Int'l Longshoremen's and Warehousemen's Local 8

INT'L LONGSHOREMEN'S & WAREHOUSEMEN'S LOCAL 8 351 bargain collectively with the. Union as the exclusive representative of, the employees in the appropriate units described herein. It will therefore be.recommended that the Respondent bargain collectively , upon request, with the Union as the exclusive representative of the employees in the appropriate units, and , if understandings are reached, embody such understandings in signed agreements . It has also been found that the Respondent has refused and still refuses to furnish information to the Union concerning the salaries paid to the employees in the appropriate units. It will therefore also be recommended that the Respondent , upon request, be ordered to furnish the Union the requested salary information. 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. Swift and Company d/b/a New England Processing Unit is an employer within the meaning .of Section 2(2) of the Act, and is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. United Packinghouse Workers of America, Local 165, AFL-CIO, is a labor organization within . the meaning of Section 2(5) of the Act. 3. The following units of the Respondent's employees at its Somerville, Massa- chusetts, plant are appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: (a) All plant clerical employees including the clerk in the sliced bacon depart- ment, the shipping department clerk, the part-time standard checker, the standard checkers, the standards clerk, and the clerk in the table-ready- meat department,. but excluding the assistant foreman of the curing department , all other employees, guards, professional employees , and supervisors as defined in the Act. (b) All office clerical employees including the stenographer, the payroll clerk, the office assistant-voucher clerk, the office assistants, the comptometer operators, the order writer, the manager's clerk, and the relief office assistant, exclusive of the secretary to the plant manager, all other employees, guards, professional employees, and supervisors as defined in the Act. 4. On September 30, 1959, and at all times thereafter, the Union was and now is the representative of a majority of the Respondent's employees in the appropriate units described above for the purposes of collective bargaining within the meaning of Section 9'(a) of the Act. 5. By refusing on December 15, 1959, and thereafter to bargain collectively with the Union as the exclusive representative of all its employees in the above-described appropriate units, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8^(a) (5) and (1) of the Act. 6. 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.] International Longshoremen's and Warehousemen's Union Local 8; International Longshoremen 's and Warehousemen's Union Local 92; and International Longshoremen's and Warehouse- men's Union and General Ore, Inc. Case No. 36-CD-18. July -8, 1960 DECISION AND ORDER On March 25,1960, Trial Examiner Eugene K. Kennedy issued his Intermediate Report in the above-entitled proceeding, finding that the Respondents had engaged in and were engaging in certain unfair labor practices and recommending that they cease and desist there- from and take certain affirmative action, as set forth in the copy of 128 NLRB No. 43. 352 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Intermediate Report attached hereto. Thereafter, the Respond- ends filed exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Members Rodgers, Jenkins, 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 Inter- mediate Report, the exceptions and brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner, with the additions noted below.' 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 Respondents, International Long- shoremen's and Warehousemen's Union Local 8; International Long- shoremen's and Warehousemen's Union Local 92; and International Longshoremen's and Warehousemen's Union, their agents, officers, representatives, successors, and assigns, shall : 1. Cease and desist from engaging in or inducing or encouraging the employees of Columbia River Paving Co., California Bag and Metal Co., J. E. Hazeltine & Co., Shave Transportation Co., Inland Navigation Co., Nisshum Steamship Co., and Air Reduction Cor- poration, or any employer, to engage in a strike or concerted refusal in the course of their employment to use, manufacture, process, trans- port, or otherwise handle or work on any goods, articles, materials, or commodities, or to perform any services where an object thereof is to force or require General Ore, Inc., to assign work to members of the Respondents rather than to any other group or class of em- ployees, except insofar as any such action is permitted under Section 8(b) (4) (D) of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : 1 Like the Trial Examiner, we find no merit in the Respondents' contention that the Board's failure to make an affirmative award of the work in dispute in its Decision and Determination of Dispute in this case (124 NLRB 626) makes the Decision and Order herein invalid and unenforceable. Such an affirmative assignment is not a prerequisite to a finding in a subsequent unfair labor practice proceeding that the Union violated Section 8(b) (4) (D) of the Act. To the extent that our decision herein may conflict with certain court decisions, we respectfully disagree with the said courts. Local 173, Wood, Wire and Metal Lathers' International Union, AFL-CIO, et al. (Newark & Essex Plaster- ing Co. ), 121 NLRB 1094, 1108; N.L.R B. v. Local 450, International Union of Operating Engineers (Hinote Electric Co.), 275 F 2d 408 (C A. 5). We do not adopt the Trial Examiner ' s paraphrase in his footnote 8 of Section 8(b) (4) (D ) of the Act, The statute speaks for itself. INT'L LONGSHOREMEN'S & WAREHOUSEMEN'S LOCAL 8 353 (a) Post a copy of the notice attached hereto marked "Appendix"' in conspicuous places at each of Respondents' meeting halls and busi- ness offices in the area of Portland, Oregon, where notices and com- munications to members of the Respondents are customarily posted, and, the Company willing, in conspicuous places on the premises of the Company on bulletin boards where notices to employees are customarily posted. Copies of said notice, to be furnished by the Regional Director for the Nineteenth Region, shall, after being duly signed by a duly authorized officer of the respective Respondent Unions, be immediately posted and maintained for a period of 60 consecutive days thereafter. Reasonable steps shall be taken by each of the Respondents to insure that said notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for the Nineteenth Region, in writing, within 10 days from the date of this Order, what steps each of the Respondents 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." APPENDIX NOTICE TO ALL MEMBERS OF THE INTERNATIONAL LONGSHOREMEN'S AND WAREHOUSEMEN'S UNION LOCAL 8; INTERNATIONAL LONG- SHOREMEN'S AND WAREHOUSEMEN'S UNION LOCAL 92; AND INTERNA- TIONAL LONGSHOREMEN'S AND WAREHOUSEMEN'S UNION AND TO ALL EMPLOYEES OF GENERAL ORE, INC. Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify you that : WE WILL NOT engage in.or induce or encourage the employees of Columbia River Paving Co., California Bag and Metal Co., J. E. Hazeltine & Co., Shave Transportation Co., Inland Naviga- tion Co., Nisshum Steamship Co., and Air Reduction Corpora- tion, or of any other employer, to engage in a strike or a concerted refusal in the course of their employment to use, manufacture, process, transport, or otherwise handle or work on any goods, articles, materials, or commodities, or to perform any services, where an object thereof is to force or require General Ore, Inc., to assign work to members of International Longshoremen's and Warehousemen's Union Local 8; International Longshoremen's and Warehousemen's Union Local 92; and International Long- shoremen's and Warehousemen's Union rather than to employees 354 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of a class designated by General Ore, Inc., except insofar as any such action is permitted under Section 8 (b) (4) (D ) of the Act. INTERNATIONAL LONGSHOREMEN'S AND WAREIIOUSEMEN'S UNION LOCAL 8, Labor Organization. Dated---------------- By------------------------------------- (Representative ) ( Title) INTERNATIONAL LONGSHOREMEN'S AND WAREHOUSEMEN'S UNION LOCAL 92, Labor Organization. Dated---------------- By------------------------------------- (Representative ) ( Title) INTERNATIONAL LONGSHOREMEN'S AND WVAREHOUSEMEN'S UNION, Labor Organization. Dated-- -------------- By------------------------------------- (Representative ) ( Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE This proceeding was heard on December 8, 1959 , in Portland, Oregon. The pri- mary question presented is whether Respondent Unions have violated Section 8(b) (4) (D) of the Act along with some subsidiary issues which will be discussed below, including the question of whether Respondent International Union shares in responsibility for the picketing on which the alleged violation is based. In addition to the Decision and Determination of Dispute by the Board,' the record in this case also includes the record of a proceeding between the same parties before the National Labor Relations Board in a case docketed as Case No. 36-CC-59 litigated on Tuesday, March 10, 1959, in Portland, Oregon.' Also included in the record of a proceeding held pursuant to Section 10(k) of the Act between the same parties in the matter designated 36-CD-18 which in turn incorporates not only the hearing involving the violation of Section 8(b)(4)(A) but the record in the pro- ceeding in the U.S. District Court of Oregon (Civil No. 10086) which was made in connection with the application of the General Counsel to have the U.S. district court issue a preliminary injunction against the Respondent Unions enjoining conduct allegedly violative of Section 8(b)(4)(A) and (D) of the Act. The proceeding in the district court was held between February 24 and March 6, 1959. The specific question presented is whether the Employer, General Ore, in assigning its own employees to do certain work followed by picketing of General Ore by Respondents gives rise to a violation of Section 8(b) (4) (D ) of the Act on the part of Respondents. Upon the entire record in the case, and upon consideration of the brief of the International Longshoremen's and Warehousemen's Union, I make the following: 'International Longshoremen's and Warehousemen's Union Local 8, et al. (General Ore, Inc), 124 NLRB 626. 2 The Board in this matter has determined that the named Respondents have violated Section 8(b) (4) (A) of the Act. This finding was made in connection with same events here involved. INT'L LONGSHOREMEN'S, & WAREHOUSEMEN'S LOCAL 8 355 FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY General Ore, Inc., herein sometimes called the Company, is an Oregon corporation engaged at the port of Portland in unloading bulk aluminum ore. Harvey Aluminum, Incorporated, a California corporation, is engaged in the business of manufacturing aluminum products. The Company is wholly controlled and supervised by Harvey Aluminum. After the inception of the facts giving rise to this present dispute, General Ore was organized as a corporation apparently solely for the purpose of conducting the unloading facilities in Portland on behalf of Harvey Aluminum. The recent annual value of the material shipped by Harvey Aluminum outside the State of Oregon was valued in excess of $1,000,000,000. Harvey Aluminum pur- chased from outside of the United States, aluminum ore exceeding in value $1,000,- 000,000 since May 1, 1958. Since August 1, 1958, Harvey Aluminum paid to General Ore $52,000 for services and over $100,00 for shipping costs incurred by General Ore. It is found that General Ore, Inc., is engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATIONS INVOLVED International Longshoremen 's and Warehousemen's Union Local 8; International Longshoremen's and Warehousmen's Union Local 92; and International Longshore- men's and Warehousemen's Union are labor organizations within the meaning of the Act.3 III. THE UNFAIR LABOR PRACTICES A. Background and events Some of the procedural steps involved will be noted inasmuch as Respondents contend that in connection with the processing of this matter they were denied due process by the Board's failure to follow its own rules and the statutory requirement with respect to the expeditious conduct in making a resolution of this dispute as well as the denial of due process in connection with the holding of the hearing providing the record on which the Board's decision and determination of dispute was based. The charge in this matter was filed on October 29, 1958. Service by mail of this charge was initiated on October 29, 1958. The initiation of the notice of hearing by mail was made on Respondents on February 11, 1959; setting a date for hearing on March 17, 1959, which was con- tinued to March 31, 1959. The application by the General Counsel for an injunction against the purported violations of Section 8(b) (4) (A) and (D) was heard in the U.S. district court com- mencing on February 24, 1959. The statements of the U.S. district court judge indi- cated that he had been in conference with counsel for the parties looking toward a resolution of the dispute without litigation prior to this date on several occasions. The record of U.S. district court reflects the presence as counsel of the General Counsel of a Mr. Charles Latimer during the course of the proceedings leading to the issuance of a preliminary injunction. Subsequently, Charles Latimer was the hearing officer in the proceeding wherein the record was made in which the Board based its decision and determination of dispute in this matter. This decision and determination held that Respondents had engaged in activities which provided reasonable cause to believe they had violated Section 8(b)(4)(D) in that they were picketing and inducing employees of other employers to engage in concerted refusal in their employment to transport goods or perform services with an object of forcing the Company to assign work to the mem- bers of Respondents rather than to its own employees. In the instant proceeding, the General Counsel offered the record made in the Section 10(k) proceeding. This was received with the reservation that the position of the Respondents taken in the prior proceedings would be preserved and the prior records incorporated in the instant matter would be used as probative evidence and not be vulnerable as constituting objectionable hearsay evidence. In April 1958, Harvey Aluminum made an arrangement with the Willamette's Tug and Barge Company whereby Willamette agreed to deliver a limited number of cargoes of alumina ore to the new unloading facilities of the Company at Portland, Oregon. 3 The complaint alleges and the answer admits the status of the Respondent Unions as labor organizations. 356 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Including those present at a meeting on May 1, 1958, initiated by Willamette, were representatives of Respondents including James Fantz, International repre- sentative of the ILWU, Anderson and Mays, officers of Respondent Local 8, and Rossiter, a representative of Willamette, as well as representatives of General Ore. Rossiter had initiated this meeting in order to avoid jurisdictional questions as to who should perform certain work and he also stated that he was not in any position to make any arrangement with Respondents in connection with the use of their member longshoremen except for the limited test unloading that Willamette was engaged to perform. At this meeting Fantz stated that after the test runs were over, the Longshoremen, i.e., the Respondents, would claim complete jurisdiction over all the unloading work including the ship unloading work, barge operations, and the rail car loading operations. There was another meeting on May 2, 1958, including the individuals named at the May 1 meeting as well as representatives of the Portland Stevedoring Company; the secretary of the Pacific Maritime Association, R. O. Hoge; and the industrial relations director for Harvey Aluminum, Albert Hinz. At this meeting an arrange- ment was made with respect to the unloading of the next ship in connection with how many member of Respondents would be employed. As a result of this meeting it was agreed that Willamette would use Portland Stevedoring Co., a member of Pacific Maritime Association, to secure personnel for unloading the initial cargoes. The Portland Stevedoring Company was obligated by contract to hire only members of Local 8 and to pay the wage scale set forth in the collective-bargaining contract made on behalf of Local 8 and the Pacific Maritime Association .4 Another meeting transpired on May 16, 1958, involving the parties above named and an arrangement was made with respect to the use of members of Respondents in connection with the loading of the second ship. At this meeting, the chairman of the industrial relations committee of Local 8, Gordon Mays, stated that the arrange- ments for unloading the first two ships would not be acceptable in connection with the unloading of the anticipated third ship. The comments of Mays and the other representative of Respondents makes it clear that it was their position commencing with the third ship that the longshoremen should be the only class of employees en- gaged in unloading the ships. Anderson, the secretary of Respondent Local 8, requested Hoge, the secretary of the Pacific Martime Association, to have a meeting of all parties concerned with respect to the unloading of the third ship which was due in August. This meeting was held on July 25, 1958, at the offices of the Pacific Maritime Association. Hinz, the industrial relations director for Harvey Aluminum, Fantz, Anderson, and Hoge were included among those present. At this meeting Fantz stated that the next ship would not be unloaded unless members of Respondents were permitted to perform the work.5 At this meeting, Fantz, in response to an inquiry by Hinz, stated that the Company could not employ longshoremen directly and it would either have to join the Maritime Association or secure employees who were members of Re- spondents through a stevedoring company that was a member of that Association. The next meeting occurred on July 30, 1958, which included Hinz and Mays, the chairman of the industrial relations committee of Respondent Local 8.6 At this meeting Mays and Anderson, representatives of Respondent Local 8, again made it clear that the third ship would not be unloaded unless a contract acceptable to Local 8 was executed. On August 4, 1958, Fantz called Hinz by telephone to ascertain the position of the Company with which Hinz was connected in the capacity of industrial relations director? 4 The Pacific Maritime Association includes in its functions a system whereby the mem- bers of that Association and others who file collective-bargaining contracts with it and pay a fee for such services have their employees paid by the Association which by this method is able to more accurately make deductions with respect to insurance , old age benefits, and to compute vacation rights. The benefits of this system to the individual employees who are members of Respondents is clear as the nature of their work occasions them to work for various employers in the course of their employment. 6 Members of Respondents are used in the context as individuals who are "displatched through the Respondents' hiring hall" and this phrase does not necessarily contemplate a formal membership in the Respondents' organization. O The record reflects a communication from Fantz to the International office in San Francisco indicating that he was going on vacation for 2 weeks commencing July 27, 1958. 7 General Ore, which was formally organized shortly before July 31, 1958, for the pur- poses of this proceeding, is found to be an integral part of Harvey Aluminum. It is found that Hinz was the industrial relations director of General Ore in fact, if not in name INT'L LONGSHOREMEN ' S & WAREHOUSEMEN 'S LOCAL 8 357 The third ship arrived on August 5, 1958 , and its unloading commenced with employees of General Ore. Pickets from Respondent Local 92 picketed the third ship in boats and Respondent Local 8 picketed on the shoreside of the ship. The picket signs read as follows: General Ore unfair to ILWU Local 8. General Ore unfair to ILWU Local 92. The U.S. district court issued an injunction against picketing in March 1959. Prior to this time, six ships in all had been unloaded by General Ore employees. During this period it had approximately 12 employees on a permanent basis and when a ship would arrive for unloading approximately 25 additional employees would be utilized. It is found Respondents have failed to comply with the decision in the Board's decision and determination of dispute . Their failure to express assent to the deci- sion as requested by the Board's Regional Director and their position in this proceeding that the Board does not have power to issue an enforceable order provides the basis for this finding. B. The issues The issues to be resolved are as follows: (1) Is there an existence of a jurisdictional dispute and has the Board followed the statute in making its decision and determination of dispute in finding that the members of Respondents were not entitled to the work assigned by the Company to its employees? (2) Is there any procedural defect in connection with the prior litigation and hearing in this matter which would deprive the Board of jurisdiction to enforce an order against Respondents? (3) Does the record establish that the picketing had for its object a purpose violative of Section 8(b)(4)(D)? (4) Does the record establish responsibility of Respondent International for the picketing, and assuming the Respondent International was responsible for the pick- eting when the picketing placards did not reflect Respondent International's par- ticipation in the picketing, does the record justify a finding that Respondent Inter- national participated in any inducement of employees of other employers? 1. The existence of a jurisdictional dispute within the meaning of Section 10(k) The meetings previously noted and the interchanges made provide a clear indica- tion that an object of the picketing was to require the Company to assign work to members of Respondents rather than to its employees.8 The Board has recently reaffirmed its interpretation as to its function in connec- tion with Section 8(b) (4) (D). It is the Board's view that a determination that a certain class of employees is not entitled to the claimed work fulfills its function under Section 10(k) of the Act .9 Respondents contend that there is no jurisdictional dispute here and further that the statutory prerequisite to an unfair labor practice proceeding is not present in that the Board has not assigned the work which they contend the Board is com- pelled to do by the terms of the statute to one of the classes of employees com- peting for the same work. With respect to the necessity of the Board assigning the work to one of the classes in order to fulfill its statutory obligation under Section 10(k) of the Act, it is evi- dent that the Board's decisional precedents stand for the proposition that making a determination that a particular class is not entitled to perform the work in question is a determination of the dispute within the meaning of Section 10(k).10 8 The statute proscribes inducing employees of other employers to withhold their services or make deliveries where the object is to force any employer (here General Ore) to assign particular work to employees in a particular labor organization or in a particular trade, craft, or class rather than to employees in another labor organization or in another trade, craft, or class. 0 International Typographical Union, at at. ( Worcester Telegram Publishing Company, Inc.), 125 NLRB 759; see International Longshoremen's and Warehousemen's Union at at. v. Juneau Spruce Corporation, 342 U.S. 237. io Respondent cites three U.S. circuit court decisions at variance with the interpretation of the Board • N.L.R.B. v. United Association of Journeymen and Apprentices, etc, 242 F. 2d 722 (C.A. 3) ; N.L R.B. v. United Brotherhood of Carpenters , etc, Local 60, at at., 577684-61-vol. 128-24 358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. Procedural questions raised by Respondents The procedural defects alleged by Respondents which deprive the Board of juris- diction consist in what Respondents contend was a failure by the Board to follow the statute and its rules in having an expeditious hearing. Respondent points to the section of the Act which requires expeditious handling of cases seeking interim relief as well as Section 10285 of the Board's Rules and Regulations then in effect which provide for the issuance of the complaint within 5 days of the date when such injunctive relief is first sought. The argument seems inapposite here since the statute contemplates by its wording the Regional Director shall seek a voluntary adjustment of the dispute and the initial procedure following the filing of the charge in a situation such as the one here does not involve a complaint but a hearing conducted pursuant to Section 10(k) of the Act. As previously noted, the application for injunction was filed on November 21, 1958. Because of the settlement negotiations, the trial in the injunction proceeding was not commenced until February 24, 1959. In view of this, the initial notice of hearing issued on February 9, 1959, the Section 10(k) hearing cannot be found to have been unreasonably delayed. Respondents' claim that the fact that Charles Latimer who was one of the counsel for the General Counsel at the injunction proceeding in the U S. district court, and also was the hearing officer in the Section 10(k) proceeding, was a violation of due process. Respondent emphasized the denial to them of the analysis prepared by Mr. Latimer with respect to the Section 10(k) proceedings deprives them of evidence to which they are entitled. The authorities cited in Respondent International Unions' able brief have been carefully examined. The generalized comment that suggests itself in connection with the contention of Respondents on this point is that Re- spondents were afforded an opportunity to litigate the questions involved here without restraint. The decision and determination of dispute was made by the Board pursuant to the Act and not by Mr. Latimer. Although it may be argued the analysis of Mr. Latimer might have some effect upon the ultimate decision of the Board, this would entail a presumption that the Board was not carrying out its statutory duty which the Trial Examiner is not prepared to find. Further, since the same question was available for litigation in an unfair labor practice proceeding in the instant case, it seems evident that the Respondents have not here been de- prived of any substantial procedural right in the Section 10(k) hearing. Although the Trial Examiner followed the Board's Rules and Regulations in quashing a subpena duces tecum addressed to Charles Latimer calling for his testimony and the production of his analysis in the Section 10(k) proceeding, it is found that the Respondents have not demonstrated how any evidence adduced from Mr. Latimer would be material in this matter. National Union of Marine Cooks et al. (Irwin- 261 F 2d 166 (CA. 7) ; N L.R B v. Radio f Television Broadcast Engineers Union, Local 1212, et al. (Columbia Broadcasting System), 272 F. 2d 713 (C.A. 2). These three circuit court decisions differ from the Board's interpretation in that the circuit courts are of the opinion that the determination of a dispute means that the Board must make an affirmative assignment of work to one of the unions or classes of individuals claiming the work involved It is observed that an affirmative assignment of work to a particular group or class as here, which would be the employees of General Ore, would have the potential of having the Board's determination in effect be a discriminatory one within the meaning of Section 8(a) (3) of the Act. Although this assignment would not be an enforceable order, it seems apparent that it would create problems with respect to nondiscriminatory em- ployment and would have a potential of creating a situation where the Board would be forced to take an inconsistent position in connection with subsequent unfair labor practice proceedings involving alleged discrimination in connection with employees assigned work Where there is only one union claiming the work and there is picketing being carried on to attain the assignment of work to members of that union, it is conceded that there is an apparent overlapping between this situation and the decisional precedents of the Board interpreting Section 8(b) (1) (A), where a minority union is picketing for recogni- tion Whether or not this apparent overlapping of activities proscribed by Section 8(b) (1) (A) and (D) support Respondents' contentions that a jurisdictional dispute re- quires affirmative assignment of work claimed has not been answered with judicial finality. It is not believed that any useful purpose could be served by here reviewing the legislative history of Section 10(k) and its relationship with other sections of the Act, which have been considered by the Board and courts in decisions cited herein. It is merely noted that if an affirmative assignment of work is repugnant to the other sections and purposes of the Act, a determination that one class of employees is not entitled to the claimed work is arguably the correct application of Section 10(k), despite some legislative history to the contrary. INT'L LONGSHOREMEN'S & WAREHOUSEMEN'S LOCAL 8 359 Lyons Lumber Co.), 83 NLRB 341; Local No. 27, International Typographical Union et al. (Heater-Starke Printing Co., Inc. et al.), 121 NLRB 1013. Since the Board by statute alone has power to render the decision and determination of dis- pute and since the hearing officer in this case , Mr. Latimer, is precluded from making any recommendation findings or conclusions, the cases cited by Respondent as authority for their entitlement to see the analysis of the Section 10(k) hearing by Mr. Latimer must be rejected. 3. The purpose of the picketing Respondents contend that their object in picketing was merely to have a discussion with the Company. Respondents announced during the course of the injunction proceeding in the U.S. district court that the pickets would be withdrawn immedi- ately if Respondents would merely meet with them. The recital of events herein makes it clear that it was the intent of Respondents to have their members employed through the hiring hall then in existence. This was stated as a condition without qualification. The record reflects that the Company refused to meet with Respond- ents because by so doing they contended they were exposing themselves to an unfair labor practice charge under the Act. In view of the fact that there is no showing in the record that Respondents represented any, let alone a majority of the employees of the Company, this position seems meritorious with respect to the probable application of the Act. As indicated herein both the International representative and the local representatives stated to the Company that the third ship would not be unloaded unless the members of Respondents performed all the work in connection with unloading of this ship. Hence, in view of this, it seems unrealistic to regard the picketing as merely a request for discussion rather than for an actual work assignment and it is found that the picketing was conducted for the purpose of securing assignment of work to the members of Respondent unions rather than to the employees of the Company. 4. The responsibility of the International for picketing, and the inducement of employees of other employers by the International Respondent International strenuously contends in its brief that the evidence does not support a finding that the Respondent International was a party to the picketing. It further contends that the record is barren of any evidence that the International was responsible for inducing employees of other employers not to perform services or transport goods on behalf of the Company for the object proscribed in Section 8(b) (4) (D). The record reflects that the responsibility of the International hinges on the activities of James Fantz, an International representative . His duties as a member of the International includes the counseling and assistance of various constituent locals of the International, including the Respondent Locals named herein. In the case at bar, Fantz participated in the meetings and made statements which indicated that the International's position was identical with that of the Respondent Locals involved, i e., that their member longshoremen were entitled to the unloading work on the Portland docks including the work in connection with the unloading opera- tion of the Company. At these meetings, Fantz appeared as a representative of the International and introduced himself as such. Hence, there seems little ques- tion that as far as the Company is involved Fantz held himself out to be a repre- sentative of the International . In this connection, Section 2 ( 13) of the Act assumed some significance. In determining whether any person is acting as "an agent " of another person so as to make such other person responsible for his acts , the question of whether specific acts performed were actually authorized or subsequently ratified shall not be controlling. It can scarcely be questioned that Respondent International and Respondent Locals had an identity of interest in obtaining additional work for the longshoremen in the Portland area. In fact, as far as this record reflects, the International although perhaps a separate legal entity includes the same people who have member- ship in Respondent Locals. At the picket site on about May 19, Fantz informed Hinz that "All our boys are going to observe the picket line." Merely because the record does not provide any direction to Fantz from the International to participate in the controversy with General Ore is not regarded as having any significance by the Trial Examiner . The statements of Fantz acting as an International repre- sentative demonstrates that the International and the Locals were here acting in concert. 360 DECISIONS OF NATIONAL LABOR RELATIONS BOARD It is further argued that the International has not been shown in any event to have violated Section 8(b) (4) (D ) because the necessary requisite to provide a violation of that section must include proof that the violator induced employees of other employers not to perform services, etc., with the object of accomplishing a proscribed purpose. The presence of Fantz on one occasion near the sight near the picketing does not, standing alone, establish proof that the International by his pres- ence induced and encouraged employees of other employers not to perform services, etc., for the Company.il That there was an inducement to concerted activity in refusing services to the Company is clearly established by this record.12 However, the question remains as to whether the International as well as the Locals is responsible for the inducement which is present here. The constitution of the International Longshoremen and Warehousemen's Union reflects that in section 2 it is provided that "It shall be the duty of all locals: to observe and comply . . . with all decisions of the International officials made in keeping with and pursuant to the authority contained in this constitution; ...." Because the picketing placards did not indicate that the International was a par- ticipant in the picketing does not in itself preclude the International from having responsibility for the picketing. The statements of Fantz noted above demonstrate that as far as the employers were concerned the International and the Locals were acting in concert with respect to attempting to get the work assigned to its members. Having found that International and the Locals were acting in concert in con- nection with the institution of a picketing , it is not essential that the third parties involved, i.e., the employees of other employers must know that the International was responsible for the picketing in order for the inducement to be effected if in fact the International was acting in concert with the Local in having the picketing instituted.13 Many analogies suggest themselves in connection with this situation one of which would be that the officers of the Locals involved would be responsible for the picketing even though their names were not on the picketing placards and the employees of other employers would not know that these individuals had been the cause of the picketing. Similarly because the International by its participation in the negotiation and in expressions of views has demonstrated that it was acting in concert with the Locals it need not be named on the picketing sign in order to have responsibility for the picketing and in turn inducement of employees of employers servicing or delivering goods to the Company. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondents set forth in section III, above, occurring in connection with the operations of the Company set forth in section I, above, have a substantial relation to commerce among the States and foreign countries and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. CONCLUSIONS OF LAW 1. International Longshoremen's and Warehousemen's Union Local 8; Interna- tional Longshoremen's and Warehousemen's Union Local 92; and International Longshoremen's and Warehousemen's Union are each labor organizations within the meaning of the Act. 2. By engaging in picketing to induce the employees of other employers including Columbia River Paving Co., California Bag and Metal Co., J. E. Hazeltine & Co., Shave Transportation Co., Inland Navigation Co., Nisshum Steamship Co., and "The Decision and Determination of the Board in 124 NLRB 42, involving the same parties, contains a finding that International Representative Fantz was seen on several occasions near the picket line at the entrance of the dock area Although the Trial Examiner could find an indication in the record that Fantz had been seen only on one occasion near the dock area , and picketing sites, it is not regarded as significant whether the record indicates he was present more than once in connection with the findings made herein with respect to the Respondent International 's responsibility for the picketing "As found in the decision and determination of dispute the record establishes the picketing of the area in the vicinity of the Company's unloading facilities induced em- ployees of several other employers to withhold services affecting the Company, Including employees of Columbia River Paving Co., California Bag and Metal Co , J E. Hazeltine & Co., Shave Transportation Co, Inland Navigation Co., Nisshum Steamship 'Co., and Air Reduction Corporation. 19 United Brotherhood of Carpenters & Joiners of America, Local Union No. 978, et ai. (Kenneth Markwell and William Hartz, partners d/b/a Markwell & Hartz Contractors), 120 NLRB 610 ; Alexander-Stafford Corporation, 118 NLRB 79. H & M KNITTING MILLS, INC. 361 Air Reduction Corporation to engage in a concerted refusal in their course of their employment to perform services affecting the Company with an object of forcing or requiring the Company to assign work to members of Respondent organizations rather than to its own employees , Respondents have engaged in and are engaging in unfair labor practices within the meaning of Section 8(b)(4)(D ) of the Act. 3. The Respondents have not complied with the decision and determination of dispute previously issued by the Board in this controversy. 4. The implementation of the procedural steps and the chronology thereof taken with respect to this controversy does not provide a basis for depriving the Board of its power of jurisdiction to issue an order in this proceeding. 5. Respondent International is responsible for the picketing which formed a part of the unfair labor practices act violative of Section 8(b)(4)(D) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of the Act. [Recommendations omitted from publication.] H & M Knitting Mills, Inc., Petitioner and International Ladies Garment Workers' Union, AFL-CIO. Case No. 2-RM-1049d. July 29, 1960 SUPPLEMENTAL DECISION AND DIRECTION Pursuant to a Decision and Direction of Election issued by the Board on November 19, 1959, an election by secret ballot was con- ducted on December 11, 1959, under the direction and supervision of the Regional Director for the Second Region, among the employees in the appropriate unit. After the election, the parties were furnished with a tally of ballots which showed that of 111 ballots cast, 33 valid ballots were cast against the Union and 78 ballots were challenged. The Regional Director investigated the challenges and on January 29, 1960, issued his report on challenged ballots, in which he recom- mended that the challenges to the ballots of Laura Brighton and Vera Clark be sustained, that the challenges to the ballots of Robert Edwards and Verna Brown be overruled, and as to the remaining 74 challenged ballots involving the eligibility of economic strikers and their replacements, he made findings of fact but no recommendations. Thereafter, the Employer filed timely exceptions to the report. The Board has considered the Regional Director's report on chal- lenged ballots and the Employer's exceptions thereto, and upon the entire record in this case, makes the following findings : The Regional Director found that on March 4, 1959, employees of the Employer instituted a strike against the Employer to compel it to recognize the Union. It also appears that the strike was in prog- ress at the time of the election on December 11, 1959. Of the 78 bal- lots challenged at the election, 46 were cast by alleged strikers, 30 by alleged replacements, and 2 by alleged supervisors.' ' The Regional Director recommended that the challenges to the ballots of Laura Brighton and Vera Clark be sustained on the ground that they were replacements hired 128 NLRB No. 49