Seafarers' Int'l Union of North America, Etc.

SEAFARERS' INT'L UNION OF NORTH AMERICA, ETC. 1023 Seafarers' International Union of North America, Atlantic & Gulf District, Harbor & Inland Waterways Division, AFL- CIO and Gulf & Caribbean Towing Company , Inc. Case No. 15-CC-88. December 21, 1959 DECISION AND ORDER On September 23, 1959, Trial Examiner Arnold Ordman 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 In- termediate Report attached hereto. Thereafter, the Respondent filed exceptions to the Intermediate Report. Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, as amended, the Board has delegated its powers in connection with this case to a three-member panel [Members Rodgers, Jenkins, and Fanning]. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. ORDER Upon the entire record in this case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Seafarers' In- ternational Union of North America, Atlantic & Gulf District, Harbor & Inland Waterways Division, AFL-CIO, its officers, agents, repre- sentatives, successors, and assigns, shall: 1. Cease and desist from engaging in, or inducing or encouraging employees of Gulf & Caribbean Towing Company, Inc., or of any employer other than Crescent Towing & Salvage Company, Inc., to engage in, a strike or a concerted refusal in the course of their em- ployment to perform any services, where an object thereof is to force or require Gulf & Caribbean Towing Company, Inc., or such other employer, to cease doing business with Crescent Towing & Salvage Company, Inc., or with any other person. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Post at its offices, meeting halls, and at all places where Re- spondent customarily posts its notices, copies of the notice attached 125 NLRB No. 105. 1024 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to the Intermediate Report marked "Appendix." I Copies of said notice shall also be posted by Respondent, subject to permission being granted by the respective authorities in charge thereof, at the premises of Atlantic Coast Lines Terminal in Tampa, Florida, at the Gulf Oil Company Docks in Gretna, Louisiana, and at the Charbonnet Street Wharf in New Orleans, Louisiana. Copies of said notice, to be fur- nished by the Regional Director for the Fifteenth Region, shall, after being duly signed by an authorized representative of Respondent, be posted by Respondent immediately upon receipt thereof at the desig- nated locations, in conspicuous places, and shall be maintained by it thereafter for a period of 60 consecutive days. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for the Fifteenth Region, in writing, within 10 days from the date of this Order, what steps Re- spondent has taken to comply herewith. 1 This notice shall be amended by substituting for the words "The Recommendations of a Trial Examiner" the words "A Decision and Order." 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." 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 16 and 17, 1959, on complaint of the General Counsel and answer of Seafarers ' International Union of North America, Atlantic & Gulf District, Harbor & Inland Waterways Division , AFL-CIO, herein called Respondent . The issue litigated was whether Respondent violated Section 8 (b)(4)(A) of the National Labor Relations Act, as amended . General Counsel and counsel for Respondent filed briefs which have been duly considered. Upon the entire record , and from my observation of the witnesses, I hereby make the following: FINDINGS AND CONCLUSIONS 1. THE COMMERCE FACTS The complaint alleges and the answer admits that Gulf & Caribbean Towing Company, Inc., the Charging Party, herein called Gulf, is a Delaware corporation with its principal office and place of business in New Orleans, Louisiana; that it is an instrumentality and link in interstate commerce and is engaged in the waterborne transportation of freight along the Gulf of Mexico and inland waterways; that in a representative 2-month period at the beginning of 1959, it received over $30,000 in revenue for such transportation services and that its -anticipated revenue from this source for the entire year would exceed $150,000. I find that Gulf is engaged in commerce within the meaning of the Act and that the Board has jurisdiction over the subject matter of this proceeding. H. THE LABOR ORGANIZATION INVOLVED The complaint alleges, the answer admits, and I find that Respondent is a labor organization within the meaning of the Act. III. THE UNFAIR LABOR PRACTICES A. The issue presented The unfair labor practice alleged in the complaint in this proceeding arises out of the picketing by Respondent of the vessel MV Humrick, a tugboat owned by SEAFARERS' INT'L UNION OF NORTH AMERICA, ETC. 1025 Crescent Towing & Salvage Company, Inc., herein called Crescent. Respondent, which represented Crescent 's employees, had a labor dispute with Crescent I and was striking and picketing Crescent 's base of operations in New Orleans , Louisiana, where Crescent's fleet of vessels, including the Hum rick, was stationed . On or about March 15 , 1959, while the strike was in progress , Crescent leased the Humrick to Gulf for a 6-month period under a bareboat charter? Gulf removed the Humrick from Crescent's struck premises, selected and assigned a crew to the vessel, and thereafter utilized it in the towing of barges for Aiple Towing Company, Gulf's principal customer. On the Humrick's arrival in Tampa, Florida, with an Aiple barge in tow, Respondent picketed the vessel with signs indicating that Respondent was engaged in a labor dispute with Crescent and, on the Humrick's return trip to the New Orleans area , again picketed the vessel with identical signs. Although advised at the inception of the Tampa picketing and thereafter that Gulf was oper- ating the Hu,nrick under bareboat charter in the performance of services for Aiple Towing Company and that Crescent had no interest in that operation , Respondent nevertheless continued to picket the Humrick. General Counsel contends that by this picketing and by related conduct, all of which is dealt with in more detail hereunder, Respondent, in order to further its dispute with Crescent , induced and encouraged employees of Gulf and of other employers to engage in a strike or concerted refusal in the course of their employ- ment to perform services with an object of forcing or requiring Gulf and other employers or persons to cease doing business with Crescent , Aiple Towing Company, and other employers or persons , thereby violating Section 8 (b) (4) (A) of the Act. Respondent denies that it engaged in any unfair labor practices . Respondent does not dispute that Crescent leased the Humrick to Gulf under a bareboat charter and that Gulf was utilizing the Humrick to perform towing services for the Aiple Towing Company . Respondent also admits that on or about March 19, 1959, it commenced picketing the Humrick with signs indicating that Respondent was engaged in a labor dispute with Crescent, and that it continued to engage in like picketing thereafter notwithstanding advice that the Humrick was under bareboat charter to Gulf and that Crescent had no interest in the Humrick's current opera- tion.3 Respondent's defense, however, as alleged in its answer to the complaint and as amplified at the hearing , is that Gulf and Aiple Towing Company were not neutrals to the dispute between Respondent and Crescent , that Aiple Towing Com- pany had sought to have its towing services performed by Crescent , but on dis- covering that Crescent was being struck arranged to have the strikebound Humrick chartered to Gulf in which Frank E . Aiple of Aiple Towing Company had a 50 per- cent interest and over which Aiple Towing Company exercised a substantial control. Accordingly, Respondent argues that an ally relationship existed between Gulf and Aiple Towing Company on the one hand and Crescent on the other whereby Gulf was doing struck work. Under these circumstances , •Respondert asserts the Humrick, like the other vessels owned and operated by Crescent, continued to be the situs of the dispute between Respondent and Crescent , and Respondent was entitled to picket that vessel. A summary of the relevant evidence, which is virtually undisputed and which I credit, follows. I The record does not reveal the precise nature of this dispute except to show that it apparently Involved negotiations for a new contract between Respondent and Crescent. 2 A bareboat 'harter , as the term itself suggests , is an arrangement common in the maritime industry whereby the owner of a vessel ]eases the "bare boat" to a charterer for a stated period of time . During that period the charterer assumes full control of and responsibility for the manning and operation of the vessel subject only to minimum provisions designed to protect the ultimate interest of the lessor. 3 On March 28, 1959 , 10 days after the picketing of the Ha nirfck began, Respondent sent a wire to Gulf demanding an immediate meeting for purposes of bargaining and a contract covering the unlicensed employees of the Humrick . On the same day Respondent added the name of Gulf to its picket signs, which theretofore had named Crescent only. General Counsel contends that this action was merely an obvious attempt to disguise Respondent's continued secondary boycott. However, since General Counsel concedes that it has adduced no evidence upon which Respondent could be found to have violated Section 8(b) (4) (A) on or after March 28, 1959, the Trial Examiner will address himself solely to the legality of Respondent's conduct before that date. 1026 DECISIONS OF NATIONAL LABOR RELATIONS BOARD B. The evidence 1. The events leading to the chartering of the Humrick Gulf & Caribbean Towing Company, Inc., herein called Gulf, was incorporated on December 30, 1958. The incorporation of Gulf was prompted several months earlier when Aiple Towing Company,4 which owned a fleet of about 65 barges for the transportation of various products on the Mississippi River system, decided to go into the offshore barge business so that its equipment could be towed from the Mississippi River directly into the Gulf of Mexico and the Caribbean. Preparatory to this new venture, Frank E. Aiple, head of Aiple Towing Company, contacted Herman Nebel, Jr., who had been towing Aiple barges for several years, and asked Nebel whether he would be interested in doing Aiple's offshore towing. After a few conferences between Nebel and Aiple at the latter 's home office in Stillwater, Minnesota, concerning terms and the type of equipment that would be needed, Nebel agreed to understake the offshore towing and Gulf was incorporated for that primary purpose. Nebel did not at the time have tugboats capable of doing offshore towing and on the advice of bankers whom he consulted decided to charter such equipment and find out how the operation went before investing any major funds. Accordingly, even before Gulf was incorporated, Nebel, pursuant to an understanding reached in his discussions with Aiple, scouted around the New Orleans area for suitable tugboats. The tugboat Ocean Prince was finally selected from among several vessels under consideration and on January 2, 1959, Gulf chartered the Ocean Prince from its owner, Smith Brothers Towing Company.5 Aiple Towing Company and its New Orleans agent, Ray A. Goodrich, cooperated with Nebel in his search for suitable equipment and actively participated in the negotiations culminating in the bareboat charter of the Ocean Prince. The charter, which also gave Gulf an option to purchase the Ocean Prince, was executed by Warren Apgar on behalf of Smith •Brothers Towing Company and by Herman Nebel, Jr., on behalf of Gulf. Gulf leased its second tugboat, the Humrick, from Crescent under a bareboat charter dated March 14, 1959. Late in January or early in February of that year, Nebel had entered into preliminatry discussions with William S . Smith and Warren Apgar, vice presidents of Crescent, regarding the possibility of chartering a large tug of great horsepower to tow a 5,000-ton barge, the Aiple-100, which was then under construction by the American Marine Company for Aiple Towing Company. Smith suggested the tug William S. Smith, but Nebel stated he would rather have the Humrick. No final arrangements were made at that time. On March 13, 1959, the need for such a tug became urgent . On that day an Aiple barge met with an accident and sank off Tampa, Florida. The Aiple-100, which had been completed in the meantime , was selected as a replacement barge to pick up cargo at Tampa. Goodrich, New Orleans agent for Aiple, called approxi- mately half a dozen companies in the area for tug service for the Aiple-100 and, meeting with no success in that regard, called William S. Smith of Crescent on the evening of March 13 to ask where Aiple might secure additional towing power. Smith advised Goodrich that Crescent could not furnish services because of the strike, offered to aid Goodrich in his search, and then suggested that Crescent could bareboat charter the Humrick.6 Goodrich asked whether Crescent could charter the Humrick to Gulf and Smith replied affirmatively? Immediately following this conversation, Goodrich called Mr. Lehmicke, general manager of Aiple Towing Company, at Stillwater, Minnesota, and told him that he had found a boat which could be made available on a bareboat charter basis and that it could be chartered to * So far as appears, Aiple Towing Company is an individual proprietorship owned by Frank F. Aiple. 5 The Ocean Prince was the sole asset of Smith Brothers Towing Company, but was operated as part of the Crescent fleet. Crescent and Smith Brothers Towing Company had the same officers and their offices were at the same address. Crescent had for some years leased some of its vessels on a bareboat charter basis and its contract with Respondent permitted it to engage in that practice. The contract did contain a provision, however, making Crescent liable in damages to Respondent for moving any of its vessels from behind a picket line except when necessary for the safety bf the vessel. 7 Smith's account of this conversation was virtually identical with that given by Goodrich except that Smith did not recall whether Goodrich had mentioned Gulf. In view of Goodrich's positive testimony on this point as contrasted with Smith's un- certainty and in view of the events transpiring immediately thereafter, I find that Gulf was mentioned as set forth in the text. SEAFARERS' INT'L UNION OF NORTH AMERICA, ETC. 1027 Gulf. Lehmicke promptly called Smith, confirmed that the Humrick was available for bareboat charter, but did not discuss either price or terms of a bareboat charter. Lehmicke then called Nebel and later on the evening of March 13 or on the following day Nebel called Smith.8 Nebel asked Smith whether the Humrick was available for charter, Smith said it was, and in the course of that conversation and later con- versations between Nebel and Crescent officials, on March 14, the terms and condi- tions of a bareboat charter of the Humrick from Crescent to Gulf were agreed upon. Telegrams were exchanged between Gulf and Apgar on March 14 confirming the charter in general terms and the charter was embodied in a formal document the following week. In substance, the bareboat charter for the Humrick followed the customary pattern of such instruments. Gulf was solely responsible for the manning and opera- tion of the Humrick. The term of the charter was for 6 months from March 15, 1959, at a rate of $200 per day payable in advance on a monthly basis.9 Gulf made its first payment to Crescent with money advanced by Aiple on the basis of Gulf's anticipated revenue. Gulf took possession of the Humrick on March 15, 1959. Shortly after noon of that day, Nebel sent in a small tug to remove the Humrick from Crescent's fleet which he knew was strikebound, towed the Hunirick downstream 3 or 4 miles, and put a crew and stores aboard.10 The Hum rick was then assigned to pick up the Aiple-100 and tow it to Tampa, Florida, with an intermediate stop at Gulfport. The Humrick and its tow, the Aiple-100, arrived at Tampa at about 5 p.m. on March 18, and docked at elevator No. 5 of the Atlantic Coast Lines Terminal at noon the next day, March 19. 2. The picketing of the Humrick The complaint alleges and the answer admits that since on or about March 19, 1959, Respondent, by its officers and agents, picketed the Humrick, operated by and for Gulf, and by employees of Gulf at various ports including Tampa, Florida; Gretna, Louisiana; and New Orleans, Louisiana. In addition, the complaint alleges and the answer admits that from March 19 to 28, the period here relevant, Respond- ent, while picketing the Humrick, used picket signs which read: No Contract No Work Employees of Crescent Towing & Salvage Co., Inc. On Strike For Decent Wages & Working Conditions Seafarers International Union AFL-CIO The attendant circumstances are set forth hereunder. "Nebel testified that he called Smith late on the evening of March 13. Smith testified that the call was on March 14. I deem it unnecessary to resolve this discrepancy since such a resolution would not affect any material issue herein. 9 The Hamrick charter differed from the Ocean Prince charter in four respects. The first difference was that the Hamrick charter ran for 6 months rather than 14 months which was the case with the Ocean Prince. The second difference was that the Ocean Prince charter gave Gulf a purchase option, which was not true in the case of the Hamrick. The third difference was that the daily rate charge for the Hamrick was higher because Crescent regarded it as a better all-round boat and more valuable to Crescent for that reason. The fourth difference was that Crescent retained the insurance on the Humrick and was reimbursed by Gulf for the premiums because a change of insurance coverage for a 6-month term would be unduly expensive for Crescent on expiration of the charter. 10 The crew of the Humrick consisted of a captain, two mates, two engineers , two able- bodied seamen, an ordinary seaman, two wipers, and a cook. In accord with common practice under bareboat charters, Nebel hired the two engineers who had serviced the vessel under Crescent. Nebel hired the remainder of the crew, some of whom had worked for Crescent before and some of whom had worked for Nebel before, independently. Nebel.likewise made independent arrangements for fueling and provisioning the Hamrick except that Gulf paid Crescent for fuel already aboard the vessel at the time it was taken over. 1028 DECISIONS OF NATIONAL LABOR RELATIONS BOARD As already noted, the Humrick was removed from Crescent's struck fleet on March 15 and was assigned to tow the Aiple-100 to Tampa. Respondent, which was engaged in picketing Crescent, learned that the Humrick had been moved, found out that it was being sent to Tampa, and directed Bennie Gonzalez, acting port agent for Respondent in Tampa, to find out where the Humrick would dock and to set up a picket line there. So far as appears, Respondent was unaware at this time that the Humrick had been chartered to Gulf or that any change had occurred in the status of the Humrick as a vessel owned and operated by Crescent. In any event, when the Humrick and its tow, the Aiple-100, docked at the Atlantic Coast Lines Terminal on March 19, 1959, Respondent set up a picket line. Goodrich learned of the picketing when, pursuant to his customary practice as agent for Aiple, he came to Tampa on March 19 to see that the Aiple-100 was properly loaded. Arriving at the terminal at about 1 p.m., Goodrich saw two cars displaying picket signs parked at the head of the roadway leading into the terminal. Following sev- eral preliminary conversations, one of them with the terminal superintendent, who advised him to see Bennie Gonzalez, Goodrich spoke with Gonzalez, identified him- self as the representative of the owner of the Aiple-100, and asked what the problem was. Gonzalez replied that the Humrick was a struck tug. Goodrich explained that the Humrick was on bareboat charter to Gulf, that Crescent was not involved, and that the Aiple barge was being delayed. Gonzalez retorted that whether the Humrick was on bareboat charter or not, the vessel was still under Respondent's agreement with Crescent and that Respondent would follow the Humrick anywhere in the world so long as the dispute with Crescent lasted. Gonzalez added that Respondent would pursue this line of conduct even if a Crescent vessel were sold outright. u Goodrich then returned to the Humrick, advised its captain pursuant to the termi- nal superintendent's direction that the Humrick could take on stores, water, and supplies, but that the Humrick and its tow would have to be shifted away from the dock not later than 6 a.m. the following morning so that other ships could be loaded and unloaded there without strike interference. Goodrich then left the terminal to return to New Orleans. Despite Goodrich's statement to Gonzalez Respondent was still picketing the Humrick when Goodrich left the terminal. The Humrick and its tow left the dock the following morning for a nearby an- chorage. The Ocean Prince, which Respondent did not regard as involved in the dispute, was then assigned to service the Aiple-100 and the Huinrick in turn was reassigned to tow two smaller Aiple barges to New Orleans. In the meantime Respondent received further confirmation that the Humrick was no longer being op- erated by Crescent but was under bareboat charter to Gulf which, in turn, was under contract to perform services for Aiple Towing Company. A telegram to that effect, dated March 20, was sent by Gulf to Respondent at Tampa and another to Respond- ent at its New Orleans office. Respondent wired back on the morning of March 21 over the signature of Bennie Gonzalez that the Humrick had been manned by Crescent employees until the strike with Crescent began and that in Respondent's view Gulf, by manning the Humrick thereafter, had allied itself with Crescent and was performing struck work. Gulf immediately denied by return wire that it was in any sense an ally of Crescent, reiterated that it was operating the Hamrick under bareboat charter in the performance of services for Aiple, that those services had never been contracted to Crescent nor were they to have been performed by Crescent, and that the bareboat charter of the Humrick was in conformity with Crescent's prestrike business policy. An almost identical interchange of telegrams took place between Aiple Towing Company and Respondent. On March 20 Aiple, advised by Goodrich the previous day of the picketing, telegraphed Respondent at Tampa, Florida, to confirm that the Humrick was under bareboat charter to Gulf, that Gulf was performing towing services for Aiple on a per ton basis, and that Aiple had no relationship, business or otherwise, with Crescent. Respondent's answering telegram, dated March 21, was identical to that it had sent on the same date to Gulf. Aiple's reply, like Gulf's, emphasized that Aiple was not under contract and had never had a contract with Crescent, that it at no time ever requested or used Crescent's towing services, and that Aiple's towage contract with Gulf long predated the Crescent strike and covered any tug or tugs Gulf might elect to provide. Notwithstanding Goodrich's oral statement to Gonzalez and notwithstanding the confirmatory telegrams, already described, setting forth the charter basis under which u O. W. Moody, Jr., who was the New Orleans dispatcher for Respondent and was co- ordinaiting the picketing activities respecting the Humrick, testified that he fully endorsed Gonzalez' position in this regard. SEAFARERS' INT'L UNION OF NORTH AMERICA, ETC. 1029 the Hum rick was operating and the nature of the service the Humrick was perform- ing, Respondent did not discontinue its picketing of that vessel . The Humrick re- turned to the New Orleans area on March 26, 1959, dropped its two-barge tow at Star Towing Company and proceeded to the Gulf Oil Company docks at Gretna, Louisiana, across the river from New Orleans , to take on fuel. The following morn- ing, March 27, the Humrick went to the Charbonnet Street wharf , a public dock operated under the supervision of the board of commissioners , port of New Orleans.la Respondent admittedly picketed the Huinrick both at the Gulf Oil Company docks at Gretna, and at the Charbonnet Street wharf in New Orleans, using picket signs identical to those used in Tampa, Florida . 13 The picketing at the Charbonnet Street wharf took place alongside the ladder leading down to the Humrick while the em- ployees on the Humrick were aboard. Gulf thereupon sent a further telegram to Respondent , dated March 27, again ad- vising Respondent that the Humrick was under bareboat charter to Gulf which had. no connection with Crescent . The telegram further advised that Gulf was filing, secondary boycott charges against Respondent that day. 3. Activities incidental to the picketing Raymond Wallace Camus was hired by Gulf on March 15 as a wiper aboard the Humrick. Camus had previously worked for Gulf aboard the Ocean Prince and before that had worked for Crescent . On the evening of March 26 , while the. Humrick was taking on fuel at Gretna , Camus left the Humrick to take a walk across the street and was accosted by Martin Gould, patrolman for Respondent, to- gether with several other employees of Crescent who were on strike against that firm. One of the strikers suggested that Camus get off the Humrick because Camus was keeping the strikers from working , and Gould said , "If you get off, I think you'd be doing the right thing." Camus, who did not want to get into trouble with. the "whole gang," agreed that he would get his clothes and get off the vessel. That night Camus went home and did not return to the Humrick until the next morning. In all, six Gulf employees aboard the HuntMk and a chief mate quit work during the period between March 18 and 28. 4. The evidence relating to the "ally" and "struck work" contentions As already indicated , Aiple Towing Company in the latter part of 1958 decided to expand its inland waterways operations and have its barges towed to Gulf of Mexico and Caribbean Sea ports . To that end Aiple contacted Herman Nebel, Jr., who had. for several years furnished towing services to Aiple on its inland waterways opera- tion, and asked Nebel if he would furnish offshore towing services . After several, preliminary conferences , Gulf was incorporated on December 30, 1958, for that primary purpose. Nebel became president and treasurer of the new corporation and Georgia L. Nebel, his wife, became secretary . Frank E. Aiple , who held 50 percent of the stock , became vice president. The same three individuals constituted the board of directors of Gulf. Although Frank E. Aiple owned 50 percent of the stock of Gulf, Aiple Towing Company and Gulf operated as separate entities. Aiple Towing Company had its home office in Stillwater, Minnesota, and Gulf's office was in Nebel's home in New Orleans. Each concern kept its own records. Aiple Towing Company and its New Orleans agent, Ray A. Goodrich , did participate with Nebel in the preliminary activity and negotiations leading to the chartering of the Ocean Prince and the Hum- rick, the two tugboats operated by Gulf. As Goodrich explained in the course of his testimony, Aiple Towing Company had a vital interest in seeing that the Gulf equipment was suitable for its principal function of towing Aiple barges . On the. other hand , Nebel consummated the negotiations and the charters ran from the 1' The record, while not altogether clear on this issue, indicates that the Humrick, after dropping the two barges, stopped at the Charbonnet Street wharf for a brief interval on March 26 to take on stores before proceeding to the Gulf Oil Company docks for fuel. We are concerned , here , however, only with the events at Gulf Oil Company docks on the evening of March 26, and at the Charbonnet Street wharf starting the following morning. "The Humrick left the Charbonnet Street wharf on March 28 . As already indicated (footnote 3), Respondent on that day made a bargaining demand upon Gulf and there- after changed the wording of its picket signs to include the name of Gulf as well as the name of Crescent which was the only firm name theretofore appearing on the picket signs. 535'828-60-vol. 125-66 e 1030 DECISIONS OF NATIONAL LABOR RELATIONS BOARD owners of the two vessels to Gulf. Nebel also made arrangements for fuel and pro- visions and did the recruiting of the crews for the two vessels without advice or consultation with Aiple. There was no interchange of employees between Gulf and Aiple. Aiple also advanced funds to Gulf to meet the first monthly payment on the Hum- rick and on occasion advanced operating funds to Gulf. These advances were made, however, on the basis of Gulf's anticipated revenue for services to be rendered to Aiple and were repaid out of that revenue. To the extent that the principal opera- tion of Gulf was the towing of Aiple barges between New Orleans and points in the Gulf of Mexico and the Caribbean Sea, Goodrich, as New Orleans agent for Aiple, very frequently transmitted orders directly from his principal to the captains of the two Gulf vessels regarding the scheduling and handling of Aiple tows.14 Goodrich, however, either cleared in advance, or subsequently notified, Nebel or his wife of any orders he gave in that regard. There is no evidence, moreover, that Aiple took any part in the occasional operations which Gulf performed for concerns other than Aiple or that Gulf was in any any way concerned when Aiple utilized, as it sometimes did, other towing facilities." Goodrich credibly testified that, to his knowledge, the relationship between Gulf and Aiple Towing Company was a busi- ness relationship only. The relationship between Aiple Towing Company and Crescent can also be briefly described. Crescent has never performed any work for the Aiple Towing Company. Indeed, so far as appears, the only contract between Aiple Towing Company and Crescent arose out of the former's efforts on March 13, 1959, to obtain a tug of suf- ficient horsepower to tow the Aiple-100 to Tampa. The nature of these efforts has already been set forth. Without recapitulating that evidence in detail, it appears that Ray Goodrich, after unsuccessfully contacting several other companies; tele- phoned William S. Smith, vice president of Crescent, for help in that regard. Good- rich, unaware of the strike against Crescent, admittedly considered the possibility of hiring Crescent to tow the Aiple-100. However, Smith informed Goodrich that Crescent was being struck, offered to help Goodrich in his search for a suitable tug, and finally offered to charter the Humrick. Smith did not know at the time that Goodrich was agent for Aiple Towing Company. In any event, Goodrich did not take up Smith's offer to charter the Huinrick but rather initiated a series of calls which ultimately resulted in the charter of the Humrick to Gulf. As already set forth also, Nebel had independently discussed such a charter with Crescent about a month and a half earlier. Nebel, however, had neither directed Goodrich to call Smith, nor was he informed that the call was to be made. The relationship between Gulf and Crescent has likewise already been set forth. Crescent had no business relationship with Gulf prior to the chartering of the Humrick 16 and except for dictating, pursuant to standard practice, that the two engineers who had serviced the Humrick be retained by Gulf as part of its crew, played no role in the operation of the Humrick while it was under charter. The only financial transactions between Gulf and Crescent were the payment by Gulf of the charter rental which had been agreed upon by Crescent and Gulf,17 and the payment of certain incidental expenses for fuel aboard the Hunmrick at the time of the charter, for insurance which was carried in Crescent 's name, and for use of the tug radio which was likewise carried in Crescent's name. In chartering the Hwnrick, Crescent was following a chartering practice in which it had engaged for many years and which was recognized and permitted under its labor agreement with Respondent. C. Analysis, contentions of the parties, concluding findings The ultimate issue to be resolved in this case is whether Respondent, by picketing the Humrick on various occasions between March 19 and 28 and by its related con- duct (i.e., solicitation of employee Camus ), violated Section 8(b)(4)(A) of the 1; Goodrich testified that as between himself and the Gulf office, he gave direct orders to the captains of the Ocean Prince and the Humrick about 50 percent of the time. Is Goodrich admitted that he had never given orders to tugboats operated by companies other than Gulf without going through their offices. However, Goodrich explained that these were isolated situations and did not involve a continuing business relationship like that between Aiple and Gulf. Io The Ocean Prince, as previously noted, was chartered by Gulf from Smith Brothers Towing Company. I7 The evidence is undisputed that Aiple Towing Company did not participate in any way in the discussion of the terms and conditions of the Hamrick charter. 0 SEAFARERS' INT'L UNION OF NORTH AMERICA, ETC. 1031 Act. That section, so far as here relevant , makes it an unfair labor practice for a labor organization or its agents to induce or encourage the employees of any employer to engage in a strike or a concerted refusal in the course of their employment to perform any services, where an object thereof is: (A) forcing or requiring . any em- ployer or other person . . . to cease doing business with any other person; Section 8(b) (4) (A ) is part of a statutory scheme which embodies "the dual con- gressional objectives of preserving the right of labor organizations to bring pressure to bear on offending employers in primary labor disputes and of shielding unoffend- ing employers and others from pressures in controversies not their own." N.L.R.B. v. Denver Building & Construction Trades Council, et al. (Gould & Preisner), 341 U.S. 675, 692. The evidence, already set forth in detail, establishes that Respondent had a primary labor dispute with Crescent and was engaged in a strike against the latter. However, Respondent had no independent labor dispute with Gulf.18 Nevertheless, when Crescent pursuant to practice of many years ' standing bareboat chartered its vessel, the Humrick, to Gulf and Gulf assigned that vessel to tow barges for the Aiple Towing Company, Respondent picketed the Humrick with signs indicating merely that it was engaged in a strike against Crescent . Respondent was advised at the very inception of this picketing that Gulf was operating the Hamrick under bareboat charter in the performance of towing services for Aiple Towing Company and that Crescent had no interest in such operation. Notwithstanding this advice, Respondent continued to picket the Humrick with no change in the wording of its picket signs, and also engaged in the related conduct already described . As stated by Gonzalez, Respondent's acting port agent in Tampa, and as confirmed by Moore, Respondent's New Orleans representative, Respondent would follow the Humrick as long as its dispute with Crescent continued and the charter, or even the sale, of the Humrick would make no difference.19 Gulf's only recourse to avoid this picketing , therefore , would be to terminate its charter relationship with Crescent . The compulsion upon Gulf to take such action was accentuated by the fact that the picketing of the Humrick necessarily tended to disrupt the business relationship between Gulf and Aiple Towing Com- pany, and any other business relationship for which Gulf utilized or might utilize the Humrick. Assuming the other prerequisites for a finding of a Section 8(b) (4) (A) violation are present , that section proscribes, both in language and intent, the disruption of business relationships between two secondary employers in order to achieve some ultimate goal with the primary employer. Local 450, International Union of Operating Engineers, AFL-CIO v. Edwin A. Elliott, et al. (Sline Indus- trial Painters and Tampco Piping, Inc.), 256 F. 2d 630, 637 ( C.A. 5); N.L.R.B. v. International Brotherhood of Teamsters , etc., Local 182 (Ailing & Cory Co.), 219 F. 2d 394, 395-396 (C.A. 2). General Counsel argues that all the prerequisites for •a finding of Section 8(b) (4) (A) violation are satisfied. More specifically, General Counsel argues that Respondent, by its picketing and related conduct, induced and encouraged employees of Gulf aboard the Humrick to cease performing services with an object of forcing or requiring Gulf to cease doing business with Crescent, Aiple Towing Company, and other employers or persons 20 18 Although all the relevant details are not set forth in the record, apparently a question of representation had arisen between Respondent and Gulf concerning the employees of the Ocean Prince. In addition, as already noted, Respondent on March 28 made a bargaining demand upon Gulf on behalf of the employees of the Humrick . No conten- tion is made, however, that Respondent had any independent labor dispute with Gulf concerning the Humrick during the only period here relevant , namely, March 19 to 28. ie Under these circumstances I reject as without merit Respondent's contention, ad- vanced during the course of the bearing but apparently abandoned in Respondent's brief to the Trial Examiner, that it was never given satisfactory proof of the bareboat charter of the Humrick from Crescent to Gulf and that , so far as it knew, Crescent was still operating the Humrick. n In his complaint General Counsel also alleged that Respondent engaged in proscribed inducement and encouragement of employees of "other employers." The fact that the Humrick had Aiple barges in -tow during some of the picketing and that picketing occurred at docks and wharves which were available for use by employers other than Gulf, affords grounds for suspicion that employees of employers other than Gulf may have been affected by the picketing . But suspicion , however well grounded , does not rise to the stature of proof and General Counsel has not sustained its burden of proving by a pre- 1032 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent takes issue with General Counsel 's contention . However, the area of controversy is a narrow one. Respondent admits that it picketed the Humrick during the period here relevant and does not dispute that by this picketing and its related conduct it sought to induce the employees aboard the Humrick to quit work. Respondent likewise does not quarrel with the proposition that an object of its activity in this regard was to immobilize the Humrick and, consequently , to ter- minate whatever business relationships arose or might arise out of the operation of the Humrick. Starting with the premise that Gulf, a neutral in the dispute be- tween Respondent and Crescent, was the operator of the Humrick, a violation of Section 8 ( b)(4)(A) of the Act is plainly established . It is this premise which Re- spondent challenges . More specifically, Respondent contends that Gulf was not a neutral in the dispute between Respondent and Crescent and that the charter of the Humrick to Gulf was merely a product of an alliance between Gulf and Aiple Towing Company on the one hand and Crescent on the other to do Crescent 's struck work, namely, the performance of towing services for Aiple Towing Company. It follows, Respondent argues, that its picketing of the Humrick and its related conduct was permissible primary activity. This defense, if supported by the evidence in the record , would, of course, exonerate Respondent from a finding of a Section 8(b) (4) (A ) violation. The Board and the courts have uniformly held that the right to strike or picket an employer in a primary labor dispute necessarily includes the right to strike or picket his ally, and that an employer who performs "farmed out" work for a struck concern is not protected against otherwise lawful picketing by the labor organiza- tion conducting the primary strike.21 The critical question here, therefore , is whether the evidence supports the claim advanced by Respondent. Basic to Respondent's position, of course, is the proposition that but for the strike, Crescent would have performed the Aiple towing services here involved and that Aiple Towing Company and Crescent arranged for the bareboat charter of the Humrick as a device to evade the strike. The charter of the Humrick ran, however, not to Aiple Towing Company, but to Gulf . Consequently, it is also necessary, in order to validate Respondent 's defense, to establish that Gulf was wholly or sub- stantial!y under the control of Aiple Towing Company or of Crescent , or that it voluntarily participated with those two concerns in •a scheme to do Crescent's struck work. Turning first to the latter proposition , the ally contention , Respondent makes no claim that Crescent controlled the operations of Gulf nor would the record support such a claim. Prior to the bareboat chanter of the Humrick, Gulf had no business relationships with Crescent . Although Gulf, pursuant to standard bareboat charter practice , hired the two engineers who had serviced the Humrick while it was being operated by Crescent and although some of the other personnel aboard the Humrick had also worked for Crescent before, the record reveals that all of these individuals during the period of the charter were on the Gulf payroll and were in no way subject to Crescent's control. The only financial arrangements between Gulf and Crescent consisted of the payment of the charter fees and incidental expenses connected with that charter. Crescent had no voice in the operation of the Humrick so long as that operation conformed to the broad terms of the charter and , subject to that limitation,. Gulf could and did use the Humrick in any manner and for any purpose it saw fit. Finally, there is no suggestion in the record of any agreement or understanding between Crescent and Gulf that the Humrick was to be used to perform Crescent's struck work. Respondent does claim, however, that a close interrelationship exists between Gulf and Aiple Towing Company. Indubitably, such a close relationship does exist. Thus, Gulf was incorporated as a consequence of a request from Aiple Towing Company to Nebel that he perform offshore towing services for Aiple barges and this -towing services constitutes Gulf's principal function . Frank E. Aiple owns a ponderance of the evidence that employees of employers other than Gulf were "induced or encouraged" by Respondent' s conduct . Accordingly , I find that the allegation of the complaint relating to inducement and encouragement of employees of employers other- than Gulf is not sustained by the record. See, for example , General Teamsters Local No. 32 11, International Brotherhood of Teamsters, etc. (Truck Operators League of Oregon ), 122 NLRB 25 ; Bonds v. Metro- politao Federation of Architects, etc., Local 231 (Project Engineering Company), 75 F. Supp. 672 (S .D.N.Y.) ; N.L.R.B. v. Business Machine and Office Appliance Mechanics- Conference Board, Local 4 59, International Union of Electrical, Radio d Machine Workers, CIO (Royal Typewriter Co.), 228 F. 2d 553, 557-558 (C.A. 2) ; cert. denied 351 U.S. 962. SEAFARERS' INT'L UNION OF NORTH AMERICA, ETC. 1033 50 percent interest in Gulf and is an officer and director in that corporation. Aiple Towing Company advances funds to Gulf for operating expenses , and through Roy A. Goodrich , its New Orleans agent , issues orders directly to Gulf vessels. Aiple Towing Company also took an active interest in the selection of the vessels which Gulf chartered . On the other hand, consideration of other relevant factors indicates that no more was involved than a close business relationship . Thus, Nebel as presi- dent and treasurer of Gulf is in active charge of its operations . Gulf and Aiple Towing Company have separate offices and keep separate records. There is no inter- change of employees between the two enterprises and Nebel recruited employees for Gulf equipment with no advice or direction from Aiple Towing Company or its personnel . While Goodrich frequently issues orders directly to Gulf vessels, such orders are confined to the scheduling and handling of Aiple tows and Goodrich clears such orders in advance with Nebel where feasible , or subsequently notifies Nebel of his actions in that regard . Operating expenses advanced by Aiple Towing Company to Gulf are advanced on the basis of the latter 's anticipated revenue for towing services and are repaid from that source. Finally, insofar as Aiple Towing Company took part in the selection of vessels which Gulf chartered for its opera- tions, this reflected the natural interest of the former in seeing that those vessels were adequate for the purpose of towing its barges . In the view of the Trial Examiner, the preponderance of the evidence establishes, and I find, that Gulf and the Aiple Towing Company are separate entities doing business with one another within the meaning of Board decisions interpreting Section 8 (b)(4)(A) of the Act. See Enterprise Association ,of Steam, Hot Water, Hydraulic, Sprinkler, Pneumatic Vube, Ice Machine and General Pipe fitters of New York and Vicinity, etc. (Con- solidated Edison Company of New York, Inc.), 124 NLRB 521; United Brother- hood of Carpenters and Joiners of America, AFL-CIO, 118 NLRB 286, set aside and remanded sub nom. J. G. Roy & Sons Co. v. N.L.R.B., 251 F. 2d 771 (C.A. 1); National Union of Marine Cooks and Stewards, etc., 87 NLRB 54. Viewing Gulf and Aiple Towing Company, as I do, as separate enterprises under separate control , I find no basis for inferring that Aiple Towing Company was utilizing Gulf as a pawn to do Crescent's struck work. Nor is there any independent evidence warranting such a conclusion . Moreover, there is no evidence that Gulf voluntarily participated in such a scheme. Since the work involved was the towing of Aiple's barges and that work constituted Gulf's principal function and its principal source of revenue, participation in such 'a scheme would be directly contrary to its own interests. Accordingly, I find that an essential element is lacking in Respondent's claim that an alliance existed between Gulf and Aiple Towing Company on the one hand and Crescent on the other to do Crescent 's struck work. Moreover, that defense is vulnerable on quite another ground, namely, that the Humrick was performing struck work. The situation here, of course, is wholly distinguishable from the normal "struck work" situation where a struck concern seeks by other means to continue to render services which it rendered before the strike and makes arrange- ments for that purpose. In the instant case, Crescent had never done business with Aiple Towing Company. On the other hand , long before the strike at Crescent began, Aiple Towing Company had arranged for Gulf to do its offshore towing services and Gulf had been performing such services since January 2 , 1959. There is no basis for assuming that Aiple Towing Company had decided to discontinue those services and transfer that work to Crescent. On the contrary , when Crescent advised Goodrich that the Humrick was available for charter, Goodrich immediately inquired whether Gulf could charter the vessel and a Gulf charter was duly con- summated. In this connection , it is of some significance that Nebel , as president of Gulf, had already held independent exploratory talks with Crescent more than a month earlier, before the Crescent strike began , with a view toward chartering the Hamrick for the purpose of towing the Aiple-100 which was then under construction. In this state of the record and absent strong countervailing evidence , a finding that Aiple Towing Company intended Crescent , and not Gulf, to do the work being performed by the Humrick is wholly unwarranted. Such countervailing evidence has not been presented . It is true that because of the emergency occasioned by the sinking of an Aiple barge off the coast of Tampa on March 13, Goodrich called William S. Smith of Crescent to ask whether he knew of a tug that would be available to tow the Aiple-100 to Tampa. However, Good- rich had already called half a dozen other companies for the same purpose before he called Smith . Moreover, even assuming, as Respondent contends , that Goodrich made "a positive and definite offer" of the towing job to Crescent and that Crescent was compelled to reject that offer because of the strike, this would not establish that the later performance of that job by the Humrick constituted performance of struck 1034 DECISIONS OF NATIONAL LABOR RELATIONS BOARD work. Crescent had for years been engaged in the practice of chartering some of its vessels to other concerns, and that phase of Crescent's business was wholly divorced from the operation of the vessels which it retained in its fleet. It was only the operations phase of Crescent's business in which the employees represented by Respondent were involved and in which Respondent had an interest. As already noted, the chartering of vessels was recognized and permitted under Respondent's labor agreement with Crescent and the record affords little in the way of evidence to rebut the presumption that the charter of the Humrick was anything more than a continuation of a practice in which Crescent had consistently engaged before the strike. This conclusion is confirmed by the fact, already noted, that Crescent had already undertaken in its exploratory talks with Nebel, a month before the strike began, to charter the Humrick to Gulf. On the basis of all the evidence, therefore, I find that the charter of the Humrick was not for the purpose of performing Crescent's struck work and that the work done by the Humrick could not, in any realistic sense, be regarded as struck work. For the foregoing reasons, I find and conclude that Respondent by picketing the Humrick on various occasions between March 19 and 28 and by inducing employee Camus to quit work, violated Section 8(b) (4) (A) of the Act 22 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 Gulf set forth 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 I have found that Respondent unlawfully induced and encouraged employees of Gulf to refuse to perform services with an object of forcing or requiring Gulf to cease doing business with Crescent, Aiple Towing Company, and any other em- ployer or person. Accordingly, I will recommend that Respondent cease and desist from such conduct and take certain affirmative action designed to effectuate the policies of the Act. I have also found that the evidence does not sustain a finding that Respondent engaged in proscribed inducement or encouragement of employees, of employers other than Gulf. Nevertheless, it is apparent from the explicit state- ments of Respondent's agents, Gonzalez and Moore, that Respondent would not hesitate to picket any vessel of Respondent, so long as its dispute continued, whether that vessel was chartered or even sold. Consequently, in order to make the remedy coextensive with the threat (N.L.R.B. v. Express Publishing Company, 312 U.S_ 426, 436-438), I shall incorporate a provision in my recommended order requiring. Respondent to cease and desist from unlawful inducement and encouragement, not. only of Gulf employees, but also of employees of other employers. See N.L.R.B. v. Springfield Building and Construction Trades Council, et al., 262 F. 2d 494 (C.A. 1). Finally, since Respondent engaged in the proscribed conduct at Atlantic Coast Lines terminal, at the Gulf Oil Company docks, and at the Charbonnet Street wharf, I will recommend that Respondent post appropriate notices, as set forth in my recommended order, at such facilities provided that the authorities in charge of such facilities are willing. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Gulf & Caribbean Towing Company, Inc., is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Respondent, Seafarers' International Union of North America, Atlantic & Gulf District, Harbor & Inland Waterways Division, AFL-CIO, is a labor or- ganization within the meaning of Section 2(5) of the Act. rg In view of the foregoing disposition of the case, it is unnecessary to determine whether Respondent's admitted picketing of the Hnnri-ck would be unlawful even if the Humrick were considered as the continuing situs of primary dispute. As the undisputed evidence shows, the picketing here challenged occurring at docks and wharves where employees of employers other than Gulf were presumably working and hence would be subject to substantial limitations. See, for example, Sailors Union of the Pacific, AFL, 92 NLRB 547. However, General Counsel did not pursue this line of inquiry and the record does not contain sufficient evidence to warrant a finding in that regard. BRIDGE, STRUCTURAL AND ORNAMENTAL IRON WORKERS 1035 3. By inducing and encouraging employees of Gulf to engage in a concerted refusal in the course of their employment to perform services, with an object of forcing or requiring Gulf to cease doing business with Crescent Towing & Salvage Company, Inc., Aiple Towing Company, and any other employer or person, Re- spondent has engaged in unfair labor practices within the meaning of Section 8(b)(4)(A) of the Act. 4. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. [Recommendations omitted from publication. ] APPENDIX NOTICE To ALL EMPLOYEES Pursuant to the recommendations of a Trial Examiner 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 the employees of Gulf & Caribbean Towing Company, Inc., or of any employer other than Crescent Towing & Salvage Company, Inc., to engage in, a strike or a concerted refusal in the course of their employment to perform any services where an object thereof is to force or require Gulf & Caribbean Towing Company, Inc., or such other employer, to cease doing business with Crescent Towing & Salvage Company, Inc., or with any other person. SEAFARERS' INTERNATIONAL UNION OF NORTH AMERICA , ATLANTIC & GULF DISTRICT, HARBOR & INLAND WATERWAYS DIVISION, AFL-CIO, Labor Organization. Dated------------------- By---------------------- -------------------- (Representative ) (Titre) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. International Association of Bridge , Structural and Orna- mental Iron Workers, Local Union No. 25, AFL-CIO and Pittsburgh Plate Glass Co. Case No. 7-CD-31. December 21, 1959 DECISION AND ORDER QUASHING NOTICE OF HEARING 'This proceeding arises under Section 10(k) of the Act, which pro- vides that "Whenever it is charged that any person has engaged in an unfair labor practice within the meaning of paragraph 4(d) of Section 8 (b), the Board is empowered and directed to hear and deter- mine the dispute out of which such unfair practice shall have arisen...." On April 3, 1959, Pittsburgh Plate Glass Co. (herein called Pitts- burgh) filed charges and amended charges with the Regional Director for the Seventh Region, alleging, inter alia, that International Asso- ciation of Bridge, Structural and Ornamental Iron Workers, Local Union No. 25, AFL-CIO (herein called Iron Workers), had engaged in and was engaging in certain unfair labor practices within the mean- 1125 NLRB No. 102.