Otter Trawlers Union, Local 53

National Labor Relations Board - Board Decisions

Sep 19, 1952

100 N.L.R.B. 1187 (N.L.R.B. 1952)

OTTER TRAWLERS UNION, LOCAL 53 1187
V. THE REMEDY
Having found that the Respondent Local has violated Section 8 (b) (4) (A)
of the Act, it will be recommended that it cease and desist therefrom and take
the affirmative action stated below, which it is found is necessary to effectuate
the policies of the Act.
Upon the basis of the foregoing findings of fact and the entire record in the
case, I make the following :
CONCLUSIONS OF LAW
1. Seafarers' International Union of North America, AFL, and Internationtn,l
Brotherhood of Firemen and Oilers, Local 249, AFL, are labor organizations
within the meaning of Section 2 (5) of the Act.
2. By inducing and encouraging employees of Hammermill Paper Company
to engage in a concerted refusal in the course of their employment to handle
shipments arriving on vessels of the Hall Corporation, with an object of re-
quiring Hammermill Paper Company to cease doing business with the Hall
Corporation, the Respondent International Brotherhood of Firemen and Oilers,
Local 249, AFL, has engaged in unfair labor practices within the meaning of
Section 8 (b) (4) (A) of the Act.
3. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
4. Respondent Seafarers' International Union of North America. AFL, has
not engaged in the unfair labor practices alleged in the complaint.
[Recommendatons omitted from publication in this volume.]
OTTER TRAWLERS UNION, LOCAL 53 and ARTHUR B. ABELSEN
OTTER TRAWLERS UNION, LOCAL 53 and JOHN GEISNESS . Cases No&
19-CA-495 and 19-CB-171. September 19, 1952
Decision and Order
On March 5, 1952, Trial Examiner Howard Myers issued his In-
termediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. The Trial Examiner also recom-
mended dismissal of the complaint with respect to certain conduct
by the Respondent alleged to be violative of the Act. Thereafter,
the charging parties filed exceptions to the Intermediate Report and
a supporting brief.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Members Houston, Murdock, and
Styles].
100 NLRB No. 187.
227260-53-vol. 100-76
1188 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and brief, aRd the entire record in the
case. No exceptions were filed by the Respondent or the General
Counsel. The exceptions filed by the charging parties are directed
only to the remedy and recommended order in the Intermediate Re-
port. Because no exceptions have been filed to the Trial Examiner's
findings and conclusions, we hereby adopt them without passing on the
merits. We shall, however, modify his recommended order.
To remedy the violations found in this case, the Trial Examiner
recommended alternative courses of action which the Respondent
could elect to take. Essentially, each alternative was designed to
safeguard the rights under the Act of employees on vessels engaged
in bottom fishing in the Puget Sound area. In excepting to these
alternatives, the charging parties assert these rights will not be
sufficiently assured thereby, and would have the Board enlarge upon
the Trial Examiner's recommendations. Upon full consideration
of all the facts and circumstances of this case, we believe that the
effects of the several violations found herein can best be remedied,
and the rights under the Act of employees can most effectively be
protected in the future, by requiring the Respondent to take the-
action directed in the following order.
Order
Upon the entire record in the case and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the Respondent, Otter Trawlers Union,
Local 53, Seattle, Washington, its officers, agents, successors, and
assigns, shall :
1. Cease and desist from :
(a) Bargaining for and representing employees who work for
vessel owners and captains who are its members in any matters con-
cerning grievances, labor disputes, wages, rates of pay, hours of
employment, or other conditions of employment.
(b) Performing or giving effect to its 1942 contracts with vessel
owners and captains or to any modification, extension, supplement,
or renewal thereof, or to any other contracts, agreements, or under-
standings with said vessel owners and captains relative to grievances,
labor disputes, wages, rates of pay, hours, of employment, or other
conditions of employment.
(c) Causing or attempting to cause vessel owners and captains
to deny employment to their present or prospective employees because
such employees are not its members in good standing.
OTTER TRAWLERS UNION, LOCAL 53 1189
(d) Performing or giving effect to the resolution adopted at its
December 28, 1950, meeting concerning the employment of Arthur
B. Abelsen.
(e) In any other manner restraining or coercing employees or
prospective employees of vessel owners and captains in the exercise
of their right to self-organization, to form labor -organizations, to
join or assist any labor organization, to bargain collectively through
representatives of their own choosing, to engage in concerted activi-
ties for the purpose of collective bargaining or other mutual aid or
protection, or to refrain from any or all of such activities, except to
the extent that such right may be affected by an agreement requir-
ing membership in a labor organization as a condition of employ-
ment, as authorized in Section 8 (a) (3) of the Act.
2. Take the following affirmative action which we find will effectu-
ate the policies of the Act :
(a) Immediately withdraw as the collective bargaining repre-
sentative of the employees of vessel owners and captains who are
its members in any matters concerning grievances, labor disputes,
wages, rates of pay, hours of employment, or other conditions of
'employment.
(b) Immediately rescind the resolution adopted at its December
28, 1950, meeting concerning the employment of Arthur B. Abelsen,
and notify its members, in writing, of its rescission.
(c) Post at its office at. S,eattle,, `Vashington, copies of the notice
attached hereto and marked "Appendix.", Copies of said notice,
to be furnished by the Regional Director for the Nineteenth Region,
shall, after being duly signed by a representative of the Respondent,
be posted by it immediately upon receipt thereof, and maintained by
it for sixty (60) consecutive days thereafter in conspicuous places,
including all places where notices to its members are customarily
posted. Reasonable steps shall be taken by Respondent to insure
that said notices are not altered, defaced, or covered by any other
material.
(d) Mail to the Regional Director for the Nineteenth Region a
sufficient number of signed copies of the aforesaid notice, together with
the names and addresses of the vessel owners and captains of the ves-
sels on which the employees subject to its contracts are employed, so
that the notices may be sent to these vessels for posting in places where
notices to crew members are customarily posted.
(e) Notify the Regional Director for the Nineteenth Region, in
writing, within ten (10) days from the date of this Order, what steps
Respondent has taken to comply herewith.
a In the event that this order is enforced by a decree of a United States Court of Appeals,
there shall be substituted for the words "Pursuant to a Decision and Order" the words
"Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order."
1190 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
AND IT IS FURTHER ORDERED that the complaint be, and it hereby is,
dismissed insofar as it alleges that the Respondent violated Section 8
(a) (3) and 8 (b) (2) of the Act with respect to the employment of
Arthur B. Abelsen.
Appendix
NOTICE TO ALL OFFICERS, REPRESENTATIVES, AGENTS, AND MEMBERS OF
OTTER TRAWLERS UNION, LOCAL 53
Pursuant to a Decision and Order of the National Labor Relations
Board and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify you that :
WE WILL NOT perform or give effect to the 1942 contracts
entered into by and between us and vessel owners and captains
engaged in bottom fishing in the Puget Sound area.
WE WILL NOT continue to act as collective bargaining repre-
sentative for any employees of vessel owners and captains who are
members of Otter Trawlers Union, Local 53, in their dealings with
their respective employers concerning grievances, labor disputes,
wages, rates of pay, hours of employment, or other conditions of
employment.
WE HAVE duly rescinded the resolution adopted at our meeting
of December 28, 1950, concerning the employment of Arthur B.
Abelsen.
WE WILL NOT in any manner cause or attempt to cause vessel
owners or captains of vessels to deny employment to or otherwise
discriminate against their employees gor prospective employees
because they do not maintain membership in Otter Trawlers
Union, Local 53, in good standing.
WE WILL NOT in any manner restrain employees or prospective"
employees of vessel owners and captains in the exercise of their
right to self-organization, to form labor organizations, to join
or assist any labor organization, to bargain collectively through
representatives of their own choosing, to engage in concerted
activities for the purpose of collective bargaining or other mutual
aid or protection, or to refrain from any or all of such activities,
except to the extent that such right may be affected by an agree-
ment requiring membership in a labor organization as a condition
of employment, as authorized in Section 8 (a) (3) of the Act.
OTTER TRAWLERS UNION, LOCAL 53
Dated -------------------- By ---------------------------------
Name Title
This notice must be posted for 60 days from the date hereof and must
not be altered, defaced, or covered by any other material.
OTTER TRAWLERS UNION, LOCAL 53 1191
Intermediate Report and Recommended Order
STATEMENT OF THE CASE
Upon charges and amended charges duly filed by Arthur B. Abelsen (being
Case No. 19-CA-495) and by John Geisness, attorney (being Case No. 19-CB-
171) against Otter Trawlers Union, Local 53, herein called Respondent, the
General Counsel of the National Labor Relations Board, herein respectively
called the General Counsel and the Board, by the Regional Director for the
Nineteenth Region (Seattle, Washington), issued his consolidated complaint on
December 20, 1951; alleging that Respondent had engaged in and is engaging in
unfair labor practices affecting commerce within the meaning of Section 8 (a)
(1), (2), and (3), Section 8 (b) (1) (A) and (2), and Section 2 (6) and (7)
of the National Labor Relations Act, as amended, 61 Stat. 136, herein called
the Act.
Copies of the consolidated complaint, amended charges, notice of hearing, and
order of consolidation were duly served upon Respondent and upon each charging
party.
With respect to the unfair labor practices, the consolidated complaint alleged
in substance that: (1) In or about December 1942, Respondent entered into a
collective bargaining contract with the owners of certain described vessels
covering the crew members of said vessels, which contract contained illegal
closed-shop clauses; (2) that the said contract, which has been renewed from
year to year by mutual understanding, required that only members of Respond-
ent, or those who obtain clearances from Respondent, may be employed by the
aforesaid owners; (3) on or about December 28, 1950, Respondent, in violation of
the Act, caused or attempted to cause the owner of the vessel Harmony, and
since that date has caused or attempted to cause the owners of certain other
vessels to refuse employment to Arthur B. Abelsen; (4) that Respondent is
existing as a labor organization in violation of the Act; (5) by certain acts and
conduct Respondent has restrained and coerced the crew members of the afore-
said vessels in the exercise of the rights guaranteed in the Act; and (6) while
functioning in its capacity as an association of employers, Respondent inter-
fered with, restrained, and coerced the employees and prospective employees of
its employer-members in the exercise of the rights guaranteed in the Act.
Respondent duly filed an answer denying the commission of the alleged unfair
labor practices.
Pursuant to notice, a hearing was held in Seattle, Washington, on January 7
and 8, 1952, before the undersigned, the duly designated Trial Examiner. The
parties were represented by counsel and participated in the hearing. Full op-
portunity to be heard, to examine and cross-examine witnesses, and to introduce
evidence pertinent to the issues was afforded the parties. At the conclusion of
the General Counsel's case-in-chief, Respondent's counsel moved to dismiss the
complaint for lack of proof. Decision thereon was reserved. At the conclusion
of the taking of the evidence, the General Counsel moved to conform the plead-
ings to the proof with respect to minor inaccuracies . The motion was granted
without objection. Respondent's counsel then renewed the motions he previously
made to dismiss the complaint for failure of proof. Decision thereon again
was reserved. The motion is disposed of in accordance with the findings, con-
clusions, and recommendations set forth below. The parties were then advised
that they might file briefs or proposed findings of fact and conclusions of law,
i On the same day, the said Regional Director, pursuant to Section 102.33 of the
Board's Rules and Regulations-Series 6, issued an order consolidating the above-
numbered cases.
1192 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
or both, on or before January 22, 1952' The General Counsel filed proposed
findings, conclusions, and recommendations; counsel for the charging parties
filed proposed recommendations ; and Respondent's counsel- filed proposed find-
ings, conclusions, and a brief. All these documents have been carefully con-
sidered by the undersigned. The above-referred-to proposed findings,
conclusions, and recommendations are disposed of in accordance with the find-
ings, conclusions, and recommendation hereinafter set forth.
Upon the entire record in the case and from his observation of the witnesses,
the undersigned makes the following:
FINDINGS OF FACT
L THE BUSINESS ACTIVITIES OF RESPONDENT
Otter Trawlers Union, Local 53, is an unincorporated association having its
principal office and place of business at Pier 59, Seattle, Washington, where it
is engaged, among other things, in promoting and protecting the interests of its
members.
Approximately 100 oceangoing vessels, each of which is registered with or
enrolled by the United States Coast Guard, and whose owners or captains, or
both, are members of Respondent, are engaged in bottom fishing in the navigable
waters of the Straits of Juan de Fuca, or upon the international waters of the
open seas adjacent thereto, and operate out of the Port of Seattle or out of other
ports located on Puget Sound'
The owners, or captains, or both, of the aforesaid vessels, during all times
material herein, have associated themselves as members in Respondent and
have designated and authorized it as their collective bargaining representative
for the purposes of dealing with their respective crew members concerning
grievances, rates of pay, wages, hours of employment, and other conditions of
employment. Upon reaching agreement, the employer-members and Respondent
enter into separate, but identical, agreements which Respondent had negotiated
for them covering their respective crew members.
Each of the afore-mentioned vessels is operated and navigated under the di-
rection and supervision of a captain, who is either the owner of the vessel or is
employed by the owner. The vessel's captain directs and supervises the crew
members in fixing and preparing gear and readying the vessel for departure to
the fishing grounds ; selects the area to be fished ; the time of departure ; the
extent of the catch ; and directs and supervises the crew members in the work
preparatory to sailing, in the sailing of the vessel, and in the manner of en-
snaring and catching the fish.
The annual catch of bottom fish of the vessel here involved is valued in excess
of $1,000,000, substantially all of which is sold to the following : Main Fish Co.,'
Palace Fish and Oyster Co., Eardley Fisheries Co., Inc., Halibut Producers Co-
operative, Oxenberg Fishing Company, Inc.,' San Juan Fishing & Packing Com-
' At the request of Respondent 's counsel the time was extended to January 28.
'Bottom fishing is that type of fishing in which a trawler proceeds into the open sea
in the vicinity of Puget Sound or into the Straits of Juan de Fuca and upon reaching the
fishing banks thereof drops a net overboard. )Cables run from the top of the net to the
bottom thereof, causing the net to drop to the bottom of the waters as the vessel proceeds.
Fish are ensnared into the net and at periodic intervals the net is drawn up and the fish
found therein are deposited on the deck of the vessel. The net again is dropped over
the stern and another fishing endeavor attempted . Bottom fishing generally is a year-
round occupation. However, the peak season occurs in the early spring.
* This company 's annual purchases amount to approximately $490,000, which includes
about $165 , 000 purchased through Respondent , and its annual sales amount to about
$660,000 of which approximately one-third are shipped outside the State of Washington.
4 This firm's annual out-of-State shipments amount to over $1,000,000.
OTTER TRAWLERS UNION, LOCAL 53 1193
pany, and Whiz Fish Products Co.' The aforesaid named firms are canners or
fresh and frozen fish processors, or both, who, in turn, ship substantial portions
of their respective finished products to points located outside the State of
Washington.
Upon the above uncontroverted facts, the undersigned finds that, during all
times material herein, the activities of Respondent's members on behalf of
whom Respondent acts as collective bargaining representative and as agent,
affect commerce within the meaning of the Act. The undersigned further finds
that it would effectuate the policies of the Act for the Board to assert jurisdic-
tion over Respondent and the members thereof.'
II. THE LABOR ORGANIZATION INVOLVED
Otter Trawlers Union, Local 53, is, among other things, a labor organization
admitting to membership captains, vessel owners, and cress members engaged
in bottom fishing in the areas of Puget Sound and the Straits of Juan de Fuca.
III. THE UNFAIR LABOR PRACTICE
A. The pertinent facts
Respondent came into existence in or about 1935, as a result of the Puget Sound
Fishermen banding together for the purpose of stabilizing the fish markets and
the price of fish within the State of Washington. From its inception, Respondent
accepted into membership owners and captains of fishing vessels.8 Respondent
never distinguished, nor does it now distinguish, among its members whether
they be owners or captains or crew members.' Each pays the stipulated dues,
assessments, and other emoluments, and enjoys membership privileges.
Several years ago Respondent disaffiliated from International Fish and Allied
Workers of America, a labor organization at one time affiliated with the Congress
of Industrial Organizations, with which it had been associated for about 6 years,
and since the disaffiliation has been functioning as an independent organization.
In or about 1942, Respondent and certain members of Respondent who were
boat owners or captains entered into collective bargaining agreements With re-
spect to grievances, rates of pay, wages, and other such matters covering the
respective crew members and prospective crew members of the said owners and
captains. These contracts, which were in full force and effect at the time of the
hearing, by virtue of their terms, except for some changes respecting hourly rates
of pay for crew, members performing shore-side work, contain clauses reading as
follows :
1. The Union shall be the recognized bargaining agency of the crew of said
boat and the said Captain and/or Owner hereby recognizes said Union as the
sole and exclusive bargaining agency for said crew that [sic] neither the
"This concern 's annual purchases amount to about $ 600,000, about 10 percent of which
is received directly from points located outside the State of Washington and about 70
percent is received indirectly therefrom.
4 See The Daniel Ball, 77 U. S 557, 10 Wall . 557, 19 L. Ed 999.
8 At times the owner acts as the vessel's captain and at other times the owner hires a
captain who, even though the owner is aboard the vessel, is in complete command. Dur-
ing 1950, Respondent had 503 paid-up members. At the end of 1951, it had 302 paid-up
members Approximately 25 percent of said paid-up members were either vessel owners
or captains, or both.
8 Two of Respondent's three 1950 officers were owners of boats and 5 of the 12 executive
board members were either captains or owners, or both. At Respondent's 1951 annual
meeting, new officers were elected for the current year. Of the 3 officers elected (some
were reelected) 1 is a boat owner and of the present 12 board members 2 are captains
and 1 Is an 'owner-captain.
a
1194 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Captain and/or Owner, nor anyone acting in his behalf, shall hire fishermen
who are not members in good standing of said Union ; that the Captain
and/or Owner shall not discriminate against any member of his crew because
of Union activities or Union affiliation.
2. All members of the crew shall be members of the Otter Trawlers Union,
Local 53, affiliated with the International Fishermen & Allied Workers of
America, including the Captain.
The crew members usually are hired by the captain even though the owner may
he aboard the vessel. The captain obtaips his crew first by attempting to enlist
the same members thereof that fished with him the previous trip or trips. Fail-
ing in that endeavor, he looks about for unemployed fishermen or hires persons
who apply directly to him. At times, captains in need of fishermen will call upon
Respondent for assistance. Unemployed fishermen occasionally are placed by
applying directly to Respondent.
When the vessel is in port preparatory to making a trip to the fishing banks,
the crew members, under the direction and supervision of the captain, ready the
ship for sailing, and while en route to the fishing banks the crew members prepare
the nets and engage in certain other duties given them by the captain.
At the fishing banks, which the captain alone selects, the crew members, under
the captain's supervision, lay the nets-over the stern and when the nets are
hauled in the captain directs the crew in selecting the fish according to species
and in stowing them in the hold. After the vessel has finished its fishing en-
deavor or has reached the limit of the catch permissible, either under the direc-
tive established by the fish buyer or the limit fixed according to the vessel's
capacity, it returns to its home port where the cargo is unloaded under the
captain's supervision.
Under the aforesaid collective bargaining agreements each vessel must pay
Respondent, prior to receipt of any money by the boat owner, captain, or crew,
25 cents per 1,000 pounds of all fish caught in order to augment Respondent's
treasury and to keep the rate of membership dues to a minimum.
Respondent not only functions as a labor organization but it also acts as an
employer association in that, on behalf of the owners of the vessels, it negotiates
and enters into agreements with buyers of fish whereby the price to be paid for
the fish and the amount to be caught by any named vessel are determined. These
prices and the amount of fish are the subject of agreement before the vessel leaves
port for the fishing banks.
On December 14, 1950,.the vessel Harmony-returned to its home port at-Seattle,
Washington, from a trip to the fishing banks. While the cargo was being un-
loaded, Nick P. Kuljis, the secretary-treasurer of Respondent since November 10,
1945, boarded the vessel and, in the presence of-the captain and the crew mem-
bers, asked Arthur B. Abelsen, a crew member, when he intended to pay his 1948
and 1949 unpaid dues. Abelsen testified, and the undersigned finds, that he re-
plied, "You know my story. I am not paying" ; that Kuljis then said, "Well, I
will make you pay," to which he responded, "Well, if you have that much author-
ity, go ahead" ; and that Kuljis' parting remark was, "Well, I will fix you."
During the evening of December 27, Dan Forseth, the captain and part-owner
of the Harmony and a member of Respondent, telephoned Abelsen and inquired
whether Abelsen desired to go bottom fishing on that vessel's next trip which
was scheduled to leave within a few days. Abelsen declined the job and told
Forseth he could not sail because he was under his doctor's care. The next
morning Forseth met Abelsen, and again offered Abelsen a job as a Harmony
crew member, and Abelsen again declined the job.
OTTER TRAWLERS UNION, LOCAL 53 1195
On December 28, Respondent held its annual meeting which was attended by
Forseth, Kuljis, and approximately 125 additional vessel owners, captains, and
crew members. ° There, a motion was made, seconded, and duly carried, reading
as follows :
To concur with the Board's recommendation that Bro. Arthur Abelsen
be required to pay back dues if he wants to fish, otherwise no boat should
be permitted to hire him and other fishermen unions should be fully informed
on the matter.
Since December 14, 1950, Abelsen has not sought employment from Forseth
or any other vessel captain or owner.
B. Concluding findings
1. As to the dual status of Respondent
The complaint alleged that Respondent since its inception has been committing
unfair labor practices both as an employer and as a labor organization as those
terms are defined by the Act.
It is indisputable that Respondent meets the two prerequisites for a labor
organization laid down in Section 2 (5) of the amended Act. This section
restates in identical terms the definition contained in the original Act, i n,z: ". . .
any organization of any kind . . . in which employees participate and which
exists for the purpose, in whole or ins part, of dealing with employers concern-
ing grievances, labor disputes, wages, rates of pay, hours of employment, or
conditions of work" (emphasis supplied). The record clearly discloses, and
the undersigned finds, that Respondent "negotiates" with employers collective
bargaining agreements for and on behalf of its employee-members, the crew
members of the fishing boats here involved," and the said employee-members
also "participate" in Respondent's affairs, as disclosed by its membership rolls,
dues records, and attendance at meetings. Tested by the foregoing principles,
it thus becomes apparent that Respondent is a labor organization within the
meaning of the above-referred-to section of the Act. It therefore follows that
Respondent is subject to all the inhibitions contained in Section 8 (b) of the Act.
At the same time, Respondent falls within the statutory definition of an
employer for Section 2 (2) of the Act states, in part, "the term `employer'
includes any person acting as an agent of an employer, directly or indirectly,
but shall not include . . . any labor organization (other than when acting as
an employer) . ." (emphasis supplied). That Respondent in very important
respects acts as "an agent" of its employer-members appears from its nego-
tiation, on their behalf, with ' fish buyers regarding the quantity and species
of fish the boat owners and captains are to catch and the price to be paid
therefor. Furthermore, the collective bargaining agreements "negotiated" on
behalf of its employee-members are executed by its employer-members and their
respective captains. To this extent, in the area of collective bargaining, Re-
spondent appears as the agent of both employers and their respective employees,
Important policy-making officers and officials of Respondent, moreover, are
employers or supervisory captains. This bond is further cemented by direct
10 Thls meeting was held after Abelsen's second refusal -of the proffered job.
"The record reveals, and the undersigned finds, that crew members are employees
within the meaning of Section 2 (3) of the Act. See Trawler Maris Stella, Inc., 12
NLRB 415; Alaska Salmon Industry, Inc., 81 NLRB 1335; Southern Shellfish Co., Inc.,
95 NLRB 957; J. Howard Smith, Inc., 95 NLRB 21.
1196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
financial contributions from employers , both members and nonmembers, into
Respondent 's treasury . Accordingly , it is concluded and found that Respondent
is an employer within the-meaning of the Act and is amenable to the unfair
labor practice proscriptions of Section 8 (a) of the Act.'2
2. As to the unfair labor practices
From the findings summarized in the preceding paragraph, it clearly appears
that, although Respondent functions in part as a labor organization, it is in-
capable of acting as the collective bargaining representative of employees because
its employer-members have, from the very beginning, interfered with Respond-
ent's formation and administration, contributed financial and other support to
it, and utilized it in important respects as their commercial agent. Nor is there
any way to separate Respondent's activities on behalf of employers from its
other activities on behalf of employees. The negotiations, on behalf of employers,
of the financial conditions of each fishing venture bear a direct and intimate
relationship to the wages and working conditions which it is possible for the
same organization to "negotiate" for the employees who make the voyage. This
is particularly true when consideration is given to the fact that the com-
pensation of the rank -and-file fishermen is a "share" of the proceeds realized
from the "catch." Under the circumstances, the undersigned finds that Re-
spondent is an employer-assisted labor organization within the meaning of
Section 8 (a) (2) of the Act.
The foregoing conclusion has been reached , at this point ," as a preliminary to a
determination of the validity of the closed-shop provisions contained in the 1942
contract. If this contract be construed as running continuously from 1942 (with-
out formal renewal or extension as to its terms ), it might be urged that its
enforcement, at this time, is protected under the provisions of Section 102 of the
Act." In any event, such a position would be untenable since the enforcement
of the union-security provisions of the contract would constitute an unfair labor
practice under the Act prior to its amendment because Respondent was at the
time of the execution of the contract, and at all times thereafter, a labor organiza-
tion, "established, maintained, or assisted" in violation of the proviso of Section
8 (3) of the original Act. Since Section 102 of the present Act now makes this
the test in determining issues under Section 8 (a) (3) and 8 (b) (2) with respect
12 Contrary to Respondent 's contention , the result of this analysis is not so paradoxical
as it may appear in the light of the Board's numerous decisions holding that employers,
under certain circumstances, may be held responsible for unfair labor practices committed
by company-dominated unions or their officials. Such conduct, as the Board often found,
may be imputed to the employer even though the dominated or supported union does not
operate solely for the employer's benefit.
13 Its broader significance is treated below.
1' Section 102 states : "No provision of this title shall be deemed to make an unfair
labor practice any act which was performed prior to the date of enactment of this Act
which did not constitute an unfair labor practice prior thereto, and the provisions of sec-
tion 8 (a) (3) and section 8 (b) (2) of the National Labor Relations Act as amended
by this title shall not make an unfair labor practice the performance of any obligation
under a collective-bargaining agreement entered into prior to the date of the enactment
of this Act, or ( in the case of an agreement for a period of not more than one year)
entered into on or after such date of enactment, but prior to the effective date of this
title, if the performance of such obligation would not have constituted an unfair labor
practice under section 8 (3) of the National Labor Relations Act prior to the effective
date of this title, unless such agreement was renewed or extended subsequent thereto."
OTTER TRAWLERS UNION, LOCAL 53 1197
to contracts otherwise covered by the so-called "saving clause," it follows that
Respondent is not lawfully entitled to any form of union security.15
Respondent , at the hearing and in its brief , contended that the provisions of
the contract under attack were never enforced , at least since Kuljis' accession to
office of secretary-treasurer on November . 10, 1945. The resolution adopted at
the 1950 annual meeting to the effect that Abelsen would be forever barred from
fishing unless and until he paid his delinquent dues is direct evidence that the
said provisions are, in fact , being enforced . Furthermore , Kuljis testified, and
- the undersigned finds, that persons coming into the Puget Sound area since the
execution of the 1942 contract seeking employment through Respondent in ves-
sels engaged in bottom fishing are handed copies of the said contract when those
persons inquire of Respondent if any "working agreement" exists in the area's
bottom-fishing industry. Kuljis also admitted that ever since he has been sec-
retary-treasurer when out-of-State captains and shipowners engaged in bottom
fishing come into the Puget Sound area and inquire at Respondent 's headquarters
regarding the existing "working agreement" they are handed copies of the afore-
said contract. In any event, as the Board has held, the mere presence of con-
tract provisions , whether enforced or not, which accord preference in hiring to
union members are per se violative of the Act 1°
The undersigned has set forth above the various violations of the Act shown
by the record. There now-remains for determination the responsibility for such
violations in the light of the dual character of the sole respondent in this pro-
ceeding. A realistic over-all appraisal of Respondent's operations compels a
conclusion that, whatever its commercial usefulness might be in assuring a steady
and determined income from the fish buyers to be shared by both management
and crewmen of the fishing vessels, the fact remains that those operations run
directly counter to the letter and philosophy of the Act with respect to the
representation of rank-and-file crewmen in the fixation of their collective terms
of employment.11
It is only in undertaking the latter service that Respondent's conduct is subject
to scrutiny under the Act. Its structure, finances, and so-called collective bar-
gaining agreements stamp it as a joint employer-union venture indistinguishable
from the hundreds of employee-representation plans which were uniformly held
unlawful in the early (lays of the Wagner Act. The undersigned is unable to
find any warrant in the statute for applying any different test simply because the
fishermen here involved have some characteristics of entrepreneurs. Particu-
larly is this true where the Board has clearly ruled that such persons are em-
ployees of the boat owners and the record clearly discloses that they are closely
supervised by the captains in the performance of their work aboard the vessels.
16 It will be noted that in determining whether a labor organization meets the statutory
test contained in the aforesaid proviso, no problem arises as to the necessity or propriety
of joining with such labor organization as party -respondents all the employers who have
"established , maintained or assisted" it. So long as the labor organization , itself, has a
full opportunity , as it had here , to establish its bona fides as a foundation for its entitle-
ment to union security contract provisions , due process requirements have been met. Cf.
Consolidated Edison Company v. N. L. R. B , 305 U. S. 197. See also representation case
rulings of the Board that a labor organization is incapable of functioning as a bargaining
representative if the said organization is unlawfully "established , maintained or assisted"
even though no order has been issued against it or the employer sponsors under Section 10
of the Act. For example , Columbia Pictures Corporation , et al., 94 NLRB 466, and cases
cited in footnote 7 thereof.
16 Pacific Maritime Association, 89 NLRB 894 ; Alaska Salmon Industry, Inc., 82 NLRB
1056 , The Plumbing Contractors Association of Baltimore, Maryland, Inc., 93 NLRB 1081.
11 Recently the United States Court of Appeals for the Ninth Circuit held that a strike
by a union such as here involved was not a labor dispute but a form of business competi-
tion which may violate the Federal antitrust laws.
1198 DECISIONS-OF NATIONAL I:ABOR RELATIONS BOARD
While no particular employer, as such, -,% as made a party to the proceedings
herein and charged with violating Section 8 (a) (2) of the Act, Respondent, as
agent and spokesman for its employer-members, was duly served with a copy of
the complaint alleging violations of this section ; evidence was received without
objection touching on such allegations and full opportunity was afforded the
spokesman of the employer-members to produce any available evidence on this
subject. Had each of the employers who happened at the moment to be members-
of Respondent been joined herein and afforded a separate opportunity to defend
against the 8 (a) (2) allegations, nothing could have been added to the record.
All such employers were on reasonable notice through Respondent that their
conduct was under attack and had- any of them so desired they could have sought
direct intervention to protect whatever separate interests they may have wished
to assert.
Furthermore, an effective and binding remedy does not appear to the under-
signed to hinge upon joining all the employers, both within and without the
membership of Respondent, who from day to day or week to week have entered
into agreements requiring financial support of Respondent. While such agree-
ments may not, of course, be directly set aside in the absence of the signatories
thereto, a binding order can be made directing Respondent, as an agent of its
own employer-members, to either cease functioning as collective bargaining
representative of employees, or, in the alternative, to cease acting as the agent
of employers and receiving financial and other support from them.
For the foregoing reasons, the undersigned finds that Respondent, as agent
and on behalf of its employer-members, has engaged in violations of Section 8 (a)
(2) of the Act and, through the illegal union-security clauses of its contracts
with its own members and others has violated Section 8 (a) (1) and (3) thereof.
The undersigned also finds that Respondent, as a labor organization, coerced
and restrained employees and prospective employees and attempted to cause
employers to violate Section 8 (a) (3) of the Act by entering into and giving
effect to the above-described illegal closed-shop contracts thereby violating
Section 8 (b) (1) (A) and (2 ) of the Act"
The undersigned-further finds that the threats of Kuljis to Abelsen, in the
hearing of the captain and the crew of the vessel Harmony on December 4, 1950,
were coercive within the meaning of Section 8 (b) (1) of the Act as was the
Abelsen resolution adopted at Respondent's December 28, 1950, meeting. Insofar
as the employer-members present when this resolution was offered and passed,
it also represents a clear attempt to cause them to discriminate against Abelsen
in violation of Section 8 (a) (3) of the Act and was therefore violative of Section
8 (b) (2) thereof.
3. As to Abelsen's discharge
Contrary to the General Counsel's contentions, the undersigned is convinced,
and finds, that Arthur B. Abelsen was not discharged by Respondent, in viola-
tion of Section 8 (a) (3) of the Act , nor did Respondent cause Abelsen's dis-
18 Section 8 (b) (1) (A) makes it an unfair labor practice for a labor organization "to
restrain or coerce employees in the exercise of the rights guaranteed in Section 7." Sec-
tion 7 in- turn guarantees to employees the right to refrain from Joining labor organiza-
tions except to the extent that such right is affected by an agreement between the union
and the employer, executed in conformity with the provisions of the statute. It is evident
that Section 8 (b) (1) (A) is intended to prevent the use of economic pressure by labor
organizations to force employees to acquire or retain union membership as condition of
employment except to the extent permitted by a valid union-security agreement. See
N L R B v International Union, United Automobile, Aircraft and Agricultural Imple-
ment Workers of America, et at, 194 F. 2d 698 (C. A. 7).
OTTER TRAWLERS UNION, - LOCAL 5 3 1199
charge by Dan Forseth , the part owner and captain of the vessel Harmony, in
violation of Section 8 (b) (2) of the Act. It is true, as found above, the resolu-
tion adopted at the Respondent's December 28, 1950, meeting is itself violative
of Section 8 (a) (1) and, under the circumsthnces of this case, it is also violative
of Section 8 (b) (1) (A) and (2) of the Act. That resolution, however; did not
in any manner disrupt Abelsen's employment as a crew member of the Harmony.
Admittedly, prior to the afore-mentioned meeting, Abelsen had twice refused to
accept the employment offered him by Forseth for the purported reason that he
was under his doctor's care. Moreover, since the record discloses no employer-
employee relationship, either directly or indirectly, between Respondent and
Abelsen, Respondent cannot be found to have violated Section 8 (a) (3) of the Act,
even if it was found that Abelsen was, in fact, discharged by Forseth. Under
the circumstances, the undersigned will recommend that the allegations of the
complaint that Respondent violated Section 8 (a) (3) and Section 8 (b) (2),
of the Act with respect to Abelsen's employment, be dismissed.
IV. THE EFFECT OF THE UNFAIR LABOR' PRACTICES UPON COMMERCE
The activities of Respondent set forth in section III, above, occurring in con-
nection with the business operations of the vessel owners, captains, and fish
buyers set forth in section I, above, have a close, intimate, and substantial rela-
tion to trade, traffic, and commerce among the several States, and such of them
as have been found to be unfair labor practices tend to lead to labor disputes
burdening and obstructing commerce and the free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in unfair labor practices affecting
commerce, the undersigned will recommend that it cease and desist therefrom
and take the following affirmative action which the undersigned finds will
effectuate the policies of the Act.
Having found ,that Respondent functions not only as an association of em-
ployers but also as a labor organization, the undersigned will recommend that
it cease from acting in such dual capacity and immediately elect either to act
as an employer association, in which event it refrain from representing rank-
and-file employees for the purposes of collective bargaining with their respective
employers, or, in the alternative, to act as a labor organization, in which event
it (1) cease accepting into membership employers and other supervisors as
defined by the Act, (2) immediately rescind the membership of its present em-
ployer-members, and (3) cease accepting financial and other support from any
employers or supervisors.
Having found that the existing contracts between Respondent and certain
vessel owners and •' captains- contain illegal closed-shop provisions, it will be
recommended that Respondent cease performing or giving effect to those con-
tracts, or to any modification, extension, supplement, or renewal thereof, or
to any other contracts, agreements, or understandings entered into by it with
said vessel owners and captains relating to grievances, labor disputes, wages,
rates of pay, hours of employment, or other conditions of employment concerning
the rank-and-file employees of the said vessel owners and captains unless or
until Respondent shall have been certified as a bona fide collective bargaining
representative of rank-and-file employees by the National Labor Relations
Board."
>o Cf. Julius Resnick, No ., 86 NLRB 38.
1200 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Having found the resolution adopted by Respondent at its December 28, 1950,
meeting regarding the hire and tenure of employment of Arthur B. Abelsen
and the terms and conditions of his employment to be violative of the Act, it
will be recommended that Respondent cease and desist from giving effect thereto.
It will be further recommended that Respondent immediately effectively rescind
the aforesaid resolution and notify all its members, in writing, of its rescission.
Having found that Respondent has not engaged in conduct violative of Section
8 (a) (3) and 8 (b) (2) of the Act, with respect to Abelsen's employment, the
undersigned will recommend that the allegation% of the complaint with respect
thereto be dismissed.
The scope of Respondent's illegal conduct, as found above, discloses a purpose
to defeat self-organization among its rank-and-file members and among the
employees and prospective employees of certain captains and owners of vessels
engaged in bottom fishing in the Puget Sound area. Because of Respondent's
unlawful conduct and its underlying purpose, the undersigned is convinced that
the unfair labor practices committed by the Respondent are related -to other
unfair labor practices proscribed by the Act and that the danger of their com-
mission in the future is to be anticipated from Respondent's conduct in the
past. In order, therefore, to make effective the interdependent guarantee of
Section 7, to prevent a recurrence of unfair labor practices and thereby minimize
industrial strife which burdens and obstructs commerce and thus effectuate the
policies of the Act, the undersigned will recommend that Respondent cease and
desist from in any manner infringing upon the rights guaranteed in Section
7 of the Act.
Upon the basis of the foregoing findings of fact and upon the entire record
in the case, the undersigned makes the following:
CONCLUSIONS of LAW
1. Otter Trawlers Union, Local 53, is a labor organization within the meaning
of Section 2 (5) of the Act.
2. Otter Trawlers Union, Local 53, also functions as an association on behalf
of, and as an agent for, the employers of the employees here involved and there-
fore is itself an employer, within the meaning of Section 2 (2) of the Act.
3. Members of the crews of the.bottom fishing vessels here involved are em-
ployees of the owners and captains of those vessels, within the meaning of
Section 2 (3) of the Act.
4. By enforcing and giving effect to the illegal closed-shop provisions in the
1942 contracts between Respondent and certain vessel owiners and captains, Re-
spondent has discriminated, and is discriminating, in regard to the hire and
tenure, or terms or conditions, of employment of the employees and prospective
employees of the vessel owners and captains who are signatories to said agree-
ments, within the meaning of Section 8 (a) (3) of the Act.
5. The vessel owners here involved are employers within the meaning of
Section 2 (2) of the Act.
6. The captains of the vessels engaged in bottom fishing in the Puget Sound
area are supervisors within the meaning of Section 2 (11) of the Act.
7. By adopting the resolution at its December 28, 1950, meeting respecting
the hire and tenure, and the terms and conditions , of the employment of Arthur
B. Abelsen, Respondent has engaged in and is engaging in unfair labor prac-
tices, within the meaning of Section 8 ( a) (1) and ( 3) and 8 (b) (1) (A)
and (2 ) of the Act. _
8. By permitting vessel owners and captains to possess membership in Re-
spondent , by acting as joint agent for the said owners and captains for the
WILKENING MANUFACTURING COMPANY 1201
purpose of dealing with fish buyers on the one hand , and as collective bargain-
ing representative in their dealings with their respective employees on the other
hand, and by being the recipient of financial and other aid from the said owners
and captains, Respondent has engaged in and is engaging in unfair labor
practices , within the meaning of Section 8 ( a) (2) of the Act.
9. The aforesaid unfair labor practices are unfair labor practices within the
meaning of Section 2 (6) and (7) of the Act.
10. Respondent did not violate Section 8 (a) (3) or 8 ( b) (2) of the Act
with respect to Abelsen 's employment , as alleged in the complaint.
[Recommendations omitted from publication in this volume.)
WILKENING MANUFACTURING COMPANY and UNITED AUTOMOBILE,
AIRCRAFT AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA,
LOCAL 416, CIO. Case No. 4-CA-627. September 23,1952
Decision and Order
On April 25, 1952, Trial Examiner Louis Plost issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. Thereafter, the Respondent and
the General Counsel filed exceptions and briefs.
The Board' has reviewed the Trial Examiner's rulings made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the briefs and exceptions, and the entire record in
the case and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner with the following additions, cor-
rections; and modifications.
The Board, following a hearing upon a petition filed under See-.
tion 9 (c) of the Act, ordered an election by secret ballot held in
an appropriate unit" of the Respondent's employees in order to
determine a collective bargaining representative .4 The election was
1 Pursuant to the provisions of Section 3 (b) of the Act , the Board has delegated its
powers in connection with this case three-member panel [ Members Houston, Styles, and
Peterson].
s We note and correct the following inadvertent errors in the Intermediate Report :
(1) The Union was certified by the Board on September 6, 1951 , not on September 7,
1951 ; (2) the Respondent' s first refusal to bargain occurred on September 13, 1951, not
on September 12, 1951; ( 3) the phrase , "including the employees listed in Appendix A"
should be included in the description of the appropriate unit . These errors do not affect
the Trial Examiner 's ultimate conclusions nor our concurrence therein.
'The Respondent does not, as the Trial Examiner indicates in his report , take issue
in the present proceeding with the appropriateness of the unit as found by the Board.
4 93 NLRB No. 171.
100 NLRB No. 197.