Are offshore vessels private property?

The answer to the above question could have a major affect on labor unions.

This precise question arose during a major union campaign in 2000-2003 to organize the vessel personnel of the U.S. offshore boat companies in the southern gulf. The labor organization, Offshore Mariners United (OMU), a consortium of U.S. maritime unions, filed unfair labor practice charges with the National Labor Relations Board (NLRB) against two boat companies seeking access to company vessels to communicate with and solicit employees to join OMU. In an Advice Memorandum dated June 19, 2002, the associate general counsel of the NLRB in Washington, D.C., answered the question.

After careful analysis, the associate general counsel held that the union failed to meet its burden of demonstrating that the mariners were so isolated from the ordinary flow of information that characterizes our society that they are beyond the reach of reasonable union efforts to communicate with them. He held that the charges against the two boat companies should be dismissed, absent withdrawal.

What surprised the offshore service vessel industry was that even though their vessels were private property, there was a potential legal right under the National Labor Relations Act for labor unions to have access to vessels to communicate with employees about unionization.

The general rule is that an employer has the right to bar non-employee union organizers from its property. However, a union organizer may gain access where it meets the burden of showing that no other reasonable means of communicating its organizational message to employees exists or that an employer’s access rules discriminate against union solicitation. This burden on a labor union is a heavy one.

The analysis examines whether the on-site living arrangements themselves preclude employees from the ordinary flow of information. If so, then what, if any, opportunities does the union have to communicate with employees when they are away from the work site?

So, there is a strong general rule that a vessel is private property and non-employee union organizers have no right of access to promote and solicit for a union. But where an employer allows other non-employees on its vessels to address or solicit employees on other subjects, the employer will also have to permit union organizers on board. Additionally, where no other reasonable means of communicating its organizational message exists, a union organizer can gain access.

 

About the author

Clyde Jacob III

Clyde Jacob III is senior counsel in Fisher Phillips’ New Orleans office. His experience spans 40 years, and he has represented employers throughout the U.S. and Puerto Rico. He can be reached at chjacob@fisherphillips.com.

1 Comment

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    I would think the unions have a very strong case that there is no other way for them to communicate. The offshore boats are all working out of Port Fourchon these days. There is extremely limited access to the docks.

    Gate guards are checking to see if you’re on the list of people allowed to visit, along with ID’s and TWICs.
    Once the boat crews are away from their boats, they’re scattered all over the USA and the entire world. There is no way for unions to communicate with them at that point.

    The crews don’t all come and go from just one gate at certain times of day like in a factory or plant on shore. There are dozens of docks and people are coming and going at all hours of the day. Again, no practical way for union organizers to talk to people and let them know about the unions.

    I think everyone has a right to speak and everyone has a right to listen. I do not agree at all with how the owner/operators treat their crews in this particular thing (protecting ‘them’ from outside influence) or in all the other ways they treat their crews like prisoners. The gulf oil patch is LONG overdue for a shake up. Not saying the union is the solution, but they really ought to be treating crews a lot better than they do. We are NOT “boat trash” and we do NOT appreciate being treated that way!

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