Intl' Longshoremen's and Warehousemen's Union

626 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL offer to James Richard (Dick) Boyer immediate and full reinstate- ment to his former or substantially equivalent position without prejudice to any seniority or other rights and privileges previously enjoyed, and will make him whole for any loss of pay he may have suffered as a result of the dis- crimination against him. WE WILL NOT in any manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form labor organizations, to join or assist any labor organization, to bargain collectively through repre- sentatives of their own choosing, and to engage in concerted activities for the purposes of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8(a)(3) of the Act. WE WILL NOT discriminate in regard to the hire or tenure of employment or any term or condition of employment of any employee because of membership in or activities on behalf of any such organization or because he has engaged in concerted activities for the mutual aid or protection of the employees. GUERNSEY-MUSKINGUM ELECTRIC COOPERATIVE, INC., Employer. 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. International Longshoremen's and Warehousemen's Union, Local 8; International Longshoremen's and Warehousemen's Union, Local 92 ; and International Longshoremen's and Warehouse- men's Union and General Ore, Inc. Case No. 36-CD-18. August 20, 1959 DECISION AND DETERMINATION OF DISPUTE This proceeding arises under Section 10(k) of the Act, which pro- vides that "Whenever it is charged that any person has engaged in an unfair labor practice within the meaning of paragraph (4) (D) of Section 8 (b), the Board is empowered and directed to hear and deter- mine the dispute out of which such unfair labor practice shall have arisen . . . ." On October 29, 1958, Sam F. Speerstra, as secretary of General Ore, Inc., filed with the Regional Director for the Nineteenth Region a charge alleging that International Longshoremen's and Warehouse- men's Union, Local 8; International Longshoremen's and Warehouse- men's Union, Local 92; and International Longshoremen's and Ware- housemen's Union, herein called the Longshoremen, violated Section 8(b) (4) (D) of the Act by inducing and encouraging the employees of the Company and other employers to engage in concerted refusal in the course of their employment to use, process, transport, or other- wise to handle or work on any goods or perform any services with the object of forcing or requiring the Company to assign the work of 124 NLRB No. 42. 1 INT'L LONGSHOREMEN'S & WAREHOUSEMEN'S UNION 627 handling and unloading ships to members of the Longshoremen's International and its locals rather than to the Company's employees.' Thereafter, the Regional Director investigated the charge filed by the Company and, having found reasonable cause to believe that the Longshoremen was engaging in unfair labor practices within the meaning of Section 8(b) (4) (A) and (D), on November 21, 1958, peti- tioned the United States District Court for the State of Oregon for an injunction under Section 10(1) of the Act. After various post- ponements requested by the parties, the hearing on the petition and the Longshoremen's answer was held on February 14 through March 1; and on March 17, 1959, the said court issued an order granting a temporary injunction restraining the Longshoremen and each of them from picketing at or in the vicinity of the unloading installation of the Company or engaging in any other form of inducement of em- ployees to cease handling goods or to perform services, where the ob- ject thereof is (a) to force or require the Company to join Pacific Maritime Association or any other employer organization, or (b) to force or require the Company to assign the work of unloading the ore-bearing vessels to longshoremen who are members of, or repre- sented by, the Longshoremen, rather than to the employees of the Company who are not members of the Longshoremen. Pursuant to Section 10 (k) of the Act and Sections 102.79 and 102.80 of Board's Rules and Regulations, Series 7, the Regional Director on February 9, 1959, served upon the parties a notice of hearing to be held on March 17, which later at the request of the parties was re- scheduled for March 31, 1959. The hearing was held on that date before Charles Y. Latimer, hearing officer. All parties appeared at the hearing and were afforded full opportunity to be heard and, except as otherwise indicated, to examine and cross-examine witnesses, and to adduce evidence bearing on the issues. The hearing officer denied the motion by the Longshoremen to admit in evidence for the limited purpose of disqualifying the hearing officer the entire record in the Board proceeding, Case No. 36-CC-59, in. volving the charge of a violation by the Longshoremen of Section 8(b) (4) (A) of the Act,2 and the entire record in Civil Action for injunction No. 10086 in the United States District Court for the State of Oregon. Upon the motion by the Company, the records in the above proceedings, including the transcripts and the exhibits, were ' General Ore also filed on October 27 , 1958, with the Regional Director for the Nine- teenth Region a charge alleging that the Longshoremen violated Section 8(b) (4) (A) of the Act. 2 Case No . 36-CC-59 was heard before Trial Examiner Howard Myers on March 10, 1959. At that bearing the parties by stipulation agreed to receive in evidence the entire record in Civil Action No. 10086 in the United States District Court for the State of Oregon. with full force and effect, as if the witnesses who appeared in that proceeding were all sworn and testified in this action : and that any party could recall the same witnesses or 'any other witnesses to give testimony for any purpose. 628 DECISIONS OF NATIONAL LABOR RELATIONS BOARD then, over the objection of the Longshoremen, admitted in evidence for all purposes. At the hearing the Longshoremen moved to disqualify the hearing officer on the ground that he is the same person who was an attorney for the General Counsel in Case No. 36-CC-59 and one of the attorneys for the Board in Civil Action No. 10086, both of which proceedings arose out of the same facts as the instant case, and that the combina- tion in one person of the prosecuting functions with his functions as the hearing officer is inconsistent with the requirements of a fair hear- ing and deprives the Longshoremen of due process of law. The Long- shoremen contends that because of the hearing officer's participation in the prior proceedings involving the same parties, he would be un- able to make an impartial analysis of the issues and the evidence in this case for the Board, as required by Sections 101.30 of the Board's Statements of Procedure and 102.66 of the Board's Rules and Regula- tions, Series 7. This motion was denied by the hearing officer, and the issue is now before us on the Longshoremen's motion to reopen the record and to disqualify the hearing officer, and for other relief.' It is well established that Section 8 of the Administrative Pro- cedure Act, which provides for the issuance of the initial decision by the hearing officer, does not apply to a proceeding under Section 10(k). Under Section 101.30 of the Statements of Procedure and Section 102.80 of the Board's Rules and Regulations, Series 7, the hearing under Section 10(k) is nonadversary in character and, ac- cording to the procedure adopted therefor, conducted in the same way as a hearing in a representation proceeding. The Board adopted such procedure because the decision under Section 10(k) is a preliminary administrative determination made for the purpose of attempting to resolve a dispute within the meaning of that section. The unfair labor practice itself is litigated at a subsequent hearing before a Trial Examiner if the the dispute remains unresolved. It is to the sub- sequent adversary proceeding, which leads to a final Board determina- tion, that Section 8 of the Administrative Procedure Act applies 4 8 At the hearing, the Longshoremen also moved that the hearing officer make himself available as a witness in support of their motion to disqualify the hearing officer. This motion was denied by the hearing officer on the ground that , under Section 102.95 of Board's Rules and Regulations , he is precluded from appearing as a witness in this pro- ceeding without permission of the Board . The Longshoremen then made an offer of proof that , if the hearing officer were called as a witness to testify , he would testify that he was the attorney for the Petitioner in Civil Action No. 10086, and that he prosecuted that action on behalf of the Petitioner therein and against the Longshoremen ; and that he would further testify that he was the attorney for the General Counsel in Case No. 36-CC-59 and that he prosecuted that action on behalf of the General Counsel, which proceedings arose out of the same facts and transactions as are involved in the instant Proceeding. This offer of proof was likewise denied by the hearing officer on the ground that the Board would take judicial notice that he has participated in those proceedings. The hearing officer's rulings on the above motions are hereby affirmed. 4 National Union of Marine Cooks, et at. (Irwin -Lyons Lumber Company), 83 NLRB 341 ; Local No. 27, International Typographical Union ( Heiter-Starke Printing Co., Inc.), 121 NLRB 1013. INT'L LONGSHOREMEN'S & WAREHOUSEMEN'S UNION 629 The primary function of the hearing officer, who is acting under the delegation of authority from the Board, in a nonadversary proceed- ing is to insure that the record contains a full statement of pertinent facts as may be necessary for the determination of the dispute by the Board. The hearing officer makes no recommendations in regard to the resolution of the dispute. While we think it better practice not to assign a Board agent who has previously engaged in the perform- ance of investigative and prosecuting functions for the Agency to act as a hearing officer in the same or in a related case, we find that the Longshoremen in the instant case was not prejudiced by such assign- ment. The Longshoremen does not allege that it was denied the op- portunity to present evidence in support of its contentions, or that it was prejudiced in any other manner by the conduct of the hearing officer .5 The Longshoremen, however, argues that because of his participa- tion in previous adversary proceedings in related cases, the hearing officer would not be able to make an impartial analysis of the issues and the evidence in this case. However, a hearing officer's report in a 10(k) proceeding, as in all representation cases, is in the nature of an interoffice memo and is part of the Board's confidential files. As mentioned before, a hearing officer's report contains no recommenda- tions as to the disposition of the issues, nor is it intended to dispense with the independent review by the Board of all the evidence admitted at the hearing, or with the determination by the Board of all the issues raised by the parties at the hearing and in their briefs to the Board. Under Sections 9 (c) and 10 (k) of the Act, no such respon- sibility is imposed upon the hearing officer, but it is laid upon the Board. Accordingly, we find no merit in the Longshoremen's conten- tion that the hearing officer's report could prejudice its case. For the above reasons, we also affirm the hearing officer's refusal to make avail- able to the parties his analysis of the record.' The Longshoremen further contends that the Board's agents vio- lated the Board's own Rules and Regulations providing for priority in the processing of this case, and that the delay caused thereby was prejudicial to the Longshoremen. We find no merit in this con- tention. The charge in this case, alleging violations of Section 8(b) (4) (A) and (D), was filed on October 29, 1958. Following an 5Local No. 27, International Typographical Union (Reiter-Starke Printing Co., Inc.), supra ; where the charged parties sought to disqualify the hearing officer on the ground that he as an agent of the General Counsel had passed upon and authorized the petition for injunction in a civil action, in which he alleged that the charge was true. Of. Radio and Televisions Broadcast Engineers Union, etc. (Columbia Broadcasting System, Inc.), 103 NLRB 1256; Local Union No. 48, Sheet Metal Workers etc. (Acousti Engineering of Alabama, Inc.), 119 NLRB 157; Local 450, International Union of Operating Engineers ( Sline Industrial Painters), 119 NLRB 1725. e J. I. Case Company, 80 NLRB 217; P. R. Mallory & Co., Inc., 89 NLRB 962; Kearney & Trecker Corporation, 101 NLRB 1577, 159'4, enforcement denied on other grounds 210 F. 2d 852 (C.A. 7). 630 DECISIONS OF NATIONAL LABOR RELATIONS BOARD investigation of the charge, the Regional Director, on November 21, 1958, applied to the district court for an injunction and obtained an order to show cause returnable a few days later. Thereafter, at the request of the parties, the trial of the injunction proceeding was from time to time continued until February 24, 1959, thus giving the parties an opportunity to settle out of court the numerous actions, cross- actions, suits, and proceedings which arose out of the.same dispute. For the same reason, the Board's agents, aware of the parties' ef- forts to settle their dispute by a voluntary agreement, did not issue the notice of hearing in the instant case until February 9, 1959, which hearing was then at the request- of the Company rescheduled for March 31, 1959. In these circumstances and inasmuch as it is im- plicit in a proceeding under Section 10(k) that the Board shall en- courage a voluntary settlement of jurisdictional disputes, we find that the Longshoremen's contention that the Board was dilatory in process- ing this case is without merit. The rulings of the hearing officer made at the hearing are free from prejudicial error and are hereby affirmed. The Longshoremen's mo- t-on to reopen the record and for the permission for the Board agent to testify and produce evidence, and to disqualify the hearing officer, and for other relief, is hereby denied. The Company and the Longshoremen filed briefs with the Board. Upon the entire record in the case, the Board' makes the following: FINDINGS OF FACT . I. THE BUSINESS OF THE EMPLOYER General Ore, Inc., is an Oregon corporation engaged at the Port of Portland in the operation of a bulk unloading facility. It is an affiliate of Harvey Aluminum, Incorporated, a California corpora- tion engaged in the business of manufacturing aluminum and alumi- num products. The two companies are commonly owned, controlled, and supervised, and are parts of the same integrated enterprise. General Ore 8 was created for the purpose of servicing the operations of Harvey Alumiuunl by unloading vessels carrying alumina. ore from Japan and loading the same upon railroad freight cars for trans- shipment to the Harvey Aluminum plant at The Dalles, Oregon. During the past year the materials shipped by Harvey Aluminum outside the State of Oregon were valued at in excess of $1,000,000. Since May 1, 1958, Harvey Aluminum purchased from outside the United States alumina ore valued at in. excess of $1,000,000. Since . 7 Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Members Rodgers; Bean, and Fanning]. . 8 Prior -to the -formation on or about July 30,- 1958, of General Ore, Inc.; the unloading facility was in charge of its predecessor, General Ore & Chemical Corporation, also an affiliate of Harvey Aluminum. INT'L LONGSHOREMEN'S & WAREHOUSEMEN'S UNION 631 August 1, 1958, Harvey Aluminum paid to General Ore $52,000 for services and over $100,000 for ocean freight. In view of the fore- going facts we find that General Ore is engaged in commerce within the meaning of the Act and that it will effectuate the policies of the Act to assert jurisdiction. H. THE LABOR ORGANIZATIONS INVOLVED Local 8, International Longshoremen's and Warehousemen's Union; Local 92; International Longshoremen's and Warehousemen's Union; and International Longshoremen's and Warehousemen's Union are labor organizations within the meaning of the Act. III. THE DISPUTE In April 1958, Harvey Aluminum, Inc., retained The Willamette Tug and Barge Company, herein called Willamette, to conduct so- called test runs for the purpose of determining the adequacy of the unloading installation then being constructed by Willamette for Harvey Aluminum and General Ore & Chemical Corporation. On May 1 Willamette arranged a meeting with the representatives of the Longshoremen. Among those present at this meeting were : Inter- national representative, ILWTJ, James Fantz; secretary-treasurer of Local 8, Anderson; chairman of industrial labor relations committee of Local 8, Gordon Mays; representative of Willamette, Rossiter; representatives of General Ore & Chemical Corporation, Glenn and Linton, and others.' Rossiter informed those present that Willamette had been retained by Harvey Aluminum to operate the unloading facility for two or three test shipments of ore, that longshoremen would be asked to do the unloading, and that Willamette wished to be certain that no jurisdictional problems would arise. Fantz and Anderson agreed to cooperate, but pointed out that the employment of longshoremen required membership in Pacific Maritime Associa- tion and that Willamette was not a member of that organization. It was Fantz who then stated that Willamette should work with a steve- doring company which, as a member of Pacific Maritime Association, could hire longshoremen for the job. At this time Rossiter also told those present that Willamette was in no position to make any com- mitments with respect to the use of longshoremen after the completion of the test runs. Fantz in turn stated that after the test runs were over, the Longshoremen would claim complete jurisdiction over all of the work of unloading, including the shipboard work, the barge operation, the railcar loading operation, etc. The parties. met next on May 2. In addition to those present at the meeting the day before, there were also present the representa- 9Albert Hinz, director of industrial relations for Harvey Aluminum , who was to be present at the meeting as an observer for the company , did not arrive until after the official meeting was over, but in time to be introduced by Rossiter to Fantz and Anderson. 632 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tives of Portland Stevedoring Company, secretary of Pacific Mari- time Association, R. 0. Hoge, and an observer for Harvey Aluminum, Hinz. Rossiter stated that in accordance with 'Fantz' suggestion, Willamette had retained the services of the Portland Stevedoring Company, a member of Pacific Maritime Association, to handle the unloading of the first test ship due to arrive soon, and that the steve- doring company had worked out a manning scale for the first opera- tion. After some discussion, the parties agreed to accept this man- ning scale. Rossiter again stated that they would have to work on a ship-to-ship basis and that Willamette could not make any commit- ments which would bind Harvey Aluminum after the completion of the test runs. The first test ship SS Burnaby arrived at Portland on May 3 and was unloaded in accordance with the arrangement reached the day before. As the second test ship was due within a few days, another meeting was held on May 16 to work out the manning 'scale for the unloading of that ship. All those present at the May 2 meeting were there. After some discussion the parties agreed'to continue the former arrangement with respect to the unloading of the second test ship, SS Lake Atlin. Rossiter's request that the same arrangement apply to the unloading of the third ship was refused by the Longshoremen. Speaking for them, Gordon Mays, chairman of the industrial labor relations committee of Local 8, stated that, as the third ship would bring a full load, the Longshoremen would insist on a meeting to work out an arrangement well in advance of the arrival of the third ship, and also that the Longshoremen would insist on jurisdiction over all the jobs in connection with the unloading. Representative of Local 8, Smith, added, in the presence of Fantz and Anderson, that unless they had complete jurisdiction, the third ship would not be unloaded. At the conclusion of the meeting it was agreed that another meeting would be held in advance of the arrival of the third ship to set up a permanent manning scale for future operations. Upon the completion of the unloading of each of the two test ships, Portland Stevedoring Company billed Willamette for its services, and Willamette in turn billed Harvey Aluminum for money Willa- mette paid to Portland for longshore labor. As a member of Pacific Maritime Association, Portland Stevedoring Company was bound to hire longshoremen only through the hiring hall maintained jointly by the Association and Local 8, and to pay wages to the Longshoremen so hired through the consolidated pay system; under which all steve- doring companies, members of the Association, sent their payrolls, with checks to cover, to the Association.10 The Association consoli- 10 There are only 10 stevedoring companies , members of Pacific Maritime Association, who can employ longshoremen through such hiring hall and pay for longshore labor through the consolidated pay service . Other members of the Association must avail themselves of the services of one of these stevedoring companies whenever they need longshore labor to be done. INT'L LONGSHOREMEN'S & WAREHOUSEMEN'S UNION 633 dates all these payrolls each week and then issues to each individual longshoreman one paycheck to cover his work during the week for all employers. The moneys paid to the Association cover wages due as well as fringe benefits such as vacations, welfare insurance, old age benefits, etc., which are credited to individual accounts of longshoremen." The third ship with alumina ore was expected to arrive early in August. With this in mind, secretary of Local 8, Anderson, wrote to secretary of Pacific Maritime Association, Hoge, suggesting a meet- ing of all parties concerned to reach an agreement with respect to the unloading of that ship. Informed of this request, Lawrence Harvey of Harvey Aluminum wrote to Hoge that, as the two test runs were not sufficient to ascertain the adequacy of the unloading installation, they would have to have three or four more experimental runs. A meeting with respect to the unloading of the third ship was held on July 25. The Longshoremen was represented at this meeting by Fantz, Anderson, and others. Harvey Aluminum was represented by Hinz. Also present was secretary of the Association, Hoge. Hinz said that he was present as an observer to report back to his prin- cipals. Fantz said that the next ship would not be unloaded unless there was a contract with the Longshoremen covering every opera- tion. After Hinz replied that he would report back to his principals, Anderson suggested that another meeting be arranged with the in- dustrial labor relations committee of Local 8 immediately, as without a contract there would be no unloading at the docks at Portland. Hinz inquired if his company could hire longshoremen directly. Fantz replied "No," that it would have either to join Pacific Maritime Association, or to hire longshoremen through a stevedoring company that was a member of that Association. The parties then agreed that they would meet again on July 30 together with the committee of Local 8 to discuss a possible contract. On July 30 representatives of Harvey Aluminum, Hinz and Elliott, met with the committee of Local 8. Mays, chairman of the committee, opened the discussion stating that Local 8 did not as yet have a con- tract for unloading the third ship, and that the ship could not be unloaded unless there was such a contract. Hinz observed that the Steelworkers union had a better claim on the ship as the only alumina unloading in North America was being done by that union. Mays replied that Local 8 would not allow the Steelworkers or any other union on the docks in Portland, that all work on the docks belonged to the Longshoremen. Hinz also said that it would be difficult for his company to enter into a contract with the Longshoremen as the n Nonmember employers of Pacific Maritime Association may also use the services of Pacific Maritime Association , provided they have contracts with the Longshoremen , deposit such contracts with the Association , and agree to use the consolidated pay system. Nonmembers pay certain fees for the use of the services of the Association. 634 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Longshoremen did not represent any of the company's employees- Anderson, who at this point joined the meeting, told Hinz that they must definitely get together to discuss the contract and that other- wise the third ship would not be unloaded. Hinz promised to report back to his principals. On August 4, International Representative Fantz called Hinz at The Dalles to inquire if he had anything new to report. Hinz re- plied in the negative, whereupon Fantz observed that the third ship was coming the next day, and that he ought to realize that without using longshoremen the ship could not be unloaded. Fantz concluded this conversation by stating that if Hinz learned anything new he should communicate with Gordon Mays at the Longshoremen's office. On July 31, General Ore, which was organized a few days before, took over the unloading installation from General Ore & Chemical Corporation, and immediately notified Willamette that it no longer required its services for unloading the ships to arrive with aluminum ore. On August 1, General Ore also appointed its engineer, Caldwell, to be in charge of its unloading operations and instructed him to hire the personnel that would be required for unloading of the third ship. By August 5, when the third ship, SS Lake Pennast, had arrived,. General Ore had in its employ some 35 employees available for un- loading operations. SS Lake Pennast arrived on August 5. The unloading of the ship with General Ore's own employees was immediately begun and com- pleted on August 14. On August 12, while the ship was being un- loaded, shoreside and shipside picketing of the unloading installa- tion began with the picket signs reading as follows: "General Ore Unfair to ILWU Local 8" and "General Ore Unfair to ILWU Local 92." The next ship, SS Darby, arrived on September 20 and was likewise unloaded by General Ore's employees. Before the dis- trict court had issued its injunction in March 1959, five more ships with the alumina ore arrived at Portland, all of which were un- loaded by General Ore's employees. At all times during this period, General Ore employed not less than 12 employees on a permanent basis. With the arrival of each new ship the number of employees would be increased by additional hirings to about 40. All of these men were paid by General Ore's payroll checks. It has been stipulated by the parties that the shore picketing of the General Ore's installation by Local 8 began in the early part of August and continued without interruption up to the issuance of injunction on March 17, 1959, except for 2 days, September 21 and 22, when such picketing was conducted by Local 92. Shipside picketing of the same installation continued until November 26, 1958, when the parties agreed to discontinue this type of picketing pending the suit for in- junction in Civil Action No. 10086. In the course of the picketing, INT'L LONGSHOREMEN'S & WAREHOUSEMEN'S UNION 635 the pickets distributed circulars stating that "Harvey Aluminum and General Ore are on the UNFAIR LIST of the AFL-CIO Building Trades" and that "In violation of the contract, Harvey now replaced regular local longshoremen with OUTSIDE Non-Union persons." As a consequence of the picketing, employees of Columbia River Paving Co., California Bag and Metal Co., J. E. Hazeltine & Co., Shave Transportation Co., Inland Navigation Co., Nisshum Steam- ship Co., and Air Reduction Corporation, have refused to cross the picket lines or perform services at or near the picketed dock, and have refused to berth the ore-hearing vessels on arrival. It has been testified that International Representative Fantz was seen on several occasions near the picket line at the entrance to the dock area, and that Gordon Mays of Local 8 was likewise seen at various times near the picket line. Contentions of the Parties General Ore contends that the record establishes that the Long- shoremen violated Section 8(b) (4) (D) of the Act. The Longshoremen contends that the record does not show that it has made a demand for work assignments, and that the only finding which the record will support is that it has been seeking to compel General Ore, as it had agreed to do, to meet and negotiate with the Longshoremen concerning a manning scale and a wage scale to be paid to employees who perform longshore labor on the Portland waterfront; and that it was the rejection of this demand by General Ore and Harvey Aluminum which caused the Longshoremen to estab- lish and maintain the picket line until it was enjoined from so doing by order of the district court. In support of its contention it cites Hull v. Wire Weavers Association, 159 F. Supp. 425, holding that the economic interest of a union in preserving wage rates and working standards justified the picketing for recognition so that it might bar- gain concerning these matters; and Drivers, Chauffeurs and Helpers Local Union No. 639 etc. v. N.L.R.B. (Curtis Bros. Inc.), Novem- ber 26, 1958, 43 LRRM 2156 (C.A., D.C.), holding that peaceful picketing for recognition by a minority union is not prohibited by Section 8(b) (1) (A) of the Act. The Longshoremen's International further argues that the record failed to establish the liability of the International for the unfair labor practices alleged. It contends that its local unions are autono- mous bodies and that the International may not be held liable for the conduct of the locals merely because of the locals' affiliation with the International ; and, in the absence of proof that Fantz has induced and encouraged employees to engage in picketing for a prohibited objective, and that such conduct has been authorized or ratified by the International, it may not be imputed to the International. 636 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Applicability of the Statute In a proceeding under Section 10 (k) of the Act, the Board is merely required to find that there is reasonable cause to believe that Section 8(b) (4) (D) has been violated before proceeding with the determina- tion of the dispute out of which the alleged unfair labor practices have arisen. For Section 10(k) to be applicable in this case, two propositions must be established : ( 1) the responsibility of one or more of the unions for the picketing , and (2 ) the existence of the proscribed object behind such picketing. 1. Responsibility of the Longshoremen's International The record clearly establishes, and no question has been raised, as to the responsibility of Local 8 and Local 92 for the picketing. As indicated above, however, the International contends that it is in no way responsible for the alleged unfair labor practices of Locals 8 and 92, as well as for the activities of James A. Fantz. However, Fantz testified without contradiction that at the times material herein lie was employed on a full-time basis by the International as inter- national representative in the States of Oregon and Washington. He further testified that: It is part of his job as international representa- tive to lend support and assistance in collective-bargaining negotia- tions to affiliated locals; as an observer , he attends meetings of such locals with employers held for the purpose of interpretation of their contracts and adjustment of grievances and gives his advice under such contracts ; in 1958 he attended the Longshoremen's negotiations with Pacific Maritime Association for a new agreement and in con- nection therewith made a report to the president of the International; he discussed with the representatives of Pacific Maritime Association various matters in controversy and grievances arising under the International's contract with that Association; and he is in charge of organizational activities of the International in the area and re- ports on such activities to its first vice president . It is in his capacity as international representative that Fantz attended various meetings with General Ore and Harvey Aluminum representatives at which the arrangements for the unloading of the first two test ships were discussed and warned them that, unless there was a contract, there would be no unloading of the third ship. At no time did he qualify his representative status at such meetings by a statement that he was acting merely in the capacity of an observer for the International or at his own initiative rather than the representative of the Inter- national. Indeed, Fantz was introduced and was described in the minutes of the meetings held on May 2 and May 16 as international representative of ILWTT, and although in the possession of such minutes he made no attempt to correct this designation. INT'L LONGSHOREMEN'S & WAREHOUSEMEN'S UNION 637 In view of the foregoing evidence, and upon the entire record, we are satisfied that there is reasonable cause to believe that International Representative Fant.z was a duly appointed agent of the International, that he has engaged in the activities described herein in his representa- tive capacity and within the scope of such authority, and that his conduct therefore can be properly imputed to the International. We are further satisfied that by Fantz' conduct described herein, particu- larly his participation in the meetings with General Ore and Harvey Aluminum representatives, his insistence upon the immediate execu- tion of a contract as a condition for unloading of the third and sub- sequent ships, and his failure to disavow the picketing of General Ore's installation for a proscribed objective, the International placed itself in the position of a cosponsor of the picketing herein. Such cosponsorship carries with it the responsibility of a joint participant in a common enterprise for the acts performed in furtherance of the enterprise by the other participant of the enterprise. Therefore, although the evidence does not show that the International directly participated in forming and maintaining the picket line, we find that because of its participation in a common enterprise with Locals 8 and 92, the International became responsible for the picketing by Locals 8 and 92.12 2. The proscribed object Thus, the only issue remaining is whether the picketing established and maintained by the Longshoremen was for the prohibited objective of forcing or requiring General Ore to assign the work of unloading to longshoremen, members of or represented by the Longshoremen, rather than to its own employees. The Longshoremen takes the position that the most the Board can find on this record is that the Long- shoremen sought to compel General Ore to meet and negotiate with it concerning the manning scale and wage scale to be applied to the unloading of ships consigned to the Company ; and that it was the rejection of this demand by General Ore which caused the Long- shoremen to establish and maintain the picket line. The Longshore- men's contention, however, is not borne out by the record. The record shows that during the negotiations for the unloading of the test ships,, the Longshoremen made it clear that the work of unloading the test ships as well as the ships that would arrive afer the completion of the test runs was within the jurisdiction of the Longshoremen, and that,, unless an agreement was reached, there would be no unloading of such ships in Portland. The Longshoremen took a similar position in their negotiations after the completion of the test runs. At the July 25 12 Alexander-Stafford Corporation, 118 NLRB 79 ; United Brotherhood of Carpenters 6 Joiners Local Union No . 978 (Markwell & Hartz Contractors), 120 NLRB 610; Local 562, United Association of Jonrneyunen and Apprentices of the Plumbing and Pipe Fitting Industry etc. (Northwest Heating Company ), 107 NLRB 542. 638 DECISIONS OF NATIONAL LABOR RELATIONS BOARD conference relating to the unloading of the third ship scheduled to arrive within a few days, International Representative Fantz stated to Hinz that the third ship would not be unloaded unless there was a contract with the Longshoremen covering every phase of unloading. As Hinz was present at the meeting as an observer for the Company and could not enter into any binding agreement, secretary of Local 8, Anderson, urged him to obtain the necessary authority from his prin- cipals, reiterating the demand for a contract as a condition of un- loading. Without a contract, Anderson stated, there would be no unloading at the docks of Portland. A similar warning was also given at the conference held on July 30, at which chairman of the industrial and labor relations committee of Local 8, Gordon Mays, told the employer representative, Hinz, that the Longshoremen would not permit the Steelworkers or any other union to work at the docks of Portland, that all work on the docks of Portland belonged to the Longshoremen, and that, unless there was a contract, the third ship would not be unloaded. As Hinz again stated that he was present at the meeting only as an observer to report back to his principal, secretary of Local 8, Anderson, suggested an- other meeting to be held soon; otherwise, the third ship would not be unloaded. On August 4, the eve of the arrival of the third ship, Fantz telephoned Hinz to inquire if he had anything new to report, and upon his answer in the negative, observed that Hinz ought to realize that without using the Longshoremen, the third ship would not be unloaded. General Ore began unloading the third ship on August 5 with its own employees. On August 12, and before General Ore had completed the unloading of the third ship, the Longshoremen began the picketing of the Company's installation. The picketing continued until March 17, 1959, when the Longshoremen was re- strained from further picketing by an order of the United States District Court. In the light of these events, it is clear that the picket- ing, which was commenced by the Longshoremen a few days after General Ore began to unload the ship with its own employees, who were non-members of the Longshoremen, was precipitated by General Ore's refusal to enter into a contractual arrangement whereby the un- loading of the third ship would be assigned to employees who are members of, or represented by, the Longshoremen. While the Long- shoremen's representatives did not reveal at the conferences with General Ore the precise nature of the contract that they were demand- ing, it would be, in the light of the previous dealings, only reasonable to infer that the Longshoremen was seeking the same contractual arrangement as that under which the two test ships had been unloaded, namely, that the unloading be done through a stevedoring company .which was a member of Pacific Maritime Association. By virtue of such arrangement, General Ore would be obligated to hire longshore- INT'L LONGSHOREMEN'S & WAREHOUSEMEN'S UNION 639 men through the hiring hall maintained jointly by the Longshoremen and the Association. On the other hand, if the Longshoremen, as an alternative arrangement, sought to compel General Ore either to enter into a direct agreement with the Longshoremen for the use of the longshore labor hired through the said hiring hall, or to join Pacific Maritime Association and thereby assume an obligation to use only longshoremen who were hired through the hiring hall, the ultimate result would be the same. Under either contractual arrangement, the work of unloading the third and other nontest ships would be assigned to longshoremen who were hired through the hiring hall and who were either members of, or represented by, the Longshoremen. The Longshoremen contends that at no time had it asked General Ore for the assignment of the unloading work to members of its union or, for that matter, for any assignment of that work to anyone. It says that it merely sought to compel General Ore to meet and negotiate with them concerning the manning and wage scale for longshore labor to be used in unloading the ship, and that the dispute, therefore, does not fall within the proscription of Section 8(b) (4) (D) of the Act. We find no merit in this contention. Where, as in the instant case, the underlying basic dispute between the parties is over the assign- ment of work to employees in a particular labor organization or in a particular trade, craft, or class rather than to the employer's own employees, the fact that the demand for the assignment of such work is made under the guise of a contractual demand confers no immunity for a violation of Section 8(b) (4) (D).13 To hold otherwise would permit a labor organization to subvert the clear intent of the statute proscribing jurisdictional strikes and picketing by the simple ex- pedient of recasting a demand for assignment of work into a demand for a contract or contractual provision conferring jurisdiction over such work upon the union. In these circumstances, and upon the entire record, we find that the dispute in question is properly before us for determination under Section 10(k) of the Act.14 The Merits of the Dispute It is clear from the record that neither the Longshoremen nor any of its constituent locals had any rights in any outstanding Board v Local Union No. 3, Wood, Wire & Metal Lathers International Union, AFL ( Anning- Johnson Company ), 113 NLRB 1237 ; 117 NLRB 352 ; International Union o f Operating Engineers , Local 825 (Building Contractors Association, of New Jersey ), 118 NLRB 978; Local 27, International Typographical Union (Reiter-Starke Printing Co.), 121 NLRT; 1013. 14 As we have found that the object of the picketing was to force General Ore to enter in a contractual arrangement with the Longshoremen whereby the work would be assigned to longshoremen who are members of, or represented by, the Longshoremen, conduct ex- pressly proscribed by Section 8(b) (4) (D) of the Act, we do not reach the other contention of the Longshoremen that because they were allegedly engaged in peaceful picketing for recognition , the conduct was privileged. 640 DECISIONS OF NATIONAL LABOR RELATIONS BOARD certification or order affecting the disputed work. These facts, includ- ing the fact that at the time of the picketing the disputed work had been assigned to and was being performed by General Ore's own em- ployees, are determinative of the present dispute.15 The Board has specifically held that Sections 8(b) (4) (D) and 10(k) do not deprive an employer of the right to assign work to his own employees; nor were these sections intended to interfere with an employer's freedom to hire, subject only to the requirement against discrimination as con- tained in Section 8(a) (3). Moreover, contrary to the Longshoremen's contention, we find that the evidence relating to General Ore's failure to meet and negotiate with them concerning a manning scale and wage scale for the unloading of the third ship is immaterial, where, as here, the Longshoremen has no bargaining or representative status.16 Accordingly, we find that Local 8 and Local 92 and the Interna- tional Longshoremen's and Warehousemen's Union are not lawfully entitled to force or require the Company to enter into a contract for unloading, or otherwise to force or require the Company to assign the work in dispute to longshoremen who are members of or represented by those organizations, or by any one of them, or to employees in a particular trade, craft, or class rather than to General. Ore's own employees. DETERMINATION OF DISPUTE Upon the basis of the foregoing findings, and the entire record in this case, the Board makes the following determination of dispute pursuant to Section 10(k) of the Act: 1. International Longshoremen's and Warehousemen's Union, Local 8; International Longshoremen's and Warehousemen's Union, Local .92; and International Longshoremen's and Warehousemen's Union, and their agents, are not and have not been lawfully entitled to force or to require General Ore, Inc., or any employer in the Portland area, to enter into a contract for the assignment of the work in dispute, or otherwise to force or require General Ore, Inc., or any other employer in the Portland area to assign the work in dispute to longshoremen who are members of, or represented by, the above-mentioned labor organizations, or to employees in a particular trade, craft, or class rather than to its own employees. 2. Within 10 days from the date of this Decision and Determination of Dispute said Local Unions 8 and 92 and International Longshore- men's and Warehousemen's Union shall notify the Regional Director 15 United Brotherhood of Carpenters and Joiners of America (Stroh Brewery Company), 88 NLRB 844 ; International Longshoremen's and Warehousemen's Union, Local No. 16 (Juneau Spruce Corporation), 82 NLRB 650, 660. 18 Local Union No . 9, Wood, Wire & Metal Lathers International Union, AFL (Anning- Johnson Company ), 113 NLRB 1237; Local 16, International Longshoremen's and Ware- housemen's Union (Denali-McCray Construction Company ), 118 NLRB 109. ADHESIVE PRODUCTS CORPORATION 641 for the Nineteenth Region in writing whether or not they accept the Board's determination of this dispute and whether or not they will refrain from forcing or requiring General Ore, Inc., by means pro- scribed by Section 8(b) (4) (D) of the Act, to assign the work in dis- pute to longshoremen who are members of, or represented by, the above mentioned labor organizations, or either of them, rather than to employees of General Ore, Inc. Adhesive Products Corporation and District 65, Retail, Whole- sale & Department Store Union, AFL-CIO' and Adco Em- ployees Association 2 and Steel , Metals, Alloys and Hardware, Fabricators and Warehousemen, Local 810, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America,' Parties to the Contract. Case No. 2-CA- 4188. August 20, 1959 SUPPLEMENTAL DECISION AND ORDER On February 4, 1957, the Board issued its Decision and Order in this case,4 finding that the Respondent had violated Section 8(a) (5) and (1) of the National Labor Relations Act by refusing to bargain with District 65; had violated Section 8(a) (1) and (2) by interfer- ing with the formation of Adco and contributing financial and other support to it; had violated Sections 8(a) (1), (2), and (3) by its con- duct toward Teamsters Local 810; and had violated Section 8(a) (1) by stating, in the presence of its employees, that it would not bargain with District 65, their majority representative, and by promising its employees benefits if they would bargain through Adco. The Board accordingly ordered the Respondent to cease and desist from the un- fair labor practices found, and to take certain affirmative action, in- cluding the refunding of dues checked off for Adco and Teamsters Local 810. On July 3,1958, the United States Court of Appeals for the Second Circuit entered its decision 5 denying the Board's petition for enforce- ment pending further consideration of the case by the Board, as directed. In its opinion, the court held that there was "substantial evidence on the record considered as a whole' to support the charges and the Herein referred to as District 65. a Herein referred to as Adco. a Herein referred to as Teamsters Local 810. The Board having been notified by AFL- CIO that it deems the Teamsters' certificate of affiliation revoked by convention action, the identification of this Union is hereby amended. d 117 NLRB 265. 5 258 F. 2d 403. 124 NLRB No. 81. 52554&-60-vol. 124---42