Proceedings on application to review and set aside and cross-application to enforce an order of the National Labor Relations Board which held that petitioner had engaged in an unfair labor practice by repudiating a multi-employer association contract. The petition for review is granted, the order set aside, and the cross-application for enforcement denied.
Before Mansfield and Mulligan, Circuit Judges, and Gagliardi, District Judge.*fn*
General Marine Transport Corp. ("General Marine") petitions this court pursuant to Section 10(f) of the National Labor Relations Act ("NLRA" or "the Act"), 29 U.S.C. § 160(f), to review and set aside an order of the National Labor Relations Board entered on September 29, 1978 which adopted the recommendation of Administrative Law Judge David S. Davidson. The Board ruled that General Marine had engaged in unfair labor practices by repudiating a multi-employer association contract and by making unilateral changes in wages, hours and other terms and conditions of employment in violation of Section 8(a) (5) and (1) of the Act, 28 U.S.C. § 158(a)(5) and (1). The Board cross-petitions for enforcement of its order. Because we find that the complaint from which this enforcement proceeding arises is time-barred by virtue of section 10(b) of the Act, 29 U.S.C. § 160(b), the petition for review is granted, the order set aside, and the cross-application for enforcement denied.
A somewhat detailed review of the dispute between General Marine and the intervenor in this proceeding, United Marine Division Local 333 I.L.A., A.F.L.-C.I.O. ("Local 333"), is necessary for an understanding of the issues, particularly the statute of limitations issue, raised in this case. General Marine, a wholly-owned subsidiary of a holding company owned and operated by the Berman Family, operates sludge vessels used to transport and dispose of sewage sludge. Sometime prior to 1973, General Marine recognized Local 333 as the collective bargaining representative of its employees and joined the New York Marine Towing and Transportation Association ("the Association"), a multiemployer association which negotiates contracts on behalf of its members with the union. In 1969, General Marine agreed that all Association contracts listing it as a member would apply to employees working five vessels the Susan Frank, the Sam Berman, the Samantha, the Richard K, and the Jonathan B (hereinafter "the 1969 letter of understanding"). On April 1, 1973, the Association, on behalf of owners of towing and transportation vessels, including General Marine, entered into a three year contract with Local 333. Article I Section I of the agreement limited its scope "to licensed and unlicensed employees, employed on tugboats and self-propelled lighters owned or operated by the (covered employers) in the Port of New York and vicinity."
Shortly before the expiration of the 1973-76 contract, the Association requested General Marine to complete an authorization form so that the Association could negotiate a new contract on its behalf. The president of General Marine signed the form and, in response to a request for the "number and type of vessels that your company . . . now owns or operates which are subject to the union agreements," the president listed one vessel the Susan Frank. On March 26, 1976, the Association and Local 333 executed a new three year contract which, with the exception of two provisions, renewed the 1973-76 agreement. These two changes were as follows. First, the new agreement covered not only all employees working on vessels owned or operated by member employers, but also all employees of "a subsidiary company, an affiliated company or a company division in the Port of New York and vicinity." Second, the new agreement contained the so-called vegetable oil clause which stated that:
(n)o vessel operated under this contract shall tow any barge under 55,000 barrels used in the animal, vegetable, or fish oil trades unless there are two men aboard the barge at all times.
Based upon this agreement, Local 333 claimed that Berman Enterprises, Inc. ("Berman"), a corporation which operates tugs, barges, and tankers in the New York harbor and which, like General Marine, is a wholly-owned subsidiary of the Berman family holding company, was required to abide by the contract between the Association and the union. On April 13, 1976, Peter Frank, Vice President of General Marine, sent a letter to Local 333 which stated, in pertinent part:
We have studied (the agreement) and find that its scope exceeds the authority of the Association to negotiate on behalf of General Marine Transport Corp. In addition, the Memorandum, among other things agrees to conduct that constitutes an unlawful group boycott.
As a result of these provisions this company cannot bind itself to the memorandum of Agreement and will not execute a collective bargaining agreement based upon its term.*fn1
Between April and August 1976, Local 333 filed four separate charges with the Board, claiming that both General Marine and Berman had engaged in unfair labor practices. The first charge (Case No. 2-CA-14240), filed on April 23, 1976, stated that Berman and its affiliated companies, including General Marine, abrogated the 1976-79 Association contract by sending the April 13th letter to Local 333, thereby indicating a refusal to bargain fairly with the employee representative in the appropriate bargaining unit. The Regional Director refused to issue a complaint in this matter. In a letter dated June 16, 1976, she explained to the union the reasons for her decision:
The investigation discloses that for many years past the only company named in the charge which had been a party to the aforesaid Association agreements was General Marine . . . It appears further from the evidence, that your recent efforts to secure a new contract from General Marine, included a demand that the unit of employees historically represented by you, as noted above, be enlarged to encompass employees and vessels of the various affiliated companies, which employees could not, at this time, appropriately be included in the historical unit . . . Under these circumstances, the refusal by any of the charged parties to execute the Association agreement cannot be deemed to constitute a violation of the Act as alleged by you.
The Regional Director also supported her decision based upon the determination that the vegetable oil clause was an illegal hot cargo clause and called for a group boycott:
Moreover, this agreement contains a provision which the General Counsel has concluded is in violation of Section 8(e) of the Act and is the subject of further proceedings in Case No. 2-CE-93.
The General Counsel of the Board denied Local 333's appeal in July 1976 and its request for reconsideration in August 1976 "substantially for the reasons set forth in the Regional Director's letter . . . "
Local 333 filed a second charge (Case No. 2-CA-14246) on May 18, 1976, stating that General Marine and Berman had refused to bargain, had induced employees to become members of another union, District No. 1 Pacific Coast District, Marine Engineers Beneficial Association, A.F.L.-C.I.O. ("MEBA"), and had conspired with MEBA to achieve this end. On June 30, 1976, two days after the Regional Director had determined that a complaint should issue alleging unlawful employer assistance,*fn2 Berman entered into a settlement agreement with the Board in which Berman agreed, inter alia, not to recognize MEBA as its employees' bargaining representative until the Board held an election following a representation proceeding that Berman had commenced on June 11, 1976.
Local 333 filed yet another set of charges on August 6, 1976, once again naming Berman and all its affiliates. The charge in Case No. 2-CA-14433-1 stated that the employers abrogated the 1976-79 Association contract by the April 13th letter and thereafter refused to bargain with the union with respect to the employees working on four vessels the Rebecca K, Susan Frank, Sam Berman, and Richard K.
The charge in Case No. 2-CA-14433-2 set forth identical claims except that they were directed only to employees of three ships replacing vessels listed in the 1969 letter agreement. On August 12, 1976, Berman requested dismissal of these charges on the grounds that they were identical to the previously dismissed charges raised in Case No. 2-CA-14240 and because the settlement agreement in Case No. 2-CA-14246 effectively precluded Berman from entering into an agreement with any union until the representation question was resolved by the Board. Before the Board could act on Berman's request, Local 333 contacted the Regional Director and offered to withdraw the charges. On August 23rd, the Regional Director approved this request.
Having been unsuccessful with its unfair labor practice charges, the president of Local 333 wrote to Jared Stamell, general counsel for the Berman-owned enterprises, on August 18, 1976 stating that "demand is hereby made upon you to collectively bargain concerning the terms and conditions of our labor contract involving the vessels . . . acknowledged to be within the bargaining unit by the 1969 ...