Masters, Mates & Pilots (Marine Transport)

National Labor Relations Board - Board Decisions

Jan 31, 1991

301 N.L.R.B. 526 (N.L.R.B. 1991)

526
301 NLRB No. 75
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondent, International Organization of Masters, Mates and Pilots,
Marine Division, International Longshoremen’s Association, AFL–CIO, is
hereinafter referred to as ‘‘the Respondent’’ or ‘‘MMP.’’
2 Although the caption of the General Counsel’s answering brief does not
so indicate, it also contains cross-exceptions to the judge’s decision.
Pursuant to the General Counsel’s request, we note the following incidental
errors in the judge’s decision: (1) in sec. II,E,3, a reference to picketing by
‘‘MOC’’ should have read ‘‘MM&P’’; (2) in sec. II,F, a reference to charges
filed against ‘‘the following employees’’ of various employers should have
read ‘‘the following members employed by’’; (3) in sec. II,F, a reference to
mailgrams sent to the following employees should have read ‘‘the following
members of MM&P’’; (4) in sec. II,F, a reference to David Erickson as a
‘‘Keystone employee’’ should have read ‘‘Keystone supervisor’’; and (5) in
sec. II,I, a reference to ‘‘a directive not to strike’’ should have read ‘‘a direc-
tive not to work.’’
3 ‘‘Mormac’’ is a collective reference for Moore McCormack Bulk Trans-
port, Inc. and Gastrans, Inc., both separate Delaware corporations, which ap-
parently do business together.
4 Charging Party MOC also filed a motion to reopen the record for the lim-
ited purpose of introducing a collective-bargaining agreement between itself
and the radio officers employed by MOC. Charging Party Keystone filed an
affidavit in response to the motion to reopen the record, which states that if
MOC’s motion is granted, Keystone should also be permitted to introduce evi-
dence concerning the responsibility of its licensed deck officers to adjust the
grievances of radio officers employed aboard Keystone’s tanker vessels. In its
motion, MOC argues that the Board should permit it to introduce this addi-
tional evidence for the purpose of proving that MMP, through the American
Radio Association, represents statutory employees of MOC. MOC states that
it did not introduce this evidence at the hearing because pre-Royal Electric
(NLRB v. Electrical Workers IBEW Local 340, 481 U.S. 573 (1987)), such evi-
dence was irrelevant in resolving an alleged 8(b)(1)(B) violation. Because it
is unnecessary for resolution of the issues in this case to find that MMP rep-
resents any of the Charging Parties’ statutory employees, both motions are de-
nied.
5 NLRB v. Electrical Workers IBEW Local 340 (Royal Electric), 481 U.S.
573 (1987).
6 The Respondent has excepted to some of the judge’s credibility findings.
The Board’s established policy is not to overrule an administrative law judge’s
credibility resolutions unless the clear preponderance of all the relevant evi-
dence convinces us that they are incorrect. Standard Dry Wall Products, 91
NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully ex-
amined the record and find no basis for reversing the findings.
7 The Board has jurisdiction over the Respondent because it represents statu-
tory employees of other employers not parties to this case, and thus is a labor
organization within the meaning of Sec. 2(5) of the Act.
8 The facts are more fully set forth in the judge’s decision.
International Organization of Masters, Mates and
Pilots, Marine Division, International Long-
shoremen’s Association, AFL–CIO and Marine
Transport Lines Company, Inc.; Keystone
Shipping Company
International Organization of Masters, Mates and
Pilots, Marine Division, International Long-
shoremen’s Association, AFL–CIO and Mari-
time Overseas Corporation; Moore McCor-
mack Bulk Transport, Inc. Cases 5–CB–4870,
5–CB–4885, 5–CB–4886, 5–CB–4887, and 5–
CB–4907
January 31, 1991
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND DEVANEY
On March 21, 1986, Administrative Law Judge Ben-
jamin Schlesinger issued the attached decision. The
Respondent1 filed exceptions, a supporting brief, and
an answering brief, and the General Counsel filed an
answering brief.2 Charging Party Marine Transport
Lines Company, Inc. (MTL) filed cross-exceptions, a
supporting brief, and answering briefs; Charging Party
Keystone Shipping Company (Keystone) filed answer-
ing briefs; Charging Party Maritime Overseas Corpora-
tion (MOC) filed cross-exceptions and answering
briefs; and Charging Party Moore McCormack Bulk
Transport, Inc. (Mormac)3 filed an answering brief.
The Respondent, the General Counsel, and Charging
Parties MTL, Keystone, MOC,4 and Mormac, there-
after filed statements of position in response to the
issuance on November 19, 1987, of the Board’s notice
to parties of opportunity to submit statements of posi-
tion with respect to the issues raised by the Supreme
Court’s decision in Royal Electric.5
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,6 and con-
clusions only to the extent consistent with this Deci-
sion and Order.
I. BACKGROUND
The Charging Party-Employers, MTL, Keystone,
MOC, and Mormac (collectively the Charging Parties
or Companies) are engaged in the business of trans-
porting various products in United States-flag ocean-
going vessels in foreign and interstate coastwise trade.
This case does not involve statutory employees under
Section 2(3) of the Act, but rather the Charging Par-
ties’ licensed deck officers—its masters, chief (or first)
mates, second mates, and third mates—all of whom
have been stipulated to be supervisors of their respec-
tive employers within the meaning of Section 2(11) of
the Act.7
For many years, ranging in duration from 5 to 30,
the Charging Parties have been parties to successive
collective-bargaining agreements with the Respondent
covering the licensed deck officers.8 The agreements
included provisions for the recognition of the Respond-
ent as the collective-bargaining representative of the li-
censed deck officers, for the hiring of such officers ex-
clusively from the Respondent’s hiring hall, the use of
which is limited to the Respondent’s members, and a
union-security provision requiring that officers main-
tain their union membership.
At various times after the most recent 1981–1984
contract expired in June 1984, the Charging Parties re-
pudiated their collective-bargaining relationships with
the Respondent and unilaterally established new terms
and conditions of employment for the licensed deck of-
ficers. The Charging Parties informed the officers of
the changes and offered them employment under the
527MASTERS, MATES & PILOTS (MARINE TRANSPORT)
9 All dates refer to 1984 unless otherwise noted.
10 We agree with the judge’s use of the term ‘‘strike’’ synonymously with
‘‘job action,’’ and use the terms interchangeably herein.
11 The picketing continued until enjoined by a consent 10(j) injunction on
January 15, 1985.
12 Sec. 8(b)(1)(B) provides that it shall be an unfair labor practice for a
labor organization to restrain or coerce an employer ‘‘in the selection of its
representatives for the purposes of collective bargaining or the adjustment of
grievances.’’
13 The judge found that the second and third mates were 8(b)(1)(B) rep-
resentatives. The parties had stipulated that the masters and chief mates were
8(b)(1)(B) representatives.
14 Sec. 8(b)(1)(A) provides that it shall be an unfair labor practice for a
labor organization to restrain or coerce employees in the exercise of their Sec.
7 rights.
15 Electrical Workers IBEW Local 340 (Hulse Electric), 273 NLRB 428, 439
(1984).
16 Some of the examples of grievances noted by the judge involved com-
plaints that a seaman who was standing watch was not carrying his full share
of the duties; that a seaman was not relieved on time or did not receive his
proper coffee or meal break; that a seaman should perform a particular task;
and that another crew did not make coffee or left the quarters dirty.
17 481 U.S. at 586.
new terms and conditions, stressing that employment
would be available only to those who accepted the new
terms.
As set forth in greater detail supra, in response, on
October 3, 1984,9 the Respondent called a ‘‘job ac-
tion’’10 against the Charging Parties, instructing its
member deck officers to refuse to perform work for
the Charging Parties and to refuse to leave the vessels
when replacements were hired. The Respondent also
brought charges against and fined any licensed deck
officer who continued to work for the Charging Parties
after the job action was called, engaged in threatening
conduct, and picketed the Charging Parties.11
The judge, applying then-existing Board law, con-
cluded that the Respondent’s job action and picketing
violated Section 8(b)(1)(B)12 because it deprived the
Charging Parties of the services of their 8(b)(1)(B) rep-
resentatives.13 The judge further found that the
charges, fines, and threats to fine officers to secure
their participation in the job action and picketing vio-
lated Section 8(b)(1)(B), and further, that the threats
and other violent conduct involving the Keystone ves-
sel Puerto Rican and the MOC vessel Juneau violated
both Section 8(b)(1)(A)14 and Section 8(b)(1)(B).
II. ISSUES
After issuance of the judge’s decision, the Supreme
Court issued its decision in Royal Electric, requiring a
substantial modification of the Board’s approach in
8(b)(1)(B) cases. We must therefore examine the issues
in this case in light of Royal Electric. The issues in
this case are whether (1) the second and third mates
are 8(b)(1)(B) representatives; (2) the strikes and/or
picketing conducted by the Respondent violated Sec-
tion 8(b)(1)(B); (3) the Respondent’s fines and threats
to fine certain of the licensed deck officers violated
Section 8(b)(1)(B); and (4) the threats of violence re-
lated to the incidents involving the Juneau and Puerto
Rican vessels violated Section 8(b)(1)(A) and (B) of
the Act.
For the reasons set forth below, we find that, under
Royal Electric, the second and third mates are not
8(b)(1)(B) representatives. We also find that the Re-
spondent violated Section 8(b)(1)(B) by striking and
picketing the Charging Parties to force them to replace,
and/or to prevent them from hiring, masters and chief
mates of their own choosing, and by threatening to
fine, bringing internal union charges against, and
fining the Charging Parties’ masters and chief mates;
and that the Respondent violated Section 8(b)(1)(A) by
threatening violence against the crew of the Keystone
vessel the Puerto Rican.
III. ANALYSIS AND CONCLUSIONS
A. The Status of Second and Third Mates
The parties stipulated that the licensed deck offi-
cers—the masters, the chief (or first) mates, the second
mates, and the third mates—are supervisors within the
meaning of Section 2(11) of the Act. The parties also
stipulated that the masters and chief mates are
8(b)(1)(B) representatives, but disagreed as to the sta-
tus of the second and third mates.
In concluding that the second and third mates are
also 8(b)(1)(B) representatives, the judge relied on the
reservoir doctrine, under which the Board did not re-
quire proof that a supervisor has 8(b)(1)(B) functions
in order to find status as an 8(b)(1)(B) representative.
Rather, under the Board’s reservoir doctrine, the Board
interpreted the term ‘‘representative for the purpose of
collective bargaining or the adjustment of grievances’’
broadly so as to include all individuals who were su-
pervisors within the meaning of Section 2(11) on the
theory that such individuals formed the logical ‘‘res-
ervoir’’ from which the employer was likely to select
his representatives for collective bargaining or griev-
ance adjustment.15 In addition to relying on the res-
ervoir doctrine, the judge also found that the second
and third mates actually adjust grievances. The judge
concluded that although many of the instances involve
no more than supervision, ‘‘there is some grievance
adjustment present, albeit minor and personal, rather
than contractual.’’16
The Supreme Court in Royal Electric explicitly re-
jected the reservoir doctrine, finding that Section
8(b)(1)(B) protects only those individuals who actually
perform grievance adjustment or collective-bargaining
duties, rather than all supervisors.17 The Court con-
cluded that in order to find an 8(b)(1)(B) violation, a
supervisor must actually possess grievance adjustment
or collective-bargaining responsibilities, and that sim-
ply the possibility that a supervisor may someday per-
528 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
18 481 U.S. at 588–589. See also Carpenters District Council of Dayton
(Concourse Construction), 296 NLRB 492 (1989).
19 Operating Engineers Local 3 (Kasler Corp.), 298 NLRB 215 (1990).
20 There is no contention, nor is there any evidence, that the second and
third mates possess collective-bargaining authority.
21 The record contains several examples of the second or third mates’ exer-
cise of supervisory authority through their conduct in ordering an intoxicated
unlicensed seaman to leave his post. Such an order by a second or third mate
may lead to the filing of a grievance at which the second or third mate will
have to present his version of what happened. The grievance, however, is re-
solved by the master or chief mate.
22 In Operating Engineers Local 101 (St. Louis Bridge), 297 NLRB 485
(1989), the Board found Supervisor Tessmer to be an 8(b)(1)(B) representa-
tive. Although the disputes he resolved (employee wage and hour disputes)
were technically not contractual grievances, this was only because there was
no collective-bargaining agreement in effect at that jobsite. Tessmer, however,
adjusted the types of employee disputes that would most likely be contractual
grievances under any collective-bargaining agreement. Further, Tessmer was
the only onsite supervisor who was available to adjust any such grievance that
might arise.
23 See Kasler Corp., supra (in which the Board found that Butterfield’s pos-
session of minimal authority was insufficient to establish that he was an
8(b)(1)(B) representative); Birmingham Printing Pressmen’s Local 55 (Bir-
mingham News), 300 NLRB 1 (1990) (in which the Board found that Freeman
was not an 8(b)(1)(B) representative where no evidence was presented that
Freeman ever adjusted a grievance); Royal Electric, 481 U.S. at 588–589 fn.
12 (in which the Court stated that the term ‘‘grievance adjustment’’ is a ‘‘par-
ticular and explicitly stated activity’’).
24 St. Louis Bridge, supra.
25 The record contains evidence that when a vessel is in port, a second or
third mate may be the only deck officer on the vessel. When the master and
chief mate leave a vessel, however, it generally is only for a short period of
time, e.g., to get a haircut.
26 The Respondent later told its members that if they were on a foreign trip,
they had a right to insist on proper discharge before a U.S. Coast Guard or
consular officer. If in a U.S. port, the officers were not to leave the vessel
form 8(b)(1)(B) functions is insufficient to support a
finding of 8(b)(1)(B) status.18
Thus, an examination of a supervisor’s actual au-
thority and conduct is necessary to determine whether
the individual is an 8(b)(1)(B) representative.19 After
conducting a thorough review of the responsibilities of
the second and third mates contained in the record, we
find that the General Counsel has not met his burden
of demonstrating sufficient evidence to support a con-
clusion that the second and third mates are 8(b)(1)(B)
representatives.
As the judge recognized, the instances he cited in
support of his 8(b)(1)(B) finding involve no more than
examples of the exercise of supervisory authority, rath-
er than grievance adjustment.20 While the failure to
follow a supervisor’s order might cause a grievance to
arise, the exercise of supervisory authority by itself
does not constitute grievance handling.21 The examples
cited by the judge and contained in the record consist
primarily of the adjustment of routine work assignment
or coffeebreak complaints, and merely constitute the
resolution of daily supervisory problems. Although the
judge is correct that 8(b)(1)(B) status does not always
require participation in a formalized grievance sys-
tem,22 the resolution of routine personal problems of
the type present here do not rise to the level of griev-
ance adjustment necessary to confer 8(b)(1)(B) status
on an employer’s representative.23 In addition, unlike
certain situations where the Board has relied on the
fact that an individual is the only available employer
representative at a jobsite to adjust grievances if and
when they arise to support a finding of 8(b)(1)(B) sta-
tus,24 in the present case, there is generally always a
master and/or chief mate aboard the vessel to adjust
grievances.25
In making this finding, we recognize that the griev-
ance procedures provided by the collective-bargaining
agreements between the Charging Parties and the Na-
tional Maritime Union (NMU) and the Seamen’s Inter-
national Union (SIU), the two unions which represent
the unlicensed seamen aboard the vessels, require as a
first step the presentation of the complaint to the unli-
censed seaman’s ‘‘immediate superior’’ or ‘‘superior
officer,’’ who is the watch officer. Other than one dis-
cussion between a second or third mate and a union
representative from one of the unlicensed seamen’s
unions regarding whether the collective-bargaining
agreement governed the problem (it did not), however,
the record does not contain any evidence that a griev-
ance was ever filed with a second or third mate.
On the other hand, the record contains evidence that
grievances are generally resolved either by the chief
mate or the master of the vessel. There was testimony
presented by Jeffrey Miller, master of Keystone’s ves-
sel Chilbar, that a junior officer (second or third mate)
is not the one who adjusts or resolves grievances, but
is sometimes present during the resolution of the griev-
ance by a chief mate and/or master to give factual
input as to what he may have observed on his watch.
Thus, although the unlicensed seamen’s contracts re-
quire as a first step the presentation of the grievance
to the watch officer (second or third mate), the evi-
dence supports the conclusion that the parties have not
followed this procedure, and that, in fact, the grievance
is apparently first presented either to the master or the
chief mate.
For these reasons, we find that the General Counsel
has failed to establish that the second and third mates
have grievance adjustment authority, and we accord-
ingly find that they are not 8(b)(1)(B) representatives.
B. The Job Action and Picketing
On October 3 the Respondent’s president, Robert
Lowen, sent telexes to all the Charging Parties’ vessels
instructing the Respondent’s members to cease all
work of any kind immediately except for that involv-
ing the security of the vessels, and to remain on board
to protect their jobs. Describing its actions as a ‘‘job
action,’’ the Respondent contended that it was ‘‘nec-
essary to protect wages and benefits of not only
MMP&P members but ultimately those of all officers
and crew members. . . . This action is necessary to
preserve your future.’’26
529MASTERS, MATES & PILOTS (MARINE TRANSPORT)
unless forced off by a U.S. marshal or other credentialed officer armed with
proper documents.
27 The judge’s decision describes in great detail the circumstances sur-
rounding the job action and picketing on the various vessels of the Charging
Parties, and we will not attempt to repeat the facts here. We adopt all the
judge’s factual findings related to the job action and picketing, as they accu-
rately portray the record testimony.
28 Masters, Mates & Pilots (Marine & Marketing), 197 NLRB 400 (1972),
enfd. 486 F.2d 1271 (D.C. Cir. 1973), cert. denied 416 U.S. 956 (1974); Mas-
ters, Mates & Pilots (Westchester Marine), 219 NLRB 26 (1975), enfd. 539
F.2d 554 (5th Cir. 1976); Masters, Mates & Pilots (Cove Tankers), 224 NLRB
1626 (1976), enfd. 575 F.2d 896 (D.C. Cir. 1978); and Masters, Mates & Pi-
lots (Newport Tankers), 233 NLRB 245 (1977), vacated and remanded sub
nom. Newport Tankers Corp. v. NLRB, 575 F.2d 477 (4th Cir. 1978), cert.
denied 439 U.S. 928 (1978), on remand 240 NLRB 1240 (1979).
29 The judge rejected the Respondent’s contention that the picketing con-
stituted lawful area standards picketing. He concluded, however, that even as-
suming arguendo that the Respondent’s picketing was strictly area standards
picketing, the picketing would nonetheless violate Sec. 8(b)(1)(B), relying on
Sheet Metal Workers Local l7 (George Koch Sons), 199 NLRB 166 (1972),
enfd. 502 F.2d 1159 (1st Cir. 1973), cert. denied 416 U.S. 904 (1974).
30 The Respondent’s replacement objective included both seeking to have
the Charging Parties replace those ‘‘non-MMP’’ licensed deck officers they
had hired with the Respondent’s members, along with seeking to prevent the
Charging Parties from discharging those ‘‘MMP’’ licensed deck officers who
were presently employed by the Charging Parties, and replacing them with
‘‘non-MMP’’ licensed deck officers.
31 S. Rep. No. 105, 80th Cong., 1st Sess. 21 (1947); Royal Electric, 481
U.S. at 591.
32 Royal Electric, 481 U.S. at 590 fn. 13.
33 Because we find that the Respondent violated Sec. 8(b)(1)(B) by striking
and picketing to replace the Charging Parties’ masters and chief mates, we
find it unnecessary to pass on whether the Respondent’s other objects—to gain
recognition, to achieve a collective-bargaining agreement, and to gain adher-
ence to area labor standards—also violated Sec. 8(b)(1)(B). We thus refrain
from passing on the effect of the Court’s decision in Royal Electric on the
Board’s decisions in Marine & Marketing International Corp., Westchester
Marine Shipping Co., Cove Tankers Corp., and Newport Tankers Corp. See
fn. 28, supra. As it is unnecessary for resolution of this case, we also refrain
from passing on the judge’s conclusion that the Respondent’s picketing would
have violated Sec. 8(b)(1)(B) even if it had been pure area standards picketing.
We also find it unnecessary to pass on the validity of the judge’s alternative
application of an effects theory to the job action and picketing, under which
the judge found that any concerted activity by the Respondent is illegal be-
cause a ‘‘logical and foreseeable effect must be that its [picket] lines will be
honored.’’ We have therefore modified the recommended Order by deleting
any language inserted by the judge based on the effects theory.
Finally, because we find the Respondent’s replacement objective constituted
direct coercion of the Charging Parties’ choice of their 8(b)(1)(B) representa-
tives, we find it unnecessary to address the issue whether the Respondent’s
intent to represent only the Charging Parties’ nonstatutory employees would
be sufficient to bring its conduct within the purview of Sec. 8(b)(1)(B) absent
any direct coercion. See Royal Electric, 481 U.S. at 590 fn. 13.
Prior to the issuance of the October 3 directive by
Lowen, port captains and other company representa-
tives scurried from ship to ship to offer licensed deck
officers continued employment under the Companies’
new wage and benefit packages, which provided on
most vessels for, inter alia, reduced wages and vaca-
tion benefits, and the elimination of one position of
third mate (where a vessel had two third mates) and
a relief chief mate in port. Those officers who refused
to accept the Companies’ new wage and benefit pack-
age were discharged. Before October 3, the officers
generally agreed to remain on the vessels, but once
Lowen issued the October 3 directive, the officers re-
fused to perform any work and refused to leave their
vessels voluntarily, even though in many instances re-
lief crews had been hired and were available to assume
the officers’ duties.27
The judge found that the objectives of the job action
were to replace the licensed deck officers hired by the
Charging Parties as replacements with the officers af-
filiated with the Respondent; to gain recognition from
the Charging Parties as the representative of the offi-
cers; to obtain a collective-bargaining agreement; and
to obtain adherence to the area’s labor standards. Rely-
ing on Board law enforced by three circuit courts,28
the judge found that all four of the Respondent’s ob-
jectives violated Section 8(b)(1)(B). The judge further
found that the picketing, which began at approximately
the same time as the job action and which continued
until a consent 10(j) injunction was entered, had the
same unlawful objectives as the job action, and there-
fore also violated Section 8(b)(1)(B) of the Act.29
We agree with the judge, for the reasons set forth
by him, that the record clearly establishes that one of
the objects of the job action and picketing was to re-
place the licensed deck officers hired by the Charging
Parties with those officer members of the Respond-
ent.30 For the reasons set forth below, we find that,
based solely on this replacement object of its job ac-
tion and picketing, the Respondent by this conduct vio-
lated Section 8(b)(1)(B).
Section 8(b)(1)(B) was intended primarily to prevent
a union engaged in a long-term relationship with an
employer from dictating the latter’s choice of collec-
tive-bargaining or grievance representatives or the
form that such representation would take.31 In Royal
Electric, the Supreme Court carefully defined the pre-
requisites necessary for a finding that a union violated
Section 8(b)(1)(B), and concluded that in order for
such a violation to occur, a supervisor must actually
possess grievance adjustment or collective-bargaining
responsibilities, and a union must either have or be
seeking a collective-bargaining relationship with an
employer. With respect to the second prong of this
test, the Supreme Court stated that ‘‘[d]irect coercion
of an employer’s selection of a Section 8(b)(1)(B) rep-
resentative would always be a Section 8(b)(1)(B) vio-
lation, whether or not the union has or seeks a bar-
gaining relationship with an employer.’’32
Because the parties have stipulated that the masters
and chief mates are 8(b)(1)(B) representatives, and we
have found an object of the job action and picketing
was to force the Charging Parties to discharge the mas-
ters and chief mates they hired as replacements and to
hire the Respondent’s member officers instead, the job
action and picketing clearly constitute ‘‘direct coer-
cion’’ of the Charging Parties’ selection of 8(b)(1)(B)
representatives and, as such, violate the restrictions of
that section.33 We therefore find that the Respondent,
in striking and picketing the Charging Parties to force
them to replace their masters and chief mates, and/or
to prevent them from hiring masters and chief mates
530 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
34 Although the record contains evidence that some members were fined
even after they attempted to resign prior to charges being filed, we are not
faced with the issue whether the Respondent violated the Act by refusing to
accept any of its members’ resignations, because this allegation was withdrawn
from the General Counsel’s complaint.
35 The pilot-members were not employees of the Charging Parties, but on
occasion acted as independent contractors when needed to pilot certain vessels
of the Charging Parties. There were at least four pilot-members fined by the
Respondent.
36 We agree with the judge’s finding that all the internal union charges and
fines brought against MMP members, former members, and applicants for
membership, with or without notice and hearing, were authorized by the Re-
spondent.
37 The Respondent here seeks to represent the Charging Parties’ supervisors,
who are not employees under the Act. We, however, find it unnecessary to
decide whether this constitutes a sufficient representational objective within the
meaning of Royal Electric.
38 481 U.S. at 490 fn. 13.
39 481 U.S. at 590 fn. l3, citing NLRB v. Electrical Workers IBEW Local
73, 714 F.2d 870, 872 (9th Cir. 1980).
40 As in the case of direct coercion, we thus do not need to resolve in this
case whether the Respondent’s intent to represent only the Charging Parties’
nonstatutory employees would be sufficient to bring its conduct within the pur-
view of Sec. 8(b)(1)(B) absent this actual purpose.
41 Some of the fines were as high as $25,000, plus daily base pay and plan
contributions for future noncompliance.
42 Because we agree with the judge that there is ample evidence in the
record that MOC Vice President of Operations Robert Johnston, and MOC
Port Captains Jack Craft, William H. Adams, and Richard Satava are
8(b)(1)(B) representatives, we find that the Respondent’s charges and fines
against these individuals violated Sec. 8(b)(1)(B). The record reflects that
Johnston has actually negotiated collective-bargaining agreements with all but
one union representing individuals employed by MOC, and that he is the indi-
vidual responsible for making a final determination on grievances. Craft has
of their own choosing, violated Section 8(b)(1)(B) of
the Act.
C. The Fines and Threats to Fine
In addition to conducting the job action and pick-
eting, the Respondent also threatened to fine, brought
internal union charges against, and fined members for
violating the Respondent’s October 3 job directive.34
Fines were levied against approximately 100 active li-
censed deck officers, management personnel of MOC,
Keystone, and Mormac, and against certain pilot-mem-
bers.35 Some of the fines were levied by the strike
committees without any hearing on the charges, and
others were levied after notice and hearings held by
the trial committees.
The judge found that the Respondent’s conduct in
threatening to fine, filing internal union charges, and
fining the member officers (whom the judge found to
be 8(b)(1)(B) representatives), violated that section be-
cause the Respondent’s actions had the likely effect of
forcing the officers to comply with the October 3
strike directive, thereby depriving the Charging Parties
of their 8(b)(1)(B) representatives. For the following
reasons, although we agree with the judge that the Re-
spondent violated Section 8(b)(1)(B) by charging and
fining the masters and chiefs mates, we find that the
Respondent did not violate the Act by charging and
fining the second and third mates, and the pilot-mem-
bers of the Respondent.36
As we discussed above, the Supreme Court con-
cluded in Royal Electric that in order to find an
8(b)(1)(B) violation in a situation where a union at-
tempts to coerce an employer indirectly through fining
its supervisors, the supervisor-member fined must actu-
ally possess grievance adjustment or collective-bar-
gaining responsibilities, and a union must either have
or be seeking a collective-bargaining relationship with
the employer.37 In footnote 13 of Royal Electric the
Supreme Court commented that it was not faced with
the question whether indirect coercion of an employer
in its selection of a representative through ‘‘a union’s
selective enforcement of a facially uniform rule’’
would constitute a violation of Section 8(b)(1)(B)
without regard to whether the union has a bargaining
relationship with the employer.38 The Court implied,
however, by citing langauge from the Ninth Circuit’s
Chewelah Contractors’ decision, that an 8(b)(1)(B)
violation may be found in those circumstances absent
a bargaining relationship ‘‘if there is evidence that the
union’s actual purpose in enforcing its bylaw was to
interfere with the employer’s selection.’’39 Although
we recognize that the present case does not involve the
selective enforcement of a facially uniform union rule,
we find merit in the General Counsel’s analysis and
conclude that because the Respondent’s ‘‘actual pur-
pose’’ in enforcing its October 3 job directive, includ-
ing the threats to fine, charges, and fines against its
masters and chief mates, whom we have found to be
8(b)(1)(B) representatives, was to interfere with the
Charging Parties’ selection of their 8(b)(1)(B) rep-
resentatives, the Respondent has violated Section
8(b)(l)(B).40
The record clearly reveals that the actual purpose of
the Respondent’s threats to fine, charges, and fines
against the Charging Parties’ licensed deck officers
was to force them to comply with the October 3 direc-
tive and participate in the job action by refusing to
work under the lower terms of employment offered by
the Charging Parties. In reaching this conclusion, we
rely on the Respondent’s directive that the licensed
deck officers should refuse to leave the vessels unless
forcibly removed by arrest or legal instrument, and on
the stiff penalties imposed for refusal to comply with
the directive.41 The Respondent’s clear objective,
which it attempted to achieve through forcing the offi-
cers to refuse to work, along with exerting other pres-
sures on the Charging Parties, was to coerce the
Charging Parties either to fail to replace or to rehire
the Respondent’s members as their licensed deck offi-
cers.
Thus, in light of the parties’ stipulation that the mas-
ters and chief mates are 8(b)(1)(B) representatives, the
Respondent’s conduct directed at them clearly coerced
the Charging Parties in their selection of their
8(b)(1)(B) representatives, thereby violating that sec-
tion of the Act.42 In view of our finding, however, that
531MASTERS, MATES & PILOTS (MARINE TRANSPORT)
actually adjusted grievances with representatives of the MMP and, in addition,
with SIU, MEBA, and ARA representatives. Adams has adjusted grievances
with all the unions representing those employed at MOC, including, MMP,
MEBA, SIU, and the ARA. Satava has met with representatives of MEBA and
the SIU to adjust grievances.
The record does not contain the job titles of several of the licensed deck
officers who were fined. We leave to the compliance stage of this proceeding
the determination of the positions of the unknown individuals. If these individ-
uals are either masters or chief mates, then we find that the Respondent’s fines
against them violated Sec. 8(b)(1)(B) of the Act and that they would be cov-
ered by the remedial provisions of our Order.
43 Contrary to the judge, we disagree with the General Counsel’s argument
that we should find an 8(b)(1)(B) violation, irrespective of an individual’s sta-
tus as an 8(b)(1)(B) representative, based on the theory that the fines were im-
posed in furtherance of the Respondent’s unlawful strike. We decline to apply
this expansive theory in an 8(b)(1)(B) context in view of the Supreme Court’s
decision in Royal Electric limiting the scope of that provision.
44 The judge also found that the Respondent violated Sec. 8(b)(1)(B) by
fining Keystone Port Captain Hamilton G. Thomas and Mormac (Gastran’s)
personnel manager David Lentz. The judge inferred that these individuals were
8(b)(1)(B) representatives from their titles and the responsibilities of persons
holding similar titles. The Supreme Court’s decision in Royal Electric requires
evidence of a supervisor’s actual possession of grievance adjustment or collec-
tive-bargaining responsibilities. 481 U.S. at 586. Because the record contains
no evidence that either Thomas or Lentz had grievance-adjustment or collec-
tive-bargaining responsibilities, the General Counsel has failed to meet his bur-
den of proving that they are 8(b)(1)(B) representatives. We therefore find that
the Respondent’s charges and fines against Thomas and Lentz did not violate
Sec. 8(b)(1)(B).
45 Scott Fuller is the son of the Respondent’s assistant port agent Don Fuller
Sr. Although it is unclear from the record, it appears that all the threatening
comments were made by Scott (not Don) Fuller. Nevertheless, whether the
comments were made either by Scott or Don Fuller, since they were made by
one or both of the Fullers while they were involved as picketers on the Meany
(which was hired and paid for by the Respondent), we find the Respondent
responsible for these threatening remarks.
the General Counsel did not sustain his burden of
proving that the second and third mates are 8(b)(1)(B)
representatives,43 and the General Counsel’s admission
that the pilot-members are not 8(b)(1)(B) representa-
tives, the Respondent did not violate the Act by threat-
ening to fine, bringing internal union charges against,
and fining these individuals.44
D. Threats of Violence
It is alleged that between mid- to late October, the
Respondent made certain threats of violence involving
an MOC vessel, the Puerto Rican, and a Keystone ves-
sel, the Juneau, which violated both Section 8(b)(1)(A)
and (B) of the Act.
As detailed more fully in the judge’s decision, on
October 25, the pleasure craft George Meany, hired
and paid for by the Respondent, carrying pickets, fol-
lowed the Puerto Rican for 2 hours as it headed for
Alameda, California. When the vessel Puerto Rican ar-
rived at the Encina terminal and attempted to tie up,
one of the picket boat’s crewmembers said: ‘‘[I]f you
tie up this ship we’re going to close this terminal
down.’’ Two of the pickets threatened the second
mate, Charles Ebersole: ‘‘[W]hen you get off that ship
you’ll never work again.’’ Scott Fuller, the owner and
operator of the Meany,45 said in answer to the chief
mate: ‘‘You’ll be dead tomorrow. We’ll get you.’’
These comments were made in the presence of unli-
censed seamen.
The Puerto Rican never docked that day. During the
docking procedure the next day, Fuller made a gun
with his hand, and pointing at Ebersole, mouthed,
‘‘I’m going to get you,’’ in the presence of unlicensed
seamen. That evening Fuller threatened an unlicensed
seaman: ‘‘We’re going to get you. We are going to get
your kids too. We have got your number . . . if you
come on the dock, you better carry a gun.’’ The fol-
lowing day, October 27, the picket boat stayed near the
Puerto Rican, and several times it proceeded at a high
rate of speed as though it would ram the vessel, and
then threw the engine in reverse just before hitting the
vessel. This was done in the presence of licensed and
unlicensed personnel. On October 29, after the Puerto
Rican had discharged its cargo, the vessel sailed for a
dock in Richmond. For most of the voyage, it was fol-
lowed or preceded by the Meany, which frequently po-
sitioned itself between a tug and the Puerto Rican,
which the tug was attempting to assist. While the
Puerto Rican was tying up at the dock, Fuller was also
tying up the Meany. Keystone Attorney Pantoni was
there, and Fuller twice made motions as if he were
shooting the lawyer, as did another of the Meany’s
crewmen.
At various intervals during the time period October
19 to 21, the picket boat George Meany also followed
the MOC vessel Juneau. On October 19, the Meany re-
mained around the vessel Juneau for over an hour. The
following day, while the Juneau was being piloted to
Venicia, someone from the Meany identified himself
on the pilot’s radio and said: ‘‘Do not dock the ship,
the ship is hot.’’ When the pilot stated that he needed
the assistance of three prearranged tugs, the tugs re-
plied that they would not handle the Juneau. At that
point, MOC Port Captain Satava announced that the
picketers on the Meany were endangering the safe
navigation of the vessel, which needed tug assistance.
The reply from the Meany was that this was a picket,
that they were acting under instructions from Don
Fuller of the Respondent, and that the Juneau should
proceed to Anchorage 25, an anchorage which MOC
claimed was too small for the vessel. Finally, the Ju-
neau’s charterer determined that it would return to an-
other anchorage. The next day, October 21, arrange-
ments had been made to fuel and bunker the Juneau
at its anchorage by barge. The Meany cruised near the
barge, its crew calling people ‘‘finks’’ and ‘‘scabs.’’
One crewman of the Meany said: ‘‘You’re not even
going to have a job in another week. Why are you
doing this? None of you are qualified to pump that
barge?’’ Although the Juneau called on the Coast
Guard for help to prevent the harassment, this was
only temporarily successful. Later the Meany came
back to the barge, its crew yelling, making obscene
gestures, and shaking their fists. The picketers con-
532 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
46 The judge applied the theory that threats of violence made in the presence
of employees are calculated to serve as a warning to nonstriking employees
that like violence may be inflicted on them if they do not support the labor
organization’s activity, citing Wholesale Union District 65 (I. Posner), 133
NLRB 1555, 1566 (1961).
47 See Operating Engineers Local 450 (Houston Chapter AGC), 267 NLRB
775, 788–789 (1983); Boilermakers Local 27 (Daniel Construction), 266
NLRB 602, 604 (1983).
48 See Retail Wholesale Union (I. Posner), supra at 1566.
49 We reject the judge’s and the General Counsel’s theory that we should
find that, irrespective of Ebersole’s lack of status as an 8(b)(1)(B) representa-
tive, this conduct violated Sec. 8(b)(1)(B), merely because the picketing itself
violated that section. See fn. 43, supra.
50 See Boise Cascade, 300 NLRB 80 (1990); Machinists Lodge 1233 (Gen-
eral Dynamics), 284 NLRB 1101, 1106 (1987).
51 The judge rejected the Charging Parties’ request that the recommended
Order include a provision barring the Respondent’s refusal to accept the res-
vinced an engineman to leave the barge and his em-
ployment.
The judge found that the threats involving the picket
boat Meany and the Keystone vessel Puerto Rican, and
those threats involving the Meany and the MOC vessel
Juneau all violated Section 8(b)(1)(A) of the Act. With
respect to the Puerto Rican, the judge stated that the
threat made directly to the employee required no ex-
planation, while the other threats directed at the Key-
stone and MOC supervisors violated Section
8(b)(1)(A) because they were made in the presence of
employees.46
The judge also found that the threats directed against
second mate Ebersole of the Puerto Rican, and those
directed against the master of the Juneau violated Sec-
tion 8(b)(1)(B) because they had a reasonable tendency
to force them to leave their jobs.
We agree with the judge that the threats involving
the vessel Puerto Rican violated Section 8(b)(1)(A).
Because the threats against the unlicensed seaman, an
employee under the Act, constituted threats of bodily
harm to himself and his family, we conclude that these
threats clearly restrained and coerced this employee in
the exercise of his Section 7 rights, constituting a vio-
lation of Section 8(b)(1)(A).47 The picketers aboard the
George Meany made various other threats and partici-
pated in threatening conduct during the time period
October 25 through 29, which was calculated to instill
fear of imminent bodily harm in the minds of the
Puerto Rican unlicensed seamen. The Meany picketers
also made specific threats against second mate
Ebersole and a Keystone attorney which involved the
infliction of bodily harm, and these were made in the
presence of unlicensed seamen. Thus, we find that
these additional threats and threatening conduct also
violated Section 8(b)(1)(A).48
The threats made against second mate Ebersole on
the Puerto Rican, however, did not violate Section
8(b)(1)(B) in light of our finding that second mates do
not constitute 8(b)(1)(B) representatives. Therefore, the
threats against second mate Ebersole, who was not a
Keystone 8(b)(1)(B) representative, did not restrain or
coerce Charging Party Keystone in the selection of its
8(b)(1)(B) representatives.49
With respect to the threats against the MOC vessel
Juneau, we disagree with the judge and find that these
threats did not violate either Section 8(b)(1)(A) or (B)
of the Act. The conduct directed against the Juneau
during the time period October 19–21 consisted mainly
of the Meany crew calling the crew of the Juneau
‘‘finks’’ and ‘‘scabs,’’ which is typical picket line ac-
tivity. We find that this nonthreatening conduct, which
did not involve any threats of bodily harm, did not re-
strain or coerce the Juneau employees in the exercise
of their Section 7 rights.50 For these same reasons, we
also find that the conduct directed against the master
of the Juneau did not violate Section 8(b)(1)(B) of the
Act.
AMENDED CONCLUSIONS OF LAW
1. By striking and picketing the Charging Parties to
force them to replace their masters and chief mates
and/or to prevent them from hiring masters and chief
mates, or other 8(b)(1)(B) representatives, of their own
choosing, the Respondent has violated Section
8(b)(1)(B) of the Act.
2. By threatening to fine, bringing internal union
charges against, and fining the Charging Parties’ mas-
ters and chief mates, MOC Vice President of Oper-
ations Robert Johnston, and MOC Port Captains Jack
Craft, William Adams, and Richard Satava, the Re-
spondent has violated Section 8(b)(1)(B) of the Act.
3. By the threats of violence against a second mate
in the presence of unlicensed seamen and other threat-
ening activity directed at the crew of the Keystone ves-
sel, the Puerto Rican, by the picketers on the George
Meany, during the time period October 25–29, 1984,
the Respondent violated Section 8(b)(1)(A) of the Act.
4. The Respondent has not violated the Act in any
other way.
REMEDY
Having found that the Respondent violated Section
8(b)(1)(B) by striking and picketing the Charging Par-
ties to force them to replace their masters and chief
mates, and/or to prevent them from hiring masters and
chief mates, and other 8(b)(1)(B) representatives, of
their own choosing; and having found that the Re-
spondent violated Section 8(b)(1)(B) by threatening to
fine, bringing internal union charges against, and
fining the Charging Parties’ masters and chief mates,
and other 8(b)(1)(B) representatives; and having found
that the Respondent violated Section 8(b)(1)(A) by
threatening violence and participating in other threaten-
ing activity directed at the crew of a Keystone vessel,
we shall order that it cease and desist and take certain
affirmative action necessary to effectuate the policies
of the Act,51 including the refund of any moneys paid
533MASTERS, MATES & PILOTS (MARINE TRANSPORT)
ignations of licensed deck officers and prohibiting the Respondent from in-
structing various fringe benefit plans not to grant benefits to licensed deck of-
ficers. We agree with the judge. As noted by the judge, neither allegation was
included in the complaint, and the issue involving the benefit plans was not
fully litigated. As to the issue regarding the refusal to accept resignations, the
judge correctly concluded that supervisors, not being statutory employees, have
no statutory right to resign from a labor organization under Sec. 8(b)(1)(A).
Birmingham News Co., supra, 300 NLRB 1 (1990); Noral Color Corp., 300
NLRB 7 (1990). Chairman Stephens did not participate in the decisions in
those two cases and takes no position on whether they were correctly decided.
He agrees, however, that supervisors have no right to resign under Sec.
8(b)(1)(A) of the Act, and that, in any event, the General Counsel did not al-
lege or litigate any violation based on the Respondent’s refusal to accept res-
ignations.
52 We are granting this remedy because we find that the Respondent’s mem-
bers are frequently employed at sea for periods of time well in excess of the
60-day notice posting period. See Electrical Workers IBEW Local 3 (Northern
Telecom), 265 NLRB 213, 219 fn. 3 (1982).
as a result of the unlawful fines, with interest com-
puted in the manner prescribed in New Horizons for
the Retarded, 283 NLRB 1173 (1987). Because the
normal posting of the notice may be insufficient to ad-
vise all of the Respondent’s members of the relief
granted herein, we shall order that the attached Appen-
dix be published in the Respondent’s official news-
paper.52
ORDER
The National Labor Relations Board orders that the
Respondent, International Organization of Masters,
Mates and Pilots, Marine Division, International Long-
shoremen’s Association, AFL–CIO, its officers, agents,
and representatives, shall
1. Cease and desist from
(a) Striking, picketing, causing or encouraging to be
picketed, or otherwise engaging in or directing, order-
ing, instructing, advising, encouraging, or otherwise
causing its members to engage in a job action, strike,
or picketing, directed against Marine Transport Lines
Company, Inc., Keystone Shipping Company, Mari-
time Overseas Corporation, and Moore McCormack
Bulk Transport, Inc., their subsidiaries and affiliates
(Companies), or any other employer, where an object
is to prevent any of the Companies from hiring or em-
ploying masters or chief mates, or any other 8(b)(1)(B)
representatives, of their own choosing, or to require
any of the Companies, or any other employer, to re-
place their masters and chief mates, or any other
8(b)(1)(B) representatives, with masters and chief
mates who are members of or who are represented by
MMP.
(b) Bringing charges, or instructing to be charged,
trying, fining, or otherwise disciplining or threatening
to discipline, or attempting by any means to collect or
enforce any fine or enforce any discipline imposed
against any MMP member or applicant for member-
ship or former member or former applicant for mem-
bership employed by the Companies for performing
collective-bargaining or grievance adjustment respon-
sibilities within the meaning of Section 8(b)(1)(B), as
a master, chief mate, or any other 8(b)(1)(B) represent-
ative, for failing or refusing to comply with or partici-
pate in MMP’s job action and picketing activity
against the Companies, or any instruction, order, or di-
rection prohibited by this Order, where the actual pur-
pose of the threats and/or imposition of discipline is to
interfere with the Companies’ selection of their
8(b)(1)(B) representatives, during the period beginning
October 3, 1984, to date.
(c) In any other manner restraining or coercing any
employer in the selection of their representatives for
the purposes of collective bargaining or the adjustment
of grievances.
(d) Restraining or coercing employees by threat-
ening to assault or to commit any other acts of vio-
lence against employees, or against supervisors, in the
presence of employees or under circumstances from
which employees are likely to become aware of such
threats or conduct.
(e) In any like or related manner restraining or co-
ercing employees in the exercise of rights guaranteed
them by Section 7 of the National Labor Relations
Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Rescind the charges, proceedings, fines, and
other disciplinary actions taken against its members or
applicants for membership or former members or
former applicants for membership, who were also
8(b)(1)(B) representatives of the Companies as found
in this decision, for failing to comply with or other-
wise participate in the job action and picketing against
the Companies during the period October 3, 1984, to
date.
(b) Make whole any disciplined MMP member,
former member, applicant, or former applicant, who is
also an 8(b)(1)(B) representative as found in this deci-
sion, by refunding any fines paid, with interest thereon
as provided in the remedy section of this decision.
(c) Remove from MMP’s membership records any
references to the unlawful charges, proceedings, fines,
and other disciplinary proceedings, taken against any
disciplined MMP member, former member, applicant,
or former applicant, who is also an 8(b)(1)(B) rep-
resentative as found in this decision, and notify those
persons so disciplined that it has done so and that it
will not use the disciplinary proceedings against them
in any way.
534 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
53 If this Order is enforced by a judgment of a United States court of ap-
peals, the words in the notice reading ‘‘Posted by Order of the National Labor
Relations Board’’ shall read ‘‘Posted Pursuant to a Judgment of the United
States Court of Appeals Enforcing an Order of the National Labor Relations
Board.’’
(d) Preserve and, on request, make available to the
Board or its agents, for examination and copying, all
records necessary to analyze the amount of MMP’s li-
ability under the terms of this Order.
(e) Post at its meeting halls, port offices, hiring
halls, headquarters building, and any other offices
maintained or operated by it copies of the attached no-
tice marked ‘‘Appendix.’’53 Copies of said notice, on
forms provided by the Regional Director for Region 5,
after being signed by MMP’s authorized representative,
shall be posted by MMP immediately upon receipt
thereof, and be maintained by it for 60 consecutive
days thereafter in conspicuous places including all
places where notices to members are customarily post-
ed. Reasonable steps shall be taken by MMP to ensure
that said notices are not altered, defaced, or covered by
any other material.
(f) Publish in its official newspaper, ‘‘The Master,
Mate & Pilot,’’ in the issue published immediately
after the issuance of this Order, a copy of the attached
notice marked ‘‘Appendix.’’
(g) Sign and return to the Regional Director suffi-
cient copies of the notice for posting by the Compa-
nies, if willing, at all places where notices to employ-
ees and licensed deck officers are customarily posted.
Such copies shall be furnished to MMP by the Re-
gional Director.
(h) Notify the Regional Director in writing within
20 days from the date of this Order what steps MMP
has taken to comply with the terms of this Order.
IT IS FURTHER ORDERED that the protective order en-
tered into during the hearing prohibiting the parties
from disclosing the contents of certain exhibits and tes-
timony be, and the same is, continued in full force and
effect, and that all exhibits introduced into evidence
under seal will continue to be maintained under seal,
and that portions of the transcript of the hearing heard
during in camera sessions will not be open to the pub-
lic.
CHAIRMAN STEPHENS, dissenting in part.
I would find that the second and third mates possess
authority under the collective-bargaining agreement to
adjust grievances within the meaning of Section
8(b)(1)(B) of the Act. Therefore, contrary to my col-
leagues, I would find that the Respondent’s job action
and picketing violated Section 8(b)(1)(B) insofar as it
had as an object the discharge of second and third
mates selected by the Charging Parties and their re-
placement with the Respondents’ member officers. I
would also find that the Respondent violated Section
8(b)(1)(B) by fining and threatening to fine the second
and third mates for failing to obey the Respondent’s
unlawful job action directive. Finally, I would find that
the threats to Charging Party Keystone’s second mate,
Charles Ebersole, violated Section 8(b)(1)(B). In all
other respects I join the opinion for the majority.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT strike, picket, cause or encourage to
be picketed, or otherwise engage in or direct, order, in-
struct, advise, encourage, or otherwise cause its mem-
bers to engage in a job action, strike, or picketing, di-
rected against Marine Transport Lines Company, Inc.,
Keystone Shipping Company, Maritime Overseas Cor-
poration, and Moore McCormack Bulk Transport, Inc.,
their subsidiaries and affiliates (Companies), or any
other employer, where an object is to prevent any of
the Companies from hiring or employing any masters
or chief mates or any other 8(b)(1)(B) representatives,
or replacement masters or chief mates or any other re-
placement 8(b)(1)(B) representatives, with masters or
chief mates or other 8(b)(1)(B) representatives who are
members of or who are represented by us.
WE WILL NOT charge, or instruct to be charged, try,
fine, or otherwise discipline or threaten to discipline,
or attempt by any means to collect or enforce any fine
or enforce any discipline imposed against any of our
members or applicants for membership or former
members or former applicants for membership em-
ployed by the Companies as masters or chief mates or
as other 8(b)(1)(B) representatives, for failing or refus-
ing to comply with or participate in our job action and
picketing activity against the Companies, or any in-
struction, order, or direction prohibited by this Order,
where the actual purpose of the threats and/or imposi-
tion of discipline is to interfere with the Companies’
selection of their 8(b)(1)(B) representatives, during the
period beginning October 3, 1984, to date.
WE WILL NOT in any other manner restrain or coerce
any employer in the selection of their representatives
for the purposes of collective bargaining or the adjust-
ment of grievances.
WE WILL NOT restrain or coerce employees by
threatening to assault or to commit any other acts of
violence against employees, or against supervisors, in
the presence of employees or under circumstances
from which employees are likely to become aware of
such threats or conduct.
535MASTERS, MATES & PILOTS (MARINE TRANSPORT)
1 All dates refer to the year 1984, unless otherwise stated.
2 The relevant docket entries are as follows: The charge in Case 5–CB–4870
(formerly Case 12–CB–2681) was filed by MTL on 9 October, and a com-
plaint issued thereon in Region 12 on 12 December. The case was transferred
by the General Counsel on 13 December to Region 5, which issued an amend-
ed complaint on 18 December. The charge in Case 5–CB–4885 (formerly Case
22–CB–5188) was filed by Keystone on 19 October, and a complaint issued
thereon in Region 22 on 28 December. The case was transferred by the Gen-
eral Counsel on 3 January 1985 to Region 5. The charge in Case 5–CB–4886
(formerly Case 32–CB–1893) was filed by Keystone on 26 October and
amended on 29 October. The charge in Case 5–CB–4887 (formerly Case 32–
CB–1898) was filed by MOC on 6 November and amended on 13 and 26 De-
cember. On 31 December, the two Region 32 cases were consolidated and a
consolidated complaint issued. By orders dated 3 January 1985, the General
Counsel transferred both cases to Region 5, which on 4 January 1985 issued
a consolidated complaint, which was thereafter amended on 18 January 1985
and at trial. The charge in Case 5–CB–4907 (formerly Case 1–CB–6125) was
filed by Mormac on 21 December and was transferred by the General Counsel
to Region 5 by order dated 18 January 1985. The charge was amended on
23 January 1985, and complaint thereon issued on 25 January 1985. That pro-
ceeding was consolidated with the other proceeding at the hearing, which was
held in Baltimore, Maryland, on various dates from January to May 1985.
In the memorandum of law submitted by counsel for the General Counsel,
a motion was made to delete the following references from the amended con-
solidated complaint which had been alleged as unfair labor practices: from par.
11(b), ‘‘October 7, 1984 S.S. Atigun Pass Valdez, Alaska’’; from par. 12(b),
‘‘October 4 1984 S.S. Overseas Harriette Philadelphia, Pennsylvania,’’ ‘‘Octo-
ber 8, 1984 S.S. Overseas Alice Subic Bay, Philippines,’’ ‘‘October 10, 1984
S.S. Overseas Vivian Subic Bay, Philippines,’’ ‘‘Unknown to General Counsel
S.S. Overseas Valdez Indian Ocean’’; from par. 12(a), ‘‘October 12, 1984 S.S
Overseas Arctic Empire, Louisiana,’’ ‘‘October 27, 1984 S.S. Overseas Arctic
Port Arthur, Texas,’’ ‘‘November 1, 1984 S.S. Overseas Boston Long Beach,
California,’’ and ‘‘November 27, 1984 S.S. Overseas Washington Garyville,
Louisiana’’; andfrom par. 11(a), ‘‘October 4, 1984 S.S. Energy Independence
Brayton Point, Massachusetts,’’ ‘‘October 10 or 11, 1984 5.5. Energy Inde-
pendence Brayton Point, Massachusetts,’’ ‘‘October 19–21, 1984 S.S. Meton
Los Mareas, Puerto Rico,’’ and ‘‘December 18, 1984 S.S. Energy Independ-
ence Baltimore, Maryland.’’ Counsel for the General Counsel also moved to
delete par. 13(a)(ii)(8) and 13(d). There being no opposition, the motions are
granted.
Counsel for the General Counsel’s memorandum also includes a motion to
amend the consolidated complaint by adding the following: to par. 11(a),
‘‘Mid-November 1984 S.S. Chilbar Pier 10, South Locust Point Terminal, Bal-
timore, Maryland’’; and to par. 12(a), ‘‘December 16, 1984 Overseas Arctic
St. Rose, LA,’’ ‘‘December 28, 1984 Overseas Harriette Newport News, VA,’’
‘‘January 3, 1985 Overseas Washington Baton Rouge, LA,’’ and ‘‘January 13,
1985 Overseas Arctic Alliance, LA.’’ There being no opposition, this motion
is granted. Finally, counsel for the General Counsel moved to amend the con-
solidated complaint in certain respects, primarily to conform the pleadings to
the proof. The motion is granted without opposition to the extent that my find-
ings of fact support the amendments.
WE WILL NOT in any like or related manner restrain
or coerce the employees in the exercise of rights guar-
anteed them by Section 7 of the National Labor Rela-
tions Act.
WE WILL rescind the charges, proceedings, fines,
and other disciplinary actions taken against its mem-
bers or applicants for membership or former members
or former applicants for membership, who were also
8(b)(1)(B) representatives of the Companies, for failing
to comply with or otherwise participate in the job ac-
tion and picketing against the Companies during the
period October 3, 1984, to date.
WE WILL make whole any disciplined MMP mem-
ber, former member, applicant, or former applicant,
who is also an 8(b)(1)(B) representative, by refunding
any fines paid, with interest.
WE WILL remove from our membership records any
references to the unlawful charges, proceedings, fines,
and other disciplinary proceedings, and notify in writ-
ing all persons so disciplined that we have done so and
that we will not use the disciplinary proceedings
against them in any way.
INTERNATIONAL ORGANIZATION OF
MASTERS, MATES AND PILOTS, MARINE
DIVISION, INTERNATIONAL LONGSHORE-
MEN’S ASSOCIATION, AFL–CIO
Harvey A. Holzman, Esq., Joseph J. Baniszewski, Esq., and
Mark Carissimi, Esq., for the General Counsel.
Seymour M. Waldman, Esq. and Patricia McConnell, Esq.
(Vladeck, Waldman, Elias & Englehard), and Burton M.
Epstein, Esq. (Steinberg & Tugendrajch), of New York,
New York, for the Respondent.
Eric A. Sisco, Esq., D. Michael Underhill, Esq., Daniel C.
Gerhan, Esq., and Thomas K. Wotring, Esq. (Morgan,
Lewis & Bockius), of Washington, D.C., for Charging
Party Marine Transport.
Bettina B. Plevan, Esq., Joan Z. McAvoy, Esq., Toby R.
Hyman, Esq., and Joseph Baumgarten, Esq. (Proskauer,
Rose, Goetz & Mendelsohn), of New York, New York, for
Charging Party Keystone Shipping.
Andrew E. Zelman, Esq., Roger H. Briton, Esq., and Jane B.
Jacobs, Esq. (Seham, Klein & Zelman), of New York,
New York, for Charging Party Maritime Overseas.
Richard N. Goldstein, Esq. (Dretzin & Kauff), of New York,
New York, for Charging Party Moore McCormack.
DECISION
PRELIMINARY STATEMENT
BENJAMIN SCHLESINGER, Administrative Law Judge. Sec-
tion 8(b)(1)(B) of the National Labor Relations Act, 29
U.S.C. § 151 et seq., provides that ‘‘[i]t shall be an unfair
labor practice for a labor organization or its agents . . . to
restrain or coerce . . . an employer in the selection of his
representatives for the purposes of collective bargaining or
the adjustment of grievances.’’ The complaints in this pro-
ceeding allege that, commencing on 3 October 1984,1 Re-
spondent International Organization of Masters, Mates and
Pilots, Marine Division, International Longshoremen’s Asso-
ciation, AFL–CIO (MM&P) violated that section by engag-
ing in job actions against and picketing of Charging Parties
Marine Transport Lines Company, Inc. (MTL), Keystone
Shipping Company (Keystone), Maritime Overseas Corpora-
tion (MOC), and Moore McCormack Bulk Transport, Inc.
(Mormac; all the Charging Parties being referred to collec-
tively as the Companies), to restrain them in their selection
of the supervisory masters and mates aboard their oceangoing
vessels. MM&P contends that its actions were legal because
the Companies, as their agreements with Respondent termi-
nated, walked away from MM&P, instituted their own terms
and conditions of employment, which were far less than what
they previously had contracted with MM&P, and refused
thereafter to deal with MM&P, which was permitted by law
to protest the Companies’ substandard wages and terms and
conditions of employment.2
536 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 There are separate collective-bargaining agreements for the tanker and dry
cargo companies, and a number of MM&P documents refer to this dispute as
a ‘‘tanker job action’’ against the ‘‘runaway tanker companies.’’
4 The MSC is a branch of the United States Navy that is charged with the
waterborne transportation of materials, such as liquid petroleum and dry cargo,
for the Department of Defense. Nine of MTL’s vessels are bare boat chartered
to MSC, and MTL operates the ships under contract with MSC.
5 The parties stipulated that both Lowen and Martin are agents of MM&P
within the meaning of Sec. 2(13) of the Act.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
I. JURISDICTION
A. The Companies
The parties have stipulated, and I find, that at all times
material MTL, a Delaware corporation with its principal of-
fice and place of business located in Secaucus, New Jersey,
has been engaged in the ocean-shipping business, operating
approximately 17 United States-flag oceangoing vessels in
foreign and interstate coastwise trade. Sixteen of the vessels
are tankers, which are vessels which carry liquid products,
such as petroleum products. The remaining vessel is a dry
bulk carrier, which carries dry cargo in bulk, such as grain
or coal. The Companies are primarily tanker companies, and
this dispute involves the tanker segment of the maritime in-
dustry.3 During the 12 months prior to 1 February 1985,
MTL transported oil, grain, aviation fuel, and other commod-
ities valued in excess of $1 million between the various
States of the United States and in foreign commerce and,
during the same period, derived gross revenues in excess of
$1 million. In addition, during the same period, MTL per-
formed aviation fuel delivery services valued in excess of $1
million for the United States Department of Defense, Mili-
tary Sealift Command (MSC),4 at various locations through-
out the world, and those operations have a substantial impact
on the national defense of the United States.
The parties have also stipulated, and I find, that keystone,
a Delaware corporation having its principal office and place
of business in Philadelphia, Pennsylvania, has been engaged
in the business of operating approximately 20 United States-
flag oceangoing vessels in foreign and interstate coastwise
trade. During the 12 months prior to 1 February 1985, Key-
stone transported chemicals, petroleum, aviation fuel, coal,
and other commodities valued in excess of $1 million be-
tween the various States of the United States and in foreign
commerce and, during the same period, derived gross reve-
nues in excess of $1 million. Furthermore, during the same
period, Keystone performed aviation, coal, and petroleum
products delivery services valued in excess of $1 million, for
the MSC at various locations throughout the world, and those
operations have a substantial impact upon the national de-
fense of the United States.
The parties further stipulated, and I find, that MOC, a
New York corporation with its principal office and place of
business in New York, New York, has been engaged in the
business of operating approximately 14 United States-flag
oceangoing vessels in foreign and interstate coastwise trade.
Twelve of the vessels are tankers and two are bulk carriers;
three tankers and one bulk carrier are on charter to MSC.
During the 12 months prior to 1 February 1985, MOC trans-
ported chemicals, petroleum, aviation fuel, and other com-
modities valued in excess of $50,000 between the various
States of the United States and in foreign commerce and,
during the same period, derived gross revenues in excess of
$50,000. In addition, during the same period, MOC per-
formed aviation fuel delivery services valued in excess of $1
million for the MSC at various locations throughout the
world, and those operations have a substantial impact on the
national defense of the United States.
Mormac is a collective reference to Moore McCormack
Bulk Transport, Inc. (Bulk Transport) and Gastrans, Inc.
(Gastrans), which are both Delaware corporations with of-
fices and principal places of business located in Stamford,
Connecticut, where they have been engaged in the business
of operating approximately five United States-flag ocean-
going vessels in trade between various ports in the United
States and foreign countries. During the 12 months prior to
7 February 1985, Bulk Transport and Gastrans transported
crude oil, liquid natural gas, fresh water, and other commod-
ities valued in excess of $1 million between the various ports
in the United States and foreign countries, and, during the
same period, derived gross revenues in excess of $1 million.
During the same period, Bulk Transport performed delivery
services valued in excess of $50,000 for the MSC at various
locations throughout the world.
I conclude, as the parties have stipulated, that MTL, Key-
stone, MOC, Bulk Transport, and Gastrans are each employ-
ers engaged in commerce and in operations affecting com-
merce within the meaning of Section 2(2), (6), and (7) of the
Act.
B. MM&P
I also conclude and find, as all parties except Mormac
have stipulated, that MM&P is an unincorporated association
and is an organization in which statutory employees partici-
pate and which exists, in whole or in part, for the purpose
of dealing with employers concerning grievances, labor dis-
putes, wages, rates of pay, hours of employment, and condi-
tions of work. I therefore conclude that MM&P is a labor
organization within the meaning of Section 2(5) of the Act.
Notwithstanding this conclusion, the instant dispute does
not involve statutory employees under Section 2(3) of the
Act. Rather, it involves those members of MM&P who run
the Companies’ oceangoing vessels, constitute MM&P’s off-
shore membership, and are the Companies’ licensed deck of-
ficers—its masters, chief (or first) mates, second mates, and
third mates—all of whom have been stipulated to be super-
visors of their respective employers within the meaning of
Section 2(11) of the Act.
MM&P is an affiliate of the International Longshoremen’s
Association, AFL–CIO (ILA). Unlike many other national
unions, MM&P does not have districts or locals, but it has
offices in various ports throughout the United States and in
Puerto Rico. Its international headquarters are in Linthicum
Heights, Maryland (sometimes referred to as International)
and, for operational purposes, its principal officers are its
president and secretary-treasurer and its elected vice presi-
dents are the heads of MM&P’s different membership
groups. Robert J. Lowen is the president of MM&P. Under
him, in order of authority, are Lloyd M. Martin, secretary-
treasurer;5 and the three vice presidents of the offshore mem-
bership group: Ellwood Ryser, for the Gulf ports; David
York, for the Pacific ports; and Henri L. Nereaux (and since
537MASTERS, MATES & PILOTS (MARINE TRANSPORT)
6 This separate group of pilots is comprised of about 1000 members who
have state licenses. Those members who have Coast Guard licenses to sail as
master or mates, with endorsements permitting them to pilot vessels in speci-
fied waters, are members of the offshore group.
7 Certain representatives are also referred to in the record as ‘‘port agents’’
or ‘‘branch agents.’’
8 The port captain is assigned certain vessels and is responsible for visiting
and overseeing the operation of the vessels, ensuring that the vessels perform
their function pursuant to their charters, and watching after the maintenance,
storing, and personnel of the vessel. The port captain adjusts grievances with
all the unions which represent the members of the crews of the vessels, includ-
ing MM&P, Marine Engineers Beneficial Association (MEBA), Radio Officers
Union, American Radio Association, National Maritime Union (NMU), and
Seafarers International Union (SIU). He normally meets with patrolmen of the
respective unions.
If an emergency occurred, the port captain would stand watch, take com-
mand of the vessel, or do whatever was necessary to ensure the safety and
security of the vessel. Johnston testified that if a licensed deck officer became
ill or quit, the port captain should first request a waiver from the Coast Guard
for the vessel to sail short of its manning requirement. If the waiver was not
granted, then the port captain would ‘‘ride the ship,’’ meaning that he would
assume whatever position was vacant.
1 January 1985, John Hayes), for the Atlantic ports. The
foregoing are members of MM&P’s general executive board,
as are five other vice presidents, who head the pilots,6 Atlan-
tic and Gulf maritime region, Pacific maritime region, Great
Lakes and Rivers maritime region, and communications and
electronics group.
Below the vice presidents are about 20 appointed rep-
resentatives, 14 of whom service the offshore membership,
administer the offshore contracts, and assist the pensioners or
their survivors or dependents and generally supervise all of
MM&P’s activities in their port or region.7 Some of the full-
time port representatives prominently mentioned in the
record are Charles Landry, Boston, Massachusetts; Edward
Gras and Ernest Swanson, New York, New York; David
Haa, Baltimore, Maryland; James Titus, Houston, Texas;
Richard Bara, Los Angeles, California; and Albert Groh, San
Francisco, California. Jack Harry, Norfolk, Virginia, is a rep-
resentative of MM&P’s Federal government employees divi-
sion. There are also ‘‘pro tem’’ representatives, who are usu-
ally appointed by the representative of the port. Among
these, who were appointed between 1 June and the time of
the hearing in this proceeding, are Steve Wilson, San Fran-
cisco, California, and Howard Hull, Tampa or Jacksonville,
Florida. Finally, another name that will be mentioned in this
Decision is Don Fuller, Sr., a representative of MM&P’s Pa-
cific maritime region in California. He was appointed to his
position by MM&P’s general executive board.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Status of Second and Third Mates
Although the parties are in agreement about the super-
visory status of all the licensed deck officers, they have stip-
ulated only that masters and chief mates are representatives
‘‘for the purpose of collective bargaining or the adjustment
of grievances’’ within the meaning of Section 8(b)(1)(B).
They have not agreed about the second and third mates, who
MM&P contends are neither collective bargainers nor griev-
ance adjusters.
The Board does not require proof that an admitted super-
visor has 8(b)(1)(B) functions. Rather, the Board’s view is
that a statutory supervisor is an 8(b)(1)(B) representative,
Operating Engineers Local 501 (Anheuser Busch), 199
NLRB 551 (1972), because the employer regularly draws on
its ‘‘reservoir’’ of supervisors for promotion to jobs in which
they function as collective bargainers and grievance adjust-
ers. See, e.g., Newspaper Guild Local 187 (Times Pub-
lishing), 196 NLRB 1121, 1122 (1972), remanded 489 F.2d
416 (3d Cir. 1973); Carpenters Local 14 (Max M. Kaplan
Properties), 217 NLRB 202 (1975); Teamsters Local 296
(Northwest Publications), 263 NLRB 778, 779 fn. 6 (1982),
enfd. 730 F.2d 768 (9th Cir. 1984); Electrical Workers IBEW
Local 11 (Bergelectric Corp.), 271 NLRB 25 fn. 5 (1984).
The ‘‘reservoir doctrine’’ is particularly appropriate to the
facts in this proceeding because licensed deck officers are
generally promoted from one position to another within each
of the Companies. Indeed, the nature of the licensed deck of-
ficer is such that many work in all classifications. Robert
Johnston, presently MOC’s vice president of operations,
commenced sailing as a third mate, then passed successive
examinations for second mate, chief mate, and then master.
Each step required service for 1 year before taking the next
examination. He came ashore as a port captain8 and was pro-
moted to assistant vice president and later to his current posi-
tion as a collective bargainer and MOC’s final authority on
the adjustment of grievances. He testified, without contradic-
tion, that the frequency of the progression from third mate
to master is ‘‘[f]airly frequent.’’ His was not a unique case
among the witnesses in this proceeding, many of whom,
masters of their vessels or port captains, had worked their
way up through the ranks, from positions of third mate or
even unlicensed seaman. Even MM&P’s two principal offi-
cers, Lowen and Martin, served in all positions of licensed
deck officer.
Furthermore, even discounting the normal progression
through the ranks, licensed deck officers with more than two
ratings frequently change positions, not only to higher posi-
tions but also to lower positions. Merely because an officer
has a master’s license does not mean that he will sail only
as a master. Officers with master’s or chief mate’s licenses
frequently sail as second and third mates, because there are
more officers with master’s and chief mate’s licenses than
there are jobs available for them. Officers who are not as-
signed permanently to a vessel frequently sail in different ca-
pacities with different vessels, one right after another.
In addition, there is need to relieve masters and chief
mates who go on vacation, and frequently the relief position
will be taken by one of the classifications not conceded by
MM&P to be 8(b)(1)(B) representatives. For example, before
October, all the MOC vessels carried a master, one chief
mate, one second mate, and at least one third mate, some-
times two. On each vessel, there were the following perma-
nent employees: a permanent master, a relief master, a chief
mate, a second mate, and, on some vessels, a third mate. A
permanent employee is entitled to return to his job, whereas
a relief is often filled from the MM&P hiring hall, which
would dispatch a relief officer. However, MOC also fills po-
sitions from its permanent employees: if a chief mate goes
on vacation, his position would be filled by either the perma-
nent second or third mate, who, on occasion, would sail as
a relief master. There is no difference in responsibility of one
who serves as a chief mate and, for example, a third mate
who relieves as a chief mate. Thus, even if the second and
third mates are not 8(b)(1)(B) representatives, there is a suf-
538 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
9 There is no record support that they are collective bargainers, and no such
contention is made.
10 McFadden asked the SIU representative, a boatswain, whether there was
anything in the union collective-bargaining agreement governing the resolution
of the problem. Other than this discussion between a second or third mate and
a representative of one of the unions of unlicensed seamen, the record is bar-
ren of any grievance filed by a union representative with the watch officer.
11 MM&P was attempting to negotiate a provision in its agreement with
MOC which provided that second and third mates shall not adjust disputes.
MM&P had such a provision in two of its agreements. I decline to rule on
the significance of these facts because the respective parties’ contentions are
equally accurate and deficient—MM&P, that the provision merely confirmed
and continued prior practice; the others, that the provision was intended to pro-
vide for something new.
12 McFadden testified that, as master, he expects the second and third mates
to make their own decisions: he is not ‘‘their babysitter.’’
ficient likelihood that they serve from time to time as such
representatives.
Furthermore, the second and third mates adjust griev-
ances.9 The grievance procedure provided by the collective-
bargaining agreements between the Companies and the NMU
and SIU, the two unions which represent the unlicensed per-
sonnel (statutory ‘‘employees’’) aboard the vessels, requires
as a first step the presentation of the complaint to the unli-
censed personnel’s ‘‘immediate superior’’ or ‘‘superior offi-
cer,’’ who is the watch officer. The watch officers are the
second and third mates. Each officer stands two 4-hour
watches and, when doing so, is in charge of the vessel and
supervises the unlicensed seamen who serve under him on
the watch. In fact, when a vessel is in port, a second or third
mate may be the only deck officer on the vessel. The watch
officer makes log entries in the deck log which may show
that a seaman was not performing his duties as required or
appropriate.
The tenor of the testimony was that second and third
mates are responsible for resolving routine problems. Those
frequently involve complaints of one seaman that another
seaman who is standing watch is not carrying his full share
of the duties; that the seaman was not relieved on time; that
a seaman did not receive his proper coffee or meal break;
that certain seamen, rather than other seamen, are responsible
for performing certain jobs or tasks, such as moving the
laundry; and that another crew did not make coffee or left
the quarters dirty.
John McFadden, master of MTL’s Arabian Sea, recalled
that, when he was third mate, he had three seamen on the
normal watch, two able-bodied seamen and one ordinary sea-
man. There was a dispute as to how long they would each
stand watch on rotation, and McFadden settled it for them
when they were unable to do so.10 On another occasion, an
able-bodied seaman tried to get out of moving some fire ex-
tinguishers on the basis that such work should be paid over-
time. McFadden ordered him to do it, anyway. Yet another
time, McFadden relieved an able-bodied seaman from watch
because of drunkenness but did not log him because it was
his first ‘‘mess-up.’’
Robert Pinder, master of Keystone’s Golden Gate, identi-
fied the grievance handling of second and third mates in
terms of giving out assignments of work when there is a dis-
pute about who is to do a certain job and when. He remem-
bered a dispute between two groups of seamen tying up the
vessel, one group moving faster than the other, and the third
mate’s solution of reassigning some of the seamen to the
other group to ensure that both groups would work equally
quickly. Other examples of ‘‘grievance handling’’ of the sec-
ond and third mates were decisions to send a group of sea-
men to dinner before another group and to recommend the
discharge of one of the ordinary seamen, who was ultimately
fired by Pinder. Pinder also recalled that, when he served as
a third mate, he assigned members of the deck crew, rather
than the steward’s department, to bring clean linen aboard
the vessel. When he was second mate, a pumpman refused
to drop anchor and insisted that it was the boatswain’s job;
but Pinder directed the pumpman to do it. And, on another
occasion, Pinder ordered the sailors on watch to retrieve
bonded stores, despite the plea that the work was overtime
and that others should perform it.
Johnston testified that typical disputes resolved by the
watch stander involve able-bodied seamen who protest as-
signments to work in the pump room; whether overtime
should be paid for the handling of stores—yes, if they are
more than 25 feet from the vessel, no, if not; and who should
run the winch during the docking operation, either the ordi-
nary or the able-bodied seaman. The mate on watch may fre-
quently be asked to overturn discipline previously meted out
to a member of the crew.11
Many of these examples illustrate no more than the second
or third mate’s exercise of his supervisory function, rather
than grievance adjusting. As the watch stander, the mate is
the person entrusted to supervise the unlicensed personnel on
his watch. He directs them in their duties; he tells them what
to do. Many of the incidents related involve no more than
directing one person or group to do something. If the order
is not followed, a grievance might then be created which
would have to be adjusted; but it is the mate who by his ac-
tions made the grievance arise.
Yet, there are sometimes quarrels and disputes which the
second or third mate must resolve, particularly when they in-
volve different interests of more than one person. When it
is necessary to determine which of two unlicensed personnel
is correct, there being a dispute between them about their
separate duties and responsibilities, the mate resolves that
grievance. For example, when a seaman complains that an-
other seaman is not working hard enough or has not reported
on time for relief or has not made coffee, the watch officer
must resolve that complaint. In doing so, he maintains the in-
dustrial peace aboard the vessel; he keeps his employees sat-
isfied by adjusting their disputes with other seamen.12
In sum, although many of the instances involve no more
than supervision, there is some grievance adjustment present,
albeit minor and personal, rather than contractual. The lack
of magnitude of the problems and the nature of the problems
should not, however, diminish the function of the second and
third mate as grievance adjusters. Detroit Newspaper Print-
ing Pressmen’s Union 13 (Detroit Free Press), 192 NLRB
106, 111 (1971). Section 8(b)(1)(B) status does not require
participation in formalized grievances filed under or arising
out of the collective-bargaining agreement. Toledo Lithog-
raphers (Toledo Blade), 175 NLRB 1072, 1078 (1969). See
also Newark Newspaper Pressmen’s Union (Newark Morning
Ledger), 194 NLRB 566 (1971), where a supervisor arranged
remedies for complaints, such as too little or too much heat
and oil on the floor; Electrical Workers IBEW Local 702
(Coulterville Tree Service), 219 NLRB 251 (1975), where
the supervisor resolved a gripe of one employee that another
539MASTERS, MATES & PILOTS (MARINE TRANSPORT)
13 MTL had a separate agreement providing for different and reduced terms
of employment for its MSC vessels. Among other provisions, vacations for all
licensed deck officers were given at the rate of 13 days’ vacation for every
30 days worked.
14 Although it may appear that MTL untimely withdrew from multiemployer
negotiations, it must be emphasized that licensed deck officers are supervisors
and that, under Sec. 8(a)(5) of the Act, an employer is obliged to bargain in
good faith only with the representatives of its statutory employees.
15 Among benefits that were reduced were vacation benefits. Under the tank-
er agreement, a master received 30 days of paid vacation for each 30 days
worked; a mate, 27 for 30 days. Under the new package, all officers received
only 13 days of vacation for 30 days worked, the same as in the agreement
which covered MTL’s MSC vessels.
employee had not filled the gasoline cans; Norwalk Typo-
graphical Union No. 529 (Hour Publishing), 241 NLRB 310,
315 (1979), where the supervisor orally adjusted ‘‘personal
grievances’’; and Laborers Local 322 (Kingsley Drilling),
229 NLRB 949 (1977), where a supervisor purchased work
gloves and requested additional employees in response to
complaints from employees. I conclude that second and third
mates are grievance adjusters and thus 8(b)(1)(B) representa-
tives. Masters, Mates & Pilots (Westchester Marine), 219
NLRB 26, 35–36 (1975), enfd. 539 F.2d 554 (5th Cir. 1976),
rehearing denied 547 F.2d 574 (5th Cir. 1977), cert. denied
434 U.S. 828 (1977).
B. Prior Contractual Relations Between MM&P and
MTL, Keystone, MOC, and Mormac
For more than 20 years MTL and Keystone, and for 10
years Bulk Transport, and 5 years Gastrans had been mem-
bers of the Tanker Service Committee, Inc. (Committee), a
multiemployer association composed of employers engaged
in the operation of the United States-flag oceangoing vessels.
In 1981, the Committee negotiated a collective-bargaining
agreement with MM&P covering these vessels (this and
other agreements covering tankers will sometimes be referred
to separately or collectively as the ‘‘tanker agreement’’) and
governing the terms and conditions of employment of the
employers’ licensed deck officers. Another agreement was
entered into by another multiemployer association, American
Maritime Association (AMA), of which MOC had been a
member for more than 20 years. Among the many provisions
of the agreements, there were provisions for the recognition
of MM&P as the collective-bargaining representative of the
licensed deck officers, for the hiring of such officers exclu-
sively from MM&P’s hiring hall, the use of which is limited
to MM&P members, and a union-security provision requiring
that officers maintain their membership in MM&P.
The collective-bargaining agreements were for terms of 3
years and each provided that, unless one of the parties gave
to the other party a notice of its intention to modify or
amend the agreement at the expiration date, 15 June, the
agreement automatically extended for a period of 1 year. On
8 April, MM&P notified not only the Committee and AMA
but also the Companies and MTL’s operating subsidiaries
and its MSC operation13 that it intended to modify and
amend the agreements and was prepared to meet at a mutu-
ally convenient date. By letter dated 12 April the Committee
replied to MM&P’s letter, stating that the Committee also
wished to engage in negotiations with respect to modifying
and amending its agreement and was prepared to meet with
MM&P.
However, by letter dated 6 June MTL notified the Com-
mittee, with a copy to MM&P, that the Committee was no
longer authorized to bargain collectively or to negotiate with
any labor organization other than the NMU (for its unli-
censed personnel) on its behalf or on behalf of any of its af-
filiates or subsidiaries.14 On 13 June, MM&P advised MTL,
its operating subsidiaries, and its MSC operation, that by vir-
tue of the automatic extension provision of the tanker agree-
ment and MTL’s ‘‘failure to serve notice of termination pur-
suant thereto,’’ the agreement ‘‘has been renewed through
June 15, 1985.’’ Consistent with this position, MM&P noti-
fied all of its offshore port offices that it deemed the contract
with MTL to have been automatically renewed and expressed
the importance of keeping its members on board MTL’s ves-
sels. Permission to remain aboard or accept employment with
MTL did not apply, however, to any officer who accepted
direct employment with MTL outside of the tanker agree-
ment’s procedures and the shipping rules’ clearance and as-
signment procedures. If an officer, whether a member or an
applicant of MM&P, accepted employment without receiving
the assignment through one of MM&P’s hiring halls, that of-
ficer was subject to being brought up on charges and tried
by an MM&P trial committee.
On 15 June the Committee, which still represented Key-
stone, Bulk Transport, and Gastrans, entered into an agree-
ment with MM&P extending and modifying the provisions of
the tanker agreement while the parties were still engaged in
bargaining and agreed that all wage, overtime, and benefit in-
creases would be retroactive to 16 June. However, either the
Committee or MM&P had the right to terminate the exten-
sion by sending the other a telegraphic or written notice of
termination no earlier than 48 hours from 15 June.
In other words, as of 15 June, the tanker agreement was
still in effect with regard to Keystone, Bulk Transport and
Gastrans—but not MTL. On that day, MTL distributed a let-
ter to its licensed deck officers notifying them that it would
no longer recognize MM&P as their collective-bargaining
agent and offering them continued employment with a
changed and reduced wage and benefit package.15 At least
eight MM&P members did not accept continued employment
with MTL with the changed package; others did, but MTL
replaced about 40 of its officers between 15 June and 3 Oc-
tober and thereafter replaced an additional 20 officers. MTL
hired replacements for all such licensed deck officers from
sources other than MM&P’s hiring hall.
In the meantime, on 16 June MTL instituted an action in
the United States District Court in Philadelphia, Pennsyl-
vania, for a declaratory judgment that its agreement with
MM&P had terminated. Several weeks thereafter, on 6 July,
MM&P filed suit against MTL in the United States District
Court for the Southern District of New York to enforce the
tanker agreement which it alleged had been renewed. In De-
cember, MM&P filed in the Pennsylvania action an answer
claiming that the tanker agreement continued in full force
and that MTL was violating it and a counterclaim which
sought an order requiring MTL to ‘‘perform its obligations’’
under the tanker agreement and reinstate all MM&P licensed
deck officers who were replaced by officers not belonging to
MM&P. Those parties have been litigating the issue of the
appropriate forum in both Philadelphia and New York and
540 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
16 All of these companies reduced the schedule of vacation benefits to 15
days for 30 days of work.
17 Collective-bargaining agreements between MTL and MM&P covering
MTL’s licensed deck officers extended back for approximately 40 years; Key-
stone, 30 years; MOC, 20 years; Bulk Transport, 10 years; and Gastrans, 5
years. All were covered by the 1981 master agreement.
18 These telexes were composed by and sent with the direct authority of
Lowen. All telexes sent by MM&P were sent from the communications room
of MM&P’s international headquarters. That room was staffed by MM&P Of-
ficers and Representatives Swanson, Landry, Haa, Nereaux, Kyser, and Gras,
who were authorized to draft and send messages and to sign Lowen’s and
Martin’s names as MM&P’s president and secretary-treasurer, respectively, so
that it was clear that the telexes were ‘‘official’’ MM&P communications. All
communications were authorized even if Lowen did not know about them.
discovery notices were outstanding as of the date of the close
of the hearing in this proceeding.
On 15 June AMA also agreed with MM&P to extend its
agreement. By letters dated 10 and 11 July, MOC notified
AMA and MM&P, respectively, that AMA was not author-
ized to bargain for MOC with respect to any multiemployer
collective-bargaining agreement with MM&P, but that AMA
was authorized only to bargain with MM&P for an agree-
ment on an individual basis for MOC. Thereafter, MM&P
and AMA, representing only MOC, with MOC’s representa-
tive also present, bargained for an agreement for MOC and
met from July to 1 October. During the negotiations, MOC,
on 14 September orally and on 18 September in writing noti-
fied MM&P that unless an agreement was reached by 1 Oc-
tober to replace the extension agreement, MOC would termi-
nate its contractual relationship with MM&P; and when no
agreement was reached, MOC on 2 October notified MM&P
that its contractual relationship was terminated.
MOC thus joined not only MTL but also Keystone, Bulk
Transport, and Gastrans. The latter two had notified MM&P
by letters dated 1 October pursuant to their earlier advice of
29 September to the Committee, that the Committee was no
longer authorized to bargain for them with respect to any
collective-bargaining agreement with MM&P and that their
agreement was terminated. By telexes and letters dated 27
September Keystone, too, had sent notices to MM&P and to
the Committee containing the same message. In addition, on
or about 27 September Keystone distributed a letter to its li-
censed deck officers notifying them, among other things, that
it would no longer recognize MM&P as their bargaining rep-
resentative and offering them continued employment with a
changed and reduced wage and benefit package. On 1 Octo-
ber Bulk Transport and Gastrans distributed a similar letter
to their licensed deck officers.16
Accordingly, by 2 October each of the Companies had
withdrawn authority from its respective multiemployer asso-
ciation to negotiate on its behalf; each had terminated the
collective-bargaining agreement under which each had been
bound; each had notified MM&P that, after many years,17 it
would no longer recognize MM&P as the bargaining rep-
resentative of its licensed deck officers; and each had noti-
fied its licensed deck officers that henceforth new terms and
conditions of employment would prevail. On 2 October
MM&P filed a lawsuit in the United States District Court for
the Southern District of New York seeking a declaratory
judgment that MOC was still bound to and required to per-
form its obligations under the extension agreement. At the
time of the hearing in this proceeding, Cross-Motions for
Summary Judgment were pending.
C. MM&P Takes Action
On 3 October Lowen sent telexes to all the Companies’
vessels instructing its members, among other things, ‘‘to im-
mediately cease all work of any kind except for that involv-
ing security of vessel.’’ Describing its actions as a ‘‘job ac-
tion,’’ MM&P directed the officers to stop all work, includ-
ing ‘‘undocking, shifting, loading, discharging, cleaning
tanks, ballasting, transferring of cargo, [and] performing ad-
ministrative duties including clerical work of any kind.’’ Its
members were directed to ‘‘remain on board to protect your
jobs. If you are to retain the hard-won MM&P contract bene-
fits, you must demonstrate your courage and willingness to
comply with these instructions and refuse to leave your ship
voluntarily.’’ (Its members were later told that if they were
on a foreign trip, they had a right to ‘‘insist upon proper dis-
charge before a U.S. Coast Guard or consular officer. If in
U.S. port do not leave vessel unless forced off by U.S mar-
shal or other credentialed officer armed with proper docu-
ments.’’) MM&P described the job action as ‘‘necessary to
protect wages and benefits of not only MM&P members but
ultimately those of all officers and crew members. . . . This
job action is necessary to preserve your future.’’ MM&P’s
members were requested to report the name of any officer
not supporting the job action to international headquarters.
Lowen’s telex to MOC, with which it had been bargaining
until 1 October, added that the job action would enable
MM&P to achieve ‘‘[w]hat we were not able to achieve
through good faith bargaining.’’ Lowen sent a telex to
MM&P’s pilots’ group advising it of the job action and call-
ing for the ‘‘support of all pilot members, by withholding of
services wherever possible . . . to insure these companies
honor their obligations.’’18
Finally, on 5 October, Lowen notified all MM&P offshore
ports to contact all the Companies’ permanent employees ‘‘to
stop the flow of replacements to the ships being affected by
our job action.’’
There followed in short order the refusal of the licensed
deck officers to work, their rejection of the Companies’ new
terms and conditions of employment, and their refusal to
leave the vessels voluntarily; picketing by MM&P’s mem-
bers with various signs; picket boat activity; some threats of
violence; and threats of fines, fines, and charges against and
trials of MM&P members who refused to comply with
Lowen’s directive.
D. The Job Action and its Effects
Consistent with Captain Lowen’s 3 October directive,
when the vessels of the Companies entered port on and after
3 October, many of the masters ordered their vessels to be
berthed at safe landing places, sometimes not even at the
berths where the vessels’ cargo was to be discharged. But
before then, port captains and various other representatives of
the Companies scurried from ship to ship to offer licensed
deck officers continued employment under the Companies’
new wage and benefit packages, which provided on most
vessels for, among other things, reduced wages and vacation
benefits, and the elimination of one position of third mate
(where a vessel had two third mates) and the position of a
relief chief mate in port. Generally, before 3 October, the of-
ficers agreed to remain on their vessels. But, as seen below,
541MASTERS, MATES & PILOTS (MARINE TRANSPORT)
19 The consolidated complaint alleges that the refusals of the licensed deck
officers to work are instances of unfair labor practices and distinguishes be-
tween those occurrences which took place when relief crews were available
and those when no relief crews had been hired. I find that the availability of
a relief crew is not a material fact and have disregarded it in most of my find-
ings.
20 The chief mate was to get off the Puerto Rican at that port, but agreed
to sail to Houston because the regular chief mate was late in arriving. The
third mate changed his mind the next day.
21 At the termination of a voyage, the master must pay off himself, the other
licensed deck officers, and the unlicensed crew members. In addition, he must
transfer to the relief master the ship’s remaining money and documents, such
as the vessel’s certificate and papers relating to the vessel’s condition and
cargo. The process of the payoff and filling out various forms may last 1-1/2
or 2 hours.
22 At other locations and on other vessels, time was similarly lost by reason
of MM&P’s job action. Of course, there was a delay which can be attributed
only to the explanations by the representatives of the various Companies of
the new terms and conditions being offered to the licensed deck officers, who
then needed time to think over the offers. Nor do I blame MM&P, once the
officers determined not to continue working, for the delay in their refusal to
work. But the delay caused by their refusal to cooperate and leave the vessel
and to carry out the functions which would permit them to do so, such as
opening the safe and paying off the crew, is directly attributable to Lowen’s
directive to them not to do anything and to be escorted from the vessel only
by U.S. marshals or local officials.
once the vessel’s officers had received Lowen’s 3 October
directive, they refused to perform any work, and they refused
to leave their vessels voluntarily, even though in many in-
stances relief crews had been hired and were available to as-
sume the officers’ duties.19
1. Keystone
Between 27 September and October 2, Robert McKeever,
Keystone vice president, visited the following vessels and of-
fered Keystone’s new terms and conditions of employment to
the vessels’ masters and mates, who accepted them: Valley
Forge in Decinto Port, near Houston, Texas; Edgar M.
Queeny in Plaquemine, Louisiana; Puerto Rican in Oak
Point, Louisiana;20 and Chilbar and Spirit of Liberty in Cor-
pus Christi, Texas. Other Keystone representatives visited
other vessels prior to 3 October. The crews of the Golden
Gate in Wilmington, California; the Kenai in San Pedro,
California; and the Tonsina in Long Beach, California, ac-
cepted Keystone’s new terms; but the chief and second mates
on the SS Atigun Pass in Long Beach, California, refused the
package, and they asked to leave the vessel and were re-
placed.
On 3 October, McKeever visited the Keystoner at the
Paktank terminal in the Houston ship channel. He arrived at
the vessel at 1 p.m. and began to talk with the master and
the four mates, who were ‘‘interested’’ in what McKeever
was describing to them. About 3:30 p.m. Lowen’s directive
arrived, and the master said, ‘‘We have a problem.’’ The
master then asked to meet alone with his mates. Afterwards,
he announced to McKeever that he intended to adhere strict-
ly to the directive and that he was not going to leave the ves-
sel unless relieved by a master sent from the MM&P hall
with proper credentials. The officers similarly refused to do
anything.
McKeever estimated that the vessel should have been dis-
charged after 7 to 8 hours of pumping and should have set
sail at about 10 p.m. to midnight that evening. Because of
the master’s advice, McKeever obtained security to ensure
the safety of the vessel. McKeever asked the master to turn
over the ship’s money21 so the ship’s crew could be paid off,
but the master refused to open the safe; and when McKeever
asked for the combination for the safe, the master refused to
give that, too. As a result, although the ship’s payroll had
already been prepared and the unlicensed crew members
were ready to be paid off, McKeever found it necessary to
ask the ship’s agent to obtain another $35,000, which was in
addition to the amount then in the safe, in order to pay off
the crew. Shortly before 5 p.m., the master changed his mind
and gave the money in the safe to Keystone’s port captain.
Later that day, about 8 p.m., an attempt was made by a
gauger to board the vessel and sample and measure the
amount of the cargo in the vessel’s tanks preliminary to dis-
charging the cargo. The master refused to grant the gauger
permission to board the vessel. The gauger tried again later
and was again turned away. About 9 p.m., McKeever had ar-
ranged for a standby crew to replace the licensed deck offi-
cers who had also refused to work. McKeever’s request of
the current licensed deck officers to vacate the vessel about
9 p.m. was rejected. They said they were going to stay on
the vessel. The master was formally relieved of duty by the
replacement master. The other licensed deck officers were in-
troduced to the new master, who ordered them to go to work,
but they still refused and were discharged. The new master
ordered them off the vessel and they refused. About 9:30
p.m. the new mates were put to work and McKeever called
the police who came to his office about a half mile away
about 11 p.m. A few minutes before 2 a.m. on 4 October,
the local sheriffs offered either to escort the old crew off the
ship or to arrest them. The old crew left under escort.22
The foregoing is illustrative of the reaction and acts of
those MM&P members who decided to comply with
Lowen’s 3 October directive. The details of what happened
on each vessel may have some passing interest but are not
determinative of this dispute. Suffice it to state, on 4 Octo-
ber, McKeever returned to the Spirit of Liberty, which he had
visited 2 days before, when all the then officers had accepted
and signed on to employment under Keystone’s new terms
and conditions of employment. The vessel was still sitting in
the same position, at the same terminal; and the master relied
on Lowen’s directive and stated that he intended to live up
to it. The master and the mates refused to work and left the
vessel at midnight, only after the master talked with the po-
lice, whom McKeever had called, and after the licensed deck
officers were convinced that they were not leaving the vessel
voluntarily and thus were complying with the Lowen direc-
tive.
On October 8, the officers of the Petersburg in San Fran-
cisco Harbor declined to work and were discharged. The sec-
ond and one of the third mates refused to leave voluntarily,
so Keystone was required to obtain a temporary restraining
order in the United States District Court, Northern District of
California, prohibiting them from, among other things, crimi-
nally trespassing on the vessel. The order was served on the
two mates, who thereupon agreed to leave the vessel. The
Petersburg was delayed from sailing for 8–12 hours.
The master of the Chelsea in Burkenhead, England, an-
nounced on 8 October that he had received Lowen’s 3 Octo-
ber directive and that he intended to live up to that to the
letter and to stay there until Keystone returned to the bar-
542 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
23 According to Keystone’s directions to its masters, payoffs in foreign ports
on foreign articles were to be accomplished in the presence of a United States
consul, if available. In general, this was not the prior practice for any of the
Companies. Furthermore, Lowen’s attempts to justify his unprecedented in-
struction that the masters and mates not leave their vessels unless forced off
have no merit. If the instruction was intended to protect the master from false
claims, it was demonstrated that the master receives a receipt for all property
he gives to his relief master. In any event, the instruction was directed to all
licensed deck officers, not merely the master. If the instruction was intended
for those occasions when there might be a claim that the vessel was aban-
doned, the instruction was not limited to those situations, nor did Lowen indi-
cate why this kind of situation would arise on foreign articles rather than on
coastwise articles or why the instruction was not issued only to the last re-
maining officer on board to ensure that he would be relieved. Indeed, there
were incidents related where the master had agreed to remain on the vessel,
but mates refused to leave unless arrested.
24 King was a retired MM&P member who was specially assigned by
MM&P to certain tasks during the course of the job action.
25 Lightering is pumping a partial load of cargo to a smaller vessel.
26 The master was being relieved in that port, but he made it clear to
McKeever that he was not doing any administrative work and that he was
complying with MM&P’s directive.
gaining table. The other mates similarly refused Keystone’s
new wage package. On 9 October, the officers were fired but
would not leave the vessel unless paid off before a United
States consul.23 By 10 October, the officers through MM&P
Representative Pat King,24 were making demands about the
propriety of the payoff, including a demand that they be paid
through about 10 February 1985, when the vessel’s foreign
articles were to end, the full wages required by MM&P’s
agreement, and a demand that Keystone post surety both in
England and the United States in anticipation of various law-
suits which were anticipated would be brought against Key-
stone. It was only very late on 10 October that the third mate
left and a few hours later, on the 11th, that the other officers
left the Chelsea. By that time, none of the lightering25 that
should have been finished by the vessel had been started.
On October 8, the mates of the Kenai in Valdez, Alaska,
complied with Lowen’s directive by doing no work and re-
fusing to leave without police escort. Arrangements were
made for the police chief to board the vessel and escort the
mates from the vessel. Similarly, all the officers of the
Tonsina, which docked in Valdez on 9 October, refused to
perform any functions and reported to a Keystone representa-
tive that they were ‘‘just going to sit there.’’ All refused to
leave unless under escort, and arrangements were made for
the police chief to escort them off the vessel.
Jeffrey Miller, master of the Chilbar, received Keystone’s
package of wages and benefits on 1 October and he and the
Chilbar’s four mates accepted those new terms. However, on
3 October, in Beaumont, Texas, he and the mates were ad-
vised of MM&P’s directive not to work. Miller decided to
continue to work, but the other four complied with MM&P’s
directive and would perform no work other than to stand se-
curity watch. Miller dismissed them all. They wanted to be
escorted off the vessel by a local law enforcement agency,
and arrangements were made for the local sheriff to board
the Chilbar and escort them off.
On or about 4 October, the chief and second mates on the
Energy Independence decided to comply with Lowen’s direc-
tive, refused to work, and remained in their cabins. Initially,
they also refused to leave the vessel unless they were ar-
rested, but soon thereafter they changed their minds. While
the vessel was at the Jamestown Anchorage near Newport
News, Rhode Island, MM&P Representative Landry, asked
the master and the mates on a short wave radio to ‘‘go with’’
the MM&P, that MEBA and NMU were going to support the
MM&P, and ‘‘if they didn’t go with the union they’d be
scabs, they’d be blackballed, they’d never work again.’’ The
second mate (who had been promoted from third mate) said
that he would not be intimidated, and Landry threatened that
if he did not join the job action, his legs would be broken.
On 11 October, McKeever visited the Cherry Valley in
Dundee, Scotland, where all of its mates declined Keystone’s
offer, refused to work,26 and refused to leave the vessel un-
less they were paid off before a United States consul, that
being required under their understanding of Lowen’s direc-
tive. However, the consul would not come to the vessel, and
McKeever agreed to make a written statement in front of the
consul that the mates did not leave the vessel voluntarily, an
arrangement that was agreed to and ultimately carried out on
the afternoon of 12 October.
2. MTL
The mates of the Sealift Arabian Sea, headed for a naval
station at Key West, Florida, on 3 October, refused to work
on arrival in port and, when they were discharged, the mates
refused to leave the vessel unless arrested. A legal pro-
ceeding was instituted in the United States District Court in
Miami to evict the officers from the vessel; and on the morn-
ing of 5 October, a United States marshal and some Navy
security boarded the vessel, the marshal served the Federal
court order, and the mates left the vessel. The vessel’s oper-
ations were delayed a day, and MSC did not pay to MTL
the charter rate for the period of the delay.
The master and chief and third mates of the Sealift Pacific
near Seattle, Washington, determined on 5 October that they
were going to comply with the Lowen’s 3 October directive.
When the relief master arrived, the old master stated that he
would not depart the vessel unless presented with a legal
document. Arrangements were made with MTL’s local attor-
ney to get a ‘‘legal document’’; United States marshals came
to the vessel; and the document was served on the master
and chief and third mates, who then left the vessel. The ves-
sel was delayed about 2 hours in discharging its cargo be-
cause of the master’s refusal to leave the vessel without legal
order.
The second and third mates of the Sealift Arctic who were
due to leave the vessel when it arrived in Martinez, Cali-
fornia, on 26 October refused to work or leave the vessel be-
cause of MM&P’s job action. They were advised that MTL
was prepared to have a notice of hearing issued by a judge
in San Francisco. One mate said nothing; the other demanded
to be arrested and led off the vessel in handcuffs. Legal pro-
ceedings were commenced, a notice of hearing was signed,
a Federal marshal was dispatched to the vessel, and the no-
tice of hearing was served. On the marshal’s advice, the two
mates left the vessel.
3. MOC
MOC’s new terms and conditions first went into effect on
2 October on the Overseas Arctic and the Overseas Juneau.
From then on, as a vessel came into port and the ship’s arti-
cles were terminated and there was a payoff, MOC instituted
the new conditions. There were vessels on which it was con-
templated that the new terms would not be instituted until
543MASTERS, MATES & PILOTS (MARINE TRANSPORT)
27 At the time the officers refused to work, they were still operating under
the terms and conditions of the tanker agreement.
28 I make no judgment as to whether the port captain’s opinion was accu-
rate; his order was disobeyed.
several months later. For example, the Overseas Alice, Over-
seas Valdez, and Overseas Vivian were in the Far East, and
their articles were not scheduled to expire earlier than De-
cember 31.
As noted above, on 2 October, the licensed deck officers
of the Overseas Juneau in San Francisco, California, accept-
ed MOC’s offer of new terms and conditions of employment.
So did the master and chief mate of Overseas New York at
the Ostricia Anchorage in the Mississippi River on 3 Octo-
ber. However, on 3 October, the master of the Overseas Ju-
neau, on receipt of Lowen’s 3 October directive, changed his
mind, refused to work, and was discharged. On the Overseas
New York, when the Lowen directive was received later in
the day, the second and third mates complied with the direc-
tive, refused work orders, and were terminated. Later, on 10
October, when the Juneau arrived at its next port at an an-
chorage outside of Valdez, Alaska, all of its licensed deck
officers refused to continue working.
As of 7 October, both the Overseas Arctic and Overseas
Washington had been anchored at Chiriqui Grande, Panama,
pursuant to the job action of the vessels’ officers. The mas-
ters of both vessels stated that the vessels were remaining in
their present positions and refused MOC’s port captain’s
order to move the vessels to the loading buoy because of the
MM&P’s job action. All the other licensed deck officers
similarly refused to do any work and insisted on being paid
off in the presence of a United States consul. However, the
consul was unavailable, and the officers ultimately agreed to
accept their payoff without the consul being present.
The Overseas Ohio was moored at a platform about 20–
25 miles offshore Louisiana early on 7 October, and the li-
censed deck officers refused to do any work and complied
with Lowen’s directive. A relief crew had been hired to re-
place the officers; but a further delay was encountered be-
cause MOC had to hire a private security firm to remove the
three mates, all of whom were removed in handcuffs. (The
harbor police refused to do so, stating that they had no juris-
diction over a vessel moored that far offshore.) The vessel
was delayed from its cargo operations for many hours, fi-
nally arriving at the buoy to discharge the cargo on 8 Octo-
ber at 3 p.m.
The licensed deck officers of the Overseas Chicago an-
chored off Freeport, Texas, on or about 9 October refused an
order to move the vessel to a lightering site and were termi-
nated. The master of the Overseas Natalie on the same day,
arriving at Southwest Pass, about 2-1/2 miles from the jetty
entrance of the Mississippi River, refused to permit MOC’s
senior port captain on the vessel: ‘‘No one will come aboard
ship until the vessel has been cleared [by United States Cus-
toms] and particularly the scabs [the relief master and third
mate].’’ All the officers refused an order to ready the vessel
for discharge, were terminated, and refused to leave the ves-
sel voluntarily. A complaint was sworn out against the offi-
cers, a warrant issued, and a United States marshal and the
local sheriff’s personnel arrested the officers. The Overseas
Natalie was delayed by the officers’ refusal to voluntarily
leave the vessel for about 12 hours.
On 9 October, the master of the Overseas Alaska, located
near Freeport, Texas, advised MOC’s port captain that all of
the mates refused to work, and so new mates were brought
to the vessel and permitted to lighter while the former mates
stayed in their rooms. Thereafter, MM&P Representative
Titus asked to see the former mates, and they left the vessel
and went to the dock to meet with him. They then returned
to the vessel and, after they were paid off, insisted that they
be escorted from the vessel (even though they had just left
voluntarily), and so arrangements were made for security of-
ficers from Burns International Security to do so.
On 8 October, the Overseas Boston arrived in Valdez,
Alaska, to load crude oil. On the sides of the vessel were
two signs: ‘‘MMP ON STRIKE, AFL–CIO.’’ The master re-
fused to engage in loading operations and was fired, as were
all the mates who supported the job action and refused to
work.27 After the officers had been escorted from the vessel,
it was ascertained that, among other things, the ballast of the
vessel was spread throughout all the tanks of the vessel, rath-
er than consolidated in a few tanks as it should have been,
and that the master had not reported such matters as the hy-
draulics being drained out of the hydraulic system and the
vessel’s gauging system being nonoperational. If a report had
been made, arrangements could have been made to have
technicians available to correct the problems. As it was, there
was a 1-day delay in the Overseas Boston’s turnaround, at
a daily charter rate of $50,000, which was not paid by the
charterer.
As of 23 October, the Overseas Marilyn had been in a col-
lision and was anchored in the Sabine River navigational
channel, near Port Arthur and Beaumont, Texas. The MM&P
officers refused to move the vessel, despite MOC’s port cap-
tain’s order to move the vessel to Orange, Texas, about 12
miles distant, based on his opinion that the vessel was not
moored in a safe and secure location and that it was not at
an approved anchorage because there were various heavily
loaded vessels, tankers, and bulk carriers coming in and out
and passing the Marilyn.28 The mates also refused to leave
the vessel voluntarily and were escorted off by United States
marshals.
4. Mormac
On 4 October, the master and chief and second mates of
the Mormacsun which was anchored on the Mississippi River
about 10 miles below New Orleans, Louisiana, indicated that
they did not desire to continue to work for Mormac under
its new package and insisted that they would comply with
MM&P’s instructions and would have to be removed from
the vessel by force or legal order. Earlier that day, the master
had refused to accept a bunker barge and the vessel sat idle
all day. Later in the day, all three changed their minds and
decided to accept Mormac’s terms. The third mate, who ada-
mantly refused to continue in Mormac’s employ, left the ves-
sel on the morning of 5 October and was replaced late that
evening. The following morning, the master and the two
other mates changed their minds again. Arrangements were
made to have replacements flown to New Orleans and they
arrived about 5 p.m. on 7 October. A United States marshal
arrived at 9:30 and threatened the master and two mates with
arrest; they agreed to leave voluntarily with the marshal. The
replacements were then brought aboard.
On the Mormacsky as of October 3 or 4, the master and
two mates had determined to stay on the vessel under
544 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
29 The master asked MM&P whether to comply with Mormac’s directive;
MM&P replied that the ‘‘vessel should not be moved for convenience of
owner.’’
30 The picketing took place at Keystone’s Golden Gate on 10 October in
Wilmington, California; Keystone Canyon on 11 October in Long Beach, Cali-
fornia; and Kenai in Long Beach on 15 October. MM&P port agent Bara
telexed Lowen and Martin that a ‘‘four-man rank & file informational picket
line’’ had been established at the Renai.
Mormac’s new package, but soon the officers started to
waver. By 5 October, the chief mate was uncertain but lean-
ing toward the MM&P, and the two other mates were going
to comply with MM&P’s 3 October directive. Later that day,
the chief mate joined the two other mates. By 6 October, the
master changed his mind, too, and refused to move from his
‘‘safe anchorage’’ to another anchorage in St. Thomas, as di-
rected by Mormac.29 Finally, on 8 October, the master suc-
cumbed to the conflicting pressures of Mormac and MM&P
and determined to proceed to San Juan, Puerto Rico, ‘‘to
have this labor dispute resolved.’’ On 9 October in San Juan,
the three mates refused to work, to sign off articles, and to
leave the vessel unless a court order was served or arrests
were made. Arrangements were made for the local police to
escort the mates off the vessel within a few hours. They
were replaced, as was the master, who ultimately asked to
be relieved. The vessel left port on 11 October. While the
vessel was docked, there were pickets on land and a picket
boat picketing the vessel.
In October, the Mormacstar was on charter to the MSC
in Diego Garcia, an island in the Indian Ocean about 1000
miles south of India. As a result of advice from the MSC
that the master of the vessel refused to engage in naval exer-
cises on a Tuesday in early October, Mormac telexed the
master asking that he reconsider his position and engage in
fleet exercises, barring which Mormac would take such ac-
tion as it deemed appropriate, including license revocation.
The master maintained his refusal; and on 10 October, Nich-
olas Telesmanic, Mormac’s director of labor relations, left
from New York with a new master and three mates, arriving
in Diego Garcia on 14 October. Telesmanic introduced the
new master, Captain Sensky, to the old one, Captain
Giachetti, to whom he said that the mates were to sign off
shipping articles. The mates said they wanted to sign off
under protest and before a United States consul. Before they
could be paid off, the replacement mates also indicated that
they would refuse to work. As a result, Telesmanic had to
arrange for a second crew of new mates. Giachetti left the
vessel on 15 October with the replacement mates. The origi-
nal mates refused to engage in fleet exercises on 15 and 16
October but were willing to stand security watch until their
replacements arrived, which they did on 20 October. On that
day, the old mates were paid off before the Navy com-
modore, acting as a vice consul. During this period, the ves-
sel was taken off charter, because it was refusing to comply
with commodore’s instructions.
E. Picketing and Related Activities
In addition to the actions taken by the licensed deck offi-
cers aboard their vessels, pickets supported the job action on
land. Although no witness recalled precisely what was the
legend of the picket signs in various ports during the first
half of October, some remembered that the signs indicated
that it was the MM&P which was protesting and that in most
cases members of the MM&P, not strangers, were picketing.
In addition, other witnesses were able to recall that, of the
variety of signs, some protested ‘‘job action’’; others, ‘‘un-
fair labor practices’’ and ‘‘substandard wages and vaca-
tions.’’30
Lowen testified that about the end of the second week or
the beginning of the third week of October (shortly after the
first charge in this proceeding was filed), the job action
ended. He realized at that time that MM&P members who
had complied with his 3 October directive (about 65–70 per-
cent) had been terminated and that too many other MM&P
members were not honoring his directive and had agreed to
the Companies’ new packages and remained on their jobs.
There was thus nothing that could be accomplished by the
job action which was then disbanded, and MM&P attorneys
were instructed to prepare language to protest the Compa-
nies’ ‘‘substandard’’ wages and other working conditions. By
that time Lowen had received and analyzed all of the Com-
panies’ new packages, and he testified that he directed that
all of the ports be informed of the language to be used on
MM&P’s picket signs from that time forward.
I have difficulty finding that such an instruction was
issued. MM&P Representative Haa testified that the language
of the sign, prepared by Burton Epstein, international coun-
sel, was posted in the communications room and that, when
persons called from the ports and asked what the signs
should state, the language was read to them. I find it prob-
able that that is what happened, especially because the signs
used were not uniform. Whether others were told the same
thing as Haa is another question. MM&P Representative
Landry did not know what should be placed on the sign and
told the Boston strike committee to ask counsel in Boston
what to put on the sign. It is strange that no one consulted
with international counsel about the matter. All the cir-
cumstances lead to the conclusion that Lowen made a deci-
sion not to have uniform picketing, because telexes were sent
asking all ports to report on the type of picketing which was
being conducted by the ports and by individuals and pen-
sioners. I thus find that MM&P encouraged other kinds of
picketing, while now attempting to disavow the consequences
of that picketing.
The sign used by MM&P to protest substandard conditions
took several forms. They contained a space for the insertion
of vessel’s name and some read as follows:
WE PROTEST THE SUBSTANDARD WAGES, VACATION &
WORKING CONDITIONS BEING PAID THE LICENSED DECK
OFFICERS ON THIS VESSEL BY THIS COMPANY. WE HAVE
NO DISPUTE WITH ANY OTHER VESSEL OR ANYONE ELSE
AT THIS SITE. MM&P/ILA AFL/CIO.
(I refer to this sign as the ‘‘substandard sign.’’) Other
signs referred solely to the wages, vacations, or working con-
ditions being paid by the company, without reference to the
conditions on the vessel; and still others referred solely to the
wages, vacations, and working conditions being paid on the
particular vessel. A form of the substandard sign was used
at many locations during the period from about mid-October
through 15 January 1985, when MM&P’s picketing was en-
545MASTERS, MATES & PILOTS (MARINE TRANSPORT)
31 On 15 January 1985, a 10(j) injunction was entered on consent in the
United States District Court for the District of Maryland enjoining MM&P
from engaging in the conduct alleged herein as violative of Sec. 8(b)(1)(B).
Earlier, on December 19, MM&P agreed to cease all picketing directed against
MTL.
32 Martin testified that the committees were authorized to instruct members
to observe the job action.
33 At no time was any request made of the senders of the documents to re-
imburse MM&P because the transmissions were unauthorized.
34 In addition to the fact that the strike committee co-chairman participated
in this picketing, I note that MM&P had requested on 14 October daily infor-
mation on any ‘‘job actions’’ taken against the Companies’ tankers and such
information ‘‘should include informational picket lines, pensioner actions or
informational demonstrations and individual information picketing.’’ Clearly,
MM&P anticipated that there would be various kinds of protests; and there
is an implication that it encouraged the very type of picketing, the con-
sequences of which it now seeks to avoid.
35 G.C. Exh. 90, testimony taken in the 10(j) proceeding, persuades me that,
when MTL’s new terms and conditions were being presented to the licensed
deck officers of the Marine Duval, MM&P’s attorney and Purdy, who was in-
troduced as an MM&P representative, were present to explain MM&P’s posi-
tion. I find that Purdy was such a representative and discredit any testimony
to the contrary.
36 A picket boat bearing the same signs was also present during the entire
period.
joined by court order.31 However, the sign was not consist-
ently used, and it was used in connection with other activity
which is claimed to be illegal under the Act. What follows
is the evidence of the picketing. MM&P contends that, other
than picketing with the substandard signs, the picketing was
not authorized by it, but I conclude otherwise, particularly
because the evidence demonstrates that the signs were paid
for by MM&P, were prepared at the MM&P halls by MM&P
members, ofttimes supervised by an MM&P representative,
and authorized by one of MM&P’s strike committees, as ap-
pears to be the case in most instances.
These strike committees were constitutionally authorized
and were organized in or about June in anticipation that the
dry cargo negotiations, which paralleled the tanker negotia-
tions, would not be successful. (Lowen termed these ‘‘job ac-
tion committees’’; Martin said they were called ‘‘strike com-
mittees’’ for want of a better name.) When the dry cargo ne-
gotiations were successful and the agreed-upon contract was
put to a vote of the MM&P membership, the strike commit-
tees were deactivated; but they were activated again on 3 Oc-
tober. Under MM&P’s offshore work rules, which is a part
of MM&P’s constitution, the committees’ duties were ‘‘to
establish picket lines and otherwise make the strike complete
and effective.’’ Accordingly, the committees coordinated all
of the job actions on the vessels and supervised the pick-
eting, including preparing lists of persons to picket and times
of picketing, establishing (pursuant to the international’s de-
cision) the number of times that members had to picket in
order to qualify for the right to ship through MM&P’s hiring
hall, and keeping records of who picketed; they prepared
picket signs; they sent messages to licensed deck officers, in-
structing them to observe the work stoppage32 and fining
them and threatening them with fines and removal of their
right to ship through the MM&P hiring hall; their picket line
expenses for coffee and gasoline were paid for out of the
port’s petty cash fund; their mailgrams, telexes, and tele-
phone calls were made on MM&P’s equipment and paid for
by the international;33 they incurred expenses and were reim-
bursed by the international for the hiring of picket boats. If
anyone knew the purposes of MM&P’s job action and pick-
eting, surely MM&P’s representatives and strike committee
chairmen did. Various statements and printed picket signs,
even if sometimes not arguably reflective of the inter-
national’s wishes, are attributable to MM&P, and no others.
MM&P’s representatives and strike committee chairmen
acted for MM&P, and no one other. I conclude that the com-
mittees were actually empowered to represent MM&P in the
general area in which they acted and that MM&P is respon-
sible for the committees’ acts and statements. Bio-Medical
Applications, 269 NLRB 827 (1984); Longshoremen ILWU
Local 6 (Sunset Line), 79 NLRB 1487 (1948). To the extent
that MM&P did not disavow or correct the various state-
ments, of which it had knowledge, see, for example, Broad-
way Hospital, 244 NLRB 341, 349 (1979); Meat & Allied
Food Workers Local 248 (Milwaukee Meat), 222 NLRB
1023 (1976), enfd. 571 F.2d 587 (7th Cir. 1978).
1. MTL
The Marine Duval on 16 October was in Tampa, Florida,
where it was discharging molten sulfur. It was picketed by
a picket boat with about 5–6 signs as well as 5–6 persons
with picket signs (and another 10 persons, including John
Hunt, co-chairman of the Tampa strike committee) at the en-
trance to the terminal. The signs read:
S/S MARINE
DUVAL
UNFAIR TO M.M.& P.
PENSIONER DEPENDENTS
& SURVIVORS
PROTEST ACTION BY
MARINE
TRANSPORT
LINES
THREATENING LOSS OF
OUR HEALTH & PENSION
BENEFITS34
At the entrance on 16 October, Purdy, a Tampa strike
committee co-chairman and an MM&P representative,35 told
an MTL representative (whom he did not know to be such)
that MTL was being unfair to the MM&P, to the pensioners,
to the men on board the vessels, and to both survivors and
dependents who were relying on the pensions. The pickets
(but less in number) and the picket boat remained on 17 Oc-
tober. The pickets with signs reading the same as above were
also there on 22–23 October, and the picket boat was at the
vessel on 23 October.
MM&P also picketed the following MTL vessels with the
substandard sign protesting the wages, vacations, and work-
ing conditions paid by MTL, as follows: 18 October, Sealift
China Sea, New Orleans, Louisiana; 19–22 October, Marine
Chemist, Jacksonville, Florida;36 26–29 October, Chemical
Pioneer, Tampa, Florida; and 27 October, Marine Duval,
Tampa, Florida. In addition, pickets with the substandard
sign complaining of the wages, vacations, and other benefits
paid on the vessel by MTL and a picket boat picketed the
Marine Chemist on 16–20 November in Long Beach, Rich-
mond, and Pittsburgh, California.
546 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
37 The Energy Independence, a coal carrier, was under contract to New Eng-
land Power Company (NEPCO) and delivered coal to Salem and Brayton
Point, Massachusetts, and picked up coal from Norfolk, Virginia; Baltimore,
Maryland; and Philadelphia, Pennsylvania. On an average in October and No-
vember, the vessel would make a delivery twice a week. The vessel’s crew
operates on rotation—one crew works for 45 days while the other crew is on
vacation for that period, and then they switch.
38 There appears no record support for this statement.
2. Keystone
During early October, up to 20 persons, including mem-
bers of the relief crew37 and two mates who had left the ves-
sel, gathered around the Keystone gates to the Energy Inde-
pendence on various dates and in various locations. On 10
or 11 October individuals distributed handbills at Brayton
Point and distributed handbills on numerous other occasions
during the remainder of October. The first two distributed
earlier in October were in handwriting. One, directed to
members of the MMU and MEBA, and signed by the
MM&P strike committee, complained that MM&P’s contract
had been terminated by Keystone, which had fired its union
licensed deck officers and hired scabs and finks to work in
their place; and, if this is allowed to go unchallenged, ‘‘your
wages & benefits will be cut too.’’ The second, signed by
‘‘Rank & File Members MM&P,’’ complained of a lockout
by Keystone and other companies involved herein as an ‘‘ar-
rogant attempt . . . to unilaterally roll back the hard earned
gains MM&P has earned over the years’’ and stated that
members of the United States maritime unions are disturbed
that the Companies’ action signaled similar action against the
unlicensed seamen. It ended:
This is why MM&P has been forced to take this job
action. We must protect our contracts, restore our job
rights and preserve our benefit plans upon which our
pensioners depend for their future well-being.
Toward the end of October, the rank-and-file members dis-
tributed another flyer, this time two typed pages, consisting
of an urgent plea to the other waterfront unions to help stop
the Companies’ union busting conduct. Another one was dis-
tributed by the rank-and-file members of Wilmington, Cali-
fornia. This complained that many shipping companies pre-
viously contracted to MM&P ‘‘are now offering wages dras-
tically below Union scale as well as cuts in vacation of more
than half.’’ The earlier flyer alleged that the Companies ‘‘are
paying the crews remaining on board much more money than
they offered us. So they will remain on board for now.’’38
The second handbill appealed for help from the other mari-
time unions and pilot membership groups.
Picketing of the Energy Independence did not commence
until 27 October at Brayton Point. The signs read:
PROTEST
NEPCO
AND
KEYSTONE
UNFAIR
TO LICENSED DECK OFFICERS
OF S/S ENGERGY INDEPENDENCE
SUBSTANDARD WAGES
AND
BENEFITS
A second sign was almost identical, but the last two lines
were replaced by the legend ‘‘EXPERIENCED UNION OFFICERS
FIRED & REPLACED BY INEXPERIENCED MATES.’’ On the same
day, the pickets distributed to the union members aboard the
various ships a telex from the AFL–CIO which offered ‘‘all
possible assistance to your picket lines and strike demonstra-
tions [sic] [to protest the tanker companies’] flagrant attempt
to bust your union and destroy the conditions of employment
of licensed deck officers which have been built up over the
past fifty years.’’
On 1 November, a four- or five-man MM&P picket line,
which included crewmembers of the Energy Independence,
was posted at various sites at the Salem facility. The signs
protested, among other things, that MM&P had been locked
out by the unfair labor practice of Keystone and NEPCO and
that MM&P protested Keystone’s lockout of union mates and
deck officers and replacement of them by inexperienced non-
union mates. The Energy Independence was also picketed by
a picket boat staffed by ex-Energy Independence officers,
first in Salem on 5 November and again on 8 November.
The boat then had on it professionally printed signs which
one witness recalled as stating that MM&P protested Key-
stone and New England Power as unfair. I find that these are
the same as signs ordered and paid for by the Boston strike
committee. Introduced in evidence were bills for printed pro-
test signs on which MM&P protested Keystone’s and
Nepco’s ‘‘Unfair Labor Practices and Lockout’’ and pro-
tested the ‘‘Substandard Wages, Benefits, and Working Con-
ditions’’ being paid the officers of the vessel. These same
printed signs were also used on 17 November at Brayton
Point. Picketing of the vessel also took place in Norfolk on
5–6, 10–11, and 14–15 November. The record does not indi-
cate what sign was used, but the local strike committee there
explained that MM&P was trying to break Keystone’s lock-
out.
Picket boats were active. Captain Miller testified that in
mid-October, when the Chilbar was in Baltimore, a 34-foot
white sport fisherman, with a placard on the side of the boat
‘‘MMP PROTESTING’’ came along the side of the Chilbar as
it was docking, and from the boat Miller heard: ‘‘Miller,
we’ll be on the dock. And Miller, we will get you.’’ Picket
boats picketed the Golden Gate first in mid-October and up
to early December, in Anacortes and Tacoma, Washington,
and Portland, Oregon. Persons on the boats carried the sub-
standard sign. In Portland, particularly, persons on the boat
attempted to persuade tugboat pilots not to aid the Golden
547MASTERS, MATES & PILOTS (MARINE TRANSPORT)
39 The events involving the George Meany and the Puerto Rican on 25–29
October are also alleged to have violated Sec. 8(b)(1)(A) of the Act.
40 Also seen on the George Meany on one occasion was MM&P Vice Presi-
dent York and Representative Wilson.
41 That day, Lloyd Martin, MM&P’s secretary-treasurer, and Don Fuller Sr.
came to the slip where the Puerto Rican was docked and had their picture
taken on the picket boat with the other pickets.
Gate. Similarly, on 8 November, MM&P Representative
Landry successfully persuaded the captains of two tugboats
not to service the Energy Independence.
On October 19, MM&P pickets, including an alternate to
MM&P’s strike committee, near the Chilbar in Baltimore,
Maryland, did not carry signs containing the area standards
language. Rather, all were headed by MM&P’s profes-
sionally printed name and affiliation and complained: ‘‘JOBS!
JOBS!!! JOBS!!!! STOP UNION BUSTING’’ and ‘‘PROTESTING!!!
SCAB FINK MATES ON THIS VESSEL’’ and ‘‘ARE YOU NEXT?
NMU??? MEBA??? UNION BUSTING!!! SUPPORT US!!!’’ and ‘‘55
CHILBAR USES SCAB & FINK DECK OFFICERS.’’ Miller saw
pickets in Baltimore in mid-November carrying signs with
MM&P’s name on top and using the words ‘‘fink’’ and
‘‘scab.’’ One sign, introduced in evidence, stated:
‘‘PROTESTING!!! SCAB LABOR & FINK LABOR.’’
On 23–24 October, at the Union Oil facility in San Pedro,
California, two to five persons picketed the Petersburg with
signs that said: ‘‘WE MASTER, MM&P MEMBERS SUPPORT THE
ACTION OF OUR UNION MEMBERS WHO REFUSE TO VIOLATE
UNION PRINCIPLES AND WERE FIRED FROM THEIR JOBS.’’ and
‘‘WE FELLOW MEMBERS OF THE MASTER[S], MATES AND PI-
LOTS SUPPORT THE ACTION OF OUR UNION MEMBERS IN RE-
FUSING TO VIOLATE PRINCIPLES OF UNIONISM OF AMERICA.’’
The MM&P pickets of the Puerto Rican on 22–24 October
in Wilmington, California, and the Keystoner in Long Beach
and Wilmington had the same or similar signs.
On Thursday, October 25, the pleasure craft George
Meany, hired and paid for by MM&P, with pickets paid for
by MM&P, carrying MM&P’s substandard sign and sound-
ing a siren and airhorn and with its crew shouting, followed
the Puerto Rican for 2 hours as it headed for Alameda, Cali-
fornia.39 When it arrived about 12:15 or 12:20 p.m., at the
Encinal terminal, a container facility, the crew of the picket
boat had already embarked and two of them, including Scott
Fuller (Fuller), owner of the boat and son of MM&P Assist-
ant Port Agent Don Fuller Sr. in order to prevent the vessel
from docking, removed the Puerto Rican’s spring lines
which had been secured on the dock.40
Later, about 1:30 p.m., when the ship attempted to tie up,
members of the picket boat’s crew stated that they were not
going to let the ship tie up, that the ship was a ‘‘scab ship,’’
and the ship’s officers were ‘‘all scabs,’’ and that the NMU
would be the next to go. The Puerto Rican started to pull
out of its slip, but a lawyer for Keystone yelled to bring the
ship back. An officer went back down to the pier with some
unlicensed crewmembers and one of the picket boat’s crew-
members said ‘‘[I]f you all tie up this ship we’re going to
close this terminal down.’’ Although the vessel’s crew tied
down most of the lines, the captain changed his mind and
ordered the lines to be let go. Two of the pickets threatened
the second mate, Charles Ebersole ‘‘[W]hen you get off that
ship you’ll never work again.’’ Still later, they said,
‘‘[Y]ou’ll never work again when you get off that ship and
we’ll see to that.’’ And later Fuller added: ‘‘[I]f you tie up
this ship we’re going to shut down this ship and we’re going
to burn this ship across the way’’ and, in answer to the chief
mate, ‘‘You’ll be dead tomorrow. We’ll get you. We’ll fuck
you in the ass.’’ These comments were made in the presence
of unlicensed seamen.
The Puerto Rican never docked that day. On Friday after-
noon, it made another attempt to dock, although the George
Meany had stayed with the Puerto Rican all day. During the
docking procedure, the George Meany positioned itself under
one of the lines and between the vessel and dock and was
cautioned to get out of the way. Fuller made a gun with his
hand, and, pointing at Ebersole, mouthed, ‘‘I’m going to get
you,’’ in the presence of unlicensed seamen. That evening
Fuller threatened an able-bodied seaman: ‘‘We’re going to
get you. We are going to get your kids too. We have got
your number . . . [i]f you come on the dock, you better
carry a gun.’’
The following day, 27 October,41 the picket boat stayed
near the Puerto Rican, patrolling up and down from the stern
to midships and, several times, proceeding at a high rate of
speed as though it would ram the vessel, only to throw the
engine in reverse just before hitting the vessel—again, in the
presence of licensed and unlicensed personnel. Later, in the
early afternoon, while Ebersole was standing watch on the
bridge, Fuller pointed a finger at him, saying, ‘‘[Y]ou, we’re
going to get you. You’re not safe anywhere. We’ve got long-
shoremen on both coasts. We’re going to get you Gambino
style, if you know what I mean.’’ Still later, he said, ‘‘I’m
going to make sure this ship doesn’t leave here. I’m going
to go get some scuba gear and come back here after it gets
dark and make sure of that.’’
On October 28, while the Puerto Rican was at the Paktank
facility in Richmond, California, Fuller asked Bob Jobe,
Paktank terminal manager, why they did not give the jobs
back to those whom they belonged. Fuller then threatened
that if the vessel was still at the terminal the following day,
there would be a picket line up. On October 29, after the
Puerto Rican had discharged its cargo, the vessel sailed for
the Union 76 dock in Richmond. For most of the voyage, it
was followed or preceded and often impeded by the George
Meany, which frequently positioned itself between the tug
and the Puerto Rican, which the tug was attempting to assist.
When the vessel finally got to the dock, one of the pickets
yelled to the dockworkers that: ‘‘[W]e’ve got a picket line
up here. You shouldn’t be working. If you guys continue to
work we’ll have 150 longshore pickets outside your plant.’’
While the Puerto Rican was tying up at the dock, Fuller was
also tying up the George Meany. Keystone Attorney Pantoni
was there; and Fuller twice made as if he were shooting the
lawyer, as did another of the Meany’s crewmen. At 2 p.m.,
that crewman said to Ebersole: ‘‘[Y]ou, we got your number.
We’re going to get you.’’
The George Meany’s picketing was not limited to the
Puerto Rican. In late November, the George Meany circled
the Golden Gate for 3 days as it was berthed at the Amoco
dock in San Francisco Bay. On November 30, the George
Meany was tied to a navigational buoy approximately 100 or
150 yards off the Golden Gate, then berthed at the Land Sea
terminal in Martinez, California. There was also picketing on
land in Martinez, the pickets carrying not only the sub-
standard sign but also one that stated:
548 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
42 The Puerto Rican sank on November 2.
43 McKeever testified that this word was ‘‘Loyal,’’ but my reading of the
exhibit indicates otherwise.
44 The picketing was authorized by the MM&P representative in Houston.
The ‘‘strike chairman’’ referred to the picketing as ‘‘informational picket
lines.’’
45 The conduct involving the George Meany and the Juneau on 19–21 Octo-
ber is also alleged to have violated Sec. 8(b)(1)(A) of the Act.
46 Satava took pictures of the George Meany, which he testified carried
signs reading: ‘‘Masters, Mates & Pilots, Locked Out in Violation of Con-
tract.’’ Expenses for picketing the Juneau on 19–24 October were paid for by
MM&P.
TO OUR BROTHERS
IN M.E.B.A
DO NOT LET YOUR LEADERS
MAKE FINKS AND SCABS OF YOU
WHY ARE YOU HELPING TO
DESTORY M.M.&P. AND
SIMULTANEOUSLY VIOLATE
THE JURISDICTION OF THE
I.L.W.U.???
WHEN YOUR TURN COMES, WHO WILL BE
THERE TO HELP YOU???
SIGNED YOUR FORMER SHIPMATES
M.M.&P.
Finally, almost daily from early November until early Jan-
uary, pickets (some wearing jackets and caps with the em-
blem of the MM&P school on them) appeared before Key-
stone’s main office in Philadelphia. These pickets, who were
assigned to picket duty by both the Philadelphia and Balti-
more strike committees, carried handprinted signs which
read:
KEYSTONE SHIPPING
AND KURZ ‘‘FAMILY’’
PINK SLIPS HAVE SINK
SHIPS (SS PUERTO
RICAN)42 PUT
COMPETENT DECK
OFFICERS BACK ON
YOUR VESSELS
CHAS KURZ & ADOLPH KURZ
LOCKED OUT THEIR LOYAL
EMPLOYEES OF MANY YEARS.
WHY HAVE YOU ABANDONED
YOUR LOYAL AND FAITHFUL
DECK OFFICERS.
KEYSTONE SHIPPING
CHARLES KURZ I AND
ADOLPH KURZ HAVE
LOCKED OUT THEIR
DECK43 OFFICERS
BECAUSE OF UNION
AFFILIATION
ADOLPH & CHAZ. KURZ
(KEYSTONE SHIPPING) ONE
MAN IS DEAD (S.S. PUERTO
RICAN) HOW MANY MORE
WILL DIE? PUT YOUR LOYAL,
COMPETENT DECK OFFICERS
BACK ON YOUR SHIPS.
CHAZ KURZ I
(KEYSTONE SHIPPING)
ADOLPH KURZ HOW
MANY MORE MUST DIE?
PUT COMPETENT, LOYAL
EMPLOYEE’S [SIC] BACK
ON YOUR SHIPS
(OFFICERS OF THE SS
PUERTO RICAN)
UNION DECK OFFICERS HAVE
BEEN LOCKED OUT BECAUSE
OF UNION AFFILIATION STOP
UNION BUSTING BY ADOLPH &
CHARLES KURZ
CHARLES KURZ &
ADOLPH KURZ LOCKED
OUT THEIR LOYAL
EMPLOYEES OF MANY
YEARS. WHY HAVE YOU
ABANDONED YOUR
LOYAL LONGSTANDING
FAITHFUL DECK
OFFICERS IOMM&P AFL–
CIO
KEYSTONE SHIPPING WHY ARE
YOU INVOLVED IN UNION
BUSTING (MASTER, MATERS &
PILOTS)
3. MOC
On 10 October, the Overseas Chicago was picketed in
Texas City, Texas, with signs protesting that the MM&P was
‘‘locked out’’ of MOC. On 15 October, the Overseas Wash-
ington was picketed in Texas City, Texas, with signs pro-
testing that MM&P officers had been ‘‘locked out in viola-
tion of contract.’’ At another dock in Texas City, the Over-
seas New York was picketed with the same professionally
prepared signs.44
From 17 to 23 October, the Overseas Juneau was engaged
in lightering in San Francisco Bay. On 19 October, the
George Meany remained around the vessel for over an
hour.45 The following day, the Juneau was being piloted to
Venicia and was to be aided by three tugboats. Someone
from the George Meany identified himself on the pilot’s
radio and said: ‘‘Do not dock the ship, the ship is hot.’’ The
pilot replied that he had passed a certain point and was com-
mitted to navigate the Carquinez Straights and required tug
assistance. The tugs replied that they would not handle the
vessel. MOC Port Captain Richard Satava then announced
that ‘‘they’’ were endangering the safe navigation of the ves-
sel, which needed the assistance of the tugs. The reply was:
‘‘Be advised that this a picket. The Juneau is hot.’’ It was
also announced that the persons were acting under the in-
structions of Don Fuller of the MM&P and that the vessel
should proceed to ‘‘Anchorage 25.’’ Satava, having been ad-
vised that Anchorage 25 was too small for a vessel of the
size of the Juneau, especially without tug assistance, told the
picket boat: ‘‘I do not know who Don Fuller is, but I do
know that Captain Lowen, President of the IOMMP has
given instructions to MMP members not to endanger the safe
navigation of the vessels. At this time you are doing so.’’ Fi-
nally, the tugs gave their assurance to divert the vessel to an-
other anchorage which was not its original destination, and
Satava proceeded to make other arrangements for the Juneau
to be taken to its original destination.46 At some point while
the Juneau was at the anchorage, it had to be moved so that
another vessel coming down the channel could safely pass.
Tugs came to the Juneau’s assistance, but the George Meany
remained alongside one of the tugs while it was pushing the
Juneau, so as to limit the tug’s maneuverability.
Finally, the Juneau’s charterer determined that instead of
sending the vessel to its original destination, it would return
to another anchorage and finish its operation by lightering.
The next day, 21 October, arrangements had been made to
fuel and bunker the Juneau at its anchorage by barge. The
George Meany cruised near the barge, its crew calling people
‘‘finks’’ and ‘‘scabs’’ and one saying: ‘‘You’re not even
going to have a job in another week. Why are you doing
this? None of you are qualified to pump that barge.’’ Satava
called for the Coast Guard to prevent this harassment, and
that was temporarily successful; but the George Meany came
back to the bunkering barge, its crew yelling, making ob-
549MASTERS, MATES & PILOTS (MARINE TRANSPORT)
47 MOC’s port captain asked the pickets what they were doing there: ‘‘one
replied,’’ these guys took our jobs.
48 Added to this mimeographed sheet, in handwriting, was: ‘‘Do You Still
Believe That Jessie Calhoon [MEBA president] is Acting in your best inter-
ests?’’
49 Although unidentified, this same picket picketed the Overseas Washington
in Baton Rouge, Louisiana, in the first few days of January 1985.
50 Such a form letter was sent to one MM&P member for whom no record
of a charge could be found. It is a good question whether, in certain instances,
charges had been filed before certain resignations were rejected. For example,
Continued
scene gestures, and shaking their fists. The pickets convinced
an engineman to leave the barge and his employment. The
Juneau’s return to Valdez was delayed 2 days.
On 22 October, in Port Arthur, Texas, the Overseas Alaska
was picketed with the same signs complaining of a lockout
as those carried against the Overseas Washington and New
York, except that these signs were printed by hand, whereas
the earlier signs had been typeset. On 24 October, signs com-
plaining of a lockout were carried by pickets at the Overseas
Ohio on the Sabine River between Port Arthur and Beau-
mont, Texas. On 25 October, similar signs were used in
Texas City where the Overseas Chicago was berthed; on No-
vember 5 and 6, similar signs were used in Texas City where
the Overseas Ohio was docked;47 on 7–8 November, in Free-
port, Texas, three persons picketed the Overseas Arctic with
signs protesting a lockout; and on 13 November, at Texas
City, the same kind of sign was used when the Overseas
New York was berthed there. On 13 November in Texas City,
Texas, where the Overseas New York was berthed, the
MM&P pickets handed out leaflets aimed at members of
other unions and implying that the replacement of MM&P
officers with ‘‘nonunion scabs at roughly half-pay and bene-
fits’’ was being condoned ‘‘by your own union,’’ that such
‘‘brazen anti-union activity’’ must have been preceded by
much ‘‘advance planning and promises,’’ and that the other
union members might also be replaced.48
On 31 October, two C&O tugboats and later two
McAllister tugboats refused to assist Overseas Harriette,
honoring the picket line set up by two picket boats which
carried MM&P’s substandard sign. The pickets yelled:
‘‘Don’t help the scab outfit with the ship.’’ Later, the pickets
yelled to the Harriette’s crewmembers that the SIU was
going to be next. Pickets were also stationed at the entrances
to the C&O terminal. The next day, one of those pickets was
asked what the dispute was about. The reply was that ‘‘this
company was not honoring their contract. They’re hiring
scabs and we’re tying up their ships all across the nation.’’49
On 3 December, MOC’s corporate headquarters in New
York, New York, was picketed by MM&P. Ed Gras, MM&P
New York port agent, stated to a security officer for a bank
in the same building that ‘‘he was here to picket not the
bank but to sway the people in the building so that we can
get our jobs, get some jobs back.’’
In addition, MM&P picketed the following vessels of
Overseas on the dates and at the ports listed below, using
signs that protested substandard wages and vacations being
paid by MOC:
11/13 Overseas Chicago Empire, Louisiana
11/13 Overseas New York Texas City, Texas
11/18 Overseas Alaska Baton Rouge, Louisiana
11/28 Overseas Alaska Empire, Louisiana
12/1 Overseas Artic Baton Rouge, Louisiana
MOC also picketed the following vessels with signs which
complained of substandard working conditions or benefits
paid on the particular vessel:
10/31–
11/13
Overseas Washington Baton Rouge, Louisiana
11/28 Overseas Harriette Philadelphia, Pennsylvania
11/30 Overseas Artic Alliance, Louisiana
Finally, MM&P picketed the following vessels on the fol-
lowing dates with signs protesting substandard wages, vaca-
tions, benefits and/or working conditions paid by MOC:
10/31–11/1 Overseas Harriette Newport News, Virginia
1/14 Overseas Alaska Mereaus, Louisiana
11/21 Overseas Ohio Texas City, Texas
11/21 Overseas Arctic Empire, Louisiana
11/24 Overseas New York Corpus Christi, Texas
11/30 Overseas Arctic Alliance, Louisiana
2/13 Overseas Ohio Baton Rouge, Louisiana
2/14 Overseas Natalie Alliance, Louisiana
12/7 Overseas Chicago Texas City, Texas
12/9 Overseas Alaska Mereaux, Louisiana
12/10 Overseas New York Empire, Louisiana
12/16 Overseas Arctic St. Rose, Louisiana
11/28 Overseas Harriette Newport News, Virginia
1/3 Overseas Washington Baton Rouge, Louisiana
11/3 Overseas Arctic Alliance, Louisiana
F. MM&P’s Charges and Fines for Failure to Comply
with Lowen’s Job Action Directive
Under the MM&P’s constitution and by practice, if a
member wants to file a charge against another member, he
files his charge with the office of the secretary-treasurer.
Martin testified that he does not review the merits of the
charge because he would be a part of the appellate body that
would rule on any appeal. That is a rather strange practice
in light of MM&P’s offshore work rules which provide that
if the general executive board believes that the charges have
no merit, the charges shall be dismissed forthwith. In any
event, Martin testified that his secretary sends the charge to
the charged member by registered mail at the member’s last
port of registration (or if there is no record of his previous
registration, the port closest to his home address) and in-
structs that port to elect a trial committee at its next member-
ship meeting. The trial committee then holds a formal hear-
ing and issues a written decision, which is sent to the sec-
retary-treasurer. If there is an appeal, the order of appeal is
by the international subcommittee, then the general executive
board, and then the MM&P’s convention, which is held
every 2 years. If members sought to resign their member-
ship—and there were many such members—and if there
were charges pending, Martin had a form letter that advised
the members that acceptance of their resignations would be
inappropriate because charges were pending.50 All the
550 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Johnston resigned from MM&P by telex dated 16 October, but Martin in a
letter dated 18 October refused to accept the resignation because charges were
pending against him. Yet, the charges against Johnston were first served on
him with a letter from Martin, dated November 7.
51 See for example Jt. Exh. 51, a telex dated 10 October, to MTL master
Gerald Johnson stating that, because he refused to honor the directive, ‘‘Strike
committee has been advised to commence trial procedures. . . . See also Jt.
Exhs. 56, 57, 71, and 73.
52 Another set of instructions, with the draft language slightly amended,
issued on 20 November, long after the job action allegedly had ended and the
area standards picketing allegedly had commenced.
53 The provision of the MM&P constitution which allows for a fine of $500
is captioned, ‘‘Failure to Stand Picket Duty’’ and states:
All members shall be required to do picket duty, subject to reasonable
rules uniformly enforced.
A member who fails to perform such picket duty shall be subject to
a fine or removal from any or all employment lists and/or removal from
membership.
The amount of such fine or the period of such removals shall be deter-
mined by the Trial Committee.
Pending trial, the applicable Strike Committee shall have the authority
to remove such a member from the various Shipping Lists and/or to levy
a fine not to exceed five hundred ($500.00) dollars.
54 The charges alleged that the member failed to support and comply with
an officially ordered ‘‘job action sit down strike’’ by MM&P in a bona fide
dispute with the employer, violated the duties and responsibilities of members
to MM&P, and failed to uphold and abide by his obligation of loyalty to his
fellow members and to MM&P, thereby jeopardizing the hard won wages and
benefits of all members and pensioners.
55 This also refers to Craft, Lapalme, and Carroll, discussed below.
56 The daily fine was not specified, but was twice Craft’s daily pay.
charges were still pending at the time of the hearing, and the
internal union proceedings were stayed as a result of the
10(j) injunction proceeding. I find, therefore, that the resigna-
tions have still not been accepted.
Various telexes reveal that MM&P was more than casually
interested in which of its members were violating Lowen’s
3 October directive, as demonstrated by the directive itself,
which asked that the names of all officers who failed to com-
ply with the directive be reported to international head-
quarters. Other telexes asked for the same information; others
asked for the names of replacement officers; others threat-
ened the imposition of fines; and still others instigated the
commencement of internal union proceedings.51 On 13 Octo-
ber, Martin forwarded to all strike committees and port rep-
resentatives detailed instructions about the filing of charges,
including a sample form of a charge;52 and Martin noted:
The strike committee may fine a member found in vio-
lation of current tanker job action up to a maximum of
five hundred dollars and recommend repeat recommend
that charges be filed against the member providing for
a further fine or penalty if found guilty of such
charges.53
On 14 October, MM&P requested all its offshore ports to
supply daily information about various aspects of the job ac-
tion and advised that: ‘‘Strike committees should be taking
appropriate steps to file charges against members or appli-
cants who have finked on their brother union members.’’
Charges patterned after Martin’s sample54 were filed against
the following employees of MTL: Fernando Alonso, master;
Gerald P. Carroll, master; Matthew E. Fisk, second mate;
Harlan E. Jackson, master; Gerald L. Johnson, master; Ste-
phen G. McDonald, third mate; Julius L. Perkins, master;
Louis E. Schwager, chief mate; Ronald C. Young, master;
against the following employees of Keystone: Russell P.
Aims, master; John A. Albrecht, second mate; James
Blattner, second mate; Albert E. Hoyle, master; Thomas
Malanchuk, master; Jeffrey Miller, master; James C.
Spillane, master; Constantinos Vafiades, second mate;
Kazimierz A. Wodka, master; Neal R. Wood, chief mate;
William J. Murphy, master; Hamilton G. Thomas, port cap-
tain; against the following employees of MOC: Vernon D.
Adkison, second mate; William A. Gillespie, chief mate;
Clifford E. Hoglund, master; James Holt, chief mate; Albert
Lapalme, master; Arthur G. Laquiere, master; Edward P.
Reichhelm, chief mate; Hubertus Von Rettberg, master; Fred-
erick S. Wanamaker, master; Edward Welch, chief mate;
Richard Satava, port captain; and against Lars W. Lund, a
master employed by Mormac.
Fines were levied against both active licensed deck offi-
cers and management personnel of MOC and Keystone. It
may be helpful to highlight the conduct of one Captain John
Hunt, the chairman of the trial committee in Tampa, Florida.
It may be that Hunt may charitably be characterized as over-
zealous; at the same time, MM&P not only did not rep-
rimand him for his actions but also aided his pursuit of the
those who violated the 3 October directive. For example,
MOC Vice President of Operations Robert Johnston received
a telex from Hunt, dated 12 October, advising that at 1500
hours on that day the Tampa trial committee found that he
violated MM&P’s constitution by refusing to honor Lowen’s
directive and fined him $1500, plus a daily fine of twice his
daily pay, $600, for each day he continued in ‘‘non-compli-
ance.’’ Another telex was sent to Johnston on the same
day—a corrected copy—in which the $1500 fine was re-
duced to $500 and the title of trial committee was changed
to strike committee. No explanation for these amendments
was offered by MM&P, but counsel for the General Counsel
offered a Martin notification dated 13 October to Howard
Hull, an MM&P representative but designated as ‘‘represent-
ative Tampa strike committee,’’ in which Martin stated that
the 12 October telex about Johnston55 contains a ‘‘very seri-
ous error,’’ that the reference to ‘‘trial’’ committee should be
changed to ‘‘strike,’’ and that a copy of the corrected telex
should be sent to MM&P for verification. I conclude that, al-
though the dates do not agree, the second 12 October telex
was transmitted as a result of the Martin instructions of 13
October. According to the record, the fines have never been
rescinded. However, later, on 7 November, Martin forwarded
a charge against Johnston alleging, among other things, that
he failed to register for picket duty by 12 October.
MOC Port Captain Jack Craft received the same kind of
telex, dated 12 October, and punishment56 from Hunt as
Johnston did in the second telex directed to him. On 15 Oc-
tober, the telex was corrected to read ‘‘strike’’ committee in-
stead of ‘‘trial’’ committee. On 10 November, Craft also re-
ceived a charge from Martin which had been filed by Hunt
under date of 12 October alleging that Craft had failed to fol-
low Lowen’s directive. By letter dated 23 October, Craft and
Johnston appealed and asked that the decisions of the trial
committee be immediately vacated and the charges against
them dismissed. Martin says that he never saw the commu-
nication. Whether he did or not, letters which Martin signed
were sent to both indicating that their letter had been referred
to the trial committee for its consideration and action. The
appeal was never considered.
551MASTERS, MATES & PILOTS (MARINE TRANSPORT)
57 The letter to Carroll containing the fine and signed by Hunt, as chairman
of the trial committee, has a handwritten note stating, ‘‘copy sent prior your
14 Oct telex.’’ I find that the reference to the telex was Martin’s new instruc-
tion that fines be issued only by the strike committee. Carroll was fined not
only by Hunt’s committee on 12 October but by the Nederland, Texas (port
of Port Arthur) committee on 10 October. See also G.C. Exh. 233, referring
to the fine issued to Albert F. Lapalme.
58 Fisk was also fined by MM&P’s trial committee in Nederland, Texas, on
10 October.
59 McDonald was also fined by MM&P’s trial committee in Nederland,
Texas, on 10 October.
60 G.C. Exh. 230 is a mailgram from Hunt fining Gregory L. Grosso in the
same manner as the other officers. There is no indication of his position or
employer.
61 The record indicates that Fernando Alonso, MTL master, filed on 2 No-
vember an appeal from a fine imposed by the Tampa trial committee, but there
were no documents produced to show the nature of the ‘‘disciplinary action,’’
if any.
62 G.C. Exh. 208 indicates that Nason was not an MM&P member, but only
an applicant for membership. Martin testified that MM&P had no jurisdiction
to fine a nonmember.
A fine similar to that against Craft was issued by Hunt’s
strike committee on 29 October against MOC Port Captain
William H. Adams. In addition, charges were filed against
MOC Port Captain Richard Satava on 15 October (‘‘failure
to follow [MM&P’s] stop work instructions’’), Keystone Port
Captain Hamilton G. Thomas on 12 October (‘‘failed to fol-
low [MM&P’s] stop work instructions [by asking] 2nd mate
Robert O. Reinhart if he was going to continue work with
Keystone as a nonunion man’’), and Mormac Personnel
Manager David Lentz (‘‘incited or influenced another mem-
ber . . . to disregard the shut down, stop work instruction of
[MM&P] and fink out aboard the SS Mormacsun setting a
disloyal example to other members aboard other vessels ap-
proaching port and jeopardizing the hard won wages and
benefits of all members and pensioners’’).
Ample evidence appears in the record that Johnston is a
grievance adjuster at MOC’s highest level and is a collective
bargainer, having negotiated agreements with all the unions
for the vessels’ personnel, except the radio officers; that
Craft, Adams, and Satava are actively engaged in grievance
adjustment; and that all are 8(b)(1)(B) representatives of
MOC. The General Counsel argues that I should infer, from
their titles and the responsibilities of persons holding similar
titles, that Thomas and Lentz are 8(b)(1)(B) representatives
of their employers. I will so find.
In addition to the foregoing, a greater number of fines and
charges concerned licensed deck officers. On 12 October,
Hunt’s Tampa trial committee, later strike committee, fined
Gerald Carroll, master of MTL’s Marine Duval, $500, plus
twice his daily pay, for refusing to honor Lowen’s direc-
tive.57 The strike committee also sent mailgrams containing
the same fines to the following employees: on 15 October,
Arthur G. Laquiere, MOC master; and Albert F. Lapalme,
MOC master; on 17 October, Matthew E. Fisk, MTL second
mate;58 Gerald L. Johnson, MTL master; Stephen G.
McDonald, MTL third mate;59 Clifford E. Hoglund, MOC
master; James Holt, MOC chief mate; Edward P. Reichhelm,
MOC chief mate; and Frederick 5. Wanamaker, MOC mas-
ter;60 on 29 October, Julius C. Perkins, MTL master; Vernon
D. Adkison, MOC second mate; and William A. Gillespie,
MOC chief mate; and on 31 October, Hubertus Von
Rettberg, MOC master.61
MM&P’s trial (not strike) committee in Nederland, Texas,
was not inactive, either, issuing on 10 October 10 fines of
$500 each, plus daily fines of double the employee’s daily
base pay, for noncompliance and each day of continuing
noncompliance with Lowen’s directive, to the following:
Gerald P. Carroll, MTL master; Matthew E. Fisk, MTL sec-
ond mate; Stephen G. McDonald, MTL third mate; Wayne
Nason, MTL chief mate;62 Jeffrey Miller, Keystone master;
Michael G. Miller, MOC chief mate; James C. Spillane, Key-
stone master; Kazimierz A. Wodka, Keystone master; C. Jor-
dan, Keystone third mate; and Charles Ebersole, Keystone
second mate.
There were other strike committees which issued ex parte
fines. The Boston strike committee fined Lars W. Lund,
Mormac master, on 11 October and Thomas Malanchuk,
Keystone master, on 16 October, $500 and suspended each
from MM&P’s shipping list. The strike committee in Jack-
sonville, Florida, on 2 November rendered a similar fine
against Neal R. Wood, Keystone chief mate. On 9 and 10
October, the Baltimore strike committee rendered fines in un-
specified amounts against Edward P. Reichhelm, MOC chief
mate, and Clifford E. Hoglund, MOC master, respectively,
and suspended them from MM&P’s shipping list. The Nor-
folk strike committee fined the following officers 1 day’s pay
for each day they worked their vessels which were affected
by MM&P’s ‘‘work stoppage:’’ on 8 October, Harlan Jack-
son, MTL master; on 10 October, William J. Murphy, Key-
stone master; and on 11 October, Ole Tangen, Keystone mas-
ter, and Ronald C. Young, MTL master.
Martin was aware that trial and strike committees were
fining MM&P members without holding hearings. Martin ex-
plained that he thought the procedure ‘‘was highly irregular
[and] improper and [instructed] that no attempt should be
made to enforce these fines.’’ But of all the hundreds of doc-
uments which were offered in evidence at the trial, these in-
structions were impossible to find. All Martin issued were in-
structions to the various ports as to the proper manner of pre-
ferring charges. At the hearing, Martin disowned MM&P’s
constitutional provision which authorized a strike committee
to levy an initial fine of up to $500 without a hearing, stating
that ‘‘[i]t has never been used.’’
He did not advise the various MM&P members to dis-
regard the fines but, in the letters that accompanied the
charges forwarded to them, he asked them to call him if they
had any questions. My review of Martin’s letters indicates no
such advice. The final paragraph of the form letter merely
stated: ‘‘Please contact the undersigned upon receipt of this
letter so that an appropriate time may be selected to proceed
with the hearing on these charges.’’ A member could not
reasonably assume that because a hearing was going to be
held, earlier fines against him could be disregarded. Even if
the quotation may be read to have a bearing on the earlier
fine, the letter is wholly inadequate in rescinding and
expunging the fine which illegally issued.
Martin also testified that a telex was sent to the ports in-
structing them of the proper procedures to filing charges and
advising them that ‘‘no one would be fined or proceeded
against without being afforded a full and fair hearing.’’ The
instructions do not contain the advice to which Martin testi-
fied, and I discredit his testimony. Furthermore, I note that
the Tampa trial committee fined MTL Master Gerald P. Car-
roll without a hearing, that Carroll appealed the fine on the
ground that the procedural requirements of the MM&P con-
stitution were not followed, that the appeal was directed to
552 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
63 Martin sent the appeal back to the trial committee.
64 Jackson appears to be the only MM&P member who pleaded guilty.
Omitted from the amount of the fine was an additional fine for a violation
of the collective-bargaining agreement.
65 In light of $25,000 fines being imposed against masters, I infer that
Erickson was a master.
66 Welch submitted his resignation from MM&P on 7 November. Although
the record does not indicate, I assume that his resignation was treated pro
forma and was rejected. The fine levied against him will, by its terms, con-
tinue as long as he works on non-MM&P contracted vessels.
Martin, and that Martin, who could have called a meeting of
the international subcommittee to immediately reverse the
fine, did not do so but left the fine standing.63
In sum, Martin asked only that MM&P members should
call him to set up a hearing date. If they called, he testified,
he would advise them that the earlier fines were null and
void. But, even believing his testimony, he told only four
people who called him. Otherwise, he never communicated
with the members nor did he ever communicate with the
chairmen of the trial (or strike) committees, one of whom he
knew personally, to tell them to stop issuing their fines. In-
deed, a cursory examination of some of the committees’ no-
tices to members, all of which Martin’s office received,
should have indicated to him that the ‘‘trials’’ were setups,
and that there was no way that five trials could have been
conducted at the same time.
In addition to all of these fines rendered by strike commit-
tees without hearing on notice, trial committees in numerous
instances held hearings on notice, after charges had been
filed and served, and fined the following:
Name of Member Employment Trial Date Fine
Harlan E. Jackson MTL master 3 December $3,263.2764
William J. Murphy Keystone master 14 December $25,000, plus $250 per day for future noncompliance
Ronald C. Young MTL master 14 December $25,000, plus $250 per day for future noncompliance
Edward P.
Reichhelm
MOC chief mate 19 December $5,000, plus all wages earned from October 3 and plan
contributions
David L. Erickson Keystone employee65 27 December $25,000, plus daily base pay and plan contributions for
future noncompliance
James Farnham MTL master 27 December $500
Clifford E.
Hoglund
MCC master 28 December $25,000, plus daily pay and plan contributions for future
noncompliance
Antonio D.
Teixeira
Mormac master 28 December $25,000, plus daily pay and plan contributions for future
noncompliance
Neal R. Wood Keystone chief mate 4 January 1985 $30,821.19
Edward Welch66 MOC chief mate 8 January 1985 $5,000 per month beginning 25 October, continuing as
long as Welch works on non-MM&P contracted vessels
Constantinos
Vafiades
Keystone second mate 14 January 1985 $22,228.57, plus daily fines based on the computations
used to determine principal fine
Finally, there have been numerous other charges filed
which have not resulted in trials, except for one instance
where a trial was held and was adjourned without a date.
Charges have been filed against the following MM&P mem-
bers who continued to work for Keystone as licensed deck
officers after 3 October:
Name Classification Date Charge Filed Date Charge Served
Ralph F. Elroy, Jr. master 23 October 2 November
Timothy F. Hayes master 20 November 30 November
Leo Johnson master 20 December 31 December
Ole Tangen master 17 October 21 November
John W. Mattfeld master 21 November 27 November
Michael H. McCabe chief mate 15 December 20 December
Stephen Papacostas chief mate 20 December 31 December
Steven Rathkopf unknown 8 November 20 December
David R. Smith chief mate 20 November 27 November
Gordon Springer second mate 29 November 31 December
John J. Strunk master 15 October 7 November
Leonard J. Svetin master 15 December 20 December
Henry Wilbert unknown 8 November 20 December
William F. Moran master 7 December 20 December
Charges have also been filed against the following MM&P
members who continued to work for MOC as licensed deck
officers after 3 October:
553MASTERS, MATES & PILOTS (MARINE TRANSPORT)
Name Classification Date Charge Filed Date Charge Served
David Chalson chief mate unknown 11 December
Earl L. Cross chief mate unknown 1 January 1985
Joseph Haffey chief mate unknown 11 December
William W. Harkness chief mate unknown 11 December
Charles Laine master unknown 11 December
Robert Thompson master/observer 14 January 1985 14 January 1985
Cecil Smith master unknown 11 December
Charges have also been filed against the following MM&P
members who continued to work for MTL as licensed deck
officers after 3 October:
Name Classification Date Charge Filed Date Charge Served
Ray L. LaRocque third mate 10 December unknown
Robert P. Ruse master 20 November 27 November
Richard Marcus master 16 October 20 November
Bernard O’Hagan chief mate 25 October 2 November
Stephen Bourdeaux third mate 31 October unknown
Richard B. Moran master 6 November 26 November
Anthony Black chief mate 3 January 1985 15 January 1985
Thomas Jacobsen second mate 3 January 1985 15 January 1985
William McFadden master 3 January 1985 15 January 1985
Frank Mangus master unknown 11 December
Malcolm Triche, Jr. master unknown 11 December
Finally, a charge was also filed on 21 November against
Steven J. Williams, a Mormac master and chief mate. The
charge was served on 28 November.
Pilots were also included in the internal union proceedings.
As found above, on 3 October, Lowen issued a directive to
the pilot-members that they should not work the vessels that
were being struck. On 9 October, Loyd H. Newton was re-
quested by the chairman of the Norfolk, Virginia strike com-
mittee not to work the Energy Independence. On 24 October,
Newton was charged with having violated on 7 October the
‘‘stop work instructions’’ by piloting the Energy Independ-
ence, and, even after he received the 9 October letter, con-
tinuing to work. A trial committee heard the charges on 3
December, and Newton was fined $10,000 and an additional
$3000 for each voyage that he continued to make. Interest-
ingly, the finding of guilt was based solely on Newton’s ac-
tions of allegedly piloting the Energy Independence on 27
November in Norfolk, long after the job action had allegedly
ended.
In a mailgram dated 16 October, the Boston strike com-
mittee, without a hearing, fined David Galman $500 and sus-
pended him from the MM&P’s shipping list. The day before,
Galman was charged by the chairman of the committee with
piloting a Keystone vessel beginning on 10 October. On 27
December, a trial committee fined Galman $10,000 for viola-
tion of, among other things, the work stoppage order. Key-
stone management was advised that both Newton and
Galman were charged and later fined by MM&P.
Finally, a special report, dated December 4, issued by Don
Fuller Sr. referred to the fact that MM&P’s Pacific Maritime
Region was drafting charges against Pilots Russ Nyborg and
Mike Sweeney for crossing offshore picket lines. Testimony
indicated that not only did MM&P threaten to fine them but
also did so. Nyborg had told Captain Pinder that Nyborg and
Sweeney were being fined $500 daily as long as they contin-
ued piloting vessels.
G. The Legality of the Job Action
The most immediate object of MM&P’s 3 October direc-
tive was that MM&P’s members, the then employed licensed
deck officers, should discontinue all work for the Companies,
except for the safety and security of the vessel. The message
was clear: the licensed deck officers not only were not to
load and discharge their vessels but also were not to prepare
payroll vouchers or adjust grievances. Quite literally, they
were not to do the work entrusted to them by the Companies
to be their 8(b)(1)(B) representatives, under threat of internal
union discipline. The job action thus was intended to be and
had as its object a restraint and a coercion on the Companies
that those who followed the directive would no longer serve
as the Companies’ grievance adjusters. The ancillary objects
of the job action were that the Companies would fire the li-
censed deck officers because they refused to work and that
MM&P would cut off the supply of replacements in order to
stop the Companies from operating. Obviously, the directive
had at least a partially desired effect: officers who had
agreed to remain employed by the Companies under their
changed wage and benefit packages within the few days be-
fore 3 October changed their minds after receipt of Lowen’s
directive, refused to work, and were terminated.
I have little question that MM&P’s job action was taken
in response to the Companies’ walking out on their collec-
tive-bargaining and contractual relationships which had ex-
isted for up to 40 years. Nor is there little doubt that the job
action was called because MM&P found the new wage
schedules, coupled with the vacations and other reduced
terms of work, offensive to the highest scale that MM&P had
built up over many years. On the other hand, these reasons
were not the only reasons for MM&P’s response. Various
554 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
67 To establish MM&P’s intent, it is fair to examine the totality of MM&P’s
conduct and all the pertinent circumstances, NLRB v. Teamsters Local 182,
314 F.2d 53, 58 (2d Cir. 1963); including statements of its representatives and
strike committee chairmen and statements from persons on the picket line,
Longshoremen ILA Local 1291 (Trailer Marine), 266 NLRB 1204, 1207
(1983), enfd. 738 F.2d 423 (3d Cir. 1984); picket sign language and cor-
respondence, Electrical Workers IBEW Local 453 (Southern Sun), 252 NLRB
719, 724 (1980); and statements made at union meetings ‘‘by agents of re-
spondent or persons acting in concert with [them], ‘‘Retail Clerks Local 1357
(Genuardi Supermarkets), 252 NLRB 880, 886 (1980). This becomes all the
more warranted because these external indications of MM&P’s intent mirror
the intent of the 3 October directive as well as numerous communications sent
by MM&P and its leadership. Again, as pointed out above, the international
received copies of many of the documents relied on here and asked for infor-
mation regarding all picketing activities. It never disclaimed (or, at least, I
have not credited testimony regarding disclaimers) any of the documents or
the signs or the fines, but acquiesced in all of them.
communications, written, prepared, and authorized by
Lowen, and other communications sent by MM&P, indicate
that, among the reasons for the job action, MM&P desired
to get the jobs back for its members, to obtain recognition
of it by the Companies, and to obtain a contract. In so find-
ing, I have not credited much of Lowen’s testimony.
I found Lowen’s explanation of his motivation for calling
a job action circuitous and lacking candor, especially his first
answer, later often repeated, that it was ‘‘[t]o get the atten-
tion of the companies.’’ I found that rather cute and evasive.
When the licensed deck officers are asked to cease all activi-
ties, anyone would assume that that would attract someone’s
attention, particularly the attention of the Companies. Lowen
followed that by adding to his first answer that he wanted
to have the Companies ‘‘sit and talk with us,’’ while denying
that he wanted the Companies to recognize that they had a
existing contract with MM&P. That, according to Lowen,
was the subject of legal actions, and the purpose of the job
action could not possibly duplicate the purpose of the law-
suits, a result which I find irrational and illogical; especially
because, if MM&P already had a contract with MTL and
MOC, what was the purpose of ‘‘sitting down and talking’’
with them, if not to convince them to recognize that such an
agreement existed. It could be that Lowen wanted to per-
suade the Companies that he was willing to make a deal with
them: he testified that he recognized that times had changed
and he probably could not obtain as favorable conditions as
were contained in the tanker agreement. He also wanted to
‘‘continu[e] the relationship that [MM&P had] had with [the
Companies] before.’’ So he wanted to get the attention of the
Companies to ‘‘make sure that they understood that there
was certainly a need for them to reconsider the actions that
they had taken,’’ although there was no indication that he
was willing to settle for any terms less than what he had of-
fered MOC when negotiations broke down. Finally, when
asked whether MM&P wanted the Companies to return to
the bargaining table, Lowen exhibited a bit more candor:
‘‘we’d be fools not to want that.’’ From all of this, MM&P’s
memorandum of law now admits that the job action was
commenced to obtain recognition.
But I find that more was involved and find support in
what Lowen and others wrote in October.67 Lowen’s 3 Octo-
ber job action directive stated that MM&P members should
remain on board ‘‘to protect your jobs [and] to preserve your
future.’’ A 4 October telex urged the officers of the Overseas
Washington not to ‘‘weaken your resolve to protect your
jobs, wages and benefits.’’ A 5 October telex, reporting on
actions taken by MM&P members on other vessels, com-
mented: ‘‘With such courage and determination . . . contin-
ued ashore and afloat the IOMM&P will succeed in restoring
its membership to their rightful jobs and conditions.’’ An-
other 5 October telex urged deck officers to ‘‘stand firmly
together’’ ‘‘to successfully protect not only our jobs, wages
and benefits but ultimately those of all officers and crew-
members.’’ Communications on 3 and 7 October asked for
support to retain MM&P ‘‘contract benefits’’ and ‘‘working
conditions.’’ On 8 October, Lowen stated that the licensed
‘‘deck officers are engaged in a legitimate job action to com-
bat companies’ unilateral decision to destroy their wages,
benefits and job protection.’’ On 25 October, Lowen sent to
all ports a telex adopting a letter from AFL–CIO President
Lane Kirkland, who stated that the Companies ‘‘are engaged
in a flagrant attempt to bust your union [and b]y replacing
qualified licensed deck officers of the MM&P with scabs,
they are putting at risk the safety of these ships and crews.’’
At least one goal of the job action was to regain the li-
censed deck officers’ positions for members of MM&P who
had been fired when they refused to accept the new wage
packages of the Companies. Lowen testified that a purpose
of the job action was the same as the objects of MM&P’s
federal counterclaim and was to require MTL, among other
things, to reinstate the MM&P members who had been re-
placed by non-MM&P members after 15 June. The prospect
of the loss of jobs would obviously hurt the MM&P. With
the contractual provision of its tanker agreement requiring
that each master receive 30 days of vacation for every 30
days worked, each master’s job is worth full-time employ-
ment for two MM&P members. Each mate’s job, with 27
days of vacation, is worth full-time employment for almost
two MM&P members. The Companies’ reduction of vacation
benefits by almost half greatly reduced job opportunities for
MM&P members. In addition, the Companies’ new terms
and conditions eliminated a third mate’s position on many
vessels and the position of a relief chief mate in port. With-
out those jobs, MM&P faced greatly reduced membership
and job opportunities. This is the reason that it was critical
for MM&P to protest the Companies’ actions to ‘‘protect
[MM&P’s] jobs and it was critical to pinpoint vacations as
a specific substandard provision of the Companies’ newly
changed working conditions. This is the reason that the Com-
panies’ acts were later complained of by MM&P as a ‘‘lock
out.’’ As MM&P Representative Gras explained, MM&P
was merely trying to get some jobs back.
The jobs which MM&P sought to protect would have no
importance to MM&P unless certain terms of employment
went along with the jobs. Otherwise, it was not necessary for
MM&P to protest at all. As the directive and the above cor-
respondence shows, the action was also taken ‘‘to retain the
hard-won MM&P contract benefits’’ and ‘‘to protect your
. . . wages and benefits.’’ MM&P Representative Haa testi-
fied that the purpose of the job action was to ‘‘protest our
loss of the contracts.’’ Lowen’s telex to the commander of
MSC was to the same effect, that MM&P’s members were
prepared to quit the job action when the Companies ‘‘live up
to their obligations,’’ the Companies having unilaterally ter-
minated MM&P’s contracts. The most persuasive evidence of
MM&P’s motive was its insistence that MTL and MOC had
not properly canceled the tanker agreement and so were
bound by it for at least another year, as is demonstrated by
555MASTERS, MATES & PILOTS (MARINE TRANSPORT)
68 The filing of a Sec. 301 action for a declaratory judgment that employers
are bound to recognize and bargain with a union has been found to evidence
a recognitional object, National Maritime Union (Overseas Carriers), 174
NLRB 216 (1969); the filing of an 8(a)(5) charge has been found as evidenc-
ing a recognitional object, Carpenters (Shepard Marine), 195 NLRB 530, 531
(1972); and the invocation of representation case procedures has been found
inconsistent with a disclaimer of a recognitional object, Amalgamated Meat
Cutters Local 340 (PFA-Farmers Market), 232 NLRB 111, 116–117 (1977).
69 See Jt. Exh, 25, in which it is noted that certain crewmembers of a vessel
were sympathetic to MM&P’s ‘‘struggle for representation.’’
70 At the last negotiating session between MM&P and MOC on 1 October,
MM&P agreed to MOC’s proposal that it would hire from any source it want-
ed, in exchange for a union security provision that a licensed deck officer
would have to become an MM&P member within 60 days of hire and an
agreement that MOC would continue to contribute to MM&P’s fringe benefit
plans. Contrary to MM&P’s contention, there is no proof, only surmise, that,
because it was willing to give up its hiring hall for MOC, it was similarly
willing to relinquish all rights to its hiring hall for all the other employers.
However, MM&P has entered into a number of agreements containing hiring
hall provisions, so it is clear that MM&P wanted to retain that form of ‘‘job
protection.’’ And, if it did not, under MM&P’s interpretation, the phrase ‘‘job
protection’’ would have little meaning. Of course, MM&P’s retention of its
hiring hall and maintenance-of-membership provisions would limit the selec-
tion of 8(b)(1)(B) representatives to a class composed solely of MM&P mem-
bers. International Typographical Union (American Newspaper), 86 NLRB
951, 957–959 (1949), enfd. 193 F.3d 782, 805 (7th Cir. 1951), modified in
other respects 345 U.S. 100 (1953).
71 See Tr. p. 2992.
72 In addition, the Companies’ ability to hire older licensed deck officers
might be limited by the fact that MM&P’s pension plan vests only after 10
years. An older officer might not wish to work for the Companies if he was
not assured that he would receive some sort of pension. Furthermore, under
the MM&P pension plan, an officer may not work and receive his pension
at the same time. He might be willing to forgo the MM&P pension plan for
the right to receive his pension, while continuing to work. Those impediments
of MM&P’s plan were removed in the Companies’ employment package.
MM&P’s institution of legal actions, alleging that both em-
ployers had valid and binding agreements with MM&P.68 In
any event, Lowen belatedly admitted that he would have
been delighted if the job action had resulted in the Compa-
nies’ resuming collective-bargaining negotiations. Indeed, a
MM&P telex confirmed that any tanker company not in-
volved in the job action had either signed an agreement or
was negotiating in good faith. Thus, a part of MM&P’s mo-
tive was recognitional, to continue negotiations as the rep-
resentative of the licensed deck officers.69
MM&P also desired to prevent the destruction of ‘‘job
protection.’’ One ‘‘job protection’’ in the tanker agreement,
as well as a ‘‘contract benefit’’ and ‘‘working condition,’’ is
the requirement that licensed deck officers be referred to the
Companies from MM&P’s exclusively run hiring hall. That
provision would require the Companies to hire only from the
MM&P membership rolls which would restrict the Compa-
nies in their designation of persons to be hired as officers of
their vessels.70 Another ‘‘job protection’’ stems from the
designation of certain officers as ‘‘permanent’’ so that they
can return to their positions after their vacations. In either
event, an agreement would be a requisite, and an agreement
required recognition.
Finally, throughout the record, there are references to what
appears to be a pervasive problem, MM&P’s pension fund.
As the 3 October directive notes, the job action was also
called ‘‘to preserve your future,’’ which I find, if not to pre-
serve jobs for MM&P members, was an attempt to hold the
Companies to their continued participation in and contribu-
tion to the MM&P plan.71 Some pickets protested the Com-
panies’ failure to participate in the plan as detrimental to the
rights of pensioners to receive their benefits. That was a
sticking point in the MM&P negotiations with MOC, and the
amounts that the Companies finally determined to contribute
toward their own officers’ retirement benefits constituted
only a small portion of what MM&P was requiring of its
contracted companies. On the other hand, the Companies’
failure to continue to contribute to the MM&P plan—which
would require a written agreement under Section 302(c)(5) of
the Act and thus, recognition—put the onus on MM&P’s
contracted employers to make up in their contributions what
was being lost by the Companies’ walking away from
MM&P.72
To recapitulate, MM&P sought to replace the Companies’
licensed deck officers with officers who were affiliated with
MM&P, to gain recognition from the Companies as the rep-
resentative of the officers, and to obtain a contract which
would restore some or all of the wages and other benefits
previously attained by MM&P. These goals are strikingly
similar to MM&P’s goals in prior Board proceedings in
which MM&P was found in violation of Section 8(b)(1)(B)
of the Act.
MM&P’s present legal dilemma has its origin in Masters,
Mates & Pilots (Marine Corp.), 197 NLRB 400 (1972), enfd.
486 F.2d 1271 (D.C. Cir. 1973), cert. denied 416 U.S. 956
(1974). The dispute involved the container vessel Floridian,
which was operated by a company which had a collective-
bargaining agreement with MM&P for the ship’s master and
three mates. The operator went bankrupt and a new com-
pany, Marine and Marketing, was formed to recommence op-
erations. In order to cut costs, it signed a prehire agreement
with MEBA, covering all licensed deck officers and engi-
neers. MM&P threatened to picket and then picketed the ves-
sel in order to force Marine and Marketing to break its con-
tract with MEBA, to fire the newly hired MEBA master and
mates, and to replace them with the formerly employed
MM&P master and mates.
The Board found a violation of the Act. First, it found that
the master and the three mates were authorized and empow-
ered as part of their duties to adjust grievances among the
crewmembers. Second, it found that MM&P’s picketing con-
stituted restraint and coercion envisioned by Section
8(b)(1)(B). Third, it found that the object of the picketing
was to require Marine and Marketing to replace the MEBA
master and mates with a master and mates belonging to
MM&P. The literal language of Section 8(b)(1)(B) was thus
applicable: MM&P exercised coercion to require Marine and
Marketing to change its selection of individuals whose duties
included the adjustment of employee grievances. The Board
rejected MM&P’s claim that its object was legitimate and its
conduct therefore permissible, noting that, while the preser-
vation of unit work is a legitimate union goal, a labor organi-
zation is clearly not free to utilize any means it chooses in
order to achieve a desired result. The Board found that
MM&P’s conduct was proscribed by Section 8(b)(1)(B) of
the Act and ordered it to cease and desist therefrom.
The District of Columbia Circuit enforced the Board’s
Order. It rejected MM&P’s argument that, when Congress
enacted Section 14(a) of the Act and thereby deprived super-
visors (including grievance adjusters) of the protection of the
Act, Congress intended to allow supervisors to resort to self-
help to protect their interests. Although noting that the legis-
lative history may well be read as evidencing a Congres-
sional purpose to permit supervisors to resort to self-help,
556 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
73 Lowen was asked whether the area standards picketing in this proceeding
was protesting the Companies’ reduction of manning requirements. Lowen an-
swered that manning was manning and was not a substandard condition—an
answer that is very much at odds with the picket signs used in Westchester
Marine. Of course, Lowen also testified that MM&P had never before picketed
to protest area standards—a statement that is factually incorrect, but legally
accurate, according to Westchester Marine.
that applies only to unions which are not labor organizations,
that is, that represent only supervisors who are not statutory
employees. MM&P, however, is a labor organization within
the meaning of the Act (as MM&P admits that it is in this
proceeding). Therefore, even though MM&P’s efforts sought
to protect jobs of its supervisory members, that did not re-
move MM&P, which also admits to membership statutory
employees, from the restrictions of Section 8(b) of the Act.
The court agreed with MM&P’s contention that Congress in-
tended to permit supervisors to resort to self-help, but it
found that a supervisors’ union cannot have it both ways. If
it allows statutory employees to participate, it becomes a
labor organization entitled to certain of the protection of Sec-
tion 8(a) and subject to the restrictions imposed by Section
8(b) on such organizations. If it does not allow statutory em-
ployees to participate, it is not a labor organization and is
freed of the 8(b) restrictions.
The court then addressed MM&P’s argument that Section
8(b)(1)(B) was concerned solely with attempts by a labor or-
ganization to change the person utilized by the employer to
adjust the grievances of members of that same organization.
Although finding some evidence that Congress’ primary con-
cern was with situations falling within MM&P’s interpreta-
tion of the Act, the court found nothing showing that Con-
gress intended not to reach conduct of the sort that took
place in that case. If anything, Congress simply did not ad-
dress itself to the specific problem that arose there, and the
court found no reason to create a case-by-case exception to
the lines seemingly strictly drawn by Congress.
Masters, Mates & Pilots (Westchester Marine), supra, 219
NLRB 26, similarly involved an attempt by MM&P to dis-
rupt the collective-bargaining relationship between MEBA
and employers for their supervisory licensed deck officers.
The MEBA contract required manning of the vessels with a
master and three mates, whereas MM&P’s contract required
manning by a master and four mates. In addition, there was
a wage differential favoring the MEBA contract. One of the
vessels involved in the dispute was picketed by MM&P
whose signs complained that the vessel ‘‘work[ed] its deck
officers under lower standards than those worked under by
deck officers represented by Masters, Mates and Pilots.’’ The
second vessel was picketed with a sign which stated that the
vessel was ‘‘unfair to the Masters, Mates and Pilots.’’ That
vessel was picketed 3 months later with the first sign quoted
above complaining of lower standards.73
The administrative law judge concluded that the picketing
of both vessels fell under the literal prohibition of Section
8(b)(1)(B) because one object of the picketing was to force
replacement of the MEBA-represented licensed deck officers
with others represented by MM&P. Although he found that
MM&P had three other objects of its picketing—(1) recogni-
tion as the sole bargaining representative for the licensed
deck officers on the two vessels, (2) a collective-bargaining
agreement covering the licensed deck officers on the vessels,
and (3) application of wages, terms, and conditions of em-
ployment specified in the standard MM&P contract to li-
censed deck officers on the vessels—he did not consider the
extent to which those objects of the picketing were pro-
scribed by the statute.
The Board found that MM&P’s picketing violated Section
8(b)(1)(B) and ordered the Union to cease and desist from
picketing both vessels and from ‘‘in any other manner, re-
straining or coercing [the employers] in the selection of their
representatives for the purpose of the adjustment of griev-
ances.’’ The Union was ordered to cease and desist from
picketing for the objects of forcing the employers to recog-
nize MM&P as the collective-bargaining representative of the
employers’ licensed deck officers, to force the employers to
enter into a collective-bargaining agreement, and to impose
MM&P’s terms and conditions of employment on the li-
censed deck officers. As a result, the Board reached the issue
of the legality under Section 8(b)(1)(B) of MM&P’s pick-
eting for the objects found by the administrative law judge
other than replacement of the licensed deck officers on the
two vessels by MM&P members.
The Fifth Circuit, 539 F.2d 554, enforced the Board’s de-
cision in all respects, relying on Marine & Marketing for its
rejection of the union’s argument that the Act was never in-
tended by Congress to reach picketing that promotes or pro-
tects only the interests of those MM&P members who are su-
pervisors within the meaning of the Act. It also rejected
MM&P’s argument that Section 8(b)(1)(B) should have no
application to its activities which attempt to protect ‘‘the
more traditional labor concerns of wages, terms, and condi-
tions of employment for those supervisory personnel.’’ 539
F.2d at 559. Relying on Marine & Marketing, the court
found that a union, if composed solely of supervisory per-
sonnel, is not a ‘‘labor organization’’ as defined in the Act
and thus is not limited in its activities by Section 8(b). How-
ever, MM&P was not a supervisors’ union but admitted into
membership statutory employees and thus was a labor orga-
nization protected by Section 8(a) and restrained by Section
8(b). Thus, although the legislative history of the Act sug-
gested a Congressional desire to leave supervisors to their
economic weapons, MM&P lost the unfettered right to take
economic action by admitting statutory employees to mem-
bership in its organization.
Furthermore, implicit in Section 8(b)(1)(B) is the Congres-
sional judgment that the relations between an employer and
its supervisory personnel should be insulated in full measure
from coercive efforts by a labor union. An employer may de-
mand with impunity that supervisory personnel neither retain
their union membership nor participate in any way in union
affairs, and the employer has the prerogative to demand the
complete loyalty of its supervisory personnel and designate
as its representatives for the adjustment of grievances those
persons whom it pleases. The employer’s decision may be
based on reasons completely divorced from the grievance-ad-
justing abilities of the different contenders for supervisory
positions; rather, the employer is free to designate its super-
visors solely on economic grounds, that is, that it could ob-
tain supervisors at less wages and at other economic savings
to it.
The court rejected MM&P’s argument that the Supreme
Court’s decision in Florida Power & Light Co. v. Electrical
Workers, 417 U.S. 790 (1974), impugned either the reason-
ing of its decision or that of Marine & Marketing. In Florida
557MASTERS, MATES & PILOTS (MARINE TRANSPORT)
74 See fn. 73.
Power & Light, the union disciplined supervisory members
who crossed a picket line and performed struck work. The
Supreme Court refused to find a violation of Section
8(b)(1)(B), which may be found ‘‘only when [the] discipline
may adversely affect the supervisor’s conduct in performing
the duties of, and acting in his capacity as, grievance adjuster
or collective bargainer on behalf of the employer.’’ 416 U.S.
at 804–805. In Florida Power & Light, the employer con-
tended that the supervisory personnel who were also mem-
bers of the union were free to decide on an individual basis
whether or not they would cross the picket line. Because the
Act speaks to coercion of the employer, the court found that
it would be difficult to sustain a violation of Section
8(b)(1)(B) in light of the employer’s attitude; whereas in
Westchester, the employers made positive decisions that they
desired to have MEBA represent the licensed deck officers.
Finally, MM&P’s coercion was directed at the employers
themselves; the disciplinary procedures in Florida Power &
Light amounted to ‘‘indirect coercion of the employer at
best.’’ 539 F.2d at 561. The court found that where MM&P’s
coercion was applied directly to the employers, the Board
was correct in enforcing the statute to its literal limit.
The court then turned to the three other reasons found by
the Board, but not by the administrative law judge, to be pro-
hibited objects under Section 8(b)(1)(B). The court agreed
with the Board, finding that the three objects—recognition,
a collective-bargaining agreement, and adherence to MM&P
labor standards—would have necessitated a breach of the
then effective collective-bargaining agreement between the
employers and MEBA. So, too, would recognition of MM&P
by the employers and execution of an appropriate collective-
bargaining agreement between those employers and MM&P.
A necessary result was that MEBA would have forbidden its
members from serving on the vessels and MM&P’s objects
in picketing thus would have unnecessarily restricted the
class of individuals available as licensed deck officers to
members of MM&P and no others.
The rivalry between MM&P and MEBA again broke out
in 1975 and resulted in Masters, Mates & Pilots (Cove Tank-
ers), 224 NLRB 1626 (1976), enfd. 575 F.2d 896 (D.C. Cir.
1978). There, the vessel Mount Explorer had been manned
by licensed deck officers from MM&P, was laid up and sold
to Cove, and emerged from layup with its vessel manned
with licensed deck officers from MEBA. The vessel was met
with picket signs proclaiming that MM&P had a collective-
bargaining agreement covering the ship. Furthermore,
MM&P commenced a libel action on behalf of its licensed
deck officers who served under the contract with the former
operator of the vessel. Still later, the vessel was picketed
with MM&P signs which announced that, although MM&P
was not claiming any right to the jobs on the vessels, the
new operator violated its common law contractual obligations
with MM&P relating to the operation of the vessel and that
the vessel was being operated with substandard manning.
Among other things, the Board found a violation of Section
8(b)(1)(B), inasmuch as the picketing and the filing of the
libel action were directed toward replacement of MEBA offi-
cers with MM&P members, recognition of MM&P by Cove,
and adoption of the standard MM&P collective-bargaining
agreement by Cove.
The District of Columbia Circuit agreed, finding strong
evidence supporting the Board’s findings of fact in the word-
ing of the first set of picket signs, to wit, ‘‘We have a cur-
rent collective bargaining agreement covering this ship.’’
That constituted a demand that MM&P be recognized as the
sole collective-bargaining representative of the licensed deck
officers, and it implied that the employer violated the
MM&P contract which required that replacements of licensed
deck officers be hired through MM&P hiring halls. If
MM&P’s real object was limited to a claim for wages, as
MM&P contended, the limited purpose would have been dis-
closed plainly by the picket signs and there would have been
no broad assertion of the existence of a current collective-
bargaining agreement. Other evidence showed that the real
purpose was a fight for and a battle over jobs. Thus, the
court concluded that the real object of MM&P’s picketing
was to obtain the removal of the licensed deck officers rep-
resented by MEBA and the replacement of them by those
represented by MM&P. The court also enforced the Board’s
broad order prohibiting picketing of any kind by MM&P. It
rejected MM&P’s argument that the order should be modi-
fied ‘‘so as to permit picketing for [MM&P’s] non-replace-
ment objectives’’ and agreed with Westchester Marine, 539
F.2d at 561, that ‘‘the practical effect of seeking these other
objects is . . . tantamount to coercion of the employers in
the selection of their licensed deck officers.’’ 575 F.2d at
907.
The fourth and final dispute between MM&P and MEBA
resulted in Masters, Mates & Pilots (Newport Tankers), 233
NLRB 245 (1977), vacated and remanded sub. nom. Newport
Tankers Corp. v. NLRB, 575 F.2d 477 (4th Cir. 1978), cert.
denied 439 U.S. 828 (1978), supp. opinion 240 NLRB 1240
(1979). Again, the vessel’s licensed deck officers and engi-
neers were members of MEBA, and MM&P picketed the
vessel with signs complaining that the vessel employed a
second and third mate not covered by a collective-bargaining
agreement and that they were employed under substandard
working conditions. MM&P conceded that the first part of its
picket sign was incorrect because the deck officers were rep-
resented by MEBA. MM&P further conceded that the only
‘‘substandard’’ condition to which the signs referred was the
condition of having to work without an additional third
mate.74 Its purpose was to force the operator to employ one
additional third mate, irrespective of union membership, so
as not to undercut the manning standard generally prevailing
on vessels manned by MM&P’s deck officers.
A divided Board panel found no violation of Section
8(b)(1)(B) and dismissed the complaint. It found insufficient
evidence to support a finding that MM&P’s true motive was
to force the employer into replacing the officers represented
by MEBA with officers represented by MM&P. It further
found that the object of MM&P’s picketing was to persuade
the employer to hire an additional third mate but found that
this did not violate Section 8(b)(1)(B) because the actual se-
lection of the third mate was left entirely to the employer’s
discretion. The Board held that: ‘‘Congress enacted Section
8(b)(1)(B) to protect an employer from a union which might
seek to impose its will on the employer by dictating whom
it should or should not select as its collective-bargaining rep-
resentative or grievance adjuster.’’ 233 NLRB at 246; em-
phasis in original. The Board further wrote:
558 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
75 Lowen’s nomenclature is understandable. Infuriated by Marine & Mar-
keting and its progeny, which he termed ‘‘horrendous’’ and ‘‘bizarre,’’ he was
under the mistaken impression that if he changed names for what MM&P did
(from ‘‘strike’’ to ‘‘job action’’), he might be able to foreclose judgment that
MM&P violated the Act. And so, to him, the word ‘‘strike‘‘ was to be avoided
at all costs. (He slipped from time to time, calling the ‘‘communications
room,’’ the ‘‘strike communications room’’ and more than once in his cor-
respondence referring to the ‘‘strike’’ or ‘‘strike committee.’’) Even at the
time when the dry cargo negotiations had not been consummated in June, al-
though for years and years strike committees (which are specifically named
in MM&P’s constitution) had been formed to supervise MM&P’s port activi-
ties, Lowen testified that he instructed the formation of job action committees,
which Martin testified (in contradiction of Lowen) were called ‘‘strike com-
mittees’’ for want of a better name. In fact, strike committees were created
pursuant to a telex issued on 11 June in Lowen’s name and reactivated by
another telex in his name on 3 October. That ‘‘better name’’ of strike com-
mittee was used by each committee in MM&P’s ports, with the exception of
New York, which called itself an ‘‘action’’ committee. Telexes were sent
under the name of strike committees and paid for by MM&P, and no one from
international headquarters complained that their titles were wrong. Lowen’s in-
structions were not in writing, and Lowen relied solely on oral instructions.
The documentary evidence does not support his testimony that the ports sim-
ply disregarded his instructions.
76 Lowen denied knowing what was or ever hearing the expression ‘‘sit-
down strike.’’ I find that incredible.
77 MM&P relies on Hanna Mining Co. v. District 2 MEBA, 382 U.S. 181
(1965), to show that recognitional economic action which does not displace
the employer’s designated grievance adjusters is not prohibited by the Act. In
Hanna Mining, the Supreme Court held that the union’s picketing to obtain
recognition was not an arguable violation of Sec. 8(b)(7)(C), because picketing
which violates that section concerns recognition of a union as the representa-
tive of employees, not the supervisors for which MEBA sought to be the rep-
resentative. There was no discussion of the picketing under Sec. 8(b)(1)(B),
nor mention of that subsection, about which the law began to develop only
some 8 years later in Marine & Marketing and its progeny. In the latter deci-
sion, 486 F.2d at 1275 fn. 3, the court noted that, while Hanna Mining ‘‘may
constitute an implicit holding that the picketing there did not violate Section
8(b)(1)(B),’’ the picketing there was not directed at having certain supervisors
fired and replaced, as was the case in Marine & Marketing, and as I have
found above.
Contrary to the position of some of the parties, it appears that in Hanna
Mining the Court and the Board treated MEBA as a labor organization. See
MEBA v. Interlake Steamship Co., 370 U.S. 173, 182–183 (1962).
MMP’s conduct herein does not diminish in any way the
Employer’s unfettered right to select the representative of its
choice. While concededly the Employer might be forced to
hire an additional third mate, the choice as to who that third
mate shall be is totally within its discretion and control.
There is nothing in the record evidence to indicate that MMP
sought to have one of its own members selected as the addi-
tional third mate. Indeed, in light of the Employer’s current
collective-bargaining agreement with MEBA covering all
deck officers, we doubt that the Employer could have se-
lected another third mate from among MMP’s members or
that MMP realistically expected the Employer to do so. [Id.]
The Fourth Circuit disagreed, finding that, although there
is a difference of degree in the restraint or coercion, the pur-
pose of the picketing was nonetheless to dilute the authority
of the licensed deck officers employed by the employer by
requiring that at least some of their duties be performed by
others. In any event, the court agreed with the dissenting
member of the Board who said that one cannot read Marine
& Marketing, Westchester Marine, and Cove Tankers and not
recognize the ‘‘fact of life’’ that the actual object of
MM&P’s picketing was the eventual replacement of the
ship’s deck officers with MM&P members. The court stated
at 575 F.2d at 481 fn. 6, in part, as follows:
It is clear to us, as it obviously was to the Fifth Circuit
[in Westchester Marine], that MMP’s ultimate objective
is to supplant MEBA. Whether the immediate picketing
objective is wholesale replacement of existing personnel
or a more subtle attempt to force the employer into a
breach of the existing contract with MEBA, the ulti-
mate effect is equally coercive of [the employer’s] right
to select its grievance adjusters.
MM&P’s ‘‘job action’’75 was clearly coercive and a re-
straint. By any other words, it was a sit-down strike—and
that is what MM&P called it in the sample form of internal
union charges, see footnote 54, supra—except for the fact
that MM&P permitted the officers to sail to a safe anchorage
and to ensure the safety of the vessel.76 Otherwise, the li-
censed deck officers who complied with the directive did
nothing on the job and, like many sit-in strikers, refused to
leave the vessels except under legal constraint. The purpose
of MM&P’s job action was no less than the purpose of a
strike, to stop the Companies’ vessels from operating and to
cause the Companies as much misery as possible in the event
that they attempted to maintain their operations. A union
strike, or even threat to strike, in order to compel an em-
ployer to choose or replace 8(b)(1)(B) representative operates
as a restraint within the meaning of that Section. Sheet Metal
Workers Local 17 (George Koch Sons), 199 NLRB 166
(1972), enfd. 502 F.2d 1159 (1st Cir. 1973), cert. denied 416
U.S. 904 (1974).
I adopt the compelling logic and rationale of the decisions
in MM&P’s prior Board proceedings. Just as in Marine &
Marketing, Westchester Marine, and Cove Tankers, where
the Board found that MM&P’s object was to require the em-
ployer to replace MEBA licensed deck officers with those
belonging to MM&P, I find a like object of MM&P’s job
action—to replace those who were willing to work for the
Companies with those who MM&P agreed could work for
the Companies, under general conditions acceptable to
MM&P. In particular, that group includes those officers who
had worked for MTL prior to 15 June and who after 15 June
decided not to work for MTL. Once officers complied with
Lowen’s 3 October directive, MM&P’s objective to replace
the replacements applied to Keystone, MOC, and Mormac as
well.
Just as in Westchester Marine, MM&P’s job action was
intended to obtain recognition for the licensed deck officers
on all the Companies’ vessels and a collective-bargaining
agreement covering those officers. If MM&P’s object was
not to obtain an agreement precisely the same as the dry
cargo contract it then had in effect, clearly MM&P was look-
ing for better wages and benefits, as well as resumed partici-
pation in MM&P’s pension and health plans. In other words,
MM&P’s job action restrained the Companies from hiring
those who were willing to work for wages and benefits less
than what MM&P wanted to attain and who were willing to
forgo participation in MM&P’s health and welfare and pen-
sion plans.77 Finally, although in Cove Tankers, MM&P
picketed with picket signs stating that MM&P had a collec-
tive-bargaining agreement covering the vessel, here MM&P
commenced legal actions against MTL and MOC on the
basis that they had agreements. That was accompanied by
MM&P’s job action, and the net effect was hardly different
from that declared illegal in Cove Tankers.
559MASTERS, MATES & PILOTS (MARINE TRANSPORT)
78 MM&P contends that it ‘‘may legitimately engage in area standards pick-
eting for a non-recognitional objective, while at the same time it attempts to
achieve a recognitional objective through other means altogether.’’ This propo-
sition, unsupported by any citation, is almost self-contradictory because
MM&P’s legal actions make clear that it was not exclusively seeing to call
to the public’s attention the fact that the Companies were eliminated. Inter-
national Hod Carriers Local 41 (Calument Contractors), 133 NLRB 512
(1961). The Board has always carefully scrutinized all of the facts to deter-
mine whether a union’s efforts were limitd solely to securing compliance with
area standards. Retail Clerks (State-Mart, Inc.), 166 NLRB 818, 823 (1967),
enfd. 404 F.2d 855 (9th Cir. 1968); NLRB v. Electrical Workers IBEW Local
265, 604 F.2d 1091, 1097 (8th Cir. 1979). In both Westchester Marine, 539
F.2d at 561, and Cove Tankers, 575 F.2d at 902–904, once the court deter-
mined that MM&P had a recognitional objective, it found that there could not
be area standards picketing. See also Carpenters (Shepard Marine), 195 NLRB
530, 531 (1972); Amalgamated Meat Cutters Local 340 (PFA-Farmers), 232
NLRB 111, 116–117 (1977); National Maritime Union (Overseas Carriers),
174 NLRB 216, 221 (1969).
79 The Board is not bound by MM&P’s self-serving declaration of a lawful
object of its picketing. NLRB v. Teamsters Local 182, 314 F.2d 53, 58–59 (2d
Cir. 1963). In both Westchester Marine, 219 NLRB at 26 fn. 1 and 39 fn.
26, and Cove Tankers, 224 NLRB at 1634, the Board discredited MM&P’s
claims that it was picketing to protect its area standards.
80 MOC Exh. 21, p. 2.
NLRB v. Electrical Workers IBEW Local 73, 714 F.2d 870
(9th Cir. 1980), cited by MM&P to demonstrate that Section
8(b)(1)(B) does not apply to situations where a union does
not seek to represent the employer’s statutory employees,
does not represent Board law, by which I am bound. In none
of the prior MM&P proceedings was it found that MM&P
represented or claimed to represent statutory employees of
the employers. Furthermore, the Eleventh Circuit expressly
rejected the analysis of the Ninth Circuit in NLRB v. Elec-
trical Workers IBEW Local 323, 703 F.2d 501, 505–507
(1983). In any event, the Ninth Circuit found that it might
arrive at a different conclusion ‘‘if there is evidence that the
union’s actual purpose in enforcing its bylaw [prohibiting
union members from working for nonunion employer] was to
interfere with the employer’s selection’’ of its grievance ad-
juster. 714 F.2d at 872. I have found such a purpose. I con-
clude that the objectives of the job action were illegal and
that the job action violated Section 8(b)(1)(B) of the Act.
H. The Legality of the Area Standards Picketing
When the time came in and about mid-October when,
Lowen testified, the job action’’ was converted to sub-
standard picketing, there was hardly any change of MM&P’s
tactics from one day to another. There was more picketing
by MM&P, by its licensed deck officers, officials, and even
pensioners; and MM&P hired picket boats which, on occa-
sion, harassed the vessels and their crews as they attempted
to dock, undock, and sail. Admittedly, there were new area
standard signs carried by the pickets, but those new signs
were not carried universally. In addition, they were carried
at some curious places, such as where one of MTL’s MSC
vessels docked, despite the fact there had been no change in
the vacation benefit on that vessel and MTL had, at best, re-
duced its vacation package to the same number contracted on
its MSC vessels, with MM&P’s blessing. Yet it too was
picketed with the substandard sign decrying the less than
standard vacations paid by MTL.
The lack of candor of the substandard sign is just one bit
of support that the signs were merely a ruse for the continu-
ation of MM&P’s illegal motives, which was evidenced by
the continuing district court litigation 78 and the use of many
other signs, none of which were directed to the substandard
wages and other benefits which were being paid on the ves-
sels or by the Companies.79 rather, MM&P made a variety
of other claims, such as raids by other unions, unfair labor
practices, the potential loss of pension benefits and injury to
pensioners, the loss of jobs, the right to return to jobs,
lockouts, replacements, the hiring of ‘‘scabs,’’ and employ-
ment of ‘‘nonunion’’ personnel and ‘‘finks’’—all the indicia
of a typical strike where the strikers have been replaced, ex-
cept that the law does not permit a labor organization to
complain that 8(b)(1)(B) supervisors have been replaced,
with an aim to replacing them. Clearly, those signs were
completely inconsistent with MM&P’s claim that its pick-
eting was directed solely to the Companies’ substandard
wages, vacations, and other working conditions. So was
MM&P’s use of picket boats, which, instead of making an
appeal to the public and the Companies’ customers, harassed
and interfered with the operation of Keystone’s and MOC’s
vessels.
Lest there be some sympathy with MM&P’s plight, based
on the argument that Congress permitted supervisors to do as
they wished, outside the protection and restrictions of the
Act, MM&P was warned as early as in Marine & Marketing
and through the three other lengthy legal proceedings that if
it desired to organize and admit statutory employees, then it
became a labor organization and was subject to the Act. In
other words, it had a choice; and it has exercised its option
by recently entering into an agreement with one maritime
employer whereby MM&P represents both unlicensed crew-
members and licensed deck officers on oceangoing vessels.
I assume that MM&P knew what it was losing and gaining
by remaining a statutory labor organization.
Admittedly, in at least three of those legal proceedings,
MM&P was protesting MEBA’s raid of its jurisdiction, but
clearly MM&P was also protesting the undermining of cer-
tain working conditions which it had attained over the years.
That is present here, as is an underlying dispute between
MM&P and the other maritime unions, who MM&P com-
plained were not honoring MM&P’s picket lines against the
Companies. The dispute was of such moment that MM&P
accused MEBA of having urged and assisted MTL in with-
drawing from negotiations with MM&P,80 and MM&P mem-
bers picketed the office of MEBA on one occasion.
I find that MM&P was desperately seeking the support of
the other maritime unions and reject Lowen’s denial that
MM&P was not responsible for the mass of letters sent to
AFL–CIO President Lane Kirkland in mid-October by strike
committee members and port representatives and officials of
MM&P. By that time MM&P had been unsuccessful in halt-
ing the Companies’ operations. Many of its members stayed
aboard the Companies’ vessels and refused to comply with
Lowen’s 3 October directive; other members, and nonmem-
bers, too, were enlisted to work for the Companies. Pilots
were servicing the vessels and other unions refused to honor
MM&P’s picket lines and pleas for help. The same kind of
internecine strife which the foregoing decisions dealt with
started to erupt; and the AFL-CIO and its ad hoc maritime
committee appeared to be an obvious place where MM&P
might get relief and, particularly, cooperation.
The record shows not only Lowen’s appeal for cooperation
from the other maritime unions and for a meeting of the ad
hoc committee to prevent ‘‘stripping licensed deck officers
560 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
81 See the following: Bara, ‘‘striking deck officers [and] strike demonstra-
tions’’; Swanson, Gras, and Nereaux, ‘‘tanker companies . . . refuse to bar-
gain with us . . . union busting and raiding’’; Bara, ‘‘five tanker companies
. . . have kicked our union people off the ships . . . union busting’’; Wilson,
‘‘loss of 78 vessels’’; and Groh, ‘‘protecting our jobs, wages and benefits.’’
82 Two telexes sent by different ports are the same. G.C. Exhs. 119 and 121.
Copies of most correspondence were sent to international headquarters, which
did not disavow them in writing. Lowen claimed that he told the AFL–CIO’s
secretary-treasurer in a telephone conversation to disregard their contents as
unauthorized, but I do not credit his testimony. I find it most suspicious that
on several occasions when Lowen and Martin stated that some critical event
happened, contradicting a written document, the testimony was of some one-
on-one conversation which could hardly be rebutted. The documentary evi-
dence here is too overwhelming.
83 Martin admitted that one of the purposes of the picketing was to force
the Companies to agree to a union-security clause to protect MM&P jobs.
MM&P’s initiation fee is $3000, which may well deter a licensed deck officer
from accepting employment with an employer which requires him to join
MM&P.
84 On 4 December, Don Fuller Sr. advised his membership in a special re-
port that MM&P was ‘‘on strike’’ against MTL, Keystone, and MOC, who
had ‘‘all abandoned their contracts with’’ MM&P. At an MM&P meeting in
New Orleans on 14 November, chaired by Kyser, one of MM&P’s principal
officers, the area standards picketing phase of MM&P’s action was referred
to frequently as a ‘‘strike.’’ Kyser never corrected that terminology to advise
the members that they were engaged solely in area standards picketing.
of union representation,’’ but also Lowen’s requests of the
various ports and members to write to Rirkland urging that
the other maritime unions support MM&P; and that is what
happened, an outpouring of letters, many signed by strike
committee chairmen and MM&P port representatives. If
these representatives did not know of MM&P’s objects
andintent, it is questionable that anyone did.81 Their com-
plaints were the complaints of MM&P; their expressed goals
were the goals of MM&P. I will hold MM&P responsible for
them,82 some of which complained of the Companies’ refusal
to bargain with MM&P and of union-busting (thus meaning
that MM&P wanted to return to a representative position,
i.e., sought recognition); some of which complained of
union-raiding, that MM&P was being replaced by ‘‘finks’’
and ‘‘scabs,’’ that ‘‘members of the AFL–CIO [were] taking
our jobs’’ (meaning that MM&P wanted to get its jobs
back),83 and that MEBA was undermining MM&P’s negoti-
ating position by offering lower wages, manning scales, va-
cations, and other benefits (shades of the past litigationl); and
others of which complained of a lockout, the loss of 78 ves-
sels, and loss of ‘‘union jobs’’ and jobs that had been histori-
cally contracted to MM&P, and loss of ‘‘security.’’
Thus, there were the same indicia of illegal objectives dur-
ing the period of the picketing as there were when MM&P
was conducting its job action. Although I have taken
Lowen’s date of the changeover to picketing from job action
as mid-October, his testimony was contradicted by others.
MM&P Representative Haa testified that the job action did
not end until the district court’s injunction issued. Martin
said the same, too, but at other points of his testimony said
that (1) the job action ended when the officers of the last
vessel to complete a voyage after 3 October terminated arti-
cles in early November; and (2) that picketing sites author-
ized by MM&P were wherever the job action was taking
place, thus indicating the inseparability of the two. Commu-
nications from MM&P were issued on 30 October entitled
‘‘job action update,’’ throughout November referring to the
‘‘job action,’’ and on 2 January 1985 complaining of a
‘‘total lack of support for our job action.’’ Perhaps of great-
est interest is Lowen’s telex of 14 November, which he
called an update on the tanker job action. In it, he wrote
about the picketing which was continuing on all runaway
tankers, pilot support and observance of the picket lines, and
continuing efforts by MM&P’s counsel to enforce MM&P’s
claims against MTL and MOC that MM&P continues to
have collective-bargaining agreements.
Port job action expenses incurred throughout November
were reimbursed by international headquarters. Fines were
issued against licensed deck officers in December for con-
tinuing violations of Lowen’s 3 October job action directive;
and a number of fines were levied for conduct commencing
on 18 October, a date when the job action had allegedly
ended and the area standards picketing had allegedly com-
menced. Neal R. Wood, a Keystone chief mate, was fined
over $30,000 for conduct occurring on 18 October; Julius L.
Perkins, an MTL master, $500, plus twice his daily wages
per day for his ‘‘failure to support and comply with an offi-
cially ordered job action sit down strike’’ by failing to stop
work on 19 October; Constantinos Vafiades, a Keystone sec-
ond mate, over $22,000 plus daily fines for his conduct on
1 November; Edward Welch, an MOC chief mate, $5000 per
month ‘‘beginning October 25th, 1984; the fine to continue
as long as Edward Welch continues to work on non-MM&P
contract vessels;’’ and Loyd H. Newton, an MM&P pilot,
$10,000 for his working ‘‘on 27 November 1984, when the
Energy Independence was coming in the Harbor of Norfolk’’
and $3000 for each additional voyage.
No object of MM&P’s job action appears to have changed
between early October and late October; and I find the area
standards picketing merely a facade for MM&P’s real ob-
jects. Service Employees Local 9 (United Artists), 272 NLRB
685 (1984); Millmen-Cabinet Makers Union Local 550 (Dia-
mond Industries), 227 NLRB 196 (1976). As expressed by
MM&P Assistant Port Agent Harry in trying to convince
MEBA to honor MM&P’s picket line: ‘‘It is a strike. It’s a
picket line. . . . you saw the [Kirkland] telex and you know
that this is a picket line. . . . And we want all the support
we can get from anyone who’ll give it. Our people aren’t
working, not MM&P people. We are on strike, but we can’t
use that word on the signs because we’re classed as super-
visors and the companies can get injunctions and take down
the lines if we put the wrong things on the signs.’’84
By Lowen’s admission, the area standards picketing com-
menced as a ‘‘second phase’’ because the first phase, the job
action, had failed. The picketing did not commence because
the job action had attained its recognitional and replacement
objectives. The 3 October job action directive stayed in ef-
fect and was never rescinded, repudiated, or abandoned.
MM&P started the picketing only because at least part of the
job action had lost its significance. That part was really irrel-
evant, because there was no one to conduct a sitdown strike.
What remained is that loyal MM&P members were not to
work for the Companies, and the picketing was intended fur-
ther, in Lowen’s words, to hurt the Companies.
Thus, contrary to Lowen, the job action and the picketing
did not parallel each other with different purposes; but they
both remained in effect. Other than the use of the sub-
standard sign, there is nothing to indicate that MM&P
changed its objectives. There was no hiatus between the ille-
gal job action and the allegedly legal area standards pick-
eting; it is impossible to pinpoint that moment of time when
561MASTERS, MATES & PILOTS (MARINE TRANSPORT)
85 George Roch was not overruled by Florida Power & Light, as MM&P
argues; and, by citing George Roch in Westchester Marine, the Board has con-
sidered the George Roch rationale still viable. Florida Power & Light is thus
not limited to restraint and coercion solely with respect to the selection of
8(b)(1)(B) representatives but refers to the establishment of those representa-
tives’ wages and conditions of employment. To the contrary, MM&P in New-
port Tankers left up to the employer’s discretion the terms and conditions of
the representative’s employment. Furthermore, unlike Florida Power & Light,
a union discipline case, here MM&P’s job action and picketing directly co-
erced the Companies in their selection of their representatives. See Westchester
Marine, 539 F.2d at 560–561.
86 Some of the Companies also rely on Newport Tankers to the extent that,
if they had to increase their wages and benefits to the level insisted on by
MM&P, they might be financially unable to afford as many licensed deck offi-
cers, thus reducing the number of their 8(b)(1)(B) representatives. Of course,
present Board law is that it is not an unfair labor practice to picket to add
an officer, although the Board’s dismissal of the complaint was not enforced
by the Fourth Circuit. But it appears a different case when costs have to be
raised to such an extent that there is clearly the threat that the Companies,
which wanted to designate three 8(b)(1)(B) representatives, could only des-
ignate two. However, there is no reasonable expectation that the Companies
would do so because, except as indicated above, they did not do so when they
repudiated their relationship with MM&P. Furthermore, they could be prohib-
ited from reducing their complement of officers below three, except in certain
circumstances, by the Federal Shipping Act. 46 U.S.C. §§ 8104(d) and 8301.
MM&P’s illegal objects changed; and there is nothing to in-
dicate that MM&P disclaimed the recognitional and replace-
ment objects of its job action. I refuse to believe that any-
thing changed. McClintock Market, 244 NLRB 555, 556
(1979); Electrical Workers IBEW Local 3 (Hunts Point Elec-
trical), 271 NLRB 1580 (1984). I find merely different
means to the same ends, Laborers Local 275 (S. B. Apart-
ments), 209 NLRB 279, 284 (1974); and the timing of the
commencement of the area standards picketing, so soon after
the first unfair labor practice charge was filed in this pro-
ceeding, leads me to believe that the picketing was merely
a reaction to the charge, and nothing more. I thus find that
the picketing, with its illegal objects, violated Section
8(b)(1)(B) of the Act.
The General Counsel, MTL, Keystone, and MOC contend
that, assuming arguendo that MM&P’s picketing was to pro-
test the Companies’ substandard wages, vacations, and other
benefits, the picketing nonetheless violated Section
8(b)(1)(B), citing Sheet Metal Workers Local 17 (George
Roch Sons), 199 NLRB 166 (1972). There, the union charged
and fined a union member-company supervisor who adjusted
grievances for working for less than the area wage, being
paid for 40 hours while working more hours, having no
health and welfare and pension contributions paid on hours
worked, and contracting to do business on a basis other than
that provided in the area contract. The union also struck the
employer twice to compel it to pay to the supervisor back
wages and overtime and to make payments to the union’s
health and welfare and pension plans. The Board found that
both the fine and the work stoppage violated the Act. It
wrote, 199 NLRB at 167–168:
[The fine] related directly . . . to the very process of
supervisory selection by Respondent. If an employer is
to be free from union coercion in the selection of per-
sons who are to serve the employer as its representa-
tives, then surely the employer must be free from union
coercion in the matter of setting the terms of such rep-
resentatives’ employment. Thus to fine one who agrees
to serve as an employer’s representative solely because
he and the employer agreed on terms and conditions of
employment which the union may find objectionable
must necessarily have an inhibiting effect—and indeed
a coercive effect–on the employer in his future selec-
tion of representatives. And this is true no matter at
what point in time the fine itself may have been im-
posed. The message to the employer will be clear for
the future—don’t select a supervisor unless the union
approves of the terms and conditions of his employ-
ment.
As the above comments suggest, we are also unwill-
ing to accept the Trial Examiner’s conclusion that
Ziltener was not charged with any violation relating to
his supervisory status but was fined solely for violation
of Local 17 rules. Those rules, as applied by the Union
here, would permit the union to dictate the terms and
conditions under which an employer could select and
engage its management representatives. That seems to
us such a clear interference with the freedom of the em-
ployer to select his representatives as to constitute an
open and obvious violation of Section 8(b)(1)(B). We
think it equally clear that the work stoppages which
were initiated by Respondent were for the purpose of
requiring Roch to accede to the union-dictated terms
and conditions of Ziltener’s employment and thus co-
erced the Employer in the same manner as the fines
levied on Ziltener himself, and we find such conduct on
the part of the Union also to be violative of Section
8(b)(1)(B).
In Westchester Marine, the Board rejected MM&P’s argu-
ment that Section 8(b)(1)(B) was not intended to prohibit it
from picketing in order to prevent the erosion of labor stand-
ards which MM&P established over years of collective bar-
gaining. Although that statement was made in the context of
a finding that MM&P was picketing to rid MEBA from the
vessels and to obtain recognition and/or a collective-bar-
gaining agreement, it is difficult to reconcile the concepts
that, if MM&P may not picket to prevent the erosion of
labor standards it established, it may picket for the same
‘‘area standards’’ which it established. The Board found that
MM&P’s entire course of conduct was to coerce the employ-
ers to cancel their contracts with MEBA and to fire the
MEBA masters and mates and hire MM&P masters and
mates, that is, to secure recognition and impose MM&P’s
contract. That conduct, which interfered with the employers’
freedom to set the terms and conditions of Section 8(b)(1)(B)
representatives, necessarily interfered with the employers’ se-
lection of persons to act as their representatives ‘‘in the con-
text of this case,’’ citing George Roch, 219 NLRB at 27.85
The Board did not spell out what the special context was,
but the Fifth Circuit relied on facts which are different from
the instant case: that because MEBA had a contract,
MM&P’s attainment of its higher standards would have com-
pelled MEBA to forbid its members from serving on the ves-
sels because its contracts would have been breached. There
was a threat to MEBA’s competitive advantage in represent-
ing licensed deck officers, an advantage which would be
erased if MM&P’s picketing were successful.86 But George
Koch is not based on any such rationale. The employer there
hired a supervisor for certain wages and other conditions of
employment, including contributions to his home local
union’s welfare and pension plans. The union respondent
562 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
87 Under the prevailing analysis, it makes no difference that the employees
may be paid more but at less expense to the employers, a rather curious result.
Thus, even assuming that the Companies offered their supervisors a pension
plan which guaranteed more benefits when the supervisor retired than that
granted by MM&P’s pension plan, which costs more, MM&P seeks to dictate
to the Companies even greater benefits to their supervisors than would be ob-
tained under the MM&P contract.
88 In light of my conclusions, it is unnecessary to consider the myriad of
other issues briefed by the parties, including whether MM&P’s claim that the
Companies’ wages, vacation, and other ‘‘paid’’ working conditions were sub-
standard to MM&P’s area standards. Because MM&P has been willing to
make special contracts with certain employers, with each contract being dif-
ferent, some containing lower wages and vacations as low or lower than that
afforded by some of the Companies, the Companies have presented compelling
arguments that MM&P has no standard to protect and, thus, the area standards
picketing is fatally defective. MM&P has a most difficult task to argue co-
gently that the Companies may legitimately be picketed for violating a stand-
ard which MM&P has violated in numerous contracts. Indeed, Lowen’s de-
fense, in part, relies on his professed recognition that the fragmentation of the
tanker industry effectively blocked negotiations of a standard tanker agree-
ment, which implies that there can be no standards for which MM&P could
picket.
89 The Supreme Court comprehensively reviewed the history of Sec.
8(b)(1)(B) in Florida Power & Light v. Electrical Workers, 417 U.S. 790
(1974).
struck to ensure that the supervisor was paid an amount con-
sistent with that union’s contract, including payment to that
union’s health and welfare and pension plans. The Board
held that that was an attempt to dictate to the employer the
terms of the supervisor’s employment.
Although ‘‘area standards’’ seeks only that the employer
pay an amount equivalent to the costs paid by employers
who constitute the standard in that area, Retail Clerks Local
1557 (Giant Food), 241 NLRB 727, 728 (1979),87 it is for
the employer to determine how its total costs for its super-
visors should be divided. Here, of course, MM&P went be-
yond pure ‘‘area standards’’ by complaining in its signs
about substandard vacations, a patently clear intrusion upon
the Companies’ right to set their own terms and conditions
of employment. And, really, the aim of this picketing, when
considered together with the fines of the MM&P members
who allegedly failed to comply with the 3 October directive,
was, if not to have MM&P members quit their jobs, to force
the Companies to increase their total costs for their super-
visors to a certain amount. Even though that (other than va-
cations) did not dictate specific terms of employment, it was
enough to restrain the Companies. Just as the supervisor in
George Koch was willing to work for a specific amount, the
masters and mates who agreed to work on the Companies’
vessels were, too; and under that authority, MM&P was not
privileged to picket to restrain the Companies from selecting
8(b)(1)(B) supervisors in the manner which the Companies
desired.
What MM&P has done is to tell its members that they
may not work under the terms of the wage and benefit pack-
ages which the Companies have offered. They may work for
the Companies only when their wage and benefit packages
reach a level equal to those of MM&P’s tanker or dry cargo
agreement. In its essence, MM&P has attempted to limit the
Companies from freely choosing its 8(b)(1)(B) representa-
tives to only that population which wishes to ensure that the
Companies’ labor costs (not benefits to the supervisor) are
equal to that which MM&P claims is the standard cost.
George Koch prevents that, and I conclude that even true
area standards picketing by MM&P would coerce employers
to raise their wage and benefit package for their 8(b)(1)(B)
representatives and would thus inhibit their selection of such
representatives, in violation of Section 8(b)(1)(B) of the
Act.88
Finally, in addition to the job action and substandard pick-
eting, there was evidence of various threats of violence in
mid- to late October directed against Keystone and MOC su-
pervisors and a Keystone attorney, all committed in the pres-
ence of statutory employees or, at least, where statutory em-
ployees were in the vicinity of the conduct, and one series
of threats directed at a Keystone employee. All violate Sec-
tion 8(b)(1)(A) of the Act. The threats to the employee re-
quire no explanation. With respect to the others, the theory
is that a threat of violence nis calculated to serve as a warn-
ing to nonstriking employees who hear it or may reasonably
be expected to learn of it, that like violence may be inflicted
upon them if they do not support the labor organization in
the activity in which it is engaged.’’ Retail Wholesale Union
(I. Posner, Inc.), 133 NLRB 1555, 1566 (1961); Furniture
Workers (Brooklyn Spring), 113 NLRB 815, 822 (1955),
enfd. 233 F.2d 539 (2d Cir. 1956); Bartenders Local 2
(Zim’s Restaurants), 240 NLRB 757 (1979). In addition, the
threats of violence directed at the supervisors personally vio-
lated Section 8(b)(1)(B), because they necessarily tended to
restrain and coerce the second mate of the Puerto Rican and
the master of the Juneau, to wit, they had a reasonable tend-
ency to force them to leave their jobs. Broadway Hospital,
244 NLRB 341, 345–346 (1979).
I. The Legality of MM&P’s Fines and Threats to Fine
Prior to 1968, the Board interpreted Section 8(b)(1)(B) to
prohibit coercion or restraint by a union upon an employer
to force him into a multiemployer unit or to dictate or con-
trol the employer’s choice of the person to do its collective
bargaining and grievance adjustment.89 In 1968, the Board
held in San Francisco-Oakland Mailers’ Union 18 (North-
west Publications), 172 NLRB 2173, that a union may not
fine a supervisor-member because, in carrying out his super-
visory duties, he construed a contractual provision adversely
to the union. Thus, the Board for the first time applied Sec-
tion 8(b)(1)(B) to pressure directly on the supervisor which
only indirectly coerced the employer. The Board held at
2173:
That Respondent may have sought the substitution of
attitudes rather than persons, and may have exerted its
pressures upon the Charging Party by indirect rather
than direct means, cannot alter the ultimate fact that
pressure was exerted here for the purpose of interfering
with the Charging Party’s control over its representa-
tives. Realistically, the employer would have to replace
its foremen or face de facto nonrepresentation by them.
The Board expanded on Oakland Mailers within the next
few years to encompass within the bounds of Section
8(b)(1)(B) any discipline of a supervisor when he was en-
gaged in management or supervisory activities and the dis-
cipline interfered with the supervisor-member’s representa-
tion of his employer’s interest, even though his collective-
bargaining or grievance adjustment duties were not involved.
563MASTERS, MATES & PILOTS (MARINE TRANSPORT)
See, for example, Toledo Lithographers (Toledo Blade), 175
NLRB 1072 (1969), enfd. 437 F.2d 55 (6th Cir. 1971).
That expansion was halted by Florida Power & Light,
which involved union fines of supervisor-members for cross-
ing picket lines and performing rank-and-file struck work
during lawful economic strikes against their employers. Some
of the supervisors were members of the bargaining units and
some were not, and ‘‘rank-and-file struck work’’ was defined
as ‘‘work normally performed by the nonsupervisory em-
ployees then on strike.’’ Id. at 792. The Supreme Court
found no violation, stating:
The conclusion is thus inescapable that a union’s dis-
cipline of one of its members who is a supervisory em-
ployee can constitute a violation of Section 8(b)(1)(B)
only when that discipline may adversely affect the su-
pervisor’s conduct in performing the duties of, and act-
ing in his capacity as, grievance adjuster or collective
bargainer on behalf of the employer. [Id. at 804–805.]
The Court noted that, if there were a question of the ‘‘con-
flict of loyalties’’ of supervisors, Congress had addressed
that through provisions which excluded supervisors from the
protection of the Act, thus permitting an employer to refuse
to hire union members as supervisors, to discharge super-
visors because of their union activities, and to refuse to en-
gage in collective bargaining with them. Otherwise, in Sec-
tion 8(b)(1)(B) Congress was exclusively concerned with
union attempts to dictate to employers who would represent
them in collective bargaining and grievance adjustment. Id.
at 803.
The Court assumed, without deciding, that Oakland Mail-
ers fell within the outer limits of its Florida Power & Light
holding, 417 U.S. at 805, as it did when faced with its next
union fine case, American Broadcasting Co. v. Writers
Guild, 437 U.S. 411, 436 (1978). There, the union fined
members who had crossed a picket line during a strike and
had performed only their regular supervisory duties, includ-
ing the adjustment of grievances. The Board found a viola-
tion. The Court held that the Board properly limited its in-
quiry to whether the fines adversely affected the supervisors’
performance of their collective-bargaining and grievance ad-
justment duties, id. at 430, and approved the Board’s infer-
ence that union discipline could adversely affect the perform-
ance of the supervisor’s grievance and adjustment duties ei-
ther during or after the strike. Id. at 432. When an 8(b)(1)(B)
representative has been disciplined for performing only reg-
ular supervisory functions, the Board has consistently found
a violation. See, for example, Machinists Local 297 (Globe
Machine), 272 NLRB No. 50 (Sept. 25,1984) (not reported
in Board volumes).
In Columbia Typographical Union No. 101 (Washington
Post), 242 NLRB 1079 (1979), the Board was presented with
what it termed a ‘‘factual situation which falls between . . .
Florida Power and ABC’’—union fines against supervisor-
members ‘‘who crossed a picket line to work during a lawful
strike and to perform regular supervisory duties as well as
a more than minimal amount of rank-and-file work.’’ Id. at
1080. The Board held that a fine against a supervisor who
performs more than a minimal amount of rank-and-file work
cannot give rise to a violation of Section 8(b)(1)(B) because
‘‘it does not follow that the reasonably foreseeable effect of
the union’s discipline of the supervisor-member is to dimin-
ish his ability to perform his 8(b)(1)(B) duties. Rather, it
must be inferred, and the probabilities indicate, that the
union discipline will serve to affect adversely and to deter
the supervisor-member’s willingness to perform rank-and-file
struck work during an employer-union dispute.’’ Id. at 1081.
This proceeding obviously involves another in-between sit-
uation which may not occur with the frequency of other
union fine cases, for here, MM&P’s members are all super-
visors of the Companies. In ABC, supervisors could be fined
for performing the struck work which was not the work they
ordinarily performed. Here, to the contrary, the struck work
is the supervisors’ work; and many of the supervisors merely
performed on and after 3 October precisely the same kind of
work that they had performed on 2 October. One other dif-
ference between the MM&P strike and the strikes involved
in the cited decisions is that I have concluded that the
MM&P strike is unlawful, whereas the Court and the Board
specifically referred to the strikes in the cited decisions as
‘‘lawful.’’
It is true that Florida Power & Light makes clear that the
Companies could have insisted that their supervisors not be
members of any union, including MM&P; and the various
supervisors, I infer, held on to their membership in MM&P
because it was beneficial to them (death benefit, welfare
plan, and the like). Furthermore, the MM&P members were
not ordered to continue work by the Companies. They were
given the option of remaining on board or leaving the ves-
sels. Those who chose to remain on board knew well that
they were not complying with Lowen’s directive and they
took the risk that, if the directive were lawful, they might be
found in violation of MM&P’s lawful orders.
However, ABC found that Congress specifically protected
the rights of employers to designate collective bargainers and
grievance adjusters of their own choice and that is paramount
to the right of a union to punish its own members. The Court
wrote, 437 U.S. at 430–431:
[A]n employer also has economic rights during a strike,
and the statute declares that in the unrestrained freedom
to select a grievance-adjustment and collective-bar-
gaining representative, the employer’s rights dominate.
Ample leeway is already accorded to a union in permit-
ting it to discipline any member, even a supervisor, for
performing struck work—to carry that power over to
the case of purely supervisory work is an inappropriate
extension and interference with the employer’s preroga-
tive.
The Supreme Court has instructed in ABC that: ‘‘The inquiry
whether union conduct would or might adversely affect the
performance of the [licensed deck officers’] Grievance-ad-
justment duties is . . . necessarily a matter of probabilities,
and its resolution depends much on what experience would
suggest are the justifiable inferences from the known facts.’’
Id. at 432.
I find that the 3 October directive was effective in its pur-
pose of warning officers that, if they refused to comply, their
names would be turned in to MM&P. Officers who had indi-
cated their intention to remain in the Companies’ employ
under their new terms and conditions of employment
changed their mind and complied with the directive. The im-
564 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
90 Respondent argues that one of the Companies agreed to pay the fines, if
any. However, that obligation would put pressure directly on the Companies
to determine whether to pay for an officer’s labors twice or three times the
wages (the wages, plus the fine) or to terminate the officer’s employment. The
Companies walked away from MM&P in order to become competitive by re-
ducing their costs. Probabilities indicate that the Companies would prefer to
save the money.
91 MM&P’s memorandum of law contends that the tendered resignations
were viewed by MM&P in a ‘‘dual light.’’ First, it feared that the acceptance
of the resignation would foreclose its ability to proceed against the member
in a disciplinary hearing. Not only do I find no rationale in the record for this
statement but also I find the contention unreal. Second, it ‘‘acknowledged that
the tendering of a resignation cut off continued liability for acts committed
after the tender.’’ But it never did. All that is in the record is Lowen’s opinion
that: ‘‘any action [the member] takes after his notice of resignation, clearly
no one can try him for.’’ But MM&P did, and Martin never told the members
that they were absolved from responsibility after the date of their resignations.
There are at least five trial proceedings, attended by MM&P representatives
as ‘‘charging officers’’ and MM&P attorneys, at which members (Hoglund,
Reichhelm, Welch, Wood, and Vafiades) were fined for periods after they had
attempted to resign.
92 That MM&P may never return to its former status of a collective-bar-
gaining representative on the Companies’ vessels or that the licensed deck of-
ficers are grievance adjusters only with respect to employees represented by
unions other than MM&P makes no difference. Id. at 437–438 fn. 37.
plicit threat of discipline contained in it could have been
avoided only by the officers’ refusal to perform their duties
(including grievance adjusting) and participating in the job
action. Carpenters (A. S. Horner), 177 NLRB 500 (1969),
enfd. 454 F.2d 1116 (10th Cir. 1972), cited with approval in
Carpenters (Skippy Enterprises), 211 NLRB 222 (1974),
enfd. 532 F.2d 47 (7th Cir. 1976). A number of officers in-
sisted on being removed from their vessels by arrest or legal
instrument in order to ensure that they were complying with
all phases of the directive and would not have charges
brought against them. As to those who remained in employ-
ment, the pressure of the fines levied on them both before
and after hearing would make it probable that many officers
would quit their jobs, rather than remain and lose their pay,
or even twice their pay, for the privilege of working.90 In
both instances, the Companies either were deprived or would
be deprived of their 8(b)(1)(B) representatives.
As noted above, various of the strike (trial) committee
fined MM&P members $500, and double their salaries there-
after, without notice or hearing. MM&P’s counsel in their
memorandum of law concede that these fines were illegal
(the constitutional provision being a ‘‘pre-LMRDA anachro-
nism’’), but that does not allay the fears of the vessels’ offi-
cers, who had ample cause to believe that they were losing
rather than making 1 day’s wages each day that they sailed.
Martin may cavalierly disregard the attempts of members to
resign from membership, without constitutional authority;91
but supervisors were fined hundreds of dollars for each day
that they continued not to comply with Lowen’s directive.
MM&P’s counsel in their memorandum of law assures the
Board and the licensed deck officers that the fines will not
be levied past the date of the attempted resignations, despite
the fact that the attempts were rejected, but counsel’s present
contention gave little assurance to those on board the Com-
panies’ vessels in October, November, and December that
they were not deeply in debt.
As the Supreme Court stated, supervisors ‘‘were thus
faced not only with threats but also with the actuality of
charges, trial, and severe discipline simply because they were
working at their normal jobs. . . . How long such [super-
visors] would remain on the job under such pressure was a
matter no one, particularly the employer, could predict.’’
ABC, 437 U.S. at 434. I do not believe it untenable that the
affected Companies might be deprived of 8(b)(1)(B) rep-
resentatives of their own choosing, simply because they were
driven away. And, should the pressure be relieved, and there
be another strike, and more directives and fines forthcoming
from MM&P, would it not be reasonable for the Companies
to feel uncertain whether their supervisors would answer
their call to duty? Id. at 435.92
Such a likely impact on the Companies ‘‘constitutes suffi-
cient restraint and coercion in connection with the selection
of collective-bargaining and grievance-adjustment representa-
tives’’ to violate Section 8(b)(1)(B). Id. at 435–436. In addi-
tion, I have found that MM&P’s job action violated Section
8(b)(1)(B) and therefore the strike was not ‘‘lawful.’’ The
Board has held that, in such circumstances, fining a super-
visor-member for refusing to honor a directive not to strike
is a separate and independent unfair labor practice because
it has the necessary and foreseeable tendency to coerce the
Companies into acquiescing in MM&P’s unlawful objectives.
Columbia Typographical Union No. 101 (Byron S. Adams),
219 NLRB 88, 90 fn. 3 (1975); Mississippi Gulf Coast
Building (Roy C. Anderson Jr., Inc.), 222 NLRB 649, 650
(1976), enfd. 542 F.2d 573 (5th Cir. 1976); Carpenters (Pace
Construction), 222 NLRB 613, 618 (1976), enfd. 560 F.2d
1015 (10th Cir. 1977). The numerous threats of discipline if
the officers failed to comply with the 3 October directive and
the commencement of internal union proceedings, issuance of
fines, conduct of trials, and issuance of decisions—all con-
stitute independent violations of Section 8(b)(1)(B) of the
Act.
Finally, there is sufficient evidence in this record showing
that MM&P also brought charges against and fined its pilot-
members for not withholding their services from the Compa-
nies. For the same reason as above, MM&P violated Section
8(b)(1)(B) because the fines have the necessary and foresee-
able tendency to coerce the Companies into acquiescing in
MM&P’s unlawful objectives.
Accordingly, I conclude that MM&P’s charges, fines, and
threats to fine are all violations of Section 8(b)(1)(B). In par-
ticular, Johnston was fined, notwithstanding the fact that he
appears to have performed no rank-and-file work. MM&P’s
memorandum of law concedes that: ‘‘There may also have
been charges preferred by members against a handful of
management representatives who did not perform bargaining
unit work.’’ It would appear that, in any event, this fine vio-
lates the Board’s rule in Columbia Typographical Union No.
101 (Washington Post), supra, and violates Section
8(b)(1)(B).
J. Job Action and Area Standards Picketing: Revisited
MTL, Keystone, and MOC challenge the rationale of the
earlier MM&P decisions and their emphasis on MM&P’s ob-
jective intent. They contend that intent is irrelevant in deter-
mining whether Section 8(b)(1)(B) has been violated. The
only statutorily protected right is the employer’s right to be
free from restraint or coercion in selecting its grievance-ad-
justers and however, with what objective, the restraint oc-
curs, makes no difference. That would appear to be the rule
in the union discipline cases; the only question there is
565MASTERS, MATES & PILOTS (MARINE TRANSPORT)
93 I respectfully disagree in part. If MM&P were a union which consisted
solely of supervisors, it would not be subject to Sec. 8(b) of the Act because,
definitionally, it would not be a ‘‘labor organization.’’
94 MOC was forced to lay up the Overseas Marilyn, a dry cargo carrier, be-
cause it was likely that the ILA would honor MM&P’s picket line; and the
vessel wollld not be loaded or unloaded.
whether there was a restraint. If disciplinary action against
a supervisor is only indirect pressure on the employer and
coercion is illegal regardless of the union’s intent, then coer-
cion aimed directly at the employer, which should be subject
to lesser restrictions, should be illegal regardless of intent.
As noted above, in Florida Power & Light, the violation
of Section 8(b)(1)(B) occurs only when the discipline may
adversely affect the supervisor’s conduct in performing the
duties of or acting in the capacity of grievance adjuster. In
ABC, the Court approved of the Board’s inquiry into whether
the discipline may adversely affect the supervisor’s perform-
ance ‘‘and thereby coerce or restrain the employer contrary
to Section 8(b)(1)(B).’’ 437 U.S. at 430. The focus in both
decisions was on the tendency of the discipline to cause the
desired effect, and prompted Justice Stewart to complain in
dissent that ‘‘the Court’s decision prevents a union with su-
pervisory members from effectively calling and enforcing a
strike.’’ 437 U.S. at 441. To that he added footnote 3, antici-
pating this proceeding:
Under this rule, it would appear that a separate union
consisting entirely of supervisory employees would
commit an unfair labor practice if it ordered its mem-
bers not to cross the picket lines of another union, or
indeed, if it called an economic strike entirely on its
own, since the employer would thereby be deprived of
the services of his chosen grievance-adjustment rep-
resentatives. [Emphasis added.]93
Although the Board did not in its four prior decisions in-
volving MM&P delineate the ‘‘effects’’ analysis, it clearly
did so in the union fine cases, including the initial pro-
ceeding in ABC, sub nom. Writers Guild of America (Amer-
ican Broadcasting), 217 NLRB 957 (1975), as well as Chi-
cago Typographical Union No. 16 (Hammond Publishers),
216 NLRB 903 (1975), enfd. 539 F.2d 242 (D.C. Cir. 1976);
Typographical Union Local 6 (Daily Racing Form), 216
NLRB 896 (1975); Carpenters (Skippy Enterprises), supra;
and Sheet Metal Workers Local 85 (Suburban Sheet Metal),
273 NLRB 523 (1984). In one picketing case, the Board
avoided the union’s object and limited itself solely to the
issue of whether the union’s conduct tended to interfere with
the employer’s right to choose freely his grievance represent-
ative. International Typographical Union (American News-
paper), 86 NLRB 951, 958–959 (1949), enfd. sub nom.
ANPA v. NLRB, 193 F.2d 782, 805 (7th Cir. 1951), cert. de-
nied 344 U.S. 812 (1952); see also Meat Cutters Union
Local 81 v. NLRB, 458 F.2d 794, 801 fn. 20 (D.C. Cir.
1972).
As shown above, MM&P’s job action directly caused
many licensed deck officers to leave their jobs. By con-
sequence, under the effects rationale, the job action violated
Section 8(b)(1)(B). The area standards picketing also violated
the Act, but an analysis of it also demonstrates that an area
standards defense should not even be permitted to MM&P.
‘‘Area standards picketing is engaged in by a union to pro-
tect the employment standards it has successfully negotiated
in a particular geographic area from the unfair competitive
advantage that would be enjoyed by an employer whose
labor cost package was less than those of employers sub-
jected to the area contract standards.’’ Giant Food Markets,
241 NLRB 727, 728 (1979), citing Sales Delivery Drivers
Local 296 (Alpha Beta Acme Markets), 205 NLRB 462
(1973). The picketing is protected under Section 7 of the Act
as a right of employees to protect advancements that they
have made and has been applied by the Board in two par-
ticular instances to make legal picketing which otherwise
would be found illegal: to show that the real objective of the
picketing was not union recognition or bargaining under Sec-
tion 8(b)(4)(C), Hod Carriers Local 41 (Calumet Contrac-
tors), 133 NLRB 512 (1961), or under Section 8(b)(7)(C),
Houston Building Trades Council (Claude Everett Construc-
tion), 136 NLRB 321 (1962).
There is no such protected right for supervisors. The only
statutory right herein is the employer’s right under Section
8(b)(1)(B) to be free from restraint or coercion in selecting
its grievance adjusters. Unlike Section 8(b)(4)(C) and (7)(C),
where a violation depends on the object of the union’s pick-
eting, a violation of Section 8(b)(1)(B) would not appear to
be contingent on the union’s object. For example, object or
intent is irrelevant in determining whether the employees’
Section 7 right to bargain collectively through representatives
of their own choosing has been violated. American
Freightways Co., 124 NLRB 146, 147 (1959); Cooper Ther-
mometer Co., 154 NLRB 502, 503 fn. 2 (1965). It would
therefore follow that object should be irrelevant in deter-
mining whether the employer’s ‘‘correlative’’ right to select
its bargaining representative has been violated. Meat Cutters
Union Local 81 v. NLRB, 458 F.2d 794, 798 fn. 10 (D.C.
Cir. 1972). That appears to be the basis of the Board’s deci-
sion in Chicago Typographical Union 16 (Hammond Pub-
lishers), supra, a union fine case, where the majority dis-
posed of the minority’s ‘‘motivational type analysis,’’ 216
NLRB at 903 fn. 5, finding that only the adverse effects of
the discipline on the supervisor’s performance of his
8(b)(1)(B) duties are important.
Accordingly, I agree that the effects of MM&P’s actions
are of prime concern and that any activity, including pick-
eting by MM&P—as long as it remains a labor organization
subject to the Act—is illegal because a logical and foresee-
able effect must be that its lines will be honored. Electrical
Workers IBEW Local 46 (PAC, Inc.), 273 NLRB 1357
(1985). That is the reason for its picketing and the reason for
MM&P’s appeals to the AFL–CIO and other unions, the
picketing of MEBA, and the picketing by MM&P’s picket
boats—to hurt the Companies. The very nature of the tanker
industry may have contributed to the Companies’ success in
continuing their operations since 3 October. The tankers are
loaded and unloaded at separate docks and at anchorages
away from the docks. The success or failure of those oper-
ations is not affected by the participation of MM&P’S par-
ent, the ILA, and its member-longshoremen.94 It is affected
by access to pilots, tugboats, some longshore services, as
well as the unions representing other crewmembers, should
they reverse their positions and honor MM&P’s picket lines.
Any such effect must be enjoined to effectuate the policies
of Section 8(b)(1)(B) of the Act.
566 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
95 See generally Isis Plumbing Co., 138 NLRB 716 (1962).
96 In light of my conclusion that all MM&P’s picketing, no matter for what
purpose, violated the Act, I reject MM&P’s contention that its conduct has
been purged and corrected by reason of the 10(j) injunction.
97 Counsel for the General Counsel moved at trial and in a supplemental
motion to correct the official transcript in numerous respects. There being no
opposition, the transcript is hereby amended. The supplemental motion is re-
ceived in evidence as G.C. Exh. 259-B.
III. THE EFFECT OF THE UNFAIR LABOR PRACTICES
ON COMMERCE
The activities of MM&P set forth in section II, above, oc-
curring in connection with the operations of the Companies
described in section I, above, have a close, intimate, and sub-
stantial relationship to trade, traffic, and commerce among
the several States and tend to lead to labor disputes bur-
dening commerce and the free flow of commerce.
THE REMEDY
Having found that MM&P has engaged in unfair labor
practices within the meaning of Section 8(b)(1)(A) and (B)
of the Act, I shall recommend that it be ordered to cease and
desist therefrom and take certain affirmative action designed
to effectuate the policies of the Act. In particular, I shall
order the rescission of all the internal union disciplinary pro-
ceedings, including charges and fines, taken against licensed
deck officers and other personnel of or pilots performing
services for the Companies and shall order that any fines
paid be refunded, with interest, and that all travel or other
expenses incurred in attending and resisting the internal pro-
ceedings be reimbursed. Laborers Northern California Dis-
trict Council (Baker Co.), 275 NLRB 278 (1985). Because
I have found an 8(b)(1)(B) restraint against the Companies
by charging and fining their supervisors, the Companies are
similarly entitled to be reimbursed their expenses in employ-
ing counsel to defend their supervisors. These are expenses
incurred which would not have been incurred had MM&P
not violated the Act. Interest shall be computed as provided
in Florida Steel Corp., 231 NLRB 651 (1977).95 In addition,
in Cove Tankers, the Board issued a broad order ‘‘[i]n view
of [MM&P’s] demonstrated proclivity to engage in conduct
violative of Section 8(b)(1)(B).’’ 233 NLRB at 251. See also
Newport Tankers, 240 NLRB 1240 (1979). I shall do the
same with respect to the violations of Section 8(b)(1)(B).96
However, MM&P’s threats of violence and harassment ap-
pear to be new in its arsenal, and its violations of Section
8(b)(1)(A) are not sufficiently severe or widespread to war-
rant a broad order under that section.
Counsel for the General Counsel and MTL, Keystone, and
MOC have requested that the recommended Order should be
published in MM&P’s official newspaper. I shall recommend
this relief, too. The normal posting of the notice may be in-
sufficient to advise all of MM&P’s members of the relief
granted here, especially because MM&P’s members are fre-
quently employed at sea for periods of time well in excess
of the usual 60-day notice posting period. See also Electrical
Workers IBEW Local 3 (Northern Telecom), 265 NLRB 213
(1982). I shall not, however, recommend the Companies’ re-
quested relief of an order barring MM&P’s refusal to accept
the resignations of licensed deck officers and prohibiting
MM&P from instructing various fringe benefit plans not to
grant benefits to licensed deck officers. Neither was the sub-
ject of the unfair labor practice complaint and the second
item was not fully litigated. As to the first, the ban on res-
ignations from a labor organization is a subject of Section
8(b)(1)(A), which protects statutory employees, not super-
visors.
[Recommended Order97 omitted from publication.]