Waterman of Puerto Rico-U.S.A., Inc.

National Labor Relations Board - Board DecisionsJan 15, 1965

150 N.L.R.B. 1082 (N.L.R.B. 1965)

1082 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT illegally interrogate employees as to their union membership, affiliation, desires, sympathies , or activities. WE WILL NOT, directly or indirectly , threaten employees with discharge for joining, affiliating with, voting for, or designating as their collective -bargaining representative , International Brotherhood of Electrical Workers, AFL-CIO, or any other labor organization , or for engaging in union or other lawful concerted activities for mutual aid or protection. WE WILL NOT indicate to employees the futility of joining, affiliating with, voting for , or designating , as collective-bargaining representative , International Brotherhood of Electrical Workers, AFL-CIO, or any other labor organization, or of engaging in union or other lawful concerted activities for mutual aid or protection. WE WILL NOT discourage membership in International Brotherhood of Electri- cal Workers , AFL-CIO , or any other labor organization , by terminating or threatening to terminate , or by failing or refusing to reinstate or reemploy, or by otherwise engaging or threatening to engage in any discriminatory action against any employee in regard to his hire or tenure of employment or any term or condi- tion of employment. WE WILL NOT fail to grant automatic periodic pay increases to our employees in accordance with our past practices because of the recognition request of Inter- national Brotherhood of Electrical Workers, AFL-CIO, or because any of our employees join, affiliate with , vote for, designate , as collective-bargaining repre- sentative , or otherwise engage in union activity or assist that union or any other labor organization. WE WILL NOT in any other manner interfere with, restrain , or coerce employees in the exercise of their rights, guaranteed to them by Congress, to self- organization , to form labor organizations , to join or assist any labor organization, to bargain collectively through representatives of their own choosing , to engage in concerted activities for the purposes of collective bargaining or other mutual aid or protection , or to refrain from engaging in any or all such activities. All employees are free to become, remain , or to refrain from becoming or remain- ing, members of International Brotherhood of Electrical Workers, AFL-CIO, or any other labor organization. DIXIE BROADCASTING COMPANY, OWNER AND OPERATOR OF RADIO STATION WDXI, Employer. Dated------------------- By------------------------------------------- (Representative ) ( Title) NOTE.-If the above employees are presently serving in the Armed Forces of the United States;we shall notify them of their right to full reinstatement upon application 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, Room 746, Federal Office Building, 167 North Main Street , Memphis, Tennessee , Telephone No. 534-3161 , if they have any question concerning this notice or compliance with its provisions. Waterman of Puerto Rico-U.S.A., Inc . and New Orleans Steam- ship Association and General Longshore Workers, I.L.A., Local Union Nos. 1418 and 1419 , AFL-CIO , Parties to the Contract. Case No. 15-CA-2397. January 15, 1965 DECISION AND ORDER On February 11, 1964 , Trial Examiner James V. Constantine issued his Decision in the above -entitled proceeding , finding that Respondent 150 NLRB No. 96. WATERMAN OF PUERTO RICO-U.S.A., INC. 1083 had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Decision. Thereafter, Respondent filed exceptions to the Decision, and a brief in support of the exceptions. The General Counsel also filed exceptions to the Decision, but only as to certain inclusions and exclusions in the Appendix by the Trial Examiner. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Mem- bers Fanning and Jenkins]. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the entire record in this case, including the Decision, the exceptions, and the brief, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner, but only to the extent consistent herewith. The principal issue in this case is whether the meaning of the words "employers hereunder," as found in "Article I.: Recognition" of the current contract between the New Orleans Steamship Associa- tion and Dock Loaders and Unloaders of Freight Cars and Barges, I.L.A., Local No. 854, is such as to require Respondent to bargain jointly with other employer-members of the Association in connection with Respondent's so-called trailership operation. The Waterman Steamship Corporation of Puerto Rico operates vessels between the gulf ports and Puerto Rico. As agent for Water- man Steamship since 1961, Respondent, Waterman of Puerto Rico- U.S.A., maintains pier facilities and a warehouse in New Orleans and has contracted with Ryan Stevedoring Company for the loading and unloading of conventional bulk cargo on vessels. By letter dated October 9, 1961, Respondent authorized and directed the Association to act as its agent for the purposes of bargaining with certain unions affiliated with the International Longshoremen's Association includ- ing Local 854, but not with Locals 1418 or 1419.1 The Association, with the approval of former President Ryan of Local 854, agreed to accept Respondent under the Association's existing 1959-62 contract with Local 854. Respondent, although not listed as a signatory to the contract, nevertheless concedes that it was bound by the agreement 2 i At this time, Respondent did not employ any members of Local 1418 or 1419 nor did its employees perform longshore work normally falling within the jurisdiction of those locals 2 The Board has held that an employer can be added after the execution of such a contract if the union agrees to the inclusion . Cascade Employers Association, Inc., 141 NLRB 469, 473, footnote 8. 1084 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The second provision of article I of the contract reads as follows : It is agreed that prior to any employer hereunder commencing operation of a service into New Orleans of the Piggy Back roll on/roll off, lift on/lift off type, the employers hereunder and the Union will enter into negotiations promptly and mutually agree upon the terms and conditions of employment of labor required in the operation. [This provision was carried over into the 1962- 64 contract.] A substantially similar provision appears in the 1959-62 Deep Sea. Agreement between the Association and Locals 1418 and 1419,,except that in the latter contract the language "the Association and I.L.A. Locals, 1418 and 1419" appears in lieu of "the employers hereunder and the Union." Negotiations with the Association for a new contract commenced in July 1962 and resulted in a strike and picketing by Local 854. A memorandum of settlement, ratified by the members-of the Associa- tion, was signed by Local 854 and the Association on January 24, 1963. It extended the 1959-62 contract through September 30, 1964, and embodied all the terms and conditions of that contract except for minor modifications in the basic wage scale and certain fringe bene- fits. No attempt was made by Respondent, within the 7 days allowed under the bylaws,' to resign from the Association, and it thus be- came-as it stipulated-bound by the terms of the extended contract. At a meeting held in the office of Local 1419 on May 10, 1963, attended by the presidents of Locals 854, 1418, and 1419, as well, as representatives of other locals and higher officials of the I.L.A., Respondent announced its intention to institute a "trailership" opera- tion on or about June 4, 1963, and advised that all correspondence relating thereto should be addressed to Vice President and General Manager Mayor, and ' that a copy of the communication should be sent to the Association. On May,20, King, president of- Local 854, wrote to Mayor, requesting a meeting with Respondent for purposes of negotiating concerning "our share in the [trailership] operation." King sent a copy of the letter to the Association, which notified King that the Association would "carry out the Association's obligations under the collective-bargaining agreement." The Association also wrote to Respondent requesting information concerning the proposed operations "in order that we may discharge our obligation,under the contract...." The Association also attempted to arrange for a meet- ing 'with representatives of Respondent, Local 854, and Locals 1418 and 1419. Respondent did not attend the meeting, and told the Association to refrain from participation because it intended to do its 8 Article 12 of the bylaws provides, in part that "a member who has not authorized or accepted in writing such contract , . . . shall not be bound by such contract, if such 11member resigns within seven ( 7) days after the date of the vote thereon, .. . WATERMAN OF PUERTO RICO-U.S.A., INC. 1085 own negotiating with Local 854. - Thereafter, Respondent did enter into discussions with various representatives of the I.L.A. including representatives of Locals 1418 and 1419. King attended these meet- ings, but declined to execute the memorandum of understanding agreed to on June 3, because he "already had an agreement with. the Association." The memorandum of understanding divided the work involved in the trailership operation between members of Local 854 and members of Locals 1418 and 1419.4' - On the basis of the foregoing, we find that (1) Respondent duly notified Local 854, the collective-bargaining representative of its employees, of its intention to institute a "trailership" •.operation; (2) Local 854 requested that Respondent bargain with-it concerning the institution of the operation; (3)• Respondent was willing to negotiate with Local 854 but insisted upon the right to conduct the negotiations itself, rather than having the negotiations conducted by the Associa- tion; (4) the Association notified 854 that it claimed the right to bar- gain for Respondent under the contract between the Association and Local 854; (5) Local 854 was willing to bargain with Respondent only through the Association, so long as the latter persisted in its claim that it had a contractual right to conduct the negotiations in behalf of Respondent. It is thus apparent that the issue of whether Respondent violated Section. 8(a) (5) in insisting upon conducting its own negotiations with Local 854, rather than acquiescing in the Association's claim that negotiations must be conducted between the Association and Local 854, turns on an interpretation of article I of the collective- bargaining agreement between the Association and Local 854, which has been set forth above. .Contrary to the Trial' Examiner, we find that the provisions of article I did not clearly confer upon the Association the contractual right to represent Respondent in the latter's collective-bargaining negotiations with Local 854 concerning the "trailership" operation involved herein. In our opinion, the language of that provision is ambiguous in meaning, and although it'is susceptible to the construc- tion placed on it by the Trial Examiner, such a construction is-by no 4 Although the Trial Examiner found that the "containerized cargo work constitutes an accretion to the existing unit" represented by Local 854, we deem it unnecessary to pass upon this conclusison , in view of our disposition of the issue discussed below. We note, however, that all the parties involved in the dispute recognized the propriety of including Locals 1418 and 1419 in the discussions concerning the "trailership" operations. Thus, the Association attempted to arrange a meeting between Respondent, Local 854, Locals 1418 and 1419, and itself. Local 854 attended meetings conducted by Respondent with Locals 1418 and 1419 and other I.L.A. representatives, and though it was not in entire agreement with work claims made by Locals 1418 and 1419, it did not dispute the fact that some of the work could properly be assigned to members of those locals. Finally, as to the warehousing work involved in the operation , it is clear that the collective-bargaining agreement between the Association and Local 854 did not establish the terms and conditions under which Local 854 members were to work ; the agreement explicitly left the negotiations of such terms to future bargaining. As to these terms, Respondent was at all times ready and willing to negotiate with Local 854. 1086 DECISIONS OF NATIONAL LABOR RELATIONS BOARD means the only reasonable one.5 Thus, the provision in question com- mences with a reference to "any employer." The word "any" is defined in Webster's Dictionary as "Being one (or, pl., some) indis- criminately of whatever kind `or' ... of whatever quality." As used in the article in question, the reference to "any employer" clearly seems intended to impose on all those employer-members of the Asso- ciation, whether one or more than one-who decide to institute a "trailership" operation during the term of the contract, an obligation to bargain with Local 854 prior to commencement of such operation. The provision in question then shifts to the use of the plural form, "the employers hereunder" in stating how the obligation shall be discharged. While this latter use may have been intended to "em- brace the Association," it more reasonably can be construed as a reference to all those employers who institute a trailership operation during the term of the contract, whether they number one or more than one, as distinguished from those employer-members of the Association who are not involved in such operations. Such a con- struction is consistent with that apparently intended for article VII of the Association contract, which permits the establishment of piece rates, not otherwise established in the collective-bargaining contract, by "agreement of employers and employees." Furthermore, this con- struction is consistent with the language of articles IV and VI which expressly refers to the Association by name when providing for its participation in disputes between individual employers and Local 854 arising under the contract. Finally, we note that the Association, which negotiated the language in question, has negotiated an agree- ment with Locals 1418 and 1419 relating to "trailership" operations, which expressly provides for negotiation between the Association and the unions involved. In view of the foregoing, we are unable to con- clude that Respondent was contractually bound to discharge its statutory bargaining obligation concerning its trailership operation only by dealing through the Association or its agent.6 Accordingly, we conclude that the General Counsel has failed to prove by a preponderance of the evidence on the record as a whole that the words, "the employers hereunder," are synonymous with "the Association." Respondent's statutory obligation was to recognize and bargain in good faith with Local 854, and if agreement was reached to embody it in a signed contract. Respondent was at all B The use of the singular form of employer to confer a right or impose an obligation on all employers covered by the contract appears in certain provisions of the contract See, for example, articles II and Ix . Conversely , articles VIII and XII accomplish the same result by use of the plural form. In view of the uniqueness of the "trailership " operation as compared to operations of other employees in the unit and the fact that the Association contract clearly manifested the parties ' agreement that that contract did not provide the terms and conditions under which labor was to be employed on such an operation, we reject the General Counsel's contention that Local 854 had a right under the statute to bargain only with the Asso- ciation, which right could be waived only by a clear unequivocal disclaimer on its part WATERMAN OF PUERTO RICO-U.S.A., INC. 1087 times willing to do so. I On the basis of all of the foregoing, we find, contrary to the Trial Examiner, the Respondent's insistence upon conducting its own negotiations with Local 854 did not constitute a refusal to bargain within the meaning of Section 8(a) (5). Accord- ingly, we shall dismiss the complaint. [The Board dismissed the complaint.] TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE This is an unfair labor practice case initiated by a charge filed on June 6, 1963, by New Orleans Steamship Association against Waterman of Puerto Rico-U.S.A., Inc. A complaint based on that charge was issued on September 23, 1963, by the General Counsel of the National Labor Relations Board, through the Regional Director for Region 15 (New Orleans, Louisiana), against said Respondent. In substance said complaint alleges that Respondent has engaged in and is engaging in unfair labor practices violating Section 8(a)(1) and (5), which affect commerce as defined in Section 2(6) and (7), of the National Labor Relations Act Respondent has answered admitting some facts but putting in issue the commission of any unfair labor practices. Pursuant to due notice this cause came on to be heard before Trial Examiner James V. Constantine at New Orleans, Louisiana, on December 4 and 5, 1963. All parties were represented at and participated in the hearing and had full opportunity to adduce evidence, examine and cross-examine witnesses, submit briefs, and offer oral argument. Briefs have been received from all parties. Before any evidence was received Respondent moved to dismiss the complaint. This was denied because I was of the opinion that the complaint stated sufficient facts which, if proved, constituted unfair labor practices. When the General Counsel rested this motion was renewed. It was denied at this stage of the proceeding because I was of the view that the evidence, if believed, warranted a finding that Respondent engaged in unfair labor practices. The motion was again offered at the close of the case. It was denied on the ground that the evidence warranted, but did not compel, a finding that a prima facie case had been presented. Upon the entire record in the case, including the stipulations of the parties, and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT Respondent, a Louisiana corporation, is engaged in the business of providing ware- house facilities and related services in New Orleans, Louisiana. During the year pre- ceding issuance of the complaint, it received in excess of $50,000 for services performed for its customers with'respect to goods shipped to it from outside the State; and, during the same period, it received in excess of $50,000 for services to customers in the State who shipped goods valued in excess of $50,000 to points outside the State. I find that Respondent is engaged in commerce and that it will effectuate the purposes of the Act to assert jurisdiction over it. If. THE LABOR ORGANIZATIONS INVOLVED General Longshore Workers, LL A., Local Union No. 1418, AFL-CIO; General Longshore Workers, I.L.A., Local Union No. 1419, AFL-CIO; and Dock Loaders and Unloaders of Freight Cars and Barges , I.L.A., Local Union No. 854, AFL-CIO, are all labor organizations within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES Many of the facts have been uncontroverted. Where dispute exists, it has been resolved in accordance with my evaluation of the credibility of the witnesses and reasonable inferences drawn from the evidence. In ascertaining credibility, I have credited some witnesses in part only. In general I have not narrated evidence. Cf. 775-692-65-vol. 150-70 1088 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Trumbull Asphalt Co. of Delaware v . N.L.R.B., 314 F. 2d 382, 383 (C.A. 7). How- ever, all evidence has been considered ; that consonant with the facts found herein has been credited , and that inconsistent with such findings has been rejected. Cf. Marquandt v. Y.W.C.A. ( Mass. ), 184 N.E. 287, 288. A. Chronology of events Essentially , this case involves the question of whether a member of an employer association may, after the association has entered into a collective -bargaining contract with one union , revoke the association's representative authority and bargain individu- ally with another union regarding certain bargainable matters during the term of the contract . In connection therewith , other important issues must be resolved. New Orleans Steamship Association ,' a nonprofit Louisiana corporation , is com- posed of employers engaged in shipping, stevedoring, and related services at the port of New Orleans and elsewhere . Among other things it represents its employer- members in negotiating collective -bargaining agreements with unions at the port of New Orleans, including Locals 854, 1418, and 1419, of the I.L.A. It bargains, with Local 854 concerning dock loaders and unloaders, and, since 1959, has had a contract covering such employees ; it also bargains with Locals 1418 and 1419 concerning long- shore work, and since 1959 has had a so-called Deep Sea Agreement covering such employees. By letter dated October 3, 1961, Respondent applied for membership in the Association with an assurance that "if elected, [we] agree to abide by the Charter and By-Laws, and the Rules and Regulations of the Association." This application was accepted about October 3, 1961, and Respondent remained a member at least until June 4, 1963, when it sought to withdraw such membership. By letter dated October 9, 1961, Respondent authorized the Association to "act as our bargaining agent in negotiating and executing , in our name and on our. behalf, labor contract covering wages, hours and conditions of employment with [among others, I.L.A. Local 854] and thereafter to function as our agent and representative in accordance with the terms of such agreements ...." 2 This did not mention I.L.A. Locals 1418 or 1419. On October 6, 1961, August 30, 1962, and May 8, 1963, Respondent designated in writing its "certified representative " and "alternate repre- sentatives" to the Association in accordance with the charter and bylaws of the Association. By a memorandum dated October 10, 1961, the Association- and Local 854 agreed that Respondent would "be included as a participating company" in -the 1959-62 Dock Loaders and Unloaders Agreement executed by the Association and Local 854 "to the same extent as all the firms listed therein." Several other employers are listed on the contract as represented by the Association. Respondent is a wholly owned subsidiary of McLean Industries. So is Sea-Land Service, Inc., which was named Pan Atlantic Steamship Corp. from 1947 to about 1960 or 1961. Another totally owned subsidiary of McLean Industries is Waterman Steamship Corporation of Puerto Rico (herein called Waterman). This latter is an operating company; i.e., it operates vessels. Respondent , organized in 1961, is not an operating company; rather, it acts as sales agent for Waterman Steamship Corpora- tion of Puerto Rico, herein called Waterman. As such sales agent, Respondent books cargo, arranges for loading and unloading of vessels by'independent stevedores, and conducts warehouse operations. Prior to June 1963,3 Waterman handled only conventional or break bulk cargo. In June , Waterman instituted an additional service called "trailership operation." This service was terminated on July 31. Conventional cargo is loaded into a hold as an independent shipment . In a trailership operation, also known as "lift-on/lift-off," or "van," or "containerized" operations , cargo is first loaded into containers and then the container as a unit is loaded on to a ship. Generally the container is a 50-foot high van which can be hauled by a truck and trailer and which is detached from the truck trailer bed. Specially designed ships are used in transporting such vans. These vans were leased by Waterman from Sea-Land Service, Inc. The first container-type ship arrived in New Orleans on June 4. Such ships, as' well as conventional cargo carrying ships, are actually loaded and unloaded by long- shoremen who are employees of Ryan Stevedoring Company and who are represented by Locals 1418 and 1419 of I.L.A. The above-mentioned Association and Locals 1418 and 1419 bargain for said longshoremen and the above -mentioned Deep Sea 'If material , I find as a matter of fact and conclude as a matter of law that the Asso- ciation is an employer engaged in commerce a The charter and bylaws of the Association also provide that a member is bound by a collective -bargaining agreement executed on its behalf unless it "resigns within seven days after the date of the [Association] vote thereon .. . . 3 All dates hereafter refer to 1963 unless otherwise specified. WATERMAN OF PUERTO RICO-U.S.A., INC. 1089 Agreement covers them. The Association bargains with these locals for Association members. Such ship docked at the Perry Street wharf where Respondent maintains its warehouse in New Orleans. Prior to the commencement of the trailership opera- tion Respondent had no collective-bargaining contract with Locals 1418 or 1419. After joining the Association in 1961 Respondent became a, party to the Dock Loaders and Unloaders collective-bargaining contract which had been executed by the Association and Local 854 in 1959 and which, expired in 1962:. Contracts for the same period were signed by the Association and Locals 141& and 1419 covering stevedoring work, but Respondent was not a party to these since Respondent neither performed stevedoring work nor used employees represented by those locals. On January 24, 1963, the expired Dock Loaders and Unloaders contract was extended by written agreement of the Association and Local 854 until September 30, 1964, and Respondent became a party to this new contract. This, like its predecessor, covers employees engaged in loading and unloading cars and operating forklifts. When the 1959-62 contract between the Association and Local 854 expired, the parties nego- tiated for a new contract "on all types of containers on the lift-on/lift-off operations." After a strike during negotiations, a memorandum 4 of settlement executed on Janu- ary 24, 1963, served to extend the previous, contract to September 30, 1964. This in substance embodied all the terms of the previous contract except for increases in monetary matters. Respondent concedes that it accepted the latter agreement and became a party thereto. - On May 10, 1963, Respondent's impending trailership operation was discussed at a meeting attended by representatives of several I.L.A. locals, including Locals 854, 1418, and 1419, and Respondent, at which the impending trailership operation was mentioned for the first time. Nothing definite was reached because it was. "lust an informative meeting." By letter dated May 20, 1963, President King of Local 854 requested a meeting with Respondent to negotiate regarding the proposed trailership operation, claiming that the contract between the Association and Local 854, to which Respondent was a party, covered the lifting of vans on and off the ships. This was received.on May 21. A copy was mailed to and received by the Association at the same time. Thereupon, by letter dated May 21, the Association wrote to Respondent that, as the authorized agent for Respondent, it desired information regarding the "lift-on/lift-off" operation so as to be able to bargain with Local 854 thereon. After receiving a copy of President King's letter of May 20, 1963, to Respondent, the, Association assured King that it would `carry out the Association's obligations under the collective-bargaining agreement.". Thereafter the Association set up a meeting for May 31 to negotiate thereon, inviting thereto Locals 854, 1418, and 1419, Ryan Stevedore Co., and Respondent. However, Respondent told the Association to "stay out of this matter" and not negotiate thereon, that Resopndent would discuss its "operations" with Locals 1418 and 1419, but indicated it would attend the meeting. Nevertheless, Respondent did not attend; nor did Locals 1418 and 1419. However, Ryan Stevedore Co. and Local 854 were represented there. At the meeting on May 31 those present discussed the lift-on/lift-off operations, the Union (Local 854) requesting an agreement thereon before it commenced. Local 854 also filed an oral grievance with the Association that members of other unions were doing work belonging to Local 854 "under the scope of the contract." Immedi- ately after the meeting the Association wrote to Respondent protesting the execution of a contract, if one had been made, covering van cargo and insisting upon observance of the Association's "integrity as the collective-bargaining agent in this port." This letter of May 31 also protested the execution of any agreements, with any union in the area where the Association had a status as exclusive bargaining agent for its members and asked whether in fact any had been negotiated. Replying to the foregoing letter, Respondent on June 4 wrote to the Association resigning from the Association and asserting that it would bargain independently of the Association. On June 5 the Association telegraphed Respondent that "your resignation is out of order and will not be accepted." On June 3, 1963, Respondent and several unions, including Locals 1418 and 1419, signed ^a memorandum 5 of agreement providing for "addendums" to the "contracts existing between [Respondent] and the ... Association ..... Local 854 refused to sign it. In substance it provides, among other things, that members of Locals 1418 4 Another memorandum of settlement was signed on January 24, 1963, by the Associa- tion and Locals 1418 and 1419 extending the Deep Sea Agreement between them to September 30, 1964. Both this and the January 24 memorandum relating to Dock Loaders and, Unloaders are found to be collective-bargaining, contracts. Ice Cream Council, Inc., 145 NLRB 865. 5 Officials of I.L.A. also signed it. 1090 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and 1419 shall be employed on a "container gang." Thereafter, for the first time, Respondent began employing persons who were represented by Locals 1418 and 1419. This memorandum I find covered lift-on/lift-off work and assigned most of it to Locals 1418 and 1419. Evidence has been adduced as to the various operations involved in handling con- tainerized cargo and the locals to which the employees performing them belonged. However, I make no findings on this evidence because I am of the opinion, and find, that this case is not concerned with work assignments and the validity thereof. Accordingly, such evidence has not been narrated herein. Local 854 refused to sign the June 3 memorandum alluded to above because it claimed much of the work involved and because it insisted that the bargaining on these matters be conducted by the Association. The memorandum of agreement had been prepared by and was brought to the meeting by representatives of Respondent. B. Discussion and concluding findings 1. As to the appropriate unit Except for modification of certain monetary items, which are not pertinent here, the provisions of the 1959-62 Dock Loading contract were reaffirmed and extended to September 30, 1964. ^ By article I of that 1959-62 contract, the unit for which Local 854 is recognized is designated as employees who shall be engaged to load and unload freight cars and barges or securing freight on cars, wharves , or in sheds, head- ing cotton on wharves , working with inspectors , handling any and all commodities on wharves, labor for weighing, gauging, and sampling on wharves, all men who shall be engaged to assort freight on wharves, stenciling and tagging any and all commodities on wharves, and the loading and unloading of trucks, vans, and trailers on wharves, and piggyback roll-on/roll-off and lift-on/lift-off operations in the port of New. Orleans. I find that this is an appropriate unit for purposes of collective bargaining under Sections 9 and 8(a) of the Act: This also is a multiemployer unit composed of members of the Association. Further, I find that Respondent is an employer whose employees are included in this unit by reason of the following, which I find as facts: (a) By joining the Association, Respondent became bound by the former's bylaws authorizing the Association to negotiate for it: (b) Respondent by a written designa- tion on October 9, 1961, expressly appointed the Association its agent to negotiate for it; (c) the Association and Local 854 in writing agreed 6 to include Respondent in the multiemployer unit; and (d) Respondent essentially does not deny that the 1959- 62 and the 1963-64 Dock Loaders and Unloaders contracts are binding upon it. But Respondent points out that a provision in said article I of the 1959-62 contract removes the authority of the Association to act as its agent with respect to the trailer- ship operation. This reads: It is agreed that prior to any employer hereunder commencing operation of a service into New Orleans of the Piggy Back roll on/roll off, lift on/lift off type, the employers hereunder and the Union will enter into negotiations promptly and mutually agree upon the terms and conditions of employment of labor required in the operation.? [This was carried over into the 1963-64 contract.] It is my opinion , and I find , that the foregoing language does not carve out of the agent's powers a right of individual bargaining and confer upon Respondent the right to bargain upon the lift-on/lift-off operation. In the first place, this provision textually preserves the Association's authority to negotiate and bargain in this area. Thus the clause states that "the employers hereunder" will bargain with the Union before "any employer hereunder" (including Respondent) commences such an operation. The words "employers hereunder" refer to a group or aggregate of all the employers represented by the Association, just as the opening clause of the contract mentions that the Association is "acting for and on behalf of the following employers ...." That the parties have consciously embraced the Association by use of the word "employers" is also manifested by the use of the words "the employer involved" when an individual employer was intended to act independently of the Association. See, e.g., articles II, VI, VII, and VIII of the 1959-62 contract. (General Counsel's Exhibit No. 9.) In the second place, the lift-on/lift-off work falls in essentially the same category as some of the other work being performed by members of Local 854. Hence I find that the containerized cargo work constitutes an accretion to the existing 'unit, and that, 6 Panaderia La Reguladora , 118 NLRB 1010, 1014. 4 A substantially similar provision, appears in the 1959 -62 Deep Sea Contract between the Association and Locals 1418 and 1419 WATERMAN OF PUERTO RICO-U.S.A., INC. 1091 since it is an accretion , Respondent must bargain thereon , through the Association, with Local 854 ,- unless Respondent 's withdrawal from the Association exculpates it from such an onus. 2. Respondent 's resignation from the Association As found above, Respondent joined the Association on October 3, 1961, designating it as its bargaining representative , after the Association had been organized and had negotiated a contract with Local 854. Since Respondent adopted said contract and both the Association and Local 854 explicitly consented to such adoption, Respondent thereby became a member of a multiemployer unit during the term of the contract. Panaderia La Reguladora, 118 NLRB 1010; Northern Nevada Chapter, National Electric Contractors and Represented Employers, 131 NLRB 550, 552; Ice Cream Council, 145 NLRB 865. But on June 4, 1963, Respondent submitted its resignation from membership in the Association. Whether this resignation became effective to terminate membership , despite its rejection by the Association , is an issue which I do not decide , as it involves rights as between parties over which the courts , rather than the Board, are invested with power to adjudicate. Before the Board, however, the question is whether Respondent may withdraw from the unit and thus revoke its prior delegation of bargaining authority to the Association regardless of whether Respondent retained membership in the Association. It is a cardinal rule that a bargaining relationship lawfully established between an employer and a union cannot be broken up or severed by either party for a reasonable period without permission of the other. Franks Bros. Co. v. N.L.R.B., 321 U.S. 702, 705; Centr-O-Cast & Engineering Company, 100 NLRB 1507. In the case of a multi- employer unit, the Board holds that it is desirable in the interest of stability to preserve the unit for a reasonable time, allowing any party thereto to withdraw only at an appropriate time. The Milk and Ice Cream Dealers of the Greater Cincinnati, Ohio, Area, etc., 94 NLRB 23, 25. But the latest time to escape from multiemployer bar- gaining, and to pursue an individual course of action, is before a new contract has been negotiated. McAnary & Welter, Inc., 115 NLRB 1029. That time in the instant case is January 24, 1963, when the Association negotiated the memorandum of settle- ment extending the 1959-62 contract to September 30, 1964. Such memorandum, I find , is a negotiated contract within the meaning of McA nary & Welter, supra. It follows, and I find, that since Respondent between September 30, 1962, and January 24, 1963,8 did not unequivocally manifest its intention to withdraw from multiemployer bargaining during the escape period , its purported withdrawal on June 4, 1963, was ineffective absent consent thereto by Local 854.9 McAnary & Welter, Inc., supra; Ice Cream Council, Inc., supra. But Respondent argues that the escape period is any time prior to the execution of an agreement covering lift-on/lift-off work; and that , since it withdrew from the multiemployer unit before such agreement was negotiated , it should be absolved of any liability for refusing to bargain on this subject after June 4, 1963. The foregoing contention is misplaced . Board decisions provide that only one escape period is available , and that it vanishes when a new contract is consummated. The modification or supplementation of a collective -bargaining contract by other agreements or understandings (whether written or not ) arrived at during its term do not create a new opportunity for discarding the multiemployer unit . These modi- fications or supplements manifestly do not abrogate the main collective -bargaining contract to which they related ; rather, they are addenda to it and became part of it by incorporation. 3. The majority status of Local 854 On the evidence before me , I find that Local 854 represented a majority of the employees in the appropriate unit when the 1959 -62 contract was signed , and that this majority continued at all material times thereafter . It may be presumed , absent evidence to the contrary, that Local 854 represented a majority in that unit when the 1959-62 contract was made. Accordingly I so find . It would seem that the same presumption applied on October 3, 1961 , when Respondent joined the Association and became a member thereof . I so find. Such presumptions, noted above, were confirmed in my opinion by the fact, which I find, that none of Respondent's or any other Association member's employees worked or crossed picket lines during Local 8 The actual escape period started with the termination of the 1959 -62 contract, i.e., September 30, 1962. 8I do not reach the question of whether the Association also was required to acquiesce in such withdrawal also as a condition to its validity. - 1092 DECISIONS OF NATIONAL LABOR.RELATIONS BOARD 854's strike,10 in late 1962 and early 1963. Hence I further presume.that.when the instant contract was signed on January 24, 1963, Local 854 enjoyed majority status in the appropriate unit; and I so find. Shamrock Dairy, Inc., 1.19 NLRB 998, 1002; 124 NLRB 494, 495-496; enfd. 280 F. 2d 665 (C.A.D.C.), cert. denied 364 U.S. 892. Since the 1963-64 contract was made by the Association with a majority union, both the Association and its members could not withdraw recognition from Local 854 at any time while that contract remained in force. Hexton Furniture Company, 111 NLRB 342, 344. N.L.R.B. v.'Dorsey Trailers, Inc., 179 F. 2d 589, 593 (C.A. 5), does not collide with this conclusion. ' It follows, and I find, that upon the foregoing subsidiary and ultimate findings, and upon the entire record, Respondent has failed to meet its statutory obligation under Section 8(a)(5) of the Act to bargain collectively, and that such refusal to bargain derivatively also violates Section 8 (a) (1) of the Act. In arriving at the foregoing conclusions I have not overlooked the stipulation of the parties that the charge in Case No. 16-CB-654, filed by the Association against Locals 1418 and 1419, was dismissed by the Regional Director. This charge alleges that said locals, in violation of Section 8(b)(1)(13) and (3), refused to bargain with the Association by negotiating and concluding with Respondent herein a special agreement covering lift-on/lift-off operations in the port of New Orleans. It is my opinion, and I find, that said dismissal does not control and should not influence the disposition or outcome of the present case. The fact that an injured person seeks to proceed against three persons in an administrative agency, but succeeds in convincing the agency to proceed against only one, should not prejudice the pursuit of a remedy by the agency in the one case selected for prosecution. This is particularly true when the agency may not commence a prosecution on its own initiative but only upon a formal charge presented to it by the public. I expressly find that neither res judicata nor collateral estoppel are involved. IV. THE EFFECT, OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with the operations of Respondent as set forth in section I, above, and the operations of members of the Association as set forth in section III, above, 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. V. THE REMEDY Having found that Respondent has engaged in specific unfair labor practices pro- hibited by Section 8(a)(1) and (5) of the Act, it will be recommended that it be ordered to cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Upon the basis of the foregoing findings of fact and the entire record, I make the following: CONCLUSIONS OF LAW 1. Respondent and the Association are employers engaged in commerce within the meaning of Section 2 (6) and (7) of the Act. 2. Locals 854, 1418,. and 1419 are labor organizations within the.,meaning of Section 2(5) of the Act. 3. At all times material herein Respondent was part of a multiemployer unit, said unit consisting of all those employers designating the Association as their collective- bargaining representative in the port of New Orleans. 4. Respondent designated the Association as its said bargaining representative both by ,(a) joining the Association, thereby becoming amenable to that portion of the Association's bylaws constituting a designation, and (b) expressly appointing the Association by a writing dated October 9, 1963. 5. Respondent did not effectively'or validly revoke the designation of the Associa- tion as its bargaining representative in the port of New Orleans at any time material. 6. An appropriate unit for the purposes of collective bargaining is that more fully set forth in article I of the 1959-62 Dock Loaders contract between said Association and said Local 854. Included in said unit is the work relating to trailership -cargo, also known as "lift-on/lift-off," "van," or "containerized" cargo. 7. Local 854 represented a majority of the employees in the said appropriate unit at all times material. "This strike started after September 30, 1962, when the 1959-62 contract terminated, and ended when the memorandum of settlement was executed on January 24, 1963. WATERMAN OF PUERTO RICO-U.S.A., INC. 1093 8. By (a) refusing to negotiate with Local 854 through the Association, (b) nego- tiating, with Locals 1418 and 1419, and (c) entering into a ccollective-bargaining agreement with Locals 1418 and 1419, all with respect to, Respondent's trailership operation in the port of New Orleans, Respondent has engaged in unfair labor prac- tices proscribed by Section 8(a) (5) and (1) of the Act. 9. The aforesaid unfair labor practices affect commerce 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 , it is recommended that Respondent, its officers , agents, successors, and assigns , shall: 1. Cease and desist from: (a) Refusing to bargain collectively, through the Association, with Local 854 as the exclusive representative of all employees in the aforesaid appropriate unit. (b) Revoking any designation of the Association as its,bargaining agent in the port of New Orleans except at an appropriate time. (c) Bargaining collectively with, recognizing, or giving effect to any contract with Locals 1418 and 1419 with respect to the work connected with or related to its trailer- ship operation in the port of New Orleans. (d) In any like or related manner interfering with, restraining, or coercing employ- ees in the exercise of the rights guaranteed to them under Section 7 of the Act. 2. Take the following affirmative action designed to effectuate the policies of the Act. (a) Upon request, bargain collectively through the Association with Local 854 as the exclusive representative of all employees in the aforesaid appropriate unit, and, if an understanding is reached, embody such understanding in a signed agreement. (b) Withdraw recognition from, and give no effect to the June 3, 1963, memoran- dum of understanding with, Locals 1418 and 1419 with respect to work connected with or related to its trailership operation in the port of New Orleans. (c) -Post at its place of business of the port of New Orleans copies of the attached notice marked "Appendix A." 11 Copies of said notice, to be furnished by the Regional Director for Region 15, upon being signed by a representative of Respond- ent, shall be posted by Respondent immediately upon receipt thereof and maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees 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. (d)' Notify the Regional Director for Region 15, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith.12 It is further recommended that unless Respondent, in writing, notifies said Regional Director within the time aforesaid that it will comply with the foregoing recommenda- tions, the National Labor Relations Board issue an Order requiring it to take such action. n 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 shall be further amended by substituting the words "a Decree of the United States Court of Appeals, Enforcing an Order" for the words "a Decision and Order". 12 If this Recommended Order is adopted by the Board, this provision shall be modified to read: "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith." APPENDIX A 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 NOT refuse to bargain collectively with Dock Loaders and Unloaders of Freight Cars and Barges, I.L.A., Local Union No. 854, AFL-CIO, as the representative of all the employees in the bargaining unit described below with respect to rates of pay, wages , hours of employment, and other conditions of employment. 1094 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The bargaining unit is: All our employees who shall be engaged to load and unload freight cars and barges or securing freight on cars, wharves , or in sheds , heading cotton on wharves , working with Inspectors , handling any and all commodities on wharves, labor for weighing , gauging, and sampling on wharves, all men who shall be engaged to assort freight on wharves, stenciling and tagging any and all commodities on wharves , the loading and unloading of trucks, vans, and trailers on wharves , and Piggy Back roll-on /roll-off and lift-on/lift-off operations in the port of New Orleans. WE WILL NOT recognize or bargain collectively with General Longshore Workers, I.L.A., Local Union No. 1418, or Local Union No. 1419, AFL-CIO, or both, as the representative of all the employees in the above-described unit. WE WILL NOT give effect to any collective-bargaining contract we have exe- cuted with said Local Union No. 1418 and Local Union No. 1419 as the repre- sentative of the employees in the bargaining unit described above. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of their rights to self-organization, to form labor organizations, to join or assist said Local No. 854, or any other labor organiza- tion, to bargain collectively through representatives of their choosing, and to, engage in any other concerted activities for the purposes of collective bargain- ing or other mutual aid or protection, or to refrain from any or all such activities. WE WILL, upon request, bargain collectively with said Local No. 854 as the representative of all the employees in the bargaining unit described above, and, if an understanding is reached, embody such an understanding in a signed agreement. WE WILL cancel our collective -bargaining agreement with said Local No. 1418 and Local No. 1419 executed on June 3, 1963, pertaining to the lift-on/lift-off work in the port of New Orleans. WATERMAN OF PUERTO Rico-U.S.A., INC., Employer. Dated------------------- By-------------------------------------------(Representative) (Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. Employees may communicate directly with the Board's Regional Office T6024 Federal Building (Loyola), 701 Loyola Avenue, New Orleans, Louisiana, Telephone No. 529-2411 if they have any question concerning this notice or compliance with its provisions. District Council of Painters No.. 52, AFL-CIO, Brotherhood of Painters, Decorators and Paperhangers of America [Maynard C. Belvoir] and Cecil Carl Johnson . Case No. 21-CB-92280. January 18, 1965 DECISION AND ORDER On October 15, 1964, Trial Examiner William E. Spencer issued his Decision in the above-entitled proceeding, finding that the Re- spondent had not engaged in the unfair labor practices alleged in the complaint, and recommending that the complaint be dismissed in its entirety, as set forth in the attached Trial Examiner's Decision. Thereafter, the General Counsel filed exceptions to the Trial Exam- iner's Decision and a brief in support thereof. 150 NLRB No. 101.