Seafarers' International Union of North America

52 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon the basis of the above findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. By discriminatorily discharging Petra Muriel de la Paz, Rafaela Camilo de Cruz, and Angelica Sanchez, and by discriminatorily refusing to reinstate Efigenia Torres de Resto, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 2. By interrogating Petra Muriel de la Paz concerning her union activities, Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 3. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. [Recommendations omitted from publication.] Seafarers' International Union of North America, Atlantic and Gulf District, Harbor and Inland Waterways Division, AFL- CIO and Superior Derrick Corporation. Case No. 15-CC-71. November 12, 1958 DECISION AND ORDER On February 7, 1958, Trial Examiner C. W. Whittemore issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had not engaged in and was not engaging in the unfair labor practices alleged in the complaint and recommending that the complaint be dismissed in its entirety, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the General Counsel and Superior Derrick Corporation, the Charging Party herein, filed exceptions to the Intermediate Report and supporting briefs.' Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman Leedom and Members Rodgers and Fanning]. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and briefs, and the entire record in this case, and hereby adopts the findings of the Trial Examiner only to the extent consistent herewith. The complaint alleged that the Respondent violated Section 8(b) (4) (A) and (B) of the Act by picketing at (a) Gretna Street wharf and (b) Dumaine Street wharf, both in New Orleans, Louisiana. The Trial Examiner found no violation at either location. Chairman Leedom and Member Fanning agree as to Gretna, but only for the following reasons : 1 The motion of the Charging Party that the Board grant oral argument is hereby denied, as the record and the briefs adequately reflect, in our opinion, the issues and positions of the parties. 122 NLRB No. 6. SEAFARERS' INTERNATIONAL UNION OF NORTH AMERICA 53 At Gretna, railroad employees were the only secondary employees who were allegedly induced by the Respondent to cease work in fur- therance of its objective of bringing economic pressure against Su- perior Derrick Corporation, the primary employer herein. Section 8(b) (4) provides in pertinent part as follows: It shall be an unfair labor practice for a labor organization or its agents- To engage in, or to induce or encourage the employees of any employer to engage in, a strike or a concerted refusal in the course of their employment . . . to perform any services... . The Board has determined that railroad employees are not employ- ees within the meaning of the Act.2 Consequently, Chairman Leedom and Member Fanning find that the Respondent did not induce "em- ployees" to engage in the proscribed activities and therefore did not violate Section 8(b) (4) (A) and (B) at Gretna.3 They, accordingly, find it unnecessary to resolve the other issues raised by the parties as to the Gretna incident.4 The Picketing at Dumaine Street Wharf Unlike the Trial Examiner, Chairman Leedom and Member Rodgers find that the Respondent violated Section 8(b) (4) (A) and (B) at Dumaine. In order to understand properly the circumstances of the picketing at Dumaine on October 9, 1957, it is necessary to review certain facts that occurred prior to this date. _ Superior Derrick Corporation owns and operates two floating derricks in the port of New Orleans. When not in operation, these derricks are moored at Algiers in the Mississippi River. It also pro- alnternational Woodworkers of Ameri,,a, AFL-CIO (W. T. Smith Lumber Co.), 116 NLRB 1756 , revd. 246 F. 2d 129 ( C.A. 5) ; Local 833, International Union, United Automobile, Aircraft and Agricultural Implement Workers of America (UAW-AFL-CIO), et al. ( Paper Makers Importing Co., Inc. ), 116 NLRB 267. 3 For the reasons set forth in his dissents in the Smith Lumber Co. case , supra, and in the Paper Makers case, supra, and ir. agreement with the view of the Court of Appeals for the Fifth Circuit as expressed in W. T. Smith Lumber Company v. N.L.R.B., 246 F. 2d 129, Member Rodgers would find that the railroad employees are "employees" within the meaning of Section 8(b) (4) of the Act. Member Rodgers would further find on the record herein that the Respondent violated the Act by its picketing at Gretna. Salt Dome Production Company, 119 NLRB 1638. 4 The incidents herein fall within the jurisdiction of the United States Court of Appeals for the Fifth Circuit. That court has held that railroad employees are employees within the meaning of Section 8(b) (4) (A) and (B). W. T. Smith Lumber Co. v. N.L.R.B., supra. In U & He Transfer, etc., 119 NLRB 852, Chairman Leedom , although of the view that railroad employees are not employees within the meaning of the Act, stated that in Section 8 ( b) (4) cases falling within the Fifth Circuit, he would accept the contrary position of the court. Upon reconsideration , Chairman Leedom is of the opinion that to adhere to that position would conflict with the clear intent of Congress , as shown by the various provisions of the Act as well as its legislative history, that there be a uniform administration of the Act throughout the area covered by the Act. Therefore, with all due respect to the opinion of the Court of Appeals for the Fifth Circuit, Chairman Leedom concurs in the finding in the instant decision that the railroad employees at Gretna are not employees within the meaning of the Act. 54 DECISIONS OF NATIONAL LABOR RELATIONS BOARD vides a labor force for River and Gulf Transfer Company at Wood Park, Louisiana, about 30 miles from New Orleans, where the latter company is engaged in loading and unloading bulk materials for shipment in interstate commerce. On July 9, 1957, Thomas Gould, a representative of the Respondent Union, contacted Superior's Supervisor Howlett at Wood Park and claimed to represent a majority of Superior's employees. Gould asked for recognition of the Respondent as bargaining representative and offered to submit proof of its majority. Howlett informed Gould that he did not have the appropriate authority in such matters and that he would refer the request to one Maught. Several times between July 9 and 12 Gould telephoned Howlett regarding seeing Maught, but no meeting was arranged. In the evening of July 12, the employees of Superior went on strike. Picketing began that evening at the Charbonnet Street wharf in New Orleans, where Superior's derricks were being used to load a cargo of steel aboard a ship. The picket signs bore the following legend : NO DISPUTE WITH ANY OTHER EMPLOYER EMPLOYEES OF SUPERIOR DERRICK CORP. ON STRIKE FOR BETTER WAGES HOURS & CONDITIONS SEAFARERS INT. UNION AFL-CIO At the hearing all parties stipulated that the above-quoted legend appeared on all picket signs used during all picketing involved in this matter. Because of the picketing, members of Locals 1418 and 1419 of the International Longshoremen's Association, employed to assist in the loading, refused to work on the ship.' Consequently, the derricks were removed on July 15. On October 9, one of the derricks was moved to the Dumaine Street wharf in New Orleans, where Superior had contracted with Texla Stevedoring, Inc., to unload steel plates from a barge and load them aboard a ship. To accomplish this, the ship was docked against the wharf, with the derrick on the river side of the ship, and the barge next to the derrick. Some 75 to 100 longshoremen who were rep- resented by ILA Locals 1418 and 1419 had been employed by Texla to perform the longshore work on the ship. During the morning of October 9, the Respondent did not picket the ship and the work 6 These longshoremen were employed by Atlantic & Gulf Stevedores, Inc., which, for purposes of the instant case, the General Counsel admits is an employer "allied" with Superior, and the foregoing incident is not alleged to violate 8(b) (4) (A ). It is men- tioned here only because of its bearing on later incidents discussed below. SEAFARERS' INTERNATIONAL UNION OF NORTH AMERICA 55 of the employees of Superior and Texla proceeded without inter- ruption. The lunch hour for the longshoremen was between 12 noon and 1 p.m. Shortly before the end of the lunch hour, the Respondent's agent, Thomas Gould, appeared at the wharf with a picket carrying the usual sign, who was stationed at the gangway leading to the ship. This was the closest point where picketing against Superior and appeals to its employees could be made at this location, since Superior's employees had to use the gangway to board or leave the derrick. After the picket line was established, some of the longshoremen asked Gould what the picketing was all about. Gould admittedly did not reply to their questions. When the noon hour ended, all of the longshoremen employed by Texla refused to cross the picket line and resume their work on the ship. The Trial Examiner found that the respondent did not induce any of the longshoremen to cease work and so had not violated Section 8(b) (4) (A) and (B) of the Act at Dumaine. Chairman Leedom and Member Rodgers do not agree. As stated above, when Gould refused to answer the question of the longshoremen as to what the picketing was all about, the longshore- men refused to cross the picket line. In view of what happened pre- viously at the Charbonnet wharf, Gould could reasonably anticipate that the longshoremen would not cross the picket line, regardless of the legend on the picket signs. Chairman Leedom and Member Rodgers find that it was incumbent upon Gould, under these circumstances, to answer the questions of the longshoremen so as to make clear to them that the picketing was not directed against them in order to minimize any possible interference with the work of the neutral employer, Texla.6 The dissent here overlooks the fact that the longshoremen involved at Charbonnet were members of Locals 1418 and 1419 of the ILA, the very same locals that were involved at Dumaine. The Respondent learned at Charbonnet that members of these locals would pay no attention to the legend on the picket signs, but rather would treat the appearance of pickets as a strike signal. Accordingly, when the members of the same union appeared at Dumaine, the Respondent had every reason to expect that they would again refuse to work. No lengthy list of citations is necessary to show that the mere ap- pearance of a picket is frequently akin to a strike signal. Therefore, when, as here, the picketing union has been specifically apprised by ° General Track Drivers, Chauffeurs, TVarehouse,nen. & Helpers, Local 270, IBTCTV of America (Diaz Drayage Company ), 1.17 NLRB 885, enfd. 252 F. 2d 619 (C.A., D.C.), cert. denied 356 U.S. 931 . Chairman Leedom and Member Rodgers do not agree with Member Fanning 's view that the Diaz case is "inapposite." This view is based on pure speculation about a state of facts which were not present in the Diaz case. 56 DECISIONS OF NATIONAL LABOR RELATIONS BOARD past experience that the appearance of a picket will result in secondary employees ceasing work, it may not remain silent when directly asked what is the purpose of the picketing. We do not believe that, in holding that the Respondent here should have replied to such ques- tions in order to meet the requirement that the "picketing discloses clearly that the dispute is with the primary employer," we are im- posing an undue burden on the picketing union.' The dissent asserts that, in view of the experience at Gretna, where the railroad employees refused to cross the picket line despite Gould's oral assurances that the picketing was not directed against their em- ployer, it was reasonable for Gould to anticipate that such oral assurances would be equally futile at Dumaine. Even if we accept this version of Gould's experience at Gretna,' we do not agree with our colleague's conclusion. The fact that one group of employees-those at Gretna-did not cross the Respondent's picket line despite an ex- planation as to its purpose, does not, in our view, justify a refusal to clarify the object of the picketing to an entirely different group of employees. Contrary to the dissent, we do not believe that we have engaged in a "radical departure from the Moore Dry Dock test." Rather, we have applied its criteria in a realistic manner to a specific factual situation and found that under the circumstances here it was neces- sary for the Respondent to bring home to the longshoremen that the picketing was not directed against their employer by answering their questions. The Act forbids the inducement or encouragement of secondary employees to engage in a concerted refusal to work. Such inducement or encouragement can take many forms, depending on the factual situation, as the Board and the courts have held. It may be in the form of an evasive reply 9 or, as here, it may result from no reply at all. In view of the foregoing, and upon the record as a whole, Chair- man Leedom and Member Rodgers find, contrary to the Trial Exam- iner, that the Respondent violated Section 8 (b) (4) (A) and (B) of a Contrary to the assertion in Member Fanning's dissent, we do not hold that the Respondent could have avoided liability only by succeeding in persuading the secondary employees not to respect the picket line. All the Respondent had to do, in our view, was to explain to the longshoremen at Dumaine that the dispute did not concern them and that the Respondent was not soliciting them to cease work. The Respondent would then have been in the clear, whether or not the longshoremen ceased work. 8 While the dissent correctly sets forth the Trial Examiner's findings with regard to this aspect of the Gretna incident , neither Chairman Leedom nor Member Rodgers, con- trary to the assertion in the dissent , has deemed it necessary to pass upon the "Gould" matter in dealing with the Gretna incident. s E.g., Richfield Oil Corporation, 95 NLRB 1191 , 1193 ("You're 21 years of age. Use your own judgment."). SEAFARERS' INTERNATIONAL UNION OF NORTH AMERICA 57 the Act by inducing and encouraging the employees of Texia Steve- doring, Inc., to engage in a concerted refusal to perform any services with an object of forcing their employer to cease doing business with Superior Derrick Corporation, and also forcing and requiring Supe- rior to recognize and bargain with the Respondent as the bargaining representative of its employees, although the Respondent was not the representative certified by the Board under Section 9 of the Act. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent, as set forth above, which have been found to constitute unfair labor practices, occurring in connection with the operations of the companies involved herein, have a close, intimate, and substantial relation to trade, traffic, and commerce among the sev- eral States and tend to lead to labor disputes burdening and obstruct- ing commerce and the free flow of commerce. THE REMEDY Having found that the Respondent has engaged in unfair labor practices, we shall require it to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. ORDER Upon the entire record in this case and pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent Seafarers' Inter- national Union of North America, Atlantic and Gulf District, Harbor and Inland Waterways Division, AFL-CIO, its officers, representa- tives, agents, successors, and assigns, shall: 1. Cease and desist from engaging in, or inducing or encouraging the employees of Texia Stevedoring, Inc., or any other employer, to engage in, a strike or a concerted refusal in the course of their employ- ment to use, manufacture, process, transport, or otherwise handle or work on any goods, articles, materials, or commodities, or to perform any services, where an object thereof is to force or require any em- ployer or other person to cease doing business with Superior Derrick Corporation or to force or require Superior Derrick Corporation to recognize or bargain with the Respondent as the representative of its employees, unless the Respondent has been certified as the representa- tive of such employees under the provisions of Section 9 of the Act. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (a) Post at its offices and meeting halls in New Orleans, Louisiana, 58 DECISIONS OF NATIONAL LABOR RELATIONS BOARD copies of the notice attached hereto marked "Appendix." 10 Copies of said notice, to be furnished by the Regional Director for the Fif teenth Region, shall, after being duly signed by an authorized rep- resentative of the Respondent, be posted by the said Respondent immediately upon receipt thereof, and be maintained by it for a period of sixty (60) consecutive days thereafter in conspicuous places, includ- ing all places where notices to members are customarily posted. Rea- sonable steps shall be taken by the Respondent to insure that the notices are not altered, defaced, or covered by any other material. (b) Furnish to the Regional Director for the Fifteenth Region signed copies of the notice attached hereto marked "Appendix" for posting at the premises of Superior Derrick Corporation and Texla Stevedoring, Inc., in places where notices to their employees are cus- tomarily posted, if they are willing to do so. (c) Notify the Regional Director for the Fifteenth Region in writ- ing, within ten (10) days from the date of this Order, what steps the Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the allegations of the complaint, insofar as they allege unfair labor practices not found herein, be, and they hereby are, dismissed. MEMBER FANNING, concurring in part and dissenting in part: I join with Chairman Leedom in finding that the Respondent did not violate Section 8(b) (4) (A) and (B) by picketing at the Gretna Street wharf because the railroad employees who allegedly were in- duced at this location were not "employees" within the meaning of the Act. However, I cannot join in the decision of the Chairman and Member Rodgers that the Respondent violated the same provisions of the statute by picketing at the Dumaine Street wharf where Texla, the secondary employer, and Superior, the primary employer, were commonly engaged in work. In my opinion, the Respondent's entire course of conduct at this latter location met the criteria for lawful, common-situs picketing set forth in Moore Dry Dock Company, 92 NLRB 547. I therefore would dismiss the complaint in its entirety. In Moore Dry Dock, the Board spelled out the conditions under which picketing of the premises of a secondary employer which har- bors the situs of a dispute between a union and a primary employer is privileged primary picketing. These are (1) the picketing must be strictly limited to times when the situs of the dispute is located on the secondary employer's premises; (2) at the time of the picketing the primary employer must be engaged in its normal business at the situs; (3) the picketing must be limited to places reasonably close to the loca- tion of the situs; and (4) the picketing must clearly disclose that the. dispute is with the primary employer. 10 In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order." SEAFARERS' INTERNATIONAL UNION OF NORTH AMERICA 59 My colleag ies, apparently applying the criteria set forth in Moore- Dry Dock," do not dispute that the Respondent's picketing was strictly limited to times when Superior's derricks were located next to Texla's barge, or that Superior was engaged in its normal business at the Duinaine Street wharf, or that the picketing was confined to a place reasonably close to the location of Superior's derricks. Nor do they seriously contend that the picketing failed to disclose clearly to Texla's employees that its dispute was solely with Superior. Instead, they find that the Respondent induced Texla's employees in violation of Section 8(b) (4) (A) and (B) solely because its agent Gould did not reply to the queries posed by Texla's employees concerning "what the picketing was all about." In doing so, they reason that, because cer- tain employees of an "ally" of Superior decided to honor the picket line at Charbonnet wharf, the Respondent could "reasonably antici- pate" that the Texla's employees would do the same at the Dumaine wharf "regardless of the legend on the picket signs." I can neither subscribe to this radical departure from the Moore Dry Dock test nor to reasoning which supports it. At the outset, I deem it appropriate to set forth the statutory guide- lines which control this case. Section 8(b) (4) (A) and (B) makes it unlawful for a union or its agents "to induce or encourage" the em- ployees of a secondary employer concertedly to quit work in order to attain certain proscribed objects. Because this section constitutes a limitation upon the right to strike provided for in Section 13 of the Act, the evidence, in order to establish a violation, must fairly show that the union induced the secondary employees to quit work for their employer by actually representing that the scope of its dispute is with their employer rather than with the primary employer alone.12 However, neither Section 8(b) (4) (A) and (B), nor any other section in the statute, forbids secondary employees from supporting a union which is engaged in a primary dispute at a common situs by honoring a picket line. Nor does the statute make it unlawful for such a union to receive that support. Throughout the course of its dispute with Superior, the Respond- ent's pickets carried signs which declared "NO DISPUTE WITH ANY OTHER EMPLOYER-EMPLOYEES OF SUPERIOR DERRICK CORP. ON STRIKE FOR BETTER WAGES HOURS & CONDITIONS-SEAFARERS INT. UNION AFL-CIO." I cannot conceive of any language which could convey to Texla's em- ployees with greater clarity that the dispute was with Superior and u There is no evidence in this case that Superior had a place of business away from the Dumaine Street wharf which the Respondent could have adequately picketed . Accord- ingly, my colleagues do not contend that the Washington Coca-Cola rule, referred to infra, is applicable. " See Truck Drivers Union v. N.L.R.B. (Campbell Coal Co. ), 249 F. 2d 512 (C.A., D.C.). 60 DECISIONS OF NATIONAL LABOR RELATIONS BOARD was not directed against them. In fact, my colleagues do not contend otherwise. Instead, they assert that it was "incumbent" upon the Respondent to implement the picket signs with verbal explanations as to the scope of the dispute because, in view of what had happened at the Charbonnet wharf, the Respondent could reasonably anticipate that Texla's employees would respect the picket line absent such ex- planations. I submit that there is no warrant in fact or law for the inference in which my colleagues have indulged. The record in this case reveals that Superior's employees joined the Respondent in a strike against Superior over the latter's refusal to recognize it. Picketing commenced at the Charbonnet wharf where Superior's derricks were performing work for Atlantic and Gulf Stevedores, Inc. During the picketing, longshoremen employed by Atlantic decided to honor the picket line. The General Counsel did not allege that the Respondent unlawfully induced Atlantic's em- ployees because Atlantic was an "ally" of Superior and hence stood in the latter's shoes as a primary employer. Nevertheless, my col- leagues use this incident as a basis for the inference that the Respond- ent could "reasonably anticipate" that Texla's employees would refuse to work unless the Respondent verbally explained the legend on its picket signs to them. Superior then moved its derricks from the Charbonnet wharf to the Gretna wharf to assist the Southern Pacific Railroad in loading certain materials. The Respondent's pickets followed. When South- ern's employees noticed the pickets and observed the picket signs, they asked Respondent's agent Gould "what the picketing was all about." As the Trial Examiner found and my colleagues concede, Gould replied that the picket signs were "self-explanatory" but he further "specifically told them that while the picket line was legal, it was not directed against any employer but Superior, and further told them that they were not picketing the wharf itself." Despite this explanatory statement, Southern's employees decided to respect the picket line at the Gretna wharf.13 I am at a loss to understand how Chairman Leedom and Member Rodgers can infer a violation of Section 8(b) (4) (A) and (B) based upon what the Respondent could have "reasonably anticipated" as a result of its experience at the Charbonnet wharf, without regard to what occurred at the Gretna wharf. Certainly, if it were reasonable for the Respondent to anticipate that Texla's employees would refuse to work unless an explanation was given them concerning the scope of the dispute, solely because Atlantic's employees ceased work with- out asking for such an explanation, was it not equally reasonable for ' As previously indicated, Chairman Leedom and I find that no violation occurred at the Gretna wharf because Southern's employees were not "employees" within the meaning of the Act. SEAFARERS' INTERNATIONAL UNION OF NORTH AMERICA 61 the Respondent to anticipate, based upon its experience with South- ern's employees at the Gretna wharf, that Texla's employees would have refused to cross the picket line even though an explanation had been given? Under the majority's decision on this issue, the only way the Respondent could have avoided liability would have been to induce Texla's employees to disregard an otherwise lawful picket line and thereby destroy the effectiveness of an otherwise lawful primary strike. In my opinion, it is anomalous to say that a union has a right to strike at a common situs but only if it succeeds in persuading secondary employees to remain at work and to refrain from supporting that strike. However, I believe that my colleagues' decision gives rise to an even greater anomaly. If the Respondent had confined its picketing solely to the Charbonnet wharf, they would apparently agree that such picketing constituted lawful primary picketing because the Moore Dry Dock standards had been met. Similarly, if the Respond- ent had confined its picketing solely to the Dumaine wharf, my col- leagues apparently would also find this picketing lawful for the same reason. Yet, what was lawful at the Charbonnet wharf and what was lawful at the Dumaine wharf became unlawful when viewed cumula- tively. This is tantamount to saying that two rights make a wrong. If the majority decision herein stands, a union's right to strike and picket at a common situs will be severely curtailed. It may law- fully engage in a strike against the primary employer at common situs A, even though secondary employees decide to honor its picket line, provided that the conditions laid down in Moore Dry Dock are satisfied. However, if the primary employer chooses to move on to common-situs B, the union cannot lawfully follow him even though its picketing would meet the Moore Dry Dock test, unless the union successfully persuades the secondary employees at the latter situs to remain at work. Or, if the primary employer is engaged in the same work at several locations in common with secondary employers, the union with which he has a dispute may lawfully strike at one situs but cannot effectively reach him at the others. I cannot believe that Congress, by its passage of Section 8(b) (4) (A) and (B), intended such a result. Since the Moore Dry Dock decision, which this Board has never overruled, only one exception has been engrafted upon the applica- bility of the standards in that decision to common situs picketing. That exception, commonly referred to as the Washington Coca-Cola rule,14 provides that a union which pickets the primary employer at the secondary employer's premises commits a per se violation of Brewery and Beverage Drivers and Workers, etc. ( Washington Coca-Cola Bottling Works, Inc.), 107 NLRB 229, enfd. 220 F. 2d 380 (C.A., D.C.). 6`Z DECISIONS OF NATIONAL LABOR RELATIONS BOARD Section 8(b) (4) (A), regardless of whether the Moore Dry Dock criteria have been met, if the primary employer has a place of business away from the common situs which the union can adequately picket.15 My colleagues have chosen to engraft yet another exception to the Moore Dry Dock case. They now hold that, notwithstanding common-situs picketing by a union meets the standards established in Moore Dry Dock and Washington Coca-Cola, a union nevertheless violates the Act if it can "reasonably anticipate" that, because sec- ondary employees at one common situs which the union lawfully picketed decided to honor the picket line, the secondary employees at the site then being picketed will also honor the picket line. Because I can find no warrant, either in the statute or the decisions,16 for such a result, I cannot join with the Chairman and Member Rodgers in finding a violation in this case. Rather, I would apply the Moore Dry Dock standards and find that Respondent's picketing satisfied them. "As I indicated in my partial concurrence in California Association of Employers, 120 NLRB 1161 , I do not subscribe to the Washington Coca-Cola "per Sc" theory . I would find a violation under the Washington Coca- Cola rule only where the facts of a case clearly indicate that the union 's object was unlawful. 1e my colleagues rely upon the Diaz Drayage decision to support their findings of a violation. That decision, in my opinion, is clearly inapposite. In the Diaz case, the union 's conduct was found violative of the Act solely because the primary employer had a place of business at which the union could have, but did not, picket. Even if the union in Diaz had explained to the secondary employees what the dispute was about , the par- ticipating members ( I did not participate in that decision ) would nevertheless have found a violation under Washington Coca-Cola, supra. APPENDIX NOTICE TO ALL MEMBERS OF SEAFARERS' INTERNATIONAL UNION OF NORTH AMERICA, ATLANTIC AND GULF DISTRICT, HARBOR AND INLAND WATERWAYS DIVISION, AFL-CIO, AND TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify you that WE WILL NOT engage in, or induce or encourage the employees of Texla Stevedoring, Inc., or any other employer, to engage in a strike or a concerted refusal in the course of their employment to use, manufacture, process, transport, or otherwise handle or work on any goods, articles, materials or commodities, or to perform any services, where an object thereof is to force or require any employer or other person to cease doing business with Superior Derrick Corporation or to force or require Superior Derrick Corporation to recognize or bargain with Seafarers' International Union of North America, Atlantic and Gulf District, Harbor SEAFARERS' INTERNATIONAL UNION OF NORTH AMERICA :63 and Inland Waterways Division; AFL-CIO, as the collective- bargaining representative of any of Superior's employees, unless we are certified as such representative under the provisions of Section 9 of the Act. SEAFARERS' INTERNATIONAL UNION OF NORTH AMERICA, ATLANTIC AND GULF DISTRICT, HARBOIt AND INLAND WATERWAYS DlvlsioN, AFL-CIO, Labor Organization. Dated---------------- By------------------------------------- (Representative ) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. INTERMEDIATE REPORT STATEMENT OF THE CASE Charges having been duly filed and served, a complaint and notice of hearing thereon having been issued and served by the General Counsel of the National Labor Relations Board, and an answer having been filed by the above-named Respondent Union, a hearing involving allegations of unfair labor practices in violation of Sec- tion 8(b)(4)(A) and (B) of the National Labor Relations Act, as amended (61 .Stat. 136), was held in New Orleans, Louisiana, on December 10, and 11, 1957, before the duly designated Trial Examiner. As to unfair labor practices, in substance the complaint alleges and the answer denies that the Respondent Union: (1) in September and November 1957, at a time when it had not been certified as the bargaining representative of Superior's em- ployees under Section 9 of the Act, picketed at certain wharves in New Orleans when Superior's derricks were present but without regard as to whether or not Superior's employees were present, and by such picketing and other conduct induced and encour- aged employees of other named employers to engage in strikes and concerted refusal to handle goods or perform services; and (2) had as objects for the aforesaid conduct (a) forcing the said other employers to cease doing business with Superior and (b) forcing Superior to recognize and bargain with it as the collective-bargaining representative of Superior's employees. All parties were represented at the hearing, participated therein, and were afforded full opportunity to present and meet evidence, to engage in oral argument, and to file briefs. Briefs have been received from the Respondent Union and the Charging Company. From his observation of the witnesses, and upon the entire record in the case, the Trial Examiner makes the following: FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF THE PRIMARY EMPLOYER Superior Derrick Corporation is a Louisiana corporation, and is a wholly owned subsidiary of John W. McGrath Corporation, which is a nationwide stevedoring company doing millions of dollars worth of business annually for companies engaged in interstate and foreign commerce in various ports of the United States. Superior owns and operates two floating derricks in the port of New Orleans. From the time it began operations at this port in February 1957, until October of the same year, it provided services in the nature of loading and unloading ships and barges for which it received about $96,000. These services were performed for various companies engaged in interstate and foreign commerce, including but not limited to Lloyd Brasileiro, Texla Stevedores, Inc., Isthmian Lines, Inc., Allied Chemical and Dye Corporation, and Hellenic Lines. Superior also provides a labor force for River and Gulf Transfer Company at Wood Park (also known as Myrtle Grove) Louisiana, where the latter company is engaged in unloading, loading, and storing of bulk materials, including coal, for ship- 64 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ment in interstate commerce. River and Gulf Transfer Company is a division of West Kentucky Coal Corporation. The coal handled at Wood Park by Superior is for West Kentucky Coal Corporation and Tampa Electric Company of Tampa, Florida. Since the beginning of its Wood Park operations Superior has been and is providing services for River and Gulf Company at an indicated rate of about $150,000 per year. Superior is engaged in commerce within the meaning of the Act. U. THE RESPONDENT UNION Seafarers' International Union of North America, Atlantic and Gulf District, Har- bor and Inland Waterways Division, AFL-CIO, is a labor organization admitting to membership employees of the Charging Company. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Procedural background While reserving their right to object to their materiality, all parties at the hearing agreed that these are facts: (1) On July 15, 1957, Seafarers' filed a charge against Superior alleging violations of Section 8(a) (1), (2 ), and (5). On August 22 the Regional Director and Superior entered into an informal settlement agreement covering the alleged violations of Section 8(a)(1) and (2). The charges were dismissed by the Regional Director on the same day. Seafarers', not a party to this unilateral settlement, filed on September 3 its appeal from this dismissal with General Counsel in Washington. On December 10, 1957, that appeal was still pending before General Counsel. (2) On September 18, 1957, Seafarers' again filed charges against Superior, alleg- ing violations of Section 8(a)(1), (2), (3), and (5), and requested consolidation of these and the earlier charges. By December 10 such charges were still pending. (3) On July 15, 1957, the same day that Seafarers' filed its first charge against Superior, Superior filed a petition for investigation of representatives in Case No. 15-RM-102, covering plant laborers at it Wood Park operations. At the same time Superior also filed a petition in 15-RM-103, covering a unit of certain crafts. Two days later, on July 17, a petition was filed by International Longshoremen's Asso- ciation, Local 1419, Independent, covering plant laborers at Superior's Wood Park operations. At the time of the hearing in this case all said petitions remained "pending." General Counsel on November 13 issued his complaint against Seafarers', based upon charges first filed by Superior on September 23, 1957. The first act, alleged as an unfair labor practice by Superior in its charge or by General Counsel in his complaint, is claimed to have occurred on September 22. During the course of the hearing the Trial Examiner declined to receive certain testimony offered as evidence by the Charging Party and other testimony offered by the Respondent Union. Whatever may have been the Trial Examiner' s judgment as to the relevance of such evidence, he believes that it was incumbent upon him to restrict evidence to issues raised in the complaint, in accordance with the Board's ruling in Queen Ribbon & Carbon Co., Inc., 116 NLRB 890. B. The events Except as otherwise indicated in footnotes, findings in this section are based upon evidence either undisputed or in substantial agreement. As found in section I, above, Superior provides a labor crew at Wood Park, Louisiana, about 32 miles downriver from New Orleans. It also operates two float- ing derricks at the port of New Orleans, performing services for various companies at varying locations. At the time the Respondent Union began organizing Superior's employees early in July 1957, Superior was using both derricks at Wood Park. It was at this location that the labor dispute began. On July 9 Thomas E. Gould, a representative of Seafarers', approached James E. Howlett, Superior's superintendent at Wood Park, claimed majority representation of Superior's employees, offered to submit appropriate proof of the claim, and asked for recognition as bargaining agent and for a meeting to negotiate a contract. Gould's testimony is unchallenged that at the time of his demand he had signed authorization cards from a majority of Superior's employees. Howlett informed Gould that he was without authority in such matters, but that he would refer the request to one Maught, a management official who had such authority. Several times between SEAFARERS' INTERNATIONAL UNION OF NORTH AMERICA 65 July 9 and 12 Gould telephoned Howlett regarding his request to meet with Maught, but no meeting was arranged. During the afternoon of July 12 the following wire was sent by Seafarers' and received by Superior: YOUR EMPLOYEES AT YOUR BULK CARGO TRANSFER BASE AND YOUR DERRICKS HAVE AUTHORIZED THE SEAFARERS' INTER- NATIONAL UNION OF NORTH AMERICA, ATLANTIC AND GULF DISTRICT, HARBOR AND INLAND WATERWAYS DIVISION, AFL-CIO, TO REPRESENT THEM IN BARGAINING WITH SUPERIOR DERRICK CORP FOR A COLLECTIVE BARGAINING AGREEMENT COVERING THEIR WAGES, HOURS AND WORKING CONDITIONS. IT IS OUR DESIRE TO MEET WITH YOU AT YOUR EARLIEST CONVENIENCE TO DISCUSS THE TERMS OF SUCH AN AGREEMENT. PLEASE NOTIFY US AS SOON AS POSSIBLE REGARDING YOUR SUGGESTION CONCERNING TIME AND PLACE FOR SUCH MEETING So far as the record shows , the above wire was accorded no reply from Superior's management. That night, July 12, all Superior's employees then working went on strike. Picket- ing began at the Charbonnet Street wharf at about 9 p.m., to which point Superior had moved one of its derricks from Wood Park. The picket signs bore the following legend: NO DISPUTE WITH ANY OTHER EMPLOYER EMPLOYEES OF SUPERIOR DERRICK CORP ON STRIKE FOR BETTER WAGES HOURS & CONDITIONS SEAFARERS INT. UNION AFL-CIO At the hearing all parties stipulated that the above-quoted legend appeared on all picket signs used during all picketing involved in this matter. Despite Seafarers ' oral demand for recogniton on July 9 and its formal wire of July 12, and despite Howlett's testimony that he had told Gould that Maught was the management representative who must pass upon such matters and that Maught could not meet with Seafarers' because he was going on vacation "Saturday morn- ing," it appears that on that same Saturday , July 13, Superior entered into a written contract covering its employees with a labor organization called "Employees Group." i Picketing continued at the Charbonnet Street location until July 15 , when the derricks were moved back to Wood Park. General Counsel does not contend that the picketing at Charbonnet wharf was illegal, either in object or in manner, although such picketing was "effective," in the sense that longshoremen declined to cross the line. Such longshoremen were employed by Atlantic and Gulf Stevedores, Inc., an employer allied with Superior. Seafarers began picketing at Wood Park on July 15. Such picketing was of short duration . Sheriff Wooten, of Plaquemines Parish, promptly "ran" the pickets "off." Martin Gould, a Seafarers' representative and a picket, was "jailed" by Chief Deputy Coci, in a jail which counsel for Superior conceded was "crummy" and had no "screens ." Seafarers' sought an injunction in Federal Court against such treatment by local authorities . On the day of the injunction hearing, Martin Gould was informed by Sheriff Wooten and District Attorney Leander Perez of that parish that if he "wanted to get shot to come on down." Judge Christenberry issued an injunction on August 9. During the latter part of August, on a Sunday when Martin Gould and his wife were driving through the parish, his car was forced to the side of.the road by the same Coci who on July 15 had jailed him. Coci warned Gould to "get out of his parish ," that he had "orders" which "he intended to enforce." Coci further warned Gould, "Don't get brave because you got that injunction." There was no picketing at Wood Park after July 15 2 I The fact is established by the text of the notice which the Regional Director, in accordance with the unilateral settlement agreement previously referred to, thereafter required Superior to post. 2 Counsel for Superior conceded that Seafarers ' was effectively prevented from picketing at Wood Park from July 15 to August 9. The same counsel in his brief, however, urges 505395-59-vol. 122-6 66 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Early Sunday morning, September 22, Superior began derrick operations at Gretna wharf, property of the Southern Pacific Railroad. Its operations here consisted of .unloading, by boom, a cargo of chemical bauxite from a vessel to railroad gondolas on the wharf. The two derricks were made fast to the wharf and the vessel itself was tied up offshore the derricks. About 8 or 9 o'clock the same morning Martin Gould, previously identified, came to the wharf and began picketing at the extreme edge of the dock, near the ladder which gave the only access to the derricks. He stood for a few minutes at this point-until the inboard swinging booms began 'dropping bauxite and rocks upon him. He then moved to the other end of the wharf. Finally it began to rain and he again moved to the shelter of a shed on the wharf. At about 10 o'clock members of a Southern Pacific train crew, who were supposed to move the loaded gondolas from the wharf and replace them with empties, ap- proached Gould and another union representative, Herman Trosclair, as they stood in the shelter of the shed. Some of the crew asked the two Seafarers' repre- sentatives what the picketing was about, and were referred to the picket signs as being self-explanatory. Gould specifically told them that while the picket line was legal, it was not directed, against any employer except Superior, and further told them that they were not picketing the wharf itself. About an hour later the two pickets were ordered off the wharf by Southern Pacific officials. The nearest point Seafarers was thereafter permitted to picket was at the junction of a public road and Southern Pacific's private road which ad- joined tracks leading up to and onto the wharf. This point-the nearest the pickets could approach the derricks-was more than a quarter of a mile away from the derricks.3 Superintendent Howlett went to the train crew and asked them to remove the loaded cars and bring empties. They did not comply with this request until about noon, when they finally hauled away the loaded cars on one track, but brought no empties. Howlett called the railroad superintendent, informed him of the situation, and was told that there was little that could be done about it. Howlett then in- structed his derrick crews to knock off work until 9 o'clock the next morning. He, himself, left the wharf shortly after noon. His derrick crew members did not leave by the one road which would have taken them by the pickets, but by way of the river levee. It is admitted by Howlett that these men leaving could only be seen by the pickets if they "were looking for them." Howlett also admitted that he did not inform the pickets that he had "knocked off" the crews, or when he had in- structed them to return. The derricks remained at the wharf. The pickets remained at the public road, a quarter of a mile away. The record does not reveal whether or not pickets remained at their posts continuously from noon on Sunday until the return of the derrick crews at 9 o'clock Monday morning. Gould's testimony, however, establishes that he was relieved by other pickets at 2 p.m. on Sunday and that he returned to picket at 6 a.m. Monday. The Trial Examiner infers and finds that pickets were present most, if not all, of the period. Superior's derrick crews returned, as instructed, on Monday morning, and so did Seafarers' pickets, resuming their stand at the public road. About 10 o'clock that morning, railroad white collar workers removed the loaded gondolas from the wharf and apparently brought empties. The unloading operations were completed about 2 o'clock Tuesday morning, and Howlett sent the derrick crews home with instructions to return at noon that day. The vessel left the scene, but Superior's derricks remained at the dock. As on the previous occasion, according to How- lett's testimony, he did not inform the pickets that he had "knocked off" the derrick crews or when they would return. Again the derrick crews left by way of the levee. The pickets remained at the public road. Although the evidence again is not specific as to this period, the Trial Examiner infers and finds that picketing continued between 2 a.m. and noon on Tuesday. that Seafarers' could have picketed at wood Park, a primary situs, after August 9. The Trial Examiner is more inclined to agree with the two Goulds, in their decision to avoid wood Park as a picketing situs at all times after July 15. The invitation of a sheriff and a district attorney to come down and be shot, and the scoffing of Deputy Coci at a Federal injunction, were not persuasive, in the opinion of the Trial Examiner, that valor would be the better part of discretion. In any event, General Counsel makes no claim that wood Park was a primary situs which Seafarers' reasonably could have, and should have, used for picketing. The point, therefore, is not an issue before the Trial Examiner for ultimate determination. 3 Superintendent Howlett estimated the distance as between 1,500 and 1,600 feet. SEAFARERS' INTERNATIONAL UNION OF NORTH AMERICA 67 The derrick crews reported at noon as instructed by Howlett, and later that after- noon the derricks left the scene . So too, apparently, did the pickets. The next job involving Superior 's derrick crews was at a location referred to in the record as Dumaine Street wharf . One derrick was used here, to load steel from a barge into a vessel moored alongside the wharf. The only access to the derrick was by way of a gangway from wharf to ship and from ship to derrick . The job began during the morning of October 9 . Superior had its own crew operating the derrick. A number of stevedores were working the vessel itself-they having been employed by Texla Stevedoring Company, the same concern which had employed Superior's services. No pickets appeared that morning. During the noon hour, however, while most if not all the stevedores were on the dock for lunch , Thomas Gould, Seafarers' representative previously identified, ap- peared at the wharf and placed pickets at the vessel 's gangway. Still during the noon hour E. C. Cook, Texla's superintendent in charge of the stevedores working the ship, approached Gould and asked him what the strike was about . Gould told him the strike was not against the ship, but against Superior . Cook then asked him about his stevedores going to work . Gould told him he had nothing to do about his working the hatches-his beef was with Superior-and he couldn't tell him to work or not to work his men. At 1 o'clock when due to resume work , however, most if not all the stevedores failed to go aboard the vessel . Cook then called representatives of the ILA, the labor organization to which the stevedores belonged. Upon arriving at the scene ILA's Business Agent Paul Guillory asked Gould why he had not called him before putting up the picket line. Guillory further told Gould that his men were working under contract for Texla and would have to continue working. Gould replied that he was not telling Guillory either way-to work or not to work, and that he had nothing to do with the ILA. He referred Guillory to the picket sign which, as noted, stated clearly that the dispute was with Superior only. Gould added, "There is the picket sign. It is a legitimate SIU picket sign." 4 4 The Trial Examiner believes that the above findings in substance reflect the conversa- tion between the two union representatives . General Counsel apparently would have it believed that Gould also told Guillory, within the hearing of stevedores, that "legitimate unions do not cross another union 's picket lines." It likewise appears that General Counsel Contends that this statement , if in truth overheard by employees , constituted illegal inducement of employees not to cross the picket lines. Without passing upon the legal conclusion sought, the Trial Examiner is not convinced that the statement was made by Gould , In the first place it is entirely out of character of Gould, as observed on the witness stand and in the hearing room , and inconsistent with the circumstances of the strike itself. Gould appeared to the Trial Examiner to be not only articulate but also of a stature and nature bold enough to say bluntly and precisely what he had in mind, and not inclined to couch his meaning behind covert abstractions . As to the circum- stances, it is established beyond doubt that at no time did Gould or any other Seafarers' representative even inform the ILA of an intention to set up a picket line, at this situs or anywhere else, action which would have been logical had Seafarers ' wished covertly to obtain ILA's support. Furthermore , the testimony of General Counsel 's witnesses tend- ing to show that the statement was made is far from convincing, in the opinion of the Trial Examiner . Superintendent Howlett on direct examination said that he heard Gould utter these words. On cross-examination he admitted that in previous testimony, before a Federal court in the injunction phase of this same case , he had not quoted any such remark by Gould. His claim that he only remembered it after hearing someone else say that they heard it said lacks persuasion . Guillory was also a witness for General Counsel . After reciting what he recalled of his conversation with Gould , he was asked by General Counsel, "Was there any discussion about legitimate unions?" Guillory then said that Gould did say something about "legitimate unions observe each other 's picket lines. " On cross-examination , however, Guillory admitted that what Gould had actually said about "legitimate unions" was : "There is the picket sign. It is a legitimate picket sign." Well recognizing that few witnesses can, after an event, repeat like the playback of a recording tape precisely what they heard, even if they heard accurately , the Trial Examiner in this case must balance the probabilities inherent in both the event and the giving of later testimony about the event . Howlett readily volunteered this statement about his listening in on Gould 's conversation with Guillory : "I was only trying to hear something that I thought would be wrong ." It would appear to be reasonable to believe that as a witness he was "only trying" to recall something that he thought was "wrong." Likewise it appears probable that as a witness Gould wanted to recall only what he had said that was not "wrong." But in view of the above-described circumstances-to the 68 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Stevedores did not return to work after being instructed to do so by Guillory until between 2 and 2:30 p.m. That they did not at once follow the business agent's instructions, however, is explained by his testimony that they declined to return until they had been assured by Texla that they would be paid for the time they were on the dock. As soon as Guillory obtained this assurance for them , they went back to work. Although pickets remained at the gangway, there was no further work stoppage while the derrick was there. Later the same day, the derrick was temporarily moved to the next dock, while the vessel loaded grain. Pickets followed the derrick, not the vessel, and returned to the gangway only when the derrick resumed its previous location alongside the vessel. After the completion of the Dumaine Street operations , and before the opening of the hearing, Howlett said that Superior had three other jobs at the port-two at Congress Street and one at Galvez Street. All these jobs were picketed , but there is neither evidence nor claim that Seafarers ' in any way violated the Act at any of them. C. Conclusions Consideration of issues in this section will be limited to those raised and urged by General Counsel . During the hearing counsel for Superior attempted to inter- ject another issue which was specifically disclaimed by General Counsel.5 General Counsel contends that Seafarers ' violated the Act at only two locations- Gretna Street and Dumaine Street . His position , stated succinctly at the opening of the hearing, may be further summarized as follows. He claims that: (1) Picketing activities and conduct at Gretna did not conform to "Moore Dry Dock criteria." 6 (2) Picketing activities and statements by union agents at Dumaine did not con- form to the same doctrine. (3) At both locations the Respondent revealed an object of picketing to induce secondary employees to cease work. The Board's Moore Dry Dock doctrine is quoted: . we believe that picketing of the premises of a secondary employer is primary if it meets the following conditions: (a) The picketing is strictly limited to times when the situs of dispute is located on the secondary employer's premises; (b) at the time of the picketing the primary employer is engaged in its normal business at the situs ; ( c) the picketing is limited to places reasonably close to the location of the situs; and (d ) the picketing discloses clearly that the dispute is with the primary employer. effect that Seafarers' for months had been extremely careful not to engage in illegal inducement , it seems probable that Gould was equally careful to avoid making an illegal statement in the presence of Howlett . In short , the Trial Examiner finds that the credible evidence is insufficient to establish that Gould , on the occasion in question, said to Guillory that "legitimate unions do not cross other unions ' picket lines ." It follows that it may not be found that stevedores overheard a remark not found to have been made. Further as to this conversation between Gould and Guillory , the Trial Examiner has considered but can place no reliance upon certain testimony of Jack Edrington, also a witness for General Counsel . Although Edrington had, in July and as an employee, gone on strike and participated in picketing , he was later promoted to foreman , occasion- ing an obvious shift in interest . In a supervisory capacity he was directing the derrick operations when Gould first visited the wharf that morning, and he promptly notified Howlett of the fact . It is Edrington 's claim that he heard Gould tell Guillory "union men should know better than to go across a picket line ." Not only is the quoted remark one unlikely to have been made by one experienced business agent to another , but Edring- ton's quotation finds no support in that of Guillory and is denied by Gould. On cross- examination Edrington admitted that he couldn 't "swear" that any employee also heard the remark , and further admitted that he "walked up long enough " to hear Gould speak to Guillory , "and then walked away," an admission significantly similar to the volunteered remark by his superior, Howlett , to the effect that he approached the two business agents "only trying to hear something " which he "thought would be wrong." 5 General Counsel specifically disavowed the contention that the Washington Coca-Cola principle was involved or applicable to this case . ( Washington Coca-Cola Bottling Works, Inc., 107 NLRB 299.) On the basis of General Counsel 's disclaimer , the Trial Examiner ordered stricken certain testimony and rejected an offer of proof bearing upon this point. 6 Sailors' Union of the Pacific (Moore Dry Dock Company ), 92 NLRB 547. SEAFARERS' INTERNATIONAL UNION OF NORTH AMERICA 69 Reducing General Counsel's position to even more simple terms, it appears that he urges that Seafarers' failed to conform to the Moore Dry Dock doctrine in only the following respects : (a) at Gretna it continued picketing at times when neither members of the crew nor supervisors of Superior were on the derricks; and (b) that statements by Gould to Guillory at Dumaine , in the hearing of secondary employees, tended to induce such employees not to return to work. As to (b), it has been specifically found in footnote 4, that evidence is insufficient to establish that Gould in fact made the statement accredited to him, to the effect that "legitimate unions do not cross another union's picket lines." And under the circumstances fully described the Trial Examiner is unable to conclude that Gould's reply to Guillory's query-to the effect that he could not tell him to work or not work his men-while pointing to a picket sign which stated clearly that the dispute was with Superior alone, in any way violated the limitations of Moore Dry Dock doctrine, or revealed that an object of the picketing was to induce secondary employees to cease work. Gould's remarks, in the opinion of the Trial Examiner, may not reasonably be considered equivocal in the context of their utterance. Had the sign to which he referred not disclosed plainly that the dispute was only with Superior, another construction might be placed upon his words. In their setting, however, and under the circumstances, the words appear to have had only the meaning which they clearly-and truthfully-expressed a disclaimer on Gould's part that he had any authority to tell an ILA representative what he should do, or not do. The Trial Examiner finds no merit in contention (b). As to (a), foregoing findings establish that picketing continued during periods when there were no crew members or supervisors aboard the derricks-from shortly after noon Sunday until Monday morning, and from 2 a.m. Tuesday until noon the same day. The Trial Examiner is aware of no case, however, in which the Board has stated that picketing at a common situs is per se, a violation of its Moore Dry Dock doctrine, at all times when employees of the primary employer are absent from the scene. In Incorporated Oil Company (116 NLRB 1844, 1848), where the Board found violation, it specifically said: "Our decision here is defined and confined by the limitations that are necessarily infused into it by the facts and the record of this case." The Trial Examiner reads this to mean that the circumstances govern deter- mination of the point. And the circumstances existing in Incorporated Oil plainly are not here present. From the evidence in the record it is reasonably inferred that it was the custom and practice for Superior to operate on a 'round-the-clock basis in loading and unloading vessels, and that such jobs were of relatively short duration-at most of 2 or 3 days. From their experience as employees the strikers presumably were aware of this practice. It appears reasonable to suppose that at Gretna the strikers believed that former practice would be followed by Superior. It has been found above that when crew members left the derricks, a quarter of a mile away, they did not use the road which would have brought them within vision of the pickets, but the river levee. Superintendent Howlett admitted that he did not know whether or not the pickets saw the crew leave, and further admitted that he made no effort to inform the pickets of his instructions to the crew. No notification, formal or otherwise, of even a temporary absence of the crew from the scene, was given to the pickets, as in the case described by Trial Examiner David London in Salt Dome Production Company, 119 NLRB 1638. To the Trial Examiner it appears that Seafarers' conducted picketing at Gretna in full conformity with the Moore Dry Dock doctrine. To hold otherwise, under the circumstances found here, would be an invitation to primary employers to entrap legal strikers merely by having nonstriking employees leave the premises by the back door for a few minutes. The Trial Examiner does not construe Board policy to have this intent. Seafarers' did not begin to picket at Gretna until Superior's derricks, the situs of the primary dispute, appeared and began work. The pickets took up their first position at the extreme end of the dock, as close as physically possible to the derricks, until rocks fell upon them. They remained at a safer distance, but still upon the dock, until railroad inspectors forced them to retire to a public road, a quarter of ^a mile away. The evidence is clear that by neither word nor deed did the pickets attempt to cause the railroad crews from carrying out their work. The picket signs specifically revealed that the dispute was only with Superior; it is undisputed that when the railroad crews queried pickets they were told in un- equivocal terms that the dispute was only with Superior. The picketing ceased promptly upon the withdrawal of Superior's derricks. In short, under the circumstances noted above, the Trial Examiner does not believe the evidence to be sufficient to establish that, merely by continuing picketing 70 DECISIONS OF NATIONAL LABOR RELATIONS BOARD while employees of the primary employer happened to be temporarily absent from the scene, Seafarers' violated the doctrine of Moore Dry Dock. On the entire record in this case the Trial Examiner concludes and finds that the Respondent's activities which are the subjeot of this complaint were primary in character, and that the Respondent has not violated Section 8(b) (4) (A ) and (B) of the Act. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, the Trial Examiner makes the following: CONCLUSIONS OF LAw 1. Seafarers' International Union of North America, Atlantic and Gulf District, Harbor and Inland Waterways Division, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 2. Superior Derrick Corporation is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 3. Seafarers' International Union of North America, Atlantic and Gulf District, Harbor and Inland Waterways Division, AFL-CIO, has not engaged in unfair labor practices within the meaning of Section 8(b) (4) (A) or (B) of the Act. [Recommendations omitted from publication.] Barrel & Drum Dealers Association of Minnesota and Local 970 and Local 975, International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America , Joint Peti- tioners and Arthur L. Morgan. Case No. 18-RC-3605. Novem- ber 12, 1958 DECISION AND CERTIFICATION OF REPRESENTATIVES Pursuant to a stipulation for certification upon consent election, dated May 13, 1958, an election was conducted on May 28, 1958, under the direction and supervision of the Regional Director for the Eighteenth Region, among the employees at the Employer's Minne- apolis, Minnesota, plant. At the conclusion of the election, the parties were furnished a tally of ballots which showed that of approximately 113 eligible voters, 101 cast valid ballots, of which 42 were cast for the Joint Petitioners, 51 were cast for the Intervenor, and 5 were cast against any labor organization. There were three challenged ballots, a number insufficient to affect the results of the election. Two ballots were void. On June 3, 1958, the Joint Petitioners filed timely objections to conduct affecting the results of the election. In accordance with the Rules and Regulations of the Board, the Regional Director conducted an investigation of the objections and, on July 24, 1958,1 issued and served on the parties his report on objections, in which he found that two objections raised substantial and material issues, and recom- 3 A supplemental report was flied by the Regional Director on August 4, 1958. 122 NLRB No. 11.