Bernhardt Bros. Tugboat Service, Inc. v. NLRB, 14235.

• Decision Date: 27 February 1964
• Docket Number: No. 14235.,14235.
• Citation: 328 F.2d 757
• Parties: BERNHARDT BROS. TUGBOAT SERVICE, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

328 F.2d 757 (1964)

BERNHARDT BROS. TUGBOAT SERVICE, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 14235.

United States Court of Appeals Seventh Circuit.

February 27, 1964.

V. Lee McMahon, St. Louis, Mo., McMahon & Zempel, St. Louis, Mo., of counsel, for petitioner.

Harold Gruenberg, Gruenberg, Schobel & Souders, St. Louis, Mo., for Inland Boatmen's Union of Seafarers' International Union, Atlantic, Gulf, Lakes and Inland Waters District, AFL-CIO, as amicus curiae.

Marcel Mallet-Prevost, Asst. Gen. Counsel, Melvin Pollack, Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Assoc. Gen. Counsel, Leo N. McGuire, Atty., N. L. R. B., for respondent.

Abraham E. Freedman, Philadelphia, Pa., S. Gerald Litvin, Stanley B. Gruber, Freedman, Landy & Lorry, Gen. Counsel, Philadelphia, Pa., amicus curiae.

Before HASTINGS, Chief Judge, and KNOCH and SWYGERT, Circuit Judges.

KNOCH, Circuit Judge.

The petitioner, Bernhardt Bros. Tugboat Service, Inc., (hereinafter called "Bernhardt") seeks to set aside the order issued by the National Labor Relations Board on May 28, 1963 (reported at 142 NLRB No. 96) requiring Bernhardt to cease and desist from certain unfair labor practices found by the Board, and from infringing upon the rights of employees guaranteed in the National Labor Relations Act (29 U.S.C. § 151 et seq.); and to withdraw and withhold recognition from Inland Boatmen's Union of Seafarers' International Union, Atlantic, Gulf, Lakes and Inland Waters District, AFL-CIO (hereinafter called the "SIU"), as the exclusive representative of Bernhardt's nonsupervisory employees, — and to cease giving effect to the agreement entered into with the SIU on February 19, 1962, unless and until the SIU wins a Board-conducted election.

It is this last to which Bernhardt particularly objects. Further provision was made in the Order to reimburse employees for loss of earnings, membership dues, fees and assessments; and to post appropriate notices. The Board has filed a cross application for enforcement of its Order.

Bernhardt operates four towboats on the Mississippi River and its tributaries.

The Board found that James A. Chappell was hired as a deckhand on the towboat WISCONSIN on January 28, 1962, and a few days later had a conversation with the Pilot, Richard Bateman, about membership in the National Maritime Union of America, AFL-CIO (hereinafter called the "NMU").

With respect to Mr. Chappell, the Board found that Pilot Bateman told him that he would be put off the boat if Pilot Bateman found him trying to organize Bernhardt's crews for the NMU, of which Mr. Chappell was known to be a member.

Pilot Bateman told Captain Crowder, the Master of the WISCONSIN, that Mr. Chappell intended to encourage the crew to sign NMU cards, and Captain Crowder passed this information on to Ray A. Eckstein, Secretary of Bernhardt. On February 3, 1962, after Captain Schickling boarded the WISCONSIN, as Master in Captain Crowder's absence, Pilot Bateman told him that James Chappell was being put off the towboat for "union activities," even though this left the WISCONSIN short handed. This information was transmitted to several members of the crew. Bernhardt attributes the discharge of Mr. Chappell to general anti-union bias and not to bias against NMU.

On February 9, 1962, Mr. Chappell filed charges with the Board. On February 13, Bernhardt offered him reinstatement. On February 18, he returned to work aboard another towboat, the WILLIAM CLARK.

Bernhardt contends that the incident involving Mr. Chappell can have had no effect on the subsequent action of the SIU to organize Bernhardt's employees. A question is also raised as to the supervisory status of Pilot Bateman.

There was evidence that, while there was some variation among the towboats, all the pilots had authority responsibly to direct the crew on their watch, and that their exercise of authority was not mere routine, but required exercise of independent skill and judgment. We agree with the Board that Bernhardt's pilots qualify under the Act as supervisors.

Meanwhile, on February 12, when Captain Crowder returned to the WISCONSIN to take over again as Master, Bernhardt's attorney, V. Lee McMahon, told him that Bernhardt had decided after all to deal with a union, that it preferred to deal with the SIU, and that he should allow SIU organizers to come aboard to talk to the crew. In addition, the attorney directed Captain Crowder to read, and post, a notice to the crew which stated that the SIU was attempting to organize the employees, that the employees were free to join if they wished, and that Bernhardt would bargain with SIU, or any other union chosen. (Bernhardt states that at that point, no other union was attempting to organize Bernhardt's crews.) The notice also stated that...