International Organization of Masters, Mates and Pilots, Marine Div., Intern. Longshoremen's Ass'n, AFL-CIO v. N.L.R.B.

• Decision Date: 27 September 1976
• Docket Number: P,No. 75-2820,AFL-CI,75-2820
• Citation: 539 F.2d 554
• Parties: 93 L.R.R.M. (BNA) 2429, 79 Lab.Cas. P 11,639 INTERNATIONAL ORGANIZATION OF MASTERS, MATES AND PILOTS, MARINE DIVISION, INTERNATIONAL LONGSHOREMEN'S ASSOCIATION,etitioner-Cross Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent-Cross Petitioner.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 554

539 F.2d 554

93 L.R.R.M. (BNA) 2429, 79 Lab.Cas. P 11,639

INTERNATIONAL ORGANIZATION OF MASTERS, MATES AND PILOTS MARINE DIVISION, INTERNATIONAL LONGSHOREMEN'S ASSOCIATION, AFL-CIO, Petitioner-Cross Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent-Cross Petitioner.

No. 75-2820.

United States Court of Appeals Fifth Circuit.

Sept. 27, 1976.

Victor H. Hess, Jr., New Orleans, La., Marvin Schwartz, New York City, Jerry D. Anker, Washington, D. C., Seymour Waldman, New York City, for petitioner-cross respondent.

Elliott Moore, Deputy Assoc. Gen. Counsel, Roger T. Brice, N.L.R.B., Washington, D. C., for respondent-cross petitioner.

Chas. M. Paschal, Jr., Regional Director, Region 15, New Orleans, La., for other interested parties.

Albert H. Hanemann, Jr., New Orleans, La., for Westchester, California & Hawaiian and Pyramid.

Richard H. Markowitz, New York City, for District Nos. 1 & 2.

Jean C. Gaskill, Donald D. Connors, Jr., San Francisco, Cal., for intervenors.

Petition for Review and Cross Application for Enforcement of an Order of the National Labor Relations Board (Louisiana Case).

Before THORNBERRY ^* and AINSWORTH, Circuit Judges, and HOFFMAN, ^** District Judge.

AINSWORTH, Circuit Judge:

Section 8(b)(1)(B) of the National Labor Relations Act 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." See 29 U.S.C. § 158(b)(1)(B). The National Labor Relations Board determined that petitioner International Organization of Masters, Mates and Pilots, Marine Division, International Longshoremen's Association, AFL-CIO (hereinafter "MM&P") violated section 8(b)(1)(B) by picketing two United States merchant vessels, the Ultramar and the Sugar Islander, whose licensed deck officers are represented by a rival union, Marine Engineers Beneficial Association (hereinafter "MEBA"). MM&P petitioned this court to review and reverse the Board's order, the Board cross-petitioned for enforcement, and the vessels' operators and MEBA intervened on behalf of the Board. See 29 U.S.C. §§ 160(e), 160(f); Fed.R.App.P. 15(d). We enforce the order.

I.

Petitioner MM&P is the principal labor union representing the licensed deck officers who serve in the United States Merchant Marine. Licensed deck officers on large merchant vessels, such as the Ultramar and the Sugar Islander, are "supervisors" within the meaning of the Act, see 29 U.S.C. § 152(11), as one of their duties, among others, is the adjustment of grievances that arise on shipboard. Thus, they are also "representatives" for the purposes of section 8(b)(1)(B). But MM&P represents, in addition to the licensed deck officers, a small contingent of unlicensed "employee" members. ¹ See 29 U.S.C. § 152(3). By reason of its representation of these "employee" members, MM&P is considered by the Board to be a "labor organization" as defined in section 2(5) of the Act. See 29 U.S.C. § 152(5); International Organization of Masters, Mates and Pilots v. NLRB, 122 U.S.App.D.C. 74, 351 F.2d 771, 777 (1965). It thus enjoys the protections embodied in section 8(a) of the Act and, similarly, suffers the restrictions imposed by section 8(b) on its organizational and other activities. See 29 U.S.C. §§ 158(a), 158(b).

Since the late 1950's, MM&P has been engaged in a burgeoning jurisdictional dispute with MEBA over the right to represent licensed deck officers manning United States merchant vessels. Representation of the licensed deck officers who will serve upon a particular vessel by either MM&P or MEBA, as the case may be, is determined when the vessel's operators execute a contract with the union of their choice at or near the time when construction of the vessel is completed. The competition between the two unions has heightened since 1970 because of renewed shipbuilding activity fostered in principal part by a federal subsidy program. Because its contract is more favorable to vessel operators in many respects than the standard MM&P contract, MEBA holds a substantial competitive advantage in the fight to represent licensed deck officers on the newest generation of United States merchant vessels. MM&P's contract, for example, requires manning by a master and four mates; the MEBA contract, by contrast, only requires manning by a master and three mates. Additionally, there is a wage differential favoring the MEBA contract, and an alliance between MEBA and the Seafarers International Union, which represents unlicensed personnel, has worked in the past as an inducement for vessel operators to accept the MEBA contract.

The Ultramar, the first American flag ship capable of carrying oil, bulk cargo, and ore, is owned by CIT Corporation and bareboat chartered to Aries Marine Shipping Company. Aries entered into a crew husbanding agreement with Westchester Marine Shipping Company, under the terms of which Westchester supplies crews for the Ultramar. Westchester is in turn a party to a collective bargaining agreement with District No. 1-Pacific Coast Division, MEBA, AFL-CIO. The collective bargaining agreement between MEBA and Westchester covers licensed deck officers and engine officers aboard the Ultramar and embodies the advantages of the standard MEBA contract, including the provision for manning by a master and three mates. In 1971, shortly after construction of the Ultramar had begun, the President of MM&P received assurances from Aries that MM&P would provide representation for the licensed deck officers on the Ultramar. Two years later, however, when construction was almost completed, the Westchester crew husbanding contract was executed, and MEBA was designated as the representative of licensed deck officers on the Ultramar. In response to inquiries from MM&P, Aries took the position that Westchester was responsible for manning the Ultramar and that the proper forum to resolve the dispute between MM&P and MEBA was the AFL-CIO, the parent organization to which both MM&P and MEBA belong. In November, 1973, members of MM&P picketed the Ultramar, which was at that time in Destrehan, Louisiana. The picketers carried signs stating:

S. S. ULTRAMAR

Works its Deck Officers Under

LOWER STANDARDS

than those worked under

by Deck Officers

REPRESENTED BY

MASTERS, MATES AND

PILOTS

MARINE DIVISION OF THE

INTERNATIONAL LONGSHOREMAN'S

ASSOCIATION

AFL-CIO

The second vessel picketed by MM&P, the Sugar Islander, is owned by Bankers Trust Company and time chartered to Californian & Hawaiian Sugar Company. It is the first American flag ship with a completely automated, unattended engine room. Pyramid Sugar Transport, Inc., holds the bareboat charter for the vessel and is a party to a collective bargaining agreement with District 2, Marine Engineers Beneficial Association, Associated Maritime Officers, AFL-CIO, which provides representation for the Sugar Islander's licensed deck officers. MEBA's ally, the Seafarers International Union, represents the unlicensed personnel serving on the Sugar Islander. As was its experience with Westchester, MM&P was unsuccessful in its attempts to persuade Pyramid to enter a collective bargaining agreement naming MM&P as the labor representative for the licensed deck officers aboard the Sugar Islander. In late September, 1973, approximately one month after construction of the vessel was completed, MM&P members picketed the Sugar Islander in New Orleans with signs stating:

M/V SUGAR ISLANDER

UNFAIR TO THE

MASTERS, MATES AND PILOTS

MARINE DIVISION OF THE

INTERNATIONAL LONGSHOREMAN'S

ASSOCIATION, AFL-CIO

Three months later, in January, 1974, the Sugar Islander was picketed again, while docked at a sugar refinery in Reserve, Louisiana. The picket signs carried this time stated:

M/V SUGAR ISLANDER

Works Its Deck Officers Under

LOWER STANDARDS

than those worked under

by Deck Officers

REPRESENTED BY

MASTERS, MATES & PILOTS

MARINE DIVISION OF THE

INTERNATIONAL LONGSHOREMAN'S

ASSOCIATION

AFL-CIO

MM&P members picketed the Sugar Islander with similar signs on two more occasions in January, at Burnside, Louisiana, and at Mobile, Alabama.

Pyramid and C&H Sugar Company each filed unfair labor practice charges against MM&P with the Board in early January, 1974. At approximately the same time and as a result of the picketing of the Ultramar, Westchester also filed unfair labor practice charges. A consolidated unfair labor practice complaint issued against MM&P on February 1, 1974, and a hearing was held before an Administrative Law Judge ("ALJ"). Relying on the decision of the Board and the D.C. Circuit in International Organization of Masters, Mates and Pilots (Marine and Marketing International Corp.), 197 NLRB 400 (1972), enforced, 159 U.S.App.D.C. 11, 486 F.2d 1271 (1973), cert. denied, 416 U.S. 956, 94 S.Ct. 1970, 40 L.Ed.2d 306 (1974), the ALJ concluded that the picketing of the Ultramar and the Sugar Islander fell within the literal prohibition of section 8(b)(1)(B), insofar as one object of the picketing was to force replacement of the MEBA-represented licensed deck officers with others represented by MM&P. The ALJ did not consider the extent to which other objects of the picketing were proscribed by the statute, but he did identify three other objects of MM& P's picketing: MM&P also sought (1) recognition as the sole bargaining representative for the licensed deck officers aboard the Ultramar and the Sugar Islander, (2) a collective bargaining agreement covering the licensed deck officers on the two vessels, and (3) application of the wages, terms, and conditions of employment specified in the standard MM&P contract to the licensed deck officers on the Ultramar and the Sugar Islander.

As the ALJ had done, the Board found that MM&P's picketing of the Ultramar and the Sugar Islander violated section 8(b)(1)(B) and ordered the union to cease and desist from...