Boat Serafina II, Inc.

National Labor Relations Board - Board Decisions

Nov 16, 1965

155 N.L.R.B. 910 (N.L.R.B. 1965)

910 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Boat Serafina II, Inc. ; Boat Lady of the Rosary, Inc .; Vessel Vin-
cie N., Inc.; Boat Ida and Joseph , Inc.; Rhode Island, Inc.;
Boat St. Peter, Inc.; Vessel J.B.N.; Mary Ann, Inc.; Sebas-
tiana C. , Inc.; Boat St. Rosalie , Inc.; and Anthony Linquata,
d/b/a Natale III and Sea Food District 15, Amalgamated Meat
Cutters, Butchers, Food Store, Sea Food Allied Workers of
North America , District Union Local 2, AFL-CIO. Case No.
1-CA-4710. November 16, 1965
DECISION AND ORDER
On August 13, 1965, Trial Examiner Leo F. Lightner issued his
Decision in the above-entitled proceeding, finding that eight of the
Respondents had engaged in and were engaging in certain unfair
labor practices and recommending that they cease and desist there-
from and take certain affirmative action, as set forth in the attached
Trial Examiner's Decision. As to the remaining three Respondents,
he recommended dismissal of the complaint. Thereafter, the eight
Respondents filed exceptions to the Decision and a supporting brief,
and the General Counsel filed an answering brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Member Fanning and Jenkins].
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 Trial
Examiner's Decision and the entire record in this case, including the
exceptions and briefs, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner.'
[The Board adopted the Trial Examiner 's Recommended Order.']
'Under the established policy not to overrule a Trial Examiner's credibility findings
unless a clear preponderance of all the relevant evidence convinces us that they were
incorrect, we find no basis for disturbing the credibility findings made by the Trial Exam-
iner in this case. Standard Dry Wall Products, Inc., 91 NLRB 844, enfd. 188 F. 2d 362
(C.A. 3).
9 The telephone number for Region 1, appearing at the bottom of the Trial Examiner's
Appendix, is amended to read: Telephone No. 223-3358.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This proceeding was heard before Trial Examiner Leo F. Lightner in Boston,
Massachusetts, on January 18 and 19, 1965, on the complaint of General Counsel,
as amended, and the answers, as amended, of Boat Serafina II, Inc.; Boat Lady of the
Rosary, Inc.; Vessel Vincie N., Inc.; Boat Ida and Joseph, Inc.; Rhode Island, Inc.;
Boat St. Peter, Inc.; Vessel J.B N., Inc.; Mary Ann, Inc.; Sebastiana C., Inc ; Boat
155 NLRB No. 72.
BOAT SERAFINA II, INC., ETC. 911
St. Rosalie, Inc.; and Anthony Linquata, d/b/a Natale III,' herein referred to by the
individual name of the particular boat, respectively, and Respondents collectively.2
The issue litigated was whether the Respondents, individually, violated Section 8(a)
(5) and (1) and Section 2(6) and (7) of the Labor Management Relations Act,
1947, as amended, 61 Stat. 136, herein called the Act. At the close of the hearing
the parties waived oral argument, and briefs filed by General Counsel and Respond-
ents have been carefully considered.
Upon the entire record and from my observation of the witnesses, I make the
following:
FINDINGS AND CONCLUSIONS
1. BUSINESS OF THE RESPONDENTS
Each Respondent, except Anthony Linquata, is a Massachusetts corporation. Lin-
quata is an individual proprietor doing business as Natale III. Each Respondent has
maintained its, or his, principal office and place of business at the port of Gloucester,
in the city of Gloucester, Massachusetts, and each is and has been engaged in com-
mercial fishing off the eastern coasts of the United States and Canada. It is undis-
puted that the operation of each boat or vessel results in an annual catch of fish, out-
side the territorial waters of Massachusetts, of a value, in each instance , in excess
of $50,000 The fish are sold to fish companies in Massachusetts who annually pay
in excess of $50,000 for the fish which they buy from each of the vessels.
The complaint alleges, the answer admits, and I find that each Respondent is
engaged in commerce within the meaning of Section 2(6) and (7) of the Act .3
II THE LABOR ORGANIZATION INVOLVED
Sea Food District 15, Amalgamated Meat Cutters, Butchers, Food Store, Sea Food,
Allied Workers of North America, District Union Local 2, AFL-CIO, herein called
the Union, is a labor organization within the meaning of Section 2(5) of the Act.
III ALLEGED UNFAIR LABOR PRACTICES
A. The issue
The principal issue raised by the pleadings and litigated at the hearing is whether
each Respondent, or any of them, on or about July 10, 1964, and at all times there-
after, refused to recognize and bargain with the Union, which represented a majority
of the employees in a specified appropriate unit, in contravention of the provisions
of Section 8(a)(5) and (1) of the Act. Subsidiary questions are considered infra.
Each Respondent, by answer, denied the commission of the alleged unfair labor
practice. Affirmatively, each Respondent denied that the Union represents "the major-
ity of the persons engaged in the discharging of the cargo of fish from the vessels."
Respondents assert "the only way that can disclose the complete details of the `unit'
is by a vote of all of the persons who have and still engage in the work of dis-
charging fish."
B. Background
Except as noted there is no dispute relative to the facts set forth as background.
Each Respondent is the operator of a fishing boat, of approximately 80 feet in
length Each boat goes to sea, catches fish, and returns, with a load, of varying
weights, in 2, 3, or 4 days.4
The identity of the captain of each of the 11 boats, Respondents herein, his office
in the corporation, if any, and his stock ownership is as follows:
Captain of Serafina ii is Benjamin Chianciola, who is secretary of the corporation
and holds no stock. His father, Joseph Chianciola, is the principal owner.
i Incorrectly identified previously as Natalie III, corrected at hearing.
2 The charge herein was filed on August 19, 1964. The complaint issued on October 1,
1964.
3 Krist Gradis, et at., 121 NLRB 601, 603, and cases cited therein in footnote 8.
4 The boats are described as both draggers , ground fishing , and seiners, surface fishing.
I find of no consequence the fact that some of Respondents , upon certain occasions, fished
in the Cape Cod canal, and disposed of their catch in that area, using lumpers obtained
from the New Bedford area The fishermen, who constitute the crewmembers, are mem-
bers of the Atlantic Fishermen's Union, however, on some, unspecified, boats there are
crewmembers who do not belong to that union.
912 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Captain of Lady of the Rosary is Salvatore Frontierro , who is president of the cor-
poration , and owns 50 of a total of 100 shares of stock
Captain of the Vincie N. is Joseph Novello, who is treasurer of the corporation,
and owns 8 of a total of 40 shares of stock.
Captain of the Ida and Joseph is Joseph Calomo, who is president of the corpora-
tion, and owns 25 of a total of 100 shares of stock.
Captain of the Rhode Island is Antonio Trupiano , who is president of the corpora-
tion, and owns 50 of a total of 100 shares of stock.
Captain of St . Peter is Sebastian Scola, who is vice president of the corporation,
and owns 33x/3 of a total of 100 shares of stock.
Captain of the J.B.N. is Dominic Novello , who is treasurer of the corporation,
and owns 8 of a total of 40 shares of stock.
Captain of Mary Ann is Frank Consiglio , who was unable to identify the office he
held, but acknowledged holding an office in the corporation , and owns 50 of a total
of 100 shares of stock.
Captain of the Sebastiana C is Michael Lovasco, who is president of the corpora-
tion, and owns 250 shares of a total of 500 shares of stock.
Captain of St Rosalie is Gus Sanfilippo , who is president of the corporation, and
owns 50 of a total of 100 shares of stock.
Captain and owner of Natale 111, unincorporated , is Anthony Linquata.
All of the captains appeared as witnesses , except Calomo , Dominic Novello, and
Consiglio . Joseph D'Amico, mate and owner of 25 shares of stock of the Ida and
Joseph, also appeared.
We are here concerned with the work involved in the unloading of the catch, which
the record establishes can be accomplished , and is, with the use of one of three
variables - ( 1) the unloading is done by the fishermen, crewmembers ; or (2) the
unloading is done by the use of the crew, and in addition some Jumpers, particularly
in the hold; or ( 3) the unloading is done by lumpers alone. The various duties
assigned in unloading are described as: (1) holdmen , who use pitchforks to place
the fish from the hold into baskets; ( 2) hatchman , who directs the lifting of the
baskets; ( 3) winchman , who operates the winch to lift the baskets out of the hold
and over to the dock for unloading ; and (4 ) dumpers, who unload the baskets.
When a boat returns with a catch , it is the captain who, customarily , advises a boss
lumper ( also called head lumper ) how many lumpers , if any, are needed , and, infer-
entially, the nature of the particular assignment . It is inferred that if there is regu-
larity in assignment it applies to the work of holdmen , as distinguished from the
other tasks set forth supra. It appears that the captain of each boat has a particular
individual who is boss lumper for that particular boat , who may also be a boss
lumper on some other boat or boats; however , different individuals , on some occa-
sions, may be boss lumper.5 The number of lumpers required and the amount to
be paid is determined by union "rules ," set forth infra, and is related to the estimated
total weight of the catch ; i.e., a load under 50,000 pounds would require fewer
holdmen, and result in a lower total amount of pay, than a catch weighing 90,000
pounds.
Salvatore Verga, boss lumper for the Mary Ann, credibly related that he obtains
union lumpers when they are available ; if none are available he obtains others. It
may be inferred from the record as a whole those who do lumping fall into four
categories : ( 1) those on the Union's lumpers (or draggers) seniority list; (2) those
who are members of the Union , primarily work in plants in the area , and occasion-
ally do lumping; ( 3) relatives of boatowners, captains , mates, or crewmembers; or
(4) others who are not members of the Union.
Each boss lumper submits a bill, in accordance with union "rules" to a "settle-
ment agent ." In some instances the settlement agent is a bookkeeper of the fish pur-
chaser, or in other instances someone selected by the boatowner . The duty of the
settlement agent is to pay from the "gross stock" ( proceeds ), all items of expense,
including the pay of the lumpers , and the cost of such items as food, ice , oil, etc.
5 The term "boss lumper" means only the individual who obtains the essential number
of lunipers required. Each such individual does the same work, and is paid the same
amount, as the other lumpers retained.
I find of no consequence the recitation of D'Amico, of the Ida and Joseph, that two
members of the crews, his brother Stephen and his brother-in-law Lawrence Scola, obtained
lumpers by calling the boss lumper, identified as Hugh Strople Sea Food Producers
Association of New Bedford, Inc, 95 NLRB 1137.
BOAT SERAFINA II, INC., ETC. 913
The balance remaining is divided under a system identified as "Italian lay." Italian
lay is described as meaning that the boat ownership and crew divide the net
proceeds 6
Out of the settlement the amount required to be withheld, from earnings, for pay-
ment of income tax and social security, as the employee's contribution, is withheld
from the amount paid to Jumpers. The amount required for social security pay-
ments, as the employer's contribution, seamen's insurance, or the alternative Massa-
chusetts unemployment tax, for Jumper employees, are paid by the boatowner.
Since 1953, if not before, there have been changes in the working conditions and
pay, referred to as union "rules" which were adopted and placed into effect in the
following manner. The union Jumpers would hold a meeting and would vote for
a change in either conditions, such as number of holdmen required to unload 225,000
pounds, or the minimum rate of pay, such as for loads up to 90,000 pounds. The
Union would then notify unidentified boatowners,7 the settlement agents, and the
fish-purchasing companies. Some boss Jumpers would also advise captains of boats
of rate changes. Upon receipt of notification from the Union, these changed condi-
tions and changed rates of pay were accepted by the settlement agents who placed
them into effect, and were reflected on subsequent settlement sheets. Copies of the
settlement sheets were supplied to boatowners, boat captains, and crewmembers.
When the work of unloading a boat was completed, it was one of the duties of the
boss Jumper to turn in a bill reflecting the identity of each individual and the number
of individuals, employed as Jumpers, in the unloading. The individual Jumpers were
then paid directly by the settlement agents. It is undisputed that all lumpers, both
union and nonunion, were paid in accordance with the provisions of these union
"rules." I find that the boatowners, with knowledge of these changed conditions,
and the circumstances under which they were placed into effect, acquiesced. If there
were objections by any of these 11 boatowners to the rules changes, the existence of
such objections is obscure in this record.8
C. The refusal to bargain
1. The appropriate unit-the Union's majority status
It is alleged, and I find, the following employees of each Respondent 9 constitute
a unit appropriate for the purposes of collective bargaining within the meaning of
Section 9(b) of the Act:
All employees known as "Jumpers" employed at Gloucester Port, exclusive of all
other employees and all supervisors as defined in Section 2(11) of the Act.
BAs illustrations, a crew of five, including the captain, each receives 1 shale and the
boatowner 41/2 shares, of a total of 91/ shares, while a crew of six receive 1 share each
and the boatowner 5% shares, of a total of 111/ shares. In addition, on some boats, the
captain receives an extra one-half share, or a percentage, as a bonus from the boatowner.
'There is no contention that any such notice was ever sent to any of the 11 boatowners
herein involved.
8 While it is patent that work done by lumpers, on some occasions, was identical to
work done by crewmembers, on other occasions, crewmembers received only the appropriate
share, as set forth above, and did not receive an additional stipend for work done in
unloading.
I do not credit the denial of Trupiano that he had any knowledge as to whether his
boss lumper, Kelly Frontierro, was a member of the Union, or his denial that he knew if
the jumpers were paid according to union rules I find these assertions implausible I
also find incredible his assertion that he did not know whether the amount paid had been
changed since 1959
I do not credit the testimony of Sanfilippo who denied knowing how much his boss
lumper, Toni Mattos, would receive before the work started, or how many men MIattos
would use as lumpers to accomplish the unloading, to the extent these denials constitute
a denial of knowledge of union rules. It is clear from the record that the "hail" or "draft"
of the boat provided some estimate of the "catch" as between 50,000, 90,000 or 200,000
pounds. Sanfilippo acknowledged that the crew checks the settlement sheet, as does his
wife, to determine the accuracy of the charges Since the charges were undisputedly
predicated on union rules, such denials, I find, are not credible. In comparison, Sanfilippo
acknowledge that the method by which he knew he was not being overcharged was the
union lumpers [rate] is supposed to be the same for everybody "
9 While paragraphs 7 and 8 of the complaint could be read as encompassing a portwide
unit, such a unit is not sought.
914 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Except as outlined supra, there is no history of collective bargaining. Respondents
urge that since crewmembers do identical work in the unloading operation that the
appropriate unit should combine crewmembers and Jumpers. The Board has previ-
ously considered and rejected this contention.10 The crewmembers are covered by
a contract with the Atlantic Fisherman's Union, inferentially multiemployer, and
have interests pertaining essentially to their principal job of operating an employer's
boat and the obtaining of a "catch." The method of determination of their pay
precludes a finding that they have a common interest with the Jumpers." I find
accordingly.
It is patent that without exception none of Respondents have taken issue with the
Union's method of changing working conditions and pay, after vote of the member-
ship. It is undisputed that such changes were reflected in subsequent settlements,
and were applied to every settlement of each of these Respondents where jumpers
were engaged. None of these Respondents have previously challenged the Union's
majority status It is unquestioned and undisputed that, prior to a strike on July 1,
1964, union, as well as nonunion, Jumpers were engaged, as needed, by all of the
Respondents herein." The union "rules" were applied whenever Jumpers were
employed, whether they were or were not members of the Union.
General Counsel urges that because of the nature of the work involved, all of the
Jumpers work only when called. It is never known when a boat leaves port if a suffi-
cient amount of fish will be caught to require the services of Jumpers. The most any
Jumper worked on any of these 11 boats, in the year preceding July 1964, was 39
times (Jerome Lovasco on Sebastiana C.), while 99 individuals worked only once
on a particular boat, and 146, of the total of 197, worked 4 times or less. It appears
undisputed that boss Jumpers give first preference to the union members, and employ
nonunion Jumpers when union members are not available. It is therefore urged that
even though a jumper may have worked only once in a year, each such employee
has an expectancy of being called when work is available, and should be included,
having a sufficient interest in employment conditions to warrant inclusion in the
unit.13 In addition, the amount paid is related to pounds of fish unloaded, not hours
worked.
General Counsel correctly urges that a majority of the Jumpers employed on the
boats of eight Respondents 14 during the year preceding the strike, on July 1, 1964,
were members of the Union, and that the Union was and is the collective-bargaining
representative of these employees, in an appropriate unit, within the meaning of
Section 9(a). It appears undisputed that the Union did not represent a majority,
in the same year, on boats Lady of the Rosary, J.B.N., and Natale III. I find
accordingly.
2. The request for bargaining
It is undisputed that prior to 1963 the Union did not have any signed contracts
with any boatowners in Gloucester. At an unspecified time in 1963, Silva, vice presi-
dent and business agent of the Union, and Martin, also a vice president, sought to
have individual boatowners sign such agreements, and obtained three, not including
any of the Respondents herein.
On May 3, 1964, the "Jumpers" had a meeting and passed a resolution asserting
that they wanted agreements encompassing the existing conditions. A letter advising
the boatowners, including the 11 Respondents,15 of the action taken, was mailed on
June 18, 1964. It contained the following:
At a Lumpers' Meeting held on Sunday, May 3, 1964 it was voted that if
there was no contract with the fresh fish vessels by July 1st, 1964 there will be
a work stoppage.
10 See, e.g., Sea Food Producers Association of New Bedford, Inc., supra
11 Foss Launch & Tug Co., 111 NLRB 774.
12 The record reflects that of a collective total of 197 employees engaged as lumpers by
these 11 boats between July 1, 1963, and June 30, 1964, some of whom worked on more
than 1 boat and are thus counted more than once in the total, 146 worked only 1 to 4 times
in the year on the same boat, and only 51 worked 5 or more times, 28 in the latter group
worked 10 or more times in the year.
13 Citing, Knouse Foods Co-operative, Inc., 131 NLRB 801
14 Serafina II, Vincie N., Ida and Joseph, Rhode Island, St. Peter, Mary Ann, Sebas-
tiana 0. and St. Rosalie.
"The letter was sent to the owners of 104 boats, identified by name in the record The
denials of Trupiano, Sanfilippo, and Linquata that they received such a letter are not
credited. Frontierro and Chianciola acknowledged receipt of the June 18 letter.
BOAT SERAFINA II, INC., ETC. 915
We are willing to discuss the proposed contract with you either individually
or with a committee representing the vessels.
Silva and Martin related that some boatowners signed an agreement as a result
of the June 18 letter. However, the bulk did not sign until after a work stoppage,
which commenced July 1. There was no picketing until early August.
I find the Union's letter constituted a request for bargaining.
3. The meeting of July 10, 1964, and subsequent events
Martin arranged a meeting for July 10 by having the boss lumpers notify various
boat captains of the meeting. Some 10 or 11 captains appeared.16
Those present for the Union were Martin and a committee of lumpers comprised
of MacDonald, Jedrey, and Sutherland.
Each captain was offered a copy of a proposed contract and requested to read it.
Martin advised them that the Union's position was that they were not asking for
any rules changes, but wished security, since some of the lumpers had been working
in the vicinity for 20 and 25 years. It is evident from the record that the meeting
could not be described as orderly, and at times consisted of separate conversations
between different individuals.
Martin credibly related that Novello asserted that they had abided by the condi-
tions and terms of the contract right along, and would continue to do so, but under
no condition would they sign a contract, that they did not want to be bound by a
legal contract. Novello then asserted that he would deposit $1,000 in a bank and
forfeit it if he broke any conditions. MacDonald and Sutherland corroborated these
assertions. Novello's version of these events contains no substantial variance.
Novello's assertion that he did not know if the Union presented a copy of the pro-
posed contract is not credited.
Martin related that he advised the captains that if there was anything in the con-
tract they did not like he would be glad to sit down "and possibly take some things
out." Martin related that Chianciola then responded "under no circumstances will
I sign a contract." Chianciola acknowledged that Martin tried to get something
going, but no one would discuss the contract. He acknowledged having asserted
"we are not here to discuss contracts," and that some of the boat captains pushed
contracts away that were on the table stating, "We don't want that." Chianciola
acknowledged that Martin asserted "that the union members would take off the
thing on groundfish, if that was the thing that was holding up the signing of the
contract."
Martin asserted that the details of the contract were not discussed at the July 10
meeting because the boatowners who were there refused to discuss them.17
16 Respondents who admitted they were present are Chianciola, Frontierro, Joseph No-
vello, Scola, and Linquata. In addition, I find that Lovasco and Trupiano were present.
Lovasco did not deny being present and Frontierro and Linquata named him as among
those present. Trupiano denied being present. I do not credit his denial MacDonald,
Sutherland, and Linquata all asserted that Trupiano was present. There is no evidence
that Dominic Novello or Consiglio were present. Sutherland, a lumper, was the only
witness who asserted that Sanfilippo was present. Sanfilippo denied being present In
view of Sutherland's apparent uncertainty, relative to some of those present, I credit San-
filippo's denial. Frontierro was uncertain about the presence of Calomo. Linquata as-
serted that Calomo was not present. Calomo did not appear as a witness. I find he was
not present.
17 The effort of Frontierro to be evasive relative to the content of his pretrial statement,
whether it was a sworn statement, and whether the events related therein had occured, as
well as his demeanor, cause me to find him not credible. Reference was made to his state-
ment that at the meeting "We told the Union at this time that we would still hire union
lumpers and pay them the same rate but we would not sign the contract they proposed "
Similarly, I do not credit Frontierro's assertion that the captains did not go to the union
hall, on July 10, for the purpose of any meeting, or that they did not recognize the Union.
Linquata was also evasive. While asserting he did not "see" the contract, he acknowl-
edged four or five copies were on the table and that "they were discussing it." Linquata
later acknowledged the contract was no different than the existing conditions under which
work was performed. Linquata then resorted to an asserted "I just don't recall," when
asked if anyone he could identify said they would not sign a contract.
The assertion of Joseph Novello that he did not know if the Union "brought in" any
copies of the proposed contract and did not see any lying on the table, or did not hear
212-809-66-vol. 155-59
916 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Subsequently, apparently in mid-August, Martin and Silva met with Chianciola.
Chianciola advised the Union that he would be willing to sign an agreement, provided
conditions were added setting forth a 60-day expiration date and that crewmembeis
could discharge the cargo. The Union agreed to these conditions. In the interim,
when the Seiafina II returned to port it was picketed. Chianciola was advised by
Martin that Martin could not take the pickets off until Chianciola signed the contract.
Chianciola responded that it was too late, that he was going to take the matter to
court.is
There were no subsequent bargaining sessions. It is undisputed that none of the
Respondents herein have entered into a written agreement with the Union.
D. Contentions of the parties-concluding findings
Respondents contend that "lumpers" are not employees of Respondents, asserting
that in fact they are independent contractors. General Counsel urges they are
employees. It appears undisputed that it is the captain, in most instances, albeit at the
request of or with the consent of the crew, who have an interest in the proceeds of the
"catch," who advised the boss lumper of the number of Jumpers needed and the
assignments to be performed; i.e. hold, hatch, winch, or dumper. The amount of the
lumpers' earnings were based on the pounds of fish unloaded not on the time spent
working. The only equipment, other than clothing, which a lumper working in the
hold is supplied is a hayfork It is undisputed that Respondents deduct withholding
tax, pay the required amount which an employer is required to pay as a contribution
to social security, make payments to the Massachusetts Division of Employment
Security, for these employees, and pay such premiums as are required by applicable
law on either longshoremen's insurance for work on boats, or workmen's compensa-
tion for work on docks. It is patent from the record that the lumpers do not possess
independence of action as to the manner and means of accomplishing their work.
While there is no evidence of the exercise of a right of control of the manner and
means of accomplishing their work, the reservation of such right is implicit and
inferred under the circumstances revealed by this record. As an illustration, Chian-
ciola acknowledged that it he saw a lumper trampling on fish during unloading he
would tell him to be careful, and "if he got my dander up I'd be liable to hit him.
I don't know."
The Board has held that Jumpers employed under conditions identical to those
reflected by this record, as set forth supra, are employees of the boatowners. Sea Food
Producers Association of New Bedford, Inc., 95 NLRB 1137. I find accordingly.ia
Respondents urge that there was no appropriate demand for negotiations made
upon Respondents by the Union. In so urging Respondents assert that the unit is not
appropriate and that the employees are not employees of the Respondents. I find no
merit in these contentions for the reasons set forth supra Respondent then urges that
"these issues must be resolved before an appropriate demand can be made." I find no
such requirement, as a condition precedent, in the law.
other boatowners discuss the contract , is in sharp contrast with the admission of Scola
that "they had a dozen contracts right on the table, we all took one apiece and we all
looked it over " I do not credit Novello. Scola also said that after they looked it over
some of the boatowners said they were willing to go along with it but they would not
sign it. Scola asserted , "I think I said it myself."
The assertion of Joseph Novello that he knew when the rules were changed when he
looked at the bill is inconsistent with his later assertion that he never paid any attention
to whether he paid more on one trip than he had paid on a trip previously . Novello
acknowledged that he never objected to the bills presented for lumper pay.
The assertion of Trupiano that he did not know if his boss lumper, or other lumpers,
were members of the Union, and the assertion of Chianciola that he never heard of union
lumper rules , I find incredible . In contrast Chianciola acknowledged that he knew that if
there were over 50,000 pounds of fish, 4 men were required to be in the hold . Similarly,
while D 'Amico denied any acknowledge of lumper rules he acknowledged that he does
check the bookkeeper ' s work "to see if everything is in order , what is taken out, if the
expense is taken out all right."
is It is undisputed that a State court action did ensue.
10 See also: General Foods Corporation , Birds Eye Division, 110 NLRB 1088, 1090;
Golden Age Dayton Corporation, 124 NLRB 196 ; The Seven- Up Bottling Company of
Detroit, Inc., 120 NLRB 1032.
BOAT SERAFINA II, INC., ETC. 917
Respondents urge that the Union failed to file a petition for certification for recog-
nition of the Union as exclusive bargaining representative for the lumpers. To the
extent that this assertion implies that this is an essential condition precedent to a
finding of a violation of Section 8(a) (5) and (1), I find no merit in the contention.
Respondents urge that the notices of changes in rates and conditions sent to settle-
ment offices were not notices to the Respondents of the Union's desire to enter into a
formal contract. Respondents urge that the settlement offices had no authority from
the Respondents to act as agents for them in any capacity other than settling a fishing
trip. There can be no shadow of a doubt that Respondents, either through the settle-
ment agents or through the various boss lumpers, were advised of a series of changes,
adopted by the lumpers, in conditions and rates, and, as a minimum, acquiesced and
accepted the modifications.
Respondents urge there was no appropriate demand by the Union to the Respond-
ents to negotiate, and that the meeting at the union hall merely indicated that the
Union desired to negotiate with the Resopndents. General Counsel contends that the
Union's letter of June 18 constitutes a demand for bargaining in an appropriate unit.
General Counsel asserts the letter is amply clear that the Union was seeking to
represent the lumpers of each of the Respondents in either a single-employer or a
multiemployer unit, and that the letter unequivocally requests bargaining for the
purpose of consummating a contract.
In Inter-City Advertising Company of Greensboro, N. C, Inc., 89 NLRB 1103,
footnote 19, the Board said: "The Respondent also contends that the Union, in
making its request for bargaining, did not clearly define the unit sought. In our
opinion, the notice given by the Union that it had been designated as the bargaining
representative of the Respondent's technical employees at WAYS and WCOG,
respectively, was suffcient in this respect."
In Southeastern Rubber 20 the court said at 14-15• "We think the Board properly
found that the union's request to bargain, as set forth in its May 12th letter to,
respondent, was clear and unequivocal, for the Act does not require any particular
form of request, but only that the employees signify their desire to negotiate ... The
language here used, viewed in its entirety, fairly meets that test."
Each Respondent knew that for a period of years the rates and conditions for the
employment of lumpers, as Sanfilippo described, were the same for everybody. This
was true, and it is undisputed, whether the lumpers engaged were union or nonunion.
It would be naive to find that in a fishing community of this size,21 these boatowners,
some of whom have operated in excess of 20 years, were unaware of the activities of
the Union herein. It appears beyond dispute that the Union's letter constituted an
adequate request for bargaining. I find accordingly.
On the entire record as a whole, I find that at all times on and after July 10, 1964,
Respondents Vessel Vincie N., Inc., Boat Ida and Joseph, Inc., Rhode Island, Inc ,
Boat St. Peter, Inc, Mary Ann, Inc., Sebastiana C., Inc., and Boat St Rosalie, Inc.,
have refused to bargain with the Union as the collective-bargaining representative of
the lumpers of each Respondent, in an appropriate unit, in violation of Section
8(a) (5) and (1) of the Act.
I further find that Respondent Boat Serafina II, Inc., by and through its agent,
Chianciola, met with the Union, in early August 1964, and agreed to sign a contract
provided the Union agreed to certain modifications, which were thereafter made.
Subsequently, having been advised that the changes agreed upon had been made,
Chianciola refused to execute the agreement. I find that this conduct constituted a
refusal to bargain collectively and was violative of Section 8(a)(5) and (1) of
the Act.
Having found that the Union did not represent a majority of the lumpers, on Boat
Lady of the Rosary, Inc., Vessel J B.N., Inc , and Natale III, of which Linquata is the
owner, I shall recommend dismissal of the complaint as to those Respondents.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondents set forth in section III, above, occurring in connection
with Respondents' operations described in section I, above, have a close, intimate, and
21 N.L.R.B. v. Southeastern Rubber Mfg. Co., Inc., 213 F 2d 11 (CA. 5). See also,
N.L.R.B. v. Columbian Enameling & Stamping Co., Inc., 306 U.S. 292, 297; Joy Sill Mills,
Inc. v. N.L.R B , 185 F 2d 732, 741.
211 have taken official notice of the fact that the population of Gloucester approxi-
mates 25,000.
918 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
substantial relationship to trade, traffic, and commerce among the several States, and
such of them as have been found to constitute unfair labor practices, tend to lead to
labor disputes obstructing commerce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondents Boat Serafina II, Inc., Vessel Vincie N., Inc.,
Boat Ida and Joseph, Inc., Rhode Island, Inc, Boat St. Peter, Inc., Mary Ann, Inc,
Sebastiana C., Inc., and Boat St. Rosalie, inc., have engaged in and are engaging in
certain unfair labor practices, it will be recommended that they cease and desist there-
from and take affirmative action designed to effectuate the policies of the Act. It hav-
ing been found that Respondent Boat Serafina II, Inc., has unlawfully refused to
bargain, I shall recommend that it be ordered to sign the written contract agreed upon
with the Union, if requested, and to bargain with the said Union.22 It will be recom-
mended that Respondents' Vessel Vincie N., Inc., Boat Ida and Joseph, Inc., Rhode
Island, Inc., Boat St. Petei, Inc., Mary Ann, Inc., Sebastiana C., Inc., and Boat St.
Rosalie, Inc, upon request, bargain collectively with Sea Food District 15, Amal-
gamated Meat Cutters, Butchers, Food Store, Sea Food, Allied Workers of North
America, District Union Local 2, AFL-CIO, as the exclusive representative of all
employees in each unit herein found to be appropriate for the purpose of collective
bargaining.
It having been found that Respondents' refusal to bargain interfered with,
restrained, and coerced employees, I recommend that Respondents be ordered to
cease and desist from in any like or related manner infringing upon rights guaranteed
to the employees of each by Section 7 of the Act.
Upon the foregoing findings of fact, and upon the entire record in the case, I make
the following.
CONCLUSIONS OF LAW
1. Respondents Boat Serafina II, Inc., Vessel Vincie N., Inc., Boat Ida and Joseph,
Inc., Rhode Island, Inc., Boat St. Peter, Inc , Mary Ann, Inc., Sebastiana C., Inc., and
Boat St. Rosalie, Inc., are each engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2 Sea Food District 15, Amalgamated Meat Cutters, Butchers, Food Store, Sea
Food, Allied Workers of North America, District Union Local 2, AFL-CIO, is a
labor organization within the meaning of Section 2(5) of the Act.
3. All of the employees, of each of the Respondents named, known as lumpers
employed at Gloucester Port, exclusive of all other employees and all supervisors
as defined in Section 2 (11) of the Act, constitute a unit appropriate for the purposes
of collective bargaining within the meaning of Section 9(b) of the Act.
4. Since on or about May 3, 1964, the Union has been and continues to be the
exclusive bargaining representative of all the employees in the aforementioned units
for the purposes of collective bargaining within the meaning of Section 9(a) of the
Act.
5. By repudiating and refusing to sign the agreement previously agreed upon
between Chianciola and Union Representatives Martin and Silva, in early August
1964, Respondent Boat Serafina II, Inc., has engaged in and is engaging in unfair
labor practices within the meaning of Section 8(a)(5) and (1) of the Act.
6. By refusing, on and after July 10, 1964, to bargain collectively with the above-
named Union as the exclusive representative of the employees of each, in the afore-
said appropriate unit of each, Respondents Vessel Vincie N., Inc., Boat Ida and
Joseph, Inc., Rhode Island, Inc., Boat St. Peter, Inc., Mary Ann, Inc., Sebastiana C.,
Inc., and Boat-St. Rosalie, Inc., have engaged in and are engaging in unfair labor
practices within the meaning of Section 8(a) (5) of the Act.
7. By refusing to bargain with the above-named Union the Respondents have
interfered with, restrained, and coerced the employees of each in the exercise of the
rights guaranteed in Section 7 of the Act, thereby engaging in an unfair labor practice
within the meaning of Section 8 (a) (1) of the Act.
8. 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 foregoing findings of fact and conclusions of law, and upon the entire
record in this case, and pursuant to Section 10(c) of the National Labor Relations
22 Winchester Electronics , Incorporated, Pgne Moulding, Inc., 128 NLRB 1292.
BOAT SERAFINA II, INC., ETC. 919
Act, as amended, I hereby recommend that the Respondents Boat Serafina II, Inc ,
Vessel Vincie N., Inc., Boat Ida and Joseph, Inc., Rhode Island, Inc , Boat St. Peter,
Inc., Mary Ann, Inc., Sebastiana C , Inc., and Boat St. Rosalie, Inc., the officers,
agents, successors, and assigns, of each, shall:
I Cease and desist from
(a) Refusing to bargain collectively with Sea Food District 15, Amalgamated
Meat Cutters, Butchers, Food Store, Sea Food, Allied Workers of North Amer)( a,
District Union Local 2, AFL-CIO, as the exclusive bargaining representative of the
employees of each in the following appropriate units:
All employees, of each, known as lumpers employed at Gloucester Port, exclu-
sive of all other employees and all supervisors as defined in Section 2 (11) of the Act.
(b) In any like or related manner interfering with the efforts of the aforesaid
Union to bargain collectively with each Respondent on behalf of the employees of
each, in an appropriate unit.
2. Take the following affirmative action which is necessary to effectuate the poli-
cies of the Act
(a) As to Respondent Boat Serafina II, Inc., if requested to do so by the above-
named Union, forthwith sign the agreement reached as written.
(b) As to all Respondents, upon request, to bargain collectively with the above-
named Union as the exclusive representative of the employees of each in the above-
described appropriate unit of each employer with respect to rates of pay, wages,
hours of work, and other terms and conditions of employment, and, upon request,
embody in a signed agreement any understanding reached.
(c) Respondent Boat Serafina 11, Inc , post at its place of business in Gloucester,
Massachusetts, copies of the attached notice marked "Appendix A." Respondents
Vessel Vincie N , Inc , Boat Ida and Joseph, Inc , Rhode Island, Inc., Boat St Peter,
Inc., Mary Ann, Inc., Sebastiana C Inc., and Boat St. Rosalie, Inc., shall post at the
place of business of each, in Gloucester, Massachusetts, copies of the attached notice
marked "Appendix B." 23 Copies of said notices, to be furnished by the Regional
Director for Region 1, after being duly signed by an authorized representative of
each Respondent, shall be posted by each Respondent immediately upon receipt
thereof and maintained by each for a period of 60 consecutive days thereafter in
conspicuous places, including all places where notices to employees are customarily
posted Reasonable steps shall be taken by each Respondent to insure that said
notices are not altered, defaced, or covered by any other material.
(d) Notify the Regional Director for Region 1, in writing, within 20 days of the
receipt of this Recommended Order, what steps each Respondent has taken to com-
ply herewith.
It is further recommended that unless within 20 days from the date of the
receipt of this Trial Examiner's Decision each Respondent shall notify the said
Regional Director, in writing, that it will comply with the foregoing recommenda-
tions,24 the National Labor Relations Board issue an order requiring each Respond-
ent to take the aforesaid action.
It is further recommended that the complaint be dismissed as to Respondents
Boat Lady of the Rosary, Inc., Vessel J.B N., Inc., and Anthony Linquata, d/b/a
Natale III.
23 In the event that this Recommended Order be adopted by the Board, the words "a
Decision and Order" shall be substituted for the words "the Recommended Order of a
Trial Examiner" in each of the appendixes. In the further event that the Board's Order
be enforced by a decree of a United States Court of Appeals, the woids "a Decree of the
United States Court of Appeals, Enforcing an Order" shall be substituted for the words
"a Decision and Order."
24 In the event that this Recommended Order be 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 a 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 our employees that:
WE WILL, if requested to do so by Sea Food District 15, Amalgamated Meat
Cutters, Butchers, Food Store, Sea Food, Allied Workers of North America,
District Union Local 2, AFL-CIO, sign and execute the agreement reached
as written.
"920 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL, upon request, bargain collectively with the above -named Union
as the collective -bargaining representative of our employees in the following
appropriate unit, with respect to rates of pay, wages, hours of work, and other
conditions of employment . The appropriate bargaining unit is:
All employees known as Jumpers employed at Gloucester Port, exclusive
of all other employees and all supervisors as defined in Section 2(11)
of the Act.
WE WILL NOT, in any like or related manner, interfere with , restrain, or
coerce our employees in the exercise of their rights guaranteed in Section 7 of
the Act.
BOAT SERAFINA II, 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.
If employees have any question concerning this notice or compliance with its
provisions , they may communicate directly with the Board's Regional Office, Boston
Five Cents Saving Bank Building, 24 School Street , Boston, Massachusetts, Tele-
phone No . 523-8100.
APPENDIX B
NOTICE TO ALL EMPLOYEES
Pursuant to a 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 our employees that:
WE WILL, if requested to do so by Sea Food District 15, Amalgamated Meat
Cutters, Food Store , Sea Food , Allied Workers of North America , District
Union Local 2, AFL-CIO, bargain collectively with the above-named Union as
the collective-bargaining representative of our employees in the following appro-
priate unit, comprised of the employees of each of the undersigned employers,
with respect to rates of pay , wages, hours of work, and other conditions of
employment . The appropriate bargaining units are:
All employees known as Jumpers employed by each of the undersigned
employers, at Gloucester Port, exclusive of all other employees and all
supervisors as defined in Section 2(11) of the Act.
WE WILL NOT, in any like or related manner, interfere with, restrain , or coerce
our employees in the exercise of their rights guaranteed in Section 7 of the Act.
VESSEL VINCIE N., INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
Dated--- ---------------- By BOAT IDA & JOSEPH, INC.,
Employer.
Dated------------------- By RHODE ISLAND, INC.,
Employer.
Dated------------------- By BOAT ST. PETER, INC.,
Employer.
Dated------------------- By MARY ANN, INC,
Employer.
Dated------------------- By SEBASTIANA C., INC.,
Employer.
Dated- ------------------ By BOAT ST. ROSALIE, INC.,
Employer.
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.
If employees have any question concerning this notice or compliance with its
provisions , they may communicate directly with the Board's Regional Office, Boston
Five Cents Savings Bank Building , 24 School Street , Boston , Massachusetts, Tele-
phone No . 523-8100.