to insure that said notices
are not altered, defaced, or covered by any other material.
(e) Mail to the Regional Director for the Second Region signed
copies of the notice attached hereto as an appendix for posting
at the offices of the members of Pacific Maritime Association
who are parties to the December 3, 1948, contract and in the
engine department of all vessels operated by them, in places
where notices to employees are customarily posted, if the
members of the Association will permit it. Copies of such
notice, to be furnished by the Regional Director for the Second
Region, shall be returned forthwith to the Regional Director
for posting after they have been signed by an official repre-
sentative of the Respondent.
(f) Notify the Regional Director for the Second Region in
writing, within ten (10) days from the date of this Order as to
what steps the Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint against the
Respondent be, and it hereby is dismissed insofar as it alleges
that the Respondent violated Section 8 (b) (2) of the Act.
APPENDIX
NOTICE
TO ALL MEMBERS OF PACIFIC COAST
MARINE FIREMEN, OILERS WATERTENDERS
AND WIPERS ASSOCIATION, IND.
Pursuant to a Decision and Order of the National Labor Re-
lations Board , and in order to effectuate the policies of the
National Labor Relations Act, as amended , we hereby notify
you that:
WE WILL NOT give preference to members of our
organization over nonmembers in the assignment to jobs
7In the event that this Order is enforced by 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."
PACIFIC COAST MARINE FIREMEN 597
with members of Pacific Maritime Association or any
other employer pursuant to an exclusive hiring-hall
agreement , arrangement , or practice.
WE WILL NOT permit members of our organization to
reject job assignments to Pacific Maritime Association
or any other employer made pursuant to an exclusive
hiring-hall agreement , arrangement , or practice without
suffering any loss of standing on the registration list,
while requiring nonmembers to accept such job assign-
ments or suffer loss of standing on said registration
list.
WE WILL NOT require applicants for employment to
be members of our organization , or to be holders of
working permits issued by our organization , as a con-
dition for assignment to jobs with members of Pacific
Maritime Association or any other employer pursuant
to an exclusive hiring -hall agreement , arrangement,
or practice.
WE WILL NOT in any other manner restrain or coerce
employees of or applicants for employment with the
members of Pacific Maritime Association or any other
employer in the exercise of their rights guaranteed them
in Section 7 of the Act, excepttothe extent that such rights
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.
PACIFIC COAST MARINE FIREMEN, OILERS, WATER-
TENDERS AND WIPERS ASSOCIATION, IND.,
Labor Organization.
Dated ................ By .................................. ...............
(Representative ) (Title)
This notice must remain posted 60 days from the date of
posting and must not be altered , defaced, or covered by any
other material.
Intermediate Report
STATEMENT OF THE CASE
Upon a charge duly filed by James J. Petressen, an individual, against Pacific Coast
Marine Firemen, Oilers, Watertenders and Wipers Association, herein called the Respond-
ent, the General Counsel of the National Labor Relations Board, respectively called herein
the General Counsel and the Board, by the Regional Director for the Second Region, issued
a complaint dated March 3, 1953, alleging that the Respondent had engaged in unfair labor
practices within the meaning of Section 8 (b) (1) (A) and (2) of the Act, affecting commerce
within the meaning of Section 2 (6) and (7) of the Act.
On about April 6, 1953, the Respondent filed an answer, in which it admitted in part the
jurisdictional allegations of the complaint, but denied commission of any unfair labor practices.
Pursuant to notice, a hearing was held atNew York, New York, on May 26 and June 1, 1953,
before the undersigned Trial Examiner. At the conclusion of the case the General Counsel and
598 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Respondent jointly moved to conform the pleadings to the proof, as to names, dates, and
other minor variances. The motion was granted. After the hearing, the Respondent filed
a brief with the Trial Examiner.
Upon the entire record in the case, and from his observation of the witnesses, the Trial
Examiner makes the following:
FINDINGS OF FACT
I. THE EMPLOYER
The Pacific Maritime Association, herein called the Association,' is a California corpora-
tion, with its principal place of business located in San Francisco, California. The Associa-
tion engages in collective bargaining and the negotiations of labor contracts on behalf of its
member companies with various unions, including the Respondent, which represent employees
of said member companies. American President Lines, Limited, a Delaware corporation,
is a member of the Association.
American President Lines has its executive office at San Francisco, California, with a
branch office located at New York, New York. During the year 1951, the company realized
gross revenues of $53,100,000 from interstate and foreign operation of its ocean-going
vessels, carrying freight and passengers for hire. During the same period, the company
purchased equipment and materials exceeding $ 1,000,000 in value, to supply, maintain, and
operate its vessels.
The parties stipulated at the hearing that American President Lines, Limited, is engaged
in interstate and foreign commerce within the meaning of the Act.
II. THE UNFAIR LABOR PRACTICES
On or about December 3, 1948, the Association, acting as agent for all of its members,
negotiated and executed a collective-bargaining contract with Respondent. This contract.was
effective until June 15, 1953, and is to continue in effect from year to year thereafter unless
terminated by written notice given by either of the parties. The contract contains a section
on employment which reads in part as follows:
SECTION 2. EMPLOYMENT. The Employers and the Unions recognize the desirability
of providing continued employment in the maritime industry , and the necessity of having
available at all times a supply of competent employees with experience in the various
types of vessels operated by the companies.
To provide such continued employment , and to assure operation of the vacation bene-
fits specified in the agreement , the employers agree to give preference of employment
to employees who have seniority by reason of having been previously employed by the
companies signatory to this agreement within the past two years in any classifications
covered by this agreement , and men who presently are employed on vessels operated
by employers signatory to this agreement.
The employers recognize that it has been the practice for such men to offer them-
selves for employment through the Union's offices , and consequently , for the purpose
of assuring maximun harmonious relations and in order to obtain the best qualified
employees covered by this agreement , the employers agree to secure all unlicensed
personnel within the classifications covered by this agreement from and through the
offices of the Union.
The Union agrees that as it is called on to fill vacancies as they may arise, it will
furnish capable , competent and satisfactory employees and will observe the preference
specified herein.
In the event that Employees with seniority , as herein defined , are not available
to fill vacancies , then the Union will undertake to supply the employers with capable,
competent and satisfactory employees . Neither as to such undertaking , nor as to any
other portion of this agreement , shall any employee be discriminated against by reason
of either membership in or nonmembership in the Union . The Union wul maintain ap-
propriate registration facilities for applicants for employment to make themselves
i The evidence discloses that the Association is the successor of Pacific American Ship-
owners Association.
PACIFIC COAST MARINE FIREMEN 599
available for job opportunities, and will conduct such registration facilities without
discrimination either in favor of or against prospective employees by reason of member-
ship in or nonmembership in the Union. It is agreed that membership in the Union
shall not be a condition of employment of any member of the unlicensed personnel
furnished or obtained in the manners specified in this agreement.
The Respondent has its principal office located at San Francisco, California. It has branch
offices or hiring halls located at New York, New York; San Pedro, California; Seattle,
Washington; Portland, Oregon; Honolulu, Territory of Hawaii; New Orleans, Louisiana; and
Baltimore, Maryland.
The assignment of applicants for employment to available jobs is regulated by the
Respondent's "shipping rules." The rules provide in part that "Book men shall have pre-
ference over permit men on all jobs for which they are qualified"; that book men have the
privilege of rejecting a job assignment without suffering any loss of standing on the regis-
tration roll, and that "Permit men shall accept jobs they are assigned to. If they do not
accept the job without reasonable excuse, their permits shall be subject to revocation."
Book men are members of the Respondent. They are issued white registration cards.
When there is an increase in shipping, seamen who are not members of the Respondent are
permitted to register at the hiring halls. They are called permit men; and yellow cards are
issued to them. Permits are not issued unless jobs are available. Permit men are required
to pay the regular dues and annual strike assessment of Respondent and to attend union
meetings. They are not required to pay initiation fees or the hospital assessments. They
are eligible for membership in Respondent after 1 year.
The assignment to jobs is based on rotation. When a job appears on the board, the men
who want the job "throw in" their registration cards for it. The Respondent's dispatcher
assigns the job to the man who has the oldest registration. Except in the classification of
wiper, jobs are assigned to permit men only if no book men apply, regardless of the date
of registration. Since about June 1952, permit men have been given a preference for wiping
jobs in that they are assured of every fifth job in that classification; and a book man can
not take this job unless no permit man is available for it.
Petressen, the charging party herein, was a book member of Respondent from April 1942,
through December 1946. During 1951, as a permit man he worked from May through September.
He was qualified for the positions of oiler, fireman, wiper, and fireman watertender. On
April 17, 1952, Petressen again registered with the Respondent as a permit man. However.
he did not attempt to secure a job until about May 27. He testified, in substance, that from
about this date through June 2 he went to the Respondent's hall every day; that he was present
when the hourly "calls" or job announcements were made; that he applied for a job on a
ship of the American President Lines because he "wanted to make a round-the-world trip
at that time", that he also applied for jobs on "some Victory ships"; and that these jobs
were assigned to book men, some of whom had registered later than April 17.2
The undisputed evidence discloses that between May 27 and June 2 book men who had
registered later than Petressen were assigned to 20 jobs for which he was qualified. Four
permit men who had registered after April 17 also were assigned to jobs during this period
of time. On May 27, 2 book men who had registered on May 1 and 17 were assigned the jobs
of wiper and fireman watertender on the S. S. President Tyler. On May 29, 12 men were
assigned to jobs on the S. S. Baylor Victory. Seven of these jobs, for which Petressen was
qualified, were filled by book men who had registered after April 17. It conclusively appears
from the record that under the Respondent's shipping rules Petressen could have been
assigned to jobs starting on April 22 if he had applied for them. 3
2 Petressen was vague in his testimony concerning the jobs and the dates on which he
applied for them. He testified to the effect that he thought he applied for jobs on the S. S.
President Tyler and the S S. Baylor Victory. With respect to the latter ship, he testified,
"During that time I threw in on one job for which they had called for a full crew. In this
case, I think it is the Baylor Victory: That was the one I threw in on."
3Petressen testified to the effect that he did not apply for jobs before on or about May 27
because he did not believe his card would mature before then.
600 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Conclusions
The evidence discloses that the agreement between the Respondent and the Association does
not require membership in the Respondent as a condition of employment . Nor does it provide
for any lesser degree of union security , suchas the Respondent 's permit system. Accordingly,
I find that the Respondent on and after May 27, 1952, has restrained and coerced Petressen and
other applicants for employment in the exercise of the rights guaranteed in Section 7 of the
Act, thereby engaging in unfair labor practices within the meaning of Section 8 (b) (1) (A) of the
Act, (1) by giving preference to its members over nonmembers holding its working permit
cards in the assignment to jobs with members of the Association ; (2) by permitting book men
to reject job assignments without suffering any loss of standing on the registration list, while
requiring permit men to accept job assignments or suffer loss of standing on said list and rev-
ocation of their permits ; and(3) by maintaining and operating a system of hiring-hall registra-
tion of applicants for employment with members of the Association which requires said ap-
plicants for employment with members of the Association which requires said applicants to be
members of Respondent or to be holders of working permits issued by the Respondent, as a
condition for the assignment to jobs.
The complaint alleges that the above conduct of the Respondent also constitutes a violation
of Section 8 (b) (2) of the Act. This contention is rejected since there is no proof in the case,
nor is it alleged in the complaint , that the Respondent caused or attempted to cause any member
of the Association to discriminate against applicants for employment in violation of Section 8
(a) (3) of the Act .4 The evidence does show that the Respondent itself discriminated against
Petressen and other prospective employees , as found above . However, there is no showing that
the Association or its members had knowledge of or condoned the discriminatory hiring system.
Under the circumstances , and particularly in view of the contract provisions against dis-
crimination , I believe and find that the General Counsel has failed to prove a violation of
Section 8 (b) (2) of the Act.
III. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent , set forth in section II, above , which occurred in connection
with the operations of the Employer set forth in section I, above, have a close , intimate, and
substantial relation to trade , traffic , and commerce among the several States , and between
the States and foreign countries , and tend to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
IV. THE REMEDY
Since it has been found that the Respondent has engaged in certain unfair labor practices,
it will be recommended that it cease and desist therefrom and take affirmative action which
will effectuate the policies of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I
make the following:
CONCLUSIONS OF LAW
1. Pacific Maritime Association is an employer within the meaning of Section 2 (2) of the
Act.
2. American President Lines , Limited, and the other members of Pacific Maritime Associa-
tion are engaged in commerce within the meaning of Section 2 (6) and (7) of the Act.
3. The Respondent is a labor organization within the meaning of Section 2 (5) of the Act
4. By restraining and coercing employees in theexerciseof the rights guaranteed in Section
7 of the Act, the Respondent has engaged in unfair labor practices with the meaning of Section
8 (b) (1) (A) of the Act.
[Recommendations omitted from publication.)
4Pacific American Shipowners Association , 98 NLRB 582.
0