United Marine Division of N.M.U., Local 333

UNITED MARINE DIVISION OF N.M.U., LOCAL 333 693 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in con- nection with the operations of the Respondent described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. V. THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices, I will recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having found that the Respondent discriminated against Robert Pashel with respect to his hire and tenure of employment, I will recommend that it be ordered to offer him immediate and full reinstatement to his former position, without preju- dice to any privileges or prerogatives previously enjoyed and to make him whole for any loss of earnings he may have suffered because of the discrimination against him, by payment to him of a sum of money equal to the amount he would normally have earned as wages from the date of the discharge to the date of reinstatement, less his net earnings during said period, with backpay computed on a quarterly basis in the manner established by the Board in F. W. Woolworth Company, 90 NLRB 289. I will also recommend that the Respondent make available to the Board, upon re- quest, payroll and other records to facilitate the determination of the amount due under this recommended remedy. As the discharge of an employee because of his union activities goes to the very heart of the Act, the commission of similar and other unfair labor practices reason- ably may be anticipated. I shall therefore recommend that the Respondent be ordered to cease and desist from in any manner infringing upon the rights guaran- teed to its employees by Section 7 of the Act. 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. The Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. By discharging Robert Pashel the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) of the Act. 3. By the foregoing conduct, by paying money to employees to influence their union activities, by threatening to close its plant, by interrogating employees con- cerning their union activities and the activities of other employees, and by prom- ising them preferred employment status, the Respondent has interfered with, re- strained , and coerced employees in the rights guaranteed in Section 7 of the Act and thereby has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 4. 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.] United Marine Division of the National Maritime Union, AFL- CIO, Local No. 333 and D. M. Picton & Co., Inc. United Marine Division of the National Maritime Union, AFL- CIO, Local No. 333 and Dixie Carriers, Inc. Cases Nos. 93-CC- 74 and 03-CC-75. May 19, 1961 DECISION AND ORDER On November 14, 1960, Trial Examiner George J. Bott issued his Intermediate Report in the above-entitled proceeding, finding that the 131 NLRB No. 91. 694 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent had engaged in and was engaging in unfair labor prac- tices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter the Respondent filed exceptions to the Intermediate Report and a brief in support of its exceptions; Charging Party Dixie Carriers, Inc., filed a brief in support of the Intermediate Report. The Board i 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 briefs, and the entire record in the case,2 and hereby adopts the findings,' conclusions, and recom- mendations of the Trial Examiner with the minor clarifications noted below. ORDER Upon the entire record in the 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, United Marine Division of the National Maritime Union, AFL-CIO, Local No. 333, Port Arthur, Texas, its officers, representatives, agents, successors, and assigns, shall : 1. Cease and desist from engaging in, or inducing or encouraging any individual employed by D. M. Picton & Co., Inc., Dixie Carriers, Inc., or by any other person engaged in work formerly performed by Sabine Towing Co., Inc., or Sabine Transportation Co., Inc., to engage in, a strike or a refusal in the course of his employment to use, manu- facture, process, transport, or otherwise handle or work on any goods, articles, materials, or commodities, or to perform any services, or threaten, coerce, or restrain D. M. Picton & Co., Inc., Dixie Carrier, Inc., or any other person engaged in work formerly performed by Sabine Towing Co., Inc., or Sabine Transportation Co., Inc., where in either case an object thereof is to force or require D. M. Picton & Co., Inc., Dixie Carriers, Inc., or any other person, to cease doing busi- ness with Gulf Oil Corporation, Pure Oil Company, Lykes Bros. 'Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Members Rodgers and Leedom] a Respondent has requested oral argument The request is denied as the record, includ- ing the exceptions and briefs , adequately presents the issues and the positions of the parties 3In his Intermediate Report, the Trial Examiner listed certain incidents of threats to mates on tugboats . The record shows that when these threats were made the mates were acting as captains of their vessels. We adopt the Trial Examiner's findings of violations of Section 8(b) (4) (i) and (ii) (B) of the Act We base our finding of 8 (b) (4) (i) (B) violation on the incidents of induce- ment and encouragement set forth in section III, B, 2 and III, C, 2, and our finding of 8(b) (4) (ii ) (B) violation on the incidents of threats, restraint, and coercion set forth in section III , B, 3 and III, C, 3 of the Intermediate Report. UNITED MARINE DIVISION OF N.M.U., LOCAL 333 695 Steamship Co., Inc., Atlantic Refining Company, Sun Oil Company, or 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 and meeting halls at Port Arthur and Beau- mont, Texas, copies of the notice attached hereto, marked "Ap- pendix."' Copies of said notice, to be furnished by the Regional Director of the Twenty-third Region, shall, after being signed by Re- spondent's representative, be posted by Respondent immediately upon receipt thereof, and be maintained for a period of 60 consecutive days thereafter, in conspicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken to insure that said notices are not altered, defaced, or covered by other material. (b) Mail to the Regional Director for the Twenty-third Region signed copies of the notice attached hereto for posting at the premises of D. M. Picton & Co., Inc., and Dixie Carriers, Inc., the Companies willing, for a period of 60 consecutive days, at all locations where notices to employees are customarily posted. Copies of said notices are to be furnished by the said Regional Director. (c) Notify the Regional Director for the Twenty-third Region, in writing, within 10 days from the date of this Order, what steps it 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 OUR MEMBERS AND ALL OTHER PERSONS 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, we hereby notify you that : WE WILL NOT engage in, or induce or encourage any individual employed by D. M. Picton & Co., Inc., Dixie Carriers, Inc., or by any other person engaged in work formerly performed by Sabine Towing Co., Inc., or Sabine Transportation Co., Inc., to engage in, a strike or a refusal in the course of his employment to use, manufacture, process, transport, or otherwise handle or work on any goods, articles, materials, or commodities, or to perform any services, or threaten, coerce, or restrain D. M. Picton & Co., Inc., Dixie Carriers, Inc., or any other person engaged in work formerly performed by Sabine Towing Co., Inc., or Sabine Transportation Co., Inc., where in either case an object thereof is to force or require D. M. Picton & Co., Inc., Dixie Carriers, Inc., or any 696 DECISIONS OF NATIONAL LABOR RELATIONS BOARD other person, to cease doing business with Gulf Oil Corporation, Pure Oil Company, Lykes Bros. Steamship Co., Inc., Atlantic Refining Company, Sun Oil Company, or any other person. UNITED MARINE DIVISION OF THE NATIONAL MARI- TIME UNION, AFL-CIO, LOCAL No. 333, Labor Organization. Dated---------------- By------------------------------------- (Representative ) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. INTERMEDIATE REPORT STATEMENT OF THE CASE Upon charges duly filed by D. M. Picton & Co., Inc., herein called Picton, and Dixie Carriers, Inc., herein called Dixie, the General Counsel of the National Labor Relations Board issued separate complaints , dated May 18 and 24, 1960, respectively, alleging that United Marine Division of the National Maritime Union, AFL-CIO, Local No. 333, herein called Respondent or Union, had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8(b) (4) (i ) and (ii) (B ) of the National Labor Relations Act, as amended. In duly filed answers , the Respondent denied the commission of any unfair labor practices. The cases were consolidated for hearing and pursuant to due notice a hearing was held before the duly designated Trial Examiner on June 21 , 22, and 23, 1960, in Beaumont, Texas. All parties were represented at the hearing and were afforded full opportunity to adduce evidence, to examine and cross-examine witnesses, to present oral arguments , and to file briefs. Oral argument was waived but the General Counsel, the Charging Parties, and Respondent filed briefs which I have considered. Upon the entire record in the case, and from my observations of the witnesses, I make the following: FINDINGS OF FACT I. THE JURISDICTION OF THE BOARD D. M. Picton & Co., Inc., is a Texas corporation, with its principal office located in Port Arthur, Texas, where it is primarily engaged in the business of furnishing harbor towage services to oceangoing vessels calling at ports and terminals on the Sabine-Neches Rivers Waterway of Jefferson County, Texas. Picton, during 1959, a representative period , derived revenue from this operation in an amount exceeding $600,000. In 1959, Picton received in excess of $50,000, for towage services furnished to vessels operated by Lykes Bros. Steamship Co., Inc., and Mississippi Shipping Co., Inc., which vessels were operating as common water carriers in foreign commerce. In addition , Picton rendered harbor towing services to Gulf Oil Cor- poration and Atlantic Refining Company in 1959 in an amount exceeding $50,000 which firms shipped products from their refineries located in Jefferson County, Texas, to points directly outside the State of Texas valued in excess of $50,000. Dixie Carriers, Inc., is a Delaware corporation with its principal place of business at Houston, Texas, where it operates a barge and towing service both as an inter- state common carrier and a private exempt water carrier . In 1959, a representative period, Dixie earned in excess of $100 ,000 from its interstate operations. I find that Picton and Dixie are engaged in commerce within the meaning of Section 2(6) and (7) of the Act. If. THE LABOR ORGANIZATION INVOLVED Respondent, United Marine Division of National Maritime Union, AFL-CIO, Local No. 333, is a labor organization within the meaning of the Act. UNITED MARINE DIVISION OF N.M.U., LOCAL 333 697 III. THE UNFAIR LABOR PRACTICES A. The setting and the issues On April 25, 1960, the Respondent struck the Sabine Towing Co., Inc., and the Sabine Transportation Co., Inc., herein collectively referred to as Sabine, and individually as Sabine Towing and Sabine Transportation. These companies, with their offices located jointly at Port Arthur, Texas, are affiliated enterprises to the extent that Sabine Towing owns approximately 50 percent of the stock of Sabine Transportation, and also acts as managing operator for that concern. The principal business activity of Sabine Towing is performing harbor towing services for ocean- going vessels and barge transportation in the intracoastal canal. The principal busi- ness activity of Sabine Transportation is the operation of a fleet of oceangoing tanker vessels and towage service on the inland waterways of the United States. Sabine Towing and Picton are, and have been for many years, business competitors competing for the harbor towage business in the Sabine-Neches Waterway of Jefferson County, Texas. Sabine Towing also competes with Dixie in the business of trans- porting crude petroleum by barges from various offshore crude production sites in various areas of the Gulf of Mexico. During the strike, Respondent picketed Sabine's three main gates and waterfront property at Sabine's office in Port Arthur, Texas, and also stationed a picket boat in the stream in front of the waterfront property. Sabine's barges and tugs were unable to operate during the strike and its operations were completely shut down. Although Sabine was shut down, Respondent, by means of picket boats, picketed the entire Sabine area, consisting of Orange, Beaumont, Port Arthur, Smiths Bluff, and Gulf Basin, Texas, an area of about 25 miles in radius. During the picketing of this area the pickets prevented and attempted to prevent Picton from servicing certain vessels and Dixie from docking and undocking the barge vessel APW-101. The Respondent does not deny that it picketed Picton and Dixie during the strike of Sabine but contends that the picketing of said Companies was "primary" in that Picton and Dixie were "allied" with Sabine. B. The case involving Picton 1. The Union's "ally" defense Picton and Sabine are the only companies doing commercial towing in the Sabine area. Sabine had a written agreement with Sun Oil Company by which Picton was to receive approximately 50 percent of Sun's towing requirements in the area and Picton had an identical agreement. In addition to Sun Oil Company, other com- panies whose work was picketed, such as, Lykes Bros. Steamship Company, Gulf Oil Company, and Atlantic Refining Company, had an understanding and practice of giving approximately half their towing business in the area to Sabine and half to Picton. The work of towing by Sabine and Picton for those companies is usually done on a rotation basis, that is, the first vessel of Lykes Bros. Steamship Company, for example, into the harbor is generally assigned by them to Picton and the next to Sabine If Picton is unable to handle the vessel because of other commitments it calls Sabine and Sabine does the work for Picton's account, and Sabine follows the same practice. The practice of the owners of generally assigning work to Picton and Sabine on a rotation basis was merely a practice and not a legal requirement. After the strike commenced, the owners of vessels needing towage were forced to abandon their past practice of dividing work fairly equally between Picton and Sabine, and Picton was called upon exclusively to do all future harbor towing in the Sabine area because Sabine had ceased operations because of the strike. On the day after the strike began at Sabine, Mr. Ball, president of Sabine, wrote -a letter to all of Sabine's customers notifying them of the strike and reviewing the issues. Part of the letter read as follows: The business you have given us over the past years we appreciate. We as- sure you we will make every endeavor to see that it is carried on to your satis- faction and with the least delay or embarrassment possible. At present D. M. Picton & Company, Inc., upon request, no doubt will handle such harbor dock- ing, undocking and shifting of vessels as you may require. During this period that we are unable to perform under our contract, we would appreciate you notifying D. M. Picton & Comnany, Inc., about any vessel that you operate or for which you are agent. requiring these services, and we trust that they will supply the necessary tug service. 698 DECISIONS OF NATIONAL LABOR RELATIONS BOARD We regret that it is necessary to adopt this procedure. At the moment, and to avoid any unnecessary delays to your vessels, we can see no other way out. When our problem with the union is finally settled we can resume our present position... . On or about the first day of the strike, E. B. Picton, president of Picton, advised Sabine's president, in response to an inquiry from Sabine about what Picton was going to do about work which Sabine previously had handled, that, "we were not going to handle any work whatsoever for the Sabine Towing Company. We were not going to handle any vessels of the Sabine Transportation Company. We were not going to handle any vessels with which [Sabine] had exclusive contracts except those companies who came to us directly and asked us to furnish tugboat services, in which case we would handle them if we could, and we would only handle them on the basis that we would bill the ship owner direct." Picton, during the strike, refused to perform services for a Sabine Transportation vessel, SS Brazos, and a Pure Oil Company vessel, MT Purol, where the services were requested by Sabine, and it also refused to service many vessels which it assumed to be under Sabine contract prior to the strike, even though the request to service said vessels was made directly by the agents to Picton. During the strike Picton continued to service its customers, such as Lykes Bros. Steamship Company and Atlantic Refining Company, as called upon to do so by those customers. It is clear, that since Sabine was out of business because of the strike, Picton's customers, who were also Sabine's customers, called upon Picton to serve vessels which Sabine in all probability would have served but for the strike. As Picton attempted to service, by docking or undocking, the vessels of its customers, its tugs were met by union picket boats in certain instances, and were urged not to serve the vessel in question. The Union did not picket all Picton work but selected certain vessels of Picton customers as the occasion for picketing. Mitchell Home, union delegate, who was in charge of the picketing at all times during the strike, explained the Union's method of selection. He testified that, on .the basis of know- ledge of the past practice of rotating assignments or dividing work between Picton -and Sabine, it was decided to picket Picton only when it was handling a vessel which Sabine would have handled but for the strike. The job to be picketed was selected on the basis of general information in the hands of a 10-man strike committee and reports from pilots in the-area about the movement of vessels. With respect to Lykes Bros. Steamship Company, for example, he testified that the Union caused Picton to be picketed when servicing the MV Harry Culbreath because the last Lykes vessel serviced was a Picton job. The next Lykes vessel after the Harry Culbreath was normally a Picton job and was not picketed, but the next, the Genevieve Lykes, would have been Sabine's according to the Union's calculations, and was picketed. Horne gave similar testimony with respect to the selection of other vessels serviced, or attempted to be serviced, by Picton and involved in the instant case. I credit Horne's testimony and find that the Union made an honest, if unscientific, effort to picket Picton's tugs only when Picton was handling vessels which the Respondent honestly believed would have been handled by the struck primary employer, Sabine, but for the strike. The Union contends on the above facts, that Pioton had "allied" itself with Sabine and that in picketing Picton the Union was picketing a primary employer. The Respondent, for legal support of its theory, relies heavily on the court's decision in N.L.R.B. v. Business Machine and Office Appliance Mechanics etc. (Royal Typewriter Co.).1 It is true, of course, that if Picton was an "ally" of Sabine within the meaning of the cases, then the Union could picket Picton as an "ally" under the same conditions as govern picketing at the primary employers ,premises? I do not think that the facts here, however, bring the case within the "ally" doc- trine. The General Counsel having made out a prima facie of illegal picketing, it was the Respondents responsibility to establish as an affirmative defense the existence of special circumstances which would remove Picton from the protection of the Act. This it has not done, in my view. In the Royal Typewriter case, Royal had con- tracts with certain large companies to service their typewriters and business machines in their offices. Royals mechanics went on strike and Royal instructed its customers to have the machines repaired by other concerns, and to send the bill to Royal. The 1228 F. 2d 553 (C.A. 2). 2International Union of United Brewery, Flour, Cereal, So ft Drink and Distillery Workers of America, AFL-CIO, etc. ( Adolph Coors Company ), 121 NLRB 271, 276, enforcement denied 272 F 2d 817 (CA. 10). UNITED MARINE DIVISION OF N.M.U., LOCAL 333 699 independents did the work for Royals account. The Union picketed the independents and the court held that the picketing was not secondary in character. The court concluded on page 559 that: We therefore held that an employer is not within the protection of Section 8(b)(4)(A) when he knowingly does work which would otherwise be done by the striking employees of the primary employer and where this work is paid for by the primary employer pursuant to an arrangement devised and originated by him to meet his contractural obligations. The result must be the same whether or not the primary employer makes any direct arrangement with the employers providing the services. In the instant case no work was transferred to Picton by Sabine, but customers of both had all their work done by Picton during the strike. Any work which was transferred was transferred by the customer and Sabine "farmed" no work out. Sabine made no arrangement, direct or indirect, with Picton to have Sabine's work performed 3 and certainly no financial arrangement of any kind between Sabine and Picton with respect to the services Picton performed during the strike appears in the record. Picton billed all customers direct during the strike and did not perform for Sabine's account. Sabine conceived no plan to take care of its customers during the strike in which Picton participated. On the contrary, the customers logically and conveniently called Picton for additional services in view of the fact that Picton had been used for subsantial services in the past. The customers had no legal obligation to call either Sabine or Piston for services but exercised a free choice in the matter. No substitute services were performed by any employer or employee engaged in the primary dispute, and the services performed by Picton did not benefit Sabine in any way revealed in the record. Although it would seem clear that Picton and the cus- tomers were not wholly innocent in the matter in that they clearly knew that Picton was performing some -work at least that Sabine would have performed absent a strike, it would appear that a customer arranging for substitute services during a strike does not make himself or the substitute an "ally" merely because he knowingly ar- ranges for services and the substitute knowingly performs them.4 In the absence of a direct or indirect arrangement by the struck employer with the 'customer or secondary employer (Piston) to have the work performed for its account, the sec- ondary employers do not lose the protection afforded a "neutral" under the Act. This may appear, from an economic point of view, an illogical and, indeed, arbitrary drawing of a line, but the line has to be drawn somewhere and this is where I under- stand Congress, the courts, and the Board draw it .5 2. The inducement and encouragement I find, on the basis of the uncontradicted testimony, and in accordance with the complaint, as amended, that Respondent induced and encouraged individuals em- ployed by Picton and other persons to refuse to perform services for their employer with an object of forcing and requiring Picton to cease doing business with Gulf Oil Corporation, Atlantic Refining Company, Sun Oil Company, Lykes Bros. Steamship Co. Inc., and other companies as follows: a. On May 3, 1960, at Port Arthur, Texas, maneuvering and stationing a picket boat between the tug E. M. Black and the MT Gulfprince. b. On or about April 29 and May 1, 1960, at Beaumont and Port Arthur, Texas, maneuvering a picket boat between the tugs Stella II, Picto, and M. W. Storms and the MV Harry Culbreath. c. On May 2, 1960, at Port Arthur, Texas, maneuvering a picket boat between the tug Picto -and the MV Ohio Sun. d. On May 4, 1960, appealing to the crews of the tugs Stella and E. M. Black not to handle the vessel E. J. Henry. $ I do not consider Sabine's letter to its customers and its reference to Picton's avail- ability as such a plan The owners of the vessels involved in this case knew Picton was available 4 United Marine Division, Local 333, International Longshoremen's Association, et at., 107 NLRB 686, 707-708 5 Congress was aware of the "ally" doctrine as developed by the Board and courts when it passed the Labor-Management Reporting and Disclosure Act of 1959 (73 Stat. 543) and chose to leave the law where it was. See H. Conf Rept 1147, 86th Cong., 1st sess, p 38; NLRB Legislative History of the Labor-Management and Disclosure Act of 1959 (U S. Government Printing Office, 1959), p 942. 700 _ DECISIONS OF 'NATIONAL LABOR' RELATIONS BOARD e. On May 3 and 4, 1960, at Beaumont, Texas, maneuvering a picket boat between the tug Picto and the MV Genevieve Lykes and instructing the crew aboard the MV Genevieve Lykes not to take the lines of the tug Picto. f. On May 2, 1960, at Beaumont, Texas, maneuvering a picket boat between the tug M. W. Storms and the MV Howell Lykes. g. On May 8 and 9, 1960, at Beaumont, Texas, maneuvering a picket boat be- tween the tug M. W. Storms and the MV Esso Allentown. h. On May 8 and 10, 1960, maneuvering a picket boat between the tugs Picto and M. W. Storms and the MV Doctor Lykes. 3. Threats, restraint, and coercion I find, on the basis of the uncontradicted testimony, and in accordance with the complaint, as amended, that Respondent threatened, restrained, and coerced Picton the an object of forcing and requiring Picton to cease doing business with other persons as follows: a. On May 4, 1960, threatening the captain of the tug E. M. Black with reprisals if he handled the vessel E. J. Henry at the Atlantic Refining Company dock. b. On May 4, 1960, threatening the mate of the tug Stella II with reprisals if the tug handled the E. J. Henry. c. On April 30 and May 1, 1960, advising the mate of the tug M. W. Storms that the Union would picket the M. W. Storms if it handled the vessel Harry Culbreath. d. On May 2, 1960, threatening to picket the tug M. W. Storms if it handled the MV Lykes, and threatening the captain of the tug Picto with reprisals if he con- tinued to service vessels deemed by the Union to be its work. I find further, that by engaging in the activities described above in subsections 2 and 3 of section III, B, the Respondent has engaged in unfair labor practices within the meaning of Section 8(b) (4) (i) and (ii) (B) of the Act. C. The case concerning Dixie 1. The Union's "ally" defense with respect to Dixie Dixie is a common carrier which functions as the operating agent for the Offshore Towing Company, herein called "Offshore." Offshore owns several barges but has no employees of its own. Dixie does all Offshore's contracting of business and Offshore uses Dixie's tugboats since Offshore owns no tugs.6 Dixie and Sabine both contract with oil companies to tow their oil along the intracoastal canal, but Dixie performs no harbor towing services in competition with Sabine. Some time ago Dixie entered into a contract with Continental Oil Company to carry crude oil from an offshore rig, known as the Catco rig, from Vermilion Block 120 to the Continental Company's terminal at Lake Charles, Louisiana. On March 7, 1960, Offshore/Dixie entered into an agreement with Sabine, whereby Sabine agreed to tow Offshore's barge APW-101 and to carry crude oil from Continental's Catco rig in Vermilion Block 120 to Continental's terminal at Lake Charles, Louisiana. Sabine was paid for his towing service by Dixie and not by Continental. On' April 25, 1960, Dixie was advised that Sabine was on strike and would not be able to perform towing service for Dixie. Upon receiving this notice, Offshore/Dixie made arrangements for Dixie to carry Continental's crude oil from the Catco rig to Continental's terminal in Lake Charles, Louisiana, using the barge APW-101. Later, on or about April 28, 1960, Mr. Wainwright, contracting manager for Dixie, who, as part of his duties, arranges contracts for the use of Offshore barges, received a telephone call from C. J. Thibodeaux & Company, an independent firm of chartering brokers, in Houston, Texas, and Wainwright was asked if he had any interest in moving some offshore crude oil from the West Cameron Block 45 of the Gulf of Mexico to the Sabine area. There was some uncertainty in the conversation about the ownership of the oil, but after Dixie agreed to furnish the transportation of the crude oil by its tug, the George Petei kin, and by Offshore's barge, the APW- 101, to the Gulf Oil Corporation's refinery at Port Arthur, Texas, the Gulf Com- pany informed Dixie that the Pure Oil Corporation had purchased the oil. Dixie then contacted Pure Oil Company and made arrangement with it to make future delivery of crude production from the Block 45 location, including the crude already loaded on barge APW-101. Pursuant to this agreement Dixie/Offshore undertook the delivery of the Block 45 crude oil to Pure Oil Company's Smiths Bluff, Texas, 6In view of the close relationship between Dixie and Offshore, they will be referred to collectively as Dixie/Offshore. UNITED MARINE DIVISION OF N.M.U., LOCAL 333 701 refinery. On May 4, 1960, while Dixie/Offshore was delivering the crude at Smiths Bluff, and on May 6, while attempting to remove the unloaded barge APW-101 from the Pure Oil docks, Respondent engaged in acts of picketing and other conduct which are alleged to be violative of Section 8(b) (4) (B). Respondent contends that Dixie had "allied" itself with the primary employer Sabine and this defense is bottomed on the ownership, control, and prior use of the barge APW-101. The Union's argument, as fairly as I can state it, runs as follows: At the time of the strike, Sabine had exclusive control over barge APW-101 and had such from March 7, 1958, to April 25, 1960, the date of the strike. Sabine's con- tract with Dixie could not be and was not terminated because of the strike, and the Union was never notified that the barge, which had been in Sabine's exclusive control prior to the strike, was being "recalled by someone who had authority to reclaim it," and the Union, when it picketed barge APW-101, understood it was picketing Sabine's equipment. The argument continues that "Offshore Towing Company was caught at the time of the strike in an unfortunate position of having its equipment in the hands of a struck company. In order to remove its equipment it attempted to get Dixie Carriers to take over Sabine's work. Since this was equipment properly in Sabine's hands at the time of the strike and used exclusively in Sabine's work, it was properly picketed." 7 For legal support of its position, the Union relies on Royal Typewriter, supra, and certain other cases involving "ambulatory" and "common situs" picketing. I think the Union's reliance on the cases is misplaced. Although it is true that Sabine had been using the barge APW-101 exclusively, and for a considerable period of time prior to the strike in the transportation of crude oil, the barge was not owned by it, but by Offshore. Despite the considerable testi- mony in the record about the meaning of the agreement between Offshore/Dixie and Sabine with respect to the use of the barge, in actual fact and reality Dixie/Offshore had a contract with Continental Oil Company to transport its oil and utilized Sabine Towing Company to tow Offshore's barge APW-101 for a fee. Sabine was legally in possession of the barge at the time of the strike but was unable to perform under its agreement with Dixie/Offshore because of the strike. Although it appears that it had the exclusive right to use the barge in towing from the Catco rig under its agreement with Dixie/Offshore, it was not a party in any way to the contract between Dixie/Offshore and Continental. When Dixie/Offshore was notified that Sabine could not perform because of the strike, Dixie/Offshore made an arrangement whereby Dixie's tugs would be used to tow the APW-101. Sabine made no arrange- ment, direct or indirect, with anyone, including Dixie/Offshore, or Continental Oil Corporation, to have Sabine's work performed. Subsequently, an independent firm, C. J. Thibodeaux opened the question with Dixie/Offshore of its moving crude oil from the West Cameron Block No. 45 in the Gulf of Mexico to the Sabine area. Dixie/Offshore carried through negotiations with Pure Oil Corporation and agreed to move the oil with the APW-101. Here again, Sabine had no contractual relationship or understanding with the Pure Oil Company prior to or during the strike for the transportation of crude oil from the West Cam- eron Block No. 45 to Pure's Smiths Bluff, Texas, refinery, and Sabine did not partici- pate, directly or indirectly, in the arrangements made between Dixie/Offshore and the Pure Oil Corporation for the movement of the oil. Dixie/Offshore received payment directly from Pure Oil, and no rebate or other consideration was given by them to Sabine with respect to the services performed under the contract. It seems to me that the absence of any arrangement, direct or indirect, devised by the primary employer to enable him to meet his contractual obligations, and payment by him for the work done, of itself deprives the Union of the protection of the Royal Typewriter rule. Furthermore, I do not think that Dixie/Offshore in using its own property to transport oil which Sabine had no legal obligation to transport did any "work" "farmed out" to it by Sabine. The barge was Offshore's property and any previous arrangements between Dixie/Offshore and Sabine with respect to the use of the barge, or civil rights or liabilities as between Sabine and Dixie/Offshore, cannot convert the barge into "work" "farmed out" by Sabine merely because the employees believed the barge belonged to Sabine and no one told them to the contrary. I find, on the basis of the above facts, that the existence of an "ally" relationship between Dixie/Offshore and Sabine, the primary employer, has not been established. Cases relating to "common situs" and "ambulatory picketing" relied upon by Respondent are clearly inapposite since Dixie/Offshore harbored no work, property, or dispute of the primary employer and the primary employer was performing no work at the location of the picketing with any of its employees or property. The 7 Union's brief. 702 DECISIONS OF NATIONAL' LABOR RELATIONS BOARD picketing, moreover, was aimed directly at the secondary and did not purport to affect him only incidentally.8 2. The inducement and encouragement I find, on the basis of the uncontradicted testimony, and in accordance with the complaint, as amended, that Respondent induced and encouraged individuals em- ployed by Ellis Towing and Transportation Company, Dixie, and other persons to refuse to perform services for their employer with an object of forcing and requiring Ellis Towing and Transportation Company to stop doing business with Dixie and Pure Oil Company, and Dixie/Offshore to stop doing business with Pure Oil Company by: a. On May 4, 1960, maneuvering in the vicinity of Pure Oil Company's barge terminal near Smiths Bluff, Texas, a picket boat, hindering the docking of the loaded barge APW-101, owned by Offshore Towing Company, and towed by the tug T. F. Ellis III, under charter to Dixie by its owner, Ellis Towing and Transportation Company; and orally instructing the crew of said tug not to handle the APW-101. b. On May 6, 1960, maneuvering, in the vicinity of the Pure Oil Company's barge terminal facilities described above, a picket boat, hindering the undocking of the empty barge APW-101 by the tug Wesley W., owned and operated by Dixie, and appealing orally to the crew of the tug not to handle the APW-101. 3. Threats, restraint, and coercion I find, on the basis of the uncontradicted testimony, and in accordance with the complaint as amended, that Respondent threatened, restrained, and coerced Dixie and Ellis Towing and Transportation with an object of requiring Ellis Towing and Transportation to stop doing business with Dixie and Pure Oil Company, and Dixie/Offshore with Pure Oil Company by: a. On May 4, 1960, threatening the captain of the tug T. F. Ellis with reprisals if he moved the barge APW-101. b. On May 6, 1960, threatening the mate of the tug Wesley W., with picketing if the tug handled the barge APW-101. I find further, that by engaging in the activities described above in subsections 2 and 3 of section III, C, the Respondent has engaged in unfair labor practices within the meaning of Section 8(b) (4) (i) and (ii) (B) of the Act. 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 Picton and Dixie 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 com- merce and the free flow of commerce. V. THE REMEDY In respect to the harbor picketing of oceangoing vessels in the Picton case, the record shows that the picketing was designed to interrupt the services of any towing company which offered to service any vessel deemed by the Respondent to be "Sabine's work." In the Dixie case, it was the Union's position in the picketing that the barge APW-101 was its work, and it is clear that there is a danger that the Union would picket any concern utilizing the APW-101 in its business. I will, therefore, in both cases, make my recommended order coextensive with the unfair labor prac- tices committed and the threat.9 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. Dixie Carriers, Inc., and D. M. Picton & Co., Inc., are engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2 Respondent, United Marine Division of the National Maritime Union, AFL- CIO, Local No. 333, is a labor organization within the meaning of the Act. 8 Cf Moore Dry Dock Company, 92 NLRB 547; N L R.B v Service Trade etc. (Howland Dry Goods), 191 F 2d 65 (CA. 2) ; N.L R.B. v. General Drivers etc. (Otis Massey Co ), 225 F. 2d 205 (CA. 5). 9 N L R B. v. Express Publishing Company, 312 U S. 426, 436-438; Communications Workers of America, AFL-CIO et al. (Ohio Consolidated Tele. Co ) v. N L.R B , 362 U.S. 479. HOUSTON CHRONICLE PUBLISHING COMPANY 703 3. By inducing and encouraging individuals employed by D. M. Picton and Co., Inc., Dixie Carriers, Inc., and other persons to engage in a strike or refusal to per- form services for their employers, and by threatening, coercing, and restraining D. M. Picton & Co., Inc., and Dixie Carriers, Inc., with an object of forcing said companies to cease doing business with Gulf Oil Corporation , Pure Oil Company, Lykes Bros. Steamship Co., Inc., Atlantic Refining Company, Sun Oil Company, and other com- panies, Respondent engaged in unfair labor practices within the meaning of Section 8(b)(4)(i) and (ii )(B) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of the Act. [Recommendations omitted from publication.] Houston Chronicle Publishing Company and Houston News- paper Guild, Local 113, of American Newspaper Guild, AFL- CIO. Case No. 23-CA-1007. May 22, 1961 ORDER DENYING PETITION FOR RECONSIDERATION On March 7, 1961, the Board issued a Decision and Order in this proceeding,' in which the Board found that the Respondent, Houston Chronicle Publishing Company, had unlawfully refused to bargain with the Union, Houston Newspaper Guild, Local 113, of American Newspaper Guild, AFL-CIO, as the certified representative of the Respondent's employees in an appropriate unit, and in which it or- dered Respondent to cease and desist therefrom and take certain af- firmative action, which the Board found would effectuate the policies of the Act. On March 16, 1961, Zeena Jackson, who has not heretofore been a party to these proceedings, filed the instant "Intervention and Motion for Reconsideration." Subsequently the General Counsel and the Union each filed an opposition to Zeena Jackson's motion, and Zeena Jackson thereafter filed a reply to the oppositions to her motion. The petition for reconsideration requests that the Board set aside the election of October 15, 1959, the certification of representatives dated March 11, 1960, and the Decision and Order of March 7, 1961. The petition further requests that a new election be directed in a unit modified to include Zeena Jackson and two other alleged employees excluded from the unit by agreement of the Respondent and the Union. In support of her motion, Zeena Jackson contends that she and two other alleged employees, Rickard and McLemore, who are referred to in the Board's Decision and Order, were improperly excluded from the bargaining unit found appropriate; that their exclusion from the said unit renders the unit inappropriate; that these three alleged employees have unlawfully been denied their right to vote in the election and denied their right to be represented by the bargaining agent for the employees of the Respondent. 3 130 NLRB 1243. 131 NLRB No. 93.