International Woodworkers of America, AFL- CIO

INTERNATIONAL WOODWORKERS OF AMERICA, AFL-CIO 209 was predicated in part upon the Employer's experience for a portion of its first year of operations and in part upon its reasonable estimate of $575,000 gross volume fox its first full year, the Employer did not move for reconsideration with respect to such issue prior to the elec- tion Its request for reconsideration subsequent to the election is- therefore untimely Accordingly, the Employer's motion to void the election for lack of jurisdiction is hereby denied Inasmuch as we have overruled the challenge to Kaires' ballot, we shall direct that it be opened and counted [The Board directed that the Regional Director for the Twelfth Region shall, -within 10 days from the date of this Direction, open and count the ballot of John Kaires and serve upon the parties a revised tally of ballots ] CHAIRMAN LEEDOM took no part in the consideration of the above Supplemental Decision and Direction International Woodworkers of America, AFL-CIO and T. Smith & Son, Inc.; Montmorency Paper Company, Inc.; Candwood Shipping Company, Ltd. Cases Nos 15-CC-90,15-CC-92, and 15-CC-93. November 20, 1959 DECISION AND ORDER On July 29,1959, Trial Examiner Ramey Donovan issued his Inter- mediate Report in this proceeding, finding that the Respondent had engaged 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 Intermediate Report attached hereto There- after, the Respondent and the Charging Parties filed exceptions to the Intermediate Report and supporting briefs Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the Board has delegated its powers in connection with these cases to a three-member panel [Chairman Leedom and Members Bean and Fanning] The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed The rulings are hereby affirmed The Board has considered the entire record in these cases, including the Intermediate Report 1 and the ex- 1 We correct the inadvertent reference by the Trial Examiner to E M Little , chairman of the board of directors of Anglo Newfoundland Development Company, Limited , herein called Anglo Newfoundland, and Anglo Canadian Pulp and Paper Mills , Limited, as E M Moore 125 NLRB No 33 210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ceptions 2 and briefs, and hereby adopts the findings, conclusions,3 and. recommendations of the Trial Examiner to the extent consistent with. our Decision herein. We find, like the Trial Examiner, that the Respondent violated Section 8 (b) (4) (A) of the Act by picketing the SS Bestwood while. moored at a wharf in New Orleans, because it carried cargo belonging to the primary employer, Anglo Newfoundland. However, unlike the Trial Examiner, we rely solely on the fact that, as the Bestwood' was manned by neutral employees, and there were no primary em- ployees present, the picketing was illegal, because addressed exclu- sively to neutrals 4 In our view it is unnecessary to consider further,. as the Trial Examiner did, whether the picketing would also have been considered unlawful if treated as common-situs picketing, and. we do not adopt such discussion.' ORDER Upon the entire record in these cases, and pursuant to Section. 10 (c) of the National Labor Relations Act, the National Labor Rela- tions Board hereby orders that the Respondent, International Wood- workers of America, AFL-CIO, its officers, representatives, agents,. successors, and assigns, shall : 1. Cease and desist from inducing and encouraging the employees of T. Smith & Son, Inc., Neptune Supplies, Inc., and prin. France, Fen- wick & Company, Limited, or of any other employer except Anglo. Newfoundland Development Company, Limited, to engage in a strike or a concerted refusal in the course of their employment, to use, proc- ess, transport, or otherwise handle or work on goods, articles, ma- terials, or commodities, or perform any services, where an object thereof is to require any such employer or person to cease using, sell- ing, handling, transporting, or otherwise dealing in the products of or to cease doing buisness with Montmorency Paper Company, Inc. ; 3 In view of our disposition of this matter , we shall not pass upon the contentions of the Charging Parties. 3A finding of violation of Section 8(b) (4) (A) of the Act is not precluded here by the fact that the primary employer and its employees are foreign, as the unfair labor practices occurred in this country. John E. Martin, et al., d/b/a Sound Shingle Co., 101 NLRB. 1159, enfd. 211 F. 2d 149 (C.A. 9). 4 Sealright Pacific, Ltd., 82 NLRB 271 ; John E . Martin, et al., d/b/a Sound Shingle, Co., supra. 5 In its brief filed with the Board the Respondent contends that, as the Bestwvood was at the time of the picketing under a trip charter to a subsidiary of the primary employer it should be treated as merely an extension of the primary employer's premises, and the picketing should therefore be held to be primary, and not common-situs or secondary picketing. However, the Board has declined to treat vehicles or vessels of a primary employer, while absent from the primary employer's fixed premises, as an extension of such premises or to view the picketing of such vehicles or vessels as primary picketing. E.g., Moore Dry Dock Company, 92 NLRB 547; Cache Valley Dairy Association, 116. NLRB 220. INTERNATIONAL WOODWORKERS OF AMERICA, AFL-CIO 211 Montmorency Shipping, Limited; Montreal Shipping Company, Lim- ited; Anglo Newfoundland Development Company, Limited; or any employer or person handling paper products processed or manufac- tured by Anglo Newfoundland Development Company, Limited. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Post at its business office or offices in New Orleans, Louisiana, and Houston, Texas, and in the office of the southern area or southern regional headquarters of the Union, copies of the notice attached hereto marked "Appendix A."' Copies of said notice, to be furnished by the Regional Director for the Fifteenth Region, shall, after being duly signed by official representatives of Respondent, be posted by Respondent immediately upon receipt thereof, and maintained by them for a period of 60 consecutive days thereafter, in conspicuous places, including all places where notices to members of Respondent are customarily posted. Reasonable steps shall be taken by the Respondent to insure that the notices are not altered, defaced, or covered by any other material. (b) Notify T. Smith & Son, Inc., Neptune Supplies, Inc., and Wm. France, Fenwick & Company, Limited, that it will not induce or en- courage their employees to engage in a strike or a concerted refusal in the course of their employment to work upon, to service, or other- wise handle products or cargo of Montmorency Paper Company, Inc.; Montmorency Shipping, Limited; Montreal Shipping Company, Limited; Anglo Newfoundland Development Company, Limited; or any employer or person handling paper products processed or manu- factured by Anglo Newfoundland Development Company, Limited, for the purpose of requiring T. Smith & Son, Inc.; Neptune Supplies, Inc.; or Wm. France, Fenwick & Company, Limited; to cease doing business with Montmorency Paper Company, Inc.; Montmorency Shipping, Limited; Montreal Shipping Company, Limited; Anglo Newfoundland Development Company, Limited; or any employer or person handling paper products processed or manufactured by Anglo Newfoundland Development Company, Limited. (c) Mail to the Regional Director for the Fifteenth Region, signed copies of the notice, for posting by the Companies named in paragraph (b), above, if willing, at places where they customarily post notices to their employees. (d) Notify the Regional Director for the Fifteenth Region in writing, within 10 days from the date this Order, what steps Respond- ent has taken to comply herewith. 'In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order." 212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act,, as amended, we hereby notify our members that: WE WILL NoT induce and encourage the employees of T. Smith & Son, Inc. ; Neptune Supplies, Inc. ; Wm. France, Fenwick & Company, Limited; or any other employer except Anglo New- foundland Development Company, Limited, to engage in a strike or a concerted refusal in thb course of their employment, to use, process, transport, or otherwise handle or work on goods, articles, materials, or commodities, or perform any services, where an object thereof is to require any such employer or person to cease using, selling, handling, transporting, or otherwise dealing in the products of or to cease doing business with Montmorency Paper Company, Inc. ; Montmorency Shipping, Limited ; Montreal Shipping Company, Limited; Anglo Newfoundland Development Company, Limited; or any employer or person handling paper processed or manufactured by Anglo Newfoundland Develop- ment Company, Limited. INTERNATIONAL WOODWORKERS OF AMERICA, AFL-CIO, Labor Organization. Dated---------------- By------------------------------------- (Representative ) ( Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. INTERMEDIATE REPORT STATEMENT OF THE CASE This proceeding, with all parties represented, was heard before the duly designated Trial Examiner in New Orleans , Louisiana, on June 9 and 10, 1959, on consolidated complaint by the General Counsel and answer of International Woodworkers of America, AFL-CIO, herein called IWA. The issue litigated was whether the Re- spondent violated Section 8(b) (4) (A) of the Act. The parties presented oral argument and were afforded an opportunity to file briefs. The Charging Parties filed a brief.' Upon the entire record, and from his observation of the witnesses , the Trial Examiner hereby makes the following: FINDINGS OF FACT I. THE COMMERCE FACTS T. Smith & Son, Inc., herein called Smith , is a Louisiana corporation that is engaged in New Orleans, Louisiana, in the business of stevedoring and the operation 3 Subsequent to the close of the hearing counsel for the General Counsel submitted a motion to correct the record, with service thereof upon the other parties. These correc- tions have been noted. INTERNATIONAL WOODWORKERS OF AMERICA, AFL-CIO 213 of tug boats and other boats in the waters of the Gulf of Mexico and the inland waters adjacent thereto, in the furnishing of various services to vessels , and in the handling and transportation of goods moving in interstate and foreign commerce, for which services Smith annually receives in excess of $1,000,000. Montmorency Paper Company, Inc., herein called Montmorency Paper, is a New York corporation with its principal office in New York, New York. It is engaged in the sale and distribution of newsprint and allied products to customers located throughout the United States and receives in excess of $100,000 annually, for goods that it sells and ships in interstate commerce to customers located outside the State of New York. Candwood Shipping Company, Ltd., herein called Candwood, is a Canadian corporation engaged in transportation of goods by oceangoing vessels in foreign commerce, including commerce between the United States and Canada. In con- nection with its operations, and at all times material herein, Candwood has held a time charter on an oceangoing vessel, the SS Bestwood, from its owner, Wm. France, Fenwick & Company, Limited, of London, England. Anglo Newfoundland Development Company, Limited, herein called Anglo New- foundland, a Newfoundland corporation, is engaged in Newfoundland in the business of.logging and saw mill operation as well as in the manufacture of pulp and paper products and newsprint; the Company also engages in the business of mining and transportation. Montmorency Shipping, Limited, herein called Montmorency Shipping, is a Cana- dian corporation engaged in the general shipping business throughout the world, including the transportation of goods by oceangoing vessels and the operation of vessels leased or chartered from various shipowners and used in the transportation of goods in foreign commerce, including commerce between the United States and Canada. In connection with its operations, Montmorency Shipping obtained the SS Bestwood under a trip charter from Candwood for the purpose of delivering news print for Montmorency Paper to New Orleans, Louisiana, and other southern ports. II. THE LABOR ORGANIZATION INVOLVED International Woodworkers of America, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The events in Newfoundland In June 1958, the IWA's Local 2-254 was certified as the collective-bargaining agent for the loggers or woods employees of Anglo Newfoundland, of Grand Falls, Newfoundland, by the Newfoundland Labour Relations Board.2 Anglo Newfound- land has four woods divisions, employing from 200 to 3,000 employees depending upon the season. A woods division is a defined area operated as a unit for removing trees or logs from the forest. For the most part the employees live within the physical confines of the division. Following certification, bargaining took place between the parties. In November 1958, the Union, pursuant to provisions of the Newfoundland Act, had requested the appointment of a conciliation board . The board made certain recommendations in a report which was later amended. The employer did not agree to accept the aforementioned amended report. The IWA struck the employer in December 1958, with picket lines being placed at the entrances to the woods divisions . Other opera- tions of the employer were not picketed. On Much 6, 1959, the legislature of Newfoundland enacted a "Trade Union (Emergency Provisions) Act," herein called 2 The Newfoundland Board functions pursuant to the Newfoundland Labour Relations Act, Chapter 258, the Revised Statutes of Newfoundland, 1952. The aforementioned act Is in some respects comparable to the National Labor Relations Act, as amended, but there are also many differences in the respective statutes. The Newfoundland Act was amended March 6, 1959, and, as amended, inter alia, additional grounds for revocation of a certification were provided. One of the grounds for revocation aforementioned, was In instances were an officer, agent, or representative of a certified bargaining agent has been convicted of an offense against the Criminal Code in connection with a trade dispute and continues as such officer, agent, or representative. The amendments to the Act also added provisions relating to secondary boycotts somewhat comparable to Section 8(b)(4) of the National Labor Relations Act, as amended. 535'828-60-vol. 125-15 214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Emergency Act .3 This Emergency Act revoked the certification of IWA, Local 2-254 and Local 2-255 , required special consent for a new application for certifi- cation, and voided any agreement between an employer and a union whose certifica- tion was revoked . All picketing by the IWA thereafter ceased. The particular product involved in the instant case originated as trees or logs in Anglo Newfoundland 's woods division . The logs were then driven down the rivers or trucked or carried by rail to Anglo Newfoundland 's mill where they were processed or manufactured into paper, i.e., newsprint .4 The newsprint was then loaded on railway cars of the Canadian National Railways and transported to St. Johns, New- foundland, where longshoremen , under the supervision of the Canadian National Railways dock division superintendent , unloaded the cars. The newsprint was then loaded on board the SS Bestwood, at St. Johns, by longshoremen . Title to the news- print then passed from Anglo Newfoundland to Anglo Paper Products, Limited, herein called Anglo Paper, f.o.b. vessel , and was immediately sold to Montmorency Paper. The Bestwood thereafter proceeded to New Orleans, Louisiana. B. Anglo Newfoundland's relationships with other companies Before considering the events in New Orleans, an exposition of the relationship, if any, existing between various companies is in order . Anglo Paper is a Canadian stock corporation with its principal place of business in Quebec City and its business is the buying and selling of various pulp paper products .5 Approximately 90 percent of the newsprint of Anglo Newfoundland is purchased by Anglo Paper . The former company derives approximately 35 to 40 percent of its money income from the sale of newsprint. Anglo Paper also purchases paper products from other sources since its purchases from Anglo Newfoundland comprise about 35 percent of its money purchases . Sales and purchases between the two aforementioned companies have taken place over a period of years pursuant to contract . Anglo Newfoundland owns 50 percent of the stock of Anglo Paper. The 50 percent ownership is owned in common with Gespesia Sulphate Company , with the latter company owning 10 percent and Anglo Newfoundland owing 40 percent . Gespesia Sulphate Company is a subsidiary of Anglo Newfoundland, the latter owning all the shares of its sub- sidiary. The remaining 50 percent of Anglo Paper's stock is own by Anglo-Canadian Pulp and Paper Mills, Limited , herein called Anglo-Canadian, a Canadian company engaged in newsprint manufacture and pulp and other paper products manufacture in Quebec City and in Ontario. Anglo Newfoundland , according to the testimony of its president , Thomas R. Moore, does not direct, control , or influence the opera- tions of Anglo Paper other than as a stockholder , in which capacity it receives the annual report of Anglo Paper and attends annual meetings. It was also testified that Anglo-Canadian , aside from its stock ownership, in no way controlled , super- vised, or influenced the operations of Anglo Paper.6 3 The Emergency Act referred to strikes in the woods labor part of the pulp and paper industry in the Province and stated that since the inception of the strikes many loggers have been convicted of offenses against the Criminal Code arising out of the strikes and have been fined or imprisoned ; it was also stated in the Emergency Act that because of lawlessness in connection with the strikes many loggers who wished to work were re- luctant to do so and that therefore "a state of grave emergency exists in the pulp and paper industry of the province and the economy of the province is in jeopardy. . . . 4 The mill employees were represented by five international unions not otherwise identified in the record. 5T. S. Quinn is president ; A. k Hill , executive vice president ; G. Vasseur, secretary- treasurer ; W. P. Creagh , assistant secretary of Anglo Paper . Although the record is not clear on this point apparently the foregoing officers also constitute the board of directors. The officers of Anglo Newfoundland are : E . M. Moore, chairman of the board ; T. R. Moore, president ; J. S. Goodyear , vice president ; L. E. Baggs, secretary ; T. Al. Hopkins, treasurer ; C. J. Bond , assistant secretary ; W. P. Creagh , assistant secretary ; C. R. Tittemore, assistant general manager. The directors of Anglo Newfoundland are : E. M. Little, T. R. Moore, J. S. Goodyear, the Viscount Rothermere , E. S. Sursham, W. H. Howard , C.B.E., Q .C., P. Gruchy, C.B.E., G. Beckett , B. C. Gardner, M.D., W. E. Soles, R. E. Morrow, Q.C. B The officers of Anglo Canadian are : E . M. Little, chairman of the board ; W. E. Soles, president and general manager ; W . H. Howard, C .B.E., vice president ; H. D. Ruthman, secretary ; C. H. Smith , treasurer ; W. P. Creagh , assistant secretary ; J. P. Coristine, assistant secretary ; W. G. D. Stanley , assistant treasurer . Directors : James Cooke, H. K. Cudlipp , E. L. Goodall , Hazen Hausard , Q.C., W. H. Howard, C.B.E., Q.C., INTERNATIONAL WOODWORKERS OF AMERICA , AFIf--CIO 215 Montmorency Paper, to whom the newsprint on board the Bestwood was sold by Anglo Paper, is, as we have seen, a New York corporation , with its office in that city, where it is engaged in the sale and distribution of newsprint .? The entire stock of Montmorency Paper is owned by St. Charles Investments , Limited, herein called St. Charles, a Canadian corporation , which is a holding company with its offices in Montreal. St. Charles' stock is 50 percent owned by Anglo Newfoundland and 50 percent by Anglo-Canadian .8 Montmorency Paper purchases approximately 40 percent of the newsprint that is sold by Anglo Paper . It was testified, as in the other instances of stock ownership hereinabove referred to, that St . Charles, Anglo Newfoundland, and Anglo-Canadian in no way controlled , supervised, or influenced the operation of Montmorency Paper, aside from stockholding interest.9 The vessel Bestwood is owned by Wm. France, Fenwick & Company, Limited, of London, England, herein called Fenwick . By a time charter, dated February 5, 1959, Candwood, heretofore described, chartered the Bestwood from Fenwick for a specified period of time. Under the terms of the time charter the charterers could sublet the vessel but remained liable for fulfillment of the terms of the time char- ter.1e Under date of March 30, 1959 , a trip charter was executed between Cand- wood, described therein as "Time Chartered Owners" and Montmorency Shipping, heretofore described.ll The trip charter provided that the Bestwood would be used to transport a cargo of newsprint from St. Johns, Newfoundland , to New Orleans, Louisiana, and Houston, Texas. The charterer, Montmorency Shipping, was to be charged for loading, dunnaging , and discharging expenses and its agents were to be employed at loading and discharging ports. Montmorency Shipping has no employees and its stock is owned by Anglo New- foundland . 12 Montreal Shipping Company, Limited, herein called Montreal Ship- ping, is a Canadian company that operates as a broker and agent for various companies. For several years it has been the operating agent for Montmorency Shipping, i.e., it operates or conducts the business of the company , including solicit- ing business , engaging vessels, and all the matters attendant to a general shipping business . Montreal Shipping serves as operating agent for 20 or 30 other companies and performs services for them similar to that performed for Montmorency Ship- ping. In the trip chartering of the Bestwood, Montreal Shipping was agent for both Montmorency Shipping and for Candwood, the latter being a subsidiary of Fenwick, owner of the Bestwood.13 C. H. King, E. M. Little, T. R. Moore, J. O'Halloran , the Viscount Rothermere, H. D. Ruthman , W. E. Soles , and P. G. Walker. The majority stockholder of Angle Canadian is the Daily Mirror of London , England . The majority stockholder of Angle New- foundland is Associated Newspapers of London , England. The Daily Mirror and Asso- ciated Newspapers are separate and independent interests . Angle Newfoundland owns 60,000 or 65,000 shares of stock in Anglo -Canadian which is approximately 4 percent of the total stock . Anglo-Canadian does not own Angle Newfoundland stock. 7 The officers and directors of Montmorency Paper are : P. H . Huot, president ; F. Desrochers , secretary-treasurer ; E. H. Auchincloss , assistant secretary -treasurer. s The officers of St . Charles are : E . W. Mockridge , president ; H. W. Tingley, vice president ; C. G. Meek, secretary-treasurer . The officers are also the Company 's directors. A Testimony in the record where it referred to nonparticipation in the operation of a company whose stock was owned by other companies defined "operations " as day-to-day operation , management of the company, including the making of contracts , sales, and purchases , and whatever functions are necessary for the operation of a company. 10 Other provisions of the time charter , which was a standard government form, were: Fenwick to pay for all provisions and wages , insurance , and stores and to remain re- sponsible for the navigation of the vessel, insurance, crew, and all other matters "same as when trading for their own account" ; the captain , although appointed by Fenwick, was to be under the orders and directions of Candwood as regards "employment and agency" and Candwood was to furnish the captain with all requisite instructions and sailing directions. "The trip charter is set forth on a form bearing the printed heading "Montreal Shipping Company Limited , Chartering Brokers & Agents" and has as signatories, Candwood , on the one hand, and "Montmorency Shipping Limited, Montreal Shipping Company Limited , As Agents," on the other. "The officers of Montmorency Shipping are : T. R. Moore, president ; J. S. Goodyear, vice president ; L. E. Boggs, assistant secretary ; C. B. Creagh , assistant secretary ; G. S. Taylor , assistant treasurer . Directors : T. R. Moore, E. plot . Little, J. S. Goodyear, W. P. Creagh , E. W. Mockridge, R. W. Morrow. 13 The officers of Montreal Shipping are : F . B. Peterson, president ; J. L. Thom, vice president ; B. Morin, secretary ; C. A. Short, treasurer. Directors : F. B. Peterson, 216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The captain and crew of the Bestwood had been engaged by Fenwick in England. Captain T. Collier of the Bestwood testified that he took his orders from the owner, Fenwick, but took instructions dealing with destination and loading from Montreal Shipping as agents for Candwood, the time charterer. Sole control as to the hiring and discharge of the crew rests in Fenwick. The crew of the vessel is represented by the National Union of Seamen, an English trade union. Before concluding the description of the setting in which the events in New Orleans took place and of the stock relationships between Anglo Newfoundland and other companies, it is to be noted that the uncontroverted testimony of T. R. Moore, president of Anglo Newfoundland and Montmorency Shipping, is to the effect that none of the companies hereinabove enumerated participate in or control the opera- tions of any other company, either with respect to day-to-day business operations or with respect to labor policies. He testified that this was true with respect to himself, that he did not participate in the management of Montmorency Shipping although he was president of Anglo Newfoundland and Montmorency Shipping, and that the operation of the latter had been entrusted to Montreal Shipping. Each of the companies heretofore enumerated maintained separate books and records, tax returns, and pension plans. Moore stated that here had been no extra or extraordi- nary meetings of officers or directors relating to the described events in the forepart of 1959. In response to questioning as to whether W. P. Creagh, who was the assistant secretary and a director of Anglo Newfoundland, Anglo Paper, and Mont- morency Shipping, and assistant secretary of Anglo-Canadian, served as a coordi- nator of policies between the companies, Moore answered in the negative. Moore stated that Creagh was a barrister lawyer whose function was secretarial; he de- scribed Creagh as not a policy director as a member of the board of directors but admitted that Creagh did have a vote as a director. It also appeared that the business relationships between various companies described in the record, had existed over a period of years and were their normal methods of doing business. C. The events in New Orleans T. Smith & Son, Inc., which has been referred to as Smith, and whose general business has heretofore been described, has had contractual relations with Mont- morency Paper for approximately 20 years. Pursuant to the contract, Smith, as stevedoring contractor, undertook to discharge the newsprint from the Bestwood in New Orleans. Montmorency Paper is billed for such services by Smith. Custom- arily, and in the instant case, Smith is advised regarding the arrival of the vessel by a letter from Montreal Shipping. 14 In addition to its stevedoring services, Smith was agent for the Bestwood in New Orleans and performed services for the vessel. Such services would include wharfage, pilotage, tug boat bills, water, fuel, and stores and Montreal Shipping would be billed for such services. Montreal Shipping, in turn, would bill Candwood.15 The Bestwood with its cargo of newsprint arrived in New Orleans on April 18, 1959, a Saturday. The discharge of the cargo was scheduled for Monday, April 20. J. L. Thom, D. A. Short, 11. V. Knowles, C. C. Webster, and It. F. Elliott. The officers of Candwood are : K. R. Pelly, chairman of the board ; F. B. Peterson, president ; G. R. Newman and A. D. Pelly, vice presidents ; D. A. Short, secretary treasurer. Directors : K. R. Pelly, F. B. Peterson, G. It. Newman, A. D. Pelly, T. McEwan, C. W. Webster, and It. F. Elliott. There is no stock relationship between Montreal Shipping and Montmorency Shipping nor between the following companies : Anglo Newfoundland and Montreal Shipping ; Anglo Newfoundland and Candwood ; Anglo Newfoundland and Fenwick ; Anglo-Canadian and Fenwick ; Anglo-Canadian and Candwood; Anglo-Canadian and Montreal Shipping ; Anglo Paper and Fenwick ; Anglo Paper and Montreal Shipping ; St. Charles and Fenwick ; St. Charles and Candwood; St. Charles and Montreal Shipping; Montmorency Paper and Fenwick ; Montmorency Paper and Candwood ; Montmorency Paper and Montreal Ship- ping; Montmorency Shipping and Fenwick; and Montmorency Shipping and Candwood. The same testimony in the negative was given with respect to labor policies and em- ployees in common as between the foregoing companies, with the qualification that Montmorency Shipping, as we have seen, had no employees and was operated by Montreal Shipping. is Smith is special agent for Montreal Shipping when any vessel controlled by that Company is in the port of New Orleans. is Smith is a family corporation and neither it nor any of the companies heretofore mentioned in this report own shares in the other's company. There is no other relation- ship between Smith and the respective companies other than as described hereinabove. INTERNATIONAL WOODWORKERS OF AMERICA, AFL-CIO 217 The vessel was moored at the Poydras Street wharf, a public dock owned and controlled by an agency of the State of Louisiana. The aforementioned wharf consists of a warehouse and dock area, at which latter point the Bestwood was moored. In order to reach the dock, it is necessary to go through the warehouse. The approach from the street consists of a ramp through the warehouse leading to the upper level or upper berth thereof and a roadway through the warehouse leading to the lower level or lower berth. The two means of ingress are adjacent to each other. At the junction of the commencement of the ramp and the roadway afore- described, about 250 feet from where the Bestwood was moored, the IWA, on April 20, had stationed a picket and a picket sign. The legend on this and other picket signs, later referred to, was as follows: Woodworkers Protest Use of M. V. Bestwood To Break STRIKE of IWA-AFL-CIO in Newfoundland Int. Woodworkers of America AFL-CIO On this same date three pickets, each with a sign, were stationed on the dock alongside the Bestwood, one at the bow or forepart of the ship, one at the gangplank leading from the dock to the ship, and one at the stern or rear of the ship. Daniel White, stevedore foreman for Smith, testified, without controversion, that, pursuant to instructions from Smith to unload paper from the Bestwood, he came to the Poydras Street wharf with two gangs of his longshoremen, a total of 38 men, at approximately 7:45 a.m. on April 20. The longshoremen are members of the International Longshoremen Association and, as indicated, were employees of Smith. White testified that because of the presence of a picket at the ramp leading to the upper berth his men refused to enter. White went to the dock and observcd pickets there. Thereafter, White and his men departed and did not return while the IWA was picketing. Normally, in unloading paper, according to White, some of his men would go to the vessel and some would go to the upper berth of the ware- house where the paper would be unloaded by conveyor from the ship to the upper berth and there stored. White testified that coffee, which another company unloads, was also stored in the upper berth.16 It was testified by A. M. Collins, International representative of the IWA, who was in charge of the picketing, that the two entrances to the Poydras Street wharf, i.e., the ramp and the lower roadway, were entrances to ships at mooring other than the Bestwood. Charles Audibert, a driver for Neptune Supplies, Inc., testified that on April 20 he drove his truck to the Poydras Street wharf and, after passing the picket at the entrance to the warehouse, he parked his truck on the dock parallel to the Bestwood. He had come to deliver provisions to the Bestwood. At the gangplank leading to the ship there were three men, two of whom carried picket signs. As Audibert started to board the ship one of the aforementioned group said, "you better not go on" or "do not go on because there is a strike." Audibert did not board the ship and a member or members of the Bestwood's crew came off the ship and carried the provisions from Audibert's truck on board. Another similar incident on the same day was testified to by Woodrow Weysham also a driver for Neptune Suppliers, Inc.17 On April 24 there was a fire on board the Bestwood which caused substantial damage. Captain Collier of the Bestwood testified that he engaged the services of Taylor Diving and Salvage Company of New Orleans to ascertain the extent of the damage below the water line. The Taylor truck, carrying diving equipment, arrived "Another foreman of Smith, Clinton E. Payne, testified that he was at the wharf on April 20. IIe was a few feet away from the foot of the ramp where a picket was located. An unidentified man drove up in a station wagon and told the picket that his truckdrivers had turned back from the wharf because of the picketing. The speaker asked the picket whether he could load the coffee on his station wagon. The picket asked the speaker if he was with Smith & Son and when the latter said no, the picket told him to go ahead and load the coffee. The Trial Examiner takes cognizance of the latter portion of the foregoing testimony that relates to the picket's remarks and interest. 11 Weysham stated that there was an unattended picket sign at the gangplank. When he started to unload his truck two men came up and told him he could not make delivery. 218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD at the dock with E. L. Taylor, who was the owner or employer, and another man, whom Collier referred to an assistant, and who, according to Collier, may have been the driver of the truck. Collier observed that the pickets spoke to Taylor on the dock and pointed to the picket sign. Taylor, however, came on board and per- formed his job. The picketing at the Poydras Street wharf continued from April 20 to 28, at which later date it was discontinued pursuant to an injunction obtained from the United States District Court upon application by the General Counsel. D. Conclusions The primary dispute in this case was between IWA and Anglo Newfoundland and the situs of that dispute was the woods division of the company in Newfound- land. Ordinarily, the Newfoundland situs, therefore, would be the appropriate locale for any picketing by the IWA and picketing elsewhere would be illegal.18 Respondent takes the position that it was prevented from picketing at the primary Newfoundland situs because of action taken by the government of Newfoundland, supra, and therefore the Board's Washington Coca-Cola doctrine is inapplicable. The General Counsel and the Charging Parties take the position that the laws of Newfoundland simply resulted in the IWA's loss of certification and prevented the local union from calling a strike of employees, without imposing a ban on picketing. While the law of the forum, in this case the United States, is the only law that prevails as such, a relevant foreign law, i.e., the law of Newfoundland, may be a fact to be considered by the forum.19 The record contains no indication that the Emergency Act of Newfoundland has been interpreted by the courts of the Province or by any Canadian court with respect to the question of whether or not it proscribes picketing.20 There is no evidence that the IWA has sought to test the provisions of the Emergency Act nor is there evidence of the procedure therefore.21 Absence judicial interpretation of the Emergency Act by the courts of Newfoundland, the statute itself and the rules of statutory interpretation would be applicable. The Trial Examiner has no guidance before him respecting the intention of the Provincial Legislature in enacting the Emergency Act and therefore the statute itself, which in any event is the first resort in construing it, must be considered. On its face the Emergency Act, previously described in this report, revokes the certification of IWA, Locals 2-254 and 2-255, and does not deal with picketing or, for that matter, with striking 22 However, the significance of certification under the Labour Relations Act of Newfoundland merits attention in this connection. It is the opinion of the Trial Examiner, without deciding, that under Sections 24 and 25, read in conjunction with Sections 10, 11, 12, and 22 of the Newfoundland Act, certification is a prerequisite to a strike by a union or by an employee in a bargain- ing unit.23 The Newfoundland Act does not deal with picketing as such 24 and whether the Emergency Act in itself or in conjunction with the Newfoundland Act prohibited picketing by the local unions or by the International IWA or by neither is not entirely clear.25 Because of the manner in which the situation comes before is Brewery and Beverage Drivers and Workers, Local No. 67, International Brotherhood of Teamsters, etc. (Washington Coca-Cola Bottling Works, Inc.), 107 NLRB 299, enfd. 220 F. 2d 380 (C.A., D.C.). "Beale, The Conflict of Laws, vol. 1, § 5.4. 20 The interpretation of a foreign statute by the courts of the foreign state would ordinarly be controlling. . Sutherland, Statutory Construction, 3d ed., vol. 2„sec. 4601. =It would appear that in a common law jurisdiction the writ of habeas corpus might be available to an imprisoned picket. 'Whether the International Union as such and as distinguished from its two local unions is affected by the statute is not entirely clear. The statute states that the certifi- cation "granted .. . to each trade union named . . . is revoked." The "Schedule" of the statute lists the Unions as, IWA, Local 2-254, and IWA, Local 2-255. Without deciding the scope of a statute of Newfoundland, the Trial Examiner is of the opinion that the statute runs to the local unions, with the International Union named as part of a descriptive term. 21 Section 2 defines "strike" as follows : "Includes a cessation of work, or refusal to work or to continue to work by employees, in combination or in concert or in accordance with a common understanding." u Section 2 of the Newfoundland Act provides : "Every employee has the right to be a member of a trade union and to participate in the activities thereof." . 2S As we have seen, the Emergency Act referred to criminal acts occurring in con- junction with the strikes and to the reluctance of employees to work during the strike, all: INTERNATIONAL WOODWORKERS OF AMERICA, AFL-CIO 219 the Trial Examiner, in the absence of evidence of the construction of the Newfound- land statutes in this respect by either the Newfoundland Labour Relations Board or by the Canadian courts, the Trial Examiner is of the opinion that the afore- mentioned bodies are the proper sources of definitive interpretation of their own laws in the first instance. However, in view of the mandate and exigencies of the applicable United States statute, the National Labor Relations Act, as amended, particularly Sections 8(b) (4) and 10(1) thereof, the Trial Examiner will assume, arguendo, for the purposes of decision in this case, that the IWA was prevented from picketing the primary situs of the dispute in Newfoundland by reason of an act of the Newfoundland legislature 26 Proceeding on the last-mentioned assumption , the question arises whether the inability to picket in Newfoundland, for the reason described, removes the case entirely from the scope of the Washington Coca-Cola doctrine. As the Trial Examiner understands the Board's principle in that and in subsequent cases, it is that if an employer has a place of business where its employees and the general public may be advised by a union that it has a dispute with the employer, the union may not picket that employer at a secondary site. Implicit in the Board's decision dealing with the situation described is the concept that the employer's place of business must not be unduly isolated and must be one where a representative number of employees work with sufficient frequency so that picketing might have a reasonable opportunity for communication. As stated by the Board: "In our Washington Coca-Cola decision, we endeavored to make clear that the doctrine therein enun- ciated was being applied with due regard for the right of the Respondent Union to picket effectively, both from the standpoint of the general public and the particular employees involved in the dispute." Brotherhood of Painters, Decorators & Paper- hangers of America, Local Union No. 193 et al. (Pittsburgh Plate Glass Company), 110 NLRB 455. It is the opinion of the Trial Examiner that the Board has reference to the oppor- tunity to picket effectively when it refers to the right to picket effectively. The opportunity in such a context refers to such physical factors as the location of the employer's place of business and the presence of employees with sufficient frequency at that place of business. If for reasons of illness the union pickets did not appear at such a described situs, it is unlikely that the Union could therefore picket a secondary situs on the ground that it had a right to picket effectively rather than simply an opportunity to picket effectively. It would also appear that if a State court, within the area not preempted by Federal law, enjoined picketing at a primary Washington Coca-Cola situs because of prevading violence threatening public safety,27 there might be substantial doubt as to the legality, under the Coca-Cola doctrine, of the union's contention that it could therefore picket a secondary situs. A different conclusion would mean in effect that a union enjoined from picketing the primary situs because of misconduct would be in a better position than a law- abiding union since only the enjoined union could picket at the secondary situs. By analogous reasoning, it may be urged that in the instant case the IWA had the opportunity to picket at the primary situs in Newfoundland and that it did picket for a time and therefore forfeited its opportunity because of misconduct and, we shall assume, was prevented from picketing thereafter by emergency legislation. Inability to picket the primary situs under such circumstances might not excuse picketing at a secondary situs if the analogy heretofore considered is valid. How- ever, because the record provides no evidence regarding the conduct of the strike in Newfoundland and because of the uncertainties in interpreting and applying a foreign statute in the first instance, the Trial Examiner is of the opinion that there are other well-established principles on which disposition of this case is more appropriately placed. causing a "grave emergency" endangering the industry and the Provincial economy. Whether continued or resumed picketing by the decertified unions or by the International Union would be consistent with the apparent purpose of 'the statute is not readily answered. As a minimum for consistency it would appear that picketing would have to make clear that refusal to work or work cessation was not sought since the latter types of conduct might constitute a strike. The practicalities are another matter. 25 The opposite assumption would invalidate Respondent's picketing in New Orleans under the Board's Washington Coca-Cola doctrine, supra. In the light of the problems of statutory construction heretofore discussed, the Trial Examiner is not disposed to abase his decision on this ground. n Garner v. Teamsters Union, 346 U.S. 485, 488, citing Allen Bradley Local v. Wisconsin Board, 315 U.S. 740, 749. 220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD It is Respondent's position that, after piercing the corporate veils, Anglo New- foundland, with whom it had a dispute, was the controlling interest in the various sales and other arrangements heretofore described and that the Bestwood when it arrived in New Orleans was under the control of and part of the integrated operation of Anglo Newfoundland and that the paper was also part of the latter's company's operation to the same extent as if it was an Anglo Newfoundland warehouse in Newfoundland. Respondent further contended that the picketing in New Orleans was pursuant to a primary strike and that it was neither a Washington Coca-Cola 28 nor a Moore Dry Dock 29 situation. While Congress in enacting the secondary boycott provisions of the Act was concerned with protecting neutral employers who were unconcerned in and powerless to resolve the primary dispute, there are situations where the ostensibly secondary employer is so allied with the primary employer that the interdiction of the Act is not applicable. Where an employer performs "farmed out" work for the struck employer the former will not be protected against picketing by the union.30 The Trial Examiner is of the opinion that the instant case does not present a "farmed out" situation. The manufacture of logs into newsprint was completed by Anglo Newfoundland and the finished product was then sold. The primary dispute actually was at a point prior to manufacturing, viz, the logging operations of Anglo New- foundland's woods division, and the logging as well as the manufacturing were completed by the primary employer. Other situations where the secondary em- ployer may not be protected are where the businesses of the employers are so inter- meshed that they constitute in effect a single operation 31 or where there is common ownership and control of the business of the employers involved.32 Before considering the concepts of integrated operation and common ownership and control and without repeating all the material heretofore set forth in detail regarding Anglo Newfoundland and various other companies, that material may be summarized as follows: There is no common ownership of Anglo Newfoundland and Anglo-Canadian; these two companies own all the stock of Anglo Paper, to whom the newsprint cargo of the Bestwood was initially sold; Anglo Newfoundland and Anglo^Canadian have some officers and directors in common, e.g., E. M. Moore is chairman of both boards of directors and W. E. Soles is president and general manager of Anglo-Canadian and a director of Anglo Newfoundland; T. R. Moore is president and operating head of Anglo Newfoundland and a director of Anglo- Canadian; through a jointly and equally owned holding company, St. Charles, Anglo Newfoundland, and Anglo-Canadian own all the stock of Montmorency Paper, which owned the newsprint on the Bestwood at the time of the picketing in New Orleans; Anglo Newfoundland owns all the stock of Montmorency Shipping which trip chartered the Bestwood from Candwood; Anglo Newfoundland and Montmorency Shipping have officers and directors in common; Montreal Shipping, an independent company, operates Montmorency Shipping; the Bestwood is owned by Fenwick and was time chartered by Candwood, neither of which companies has any stock or managerial relationship with Anglo Newfoundland or the other companies. As previously noted there is affirmative testimony, not controverted, that all the foregoing companies are operated and managed independently, without common control or supervision, without employees in common, and without a common labor policy. Information of the foregoing nature was peculiarly within the knowledge of the companies and their officers and for this reason would be acceptable as entirely accurate or would be subjected to testing only by a wholesale scrutiny of corporate operations in the nature of a fishing expedition. Since the latter step was not attempted and was, it would appear, unwarranted, the Trial Examiner credits the foregoing evidence regarding independent operation. However, in the Trial Examiner's opinion, it is a matter of legitimate inference that some measure of accommodation and potential for intercorporate liaison exists in a situation such as has been described as contrasted with companies not having such interlocking relationships. These relationships, though, add up to less than the situation in 28 Supra. 20 Moore Dry Dock Company, 92 NLRB,547. 30Douds v. Metropolitan Federation of Architects etc. (Project Engineering Company), 75 F. Stipp. 672, (D.C., S.D.N.Y.) ; N.L.R.B. v. Business Machine and Office Appliance Mechanics, etc. (Royal Typewriter Co.), 228 F. 2d 553, 557-558 (C.A. 2). 3i National Union of Marine Cooks and Stewards, et al. (Irwin-Lyons Lumber Com- pany), 87 NLRB 54; J. G. Roy and Sons Company, 118 NLRB 286, reversed in J. G. Roy and Sons Company v. N.L.R.B., 251 F. 2d 771 (C.A. 1). 32J. G. Roy and Sons Company, supra; Bachman Machine Company, 121 NLRB 1229, reversed in Bachman Machine Company, a corporation v. N.L.R.B., 266 F. 2d 599 (C.A. 8). INTERNATIONAL WOODWORKERS OF AMERICA, AFL-CIO 221 Irwin-Lyons Lumber Co., supra, where stock ownership as well as managerial con- trol was vested in and exercised by the same individuals. The same conclusion is in order in comparing the instant situation with those in J. G. Roy and Sons Co., supra, and in Bachman Machine Company, supra 33 Prescinding from the matter of the applicability of the Washington Coca Cola doctrine, heretofore discussed, and arguendo, postulating the facts in the light most favorable to Respondent, we will assume that Anglo Newfoundland, owner of the newsprint, engaged the services of a carrier, the vessel Bestwood, with captain and crew, from the owner, Fenwick.34 Proceeding on this assumption, the Bestwood, with no Anglo Newfoundland employees or employees other than the crew, em- ployees of Fenwick, arrived in New Orleans with cargo of newsprint owned by Anglo Newfoundland. The dock at New Orleans was, in the view most favorable to Respondent, a common situs. This concept, in the opinion of the Trial Examiner, is a tenuous one in the light of the absence of any Anglo Newfoundland employees. But even as common situs picketing, the activity failed to conform to the standards established by the Board in the Moore Dry Dock case.35 The picket signs protested the use of the Bestwood to break an IWA strike in Newfoundland. There was no reference to Anglo Newfoundland, with whom the Union had its dispute. The picketing was not confined to the immediate vicinity of the Bestwood but also took place at the entrance to a public warehouse providing ingress to locations other than the Bestwood.36 Within the meaning of Section 8(b) (4) (A) of the Act, the pickets induced employees of Smith, Neptune Supplies, Inc., and of Fenwick with an object of causing their respective employers to cease handling or doing business with, apparently, the owner of the cargo.37 The effect on the aforementioned sec- ondary employers was not incidental but the evidence establishes that, particularly with respect to Smith, the stevedoring contractor, it was the primary objective. In the absence of any Anglo Newfoundland employees it is difficult to discern any other objective than an appeal to secondary employees. In viewing the evidence as a whole, it is the Trial Examiner's opinion that the most accurate conclusion regarding Respondent's course of conduct is that Respond- ent was engaged in a product boycott, i.e., the newsprint. Under well-established principles, this conduct, with the inducement of employees as heretofore found in the instant case, was illegal and violative of Section 8(b) (4) (A) of the Act38 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in con- nection with the operations of the employers set forth in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and among the States and the Commonwealth of Canada, a foreign country, and tend to lead to labor disputes obstructing commerce and the free flow of commerce. V. THE REMEDY It having been found that the Respondent has engaged in activities violative of Section 8(b) (4) (A) of the Act, it will be recommended that it cease and desist 331n the Roy case the court reversed the Board on the ground that potential, not actual, control over labor relations was shown. The Board in the Bachman case found actual control in the one individual but was reversed by the court of appeals. Cf. American Furniture Company, Inc., of El Paso, 110 NLRB 1490, on the concept of single employer. See also National Cement Products Co. of Toledo, Ohio, 115 NLRB 1290, 1291-1292. 3A Intermediaries in the engagement or direction of the Bestwood, Montreal Shipping and Ca'ndwood, like Fenwick, have no stock or officer relationship with Anglo New- foundland or the companies with which Anglo Newfoundland has connections as described. 3° Supra. 3° The Howland Dry Goods Company, 97 NLRB 123. 37 The picketing of the warehouse entrance would conceivably affect any users of the warehouse or dock. 38 Sealright Pacific, Ltd., 82 NLRB 271, where pursuant,to its policy to picket, wherever found, the products destined to and from the Sealright plant, the union picketed the docks of a terminal company and a motor express company ; John E. Martin, et al., d/b/a Sound Shingle Co., 101 NLRB 1159, enfd. in N.L.R.B. v. Washington- Oregon Shingle Weavers' District Council, et al., 211 F. 2d 149 (C.A. 9) ; Sand Door and Plywood Co., 113 NLRB 1210, enfd. 241 F. 2d 147 (C.A. 9), affirmed 357 U. S. 93. See also Osceola Foods, Inc., 107 NLRB 161, where there was inducement of employees of a secondary employer not to handle goods of a primary employer. 222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD therefrom and take certain affirmative action designed to effectuate the policies of the Act. Upon the basis of the above findings of fact, and upon the entire record in the case, the Trial Examiner makes the following: CONCLUSIONS OF LAW 1. International Woodworkers of America, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 2. By inducing and encouraging employees of T. Smith & Son, Inc., Neptune Supplies, Inc., and Wm. France, Fenwick & Company, Limited, to refuse in the course of their employment to perform work for their respective employers, an ob- ject thereof being to force and require T. Smith & Son, Inc., to cease doing business with Montmorency Paper Company, Inc., and Montreal Shipping Company, Lim- ited, or in the alternative with Anglo Newfoundland Development Company, Lim- ited; an object thereof being to force and require Neptune Supplies, Inc., to cease doing business with Montmorency Paper Company, Inc., and Montreal Shipping Company, Limited, or with any person or persons on or in control of the SS Best- wood; an object thereof being to force and require Wm. France, Fenwick & Com- pany, Limited, to cease doing business, directly or indirectly, with Montmorency Paper Company, Inc., Montmorency Shipping, Limited, Montreal Shipping Company, Limited, or in the alternative with Anglo Newfoundland Development Company, Limited, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(b) (4) (A) of the Act. 3. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. [Recommendations omitted from publication.] Thayer, Inc. of Virginia and International Hod Carriers', Build- ing and Common Laborers' Union of America, Local Union No. 453, AFL-CIO. Case No. 5-CA-1257. November 20, 1959 DECISION AND ORDER On December 10, 1958, Trial Examiner Eugene E. Dixon issued his Intermediate 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 Interme- diate Report attached hereto. Thereafter, the Respondent filed excep- tions to the Intermediate Report, together with a supporting brief. 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 Interme- diate Report, the exceptions and brief, and the entire record in the case, and finds merit in one of the Respondent's exceptions. Accord- ingly, the Board adopts the findings, conclusions, and recommenda- tions of the Trial Examiner, with the modifications set forth below. THE REMEDY One evening during the strike, strikers Vincile Perkins and Roger Lacy approached nonstriking employees Bobby Baughman and Bobby Layne and asked them to cease working and join the strike. 125 NLRB No. 25.