Int'l Longshoremen & Warehousemen's Union

INT'L LONGSHOREMEN & WAREHOUSEMEN'S UNION 813 meter repair employees employed at the Employer's divisions at Miami, Lakeland, Daytona Beach, Eustis, Umatilla, and Mt. Dora, Florida, excluding all meter readers, office clerical employees, sales- men, collectors, guards, chemists, foremen, and all supervisors as defined by the Act. 5. The Employer contends that when it converts from manufac- tured gas to natural gas, significant changes will take place in the size and composition of the physical work force and that an election among its employees at this time is therefore premature. At the time of the hearing, the Employer had an overall complement of 232 employees in physical job classifications. Although its plans are to have 520 employees in such classifications, following the conversion to natural gas, no date has been established for such conversion. In these circumstances, we find that the petition is not premature.'' [Text of Direction of Election omitted from publication.] 7 Sprtngfeld Body & Trailer Co., 112 NLRB 1287. International Longshoremen & Warehousemen 's Union, and Local No. 13, International Longshoremen & Warehousemen's Union and Catalina Island Sightseeing Lines. Case No. 21-CC- 305. September 2, 1959 DECISION AND ORDER On March 9, 1959, Trial Examiner Herman Marx issued his Inter- mediate Report in this case, finding that the Respondents had engaged in and were engaging in unfair labor practices in violation of Section 8(b) (4) (A) of the Act and recommending that they cease and desist therefrom and take certain affirmative action as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the Re- spondents filed exceptions and supporting briefs, each also adopting the exceptions and briefs filed by the other, and the Charging Party filed a brief in support of the Intermediate Report and in answer to certain of the Respondents' exceptions. 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 Bean and Jenkins]. 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 Intermedi- ate Report, 1 the exceptions and briefs, and the entire record in the i The Intermediate Report has been amended, as requested by the Trial Examiner, to correct a typographical error and to show the appearance for Local 13 of George E. Shibley rather than George Shipley. 124 NLRB No. 103. 814 DECISIONS OF NATIONAL LABOR RELATIONS BOARD case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner with the following additions and :modi- fications : 1. The criteria for the assertion of jurisdiction: Catalina Island Sightseeing Lines (herein called CISL) is regulated by the State of California as a public utility, holds an Interstate Commerce Com- mission license of convenience and necessity, and is the only regularly scheduled water carrier transporting passengers and freight between two cities in the State of California. It grosses more than $1,000,000 a year from its passenger services, selling. some $23,000 in tickets out- side the State. It receives $100,000 annually for services handling freight, including United States mail. The Trial Examiner found that the gross revenue meets the annual income criterion prescribed by the Board for its assertion of jurisdic- tion over public utilities,2 and that the Board's legal jurisdiction was established by the out-of-State ticket sales. He regarded the estab- lishment of legal jurisdiction as essential to the assertion of jurisdic- tion. CISL and the Respondents contend that the Board has, in. Siemons Mailing Service 3 and in subsequent cases explaining the new jurisdictional standards, rejected any method for determining juris- diction which requires any case-by-case appraisal of "affecting com- merce." CISL asserts that the Board has jurisdiction here "under the standards established by the Board on October 2,' 1958 (NLRB Re- lease R-576) on the basis that the Charging Party is both a public utility and a transit system with gross business exceeding $250,000.00 per year." The Respondents contend that the Trial Examiner er- roneously asserted jurisdiction because none of the promulgated stand- ards base jurisdiction on $2$,000 worth of out-of-State sales. Both CISL and the Respondents misinterpret the relation between legal jurisdiction and the determination that the Board will exercise its discretion to assert jurisdiction in a matter involving an employer over which it has legal jurisdiction. Implicit in the Board's promulgation of its jurisdictional standards is the recognition that in ordinary circumstances the meeting of a gross dollar volume test will necessarily entail activities "affecting commerce" within the purview of Section 2(7) of the Act. Never- theless, the Board recognizes that the Federal Government is a gov- ernment of limited jurisdiction and that some showing of legal juris-s diction must 'be made in every case brought before its tribunals, be they Federal district courts, courts of appeal, the Supreme Court, or independent administrative agencies. Neither the Guss case,4 nor any 2 Sioux Valley Empire Electric Association, 122 NLRB 92. 8122 NLRB 81 ( Board Member Jenkins concurring, specially). P. S. (fuss, d/b/a Photo Sound Products Manufa@turing Company v . Utah Labor Relations Board, 353 U.S. 1. INT'L LONGSHOREMEN & WAREHOUSEMEN'S UNION 815 other case, has overturned the basic concepts on which our constitu- tion is predicated. It is possible, although highly improbable, that an enterprise meeting the gross dollar standards of the Board would not come within the broad definition of "affecting commerce," even though that term has been judicially determined to indicate an inten- tion on the part of Congress to exercise Federal jurisdiction to the fullest possible extent. For this reason , we agree with the Trial Ex- aminer that the gross dollar volume test, standing alone, is insufficient to confer upon the Board the jurisdiction contemplated by the Act.5 Some proof must be made of legal jurisdiction . That proof has been made here : not only is CISL licensed by the Interstate Commerce Commission under an Act conferring jurisdiction only over operations "in commerce" but some $23 ,000 worth of the carrier's revenue derived from out-of-State sales. As CISL grossed more than $250,000 annually , the Board would exercise its discretion and assert jurisdiction , whether CISL be re- garded as a "public utility" or as a "transit system" or both .' When, as here, legal jurisdiction has been established and some relevant standard for the discretionary assertion of jurisdiction has been met, it is immaterial that jurisdiction might be asserted under one of sev- eral different standards.' As the Respondents had full opportunity to litigate all factual as- pects of the issue as to jurisdiction , the motions for oral argument as to the propriety of inferences from the stipulated facts are hereby denied.' 2. The 8(b) (4) (A) violation : The Trial Examiner found, and we agree, that the Respondents violated 8(b) (4) (A) by establishing pickets at a public dock to induce the employees of independent con- tractors not to perform certain services for their employers with an object of forcing their employers to cease doing business with CISL and to prevent CISL from doing business through and with them. As the conduct was for an object proscribed by Section 8 (b) (4) (A), we deem irrelevant the Respondents ' contentions that the underlying issue is a union's right to picket to protest against an employer's re= fusal to bargain concerning a change in his method of operations which affects the livelihood of its displaced members. It is also ir - relevant that CISL could have performed the "piggy-back" operation 5 We recognize that the Board's "jurisdiction does not obtain merely because a local activity may in some indirect and remote way affect commerce" and that the mere dollar volume of a business does not determine whether its effect on commerce be direct or indirect. See N.L.R.B. v..Shawnee Milling Company, 1184 F. 2d 57, 59 (C.A. 10), quoting at length from N.L.R.B. v. Jones & Laughlin Steel Corporation, 301 U.S. 1, at 37. O For the "transit system" standards, see Charleston Transit Company, 123 NLRB 1296. ° It is possible that CISL also meets the standards for "Links in. Interstate Commerce," set forth in HPO Service, Inc., 122 NLRB 394. 8 See Southwest Mississippi Electric' Power Association, 110 NLRB 1884, 1885, at footnote 3. 816 DECISIONS OF NATIONAL LABOR RELATIONS BOARD itself had it chosen to contract with a sister corporation to supply tugs and barges, continuing in its employ the displaced employees. CISL hired, as it had a right to do, contractors to perform that opera- tion with their own employees. 3. The International's responsibility: The Trial Examiner found the International responsible for the 8 (b) (4) (A) on the basis of a statement made by Moore, its regional director, "within the apparent scope of his authority." We find no merit in the contention that "ap- parent authority" is limited to "represented authority." When, as here, a union representative occupies two roles, it devolves upon him to clarify for other participants which role he chooses to play if he is not acting as a responsible official for his employer, the Interna- tional. 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 Respondents International Longshoremen & Warehousemen's Union, and Local No. 13, Inter- national Longshoremen & Warehousemen's Union, their officers, rep- resentatives, successors, assigns, and agents, shall: 1. Cease and desist from engaging in, or inducing or encouraging any employees of H-10 Water Taxi Company, Ltd., Pacific Motor Trucking Company, or any other employer, other than CISL, to en- gage in a strike or concerted refusal in the course of their employment to use, 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 H-10 Water Taxi Company, Ltd., Paci- fic Motor Trucking Company, or any other employer or person, to cease doing business with Catalina Island Sightseeing Lines. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (a) As hereafter set forth, post copies of the notice attached hereto marked "Appendix." 9 Copies of said notice, to be furnished by the Regional Director for the Twenty-first Region of the Board, shall, after being signed by a duly authorized representative of each of the Respondents, be posted by the said Respondents immediately upon receipt thereof, and maintained by them for a period of 60 con- secutive days thereafter, in conspicuous places at their respective busi- ness offices, including all places where notices to members of the ILWU and Local 13, respectively, are customarily posted. Reason- able steps shall be taken by each Respondent to insure that said notices it posts are not altered, defaced, or covered by any other material. 9In 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." INT'L LONGSHOREMEN & WAREHOUSEMEN'S UNION 817 (b) Forthwith mail copies of the said notice to the said Regional Director, at the Board's Regional Office in Los Angeles, California, after such copies have been signed as provided above, for posting by 11-10 Water Taxi Company, Ltd., Pacific Motor Trucking Company, and Catalina Island Sightseeing Lines, if they so agree, at the respec- tive places where they customarily post notices affecting their respec- tive employees. (c) Notify the said Regional Director for the Twenty-first Region of the Board in writing, within 10 days from the date of this Order, what steps each Respondent has taken to comply with the foregoing recommendations applicable to it. APPENDIX NOTICE TO ALL MEMBERS OF INTERNATIONAL LONGSHOREMEN & "TARE- HOUSEMEN'S UNION, AND LOCAL No. 13, INTERNATIONAL LONGSHORE- MEN & WAREHOUSEMEN'S UNION, AND EMPLOYEES OF H-10 WATER TAXI 'COMPANY, LTD., PACIFIC MOTOR TRUCKING COMPANY, AND CATALINA ISLAND SIGHTSEEING LINES Pursuant to ti Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify you that : WE WILL NOT engage in, or induce or encourage any employees of H-10 Water Company, Ltd., Pacific Motor Trucking Company, or any other employer, other than CISL, to engage in a strike or concerted refusal in the course of their employment to use, trans- port, 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 H-10 Water Taxi Company, Ltd., Pacific Motor Trucking Company, or any other employer or person, to cease doing business with Catalina Island Sightseeing Lines. INTERNATIONAL LONGSHOREMEN & WAREHOUSEMEN'S UNION, Labor Organization. Dated---------------- By------------------------------------- (Representative ) ( Title) LOCAL No. 13, INTERNATIONAL LONGSHORE- MEN & WAREHOUSEMEN'S UNION, 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. 525543-60-vol. 124-53 8 18 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1NTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE On November 4, 1958, Catalina Island Sightseeing Lines filed a charge with the National Labor Relations Board against the Respondents, International Longshore- men & Warehousemen's Union (also called the ILWU herein) and Local 13, Inter- national Longshoremen & Warehousemen's Union (also called Local 13 herein). Based upon the charge, the General Counsel of the National Labor Relations Board issued a complaint on December 2, 1958, alleging that the ILWU and Local 13 had engaged in and were engaging in unfair labor practices in violation of Section 8(b)(4)(A) of the National Labor Relations Act, as amended (61 Stat. 136-163; also described herein as the Act).' Each Respondent has been duly served with a copy of the complaint, and of the charge, and has filed an answer which, in effect, denies the commission of the unfair labor practices alleged in the complaint. Pursuant to notice duly served by the General Counsel upon all other parties, a hearing upon the issues in this proceeding was held before a duly designated Trial Examiner, on January 8 and 9, 1959, at Los Angeles, California. Each of the parties appeared, was represented by counsel, participated in the hearing, and was afforded a full opportunity to be heard, examine and cross-examine witnesses, adduce evidence, file briefs, and submit oral argument. The record made at the hearing includes, by stipulation of the parties, affidavits, testimony, and exhibits in a proceeding for in- junctive relief brought by the General Counsel against the Respondents, under Sec- tion 10(1) of the Act, in the United States District Court for the Southern District of California (Kennedy, Regional Director, etc. v. International Longshoremen & Ware- housemen's Union, et al., Civil No. 1094-58 WM). Each of the parties submitted oral argument upon the evidence at the hearing, and, since its close, has filed a brief, which has been read and considered. Upon the entire record, and from my observation of the witnesses who testified at the hearing in this proceeding, I make the following findings of fact: FINDINGS OF FACT 1. NATURE OF THE BUSINESS OF CATALINA ISLAND SIGHTSEEING LINES; JURISDICTION OF THE BOARD Catalina Island Sightseeing Lines (also called CISL herein) is a California cor- poration and, for a substantial period of years, has been engaged, as a common car- rier, in the business of transporting passengers and freight, by vessel, between Wil- mington, California, and Santa Catalina Island. The carrier operates under a certificate of public necessity and convenience issued by the Interstate Commerce Commission, but is nevertheless subject to regulation by the Public Utilities Commis- sion of California; and has filed its passenger and freight tariffs with the latter agency. There is no question that CISL is a public utility. Wilmington is in the port of Los Angeles area. Santa Catalina is a resort and recreational area. It is located in the Pacific Ocean, off the coast of California, and is a part of that State. The population center of the island is the city of Avalon, Santa Catalina's only incorporated community. In addition to Santa Catalina's resort and recreational facilities, a miscellany of business enterprises is located on the island. These include facilities of two airlines; a radio station; two rock quarries; gas and power utilities; several construction contractors; telephone and telegraph facilities; several salvage and boat repair establishments; a concern engaged in the manufacture of concrete products; and a plastics manufacturing firm. CISL maintains terminal and docking facilities both in Avalon and Wilmington; operates its transportation equipment on fixed schedules; and is the only common water carrier rendering a regularly scheduled passenger and freight service between the two points. Transportation is by steamship and motor cruiser in the spring and ' Section 8(b) (4) (A) forbids labor organizations or their 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 use, manufacture, process, transport, or other- wise handle or work on any goods, articles, materials or commodities or to perform any services, .where. an object thereof is . . . forcing or requiring any employer or self- employed person to join any labor or employer organization or any employer or other person to cease using, selling, handling, transporting or otherwise dealing in the products of any other producer, processor, or manufacturer, or to cease doing business with any other person.", INT'L LONGSHOREMEN & WAREHOUSEMEN'S UNION 819 summer months; the steamer service is eliminated during the winter, and only a motor cruiser service is rendered by the carrier in that season. During the 12-month period ending October 31, 1958, CISL derived a gross revenue in excess of $1,000,000 from its passenger service between Avalon and Wilmington; and more than $100,000 from its business of hauling freight between those points.. The Company's passenger revenue, during the period, included $23,987.08 derived from sales of tickets outside the State of California. On the basis of the record, a finding that the Board has jurisdiction over the sub- ject matter of this proceeding must rest, if at all, on the operations of CISL. The Respondents challenge the Board's jurisdiction, asserting, in substance, that Avalon and Wilmington are both in California; that transportation between them is not em- braced in the definition of "commerce" contained in Section 2(6) of the Act, notwith- standing the fact that the transportation takes place on the ocean; and that the mere fact that some $23,000 of the carrier's revenue was derived, during the -indicated period, from the sale of tickets beyond the borders of California is insufficient to vest the Board with jurisdiction. As the Respondents in effect contend, the act of transporting passengers or freight between Avalon and Wilmington does not, standing alone, constitute interstate com- merce within the meaning of Section 2(6).2 What is more, there is no evidence that the handling or transportation of any goods by CISL has been part of, or related to, any interstate shipment of freight; and the circumstance that there is a miscellany of commercial enterprises on the island contributes nothing to the resolution of the jurisdictional issue, for there is no substantial evidence that any of such enterprises have been, or are, engaged in interstate commerce, or even, for that matter, that CISL has ever done business with any of them. In short, in the state of the record, whatever moral convictions one may have about the matter, it would be no more than a guess to say that CISL's handling and transportation of freight has either con- stituted or affected interstate commerce within the purview of the Act .3 However, I do not agree with the Respondent's view of the out-of-State ticket sales. No doubt the record is barren of details of the circumstances in which these tickets were sold, and of the means by which the proceeds of the transactions reached CISL; but there is, nevertheless, adequate warrant in the record for an inference that the proceeds were remitted in one form or another to CISL in California from points beyond the State's borders; and that the purchases of the tickets in question were incident and related to interstate journeys made by those who bought the tickets. Accordingly, I find that at the time relevant to the issues in this proceeding the operations of CISL affected interstate commerce within the meaning of the Act, and that the Board has jurisdiction over the subject matter of this proceeding.4 2 Section 2(6) provides that the "term `commerce' means trade, traffic, commerce, trans- portation, or communication among the several States, or between the District of Columbia or any Territory of the United States and any State or other Territory, or be- tween any foreign country and any State, Territory, or the District of Columbia, or within the District of Columbia or any Territory, or between points in the same State but through any other State or any Territory or the District of Columbia or any foreign country." 3 CISL's gross revenue meets the annual income criterion prescribed by the Board for its assertion of jurisdiction over public utilities. Sioux Valley Empire Electric Associa- tion, 122 NLRB 92. In the cited case, the Board observed that there is "no necessity in the normal public utility case to prove the existence of a flow of commerce across State lines in determining whether or not to assert jurisdiction over such an enterprise." This observation does not alter my conclusion that the evidence here is insufficient to warrant the assertion of jurisdiction on the basis of CISL's freight operations, for I do not read the Sioux Valley decision as meaning that there is no necessity in a "public utility case" for evidence that the operations of the employer involved affect interstate commerce within the meaning of the Act. 4 "The language of the National Labor Relations Act seems to make it plain that Congress has set no restrictions upon the jurisdiction of the Board to be determined or fixed exclusively by reference to the volume of interstate commerce involved. . . . Ex- amining the Act in the light of its purpose and of the circumstances in which it must be applied we can perceive no basis for inferring any intention of Congress to make the operation of the Act depend on any particular volume of commerce affected more than that to which courts would apply the maxim de minimis." N.L.R.B. v. Fainblatt, 306 U.S. 601, 606-607. The maxim is inapplicable here. See N.L.R.B. v. Harvey Stoller, d/b/a Richland Laundry if Dry Cleaners Union Local 197, 207 F. 2d 305 (C.A. 9), cert. denied 347 U.S. 919. 820 DECISIONS OF NATIONAL LABOR RELATIONS BOARD II. THE LABOR ORGANIZATIONS INVOLVED Local 13 and ILWU are labor organizations within the meaning of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Prefatory findings CISL has conducted its passenger and freight business in Wilmington for a sub- stantial number of years on premises known as the Catalina Terminal. The facility, which is the Wilmington point of arrival and departure of the carrier's vessels, is located on the Wilmington waterfront at berths 184 and 185. Both the terminal and the berths are the property of the City of Los Angeles, and are used by the carrier under permit issued by that municipality's Board of Harbor Com- missioners. The carrier owns pier and docking facilities in Avalon and operates a warehouse there. Prior to October 31, 1958, varying with the seasonal resort requirements of Santa Catalina, CISL employed from 10 to 20 individuals in its office at the Catalina Terminal; between 10 and 100 persons aboard its vessels; and a minimum of 14 longshoremen. Half the number of longshoremen loaded and unloaded freight at CISL's Avalon facilities; and the remainder performed such work at berths 184 and 185 in Wilmington. For a considerable period prior to October 31, 1958, the longshoremen had been subject to the terms of successive collective-bargaining agreements between CISL and Local 13. The last such contract became effective on November 1, 1956, and provided that it was to remain in effect until October 31, 1958, and to "be considered as renewed from year to year thereafter" unless either party served the other with a prescribed "written notice of its desire to modify or terminate" the agreement. Some years ago, in the interest of economy, CISL began to explore the possibility of using a so-called "roll-on, roll-off" or "piggy-back" operation to haul freight between Wilmington and Avalon. Basically, under the contemplated operation, a trailer would be loaded with freight at a given freight-collecting point; and there- after, by motorized means, moved to a barge and rolled aboard that equipment; and then the barge would be towed to the prescribed terminal point where the trailer would be rolled off the barge and moved to a warehouse. During the early or middle part of 1957, CISL decided to adopt such a "piggy-back" method, and to that end C. H. Nichols, manager of CISL, began negotiations with Ernest A. Judd, president of a barge and towing firm named Pacific Towboat & Salvage Company (also called Pacific Towboat herein) for the supply of barge and towing services by the latter company. That concern, it may be noted at this point, employs about 75 individuals and has collective-bargaining agreements with a number of labor organizations. In November 1957, as further implementation of CISL's plan, Nichols met with representatives of a trucking firm, Pacific Motor Trucking Company (also called PMT herein), and informed the latter that CISL "wished to contract with a trucking company to receive freight shipped through CISL at the trucking company's ware- house, load it on trailers which the freight hauler would drive to the berth occupied by Pacific Towboat . . . in Long Beach Harbor, and place aboard the towboat company's barge for shipment to Avalon." PMT's representatives expressed interest in furnishing the required services, and stated that they would study the costs in- volved. Toward the end of January 1958, PMT submitted a memorandum to CISL, setting forth the rates it proposed to charge for the services sought. It is apparent from the record that PMT is an enterprise of considerable propor- tions, with terminal and other facilities in a number of communities, including Wilmington. The motor carrier maintains some 50 trailers, 15 tractors, and about a dozen trucks in the Wilmington area. Its Wilmington drivers report to a truck terminal maintained by the carrier in that community, and are normally given their assignments by a dispatcher stationed in the terminal. PMT's operations in the Wilmington area are under the supervision of a superintendent named Whelan, whose headquarters are at the truck terminal. About a half mile from that facility, and approximately a half city block from CISL's Catalina Terminal, PMT maintains a warehouse known as the Consolidated Freight Station. Adjacent thereto is a parking lot which is used by the motor carrier as an assembly area for its trailers. On August 19, 1958, CISL wrote to Local 13 stating, in substance, that it was terminating its contract wtih the union as of October 31, 1958. Upon receipt of the letter, Gordon Giblin, president of Local 13, telephoned Nichols and inquired whether CISL "actually" intended to terminate the agreement or whether it had sent the letter merely to prevent automatic renewal of the contract. Nichols replied that the company desired to negotiate a new agreement and that the object of the termination notice was to prevent automatic renewal of the existing contract. Giblin INT'L LONGSHOREMEN & WAREHOUSEMEN'S UNION 821 then stated that the union would be available for negotiations at the company's convenience. So far as the record shows, apart from giving PMT's rate proposals some study, CISL did nothing to further its "piggy-back" plan from the time it received the proposals in January 1958 until some point in September 1958.5 During the latter month, Nichols and Lewis Harland, an official of CISL, met with Judd "to discuss consummation of an agreement," and the upshot of the discussions was that CISL and Pacific Towboat reached an understanding as to the services to be rendered by Pacific Towboat, the rates it was to charge, and the facilities to be used. In Sep- tember, also, Nichols communicated with PMT, and a representative of the trucking company expressed continuing interest in CISL's project, but stated that there might be some revision of its rate quotations because of changes in labor costs. PMT submitted "final" rate proposals to CISL shortly thereafter. On October 3, 1958, CISL informed Pacific Towboat and PMT that it "was arranging to have the agree- ments drafted by [its] attorneys." Early in October, also, Nichols telephoned Giblin and arranged for a meeting between representatives of CISL and a committee representing Local 13. The meeting was held on October 8, 1958. Harland, who attended for the company, explained the proposed "piggy-back" operation, stating, in that connection, that since, under the contemplated procedure, PMT would receive the freight at its Consolidated Freight Station and load it on trailers which would then be driven to and aboard a Pacific Towboat barge, CISL would not require the services of longshoremen as in the past. The union's representatives had not been previously informed of the Company's plan, and Giblin protested that before making any changes in its operations, CISL should have discussed with the union the effect of such changes upon the jobs of the Company's longshoremen. Giblin also said that the union had had wide experience in negotiating with employers who desired to effect operational changes, and had been able to suggest methods of achieving de- sirable results with a minimum of adverse effects upon employees. There was some additional discussion, but the only other aspects of the meeting that need be noted are that Harland stated that under its "piggy-back" plan, CISL would not require the services of longshoremen for the handling of freight because the contemplated method "was to be a permanent year-round operation"; and that a member of the union committee said at one point or another that "the longshoremen had jurisdiction over the loading of freight regardless of method." On October 15, 1958, Judd met at his office with representatives of a number of labor organizations. Those in attendance included Giblin and a committee repre- senting Local 13; Forrest T. Moore, a member of Local 13, and of its bargaining committee, as well as regional director of the ILWU's operational region in Southern California; and three business agents respectively representing three unions with whom Pacific Towboat had collective bargaining relations. The three organizations are identified in the record as the Inland Boatmen's Union, the Operating Engineers Union, and the Pile Butts Union. One or another of the representatives of Local 13 stated at the meeting that in the view of his union CISL would not be giving up "substantial control over the freight operation" in its contemplated arrangement with Pacific Towboat, and that CISL "would be using [Judd] as a part of a run-away shop scheme." The business agents made statements to the effect that "they were not interested in having . . . members [of their unions] perform the CISL long- shoring work which had for many years been covered by Local 13 agreements." William Lawrence, a member of Local 13's delegation, asserted that the longeshore- men "would stop [Pacific Towboat's] entire operations" if it "made any contract with CISL for the roll-on, roll-off operations to Santa Catalina Island"; and the business representative of the Inland Boatmen's Union followed Lawrence's remarks with a statement that his organization "would support the longshoremen's picket lines." Judd, whose firm was then engaged in performing various contracts, replied that he "could not afford to get in the middle and would not take the CISL contract unless [he] had the Longshoremen's blessing." 6 5 There is some implication by Nichols in his affidavit that the plan was held in abey- ance during that period. According to Nichols, the plan could not be placed in operation until expiration of the agreement between CISL and Local 13 because the contract "con- tained provisions making it impossible to contract out the handling and hauling of freight." It is unnecessary to pass on the accuracy of this construction of the contract. 9 Findings as to the meeting in Judd's office are a composite of applicable portions of the respective affidavits of Giblin and Judd. Although the affidavits give somewhat dif- ferent versions of what was said, neither specifically disputes any part of the other's version. 822 DECISIONS OF NATIONAL LABOR RELATIONS BOARD After the union representatives left his office, Judd telephoned Nichols and gave the latter some account of the meeting, stating, in substance, that he had been told at the meeting that if Pacific Towboat went through with its contemplated "deal" with CISL, Pacific Towboat's berth would be picketed; that Pacific Towboat could not afford the loss of some contracts it held; and that, therefore, he could not go forward with the proposed agreement with CISL. Later that day, a group of representatives of Local 13, including Giblin, called on Nichols at his office and gave the latter an account of what had been said to Judd on the subject of picketing Pacific Towboat's berth if that company went through with its arrangements with CISL; and told Nichols that Pacific Towboat would withdraw from the arrangements. During the course of the meeting, the representatives of Local 13, through one or another of the group, told Nichols that CISL would not be able to go forward with its "planned operation because it left the longshoremen out"; that the Company "had made a mistake in not dealing with them to handle the roll-on, roll-off operations"; that under the "piggy-back" plan, CISL would continue to be in effective control of the services performed; and that the proposed arrangements amounted to "a run-away shop," and CISL "could not get away with it." Nichols remarked that under the contemplated "piggy-back" method, CISL would have no need for the services of longshoremen. Soon after Judd informed Nichols of his change of plans, CISL began to cast about for a replacement for Pacific Towboat in the contemplated "piggyback" service, The replacement would have to be found within a period of about 2 weeks if the service was to be inaugurated on November 1, 1958, as CISL had planned. In the course of the search, Nichols telephoned Bernard Caughlin, general manager Qf the Los Angeles Harbor Department; informed the latter of Judd's decision; and asked him whether he knew of another towboat and barge operator with suitable berthing facilities. Caughlin replied in the negative, and, then, Nichols and Caughlin discussed the availability of a Los Angeles Harbor berth with a sufficiently low bulkhead to permit trailers to be rolled on and off a barge by means of a ramp affixed to the bow of the barge. Either Caughlin or Nichols expressed the thought that a location in the vicinity of berth 192 or berth 193 might be suitable. (The location is actually berth 193-A, although it is variously referred to in the record as berth 192 or berth 193.) The berthing facility mentioned is located about a half mile from Catalina Terminal. At one point or another after their conversation, Caughlin and Nichols inspected berth 193-A; Nichols stated that it might be suitable; and Caughlin told Nichols to make a written request for temporary assignment of the site by the Los Angeles Board of Harbor Commissioners, which controls and administers all berths in Los Angeles Harbor. A temporary berth assignment in Los Angeles Harbor, it may be noted, is revocable at any time and vests no exclusive right of use in the assignee. CISL's efforts to find a replacement for Pacific Towboat culminated in negotia- tions, begun on October 16, 1958, between Nichols and Frank C. Seehorn, president of H-10 Water Taxi Company, Ltd. (also referred to below as ,H-10), for the provision by that concern of the towing and barge services required by CISL for the contemplated "piggy-back" operations. H-10 has docking facilities and a regular place of business at berth 89 in Los Angeles Harbor, but that berth was not suitable for such operations; nor did H-10 have a barge with a bow ramp that the "piggy- back" service would require. During their initial discussion, Nichols informed Seehorn of the availability of berth 193-A, and Seehorn, in connection with the rates he quoted Nichols for towing services, stated that H-10 would charge for the use of the barge whatever price it had to pay to charter one. On or about October 20, 1958, Seehorn informed Nichols that a barge that H-10 had contemplated chartering from another firm for the "piggy-back" service would not be definitely available before November 20. Stating that he had previously used a barge owned by Wilmington Transportation Company (which, like CISL, is a "wholly owned" subsidiary of a firm named Santa Catalina Island Company), Seehorn made the suggestion that Wilmington Transportation Company "might be persuaded to install a bow ramp" on the barge. Nichols "offered to speak to Captain Boyd of Wilmington Transportation Company to see if Boyd would be willing to install such a ramp and make the barge available to Seehorn." (The record does not otherwise identify Boyd. Presumably, he is an official of Wilmington Trans- portation Company.) Nichols spoke to Boyd within the next few days, and the latter agreed to have the bow ramp installed and to make the barge thus converted available to Seehorn for a charter rate of $500 per month. Shortly thereafter, Nichols informed Seehorn of Boyd's commitment, and Seehorn replied that Boyd's terms were agreeable to him. Nichols, accompanied by two engineers on the staff of the port of Los Angeles, visited berth 193-A again on or about October 21, 1958. The engineers determined INT'L LONGSHOREMEN & WAREHOUSEMEN 'S UNION 823 that the water at the berth was too shallow for ,the .projected "piggy-back" service, but stated that, asa "temporary expedient," the berth could be made usable by the construction of a wooden "bumper" to keep a barge berthing there several feet from the bulkhead. The engineers also said that the port authorities could not have the work done before November 3, but that Nichols could attend to the construction arrangements himself if he so desired. The work was subsequently performed by a contractor hired by CISL. The latter paid the contractor $214 for the construction.7 On October 24, 1958, CISL issued a public notice stating, among other things, that, effective November 1, 1958, a barge "handling" freight would operate between Wilmington and Avalon each Tuesday and Friday, and that freight for the "barge schedule" would be received at the Consolidated Freight Station, in Wilmington, during a specified period each Monday and Thursday. Copies of the notice were posted at the Consolidated Freight Station and Catalina Terminal and sent to ship- pers who normally use CISL's services. By agreement dated October 30, 1958, Wilmington Transportation Company chartered a barge to H-10 at the rate previously specified by Boyd. On that date, also, H-10 executed a written acceptance of the provisions of a letter, previously signed and submitted to it by CISL, setting forth the terms governing the services and facilities to be furnished by H-10 to CISL, and prescribing the rates of payment therefor. In accordance with Caughlin's suggestion to Nichols some 2 weeks earlier, CISL submitted a written request, by letter dated October 30, 1958, to the Los Angeles Harbor Department for temporary assignment of berth 193-A and specified "land area adjacent thereto." Either on the same date, or on the following day, Seehorn called on Caughlin and requested a temporary assignment of berth 193-A to H-10. Caughlin replied that the request should be submitted by letter; that the assignment would be made; and that Nichols had previously informed him that the berth would be used in the projected "piggy-back" operations either by H-10 or another towboat operator. Seehorn sent the suggested letter on November 8, having delayed doing so because his wife was ill.8 On October 31, 1958, PMT entered into a written agreement with CISL, embody- ing -the terms applicable to PMT's participation in the "piggy-back" service. Some provisions of various sections of the contract may be noted here for future -refer- ence. Under the respectively applicable terms of sections 1, 2, and 4 of the instru- ment, PMT undertakes to provide CISL with a specified amount of space at PMI's Consolidated Freight Station, in Wilmington, for handling and storing freight; to lease available trailers to CISL "when and as ordered" by it; and ",to furnish neces- sary tractors with drivers" to haul the trailers "from the Consolidated Freight Station . .. to barge at berth 192" (-actually berth 193-A). Under section 3, PMT agrees, among other things, "as CCISL'sl agent, to receive, transfer, load and unload" freight "into, on or from the various types of trailers used"; and "as part thereof to see that all handling is completed so that said freight is properly loaded and trans- ported by trailer between Consolidated Freight Station and barge, or by other car- rier to the consignee, as the shipment may require." Section 5 provides that "in connection with any services to bperformed under this agreement PMT will be acting as an independent contractor, except as indicated in section 3"; and that "ilelmployees of PMT will not be employees of Catalina Island Sightseeing Lines." Finally, the agreement specifies that it may be terminated by either party by giving the other 90 days' written notice of intention to do so. With the expiration of its collective-bargaining agreement with Local 13 on October 31, 1958, CISL discharged the longshoremen in its employ, and, on the following day a number of these former employees began to picket in front of the Catalina Terminal, bearing signs with the legend: "Locked out, I.L.W.U. Local 13." The picketing at the terminal has continued since. There can be no doubt, nor is there any dispute, that Local 13 has sponsored the picketing. 7'CISL also paid a contractor $8,000 for the construction of a concrete ramp on Santa Catalina Island for use as a barge docking facility in the projected "piggy-back" service. This work was begun after November 3, 1958, the date of the alleged unfair labor prac- tices, although originally scheduled to begin on October 23, 1958. a In passing, it may be noted that neither letter complies with an applicable regulation of the Board of Harbor Commissioners, which requires that applications for berth assign- ments, whether temporary or not, be made "upon forms provided by the Board." (See Section 0, Tariff No. 3, issued by Board of Harbor Commissioners, port of Los Angeles, and quoted in an attachment to General Counsel's Exhibit No. 2.) H-10 executed and submitted an application on the prescribed form some days after it sent the letter of November 8. 824 DECISIONS OF NATIONAL LABOR RELATIONS BOARD About the time the picketing began, Local 13 sent a form letter to many residents of Avalon, addressing it to "Citizens of Avalon." Among other things, the letter noted that there had been some editorial comment in an island newspaper regarding the "piggy-back" plan; and proceeded to inform the "Citizens" of the union's side of its controversy with CISL, asserting in that connection, among other things, that Local 13 had attempted to negotiate with CISL regarding the plan, but that the Company had taken the position that it "had nothing to talk to [Local 13] about"; and that "when the Company diabolically creates a situation which has no other recourse than to hurt you, the citizens of Catalina Island, in spite of every effort of the Union to work out any and all problems, absolutely no realistic concern has been shown by the Company for the welfare of the Island Community." Because of the letter, Nichols made arrangements with Giblin for a meeting, which was held on November 2, 1958, and was attended by several union representatives, including Giblin and Moore, and by Harland and Nichols, on behalf of CISL. At the meet- ing, Moore stated that the entire dispute between Local 13 and CISL could be settled if the latter would reemploy the longshoremen, resume its former freight- hauling methods, and then negotiate with Local 13 regarding operational changes. The Company declined to accept the proposal. At one point or another, Harland stated that if any of the residents of Avalon preferred to ship their freight, between barge trips, by the method antedating the "piggy-back" service, the Company would be willing to handle such freight in that fashion and would obtain the needed long- shore help from Local 13; and that such service would be supplied in addition to the "piggy-back" operations. Moore said that the person who conceived that idea was an "imbecile," and that CISL would not be allowed to get away with its pro- posed plan. During the course of the meeting, there was some exploration of the possibility of employing some longshoremen in the "piggy-back" service. From an affidavit by Giblin in evidence, it would appear that he broached the subject, and that this led Harland to ask whether Local 13 "had members capable of backing trailers aboard barges." Giblin gave an affirmative reply, and Harland then asked whether Local 13 "would consider the use of its members" in the "piggy-back" service "upon the basis of call-in pay for a minimum of 4 hours." Giblin stated that "this could be a subject of negotiation." The record reflects no further discussion of the subject, and it is evident that nothing came of the meeting.9 Toward the end of October 1958, freight awaiting shipment at Catalina Terminal was, by arrangement between CISL and PMT, loaded on vans and moved by em- ployees of PMT to the parking lot adjacent to the Consolidated Freight Station. CISL ceased accepting freight for shipment at the Catalina Terminal as of Satur- day, November 1, 1958. On that date, also, CISL posted a sign at Catalina Ter- minal to the effect that shippers should take their freight to the Consolidated Freight Station; and transferred two of its employees, together with their working equip- ment, from the Catalina Terminal to the Consolidated Freight Station. One of the employees, J. H. Winters, bears the title of freight agent (and is also termed a ship- ping clerk in the record), and the other, George A. Wood, who is no longer in CISL's employ, was classified as a freight clerk and worked under Winters' direction. At the Catalina Terminal, the two employees' duties, broadly stated, had been to receive freight; bill and collect charges for it; and prepare manifests. They were not authorized to receive shipments, and received none, at their new location, but otherwise, while stationed there, their duties were the same as at Catalina Terminal. At about 9 a.m. on November 3, 1958, a truckdriver named Cox, in the employ of PMT,10 upon instructions of Superintendent Whelan, his superior, coupled one of PMT's tractors to a trailer, which PMT had leased to CISL for use in the "piggy-back" service, and which was loaded with freight awaiting shipment to Santa Catalina Island; and drove the equipment to the area adjacent to berth 193-A for the purpose of loading the trailer on the barge that H-10 had chartered for the "piggy-back" service. Whelan had previously been informed that the barge would be at the 0 Findings regarding statements made at this and other meetings between Local 13 and CTSL, described herein, are a composite of applicable portions of affidavits by Giblin and Nichols. Neither affidavit directly contradicts the other with respect to anything said at any of the meetings, and whatever differences there are between the two versions of the several meetings do not materially affect the results reached below. 10 Cox is described in the record as a "working foreman" and, as he testified, does "everything required down there" (PMT's Wilmington truck terminal). No claim appears to be advanced that Cox is a supervisor within the meaning of the Act, and, indeed, there is no substantial evidence to support a finding that he had such a status at the time in question. . INT'L LONGSHOREMEN & WAREHOUSEMEN'S UNION 825 berth at 9 a.m. that day. At the time of Cox's arrival in the vicinity of the berth, the barge and an attending tug were in the water near berth 193-A. Several em- ployees of H-10, including two deckhands, were then on duty aboard the vessels. At the time, there were three pickets in the land area adjacent to the berth. Each had been a longshoreman in the employ of CISL, and each wore an armband read- ing "Picket, I.L.W.U. No. 13." Among others present in the vicinity at the time were Whelan, Seehorn, who was ashore to serve as "beachmaster" in docking the barge; Nichols, Moore, Giblin, and two representatives of a Teamsters Union local which represents PMT's truckdrivers, including Cox. There were no nonsuper- visory employees of CISL in the area. When the equipment driven by Cox appeared in the vicinity of the berth, two of the pickets began carrying signs reading "Locked Out, I.L.W.U. Local 13." Cox parked the tractor and trailer nearby, and told Whelan that he would "not be able to drive through the picket line." When this took place, the barge had not yet come to rest in the required position at the berth, and Whelan instructed Cox to "attempt to back the trailer" aboard the barge when the vessel was placed in posi- tion, and in the event "the picket line prevented him from doing so . to return the equipment to the warehouse." Cox waited some minutes while H-10's em- ployees were maneuvering the barge into position and lowering the barge's bow ramp, and while this was going on, the pickets bearing the signs were walking back and forth in front of the bulkhead, between it and the place where the tractor and trailer were parked. As the bow ramp was lowered, the pickets were some 30 feet from the point where H-10's deckhands were performing their work on the barge, and the printed material on the picket signs was clearly legible from the deck- hands' station. When the barge was in position, Whelan directed Cox to back the trailer aboard the vessel. The driver undertook to do so, but stopped the equip- ment a few feet from the pickets who were then walking to and fro in the path in which the trailer would have to be driven to be backed aboard the barge. Cox -dismounted and a group formed. Those assembled included one or both of the representatives of the Teamsters local, the pickets, Nichols, Moore, Giblin, Cox, and two PMT supervisors respectively named O'Connor and Edwards. Moore told Cox that the ILWU "was not going to permit this operation to go through, that it was their work, and that they were going to place a picket line at the PMT ware- house the next morning." Directing his remarks "particularly" to O'Connor, Moore also stated that "this is nothing more than a runaway shop and that they ought to know that they can't get away with it." 11 Whelan then instructed Cox to return "to the warehouse" with the tractor and trailer, and Cox complied. After Cox's departure, Edwards, who is district manager of PMT's operations in the Los Angeles area, asked Moore "what the Longshore people wanted, what the thing is all about," and Moore replied that they "wanted to negotiate" with CISL. Edwards then inquired what it would "take to get this moving," and Moore answered that he "wanted his people to place a trailer on the barge and tie it down." The picketing led CISL to conclude that it would be futile to attempt any further trailer loadings at the berth, and no such effort was made until some point after December 16, 1958, the date the United States District Court granted the relief sought in the proceeding mentioned earlier.12 Since November 4, 1958, as a result of an "embargo" imposed by CISL, no freight has been accepted at Consolidated Freight Station for shipment to Santa Catalina Island. Freight received prior to the "embargo" has been hauled to an airport and shipped by air to Santa Catalina. In connection with such shipments, Winters followed the procedure of telephoning PMT's truck terminal and requesting someone there to send a driver and hauling equipment to the Consolidated Freight Station. Upon arrival of the driver, Winters would give him the applicable bill of lading, and "[c]onfirm the van to be moved, and where it was to be moved to." This information, it may be noted, was in the bill of lading anyway. CISL no longer stations any employees at the Consolidated Freight Station, having transferred the two clerks, together with their equipment and records, back to the Catalina Terminal on December 14, 1958. The remarks Moore made in the area of the berth, as nuote above, are taken from Nichols' affidavit. Although Moore testified, it is undisputed that he made the statements imputed to him by Nichols. "There is evidence to the effect that on some half dozen occasions after the entry of the injunction, PMT, at CISL's behest, hauled freight to berth 193-A ; and that in at least some of these instances, the freight was put aboard a barge there (presumably the one chartered by H-10, although that does not clearly appear). This evidence does not materially affect the issues. 826 DECISIONS OF NATIONAL LABOR RELATIONS BOARD B. Discussion of the issues and concluding findings From the findings made above, it is clear that in October and November 1958, Local 13 entertained a grievance against CISL because of the latter's adoption of the "piggy-back" plan, without prior bargaining with the union, and that, as a con- sequence, the labor organization, with a view to elimination or modification of the plan, and to consequent preservation of job opportunities for its members, undertook to exert economic pressure upon CISL by means of the picketing of the Catalina Terminal and of berth 193-A. Parenthetically, it may be observed that no claim is made in this proceeding that the picketing of Catalina Terminal is unlawful; nor is a determination whether CISL violated the Act, as a result of a refusal to bargain with Local 13, within the boundaries of the issues. What is at issue is whether the picketing at berth 193-A offended Section 8(b) (4) (A) of the Act, and whether responsibility for any such violation, if it occurred, is imputable to the ILWU, as well as to Local 13. There is no room for doubt that an aim of the picketing was to induce a PMT employee, Cox, not to perform the work for which his employer had sent him to berth 193-A. What is more, there is good reason to conclude that H-10's employees in the vicinity of the berth on the morning of November 3 were also targets of the picketing. For one thing, the pickets' armbands and signs contained no reference to CISL or its employees (or to any other employer or employees, for that matter), and this circumstance, coupled with the fact that CISL had no employees at the berth (apart from "management officials" who, it is evident, came to the site to observe events), points to an intention to direct the implied appeal of the picketing to all employees whose work involved the use of the berth at the time in question.13 For another matter, the use of a towboat and barge was an integral feature of the "piggy-back" service, and it is evident that Local 13 was as opposed to that aspect of the plan as to any other. This is made clear by the threats made to Judd little more than 2 weeks prior to the picketing at berth 193-A. It would be naive to sup- pose that the union was any less hostile to H-10's participation in the "piggy-back" service than it had been to Pacific Towboat's plan to join in the operation. Signifi- cantly enough, the activities of the pickets and Moore at berth 193-A were of a piece with those with which Local 13 had threatened Judd's company. The sum of the matter is that at least during the period that the pickets walked back and forth carrying signs in front of the bulkhead, the picketing was directed at Cox and the employees of H-10 aboard the barge and tug; that during that period such towboat employees and Cox were contemporaneously engaged in tasks directed to the end of placing the trailer aboard the barge so that the freight on the trailer could be transported to Santa Catalina Island; and that the picketing constituted an effort to "induce or encourage" Cox and employees of H-10 to engage in a "concerted refusal in the course of their employment" to perform tasks required of them by their respective employers for the "piggy-back" service. The Respondents, however, would place the picketing in question beyond the reach of Section 8(b)(4)(A), asserting, in substance, that berth 193-A was "a place of business" of CISL, and, thus, in connection with Local 13's dispute with CISL, a permissible situs for picketing by the union; that participation by H-10 and PMT in the "piggy-back" service was a permissible target of the picketing because they were CISL's "agents" in operation; 14 that the picketing was lawful because H-10 and PMT were engaged "in an integrated single business operation with CISL"; that the latter launched the "piggy-back" program as a "strategic" device to give it an advantage over Local 13 in bargaining negotiations with the union; and that because H-10 and PMT were "allied" with CISL in such a project, they have no standing as "neutral" employers entitled to the protection of Section 8(b)(4)(A). These posi- tions, in my judgment, misconceive the reach and direction of the evidence, and some, at least, rest on plainly inaccurate premises. One such inaccuracy, advanced in Local 13's brief as support for the Respondents' position that CISL had "a place of business" at berth 193-A, is a claim that CISL had "effective control of the berth . . . [and] barge." The alleged "place of busi- ness" consists of a bulkhead and an adjacent open land area, and is owned by the City of Los Angeles, and controlled and administered by a municipal agency, the vV'See Retail Fruit dt Vegetable Clerks Union, Local 1017 , et at., 116 NLRB 856, 858, enfd. 249 F. 2d 591 (C.A. 9) : Crump, Incorporated, 112 NLRB 311, 312. 14 There appears to be somewhat less explication in the Respondents' briefs of the claim that H-10 was an agent in the "piggy-hack" service than the contention that PMT held such a status. The net effect of much of the argument relating to H-10 would appear to be that that firm was CISL's agent in the operation. INT'L LONGSHOREMEN & WAREHOUSEMEN'S UNION 827 Los Angeles Board of Harbor Commissioners. Whatever permission to use the facility was in existence on November 3 consisted of an oral assurance given a few days earlier to Seehorn by Caughlin that a temporary assignment of the site would be issued to H-10. To be sure, Nichols had discussed an assignment of that type with Caughlin, and had applied to the latter for its issuance, but it is undisputed that in the course of the discussions leading to the application, Nichols told the public official that "the berth assignment was desired for the towboat operator who would succeed Judd." In the context of events, I think that the record fairly war- rants an inference that when Caughlin gave Seehorn the oral assurance that a tem- porary assignment would be issued to H-10, the public official understood that Nichols' letter of October 30, applying for a temporary assignment of berth 193-A, had reference to the permission that H-10 was seeking.15 Significantly, also, on December 5, 1958, the Board of Harbor Commissioners billed H-10 for the use of the berth in November 1958. The fact that the public agency looked to H-10, and not to CISL, for payment bolsters the conclusion that the permission to use the berth ran to H-10 rather than to CISL. In any case, whoever held a temporary assignment of the berth on November 3, what the assignee had was only a privilege, not exclusive in character, and revocable at any time at the will of the Board of Harbor Commissioners, to use a public docking facility for the sole "purpose of loading and unloading." Bearing that in mind, even if it be assumed that CISL had a temporary assignment of berth 193-A, I think that it stretches the normal meaning of language considerably to say either that CISL had "effective control of the berth" or that the public facility was "a place of business" of the company. I hold that CISL had neither a temporary assignment of the dock nor "a place of business" there,ls but if one wishes to induge a contrary belief, it is abundantly clear that there is at least equal warrant for a conclusion that the berth was "a place of business" of H-10 as well. In any case, if it be assumed that H-10 and PMT were "neutral" employers, the picketing directed at Cox and the employees of H-10 cannot be justi- fied on the basis of any claim that berth 193-A was "a place of business" of CISL, or that the company had a possessory or custodial interest in the trailer or the freight aboard the vehicle.17 The assertion that CISL had "effective control" over the barge is also inaccurate, for the basic fact is that the vessel was chartered to H-10, and not to CISL; and that during the period that the contract of charter was in effect (as it indisputably was on November 3), the right to possess , occupy, and use the barge was vested in H-10, and not do CISL. 18 In the face of the charter terms, and of the legal effect 11 This is borne out by the undisputed evidence that on the occasion on which Caughlin informed Seehorn that a temporary assignment would be issued to 11-10, Caughlin stated that Nichols had told 'him that berth 193-A "was to be used in the CISL roll-on, roll-off operation by the towboat operator who would be either Garvin [a towing firm] or H-10." (See affidavit by Seehorn in evidence as General Counsel's Exhibit No. 3.) 18 That conclusion is unaffected by the fact that CISL spent $214 for the construction of it "bumper" on the bulkhead. With the withdrawal of Pacific Towboat, under pressure by Local 13 and others, from its planned participation in the "piggy-back" service, CISL had only about 2 weeks in which to find a suitable replacement for Pacific Towboat by November 1, 1958, CISL's target date for the start of the "piggy-back" service. I think it apparent that CISL was driven to some improvisation by the success of the threats made to Judd, and that the construction of the "bumper," at the suggestion, and with the permission, of the governmental authority concerned, was a "temporary expedient," in effect thrust upon CISL by the successful pressure brought to bear by Local 13 and others on Judd. Be that as it may, construction of the "bumper" did not give CISL "effective control" over the berth, nor did the work create "a place of business" there for the company. 17 Chauffeurs, Teamsters, Warehousemen & Helpers (Hoosier Petroleum Co.) Local Union No. 135, 106 NLRB 629, enfd. 212 F. 2d 216 (C.A. 7) ; Retail Fruit & Vegetable Clerics' Union, supra; Crunhp, Inc., supra; Local 175, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (It. 0. Wets Transporta- tion.), 117 NLRB 1666. 18 In passing, it may be noted that neither the terms of charter nor those of the agree- ment between II-10 and CISL limit the use of the barge by H-10 to the "piggy-back" service. In fact, the charter makes no reference to the service, nor does the contract between 1-1-10 and CISL specifically identify the barge to be used by H-10. For all that appears in either agreement, there is nothing to preclude H-10 from using the chartered barge for some purpose other than the "piggy-back" service, nor to prevent it from employ- ing another barge in the project. It is also noteworthy that the agreement between 828 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that must be given to them, I think it immaterial that Wilmington Transportation Company and CISL are subsidiaries of a common corporate parent; that Nichols undertook to ask a representative of Wilmington Transportation Company whether it would be willing to install a bow ramp on the barge and to make it available to H-10; that the barge owner installed the bow ramp; 19 and that the monthly sum CISL agreed to pay H-10 for the use of a barge in the "piggy-back" service (a fee not to be confused with H-10's towing charges) was the equivalent of the monthly charter rate payable by H-10 to Wilmington Transportation Company. With respect to the claim that H-10 and PMT were "agents" of CISL, a basic statement of what the concept of "agency" means may prove useful as a guide to decision. "Agency," a widely accepted definition holds, "is the fiduciary relation which results from the manifestation of consent by one person to another that the other shall on his behalf and subject to his control, and consent by the other so to act" (Sec. l(1), Restatement Agency 2d). The primary test of the existence of the relation is the right of control by the principal. These fundamentals are the law of California, and govern the relationship between H-10 and CISL, and between the latter and PMT.20 Measured by them, it is clear that H-10 was not an agent of CISL. Both are separate enterprises, with separate complements of employees and separate managerial controls. As Seehorn put it in his affidavit in evidence, "CISL has no financial or other interest in H-10, nor any control or supervision over H-10's employees"; and "[n]o employee of CISL was involved in the towing and barge operation on November 3." Basically, what the agreement between the two companies entailed was an undertaking by H-10, for a consideration payable by CISL, to tow freight abroad a barge. Towing barges is H-10's business, and in the face of the undisputed evidence that neither its enterprise nor its employees were "subject to [CISL's] control," it would do violence to the evidence and to fundamental legal concepts to hold that H-10 was CISL's "agent" in the "piggy- back" operation. I hold, in short, that the former participated in the service as an independent contractor without an agency relationship to CISL.21 The fact that PMT, by the terms of section 3 of its contract with CISL, under- takes to perform the services described there "as [CISL's] agent" is not of itself decisive of the question whether PMT actually held that status. For resolution of that issue one must view the total record bearing on the relationship between the two firms, and apply to the inspection the fundamental principles to which previous reference has been made. To support their view of the relationship, the Respondents point not only to the label given PMT in section 3 of the contract, but to Winters' role in the air ship- ments after November 3, and to certain testimony by Nichols concerning the func- tions of Winters and Wood at the Consolidated Freight Station. The position regarding the air shipments may be shortly answered by pointing out (1) that they were not part of the "piggy-back" service, although no doubt an improvisation to overcome the picketing impediment placed in the path of shipments from berth 193-A; and (2) that, in any case, the routine, clerical or ministerial function of Winters in telephoning PMT for a driver and hauling equipment, and then giving the driver information which the bill of lading contained anyway, can hardly be considered evidence of the exercise of "control" by CISL either over PMT or of the latter's employees. As for the relevant testimony of Nichols it adds nothing to a resolution of the issues, as will presently appear. The testimony in question, given on December 16, 1958, is set forth in the following excerpt from the transcript of the District Court hearing (and is, by stipulation, part of the record in this proceeding): H-10 and CISL provides that the 'former is to furnish "tug boat and barge service in con- nection with [CISL'sl freight operation," and that during "the period of towing a barge . . . [H-10] shall be in full charge of the operation." 19 There is evidence that Wilmington Transportation Company "had lost business in the past" because the barge lacked a bow ramp. One may gather from the record that that circumstance was a factor in the barge owner's decision to construct the ramp. 20 See Cox v. Kaufman, 77 Cal. App. 2d 449, 175 P. 2d 260; Edwards v. Freeman, 34 Cal. 2d 589, 212 P. 2d 883. 21 An independent contractor "may or may not be an agent" (Sec. 2(3), Restatement, Agency 2d). Hence, as the concept of agency and that of independent contractor are not mutually exclusive, the finding made above more precisely states the relationship between H-10 and CISL than would a mere conclusion that the former was an independent contractor. INT'L LONGSHOREMEN & WAREHOUSEMEN'S UNION 829 Q. (By Mr. Hackler.) So that I am clear, the freight, as it moved from the Consolidated Station, is freight delivered to Catalina dispatches [sic] down there by Catalina employees, in the sense they tell the drivers to take it? A. In a supervisory capacity, yes 22 Q. And the driver, the employee of P.M.T., would get in his truck and pull the trailer down to Berth 192 (actually, 193-A) when he got instructions from, your dispatchers, is that right? A. Yes. Q. So that Catalina employees would dispatch a trailer leased to Catalina, carrying Catalina freight, they would simply dispatch an employee of P.M.T. who would hook up a tractor and pull it down, back it aboard the barge, is that what would happen? A. Yes. Nichols' replies to the foregoing questions have no resemblance to fact, for if anything is clear in this proceeding, it is that no employee of CISL "dispatched" any PMT driver from the Consolidated Freight Station to the barge at berth 193-A prior to the hearing in the United States District Court23 The only time any freight was hauled from the warehouse to the berth prior to December 16, the date of Nichols' testimony, was the occasion, on November 3, when Cox drove a trailer to the berth, and he did this upon direct instructions of his superior, Superintendent Whelan 2' Significantly, also, it was Whelan and not any of the several CISL supervisors at the picketing scene, who directed Cox to attempt to back the trailer aboard the barge, and instructed the driver to return to the warehouse after the employee discontinued his effort to board the vessel. What led Nichols to give the erroneous testimony is not a matter for concern here. What is important is that no findings may properly be based on the testimony; and that there is no warrant for a holding that any employee of CISL ever "dispatched" any PMT driver in the "piggy-back" service, nor for a con- clusion that CISL exercised control over PMT's operations or the latter's employees2s The image of PMT that emerges from the record is that of an enterprise of con- siderable proportions, engaged in the business of hauling freight, with multiple estab- lishments and branches, much trucking and other hauling equipment, and a sub- stantial managerial hierarchy. Its contract with CISL, although labelling it an "agent," vests no authority in CISL to control the manner in which the motor carrier is to perform the functions described in section 3 of the agreement, nor to supervise its employees. On the only occasion, prior to the District Court hearing, when PMT actually transported freight to berth 193-A, and sought to load it aboard a barge there, its operations obviously were not controlled by CISL. What the trucking company did then was part of its business of hauling freight. The image of the com- pany's participation in the "piggy-back" service, in other words, judging by the firm's structure, the nature of its business, and what it actually did in the service, as dis- tinguished from the label given to it in its contract with CISL, is that of an inde- 22 In his testimony in the hearing in this proceeding, Nichols raised a question whether he actually gave this answer as the District Court transcript quotes him, and he testified that what he meant to say was that a CISL "employee contacts someone" in a supervisory capacity in the PMT office. 23 Obviously, bearing the date of the testimony in mind, Nichols could not have had reference to the deliveries to the berth after the entry of the injunction. Moreover, as the CISL employees were not stationed at the Consolidated Freight Station after December 14, it seems unlikely that the freight involved in such deliveries was hauled from that depot. In any case, as noted earlier, the evidence pertaining to these deliveries has no material effect upon any issue in this proceeding. 2+Cox testified that Winters told him before he left with the trailer for berth 193-A on the morning of November 3 "to hold the equipment until the Catalina officials came down there." (One may gather, but not with certainty, that by the term "there" the witness had reference to the warehouse, although there is no indication that any "Catalina officials" came there that morning.) It does not appear whether Cox complied with the request. I do not regard Cox's testimony relating to Winters' remark as indicating any supervision or control by CISL's shipping clerk over Cox's work. Plainly, too, Winters' statement to Cox was not a "dispatch" of the driver." 25 There is some suggestion by Local 13 that Nichols' testimony is evidence of what PMT and CISL "contemplated." Certainly, the relevant questions put to Nichols were not cast in terms of what was "contemplated," but, passing that, if considered as evidence of what Was "contemplated," Nichols' replies to the questions have no more value than hypothesis and speculation and, as such, are, an improper basis for findings. 830 DECISIONS OF NATIONAL LABOR RELATIONS BOARD pendent contractor without an agency relationship to CISL. I find, in short, that PMT was not CISL's agent in the "piggy-back" operation, notwithstanding the contractual label. As support for their contention that H-10 and PMT "were allies of CISL," the Respondents invoke a line of cases which hold, in substance, that where one em- ployer, with whom a union has a dispute (and who is therefore customarily described as "primary" in jargon applicable to so-called "secondary boycott" cases such as this), contracts with another employer (usually labeled as "secondary" in the jargon) for the performance of work that, but for the dispute, would have been performed in the "primary" establishment, the union has a right to picket the premises of the "secondary" employer.26 The underlying theory of these cases is that the latter "allies" himself with the "primary" employer, and therefore is subject to the type of economic pressures that may lawfully be brought to bear against the "primary" em- ployer. There are manifest factual differences between such cases and this one, and the most obvious one is that in the former the performance of work by one employer for another was the result of a labor dispute, whereas here the agreements between the "primary" and "secondary" employers were the cause of the dispute. Whether that distinction may make a material difference need not be decided, for in any case, as will appear, the authorities upon which the Respondents rely are inapposite to the operative facts. The Respondents harness the doctrine of the cited authorities to a thesis that CISL's arrangements with H-10 and PMT were but "temporary" and for the "strategic" purpose of "bringing economic pressure to bear upon Local 13 to reach an agreement acceptable to the Company." Important support for this conclusion is seen by the Respondents in the events of the meeting held on November 2 between Local 13 and CISL. Noting the firm's previous refusal to negotiate regarding the longshoremen, and asserting that it made an "about face" and called the meeting of November 2 "for the purpose of exploring the use of its locked out employees," the Respondents view the meeting as "the strongest kind of evidence that the Company had not relinquished any substantial control of its freight operations to any other employers"; and argue that CISL, having "strengthened its bargaining position" by refusing to negotiate with the union and terminating its longshoremen, "solicited the meeting for the purpose of determining whether economic pressure had softened the Union to the point where an agreement could be reached to call back at least some of the locked out employees under an acceptable collective bargaining agreement." Having "allied" themselves with CISL for the pursuit by the latter of its "strategic" purpose, the thesis nins, H-10 and PMT have "forfeited [their] standing as . . . neutral[s] entitled to the protection of §8(b) (4) (A)." I think it unnecessary to decide whether the result for which the Respondents con- tend would follow from a state of facts such as they describe. It is enough that in this case there is insufficient evidence to support the claim that the arrangements with H-10 and PMT were made for the "strategic" purpose the Respondents impute to CISL. To adopt their view of CISL's motivation would be to harness findings to a guess, particularly against the background of Nichols' sworn and undisputed asser- tion that "[f]or a number of years the handling of freight by CISL has been an extremely unprofitable operation," and the documentary evidence (General Counsel's Exhibits Nos. 2-6, 2-7, and 2-8) demonstrating that the company had undertaken a study of the feasibility of a "piggy-back" service long before the arrangements made with H-10 and PMT, and had had the adoption of such an operation under con- sideration for a substantial period of time. What is more, I find plausible Nichols' claim that it was Local 13's widely circulated letter dated October 1, 1958, addressed to the "Citizens of Avalon," that prompted CISL to arrange the meeting of November 2. Obviously, the company does business with the "Citizens of Avalon," and in view of the contents of the letter addressed to the "Citizens," I think it only natural that the firm should entertain some concern about the letter, and arrange a meeting with the union with a view to exploration of the differences between the union and the company. A conclusion that the company, prompted by the union's appeal to the "Citizens of Avalon," sought the meeting in order to explore the possibility of achiev- ing a modus operandi with the labor organization , with a view to possible moderation or elimination of whatever adverse impression the union's accusations made upon the "Citizens" is, I believe, a more rational interpretation of the evidence :than the claim 20 See , among other cases, N.L.R.B. v. Business Machine and Office Appliance Mechanics Conference Board, Local 459, etc., 228 F. 2d 553 (C.A. 2); Truck Operators League of Oregon, 122 NLRB 25; Oliver Whyte Company, Inc., 120 NLRB 856; Douds v. Metro- politan Federation of Architects, Engineers, Chemists and Technicians, Local 281 (Project Engineering Company ), 75 F. Supp. 672 (D.C., N.Y.). INT'L LONGSHOREMEN & WAREHOUSEMEN'S UNION 831 that the meeting demonstrates a design by CISL to make "temporary" arrangements for the "piggy-back" service for the "strategic" objective of gaining the upper hand in bargaining negotiations with the union 27 But whether that is so or not, the evi- dence is insufficient to justify a finding that the company's motive for arranging the meeting was the one the Respondents ascribe to it. A holding that such was the motive would be no more than a guess. Finally, as regards the legality of the picketing of berth 193-A, it seems to me that the claim that H-10 and PMT were engaged in an "integrated single business operation with CISL," and that the latter "had not relinquished any substantial con- trol of its freight operations" are semantic departures from the operative facts. One could with at least equal logic say that the three firms were engaged in "coordinated multiple business operations," each pursuing its separate entrepreneurial goal of making a profit-the aim of any business enterprise. But I think it would be a profitless venture here to search for a resolution of the issues in a choice between a phrase such as "integrated single business operation" and one such as "coordi- nated multiple business operations"; or in determining what operative meaning may be found, in the light of relevant statutory language and policy, in .the notion that CISL "had not relinquished any substantial control of its freight operations," when it is clear that H-10, PMT and CISL were separate business enterprises, with their own separate complements of supervisors and employees; that the operations and employees of H-10 and PMT were not subject to supervision or control by CISL; that the labor dispute which led to the picketing was between Local 13 and CISL, and not between the union and H-10 and PMT; that at the time of the picketing, Cox, a PMT employee, and the employees of H-10 were engaged in working for their respective employers at a public facility owned and operated by ,the city of Los Angeles; that, as found earlier, the picketing there was directed at Cox and the employees of H-10; and that its object was "to force or require" H-10 and PMT "to cease doing business" with CISL in the "piggy-back" service. By reason of such picketing, Local 13 violated Section 8(b) (4) (A) of the Act.2e The remaining issue is whether the ILWU similarly violated the Act. The fact that Local 13 is chartered by the ILWU is obviously an insufficient basis, standing alone, for the imputation of any responsibility for the unlawful conduct at berth 193-A to the parent labor organization. On this record, a conclusion that such responsibility exists must derive, if at all, from Moore's behavior at the berth. Asserting that the General Counsel's case against the ILWU is "reduced to a single alleged statement" made by Moore to Cox, the ILWU, in its brief, absolves itself of any liability for two -reasons: First, "that the statement itself did not constitute a violation of the Act; and second, that if it did, Moore was not acting as an agent of the [ILWUI when he made the statement but was acting exclusively in his role as a member of Local 13, a member of its bargaining committee, and as its spokes- man and representative." These positions, I believe, take too narrow a view of the evidence. It is not decisive of the issue of Moore's agency that the ILWU has not, in terms, adopted or ratified Local 13's picketing activities or that the parent body did not specifically authorize his presence or conduct at the picketing site. If he engaged in unlawful behavior there, it is enough if his conduct was within the apparent scope of his authority as the ILWU's regional director for Southern California.29 n In its brief, Local 13 states that "no witness of CISL [has] undertaken to explain why it solicited the . . . meeting and discussed the employment of longshoremen on the roll-on, roll-off operation." This is not quite true. Nichols' affidavit states that the Union's appeal to the "Citizens of Avalon" prompted the Company to arrange the meeting. The Company's motive in exploring the possibility of giving some employment to long- shoremen is, it seems to me, a matter of rational inference in the light of the whole record. In any event, the respondents' theory of the Company's reason for arranging the meeting impresses me as no more than guesswork. 28 By the finding that the operations and employees of H-10 and PMT were not subject to supervision by CISL, I intend no implication that a finding to the contrary would lead to a conclusion that the picketing was lawful. See N.L.R.B. v. Springfield Building and Construction Trades Council, et al., 262 F. 2d 494 (C.A. 1). =0 Acme Mattress Company, Inc., 91 NLRB 1010, 1011, enfd. 192 F. 2d 524 (C.A. 7) ; W. B. Jones Lumber Company, Inc., 114 NLRB 415, 426, footnote 11, enfd. 245 F. 2d 388 (C.A. 9). Thus it is not controlling that article V of the ILWU's constitution confers a grant of autonomy in various respects upon its locals ; that the parent body's president is required by its constitution ( article IX) to "exonerate" a local from making certain "per capita" payments in "the event of any lockout or of any strike approved " by him ; 832 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The regional area Moore serves; it may be noted, embraces nine locals of the ILWU, including Local 13. According to his testimony, he has authority as regional director "to assist" all these locals, upon their invitation, in matters pertaining to collective bargaining, picketing, and strikes. In the event any such local requests the ILWU for assistance, Moore testified, it is he who is delegated to render it. Also, Moore stated, he is on the "committee" of Local 13 whose function it is to submit such a request. The claim that Moore was present at the picketing site as a member of Local 13's bargaining committee , is, at best, a feeble prop for the ILWU's disavowal of respon- sibility for Moore's conduct. Palpably, he was not engaged in bargaining negotia- tions at berth 193-A (nor, as obviously, was he so engaged on the occasions when he and other union representatives called on Judd , and the latter, as a consequence of the picketing threats made to him during the meeting , agreed to withdraw from the "piggy-back" service). Be that as it may, one may assume that Moore acted at the picketing site as the "spokesman and representative" of Local 13 , but his own testimony, summarized above, warrants an inference that he was also present there in his capacity as regional director of the ILWU, and as its representative. At the very least, his conduct at the picketing site was within the scope of his apparent authority as regional director.30 But the setting at the berth , and Moore's conduct there, provide a more accurate guide to his role at the picketing site than his appar- ently modest appraisal of his function as that of assistance to the ILWU's nine Southern California locals when they request such help . ( One would think, inci- dentally, that the function of a regional director is "to direct " and not merely "to assist.") The record is of substantial proportions , and several witnesses describe one feature or another of the events at the berth on November 3; yet one may search in vain for any evidence that Giblin , who is president of Local 13 , and was present at the picketing site, did anything more there than lend his presence to the occasion. In contrast, so far as appears in the record , Moore was the only union official at the berth who said anything about picketing and union policy. As previously pointed out, soon after Cox brought the tractor and trailer to a halt, obviously because the pickets were walking in the path that the equipment would have to take to mount the ramp leading to the barge , Moore, in the presence of the pickets, told the driver that the ILWU ( and not Local 13, be it noted ) "was not going to permit this opera- tion to go through, that it was their work, and that they were going to place a picket line at the PMT warehouse the next morning"; and informed O'Connor that "this is nothing more than a runaway shop . and they ought to know that they can't get away with it." These remarks were at the least tantamount to an acknowledge- ment that the ILWU was present, in the person of Moore, aiding and abetting the picketing . What is more, taking into account the obvious connotations of Moore's title, the geographical scope of his functions, his flat statement of ILWU policy, and his prediction of its application, I think it clear that his voice was that of authority, and his words those of leadership; and I am persuaded that he func- tioned at the picketing site not only as a representative and spokesman of Local 13 and the ILWU but as a leader of the picketing activities, notwithstanding the fact that he did not picket himself; that his leadership role was within the scope of his apparent authority as regional director of the ILWU, if not, indeed, of his actual powers ; and that responsibility for his conduct there is chargeable to the ILWU. Thus it begs the question to isolate Moore's "single . . . statement" to Cox from the picketing at the berth, and its setting and background, and to argue, as does the ILWU, "that the statement itself did not constitute a violation of the Act." The nub of the matter is that because of Moore's apparent authority, and his role in relation to the picketing, responsibility for the unlawful conduct at the berth is chargeable to the ILWU.31 I hold, upon a total view of the record, that by reason of the picketing, the ILWU, like Local 13, violated Section 8(b)(4)(A) of the Act. and that, according to Moore, Local 13 has not sought that official's approval of its activities in its controversy with CISL, nor requested a waiver of "per capita" payments, nor asked the parent body "for aid and assistance in this situation." °I think it would be specious to assert that such a conclusion must fall because of,a lack of evidence that Local 13 had invited Moore "to assist" as regional director. For one thing, according to Moore, he is a member of the "committee" that has the function of issuing such an invitation. For another matter, whether or not be went through an intraunion ritual of donning the label of regional director for his appearance at the berth, it is abundantly clear that his presence and conduct there were within the scope of his apparent authority as regional director. ' at The ILWU relies upon N.L.R.B. v. International. Rice Milling Co.,, Inc., 'et at., 341 U.S. 665, where the Court observed that Section 8(b) (4) "contemplates inducement or SOUTHERN STATES EQUIPMENT CORPORATION 833: IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Local 13 and the ILWU, set forth in section III, above, occurring. in connection with the operations of CISL, described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several. States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Local 13 and the ILWU have engaged in unfair labor practices. within the meaning of Section 8(b) (4) (A) of the Act, I shall recommend that they cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Upon the basis of the foregoing findings of fact , and of the entire record in this. proceeding, I make the following: CONCLUSIONS OF LAW 1. CISL, H-10, and PMT are, and have been at all times material to this pro- ceeding, employers within the meaning of the Act. 2. Local 13 and the ILWU are, and have been at all times material to this pro- ceeding, labor organizations within the meaning of the Act. 3. By picketing at berth 193-A in Wilmington, California, as found above, Local. 13 and the ILWU have induced or encouraged employees of H-10 and an employee of PMT to engage in a strike or a concerted refusal in the course of their respective employments to transport or otherwise handle or work on any goods, articles,. materials or commodities, or to perform any services, with the object of forcing or requiring H-10 and PMT to cease doing business with CISL in the "piggy-back" service, described above, and have thereby engaged in unfair labor practices within. the meaning of Section 8(b) (4) (A) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Sections 2(6) and (7) of the Act. [Recommendations omitted from publication.] encouragement to some concert of action greater than is evidenced by the pickets' request to a driver of a single truck to discontinue a pending trip." The cited case is distinguish- able in the light of the findings herein to the effect that II-10's employees and Cox, at the time of the picketing, were contemporaneously engaged at the berth in tasks directed to the end of placing the trailer aboard the barge ; that the towboat employees and Cox were common targets of the picketing; and that the ILWU, as well as Local 13, must accept responsibility for such picketing. Southern States Equipment Corporation and Local Lodge 1314, International Association of Machinists , AFL-CIO. Case No. 10-CA-3585. September 2, 1959 DECISION AND ORDER On March 18, 1959, Trial Examiner Lloyd Buchanan issued his In- termediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Inter- mediate Report attached hereto. Thereafter, the Respondent and the Charging Party filed exceptions to the Intermediate Report and sup- porting briefs. 124 NLRB No. 104. 525543-60-vol. 124-54