International Organization of Masters, Mates and Pilots, AFL-CIO v. N.L.R.B., AFL-CI

• Decision Date: 06 March 1978
• Docket Number: P,I,No. 76-1633,AFL-CI,76-1633
• Citation: 575 F.2d 896,188 U.S.App.D.C. 15
• Parties: 97 L.R.R.M. (BNA) 3083, 188 U.S.App.D.C. 15, 83 Lab.Cas. P 10,405 INTERNATIONAL ORGANIZATION OF MASTERS, MATES AND PILOTS,etitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Cove Tankers Corporation District 2, Marine Engineers Beneficial Association-Associated Maritime Officers,ntervenors.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 896

575 F.2d 896

97 L.R.R.M. (BNA) 3083, 188 U.S.App.D.C. 15,

83 Lab.Cas. P 10,405

INTERNATIONAL ORGANIZATION OF MASTERS, MATES AND PILOTS AFL-CIO, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent Cove Tankers Corporation District 2, Marine Engineers Beneficial Association-Associated Maritime Officers, AFL-CIO, Intervenors.

No. 76-1633.

United States Court of Appeals District of Columbia Circuit.

Argued Sept. 29, 1977.

Decided March 6, 1978.

Petition for Review and Cross-Application for Enforcement of Order of the National Labor Relations Board.

Jerry D. Anker, Washington, D. C., with whom Burton M. Epstein, New York City, and Robert E. Nagle, Washington, D. C., were on the brief, for petitioner.

Aileen Armstrong, Atty., N.L.R.B., Washington, D. C., with whom John S. Irving, Gen. Counsel, Carl L. Taylor, Associate Gen. Counsel, and Elliott Moore, Deputy Associate Gen. Counsel, Washington, D. C., were on the brief, for respondent.

Roger H. Briton, New York City, of the bar of the Supreme Court of New York, pro hac vice, by special leave of court, for intervenor, Cove Tankers Corporation. Andrew E. Zelman, Washington, D. C., was on the brief for intervenor, Cove Tankers Corp.

Richard H. Markowitz, New York City, was on the brief for intervenor, District 2, Marine Engineers Beneficial Association-Associated Maritime Officers, AFL-CIO.

Before BAZELON, Chief Judge, and TAMM and WILKEY, Circuit Judges.

Opinion for the court filed by Circuit Judge TAMM.

TAMM, Circuit Judge:

Petitioner International Organization of Masters, Mates and Pilots, AFL-CIO (IOMMP) seeks review of a final adjudication of the NLRB ¹ (the Board), and the Board cross-petitions for enforcement of its order. ² See 29 U.S.C. § 160(e)-(f) (1970). Based upon our review of the record and the applicable law, we conclude that the Board's order was supported by substantial evidence and that the Board applied the correct legal principles to the facts. Accordingly, we affirm the decision of the Board, and we grant the cross-petition for enforcement of its order.

I

This is another in a series of cases growing out of the prolonged struggle between IOMMP and District 2, Marine Engineers Beneficial Association-Associated Maritime Officers, AFL-CIO (MEBA). Because a description of the conflict has been given so well by the Fifth Circuit in International Organization of Masters, Mates & Pilots v. NLRB (Westchester Marine Shipping Co.), 539 F.2d 554 (5th Cir. 1976), cert. denied, --- U.S. ----, 98 S.Ct. 106, 54 L.Ed.2d 86 (1977), we need not set out the full history once again. It suffices to say merely that IOMMP and MEBA each represents licensed deck officers, and that the two are in intense competition.

The facts giving rise to this appeal center upon IOMMP's ³ picketing of, and filing an in rem action against, the Mount Explorer, owned at the time in question by intervenor Cove Tankers Corporation (Cove). ⁴ Until early 1975, the Mount Explorer was called the William J. Fields. It was owned by the Syracuse Corporation, operated by the Texas City Tankers Corporation, and manned by licensed deck officers from IOMMP. The vessel was laid-up and sold to Cove, its IOMMP licensed deck officers having been compensated.

After a period of time in a Galveston, Texas, layberth, the vessel emerged as the Mount Explorer, manned with licensed deck officers from MEBA. In late April 1975, the Mount Explorer docked at Brady Island and the Crown Oil refinery, both of which are in or near the Port of Houston, Texas. At both facilities, the vessel was met with picket signs reading:

WE HAVE A CURRENT COLLECTIVE BARGAINING AGREEMENT COVERING THIS SHIP. IT WAS FORMERLY NAMED THE S/S WILLIAM J. FIELDS. IT IS NOW CALLED THE S/S MOUNT EXPLORER. OUR COLLECTIVE BARGAINING AGREEMENTS WITH PLAZA SHIPPING COMPANY ⁵ AND TEXAS CITY TANKERS CORP. ⁶ COVER THIS VESSEL.

OFFSHORE DIVISION INTERNATIONAL ORGANIZATION OF MASTERS, MATES AND PILOTS.

The vessel received its cargo in spite of the picketing.

On April 25, 1975, while the vessel was still docked near Houston, an in rem action was filed in the United States District Court for the Southern District of Texas, Houston Division, on behalf of the IOMMP licensed deck officers who served under the contract with Texas City Tankers Corporation. ⁷ See General Counsel's Exhibit (G.C. Exh.) 11, Appendix (App.) at 437. The lien was released after the filing of a $100,000.00 bond, and the Mount Explorer departed.

In June 1975, the vessel returned to the Port of Houston, and was again subjected to picketing. The signs read:

WE ARE NOT CLAIMING ANY RIGHT TO THE JOBS ON THE S/S MOUNT EXPLORER. ⁸ AS A RESULT OF ITS HAVING BEEN OPERATED AS THE S/S WILLIAM J. FIELDS BY THE TEXAS CITY TANKER COMPANY WE DO CONTEND THAT PACK, KAHN AND BERKE ⁹ THROUGH THEIR CONTROLLED CORPORATIONS AND AFFILIATES HAVE VIOLATED THEIR COMMON LAW CONTRACTUAL OBLIGATIONS WITH THE I O M M & P OFFSHORE DIVISION RELATING TO THE OPERATION OF THE S/S MOUNT EXPLORER. THIS VESSEL IS BEING OPERATED WITH SUBSTANDARD MANNING. WE HAVE NO DISPUTE WITH ANY OTHER VESSEL AT THIS FACILITY.

INTERNATIONAL ORGANIZATION ¹⁰ OF MASTER MATES AND PILOTS OFFSHORE DIVISION.

In contrast to what happened in April 1975, the picketing managed to halt the loading of the ship. A temporary restraining order was obtained to halt the picketing.

The Board's general counsel brought unfair labor practice proceedings, charging that IOMMP's conduct had violated sections 8(b)(1)(B), 8(b)(4), and 8(e) of the National Labor Relations Act, 29 U.S.C. § 158(b)(1)(B), ¹¹ (b) (4), ¹² (e) ¹³ (1970). The Administrative Law Judge (ALJ) found for the general counsel, and, on appeal, the Board affirmed the sections 8(b)(1)(B) and 8(b)(4) violations, but dismissed the section 8(e) violation.

II

We perceive the principal issue as whether there is substantial evidence in the record as a whole to support the underlying findings of fact. 29 U.S.C. § 160(e)-(f) (1970). See generally 5 U.S.C. § 706(2)(E) (1976); NLRB v. Brown, 380 U.S. 278, 85 S.Ct. 980, 13 L.Ed.2d 839 (1965); Universal Camera Corp. v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951). Insofar as relevant to the contentions raised by petitioner on this appeal, the Board adopted the ALJ's determinations that the picketing and the filing of the in rem action were directed toward (1) replacement of the MEBA officers with IOMMP members, (2) recognition of IOMMP by Cove, (3) adoption of the standard-form IOMMP collective bargaining agreement by Cove. 224 N.L.R.B. 1626, 1633-35 (1976).

Strong evidence supporting the findings of fact may be found in the wording of the first set of picket signs: "We have a current collective bargaining agreement covering this ship." The standard IOMMP collective bargaining agreement requires that IOMMP be recognized as the sole collective bargaining representative of the licensed deck officers, G.C. Exh. 7, § II(1), App. at 417, and that replacements be IOMMP members generally hired through IOMMP hiring halls. Id., § II, App. at 417-18; Transcript (Tr.) at 161, App. at 131. Thus, the assertion that there is a "current collective bargaining agreement covering this ship" has manifold significance. First, it is equivalent to a demand that IOMMP be recognized as the sole collective bargaining representative of the licensed deck officers, and, second, it implies that Cove violated the section II replacement procedures of the IOMMP contract. Thus, the assertion of a collective bargaining agreement is totally inconsistent with the theory now advanced by petitioner id est, that it was merely seeking wages.

It is clear that IOMMP employed a standard form collective bargaining agreement the so-called "Master Collective Bargaining Agreement" which, by its own description, covered all employers under contract with IOMMP. G.C. Exh. 7 at 1, App. at 417; see Tr. at 124-26, App. at 98-100; Tr. at 146-48, App. at 119-21. As noted above, adoption of the terms of the standard agreement by Cove would have required, inter alia, that IOMMP be recognized exclusively, and, by clear logical extension, that the MEBA officers be replaced. ¹⁴ See Tr. at 164, App. at 133; Tr. at 173, App. at 140; Tr. at 205-10, App. at 158-63.

The evidence provided by the wording of the signs is, in our view, of particular qualitative value in that the wording was prepared in consultation with counsel. G.C. Exh. 2 at 4, App. at 373; Tr. at 74, App. at 59; Tr. at 76, App. at 61. In view of the holding of this court in International Organization of Masters, Mates & Pilots v. NLRB (Marine & Marketing International Corp.), 159 U.S.App.D.C. 11, 486 F.2d 1271 (1973) (per curiam), cert. denied, 416 U.S. 956, 94 S.Ct. 1970, 40 L.Ed.2d 306 (1974), to the effect that replacement picketing violates section 8(b)(1)(B), IOMMP acted perilously indeed by broadly asserting the existence of a current collective bargaining agreement. If IOMMP were in fact limiting itself to a claim for wages, it seems that, as a matter of common sense, this limited purpose would have been disclosed plainly by the picket signs. Neither set of picket signs reveals that IOMMP's intent was to limit itself to a claim for wages. ¹⁵ See Tr. at 177-78; App. at 144-45. Captain Holdeman did not express the "fact" of IOMMP's limited objective to Cove, nor, to his knowledge, ¹⁶ did anyone at IOMMP directly communicate this "fact" to Cove. Id. This continued failure to give Cove effective notification is quite persuasive evidence that IOMMP's true purpose did not change from April to June 1975. ¹⁷

Another important piece of evidence is Captain Holdeman's newspaper article in the May 1975 issue of The Master, Mate & Pilot. G.C. Exh. 2 at 4, App. at 373. Captain Holdeman, a vice president of IOMMP's Offshore Division and port agent for Galveston, Tr. at 68, App. at 54, was, by his own admission, a prime mover in the decision to picket and in the picketing itself. See Tr. at 74, App. at 59; Tr. ...