Big Apple Launch

National Labor Relations Board - Board Decisions

Mar 19, 1992

306 N.L.R.B. 735 (N.L.R.B. 1992)

735
306 NLRB No. 145
BIG APPLE LAUNCH
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
With respect to the chronology of events in 1989 underlying the
8(a)(5) violation, the judge correctly found that Louis Kyriakidis be-
came a part owner of the Respondent on February 1, that the Union
filed a representation petition on April 7 (the record shows that it
was at 12:29 p.m.), that Kyriakidis divested himself of his ownership
interest on May 3, and that the Union withdrew its petition on June
16. He erred, however, in finding that Kyriakidis, on behalf of the
Respondent, signed the initial collective-bargaining agreement (the
Memorandum of Agreement introduced into evidence) when the
Union withdrew its petition. That finding seems to have been based
on the judge’s misreading Morrissey’s testimony. Morrissey, the sole
witness to testify to the events on which the alleged refusal to bar-
gain rests, testified that the agreement was signed by Kyriakidis the
afternoon of April 7, several hours after Morrissey informed
Kyriakidis that he had just filed the petition. Morrissey also testified
that he prepared the Memorandum of Agreement later that same
afternoon. The Memorandum of Agreement supports Morrissey’s
averment that it was signed on April 7, as that is the date written
in next to the typewritten word ‘‘DATE’’—albeit the agreement also
contains a written entry of ‘‘the 6 day of April’’ as the date on
which it states it was ‘‘made’’ (an apparent inadvertent mistake in
dating given Morrissey’s undisputed testimony). Accordingly, we
find that the agreement was signed by Kyriakidis on April 7, a time
when he still retained his one-third interest in the Respondent.
We also correct the judge’s error in finding that the Union filed
its unfair labor practice charge on the refusal-to-bargain issue after
September 10. The record shows that the charge was filed on July
9. This error does not affect our decision.
No exceptions were filed to the judge’s findings of violations of
Sec. 8(a)(3) and several independent violations of Sec. 8(a)(1).
2 The recommended Order is modified to include the Board’s
standard language to describe the Respondent’s affirmative bar-
gaining obligation.
3 The notice is amended to conform to the Order.
Elite Marine Service, Ltd. d/b/a Big Apple Launch
and Local 333, United Marine Division, Inter-
national Longshoremen’s Association, AFL–
CIO. Cases 29–CA–14981, 29–CA–15453, and
29–CA–15551
March 19, 1992
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS OVIATT
AND RAUDABAUGH
On November 4, 1991, Administrative Law Judge
James F. Morton issued the attached decision. The Re-
spondent filed exceptions. The General Counsel filed a
brief in support of the judge’s decision and an answer-
ing brief to the Respondent’s exceptions. The Re-
spondent filed a reply to the answering brief.
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,1 and con-
clusions and to adopt the recommended Order as
modified.2
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Elite
Marine Service, Ltd. d/b/a Big Apple Launch, Staten
Island, New York, its officers, agents, successors, and
assigns, shall take the action set forth in the Order as
modified.
1. Substitute the following for paragraph 2(c).
‘‘(c) On request, bargain with the Union as the ex-
clusive representative of the employees in the fol-
lowing appropriate unit on terms and conditions of em-
ployment and, if an understanding is reached, embody
the understanding in a signed agreement:
‘‘All regular part-time and full-time crew mem-
bers employed by the Employer at its facility lo-
cated between Piers 17 and 18, Staten Island,
New York, excluding office clericals, guards and
supervisors as defined in the Act.’’
2. Substitute the attached notice3 for that of the ad-
ministrative law judge.
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 threaten to close our business to dis-
courage support for Local 333, United Marine Divi-
sion, International Longshoremen’s Association, AFL–
CIO.
WE WILL NOT tell our employees, in effect, that we
will hire only employees opposed to the Union.
WE WILL NOT unlawfully interrogate any of our em-
ployees as to their support for the Union.
WE WILL NOT discharge any employee in order to
discourage membership in the Union.
WE WILL NOT fail to bargain collectively with the
Union by refusing to honor its requests to bargain.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce any of our employees in the
exercise of the rights guaranteed them by Section 7 of
the Act.
736 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 It had been adjourned indefinitely on July 17. In the interval be-
tween then and September 16, the parties reached a stipulation as
to certain facts relevant to the issue of the Board’s jurisdiction. That
stipulation was forwarded with a letter dated September 16 which re-
cited my order closing the hearing. That letter and the stipulation are
in evidence as Jt. Exh. 1.
WE WILL, on request, bargain with the Union and
put in writing and sign any agreement reached on
terms and conditions of employment for our employees
in the following appropriate unit:
All regular part-time and full-time crew members
employed by us at our facility located between
Piers 17 and 18, Staten Island, New York, exclud-
ing office clericals, guards and supervisors as de-
fined in the Act.
WE WILL offer Joseph Fitzgerald, James Behan, and
John McGowan immediate and full reinstatement to
their former jobs or, if these jobs no longer exist, to
substantially equivalent positions, without prejudice to
their seniority or other rights and privileges and WE
WILL make them whole for any losses of earnings and
other benefits they may have suffered as a result of the
discrimination against them, with interest.
WE WILL remove from our files any references to
the unlawful actions against Fitzgerald, Behan, and
McGowan and notify them that this has been done and
that their discharges will not be used against them in
any way.
ELITE MARINE SERVICE, LTD. D/B/A BIG
APPLE LAUNCH
Matthew T. Miklave, Esq., for the General Counsel.
John G. Capetanakis, Esq., of New York, New York, for the
Respondent.
DECISION
STATEMENT OF THE CASE
James F. Morton, Administrative Law Judge. The com-
plaint alleges that Elite Marine Service, Ltd. d/b/a Big Apple
Launch (the Respondent) has engaged in unfair labor prac-
tices within the meaning of Section 8(a)(1), (3), and (5) of
the National Labor Relations Act (the Act) by having refused
to negotiate a renewal collective-bargaining agreement with
Local 333, United Marine Division, International Longshore-
men’s Association, AFL–CIO (the Union), by having dis-
charged three employees to discourage support for the Union,
and by having unlawfully interrogated and otherwise coerced
employees respecting their support for the Union.
The Respondent, in its answer, asserts that it is not en-
gaged in interstate commerce, that the Union is not the col-
lective-bargaining agent of its employees, and that it has not
engaged in any unfair labor practice.
The hearing opened on July 15, 1991. It continued on July
17 and closed on September 16, 1991.1 Upon the entire
record, including my observation of the demeanor of the wit-
nesses and after considering the brief filed by the General
Counsel, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent is a corporation of the State of New
York. Its principal place of business is located between piers
17 and 18 on Staten Island, New York. It operates launches
to transport crews between those piers and oil tankers and
other vessels moored in the New York harbor. Those crews
are employed by other companies on vessels which transport
products and materials to locations outside the State of New
York, including other States of the United States. The Re-
spondent also carries, to and from these vessels, shipping
agents, agents from the customs and immigration services,
oil gaugers, and others.
In Open Taxi Lot Operation, 240 NLRB 808 (1979), the
Board found that the employer there, in operating a taxi dis-
patch system at the San Francisco airport, provided a service
which was an essential link in interstate commerce. On that
basis, the Board asserted jurisdiction. The launch services
provided by the Respondent for crews of oceangoing vessels
and for other personnel having business aboard those vessels
are at least equally an essential link in interstate commerce
as the taxi services provided at the San Francisco airport. On
that basis, and as the Respondent derives gross revenues
which exceed $50,000 annually, the Board should assert its
jurisdiction in this case.
As noted above, the parties reached a stipulation respect-
ing certain commerce facts. That stipulation discloses that the
Respondent, in its operations annually, meets the Board’s in-
direct outflow standard for the assertion of jurisdiction, as set
out in Frank Arrow Rock Materials, 284 NLRB 1 (1987),
and in Siemons Mailing Services, 122 NLRB 81 (1958). For
that further reason, the Board should assert jurisdiction.
II. LABOR ORGANIZATION
The uncontroverted testimony establishes that the Union is
a labor organization within the meaning of Section 2(5) of
the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Alleged Refusal to Bargain
On August 11, 1987, the Union received a certification of
representative in Case 29–RC–6843 as the exclusive rep-
resentative, for the purposes of collective bargaining, for a
unit comprised of all regular part-time and full-time crew-
members employed by Seaquest Marine Service, Inc. and
Big Apple Launch Service, Ltd., at its facility located be-
tween piers 17 and 18, Staten Island, New York, excluding
office clericals, guards, and supervisors as defined in the Act.
On February 1, 1989, three individuals—namely, Ourania
Golfinopoulos, Louis Kyriakidis, and John Hatzalou, pur-
chased the business from Seaquest Marine Service, Inc. and
Big Apple Launch Service, Inc. and transferred those assets
to the Respondent in exchange for its capital stock.
The Union’s assistant business manager at that time, James
Morrissey, heard of the sale and visited the Staten Island fa-
cility where he spoke with Louis Kyriakidis, also known as
Louis Kay. Kay told Morrissey that he would recognize the
737BIG APPLE LAUNCH
2 For some inexplicable reason, the contract indicates that it was
executed on April 6, 1989—the day before the Union filed its peti-
tion in Case 29–RC–7183. Obviously, the April 6 date is in error
as Morrissey’s testimony shows that the Union had filed its petition
because it had not been successful in getting a contract signed.
Union but would not sign a contract because he and his part-
ners needed time ‘‘to get on their feet.’’
Morrissey spoke with Kay several times afterwards, appar-
ently without making any headway towards getting an agree-
ment signed. Morrissey concluded that Kay was stalling. The
Union then, on April 7, 1989, filed a petition in Case 29–
RC–7183 to represent the Respondent’s crewmembers.
On May 3, 1989, Kay sold his stock in the Respondent to
Gerasimos Vlachos. It appears, however, that Kay continued
to function as an official of the Respondent. Morrissey testi-
fied that the Union withdrew its petition in Case 19–RC–
7183 on June 16, 1989, when Kay signed a collective-bar-
gaining agreement with it.2 That contract expired on June 30,
1990.
On April 1, 1990, the Union wrote the Respondent that the
collective-bargaining agreement would terminate as of June
30, 1990, and it requested that that arrangements be made to
negotiate a renewal contract. By letter of June 6, 1990, the
Union reiterated its request. When no response was received
to either letter, Morrissey telephoned the Staten Island facil-
ity and was told to call ‘‘Mrs. G,’’ whose full name is
Ourania Golfinopoulos. Mrs. Golfinopoulos’ signature ap-
pears on one of the papers comprising the formal documents
in this case. She lists herself there as the president of the Re-
spondent. She also signed the stipulation, discussed above, in
her capacity as president. Morrissey called her. She told him
then that the Respondent was losing money, that she had
nothing against the Union, that the employees ‘‘were good
men,’’ and that she would have ‘‘Jerry’’ Vlachos call him
to negotiate a contract. In that discussion, Mrs.
Golfinopoulos also referred to Louis Kay as her partner.
Morrissey, however, never heard from Vlachos. He wrote
Mrs. Golfinopoulos on September 10, 1990, to tell her that
Vlachos never called him. When he received no response to
that letter, the Union filed the first of the unfair labor prac-
tice charges in this case.
The evidence adduced by the General Counsel dem-
onstrates that the Union was certified in 1987 as the exclu-
sive collective-bargaining representative of the unit of crew-
members employed at the launch facility located between
piers 17 and 18 in Staten Island by Sea Quest Marine and
Big Apple Launch. The Respondent took over that business
in 1989. Louis Kay, whom the Respondent’s president later
identified as one of her partners, signed a collective-bar-
gaining agreement, on behalf of the Respondent, with the
Union, covering the employees in that unit. The evidence
also discloses that the Union made repeated efforts to meet
with the Respondent in order to negotiate the terms of a re-
newal agreement and that the Respondent has not commu-
nicated with the Union towards setting up a time and place
for negotiations. The evidence thus establishes prima facie
that the Respondent has failed to fulfill its obligation to bar-
gain collectively with the Union. The Respondent has offered
no plausible grounds to explain its failure to honor the
Union’s request that a meeting be arranged in order to nego-
tiate a renewal contract. In the absence of any valid reason,
I find that the Respondent has failed to bargain collectively,
with the Union, as alleged in the complaint.
B. Alleged Coercive Statements
1. Conversations between Fousteris and Omar
The complaint in these cases alleges that the Respondent,
by statements made by its manager, Demetrios Fousteris,
interfered with the rights of its employees to be represented
by the Union.
Fousteris began working for the Respondent on September
18, 1990, managing the Staten Island facility. The General
Counsel offered the testimony of Habib Omar as to two con-
versations he had with Fousteris.
Omar testified as follows. He worked on a part-time basis
for the Respondent during the months that he is in school,
and full time during the summer months. He divided his du-
ties between work as a deckhand and office work. In Sep-
tember 1990, Fousteris talked to him about unions, saying
that it was not possible ‘‘to organize the company’’ and that
the three captains who belonged to the Union will vote for
the Union. Fousteris identified those three as Joseph Fitz-
gerald, John McGowan, and James Behan. Fousteris also said
then that if the Union came in he would hire several captains
to vote against the Union. In November 1990, Fousteris
asked Omar if he knew anybody who wants to work for the
Respondent and admonished him to ‘‘make sure they don’t
belong to the [U]nion.’’
Omar testified further that, in December 1990, Fousteris
handed him a sheet, which had the Respondent’s letterhead
on it, and which had the following typed on it.
My name is . . . . and I am a subcontractor doing
jobs for Elite Marine Services, Ltd., Trading as Big
Apple Launch Service, Ltd. That I execute the work
using my own tools, materials and equipment and I pay
my own taxes, including but notlimited to the social se-
curity taxes.
That ELITE MARINE SERVICES Ltd., Trading as
BIG APPLE LAUNCH SERVICE Ltd., do not exercise
an supervision for the execution of the work or the
hours of work and I make my own work schedule.
Therefore, I am not considered an employee of the
above named firm. I get paid according to the work
performed by me and I pay all my taxes including So-
cial Security, Federal income tax, State income tax and
City income tax. If needed, I carry my workers com-
pensation and disability insurance and I am aware that
I do not have such coverage from the company.
Fousteris told him then that if he did not sign it in 2
weeks he would have to leave his job. Two weeks later
Omar asked Fousteris if he still wanted that letter signed.
Fousteris told him to forget about it.
Fousteris answered in the negative to a series of questions
put to him by the Respondent’s counsel as to whether he had
any discussions with Omar, including any relating to the
Union. In fact, Fousteris sometimes appeared to be answer-
ing ‘‘No’’ before a question was asked or completed.
I credit Omar’s account over Fousteris’ summary denials.
Based on the credited evidence, I find merit to the com-
plaint allegation that the Respondent, by Fousteris, interfered
738 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
with employees’ Section 7 rights by having indicated to
Omar that it would hire only employees who would be op-
posed to the Union.
2. Conversations between Fousteris and Fitzgerald
Joseph Fitzgerald has worked in the maritime industry
since 1959. He was referred from the Union’s hiring hall, to
the Respondent and began working for the Respondent in
April 1990 as a launch captain. Fitzgerald testified that, dur-
ing a discussion he had with Fousteris in his office in late
November or early December 1990, the subject of the Union
came up. According to Fitzgerald, Fousteris began talking
about the employees voting for or against the Union and that
Fitzgerald told Fousteris that there was no need for any such
election as the Union had an agreement with the Respondent.
A week later, Fitzgerald testified, Fousteris asked him how
another launch operator, McGowan, would vote if there was
an election for the Union and that he replied that he did not
know. Fitzgerald further related that Fousteris asked him how
he would vote and he answered that he would vote for the
Union. In a later discussion, also as reflected in Fitzgerald’s
account, Fousteris referred to the Union, and also to a Board
agent who apparently was conducting an investigation, in
scatological terms.
Fousteris testified that he never said anything against the
Union but did not controvert, in any material manner, the
testimony of Fitzgerald respecting the discussions they had
concerning unions. I credit Fitzgerald’s account.
Based on the credited evidence, I find that the Respondent
coerced its employees respecting their rights under Section 7
of the Act by Fousteris’ having unlawfully interrogated Fitz-
gerald as to his and McGowan’s sympathies for the Union.
See Williamson Memorial Hospital, 284 NLRB 37, 38–39
(1987).
3. Alleged unlawful threat to close
James Behan, employed by the Respondent on December
30, 1990, as a launch captain also upon his referral from the
Union’s hiring hall, testified as follows. On that day,
Fousteris gave him a copy of the subcontractor agreement,
set out above. A week later, Fousteris talked to him about
that form. During the discussion, Behan referred to the form
in a sarcastic manner and started to ask Fousteris as to
whether the form had anything to do with the Union.
Fousteris interrupted and told him angrily that if ‘‘the people
want the [U]nion . . . and vote yes, [h]e will close up the
business.’’ Fousteris went on to say, in vulgar language, that
he would open up a new business while Behan and the oth-
ers would be out in the ‘‘street.’’
Fousteris, in the course of his testimony, did not allude to
that conversation in any substantive way.
I credit Behan’s vivid account and, accordingly, I find that
the Respondent, by Fousteris, threatened its employees that
it would close its operations if they supported the Union.
C. Alleged Unlawful Discharges
Behan reported for work on Sunday, January 9, 1991, and
found that another employee was assigned in his place. He
asked Fousteris for an explanation and was told that his
hours were being cut and that he would be called back when
he was needed.
Fitzgerald was told by Fousteris in a telephone conversa-
tion on January 13, 1991, that it had been decided at a com-
pany meeting that he was not to report for work, that he was
‘‘terminated.’’
McGowan received a call also from Fousteris on January
13, to the same effect.
All three were told by Fousteris that they were ‘‘good
men.’’
The Respondent later hired several launch operators but
has not recalled Fitzgerald, McGowan, or Behan.
The evidence in this case discloses that these three launch
captains were longtime members of the Union, that the Re-
spondent was aware of and had animus as to their support
for the Union, that it discharged them in the context of evad-
ing its obligation to bargain collectively with the Union and
despite the fact that it acknowledged that they were good
workers, and that it hired replacements for them, after having
indicated to one employee, Omar, that it would hire employ-
ees who would be opposed to the Union. The General Coun-
sel has established a clear prima facie case that these three
launch captains were discharged because they supported the
Union. Under Wright Line, 251 NLRB 1083 (1980), the bur-
den then shifted to the Respondent to prove that it would,
absent the Union, still have terminated their employment.
There is no probative evidence in the record which the Re-
spondent can cite to show that it has met this burden. I thus
find that the Respondent discharged these three captains be-
cause they were members of, and supported, the Union.
CONCLUSIONS OF LAW
1. The Respondent is an employer within the meaning of
Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization as defined in Section
2(5) of the Act.
3. The Respondent has engaged in unfair labor practices
within the meaning of Section 8(a)(1) of the Act by having
(a) Threatened its employees with closing its business to
discourage support for the Union.
(b) Telling employees in effect that it will hire only em-
ployees opposed to the Union.
(c) Unlawfully interrogated its employees as to their sup-
port for the Union.
(d) Engaged in conduct described in paragraphs 4 and 5
below.
4. The Respondent has engaged in unfair labor practices
within the meaning of Section 8(a)(3) of the Act by having
discharged its employees Joseph Fitzgerald, James Behan,
and John McGowan because of their support of the Union.
5. The Respondent has engaged in an unfair labor practice
within the meaning of Section 8(a)(5) of the Act by failing
to honor the Union’s request that it bargain collectively with
the Union as the exclusive representative for such purposes
of a unit comprised of the crewmembers employed by the
Respondent.
THE REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, I find it necessary to order the Re-
spondent to cease and desist therefrom and to take certain af-
firmative action designed to effectuate the policies of the
Act.
739BIG APPLE LAUNCH
3 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
4 If this Order is enforced by a judgment of a United States court
of appeals, 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.’’
The Respondent, having unlawfully discharged three em-
ployees, I find it necessary to order it to offer them reinstate-
ment to their former jobs or, if they no longer exist, to sub-
stantially equivalent jobs, without prejudice to their seniority
or their other rights and privileges and make each of them
whole for any losses of earnings or other compensation that
they suffered as a result of the unlawful action against them.
Backpay shall be computed in accordance with the manner
prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950),
with interest as computed in New Horizons for the Retarded,
283 NLRB 1173 (1987).
On these findings of fact and conclusions of law, and on
the entire record, I issue the following recommended3
ORDER
The Respondent, Elite Marine Service, Ltd. d/b/a Big
Apple Launch, Staten Island, New York, its officers, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Threatening its employees with closing its business in
order to discourage support for Local 333, United Marine Di-
vision, International Longshoremen’s Association, AFL–CIO
(the Union).
(b) Telling its employees in effect that it will hire only
employees opposed to the Union.
(c) Unlawfully interrogating its employees as to their sup-
port for the Union.
(d) Discharging employees in order to discourage member-
ship in the Union.
(e) Failing to bargain collectively with the Union as the
exclusive representative of the unit comprised of its crew-
members by failing to honor the Union’s request to bargain.
(f) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them in Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer Joseph Fitzgerald, James Behan, and John
McGowan immediate and full reinstatement to their former
jobs, or if those jobs no longer exist, to substantially equiva-
lent positions, without prejudice to their seniority or other
rights and privileges, and make them whole for their lost
earnings in the manner set forth in the remedy section above.
(b) Remove from its files all references to the discharge
of these employees and notify them in writing that this has
been done and that their discharges will not be used against
them in any way.
(c) Notify the Union in writing that it will meet, and bar-
gain collectively, with the Union as the exclusive representa-
tive of the Respondent’s crewmembers.
(d) Preserve and, on request, make available to the Board
or its agents, for examination and copying, all payroll
records, social security payment records, timecards, personnel
records and reports, and all other records necessary to ana-
lyze the amount of backpay due under the terms of this
Order.
(e) Post at its Staten Island, New York branch copies of
the attached notice marked ‘‘Appendix.’’4 Copies of the no-
tice, on forms provided by the Regional Director for Region
29, after being signed by the Respondent’s authorized rep-
resentative, shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive days in con-
spicuous places including all places where notices to employ-
ees are customarily posted. Reasonable steps shall be taken
by the Respondent to ensure that the notices are not altered,
defaced, or covered by any other material.
(f) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.