American Radio Association, AFL-CIO

National Labor Relations Board - Board Decisions

Sep 30, 1981

258 N.L.R.B. 1251 (N.L.R.B. 1981)

AMERICAN RADIO ASSOCIATION. AFI.-CIO() American Radio Association, AFL-CIO and Watters Marine, Inc. Case 21-CP-589 September 30, 1981 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND ZIMMERMAN On February 26, 1981, Administrative Law Judge Richard D. Taplitz issued the attached Deci- sion in this proceeding. Thereafter, the General Counsel, the Respondent, the Charging Party, and the Intervenor Western Hemisphere Corporation filed exceptions and supporting briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order.2 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the complaint be, and it hereby is, dismissed in its entirety. ' The Charging Party and the Intervenor have excepted to certain credibility findings made b the Administratise Lax Judge. It is the Board's established policy not to overrule an administrative la"w judge', resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incor- rect. Standard Dry Wall Products. Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 32 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing his findings. 2 The Charging Party and the Intervenor have requested oral argu- ment. This request is hereby denied as the record. the exceptions. and the briefs adequately present the issues and the positions of the parties. Addi- tionally. on August 7, 1981 the Charging Party moved to reopen the record The Charging Party contends that since the case was heard by the Administrative Law Judge it has hired another radio operator. that an election was held in Case 32-RC-1385, and that a Certification of Representative has been issued by the Regional Director for Region 32 to the Marine Engineers Beneficial Association as the bargaining representa- tive. The Respondent, American Radio Association., opposes the motion, contending that the certification is invalid and that further it is irrelevant to the instant case The Intervenor filed a response Io the Respondent's opposition. The validity of the certification is an issue not properly before us and upon which we are not passing. In any event. the certifica- tion occurred subsequent to the events herein and therefore does not affect the outcome of this case AccordinglI. the Charging Pary's motion to reopen the record is hereby denied DECISION STATEMENT O HIE C.ASI RICHARD D. TAPI.ITZ, Administrative Law Judge: This case was heard by me in Los Angeles, California, 258 NLRB No. 170 on November 4, 5, and 6. 1980. The charge was filed on August 6, 1980, by Walters Marine. Inc. The complaint issued on August 29, 1980. alleging that American Radio Association, AFL-CIO, herein called ARA, violated Section 8(b)(7)(A) of the National Labor Relations Act. as amended. By Order dated October 24, 1980, the Acting Regional Director for Region 21 of the Board granted the motion of Western Hemisphere Corporation to intervene in this case and to participate as if it were a party. IssuEs The threshold issue is whether recognition picketing in a one-person bargaining unit can come within the pro- scription of Section 8(b)(7)(A) of the Act. If that question is answered in the affirmative then the issue is raised as to whether a union can defend against an allegation that it violated Section 8(b)(7)(A) of the Act by raising matters that it had unsuccessfully raised in 8(a)(l), (2), (3), and (5) charges that it had filed. If such defenses can be raised then issues are presented relating to successorship, joint employer, continued recognition of the picketing union, unlawful assistance to the incum- bent union and discrimination based on union member- ship. All parties were given full opportunity to participate, to introduce relevant evidence, to examine and cross-ex- amine witnesses, to argue orally, and to file briefs. Briefs, which have been carefully considered, were filed on behalf of the General Counsel, Watters Marine, ARA, and Western Hemisphere. Upon the entire record' of the case and from my ob- servation of the witnesses and their demeanor, I make the following: FINDINGS Of FACT 1. THE BUSINESS OF HFE COMPANY Watters Marine. a California corporation with its prin- cipal office in Santa Cruz, California, is engaged in the operation of an oceangoing maritime vessel, the Lion of California, which transports petroleum and petroleum products for customers of Western Hemisphere, between various seaports on the West Coast of the United States. During the year immediately preceding issuance of com- plaint, Watters Marine performed services valued in excess of $50.000 for customers located within Califor- nia, which customers, during the same period of time. performed services valued in excess of $50,000 for cus- tomers located outside of California. The complaint al- leges, the answer admits, and I find that Watters Marine is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 11. THE I ROR ORGANIZATIONS INVOI VFI) The complaint alleges, the answer admits, and I find that ARA and Marine Engineers Beneficial Association are, and each is. labor organization within the meaning of Section 2(5) of the Act. ' Crlli l errors ill ih rTllll rlpl alLct tIlrch 1il 1edil i ' trrectld 1251 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 111. THE Al.IEGtlED UNFAIR l.ABOR PRACTIC ES A. Background This case involves the alleged unlawful picketing of Watters Marine by ARA for recognition in a one-person bargaining unit. That one person is the radio officer aboard the Lion of California. That ship is operated under a management contract by Watters Marine, the Employer and Charging Party in this case. Watters Marine only operates that one ship and that ship only has one radio officer. None of the parties disputes the fact that there is a one-person bargaining unit. The un- contested testimony of Watters Marine's president, Duane Watters, establishes that Watters Marine has em- ployed only one radio officer since it went into business, except for temporary relief for that radio officer when he had to testify at this hearing. As is set forth more fully below, the contract with the incumbent union is in a unit consisting of "the Radio Officer on the tanker 'Lion of California."' However, the dispute which led to this liti- gation is very wide in scope and involves a number of unions. Some background is therefore needed to put the case in perspective. The Marine Engineers Beneficial Association, herein called MEBA, in addition to representing marine engi- neers, represents licensed deck officers on various ves- sels. The International Organization of Masters, Mates and Pilots, herein called MM&P, is a rival labor organi- zation that also represents licensed deck officers on cer- tain vessels. Two smaller unions, both of which represent radio officers2 have become involved in that rivalry. They are the ARA, which is the Respondent herein, and the Radio Officers Union, herein called ROU. The ARA is in the process of merging with MM&P while ROU is in the process of merging with MEBA. The ROU and MEBA pension plans have already been merged. When Watters Marine took control of the Lion of Cali- fornia pursuant to a management contract on August 2, 1980, the ship was manned by a master and mates (also called licensed deck officers) who were members of MM&P, one radio officer who was a member of ARA, four marine engineers who were members of MEBA, and 24 unlicensed personnel who were members of Sail- ors Union of the Pacific, herein called SUP. When Wat- ters Marine took over the vessel it hired the existing crew except for the master, mates, and radio officer, all of whom were summarily ordered off the ship. Watters Marine openly admits that the licensed deck officers were replaced by MEBA members because it had a pre- hire contract with MEBA. It was stipulated that the master, mates, and marine engineers were supervisors within the meaning of the Act. There is no assertion that Watters Marine's actions with regard to them were in any way unlawful. However, the radio officer who was replaced was an employee within the meaning of the Act. Watters Marine contends that it hired a new radio officer without any regard to union considerations, that that radio officer authorized MEBA to represent him, and that it executed a contract with MEBA covering 2The parties stipulated and I find that such radio officers are employ- ees within the meaning of the Act that radio officer. ARA contends that Watters Marine lumped the radio officer's job together with those of the licensed deck officers and that Watters Marine's actions with regard to the radio officer were unlawfully keyed to union membership. ARA thereafter picketed for what it contended to be continued recognition as the representative of the radio officer. The General Counsel contends that Watters Marine has a lawful contract with MEBA covering the radio officer, that no question concerning representation can be raised and that ARA's picketing was for initial recognition and was therefore in violation of Section 8(b)(7)(A) of the Act. B. The Sequence of Events 1. The operation of the ship by Phillips Petroleum Tosco Corporation refines and distributes petroleum products. Western Hemisphere is a wholly owned subsid- iary of Tosco and acts as Tosco's shipping arm. Western Hemisphere owns only one vessel, the Lion of California, which is used to transport petroluem products along the West Coast. Prior to August 2, 1980, when Watters Marine took control of the Lion of California, that ship was operated by Phillips Petroleum Company pursuant to a manage- ment contract with Western Hemisphere. Under that management contract, Phillips Petroleum was responsible for hiring and paying the crew, purchasing supplies, and maintaining the ship. Phillips Petroleum received a man- agement fee for managing the vessel. It sent a periodic statement to Western Hemisphere setting forth expenses incurred in managing the vessel including labor costs, and Western reimbursed it for those expenses. Western Hemisphere decided for whom the ship would transport petroleum products and also scheduled the movement of the ship. Phillips Petroleum was responsible for the day- to-day operation of the vessel as well as for handling labor grievances and negotiating with the various unions. The management contract provided that changes in wage scales would be submitted by Phillips Petroleum to Western Hemisphere for written approval before being put into effect. That provision was never honored. Phil- lips Petroleum submitted labor contracts to Western Hemisphere only after they had been executed and only for file purposes. The management contract specifically provided that the crew would be employees of Phillips Petroleum and that Phillips Petroleum would negotiate labor contracts directly with the various unions. Phillips Petroleum negotiated contracts with SUP as the representative of the unlicensed personnel, with MEBA as the representative of the marine engineers, with ARA as the representative of the radio officers, and with MM&P as the representative of the master and mates. With regard to the radio officers, the contract, which was effective by its terms from November 1, 1978, to November I, 1981. covered a two-ship bargaining unit.:+ One of the ships was the Lion of California and the The contract indicate% that the ARA as certified h the Hoard on March 2. 1I)5(, a the bargaining rpresnltatcj of all licenlsed radio offi- cers emplosed h Phillips I'etlrleum on ils oceangolig tankers operating out f t'acific Coast ports 1252 AMERICAN RADI() ASSOCIAIIt)N, AIl CI() other was a ship owned by Phillips Petroleum named the Phillips Washington. Phillips Petroleum employed three radio officers. One worked on each of the ships and one filled in during vacations, illnesses, and other absences. The three radio officers were sometimes rotated from one of the ships to the other. 2. The preparation for the assumption of control by Watters Marine Before June 16, 1980, Duane Watters was director of marine operations for Phillips Petroleum. His headquar- ters was Bartlesville. Oklahoma. Watters had some re- sponsibility for the operation of the Lion of CaliJornia. He signed the union contracts on behalf of Phillips Pe- troleum. Sometime in the early spring of 1980 Western Hemi- sphere decided that it was going to cancel Phillips Petro- leum's management contract. Ronald Martin, vice presi- dent and general manager of Western Hemisphere, ap- proached Duane Watters with the suggestion that Wat- ters leave Phillips Petroleum and set up his own concern to manage the Lion of California. Watters agreed to the proposal. He left his employment with Phillips Petro- leum and moved from Oklahoma to Santa Cruz, Califor- nia, where he incorporated on May 20, 1980, as Watters Marine. Duane Watters and his wife are the owners, offi- cers, and board of directors of that corporation. On May 30, 1980, Western Hemisphere entered into a management contract with Watters Marine covering the operation of the Lion of' California. The management contract was to become effective August 1, 1980. Phillips Petroleum's management contract was to end on that date. Watters Marine's responsibilities under its manage- ment contract were substantially the same as those that Phillips Petroleum had been under the previous manage- ment contract. Watters Marine's original management contract had a provision similar to that contained in the Phillips Petroleum contract relating to prior approval by Western Hemisphere before wage increases were put into effect. As with Phillips Petroleum, that clause was never enforced. In mid-July 1980, Western Hemisphere and Watters Marine agreed to delete that clause from the contract. That agreement was not actually typed and sent to Duane Watters until August 28, 1980. Duane Watters testified that at the time he signed the management contract he had not yet made a decision whether to retain the personnel then working on the Lion of California or whether to hire new personnel. On or about July 8, 1980, John Nelson, the administra- tive superintendent for Phillips Petroleum, who %was pri- marily responsible for supervising the operation of the Lion of California, told Ralph L. Baird, the West Coast representative for ARA, that Duane Watters would be taking over the Lion of California on or about August 1, 1980. Prior to that Baird had received a letter dated June 27, 1980, from Phillips Petroleum saying that the Phillips Petroleum management contract for the Lion of Califor- nia was ending. Nelson gave Baird Duane Watters' tele- phone number, and Baird called Watters the same day. Baird asked Watters if Watters expected to continue with the ARA and Walters replied that he would if he could have the Phillips Petroleum agreement. Baird replied that Waltters could have that agreement. Baird asked Watlers whether there was anything that W\'alliers \wanted that was special or outside the agreement and Watters answered that he was satisfied if he could hae; the Phil- lips Petroleum agreement 'Watiers said that he would call aird in a fec days to determine where they should meet to conclude the business of igning the agreement. Baird prepared a contract for Watlers to sign. It w'as the same as the Phillips Petroleum contract except for the names and dates. On or about July 14, Baird called Wafters and told him the contract was ready. Watters indicated his ap- proval and said that he would call in a few days to sign the agreement. In that conversation, they also discussed benefits that would apply to Kerby Elton. Elton was the radio officer aboard the Lion o Calijbriu. Since about 1958, Elton had worked about half his time aboard the Lion of Cali/brnia' and about half aboard the Plrillips Wasshington. He was the ARA radio operator who was replaced on August 2, 1980, by George Callas. who was an ROU member represented by MEBA. Baird and Wat- ters discussed the fact that the Phillips Petroleum health plan would no longer be in effect. Baird informed Wat- ters that the union welfare program required a person to be employed for 360 days before full benefits including hospital coverage were operative. Baird suggested that they use Kaiser to cover Elton immediately. He asked Watters whether Watters would pay the $60-a-month Kaiser fee on behalf of Elton for some time until they could resolve the matter of union coverage. Waters said that he would be glad to. They ended the conversation by agreeing to meet to sign the agreement on July 18. 1980.5 Watters did not contact the union on July 18 so Baird telephoned him on July 19. Watters told Baird that there was sickness in his family and he would come in as soon as he could.6 Baird called WVatters again on July 29 but was unable to reach him. Watters never did sign the agreement. Instead he signed an agreement with MEBA and the ARA radio officer was replaced by an ROU radio officer who was represented by MEBA. i During some of those times. the ship no,r klnosr.n a, the L. itn on ('11i,- liria had different names and os ners. :' On Jul) 17, ti80. Duane Waters had a meeting with Jhn Ncl,on. the adninilraise superiniendent for Phillip, Petroleum sAho ssas l I charge of the day-to-da ,operation of the Lion of Cahlijornia. Before that meetinlg. a nunher of the hip', personnel had asked Nelolln about the benefilt halt a ould he carried over after he Iransfer of management and ahout the unionS that \kould he insolved after the tranfer Nelson ;asked Waiters if ' Waiers s\as Ilegotiatling with the SP'. ARA. MBA. atnd MM&I'. W'aiter, replied th;at he ,as Nelson asked lhai the agretriclll seri like iand Waiter, replied that tle \crc imnilar Il the one1, that 'hillips Petroleum had These findinigs are hbawd on the lteitnil \if Nellson o the extelt that aillters' tetimion differsr, t tr l Ihla rf Ncls ,ii. I credit Nelsol h Sometnilme i JUl' 190() Duane Walters had a meetillg \ith Ronald Martin the icc presidenlt and general manlager of Westernl lrinulliphcre ';atlr, said tIh;l he \,as con,iidering he ptlhilit of challging thC rla- tiollnllps ~sil I s.nt {if the ulliolls that had representtd enpl!ccs uilldter the Phillips I'etroletlu agreement tie spoke a;hout the po,,lihli! it Iill/- ing MI'itA s the repreeniatll\ e for all thle saptr\i,,sr persotlniel The ds,;cused the pssihility f aI ertical contral ctll X\l ch oll e tiltiorn s\\uld co'.er the sa hole ship Wall tter aid that it h t nd Ile'cxer rlasers lie utInions could not keep citasitg hitl roulid Nlnrtii tld itcrs, to go ahead .1d do haes cr lie thought as best 1253 DIECISIO()NS )F NA IONAI. I.AIB)R R A.IONS HO()ARI) The findings with regard to the conversations between Baird and Watters are based on the testimony of Baird. Watters' testinmony concerning those conversations was very different than Baird's. Watters testified: Baird asked Watters whether it was true that Watters was going to assume operation of the Lion o' Cahliirrnia arid Watters said that it was true; Baird asked about the Phillips i'e- troleumn position with regard to certain medical problems and Watters replied that he did not know; there was no mention of Elton in the conversation; and Baird did not ask Watters to recognize or sign a contract with ARA. Watters also testified that there was a second conversa- tion with Baird a few days later when Baird again asked about the Phillips medical program and asked whether it would be extended to the people after the takeover by Watters. Watters averred that he answered that he did not know. I do not believe that Watters was a candid witness. ARA was the longstanding representative of the radio officer aboard the Lion of California and it has given rather dramatic indications that it fully intends to contin- ue to be the representative. Both Watters and Baird agree that there was a conversation between them a matter of weeks before Watters' takeover of the Lion oj Calijbrnia. It is most difficult to believe Watters' asser- tion that Baird said nothing about continued recognition or a contract with the ARA. This is particularly true in the context of a situation where it was widely known in the industry that there were serious jurisdictional con- flicts between the ARA which was in the process of merging with MM&P and the ROU which was in the process of merging with MEBA. In addition, I believe that Watters was less than straightforward in his testimo- ny conceriing his hire of radio officer Callas to replace Elton. As is set forth in more detail below, his attempt to give the impression that he was innocent of knowledge with regard to union considerations surrounding the hire of Callas was so unconvincing that it shed doubt on his candor generally. Watters was the one who told Callas to meet him at the MEBA offices. On July 18, 1980, Kerby Elton, the radio operator aboard the Lion of Califbrnia, called Duane Watters on the telephone. As radio officer, Elton was responsible for payroll and other bookkeeping work. Elton asked Wat- ters whether there was going to be any change in the pit- perwork after Watters took over the vessel and whether they were going to continue to use the Phillips Petro- leum forms. Watters replied that he did not plan to use any new forms at that time. Elton asked Watters wheth- er company benefits would be comparable to those given by Phillips Petroleum. Watters replied that there would be no benefit plans other than the union medical.7 3. The hiring of radio officer Callas and the bargaining contracts between Watters Marine and MEBA Sometime prior to July 31, 1980. Watters agreed to enter into a bargaining contract with MEBA that would cover the licensed deck officers as well as the marine en- I hese findings are based ,II Ihe tislirnlonl , f IlIron l , Ihe cklsi thai Watliers, ' tlestimoni s differ, from tlail f Floii I crcdlit F[l11 gineers aboard the Lion o CaJ/ifirni . M BA already represented the marine engineers and as a result the marine engineers aboard the I.ion of ('a/ifjr,uia continued to crew the vessel after atlters Marine look control. The agreement led to the replacement of the MM&P li- censLd deck officers by MEBA deck officers. Duane Waters testified that he did not discuss the radio officer position with MEBA during the conversa- lions that preceded July 31, 1980. In the light of the working relationship between MEBA and ROU as well as the circumstances surrounding the hire of Callas, I am unable to credit that testimony. Sometime in July 1980, MEBA Business Agent Ches- ter Ferguson called ROU Business Agent St. Clair Bar- rymore. Ferguson told Barrymore that Watters as fa- vorably considering the proposal that MEBA represent the licensed deck officers. Ferguson suggested that Bar- rymore have some of his members apply for the radio of- ficer job. Barrymore then called George Callas, who had been a member of ROU for the last 10 years. s Barrymore told Callas that the position of radio officer for the Lion of California was up for grabs. He gave Callas Watters' address and suggested that Callas write to him. On July 26. 1980, Callas wrote to Watters applying for the job. Some five other radio officers also wrote applying for the same job. Watters attempted to phone all the appli- cants, and he spoke to some of them. On June 30, 1980, Duane Watters called Callas on the telephone and spoke to him about the job and Callas' availability. Watters said that he would call him back later that day. Watters then spoke on the telephone to some of the other applicants. Later that day Watters called Callas again and offered him the job of radio officer aboard the Lion of Calijbrnia. Callas accepted. Watters had an appointment to be at the MEBA headquarters in San Francisco the following day. and Callas lived in the San Francisco Bay Area. Watters asked Callas whether Callas could meet him in San Fran- cisco the next day and they agreed that Watters would call Callas from San Francisco and let him know where to meet. Later that day, July 30, 1980, MEBA Business Agent Ferguson received a call from ROU Business Agent Bar- rymore. Barrymore said that one of his members, Callas, had been hired by Watters. Ferguson said that he wanted to go for the whole thing-deck. engine, and radio, and Barrymore replied "have at it." Barrymore said that he would encourage Callas to authorize MEBA to represent him in dealing with Watters. Thereafter, Barrymore asked Callas whether it would be all right with him if MEBA represented him. Barrymore told him that ROU and MEBA were merging. Callas replied that it was agreeable to him. On July 31. 1980, Duane Watters went to San Francis- co to review the MEBA contract covering marine engi- neers and licensed deck officers. He arrived at the MEBA office in San Francisco about 9:30 a.m. and dis- cussed changes in the proposed contract with MEBA Business Agent Chester Ferguson. They agreed on the changes. While Watters was waiting for the secretarial ' Is ikel tat he aso called lher mem hers if R()t'. h there is nl oxident e iI I lie record i regard It seh ca ls 1254 AMIE RICAN RAI)I() ASS()CIAII()N. AI.-CI) work to be done, he called George Callas on the tele- phone and asked Callas to meet him at the MEBA office. Callas arrived at the MEBA hall about 10:30 or II am. He spoke to the receptionist and asked to talk to Wat- ters. Ferguson then approached Callas and asked to talk to him when Callas was through speaking to Watters. Callas agreed to do so. Callas then went into an office where Watters was waiting for him. The, spoke about the operation of the ship and Callas signed the necessary employment papers. Callas then ent to Ferguson's office. Ferguson asked Callas to sign a pledge card authorizing MEBA to be his bargaining agent. Callas said that it was fine with him because Barrymore the business agent for ROU. had told him about the situation and he was in favor of a merger of the ROU and MEBA. Ferguson signed the authorization card." At or about 3 p.m. on July 31, 1980. Ferguson showed Waiters the union authorization card that had been signed by Callas and told Watters that Callas had agreed to being represented by ME1A. Ferguson said that Wal- ters would have to sign an agreement with MEBA cov- ering the radio officer aboard the Lion of Califirnia. Watters agreed and they both signed a memorandum of agreement covering the radio officer aboard the Lion o Califbrnia. The agreement reads: "Having been presented with proof of such representation. the Company recognizes the MEBA as the sole representative for collective bar- gaining of the Radio Officer on the tanker 'Lion of Cali- fornia."' The memorandum of agreement. which was by its terms effective until September 1, 1981. provided that wages, hours, fringe benefits, and other working condi- tlions were to be the same as in those provided for tanker radio officers in an agreement dated June 16. 1978, be- tween ROU and companies owining or operating ocean- going U.S. flag tanker vessels. Though Waiters signed the memorandum \which incorporated the terms of the ROU contract, he was not show n and he had never seen that contract. He did not even discuss with Ferguson the wages and other provisions contained therein. 4. The replacement of radio officer Elton Watters Marine was scheduled to take over the oper- ation of the Lion, of Culijbrnia when it arrived in Los An- geles on August 1. 1980. The ship arrived shortly before midnight on August 1 but was not secured until the early morning hours of August 2 1980. At that time, Duane Waiters and MEBA Business Agent Ferguson boarded the vessel. Watters told the licensed deck officers that their jobs were being filled with MEBA members and that they should leave the vessel. Radio officer Elton overheard part of the conversation and asked Watters how it would affect him. Watters told him that he had found a replacement for him. Elton was told to leave the vessel. Elton replied that he was going to contact his union representative. " After some delay the licensed ' Calla, leifict] ait it a ils uiliildtcriiand(lii! thiat M I A and R(L svcrc %korking togolhcr ,,o hat if ohs pelrlId hroigh Nt I[IA. Rt , ould he uppl.ing il rlio officr, h fidiigs relating to thc Collcrs.ltlio i l'tkc.i 1 11tn ;ih l .hi i W ltcr are halid Mil tIc 1csi1n1 iif .t [I" 1 ,1l tI O lilt' '\tCti hit & ' itt M ers' i.Mlim - r1i differ, fro ia l o ti ,r. cIcidlt thon deck officers and Elton left the vessel. The 24 unlicensed personnel, all of whom %,ere members of SUP. continued to ork on the vessel as employees of Watters Marine. XValters testified that he decided to hire those unlicensed crew members on August 2 aid that he had not indicat- ed to anyt of them before then that he had *wanted to hire them. On August 2, Watters gave a pad of employment application forms to Paul Dempster an official of SUP. anid Dempster distributed them among the unlicensed crew. Thereafter. Watters Marine recognized SUP as the representative of those employees. The four marine engi- neers continued to work on the vessel as employees of Watters Marine. The four licensed deck officers who left the vessel were replaced by MEBA members who had been referred to him by MEBA and who had signed em- ployment applications on August 1, 1980. Radio officer Elton. who had been represented b ARA, was replaced by radio officer Callas who was a longstanding member of ROU and who had authorized MEBA to represent him. A brief recapitulation of some of the facts puts Elton's discharge in perspective. ARA had represented the radio officer aboard the Lion of Ca/ijbrnia for many years. Duane Watters, when he \wtas director of marine oper- ations fr Phillips Petroleum was fully familiar with the situation aboard the Lion of Califorrnia and also with the claimed jurisdictions of the various labor organizations in that industry. ARA as in the process of merging with MM&P. ROU was in the process of merging with MEBA. In mid-July 1980, Watters reached an agreement with ARA to execute a bargaining agreement with ARA that would apply to his operation of the Lion of CahliJr- nia when he assuned that role on August I. That agree- ment constituted recognition of ARA as the representa- tive of thle radio officer aboard the Lion, o/ Cual/bOrna. In discussing the agreement, Watters agreed to pay the costs of a Kaisci health plan for Elton who as the radio officer aboard the Lion o' Cu/ibrnia. Implicit inl that agreement was the understanding that Elton would remain as radio officer after Watters Marine took control of the ship. After agreeing to sign the contract with ARA. Watters found excuses not to sign the agreement. At that time. he was negotiating with MEBA. Those ne- gotiations with MEBA led to Watters' decision to re- place the licensed deck officers of the Lion of Califorrnia with MEBA members. However, MEBA and ROU twere tied together. They were in the process of merging and their pension plans had already merged. MEBA and R()U got together in an attempt to have an RO() member replace the ARA radio officer. A MEBA offi- cial suggested that ROU members apply for the job. R()U had radio officer Callas apply for that position. Watters asked Callas to come to the MEBA office to speak to him anid while Callas was there a MEBA offi- cial obtained an authorization card from him. Shortly thereafter. the a 1horiiation card ;was shown to Watters anld Watters recognized MEBA tas the representati. c of the radio officer on the Lionr of CUlornia. I do not be- lieve that Watters called Callas to to the MERIA ffice si1npl ils a casual matter of con\ enience. Thai call di- ec;tld Ihat Waltls kc\\ \\Fiatl \\.s oing on and \xas 1255 DECISIONS OF NATIONAL LA()OR REIATIONS I()ARI) privy to a previously arranged plan to set up a pretext to disguise the fact that an ROU member represented by MEBA would replace an ARA radio officer. That con- clusion is fortified by the manner in which Watters han- dled the replacements when he boarded the ship on August 2. Watters knew that Elton wanted to remain on the job. He had already agreed to pay the cost of a Kaiser health plan for Elton." Yet Elton was summarily ordered off the ship together with the licensed deck offi- cers. The unlicensed personnel, who along with Elton were employees within the meaning of the Act, remained on board and became employees of Watters Marine. Elton was treated in a strikingly disparate manner. I find that Elton was not considered for employment or em- ployed by Watters Marine because he was a member of ARA and that Callas was hired to replace Elton as radio officer aboard the Lion of California because Callas was a member of ROU which was in the process of merging with MEBA. From all of the above, it follows that Wat- ters Marine did not lawfully recognize MEBA as the representative of the radio officer aboard the Lion of California in accordance with the Act. 5. The picketing Oni August 5, 1980, the Lion of California docked at San Pedro, California, to unload oil. The ship was pick- eted at that location with signs reading "Unfair. Ameri- can Radio Association/AFL-CIO Lockout of their jobs. SS Lion of CaliJbrnia. This picket is directed against SS Lion of California only." The new captain of the Lion of CuliJbrnia, William Gibbs, asked a picket who seemed to be in charge the reason for the picketing. The picket told him that the picketing was for recognition and because a man had been locked out of his job. Because of the pick- eting, the dockside valves at the port were closed down and the bulk of the ship's cargo could not be unloaded. The ship moved on to San Francisco where it arrived on August 8, 1980. When it entered San Francisco Bay, two picket boats appeared carrying the same signs that had been used in San Pedro. The pilot refused to pilot the ship and the cargo could not be delivered. The ship then went to Eliot Bay in Seattle, Washington, where it ar- rived on August I 11. Picket boats displaying the same picket signs were there when the ship arrived. The picket boats remained there until a temporary restraining order was served on August 27, 1980. ARA does not contest the fact that it was responsible for the picketing. It takes the position that it was seeking continued rather than initial recognition. 6. The unfair labor practice charges filed by the ARA On August 11, 1980, ARA filed charges against Tosco, Watters Marine, and Western Hemisphere in Cases 21- CA-19397, 21-CA-19398, and 21-CA-19399, respective- ly. Each of the charges alleged that the Employer violat- In addilion, Elton had asked him questiorns about forms t) be used after Waliers Marine took over control. hose quesilionls onli had mcan- ing i he conlext f an assumptilon hb both Wa;liers land Elton that Litoll would continu e to fill out forms on hboard the .in oJ (Cralihbruia a(ter Wt:ler. took control ed Section 8(a)(1), (2), (3), and (5) of the Act by unlaw- fully withdrawing recognition and refusing to bargain with ARA, by discriminatorily locking out and discharg- ing members of ARA, and by unlawfully assisting MEBA and ROU by entering into an unlawful prehire contract. Each charge alleged that the Employer was bound by a collective-bargaining agreement with the ARA. By letters dated August 25, 1980, the Regional Direc- tor for Region 21 notified the ARA that he was refusing to issue complaints on those charges. The ARA appealed the action of the Regional Director to the General Coun- sel's Office of Appeals. On October 16, 1980, the Office of Appeals affirmed the action of the Regional Director. The parties stipulated and I find that the ARA has not filed a petition for an election among the radio operators of Watters Marine and that no certification has issued by the Board concerning radio operators of Watters Marine. C. Analysis and Conclusions A number of questions are presented in this case. One key question is whether the ARA can raise defenses keyed to joint employer, successorship, refusal to bar- gain, discharge of its members, and assistance to MEBA where those defenses relate to matters which have been previously raised by the ARA in charges which were later dismissed by thc General Counsel. However, there is one threshold question which must be answered before the General Counsel's prima facie case, the availability of defenses to the ARA, or the merits of the ARA's defense can even be considered. That concerns the one-person unit that is present in this case. Assuming for the pur- poses of argument that the General Counsel has estab- lished everything that he sought to and that the ARA had no defense, could a violation of Section 8(b)(7)(A) exist where the picketing was directed toward recogni- tion in a one-person bargaining unit? As is fully set forth below, I believe no such violation can exist in such cir- cumstances. Therefore all the other questions raised are moot. Section 8(b)(7)(A) reads: It shall be an unfair labor practice for a labor or- ganization or its agents- (7) to picket or cause to be picketed, or threaten to picket or cause to be picketed, any employer where an object thereof is forcing or requiring an employer to recognize or bargain with a labor orga- nization as the representative of his employees, or forcing or requiring the employees of an employer to accept or select such labor organization as their collective bargaining representative. unless such labor organization is currently certified as the repre- sentative of such employees: (A) where the employer has lawfully recog- nized in accordance with this Act any other labor organization and a question concerning represen- tation may not appropriately be raised under sec- tion 9 (c) of this Act. 1256 AMERICAN RADIO ASSOCIATION, AFL-CI() Section 8(b)(7)(A) along with Section 8(b)(7)(B) and (C) of the Act are inseparably intertwined with concepts re- lating to the Board's election procedure and an employ- er's duty to bargain. Indeed, the language of the Act in- corporates such concepts. Section 8(b)(7)(C) proscribes picketing for recognition where the picketing union has not filed a petition for an election within a reasonable time not to exceed 30 days from the commencement of the picketing. For the picketing to be lawful the union must invoke the Board's election processes within a rea- sonable time. Under Section 8(b)(7)(B), a union may not picket where a valid election has been conducted under the Act within the preceding 12 months. Under Section 8(b)(7)(A), recognition picketing is unlawful where the employer has lawfully recognized in accordance with the Act another labor organization and a question concern- ing representation may not appropriately be raised under Section 9(c) of the Act. The provision relating to lawful recognition of another labor organization in accordance with the Act is keyed to situations where the employer has a duty to bargain with the other labor organization. The provision relating to the question concerning repre- sentation is geared to the Board's contract-bar rules. 12 If an employer lawfully recognizes a union and has a con- tract with that union which bars an election, a rival union cannot obtain a Board election and cannot picket for recognition. A contract which because of its length or for any other reason does not bar an election proceed- ing'3 may not be used as a predicate for banning a rival union's picketing. Section 8(b)(7)(A) of the Act proscribes recognition picketing where the employer has lawfully recognized another union and no question concerning representation can be raised. Those two concepts are interdependent. Lawful recognition is not in itself a sufficient basis for proscribing the picketing. The lawful recognition must be combined with a contract bar or an obligation to bar- gain with the recognized union which prevents a ques- tion concerning representation from being raised and therefore precludes the picketing union from obtaining access to the Board's election process. If there is no con- tract bar or bargaining obligation to prevent the question concerning representation from being raised then a union can lawfully picket for a reasonable time not to exceed 30 days. If during that time the picketing union does not file a petition for an election, the picketing can be pro- scribed by Section 8(b)(7)(C) of the Act. Section 8(b)(7)(B) comes into play if the union files a petition for an election and then loses that election. When read to- gether Section 8(b)(7)(A), (B), and (C) is an attempt by the legislature to reconcile and seek a balance between legitimate interests. Those include the interest of the h A t e Boa:rd held in Inrrttrnaunal iod (uarr erl Blding and Co,,mmon I.auhorers t'nl o .4 mIricu Local 840, .FIL-CIO (Charh' I. B/lilnr,. bL (h . . Ithnne (Cowriucon Company). 135 NLRI l 13, fn 5 1962 ): .ubparagraph [Sh71 (A) afford proteciionll It llfILull reCognilcd unillII Which do not hac certified oatu , alld alo illncorporiltC. i cff..c. the lc;lard, conract-har rule relating to Ihe ciI,h'lnc oi a qucetlon concerning rpreclltatioll 'See P i/' Coul -I o..iation to! Pulp and, I Ppr .attaifactrcr-. 121 NLRB 99)( (I958): lppoulachli,a Shah Produci, (Co. 121 NRB ltI) (1958) union in picketing for recognition; the interest of an em- ployer and union in enjoying industrial stability where the employer has lawfully recognized the union and be- cause of that recognition a rival union cannot raise a question concerning representation and obtain a Board election; the interest of all parties in honoring the results of a Board election for a given period; and the interest of the employer, the employees. and the public in requiring orderly election procedures rather than prolonged rccog- nition picketing. The accommodation of those interests sought by Section 8(b)(7) cannot be achieved in a situa- tion where by operation of law there can never be a bar- gaining obligation, where a valid question concerning representation can never be raised, and where a Board election can never be held. That is the situation that exists where there is a one-person bargaining unit. These broad statements of law do not necessarily apply in a situation where a union's inability to raise a question concerning representation and to obtain a Board election is caused by its own action rather than because of Board policy. In Drivers. Chauffeurs & Helpers, Local Union 639 affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (Dunbar Armored Express. Inc.), 211 NLRB 687 (1974), the Board found that a union violated Section 8(b)(7)(C) of the Act where it picketed for recognition in a bargaining unit of guards. There the union could not obtain a Board certification in the guard unit because of its own decision to admit nonguard employees to mem- bership. That case involved a situation that is distinguish- able from the instant one. Where a one-person unit is in- volved, a picketing union cannot be said to have lost its opportunity to raise a question concerning representation because of its own actions. As the Board held in the Dunbar case: Since Respondent's inability to obtain a Board certi- fication in this guard unit results from its own action and not from any policy of the Board, this case is distinguishable from Teamsters Local Union No. 115 (Vila-Barr Company), 157 NLRB 588, which involved picketing where there was only a one-man unit. Thus, in Vila-Barr the Board recog- nized that the union there was "disabled through no fault of its own from invoking the Board's election processes" because the Board would not entertain a representation petition for a one-man unit. In this case, the Union's inability to utilize the Board's election processes in this guard unit does result from Respondent's practice of admitting nonguards to membership. Furthermore, unlike the one-man unit in Vila-Barr, the unit here can be petitioned for and an election held if the petition is filed by a labor organization which admits only guards to membership. A union may lawfully represent an employee in a one- employee unit. Louis Rosenberg. Inc., 122 NRi 1450. 1453 (1959). However, the Board has long held that it will not certify a union as the representative of an em- plovee in a one-person unit. As the Board held in Luck- 1 257 DECISIONS ()F NATIONAL LABOR REL.ATIONS BO()ARD enbachl Steamshtip Company, Inc.. 2 NLRB 181, 193 (1936): The National Labor Relations Act creates the duty of employers to bargain collectively. But the principle of collective bargaining presupposes that there is more than one eligible person who desires to bargain. The Act therefore does not empower the Board to certify where only one employee is in- volved. This conclusion does not mean that a single employee may not designate a representative to act for him: he had such a right without the Act, and the Act in no way limits the right. By the same token, this conclusion in no way limits the protec- tion which the Act otherwise gives such an employ- ee. Nor will the Board find that an employer has unlawfully refused to bargain where the bargaining unit consists of one person. Foreign Cur Center Inc.. Jbrmerlv Boh Snead. Inc., 129 NLRB 319 (1960). No cases have been cited to me, and I have found none where a one-person bargaining unit problem arose in the context of an 8(b)(7)(A) case. However, the Board has considered such matters with regard to Section 8(b)(7)(C). In Teamnster5 Local Union No. 115 (J. Stanley Thackerah and J. Charles Barr t/a Villa-Barr Company)., 157 NLRB 588 (1966), the Board held: This statutory plan, designed to substitute Board elections for picketing of unreasonable duration as a means for resolving disputes over representation, is not applicable, however, where, as here, a one-man unit is involved. This is true because the Board has held that it is not empowered to certify a bargaining representative or by other procedures require bar- gaining in a unit comprising one employee and it therefore does not direct elections under Section 9(c) or 8(b)(7)(C) in such units.' In view of this con- struction of the Board's powers, a construction well established at the time Section 8(b)(7) was enacted, a union claiming recognition is disabled through no fault of its own from invoking the Board's election processes for purposes of resolving the question concerning representation raised by its picketing. In these circumstances, it would be inequitable, and be, we believe, not within the intention of Congress, to condition the lawfulness of the recognitional picket- ing in a one-man unit on the union's filing of a peti- tion, since, if such petition were filed, it would be dismissed. ' -Luckhnbaoh Steamvhip Copanr, upru: -1i DiA Steuak 11oue. Inc.. upra. ' The Board has held that "it is only a petition lthal leads t an expedited election owhich warrants disnlissal of an otherwise rleri- iorious charge"' f a iolation of Section 8h)(7)C), (hiialgo P'rol- ig Preitcn , (oorc I.,amwitoi,L c.), . 137 Nt. RI 729 torious charge" (of'l ia Silatiolu of Siction (h)(7)4t') ('htyago Print. ing Pres nern' (,,oor l,,Lamnrint,. IN . 1 17 Nt RI) 72)4 There are some marked similarities between the situa- tion in the Vi'lla-Barr case and the instant case. In Villa- Barr . the Board refused to find that picketing for recog- nition was a violation of Section 8(b)(7)(C) because the union had no access to the Board's election procedure in a one-person bargaining unit. In the instant case, the ARA could never utilize the Board's contract-bar rules, could never raise a question concerning representation, and could never secure an election, all because there was a one-person unit. " Based on all the considerations set forth above. I find that picketing for recognition in a one-person unit cannot fall within the proscription of Section 8(b)(7)(A) of the Act. I therefore recommend that the complaint be dis- missed in its entirety. CONCI USIONS OF LAW 1. Watters Marine, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. ARA and MEBA are, and each is. a labor organiza- tion within the meaning of Section 2(5) of the Act. 3. The General Counsel has not established by a pre- ponderance of the credible evidence that ARA violated the Act as alleged in the complaint. Upon the basis of the foregoing findings of fact, con- clusions of law, and the entire record in this case, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER's The complaint is hereby dismissed in its entirety. " A finding that Sec. X(h)(7)(A) applies to a ne-prs,on unit would also cause other anomalies i the la'. Sec. 8(h)(7) applies only to initial as distilnguished froml con tillued reclgtiltion It has no application where the employer has extended bargaining rights to the picketing union before the picketing began. Building und Conoruction Trades Council of Santo Burhara Countrv. .IL-('10: Inlrrarioa,,ul Brotherhood o El'ctriwal fforker; Local No. 413. .1-tl.-('10, and International Union of Operating Eineer Local .o. t, ltl.-CIO Sullivani l, ir C(iompuanyl (Jonles and Joltn, In, anld Ilteritah Einp/onvrs Ic. , 146 NlRB 1086 (1964) Nor voul d Sec 8(b)(7) appl, \'here he einploler s;as suuesor It ar ego 1of or joint employer ilh uch a employer toss eer. i a one-person ullit a uion could have io bargainlig rights and therefore the distirlction hctslseeni iiial ad coltinued recognitionl arould he lost. ' In the event no exceptiors are filed a pr, ded by Sec. 102.46 of the Rules nd Regulalions of the Ntitonall l.ahtor Relations Board, the finlding. o, Iclasions. anld reconmmenlded ()rder herein shall, as prol ided il Sec 102 48 ,f the Ruls iand Regullalihs, e adopted bh the loard and beconle its flindings, con(clusiols. and ()rder. ad all objections hereto ,1hall he dicinitl si aiIed for ill prposes 1258