Oil Workers International Union

In the Matter of OIL WORKERS INTERNATIONAL UNION, LOCAL UNION 346 (CIO) and TILE PURE OIL COMPANY Case No. 8-CC-4.-Decided June 17, 1949 DECISION AND ORDER On November 10, 1948, Trial Examiner J. J. Fitzpatrick issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had not violated the Act as alleged in the complaint and recommending that the complaint be dismissed, as set forth in- the copy of the Intermediate Report attached hereto. Thereafter, The Pure Oil Company, the charging party, herein called Pure Oil, filed exceptions to the Intermediate Report and a supporting brief. On March 10, 1949, the Board heard oral argument at Washington, D. C., in which Pure Oil and the Respondent, Local 346, participated. The Board has reviewed the rulings of the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rul- ings are hereby affirmed. The Board has considered the Intermediate Report, the briefs and exceptions, the contentions advanced at the oral argument, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner save as they are inconsistent with the additions, exceptions, and modi- fications hereinafter set forth. The facts in this case in substance are as follows : Pure Oil and Standard Oil Company, herein called Standard,"operate petroleum refineries adjacent to each other near Toledo, Ohio. Standard owns a leasehold to dock premises, located on the Maumee River about 3 miles from the refineries, and operates the dock. Standard owns cer- tain,pipe lines extending from its refinery to the dock; Pure Oil owns certain pipe lines extending from its refinery, through Standard's refinery, to the dock. Beginning about 1931, Standard permitted Pure Oil to transport its products through the pipe lines to the dock for shipment by boat. Before about 1940, Pure Oil used its own employees to perform the work of loading and unloading Pure Oil products at the dock. Thereafter, and until the outbreak of a strike 84 N. L. R. B., No. 38. 315 316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in July 1948, at Standard, Standard employees at the dock handled the shipment of both Standard and Pure Oil products under an ar- rangement which called for the sharing of expenses, including wages of the dock employees, on the basis of volume of product shipped by boat. The Respondent, a local which admits to membership employees of several refineries in the Toledo area, including employees of Standard and Pure Oil, is the certified representative of Standard and Pure Oil employees, respectively, and has had contracts with each of these two employers covering these respective units. Each unit, known as the Standard Group and the Pure Group, respectively, is separately or- ganized within the local; the Standard Group and the Pure Oil Group hold separate membership meetings and bargain with their respective employer through separate committees. When negotiations for renewal of the existing contract with Stand- ard Oil broke down, the Respondent, in April 1948, served Standard with a 60-day strike notice. In anticipation of the strike, on June 17,' 1948, Standard and Pure Oil agreed in substance that, if Standard should be unable to supply employees by reason of the strike, Pure Oil shall have the right at its own expense to operate the dock facilities with Pure Oil employees, to the extent necessary to conduct' its own refinery operations, until Standard should become able to furnish such employees. On July 8,1948, just before the commencement of the strike of Stand- ard employees, after advising the Pure Group representatives of the terms of the June 17 arrangement, Pure Oil requested the Pure Group representatives to approve the use of Pure Oil employees on the dock to handle its products. A Pure Group representative expressed doubt that "regular Pure Oil non-supervisory employees would go on to Standard property" to operate the facilities. C. J. Ossege, a mem- ber of Local 346: and also the Toledo representative of the Oil Workers International Union; suggested to Pure Oil's superintendent that the easiest way to get the desired results was for Pure Oil "to help get the strike with Standard settled." No agreement-was reached. When the strike at Standard began on July 8, the Respondent'placed' pickets at the dock and at the Standard refinery. On July 17, having again appealed unsuccessfully to the Pure Group representatives to permit the use of Pure Oil employees on the dock, Pure Oil called in two of its employees, who were union members, individually, and asked them, in the presence of Pure Group representatives, whether they would cross the picket line and work on the dock. They refused. The Standard Group then rejected a Pure Oil proposal that it employ OIL WORKERS INTERNATIONAL UNION, LOCAL UNION 346 317 the Standard dock crew, then on strike, as Pure Oil employees to handle its products. During the period from July 8 to September 24, 1948, the last day of the hearing, the crew of the S. S. Panoil 1 refused to take on Pure Oil cargo at the Standard dock unless the loading were done by Stand- ard foremen. On one such occasion, which occurred on July 17, when Pure Oil had its own supervisors on the dock ready to perform loading operations, the refusal took place after the NMU had been advised by the Standard Group that "if Standard Oil foremen load Pure Oil cargoes with Pure Oil material, it is OK," 2 and the NMU port agent had stated, "it made no difference who loaded the boat, the NMU didn't have to load boats behind the picket line, as too many heads had been broken on occasions like that." 3 After the NMU advised the Standard Group that the S. S. Panoil would return to Toledo for Pure Oil cargo unless NMU were advised in writing that such cargo was "hot," the Standard Group wrote to the NMU two letters, dated July 27 and 28, 1948, respectively, which together stated in substance that the Standard dock was "hot" and that Pure Oil cargoes, although not "hot" at the Pure Oil refinery, were "hot" when they reached the Standard dock but that the dock was cleared for loading by Standard foremen. Subsequently, on at least two occasions, the Panoil picked up Pure Oil cargoes when loaded by Standard foremen, but since about August 14, 1948, when Stand- ard advised Pure Oil that Standard supervisors would not be avail- able to load Pure Oil cargo, the Great Lakes Transport Corporation has made no effort to transport Pure Oil cargo because the NMU crew, in view of the Standard Group's "hot cargo" letter of July 28, would not transport it. The complaint in this proceeding alleges in substance that the Union violated Section 8 (b) (4) (A) by advocating strike action by em- ployees of both Pure Oil and Great Lakes, in order to force Pure Oil to cease doing business with Standard Oil, and to force Great Lakes to cease doing business with Pure Oil. The only evidence of such conduct by the Union, however, consists of primary action in support of its strike against Standard Oil-.a strike which is not alleged to be unlawful in purpose. When the strike began, as noted above, the Union posted pickets at Standard Oil premises, including the refinery and the entrances to the dock. The I The S. S. Panoil, whose crew are members of the National Maritime Union, herein called the NMU, is owned and operated by the Great Lakes Transport Corporation, which is en- gaged in transporting petroleum products by water for Pure Oil and others. 2 The Respondent was under contract with Pure Oil not to interrupt its operations. 8 There was no violence or threat of violence here. 853396-50-vol 84-24 318 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Union also sent letters to the NMU stating in effect that the Standard Oil dock was "hot." Such actions represent traditional means of con- veying to fellow workers and to the public at large the fact that a labor dispute exists with Standard Oil. The General Counsel maintains , nevertheless, that the picketing of the dock was unlawful because it also induced the employees of Pure Oil to engage in a concerted refusal to handle Pure Oil products at the dock, in order to force Pure Oil to cease doing business with Stand- ard Oil. We cannot agree. A.strike, by.its very nature, inconven- iences those who customarily do business with the struck employer. Moreover, any accompanying picketing of the employer 's premises is necessarily designed to induce and encourage third persons to cease doing business with the picketed employer . It does not follow, how-' ever, that such picketing is therefore proscribed by Section 8 (b) (4) (A) of the Act. It is clear from the legislative history of the Act that Section 8 (b) (4) (A) was aimed at secondary and not primary action. Thus, Senator Taft said of the section : This provision makes it unlawful to resort to a secondary boycott to injure the business of a third person who is wholly unconcerned in the disagreement between the employer and his employees .. . [Under] the provisions of the Norris-LaGuardia Act, it became impossible to stop a secondary boycott or any other kind of strike, no matter how unlawful it may have been at common law. All this provision of the bill does is to reverse the effect of the law as to secondary boycotts.4 Senator Taft also stated that primary strikes over terms and condi- tions of employment were "entirely proper " and "throughout this bill are recognized as completely proper strikes." 5 In the absence of any affirmative legislative history indicating that Section 8 (b) (4) (A) was intended to curb traditional primary action by labor organizations , and because the only available legislative his- tory indicates the contrary , we conclude that the section does not out- law any of the primary means which unions traditionally use to press their, demands on employers. -Iii this case the Union was making certain lawful demands on Standard Oil. It was pressing these de- mands, in part, by picketing the Standard Oil dock. As that picket- ing was confined to the immediate vicinity of Standard Oil premises 493 Cong. Rec 4323 ( April 29, 1947). 5 93 Cong Rec 3950 ( April 23, 1947). OIL WORKERS INTERNATIONAL UNION, LOCAL UNION 346 319 we find that it constituted permissive primary actions [Emphasis supplied.] It is further alleged however, that the Union's so-called "hot cargo" letters to the NMU were violative of Section 8 (b) (4) (A), on the ground that they induced and encouraged the employees of Great Lakes to strike to force Great Lakes to cease doing business with Pure Oil. We find no merit in this allegation. The Union's letters were appeals to refuse to perform services only at the Standard Oil dock. The NMU had specifically informed the Union that it would take on Pure Oil cargo from the Standard Oil dock unless it were advised that such cargo was "hot." There was no assertion by any of the parties that the Union's reply referred to any other place. Moreover, the Union's reply was careful to point out that Pure Oil cargo was not "hot" on leaving the refinery, or even at the Standard Oil dock if loaded by Standard Oil foremen. Like the picketing of the dock, therefore, the Union's letters must be viewed as an integral part of its lawful right to take primary action in support of its demands on Standard Oil, and to publicize this action. The appeals contained in the letters, no less than the appeals inherent in the picketing of the dock and in the signs which were posted adjacent to the picket line, thus, amounted -to nothing more than a 'request to respect a prililary picket line at the Employer's premises. This is traditional primary strike action. Accordingly, we conclude that none of the Union's actions herein were violative of Section 8 (b) (4) (A).7 We shall therefore dismiss the entire complaint. Moreover, on the facts of this case we would be compelled to dis- miss the complaint on yet another ground, because we are not per- suaded,that an object of the Union's activity was forcing or requiring Pure Oil to cease doing business with Standard Oil or Great Lakes to cease doing business with Pure Oil. The fact that the Union's, primary 6 The General Counsel and Pure Oil argue that , because of certain arrangements made between Standard Oil and Pure Oil in anticipation of the strike , the dock did not consti= tute Standard Oil premises for the duration of the strike Without passing on the effect under other circumstances of such a temporary abandonment of an employer 's premises, we aie satisfied that there is no evidence to warrant finding any abandonment by Standard Oil of its dock in this case ' Our 'dissenting colleague asserts that the Union 's "hot cargo" letters appealed for a boycott-of Pure Oil products at places other than,the standard oil dgck WVe find,no,,war- rant in the evidence for this conclusion The NMU's request to the Union referred only to the dock, and the Union 's reply expressly pointed out that Pure Oil -products were "not hot" at the refinery or even at the dock if loaded by Standard Oil foremen. The dissent also asserts that the Board has held comparable union appeals violative of Section 8 ( b) (4) (A) in certain cited cases. We find, however, that the appeals in those cases were not limited to action at the premises of the primary employer involved in the basic dispute Particularly in the Wadsworth case, the union was appealing for a boycott of the secondary employer , Klassen & Irodgson , Inc , although its basic dispute was with Wadsworth. 320 DECISIONS OF NATIONAL LABOR RELATIONS BOARD pressure on Standard Oil may have also had a secondary effect, namely inducing and encouraging employees of other employers to cease doing business on Standard Oil premises, does not, in our opinion, convert lawful primary action into lawful secondary action within the mean- ing of Section 8 (b) (4) (A). To hold otherwise might well outlaw virtually every effective strike, for a consequence of all strikes is some interference with business relationships between the struck employer and others. ORDER Upon the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the complaint herein against Oil Workers International Union, Local Union 346 (CIO), be and it hereby is, dismissed. MEMBER GRAY, dissenting in part : _ I agree with my colleagues that the Respondent, by picketing the Standard dock, did not violate Section 8 (b) (4) (A) of the Act either with respect to the Pure Oil employees or the employees of Great Lakes Transportation Corporation. I dissent, however, from so much of the decision which dismisses the allegation that, by labeling the prod- ucts of Pure Oil as "hot," the Respondent induced or encouraged the employees of Great Lakes Transport Corporation constituting the crew of the Panoil, to engage in a concerted refusal in the course of their employment to handle or transport Pure Oil products, an object thereof being to compel Great Lakes Transport Corporation to cease doing business with Pure Oil. In my'view, this aspect of the case requires the application of principles which underlie recent decisions in which the Board found that Section 8 (b) (4) (A) had been violated 8 In the Montgomery Fair case, carpenters employed by Fair struck to force Fair to cease doing business with Bear, a contractor, who was doing other carpentry work for Fair with nonunion carpenters. There, the secondary' strike took place at the situs of the primary dis- pute. In the Sealright case, in addition to picketing Sealright, a primary employer, a union picketed two other employers to force them to cease handling Sealright products. Here, as in those two cases, a labor organization [the Respondent], induced and encouraged the em- ployees of Great Lakes, through the medium of the "hot cargo" letters, to refuse to handle or transport certain products of Pure Oil coming 8 Matter of Local 1796, United Brotherhood of Carpenters and Joiners of America, AFL, and Montgomery Fair Co., a Corp ., 82 N. L. R. B. 211 ; Matter of Sealright Pacific Ltd. and Printing Specialties and Paper Converters Union, Local 388, A. F. L., 82 N L R. B. 271 ; Matter of United Brotherhood of Carpenters and Joiners of America, et al., and Wadsworth Bldg. Co., Inc., and Klassen & Hodgson, Inc, 81 N L. R B. 802. OIL WORKERS INTERNATIONAL UNION, LOCAL UNION 346 321 from the Standard dock with the object of forcing their employer [Great Lakes], who is not involved in the primary dispute, to cease doing business with Pure Oil. I recognize that the cases are not identical in that here the means employed to accomplish the end result was the sending of a "hot cargo" letter while there the unions resorted to picketing or strike action. But this is a distinction without a dif- ference. Contrary to the contention of the majority, the Respondent, by the "hot cargo" letters, sought to extend its activities beyond the area of the primary dispute. In the Wadsworth case, a majority of the Board held that a union violated Section 8 (b) (4) (A) in encouraging work- ers generally not to perform services for an employer engaged in a dispute with the union by publishing a "we do not patronize list." I cannot agree with my colleagues that the "hot cargo" letters were no more than an entreaty to the NMU crew not to breach the Respondent's picket line for the handling of Pure Oil products at Standard's dock. The letters were more than this. In trade union parlance, when a union brands cargo as "hot," it regards such cargo as "hot" from thence- forth, and other unions so understand the brand. Anything declared "hot" remains "hot" as long as the conditions which gave rise to the original designation remain or until the designating union removes the designation. I therefore view the "hot cargo" letters as a request to the NMU crew not to handle or transport the proscribed Pure Oil products at or from Standard's dock and at all other points after leav- ing the dock. Thus the Respondent engaged in more than primary strike action and sought to extend its activity to a front outside the area of the immediate dispute, as the unions did in the other cases previously cited. The Respondent's unlawful object in engaging in such conduct is made clear not only by the letters, viewed in their setting, but also by the Respondent's suggestion to Pure Oil that it "help get the strike with Standard settled." The direct object of inducing and encourag- ing the employees of Great Lakes to refuse to handle or transport cer- tain Pure Oil products was to force Great Lakes to cease doing busi- ness in this respect with Pure Oil and thereby exert pressure upon Pure Oil to require Standard to reach an agreement with the Respond- ent as to terms and conditions of employment. The Respondent's conduct cannot be justified, in my opinion, by the proviso to Section 8 (b) (4). The terms of the proviso would afford protection to members of the NMU crew, or the NMU, if they were directly involved in this proceeding, but not to the Respondent. 322 DECISIONS OF NATIONAL LABOR RELATIONS BOARD INTERMEDIATE REPORT Messrs. Jacques Schurre and Julius G. Serot, of Washington, D. C, for the General Counsel. Messrs Ben A. Harper and Allen C Hutcheson, Jr, of Chicago, Ill., for Pure. Lamb,-Goerlich and Mlcek; by Mr Lowell Goei,lich, of Toledo,=Ohio, for, the Union. STATEMENT OF THE CASE Upon an amended charge filed July 29, 1948, by The Pure Oil Company, herein called Pure, the General Counsel of the National Labor Relations Board,' by the Regional Director of the Eighth Region (Cleveland, Ohio), issued a complaint dated September 3, 1948, against Oil Workers International Union, Local Union 346 (CIO), herein called the Union or Respondent Union,' alleging that the• Respondent Union had engaged in and is engaging in unfair labor practices- affecting commerce within the meaning of Section 8 (b) (4) (A) and Section 2 (6) and (7) of the Labor Management Relations Act, 1947 (61 Stat. 161)., herein called the Act. Copies of the charge, the complaint, and notice of hearing were duly served upon Pure and the Union. With respect to the unfair labor practices, the complaint as amended alleges in substance that the Respondent Union on and after July 8, 1948, 'by orders, threats of reprisal, and promises of benefit, induced and encouraged, (1) em- ployees of Pure to engage in a strike and concerted refusal to perform services for Pure, an object thereof being to force or require Pure to cease doing business with Standard Oil Company, herein called Standard; (2) the employees of Great Lakes Transport Corporation, herein called Great Lakes, to engage in a strike and concerted refusal to transport or handle any products of Pure, an object thereof being to force or require (a) Great Lakes to cease handling or transport- ing the products of Pure and (b) Pure to cease doing business with Standard. On September 17, 1948, the Union filed its answer admitting that it is a labor organization within the meaning of the Act, but denying all other allegations in the complaint. It affirmatively alleges that the Union is the representative of the employees of 'Standard in a unit designated by the Board, which unit includes the operators of all facilities on pipe lines leading to a Standard controlled shipping. dock, as well as'on the dock ; that beginning' July 8, 1948, all th'e 'em- ployees in said unit engaged in an economic stiike against Standard which is current ; that prior to, and in anticipation of the strike, Pure received Standard products for storage and shipment and is supplying some of Standard's customers with petroleum products, and since the beginning of the strike the facilities of said pipe lines and dock have been operated either by Standard or Pure foremen ; that as a result, Pure is not a stranger to the labor dispute between Standard and its employees. Pursuant to notice, a hearing was held at Toledo, Ohio, on September 22, 23, and 24, 1948, before J. J. Fitzpatrick, the undersigned Trial Examiner duly designated by the Chief Trial Examiner. The General Counsel, Pure, and the Union were represented by counsel. All participated in the hearing and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues. Various motions by the Union to dismiss the complaint on the ground The Geneial Counsel and his representatiies at the hearing will be referred to heieim as,the General Counsel. The National 'Labor Relations Board will be called the Board. 2 Local 346 will sometimes also be called Local. OIL 'WORKERS INTERNATIONAL UNION, LOCAL UNION- 346 323 that Section 8 (b) (4) (A) of the Act contravened the provisions of the First Amendment, to the Constitution of the United States were denied.' A union motion to dismiss for failure of proof made at the conclusion of the General -Counsel's case was denied, but ruling was reserved on a similar motion renewed at the close of all the evidence. The motion is disposed of as will hereafter appear: All parties orally presented their contentions as to the issues-on the- record and since the close of-the hearing have filed briefs herein. Upon the entire record in the case and from my observation of the witnesses, I make the following : FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY Pure Oil Company is a corporation engaged in producing, refining, and selling petroleum products and in operating refineries in various States of the Union, including Ohio. Its Toledo, Ohio, refinery, which is the only one involved in this proceeding, annually imports crude oil of approximately $20,000,000 in value from points outside the State of Ohio. It annually ships petroleum products valued at approximately $50,000,000 from Toledo to points outside the State of Ohio. II. THE ORGANIZATION INVOLVED Oil Workers International Union, Local Union 346 (CIO), is a labor organiza- tion admitting to membership employees of Pure and Standard III THE ALLEGED UNFAIR LABOR PRACTICES A. The background The Standard Oil Company of Ohio operates a petroleum refinery outside the city limits of Toledo, Ohio. It also owns and operates pipe lines extending from the refinery 3 miles to a dock on the Maumee River at Toledo, which dock Stand- ard controls and operates. The Pure Oil Company operates a refinery adjacent to the Standard refinery. Pipe lines connect-the two refineries. Pure has pipe lines that extend across the Standard property down to the dock heretofore described A substandard portion of Pure's products, consisting mostly of fuel oil, is shipped by boat For a number of years Pure had an arrangement with Standard whereby Pure could, whenever necessary or advisable, transport its products through the pipe lines to the dock for shipment by boat. Under this arrangement the facilities along the pipe lines and at the dock were operated by Standard employees. - Local 346 is a large local of Oil Workers International Union, with headquar- ters at Toledo Through units or groups within the Local it represents the em- ployees of and has contracts with a number of petroleum producing concerns in the Toledo area. These groups within the Local, through their elected commit- tees, negotiate and deal with the particular employer. For some years the Stand- ard Group of the Local has represented the nonsupervisory employees of Stand- ard in a unit certified by the Board including employees who operate the booster pumps and other facilities of the pipe lines and also the employees who man the dock on the Maumee River and operate its facilities In April 1948, the contract with Standard expired. The parties were unable to agree on certain provisions J In conformity-with-Board policy as set,forth in Matter of Rite-Form Corset Company; 75 N L R B 174. 324 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in a new contract and the Local, 60 days prior to July 8, gave notice of its inten- tion to strike. The strike started July 8, after having been voted ,on favorably by the membership in the Standard Group of the Local, and was sanctioned by the Oil Workers International . Two pickets were placed and maintained in front of the main entrance to the refinery and also at the gate leading to the dock. No placards or signs were carried by these pickets, but about July 18, one or two fairly large signs were prepared and displayed at or near the picket line, reading : "This strike against Standard Oil Co. `Ohio."' The Local through its Pure Group is the representative of and has a current contract with Pure, covering the latter's employees . This contract classifies various operations in the different departments of the refinery , but makes no mention of operators of facilities of the pipe lines or at the dock. In anticipation of the impending strike against Standard and in order to safe- guard its shipments , Pure, on June 15, asked Standard to supplement the ex- isting agreement between the two companies relative to the pipe line and dock facilities by : Further agreeing that if, at any time, Standard should be prevented from performing any of its obligations under such contract by the use of its employees , or from operating any of the facilities or equipment it has there- in agreed to operate , by reason of strikes , other differences with workmen, or other causes beyond its control , Pure shall have the right to operate such of the facilities and equipment as may be necessary in the conduct of its re- finery, in the place and stead of Standard , through Pure's own employees, until such time as Standard again becomes able to perform its obligations under the terms of the aforesaid contract. On June 17 Standard accepted this supplement to the existing contract. The S. S. Panoil is owned and operated by the Great Lakes Transport Cor- poration and is engaged in transporting oil and petroleum on the Great Lakes. During the transportation season the Panoil normally loads at the Maumee dock and transports monthly about 15 cargoes of petroleum products for Pure. The crew of the Panoil are members of the National Maritime Union. B. The strike The strike against Standard started at 4 p. in. on July 8, and the Panoil was due at the dock that midnight to pick up a cargo for Pure. About noon on July 8 David S. Frank, Pure's superintendent, and its assistant superintendent, Al Dronberger , called Clyde Shamblin , chairman , and two other members repre- senting the Pure Group of the Union to a meeting,' announced terms of the sup- plementary June agreement with Standard relative to the pipe lines and the dock, and stated that during the strike Pure would operate the facilities and the dock. Shamblin expressed doubt that Pure employees , under the circumstances, would go on Standard property to operate the facilities. The morning of July 9, the S. S. Panoil having arrived on the dock, one of Pure's attorneys ( Hutche- son) and Frank discussed with Shamblin how the boat could be loaded. They decided to talk to John L. Crane, chairman of the Standard Group of the Local. 4 Some time on July 8 , before the strike started, Frank also telephoned to Roy Freeman, representative of the Oil Workers International Union, at Chicago , and stated that he was concerned - about the threatened strike against Standard interfering with Pure 's shipments from the dock . Freeman assured Frank that the strike would not interrupt Pure's operations. OIL WORKERS INTERNATIONAL UNION, LOCAL UNION 346 325 Crane was finally located at the gate to the dock in the company of C. J. Ossege, a member of Local 346 and also the Toledo representative of Oil Workers International Union' Frank went over the grounds already discussed with the Pure Committee and stated that Pure was only interested in using the dock to load its own products. Ossege commented that Pure had no employees who operated the facilities of the pipe lines and the dock used in loading cargo, and that no provision for such employees was included in the current contract be- tween the Union and Pure. He suggested that the easiest way for Pure to get the desired results was for Frank to help get the strike with Standard settled. The discussion then turned to the possibility of Pure making an arrangement with the Standard crew who had in the past operated the boat loading facilities, to have them load Pure products only as temporary employees of Pure. After further conferences that day and on July 10, between the Pure officials and the representatives of the Pure and Standard Groups of the Local (including one meeting in which representative of the Toledo Labor-Management Citizens' Committee participated), Pure agreed to man the facilities and the dock with temporary employees to be supplied by the Union. This proposal, however, was turned down by the Union after the members of its Standard Group, on July 11, had rejected its terms. Whereupon, the Panoil left the dock without a cargo. The Panoil was due back for another load of Pure products on July 17 and Superintendent Frank, after appealing unsuccessfully, (a) to the Pure Group Committee to agree to have the boat loaded by Pure employees and (b) to two Pure employees to assist in loading the boat, announced that the Panoil would be loaded, by Pure supervisors.' He requested the Pure Group Committee to accompany him and other supervisors to the dock to avoid any possible inter- ference by the Standard pickets The Committee did this, no untoward incident occurred, and Frank and the supervisors went through the gate to the dock, leaving the Pure Group Committee at the gate. When Frank and his crew of supervisors arrived on the dock they were told by Panoil Ship Delegate Ready that the NMU crew would not take the boat out if it was loaded by Pure foremen because they had a letter from the Standard Group of the Union to the effect that the dock had been cleared for use by Standard foremen but not for Pure foremen' In view of this apparent mis- understanding as to the Union's position, both NMU Regional Director Schaefer and NMU Port Agent Ferrari were sent for. When they arrived, Schaefer stated that he understood that it was agreeable with the Standard Group that the boat be loaded by either Pure or Standard foremen. Ferrari's position was that it ' Other employees of Standard besides Crane were also at the gate, although the strike had not yet officially gone into effect 6 Shamblin, of the Puie Group, and Ben Schaefer, Regional Director of the Oil Workers International Union, had suggested that the Panoil be loaded by either Pure or Standard foremen. The letter referred to, dated July 13, is as follows Mr LEw FERRARI, Port Agent, National .Maritime Union o f America, 313 Jackson St., Toledo, Ohio. DEAR SIR AND BROTHER. Following our telephone conversation today, we wish to advise you that if Standard Oil foremen load Pure Oil cargoes with Pure Oil mate- rial, it is O. K. for your men to handle such cargo, even though we still maintain our picket line at the Standard Oil dock. Sincerely and fraternally yours, LOCAL No. 346, OIL WORKERS INTERNATIONAL UNION, By J. L CRANE, Chairman, Standai d Oil Group. 326 DECISIONS OF NATIONAL LABOR RELATIONS BOARD made no difference who loaded the boat, the NMU "didn't have to load boats be- hind a picket line, as too many heads had been broken on occasions like that." Panoil had to again leave the Standard dock unloaded. The Panoil returned for another cargo of Pure products early in the morning of July 26. However, when Assistant Superintendent Dronberger, accompanied by two other Pure supervisors , attempted to load the boat, they were again told, first by the pickets at the entrance to the dock and then by Captain Teigland and Ship Delegate Ready that the sailors would not take the cargo out of the dock unless it was loaded by Standard foremen.' Later in the morning, Port Agent Ferrari verified that the above was the position of the NMU relative to loading the boat at Toledo with Pure products. Panoil again left without a cargo. However, on its way to another port, it was diverted back to Toledo on instructions from Great Lakes management where, later the same day, it left with a cargo of fuel oil loaded by Pure foremen at the dock . On July 27, the Panoil again took a load of Pure products which had been taken aboard with the assistance of Pure supervisors. However, the NMU crew of the Panoil re- fused to move this second cargo until they received written assurance from Cap- tain Teigland that the Panoil would make no further trips to the Toledo dock unless the National Maritime Union gave the boat clearance to do so As a result of the assurance given by Captain Teigland to his crew that the Panoil would not again return to the Toledo dock until clearance was secured from NMU, Great Lakes management discussed the situation with the NMU agent at Detroit, Charles Monroe. At that time Monroe was , shown a copy of a telegram dated July 14, 1948, from the president of the Oil Workers Inter- national from Fort Worth , Texas, to Crane , of the Standard Group, reading as follows : You are instructed to arrange your picket line at the Standard Oil dock in such manner as not to prevent Pure Oil employees from entering and load- ing Pure Oil products therein, or arrange for Standard supervisors to load Pure Oil products only . If neither method is followed , you are directed to remove all pickets around the dock while Pure Oil products only are being loaded. Picket signs should read : "This strike against Standard Oil Com- pany . . . Pure Oil employees may pass to perform their work." Upon receipt of this information , Monroe immediately instructed Ferrari at Toledo to advise the Standard Group that the Panoil would return to Toledo for cargo unless NMU was advised in writing that the cargo was "hot." Whereupon Ferrari was given a letter signed by Crane as chairman of the Standard Group of the Union as follows: NATIONAL MARITIME UNION ( C. I. 0.), Care of Mr . Lew Ferrari, Toledo, Ohio. DEAR SIRS AND BROTHERS : We wish to make the following statement : We consider the cargoes originating in the Pure Oil Refinery , Toledo, are not hot cargoes when they leave the Pure Oil Refinery, but when they reach the Standard Oil dock they are hot cargoes. 5 Ready also told Dronberger that the Standaid Group regarded any clock cargo as "hot" unless it was loaded on the boat by Standard foremen, and that the NMIU would therefore also consider any caigo "hot" under similar circumstances "The Panoil crew took the above position at the insistence of Port Agent Ferrari, who appeared at the dock during the loading OIL WORKERS INTERNATIONAL UNION, LOCAL UNION 346 327 We also wish to state that we consider the property known as the Standard Oil Dock is hot. 11 About the end of July, Assistant Manager Collins of Great Lakes asked Monroe if the Panoil crew would accept cargo "if Standard Oil foremen were put on the dock." Monroe made reference to two letters NMU had received from the Standard Group" and agreed to the proposal, but suggested that Collins check with the Respondent' as to each cargo. Collins then 'ndtified the Respondent that the Panoil would call at Toledo for a cargo to be loaded by Standard fore- men. On August 2 Standard's Manager Bergen advised Pure that dock cargoes would be loaded by Standard foremen. On August 11, Crane wrote to Ferrari : We have been informed that the Panoil will arrive at the Standard Oil dock on Thursday, August 12, 1948 for a load of Pure Oil Heavy Fuel. It is agreeable with us for your members to accept this load behind our picket line, if Standard Oil Company (Ohio) foremen are present to do the neces- sary dock work. Our pickets at the dock at the time the ship arrives will tell whomever you wish whether the foremen present are from the Standard Oil Company. ,On August 13 Crane again wrote Ferrari a letter, identical in language except that it referred to the arrival of the Panoil on Saturday, August 14. Accord- ingly, on August 12 and again on August 14, the Panoil picked up a cargo for Pure loaded by Standard foremen. On August 14 Standard advised Pure that thereafter it would be unable to supply supervisors to load Pure's boats." Since that time Great Lakes has made no effort to ship Pure cargo by the Panoil because of Monroe's statement that in view of Crane's July 28 letter the NMU crew would not transport "hot cargo." The record shows that since July 25 and up to about the time of the hearing, a number of boats operated by concerns other than Great Lakes and manned by crews not members of NMU have loaded and sailed Pure products without any difficulty, regardless of who manned the dock. The strike and the picketing by Standard Group continued up to the time of the close of the bearing. The picketing at the dock was peaceful. Ordinarily two pickets were maintained at the dock, but the evidence discloses that at times, particularly when the Panoil was at the dock, employees of Standard, "This had reference presumably to two letters dated July 27 from Crane to Joseph Cur- ran, president of NMU, at New York The first letter referred to the strike against Stand- ard, the picketing of the dock by the Standard Group, and continued In order that our Local's contract with the Pure Oil Company may not be broken, we are agreeable that Standard Oil Foremen load Pure Oil material into Pure Oil boats, even though we still maintain our picket line at the Standard Oil Dock. The second July 27 letter to Curran from Crane advised that, as the result'of a conversa- tion with Monroe and Ferrari the same day, notwithstanding the pickets at the dock, "clear- ance" would be given NMU sailors, only When it will not jeopardize our Local's contract with the Pure Oil Company This can be done by allowing Standard Oil foremen to load these cargoes As you see, this makes it possible for Standard Oil Company (Ohio) to fulfill their operating agreement with the Pure Oil Company. "So far as the record- discloses, no attempt was made by Pure at any time during the strike to "require" Standard to furnish personnel to load Pure products Pure's Superin- tendent Frank's uncontradicted testimony is credited that Standard's Manager Bergen stated (a) at the start of the strike said that he "did not believe" Standard would have sufficient supervisors to man the dock, (b) on August 2, that Standard would do its "best" to furnish supervisors, and (c) on August 14, that thereafter Standard would he "unable" to supply supervisors to load Pure boats Frank testified that as far as he knew no other steps were taken by Pure to secure dock personnel through Standard. 328 DECISIONS OF NATIONAL LABOR RELATIONS BOARD other than the two pickets, were at the gate. There is no evidence of any mass picketing or any attempt at any time to interfere in any way with access to the dock. C. Conclusions It is contended in the General Counsel's brief that the above activities of the Union constitute not only a primary strike against Standard, but also secondary boycotts, in that the Union (a), by picketing the dock after,Pure assumed exclusive operation thereof for the purpose of handling its own products induced and encouraged the em- ployees of Pure to engage in a strike or a concerted refusal in the course of their employment to handle Pure products at the dock, an object thereof being to compel Pure to abandon the dock and thereby terminate its busi- ness relationship with Standard with respect to the dock. and (b), by means of the picketing and by labeling Pure's products as "hot cargo" induced and encouraged the employees of Great Lakes, constituting the crew of the Panoil, to engage in a concerted refusal in the course of their employ- ment to handle or transport Pure products, an object thereof being to com- pel Great Lakes to cease doing business with Pure, and, further, to compel Pure to cease doing business with Standard with respect to the use of the dock. On the other hand, the Respondent Union argues that no secondary boycott of any kind existed; that the employees of Standard (members of the Union) are engaged in an economic strike against Standard, and the activities of the Union and its members (including the employees of Pure) in §upporting that strike are protected by the First Amendment to the Constitution of the United States, and by the specific provisions of Section 8 (c) and the proviso in Sec- tion 8 (b) (4) (A) of the Act itself. All the activities of the Union complained of were centered at the dock where the fuel oil of both Standard and Pure were normally loaded on boats for ship- ment. It is therefore obvious that any decision on the merits must be bottomed on a finding as to who controlled that dock. The record shows without dispute that for many years both Pure and Standard have been engaged at Toledo in producing, refining and selling petroleum products. In connection with its opera- tions and for the purpose of faciliting the shipment of its products by boat Standard leased the dock in question and its facilities from the owner thereof, the Wheeling and Lake Erie Railway Company. Thereafter Standard entered into an agreement with Pure whereby Pure could also use the dock and the facilities to ship its products by boat. Under this agreement Pure agreed to share with Standard in the cost of all improvements, repairs, taxes, and other indirect operational expenses. In addition, Pure agreed to pay Standard a sum of money based on the volume of Pure products shipped over the dock. Standard agreed to furnish manpower to operate the dock facilities. As later modified the agreement stipulated that Pure should also share in the expense of operating the dock including the wages Standard paid its employees who worked thereon. Under this arrangement and up to the early summer of 1948 Standard con- trolled and maintained the dock, and with Standard employees utilized the facilities to load cargo for itself and for Pure. In other words, Standard, in addition to carrying on its own business , performed a servicing operation for Pure. When the Standard employees on July 8 went on strike, all the jobs in OIL WORKERS INTERNATIONAL UNION, LOCAL UNION 346 329 the refinery and on the dock became "struck work" and all products thereafter handled on any of these jobs became "hot," to use strike parlance. When the strike started, Pure made no effort to keep its existing business arrangement with Standard in status quo but, on the contrary, by supplementary agreement entered into with Standard , sought to perform with its own employees the dock loading service previously rendered to it by Standard, thereby lessening instead of maintaining its business dealings with Standard. It is true that the Union had a contract with Pure as the representative of all the production and maintenance employees of Pure, and that most of those em- ployees were members of the Union. No doubt these employees were sympa- thetic to and willing to do what they could to support their brothers engaged in the Standard strike ; but sympathetic interest and support of a primary strike is no evidence of a secondary boycott. In this connection, it is noted that the current contract of the Union with Pure, although it classifies the workers, makes no mention of dock employees. Pure recognized that if it was to take over servicing the dock the existing contract would have to, be augmented by some supplementary agreement with the Union as the representative of its employees. Relative to the conferences it had with the Pure Group and with C.' J. Ossege, representative of the Oil Workers International Union at 'the beginning of the strike, the record shows the following as to Superintendent Frank 's testimony : I pointed out that we had to load the Panoil and that we did not know just how we were going to do that. * * * * * * Mr. Ossege stated that they were on strike against the dock, the facilities, the equipment and the jobs. And that we [Pure] had no contract with this group of employees who ordinarily performed the work of loading boats on the dock. If we wanted to get our products loaded, put pressure on Standard to get the strike settled. Mr. Ossege asked if we were-that one way to get [Pure products loaded] would be to make a contract with the Standard Oil crew. * * * * * * * Mr. Hutcheson [Pure attorney ] stated that he would be glad to see what could be worked out. Q. Were the terms of this proposed 'contract discussed at this time? A. Brief mention was made, but no details were gone into at all. Trial Examiner FITzPATRIOX. By the proposed contracts, do you have reference to what the witness has testified to, the contracts that you have offered in evidence? * * * * * The WITNESS. No, an agreement so that the boat could be loaded with Pure Oil products. This progressed to the point where we submitted a written proposal. * * * * * * * I pointed out the necessity for loading the boats , and, the fact that the boat was coming in, and asked them [Pure Group committee of the Union] to go along with the use of our own employees in loading the boats. * * * * * * 330 DECISIONS OF NATIONAL LABOR RELATIONS BOARD When preliminary conversations took place between Mr. Hutcheson, Mr. Ossege and myself at the dock on July 9th, Mr. Hutcheson stated that we had a contract with [Local] 346. At that time Mr. Osage said we did not have a contract with the Standard Oil employees to furnish facilities- furnish manpower on the dock. And there was a suggestion that we try and work out something, which led to this proposal. Q. (By Mr. Goi aLICH.) And that was agreeable to the Pure Oil Company? A. Yes Q. That interpretation? A. Yes. Q And so you met with them to negotiate a new, or some type of agree- ment in respect to these employees at the dock, is that right? A. That is right. In the same connection, Mr. Ossege testified : Q. Now, how does it happen that you discussed entering into of an agree- ment of this character, Mr. Ossege? A. Because the Pure Oil presented to us a problem . . . to get this fuel oil moving, and what can they do about it. . . . Q. Did you have any type of an agreement with Pure Oil, or anything of that,character, which covered this.particular problem that came up? A. No. ... With reference to the same conferences, Shamblin, chairman of the Pure Group of the Union, testified in part as follows : Q. Will you state whether or not the union at that time took the position that the contract [with Pure]-required you to furnish employees at the dock, at the Standard Oil Company dock? A. No we didn't feel that we were required to furnish employees to operate the Standard Oil Dock. . . . By attempting to assume the servicing of the dock facilities; 2 which servicing was involved in the strike of the Standard group, Pure made itself a party to Standard's labor dispute. It was no, longer a neutral but became a: party in inter- est in that contest. It became allied to Standard in that respect and it was Pure's conduct as such ally of Standard which directly provoked the Union's action complained about. There developed a unity of interest between the two employers in the labor dispute the Union had only with Standard. Insofar as the services at the dock are concerned, the situation here is comparable to the facts in the Ebasco case (Douds v. Metropolitan Architects, 75 F Supp. 672), ,where Judge Rifkind of the Federal District Court for Southern New York, ,stated: When the term [doing business] is read with the aid of the glossary provided by the-law of secondary boycott it becomes quite clear that Project cannot claim to be a victim of that weapon in labor's arsenal. To suggest that Project had no interest in the dispute between Ebasco and its employees is to look at the form and remain blind to substance. In every meaningful sense it had made itself party to the contest. Manifestly it was not an innocent bystander, nor a neutral. It was firmly allied to Ebasco and it was its conduct as an ally of Ebasco which directly provoked the Union's action. "The record shows that the facilities on the pipe lines leading to the dock, such as pump stations, were operated at all times by Standard during the strike, presumably by supervisors or others not included among the striking employees. OIL WORKERS INTERNATIONAL UNION, LOCAL UNION 346 331 Pure and the General Council contend further that the picketing of the dock by the Union had the effect of inducing or encouraging Pure members of the Union to refuse to cross the picket line because of fear of disciplinary action by the Union. But this contention is based upon the rejected assumption that Pure was not involved in the labor dispute and that Pure employees were required "in the course of their employment" to do the dock work. As heretofore found, the current contract with the Pure Group did not include any dock workers and the record shows that no such type of work was discussed or contemplated when that contract was negotiated. Furthermore, prior to the strike, no Pure employee had worked on the dock. It was new work so far as the locale was concerned, it not a new type of work, that the Pure employees were asked to perform And as the dock job or jobs had been struck as a result of the labor dispute with Standard, it was struck work. If it had not been for the strike, the dock would have been under Standard control. I find that the refusal of the Pure employees to cross the picket line at the dock was protected by the proviso to Section 8 (b) (4) (A) ." The argument that the "hot cargo" letter from the Union to NMU was a "signal" to the Panoil crew to engage in a secondary strike against Pure must also be rejected What the NMU did was to request that the Union state its position• relative to cargoes received on the.struck dock. The "hot cargo" letter resulted. Even if the letter had not been solicited, or if the information therein had appeared on a placard in the picket line, it would still be the dissemination of truthful information relative to the Union's position in its strike against Standard." It is undoubtedly true that the writing of the "hot cargo" letter caused the NMU sailors to refuse to handle the cargoes in the same way that the picketing resulted in Pure employees refusing to work on the dock. But these activities of the Union were forms of speech protected by the United States Constitution.15 and, as.they contained no threats of reprisal or promises of reward, by Section 8 (c) of the Act itself.36 The facts in the case at bar are not unlike the situation in Ex Parte Heiiry, 22 L. R.R. "M. 2592; where a union was enjoined,by+a State:court;from peaceful picketing of railroad tracks crossing a street while railroads were using the tracks to transport freight into or out of the.plant of an employer whose em- ployees were on strike. In this case, decided October 13, 1948, the Texas Supreme Court, after reviewing decisions of the Supreme Court of the United States cover- ing primary as well as secondary strikes, voided the injunction on the authority of Thornhill and Carlson cases. In holding that the peaceful picketing was protected activity in a primary strike, the Texas Court stated : In this connection it seems to be the position of respondents that, since the employees of the railways would not cross the picket line mapped by relators, the picketing and the consequent refusal of the railway employees ""Provided , that nothing contained in this subsection (b) shall be construed to make unlawful a refusal by any person to enter upon the premises of any employer ( other than his own employer ), if the employees of such employer are engaged in a strike ratified or approved by a representative of such employees whom such employer is required to recog- nize under this Act " 14 Carlson v State of California, 310 U. S. 106 15 Thornhill v. Alabama, 310 U. S 88. 10 Sectipn 8 (c) provides : The expressing of any views , argument, or opinion , or the dis- semination thereof, whether in written , printed, graphic, or visual form, shall not constitute or be evidence of an unfair labor practice under any of the provisions of this Act , if such expression contains no threat of reprisal or force or promise of benefit. 332 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to serve the employer 's plant constituted such concerted action between relators and these employees as to amount to secondary picketing and boy- cotting, and conspiracy in restraint of trade, as denounced by our statutes. Under the decisions of the Supreme Court already cited and discussed , picket- ing does not offend against the statutes merely because third parties who come to the area of the dispute may prove sympathetic to one disputant rather than to the other . We overrule the point. , Having found that the activities of the Union consisted of protected support of a primary strike against Standard , and that there was no secondary boycott, it is unnecessary to discuss the other questions raised by the parties in their arguments . The Respondent has not violated Section 8 (b) (4) (A) of the Act, and it will be recommended that the complaint herein be dismissed. CONCLUSIONS OF LAW 1 Oil Workers International Union, Local Union 346 ( CIO) is a labor organ- ization within the meaning of Section 2 (5) of the Act. 2. The Pure Oil Company is engaged in commerce within the meaning of Sec- tion 2 ( 6) and ( 7) of the Act. 3. Oil Workers International Union, Local Union 346 (CIO ), the Respondent herein, has not engaged in unfair labor practices within the meaning of Section 8 (b) (4) (A ) of the Act. RECOMMENDATIONS Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in the case, I recommend that the complaint against Oil Workers International Union, Local Union 346 ( CIO), be dismissed in its entirety. As provided in Section 203 46 of the Rules and Regulations of the National Labor Relations Board-Series 5, as amended August 18 , 1948, any party may, within twenty (20) days from the date of service of the order transferring the case to the Board, pursuant to Section 203 45 of said Rules and Regulations, file with the Board , Rochambeau Building , Washington 25, D. C., an original and six copies of a statement in writing setting forth such exceptions to the Inter- mediate Report and Recommended Order or to any other of the record or proceeding (including rulings upon all motions or objectioQ as he relies upon, together with the original and six copies of a brief in support thereof; and any party may, within the same period , file an original and six copies of a brief in support of the Intermediate Report and Recommended Order. Immediately upon the filing of such statement of exceptions and/or briefs , the party filing the same shall serve a copy thereof upon each of the other parties . Statements of excep- tions and briefs shall designate by precise citation the portions of the record relied upon and shall be legibly printed or mimeographed, and if mimeographed shall be double spaced . Proof of service on the other parties of all papers filed with the Board shall be promptly made as required by Section 203.85. As further provided in said Section 203 46 should any party desire permission to argue orally before the Board, request therefor must be made in writing to the Board within ten ( 10) days from the date of service of the order transferring the case to the Board. OIL WORKERS INTERNATIONAL UNION, LOCAL UNION 346 333 In the event no Statement of Exceptions is filed as provided by the aforesaid Rules and Regulations, the findings, conclusions , recommendations , and recom- mended order herein contained shall, as provided in Section 203.48 of said Rules and Regulations , be adopted by the Board and become its findings, conclu- sions, and order, and all objections thereto shall be deemed waived for all purposes. Dated at Washington, D. C., this 10th day of November 1948. J. J. FITZPATRICK, Trial Examiner. 853396-50-vol. 84-25