International Longshoremen's, Etc.

INTERNATIONAL LONGSHOREMEN'S, ETC. 119 (d) Notify the Regional Director for the Twenty-sixth Region, in writing, within 20 days from the date of the receipt of this Intermediate Report and Recommended Order, what steps the Respondent has taken to comply herewith 28 It is recommended that unless on or before 20 days from the date of the receipt of this Intermediate Report and Recommended Order, the Respondent notifies said Regional Director, in writing, that it will comply with the foregoing recommenda- tions, the National Labor Relations Board issue an order requiring the Respondent to take the action aforesaid. 28 In the event that these recommendations are adopted by the Board, this provision shall be modified to read: "Notify the Regional Director for the Twenty-sixth Region, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the recommendations of a Trial Examiner of the National Labor Rela- tions Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that: WE WILL NOT discourage membership in Teamsters, Chauffeurs, Helpers and Taxicab Drivers, Local Union No. 327, affiliated with International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other labor organization, by laying off and thereafter failing and refusing to reinstate our employees, or by discriminating in any other manner in regard to their hire or tenure of employment or any term or condition of employment. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of the right to self-organization, to form labor organi- zations, to join or assist the above-named Union, or any other labor organiza- tion, to bargain collectively through representatives of their own choosing, and to engage in collective bargaining or other mutual aid or protection, or to re- frain from any or all such activities. WE WILL offer William H. Nelson immediate and full reinstatement to his former or substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make him whole for any loss of pay he may have suffered as a result of the discrimination against him. OMAN CONSTRUCTION CO., INC., Employer. 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. Employees may communicate directly with the Board's Regional Office, 714 Falls Building, 22 North Front Street, Memphis, Tennessee, Telephone Number, Jackson 7-5451, if the employees have any question concerning this notice or compliance with its provisions. International .Longshoremen's and Warehousemen's Local Union No. 19, Independent and International Longshoremen's and Warehousemen's Union, Independent [Pacific Maritime Asso- ciation] and J. Duane Vance, Attorney. Cases Nos. 19-CC-146 and 19-CC-147. May 15, 1962 DECISION AND ORDER On March 24,.1961, Trial Examiner William E. Spencer issued his Intermediate Report in the above-entitled proceeding, finding that the Respondents had not engaged in' the unfair labor practices alleged 137 NLRB No; 13.- 120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in the complaint and recommending that the complaint be dismissed in its entirety, as set forth in the Intermediate Report attached hereto. Thereafter, the General Counsel and the Charging Party filed excep- tions to the Intermediate Report and supporting briefs, and the Re- spondents and Pacific Maritime Association filed briefs. 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 briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner.2 [The Board dismissed the complaint.] 'Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with this proceeding to a three-member panel [Chairman McCulloch and Members Panning and Brown]. 2 The Board, however, finds it unnecessary to adopt the Trial Examiner's generalization that to permit the exertion of economic force by a union to obtain a contract and deny it to obtain enforcement of the contract would be legalistic nonsense INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE In this proceeding before the duly designated Trial Examiner of the National Labor Relations Board, herein called the Board , the Respondents , International Longshoremen's and Warehousemen's Union, Independent, herein called Respondent ILWU, and Local 19 of the said International, herein called Local 19, were alleged by the General Counsel of the Board to have engaged in conduct violative of Section 8(b)(4)(i ) and (ii )(B) of the National Labor Relations Act, as amended , herein called the Act . The hearing was held at Seattle, Washington, on November 15, 1960, and thereafter was held open through December 19, pending the submission of motions to take further evidence . No such motions having been submitted the hearing was closed by order on the latter date. In addition to the charges which initiated the proceeding herein , the Charging Party, J. Duane Vance, attorney for International Union of Operating Engineers, AFL-CIO, herein called Engineers , filed a charge in Case No. 19-CD-53 against the same Respondents involving matters relating to the same controversy. While these charges were pending, Engineers brought an action in a State court against the Respondents and also against Waterfront Employers of Washington , Pacific Mari- time Association, Puget Sound-Alaska Van Lines, Inc., and the Port of Seattle (herein referred to respectively as WEW, PMA, PSAVL, and the Port). Preliminary to the State court proceeding depositions from nine witnesses were taken later to be in- cluded in eight volumes of testimony , and there was also testimony in open court, as well as evidence received in the form of some 30 exhibits . Thereafter a 10(k) hearing was held in Case No. 19-CD-53. Also, the Board's Regional Director filed a petition in a Federal District Court for the Western District of Washington (Gra- ham v. ILWU, Civil No. 5156) based on charges filed in Cases Nos. 19-CC-146, 147, and 1 9-CD-53, as a result of which an injunction was issued against Respond- ents. Additional testimony was taken and additional exhibits were received in the said injunction proceeding 1 In the instant proceeding, by stipulation of the parties, the depositions, testimony, and exhibits in all the aforesaid proceedings were introduced in evidence and consti- tute the sole record now before the Trial Examiner . Inasmuch as this constituted a "cold" record, no witnesses having appeared in person before me , and inasmuch as much of the matter offered in evidence was not material to the issues herein, in receiving this evidence I stated that it was conditional upon my not being called upon to resolve issues involving credibility, and upon the submission of briefs which i This summarization of proceedings involving the Respondents herein is based on the brief submitted by the General Counsel which I adopt for this limited purpose INTERNATIONAL LONGSHOREMEN'S, ETC. 121 would make specific reference to all evidence relied on by the parties respectively. In compliance therewith, on or before January 31 , 1961, the General Counsel, the Respondents, and PMA each submitted briefs of gratifying excellence. Upon con- sideration of the said briefs and upon the entire record in the case, I make the following: FINDINGS OF FACT I. THE BUSINESS OF THE EMPLOYERS (a) Pacific Maritime Association (herein called PMA), a California corporation, is an association of employers in the shipping and stevedoring industries on the Pacific Coast, organized for the purpose, inter alia, of negotiating labor contracts with the collective-bargaining representatives of its employer-members. At all times material herein, PMA has represented its employer-members in collective-bargain- ing negotiations with labor organizations and has signed collective-bargaining con- tracts on behalf of its employer-members. The employer-members of PMA annually perform services in the transportation of goods and passengers between the State of Washington and other States of the United States and foreign countries, valued at more than $50,000. (b) Seattle Stevedore Company (herein called Seattle Stevedore) a corporation, and a member of PMA, is engaged at Seattle, Washington in the stevedoring business and annually performs services valued at more than $50,000 in handling, loading, and discharging cargo for steamship companies and other concerns, members of PMA, engaged in interstate and foreign commerce. (c) American Mail Line, Ltd. (herein called American Mail), a Delaware cor- poration, is a shipping company engaged in business as such at Seattle and other Pacific Coast ports, and is a member of PMA. American Mail annually receives revenue in excess of $50,000 for the transportation of passengers and freight be- tween various States of the United States and between the United States and foreign countries. (d) Mobile Crane Company (herein called Mobile Crane), a Washington cor- poration, is engaged at Seattle, Washington, in the business of leasing mobile crane equipment to shipping firms and others, and in furnishing its own employees to operate the cranes leased by it. In the course of its said business, Mobile Crane annually receives revenue in excess of $50,000 for equipment rentals and services performed for shipping firms and other members of PMA and for other enterprises, each of which annually produces and ships goods valued in excess of $50,000 or furnishes services valued in excess of $50,000 outside the State wherein said enter- prise is located. (e) The Port of Seattle (herein called Port), is a municipal corporation organized under the laws of the State of Washington, and owns and operates port and dock facilities at Seattle, Washington, including cranes and related equipment used in loading and discharging cargo on and from vessels. At all times material herein, Port has engaged in the practice of leasing its cranes to stevedoring and shipping com- panies for use in the loading and discharging of cargo at the Seattle waterfront, and has furnished its own employees to operate such cranes. It is found that at all times material herein, PMA and each of its employer mem- bers, Seattle Stevedore, American Mail, and Mobile Crane have been Employers engaged in commerce within the meaning of the Act, and that the Board's formula for asserting jurisdiction is satisfied by the commerce facts found above. II THE LABOR ORGANIZATIONS INVOLVED Respondent ILWU and Respondent Local 19, and Local 302, International Union of Operating Engineers, AFL-CIO, herein called Engineers, are, respectively, labor organizations within the meaning of the Act. III. THE UNFAIR LABOR PRACTICES A. Facts and Issues This case is probably in the vanguard of many of like nature which will come to the Board for a determination of the impingement of the Act on various activities accompanying the efforts of industry and labor to find a workable solution to the problems of automation. It involves three separate work stoppages, of brief duration, engaged in by mem- bers of the Respondents employed by members of PMA. The General Counsel al- leges that these work stoppages were unlawful because induced or encouraged by the Respondents and because they were secondary in character with an object of causing their employers, strangers to the dispute, to cease doing business with other 122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employers or persons with whom the primary dispute existed, all in violation of Section 8(b) (4) (i) and (ii) (B) of the Landrum-Griffin amended Act. The Respondents and PMA assert the position that assuming, arguendo, the work stoppages to have been encouraged or induced by the Respondents, they nevertheless constituted primary activity, occurring wholly on premises of the primary employer or employers, and directed solely against them, in a concerted effort to require them to observe the terms of a valid collective-bargaining agreement. The dispute centered around the lease and use by PMA members of certain cranes and mechanical loading devices manned by persons not referred for employment through the Respondents' hiring hall. Substantially as stated in the General Counsel's brief, loading and discharging of cargo to and from ships and barges on the Seattle waterfront is usually performed by shipping and stevedoring companies, members of PMA. Since approximately 1934, employees of these companies have been longshoremen represented by the Respondents. This representation is fortified and confirmed by a Board certification (Shipowners' Association of the Pacific Coast et al., 7 NLRB 1002, 1041). The basic contract covering these employees now, and for several years past, is the Pacific Coast Longshore Agreement between PMA, representing its members, and Respondents, representing PMA member employees. The contract establishes an exclusive hiring hall operated jointly by Respondents and PMA and has no union- shop provisions as such. It defines longshore work as including all "handling of cargo in its transfer from vessel to first place of rest and vice versa"; provides that when PMA employers subcontract longshore work "provisions shall be made for the observance of this agreement"; and that "Existing practices as of September 1948 arrived at by mutual consent [emphasis supplied] under which other workers are affiliated with ILWU perform any of this work shall not be changed," and " existing practices under which other workers perform any of the work described in this paragraph shall not be changed." The General Counsel in his brief concedes the validity of these provisions. There have been various modifications of the agreement. A modification here material is the 1959 "Memorandum of Understanding" which contains this provision: NEW EQUIPMENT It is recognized that the employer has the right to select competent men for all operations. When new types of equipment are introduced in connection with cargo handling governed by the contractual definitions of work, such new equipment shall be operated by employees under the ILWU contracts with the understanding that competent men shall be made available by the ILWU with adequate experience or training. This proposal shall not change the status quo as to assignment of other than ILWU workers on existing equipment. The loading and unloading of cargo by traditional means, such as handtrucks and ships' gear, performed by longshoremen, poses no problem here. It was with reference to loading and unloading through the use of large overhead cranes that the present situation developed. Because of the complexities of operation and the expense involved, PMA members in Seattle have not owned such cranes but have rented or leased them from sources outside PMA. Among the lessors of such equipment have been the Port of Seattle and several private concerns, including Mobile Crane. Prior to the summer of 1960, the lessors of such equipment, in- cluding both the Port of Seattle and private companies, have leased it on a manned basis, furnishing both the crane and the personnel to operate the crane. Such operating personnel have been in the employ of the lessor, and where such lessors are private companies, engaged primarily in construction rather than shipping, the operating personnel is customarily represented by Engineers under standard AGC contracts. Respondents' certification does not, of course, cover employees of non- PMA members. The Port of Seattle, a municipal corporation, as a matter of public policy, does not enter into collective-bargaining contracts. In its ownership and operation of terminal and dock facilities, it on occasion employs longshoremen and when doing so consistently follows the provisions of the PMA-ILWU contract with respect to wages, hours, and other conditions of employment, and obtains longshoremen through the Respondents' hiring hall. It also owns, operates, and leases cranes for loading and unloading cargo; has secured operators for such equipment through the Engi- neers, and has adopted provisions of Engineers-AGC contracts to fix terms and conditions of employment of such operations. For some time prior to 1960, the Port rented or leased a crane, known as the Washington crane, on a manned basis to PMA members. About a year ago, in INTERNATIONAL LONGSHOREMEN'S, ETC. 123 anticipation of an accelerated shipping program, the Port leased dock space from the Navy Department and with it two cranes of the Washington type which had been employed in shipbuilding operations during the war and thereafter "mothballed." These additional cranes were scheduled to go into operation about August 1, 1960. The Port also purchased or had built a new gantry crane at a cost of approximately $250,000. The gantry crane was scheduled to go into operation about Septem- ber 1, 1960. Prompted no doubt by the greatly increased scheduling of cranes to be employed in the loading and unloading of cargo, the Respondents early in 1960, during dis- cussions with PMA on revision of the Port's working rules, raised the question of jurisdiction over the operation of the cranes. The matter was discussed at meetings of Local 19, and in June or July Matthew Duggan, Local 19 business agent, stated in a conversation with Port officials, described by the General Counsel as "casual," that the Respondents were going to take over crane operations. About this time, Local 19 teletyped the Respondents' coast committee in San Francisco that En- gineers, through their operation of the cranes, and the rapidly expanding use of cranes, constituted a threat to take over most of the handling of cargo between ship and dock, and inquired where Local 19 could draw the line and how it could enforce its right to the work. The reply, making reference to the PMA-ILWU contract, stated in substance: We advise that you tell Seattle Port Dock authorities that they accept all of the contract and its provisions, including longshoremen having jurisdiction over driving cranes, or they get the benefits of none of the contract and the Union is free to take any action against the Port Dock and against any companies, or ships using the Port Dock. And that we will take such action. Same notice should go to the Operating Engineers and make it clear both to the Port and the Operating Engineers when we talk of action we mean coastwise action. We will notify PMA this end accordingly. Copies of this wire were given the Port, PMA, and Operating Engineers in Seattle. The first incident giving rise to the complaint herein occurred on July 28 when Seattle Stevedore, a PMA member, was scheduled to unload a barge, the Mount Hood, for Puget Sound-Alaska Van Lines, and prepared to unload, in part. With the use of one of the Navy cranes it had rented from the Port. As had been custom- ary in the past it rented the crane already manned, and it was the first attempted use of one of the Port's Navy cranes. The longshoremen, who had been obtained through the Respondents' hiring hall for the unloading, reported for work but refused to "turn in" unless one of their own members was assigned to operate the crane. Their spokesman, not an official of Local 19 or Respondent ILWU, stated their position to Seattle Stevedore's foreman. The longshoremen were released and ultimately the Mount Hood was unloaded by other means. As a result of the Mount Hood incident, 3 days later a meeting was held in offices of the Port attended by representatives of the Port, the Respondents, and PMA William Gettings, regional director of the northwest district of ILWU, said that the Respondents had no quarrel with the Port, but did expect PMA members to live up to the terms of the PMA-ILWU contract by requiring the operation of cranes by persons referred through the Respondent's hiring hall. H. M. Burke, the Port's general manager, testified that "Mr. Gettings made it completely clear that he had no particular quarrel with the Port of Seattle. He further indicated that it was the position of the I.L.W.U. that henceforth they were simply going to require the employer members of the P.M.A., to abide by the terms and conditions of the contract." The July 28 incident was discussed and, as the General Counsel states, Respondents neither disclaimed that action nor gave assurances that it would not be repeated in the future. As a result of this meeting, the Port in effect accepted the position voiced at that meeting by Respondents, and by a "To Whom It May Concern" letter dated August 23 set forth its intention, in the future, to rent its cranes unmanned to PMA members, with a reservation for the continued use of two of its experienced employees. PMA advised of the July 28 work stoppage, advised its member, Seattle Stevedore, that Respondents were correct in their interpretation of the contract and members should not lease cranes unless they were to be operated by longshoremen affiliated with the Respondents. A second incident involving the Mount Hood occurred after the Port had issued its August 23 letter but before its "adoption" by Respondents' membership on August 29. Once more a crane belonging to the Port, in this instance the new Colby crane, became the focus of dispute because it was being operated by one of the Port's two experienced Engineer employees. It was the focus of dispute because Respond- 124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ents had not yet ratified the Port's reservation on the continued use of two of its experienced employees. Once again, Seattle Stevedore was the PMA member in- volved. Matthew Duggan, Local 19's business agent, summoned to the scene, told Seattle Stevedore's longshore foreman that the longshoremen would not work with a member of Engineers operating the crane, whereupon the "gang" was discharged and the barge unloaded by other means. Following this second incident involving the Mount Hood, the Port leased its cranes unmanned to PMA members who hired operators through the Respondents' hiring hall, with the exception of the expensive Colby crane. It appears that a compro- mise was reached on the operation of this crane, with the Port continuing to rent it manned with its own two experienced engineers. The third and last incident relied on by the General Counsel occurred on Septem- ber 6, when American Mail leased from Mobile Crane a privately owned crane to assist in unloading the ship Ocean Mail. American Mail engaged a longshore gang to work with the crane which was manned by a Mobile Crane employee. The long- shoremen had worked about 15 minutes when Business Agent Duggan came on the scene and spoke to the longshoremen. There is no testimony on what he said. As he left, according to John M. Jorgensen, American Mail's superintendent, he said, "I am calling for replacements for the gang." He gave no reason why he was calling for replacements. Jorgensen directed the longshoremen, who had stopped work, to "turn to." They replied, "We are waiting for our replacements." Jorgensen said, "Your contract calls for you to work until your replacements show." When they refused to "turn to" as directed, Jorgensen fired them. A replacement gang actually reported within the hour but, according to Jorgensen, since there were then no replacements to be made, they left. Still later in the morning, Jorgensen called the Respondents' hiring hall and requested another replacement gang but none "showed." Jorgensen admitted that it was hard to get a replacement gang after 1 p in , and testi- fied, "Well, I supposed I wouldn't get one but I just took a stab at it to try." Mobile and its predecessor had been engaged in leasing out cranes on the water- front for several years. Presumably it was their custom and practice to lease them manned by their own employees. Following the September 6 incident and up to November 1, it has supplied no cranes on the waterfront though previously it had had frequent waterfront jobs. Paul St. Sure, PMA's president, testified that in his opinion the PMA-ILWU con- tract would prevent a PMA member from leasing a manned crane from a non-PMA member unless the operator of the crane was a member of ILWU. After the incident of September 6, however, PMA filed a grievance with the local Port labor relations committee, contending that the work stoppage constituted a violation of the PMA- ILWU agreement. ILWU disagreed and the matter was referred to arbitration B. Concluding findings I have previously indicated that I regard this case of some considerable importance, having to do, as it does, with the threat of disruption of long-established bargaining relations through the introduction of automation, with attendant problems of craft versus industrial unit contentions and conflicting claims of work jurisdiction The jurisdictional dispute is of course not germane to this proceeding but presumably will be dealt with in a 10(k) proceeding now pending before the Board. More directly involved herein is the right of employees, in this case longshoremen, who jobs have historically and traditionally required the performance of work now to be taken over, in part at least, by the machines of automation, effectively to enforce provisions of their bargaining agreement entitling them to man, wherever qualified, those machines. The case has the further novelty of the General Counsel speeding to the aid of innocent bystanders (all in the public interest of course) caught in the mesh of a boycott arising from a dispute to which they are strangers, and the alleged bystanders and strangers vigorously and indignantly disclaiming their alleged innocence and affirming that they are in fact the primary and proper targets of the alleged unlawful work stoppages. This alone distinguishes the case from any prior decision of the Board or courts of which I have knowledge. I can do no better at this point than to quote from PMA's brief, PMA being the alleged "secondary" employer- It appears to be the contention of the General Counsel that the members of Pacific Maritime Association are the secondary employers, who are innocently brought into a dispute between another employer and some labor union. We submit that this is entirely erroneous. The disputes that gave rise to the strike activity were individual disputes as to the precise meaning of the collective bar- gaining agreement between the ILWU and the PMA. . . . When the longshore- INTERNATIONAL LONGSHOREMEN'S, ETC. 125 men claim that they are being directed to work contrary to the specific provisions of the contract, they assert that they need not work under such directions and that their refusal in accordance with such directions is not a refusal to work in the course of their employment . The contention is simply that the men re- fuse to go beyond the course of their employment and insist that the employer work them in accordance with the contract so that they do their work in the course of their employment. We submit that the longshoremen and their employers have through a long process of collective bargaining over a number of years, reached a sound solu- tion to a fundamental and difficult problem. Our solution is, at the moment, perhaps a "pilot" solution and it may very well be the most effective solution to problems that face American industry in the present day world . The workers have been able to negotiate a quid pro quo for an agreement permitting changes in operations to occur and those who furnish the capital will also have their quid pro quo . We submit that we are entitled to negotiate through collective bargaining the disposition of this grave problem. . . . We come now to the legal issue : Were the work stoppages , which I find occurrred substantially as the General Counsel says they did, induced or encouraged by Re- spondent ILWU or Local 19 or both , and engaged in with the object of requiring PMA employers to observe the applicable terms of a valid bargaining agreement, or with an object of causing certain of the said PMA employers to cease doing business with certain non-PMA employers.2 On the issue of encouragement and or inducement , I find with the General Counsel. The decisions on this point show that very little is needed on the part of union agents and representatives to ground a finding that a work stoppage of members was union induced. The lifting of an eyebrow may be found to suffice. Here there was a little more than that. The Respondent ILWU's July teletype to Local 19 provided the frame of reference for the work stoppages which followed , for the first work stop- page where no representatives of Respondents were present , as well as the following two where Local 19's business agent was present. In view of the text of the teletype and statements of Duggan at the scene of the second work stoppage as well as his presence on the occasion of the third , and in view of the Respondents' failure to dis- avow any of the work stoppages, I have no doubt that the Board and the courts would find inducement and encouragement within the meaning of the Act. Coming to the crucial matter of object, we cannot , without prejudice, ignore or lightly pass over Respondents' contractual claim to the work in question Historical perspective throws some light on this claim and the steps by which it came to be established , and I quote from Respondents' brief which accurately and graphically portrays the facts: In 1959 the employers reaffirmed their earlier assignment of all longshore work-i.e all handling of cargo-to the longshoremen . In anticipation of in- creased automation in cargo handling and in order to win the longshoremen's assent to the introduction of labor-saving machinery and time-saving practices, the employers agreed that when machinery was introduced to take the place of men, longshoremen would operate such machinery-this is the so-called new equipment clause . There is nothing startling in this concept . It is natural that when an employer supplies tools , either by purchase or rental, to help do the work covered by a contract , the employees in the contract unit will be the ones to use the tools. For example, originally in this industry men carried cargo on and off ships on their backs . Later hand trucks were introduced to speed up the operation- this, however, did not change its nature : it was still cargo handling . So later, tractors were introduced , or Ross carriers, or other types of machinery, but 21 assume there is no 8(b) (4) (1) (D) issue here because the complaint contains no allegation of a violation of this subsection of the Act, though its paragraph VII might be construed as laying the factual foundation for such an allegation. Considering that it might be said that the matter was fully litigated and findings made on that issue (though that would be prejudicial error, in my opinion), I note that whatever work assignments Respondents sought through their work stoppages were work assignments admittedly agreed to by PMA employers This would hardly be construed as "forcing or requiring" employers to make work assignments ; at most it was forcing or requiring them to live up to their contractual commitments, commitments made through the processes of bona fide bargaining and therefore voluntarily arrived at. Food Employers' Council, Inc, 127 NLRB 1522, is, on the facts in this case, inapposite. 126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the operation was still the loading or discharging of cargo; it was still longshore work, it was still the work which the employers had assigned to the longshore- men, and it was still performed by longshoremen. So too with the hoisting of cargo. At first, ships' winches were used so the men would not physically have to carry the cargo on and off the vessels These winches were (and are) operated by longshoremen because they were simply tools provided to do the job or cargo handling-the job which the employers had assigned to the longshoremen. Later, as loads grew heavier , as ships' holds grew bigger, and as vans and unitized loads became more common in the industry, hoisting equipment larger than ship's gear was required. So the crane became a bigger tool to help in the handling of cargo. There is no mystery about a crane, it is just a bigger piece of hoisting equipment. It is just another tool which is used in handling cargo. . This work of loading and discharging cargo, with whatever tools were used, was long ago assigned to the longshoremen by their employers . This assignment was made long, long before the events of the past several months in Seattle, and the occurrence of those events had nothing whatsoever to do with this assignment by the employers. The fact that the assignment was qualified by the "status quo" language, does not change the underlying fact because the employers were never in doubt (and are not now in doubt) that they assigned all cargo handling to longshoremen . The qualifying language was used to protect those non-longshoremen who had, by sufferance and despite the assignment , worked during the war. The contracting parties are in agreement on these basic facts and have set up a grievance and arbitration machinery to resolve , in a peaceable manner, any disputes they may have over the application of the status quo language to specific situations. I think it is not incumbent on me to construe in detail the bargaining agreement in question. I do find that under it the Respondents reasonably believed that its work assignment clauses entitled the employees whom it represented (not necessarily its members ) to such loading and unloading of ships and vessels as were performed by cranes or other mechanical equipment, provided they possessed the necessary qualifications. If persons qualified to perform this work were not afforded the employer through the Respondent's hiring hall, it appears that the employer was then released to obtain such qualified persons elsewhere. The Respondents, in fact, ap- pear to have raised no objections to the employment of such persons on occasions when we may presume no persons of equal qualifications were made available to the employer through the Respondents' hiring hall. This does not, in my opinion, amount to a waiver of Respondents' contractual rights in any part. That the Respondents may have waited until increased automation raised a serious threat to the continuation of longshoremen in their customary duties of loading and unloading vessels, to insist on their contractual rights to such work assignments is also, in my opinion, im- material . The continued and continuing use of Engineers on the Port's Colby crane does not in any way qualify the Respondents' contractual right , to protest this use prior to its sanction by the acceptance of Respondents' membership of the Port's proposal to retain Engineers for the operation of this crane , or mark a sur- render of its position on the contract when thereafter this crane was operated by the Port's engineers, without protest . All this means is that when exceptions were made in the assignment of longshoremen to longshore work performed by cranes or other mechanical devices, they were made not unilaterally but by agreement . The basic agreement regarding longshore work done by workers not affiliated with the ILWU shows that this occurred only by mutual consent. The Supreme Court, overruling this Board, has held that a duly constituted bar- gaining representative of employees may, while bargaining in good faith, strike to obtain its bargaining demands N.L.R.B. v. Insurance Agents, International Union, 361 U.S. 477. It would seem to follow that once such a representative has attained its bargaining objectives in a valid agreement, it would have at least an equal right to strike to require that its provisions be complied with, provided of course such strike action did not constitute a violation of the agreement itself. To permit the exertion of economic force to obtain a contract and deny it to obtain enforcement of the contract, would be legalistic nonsense The Board has held that an employer may,not unilaterally-i.e., without consultation and bargaining with the duly con- stituted representative of his employees-subcontract for work which under its bar- gaining agreement would be performed by employees in the bargaining unit. Sham- rock Dairy, Inc., et al., 424 NLRB 494, 496, 497, 498. If the employer has no lawful right thus unilaterally to subcontract for work properly assigned to employees in the represented unit, and does so, certainly the representative of such employees has a right to strike to require him to restore the status quo that the matter may be sub- INTERNATIONAL LONGSHOREMEN'S, ETC. 127 mitted to the orderly process of collective bargaining . In my opinion, these two decisions are dispositive of the issues herein.3 I am convinced that the work stoppages complained of were engaged in for the purpose of requiring PMA members to observe the work assignment provisions of the contract. Those work assignment provisions justified Respondents' belief that the jobs of loading and unloading vessels, whether by old methods or the newer auto- mation, belonged to qualified employees it represented and who had been referred through its hiring hall, pursuant to contract. Any unilateral action by individual PMA employers to supplant such qualified persons in the performance of such work by mechanical equipment manned by persons not represented by the Respondents, was action taken in violation of their duty to at least bargain in the matter through their representative, PMA, and action which the Respondents might lawfully protest through strike ,action. PMA employers, the General Counsel's "innocent bystanders," agree with Respondents in the latter's construction of the work assignment clauses and confess their duty to comply therewith. A valid contract-and this one admittedly is valid-is the product of a meeting of minds, or so I have been taught, and I know of no higher authority on a meeting of minds than the minds that met To show that the primary dispute was not with PMA but with other employers, and therefore that work stoppages directed against PMA were secondary, the Gen- eral Counsel relies heavily on the Respondents' dealings with the Port of Seattle: the telegram of Respondents' coast committee threatening, in effect, that if the Port did not observe the jurisdictional claims of the Respondents under their PMA contract, the Port would not receive any of the benefits of the said contract, and the Re- spondents would feel free "to take any action against the Port Dock and against any companies, or ships using the Port Dock," and would take such action; Duggan's "casual" comment to Port officials that Respondents were going to "take over" crane operations; and the Respondents' participation, following the July 28 incident, in a meeting with PMA and Port officials in the latter's office. There are at least two things of note in Respondents' dealing with the Port in the matter of the dispute which gave rise to the work stoppages. The Port, being a municipal corporation, did not, as a matter of policy, make bargaining contracts. It did the next thing to it , however. In its employment of longshoremen it observed all of the terms of Respondents ' contract with PMA and, it may be assumed , enjoyed all the benefits to be derived from such a contract. It would be very difficult under such circumstances to regard it as just any other employer; it was a very special "other" employer in its relation to the Respondents , and if the Respondents were contemplating any change in their contractual relationship with PMA, or were about to embark on the enforcement by economic sanctions of any part of that contract, it would be both natural and reasonable that they would keep the Port informed. Second, as to whether its dispute with the Port was primary in character we have the testimony of the Port's general manager, Burke, that at the meeting in late July or early August, Respondents' Gettings "made it completely clear that he had no particular quarrel with the Port of Seattle . He further indicated that it was the position of the I.L.W.U. that henceforth they were simply going to require the . employer members of the P.M.A., to abide by the terms and conditions of the contract." [Emphasis supplied.] I think the most that can be said of the Port's position in the dispute is that if it was a primary disputant then so was PMA, only more so. Aside from the Port, there is no evidence that the Respondents made any demands whatever on employers other than PMA , and such work stoppages as occurred, occurred on the premises of the latter. It may well be, and doubtless was, an effect of the work stoppages that PMA em- ployers would cease leasing cranes or other mechanical equipment manned with per- sons not represented by the Respondents , with exceptions on which there was agreement. I think as a check on excessive zeal in enforcing the Act we might do well to pay more attention to the common meaning of words. "Primary" in my dictionary means "first in order of time or development or in intention ." Without the secondary there could be no primary, only sole. The word as used in the Act would therefore have no meaning if stripped of its primary characteristic because it had secondary effects. It is for this reason that an action does not lose its primary character because of its incidental or secondary effects, and that is firmly established in the decisions , but we should ,be careful lest we confuse effect with object, for if we do we destroy the very meaning of "primary" as used in the Act, and subvert the in- tention of Congress in using it . To guard against such confusion may be one reason why Congress, in the Griffin-Landrum amendments of 1959, retained the proviso that 81 have on an earlier recent occasion issued a report on a case involving similar prob- lems. Edna Coal Company, Cases Nos 27-CC-65-1, 27-CC-65-2, IR-(,SF)-793 [132 NLRB 6853 128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Section 8 (b)(4)(B) is not violated if the conduct complained of is primary and not otherwise unlawful. The statements and conduct of Respondents' representatives relied on by the General Counsel to show an unlawful object, in my opinion are entirely compatible with the Respondents ' avowed lawful objectives , and viewed in their proper context-the entire situation leading up to and surrounding the work stoppages-do not establish, by a predominance of evidential weight, an unlawful object. If the work stoppages were for a lawful object, it follows that the threats to institute such stoppages were also lawful . I shall recommend dismissal of the complaint.4 CONCLUSIONS OF LAW 1. PMA, its employer members, Seattle Stevedore , American Mail, and Mobile Crane, are each of them employers within the meaning of Section 2 (2) of the Act, engaged in commerce within the meaning of Section 2 (6) and (7) of the Act. 2. Respondent ILWU, Respondent Local 19 , and Engineers are each of them labor organizations within the meaning of Section 2(5) of the Act. 3. The Respondents have not engaged in any of the unfair labor practices alleged in the complaint. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, I recom- mend that the Board issue an order dismissing the complaint in its entirety. 4The General Counsel 's appropriate citation of Food Employer's Council, Inc, supra, has been studied and the parallel between the factual situations is impressive I dis- tinguish the present case because , somewhat due to the position taken by P1IA, the alleged secondary employers, I regard the evidence of primary activities much stronger here Also, I think before finding a violation here the Board may want to consider the Implications of the retention in the Landrum-Griffin amended Act of the proviso that Section 8(b) (4) not be construed to limit primary strikes "not otherwise lawful," and the legislative history accompanying the retention of the proviso 1 Legislative History of the Labor-Management Reporting and Disclosure Act of 1959, p 942 The Board's de- cision having been issued after the Landrum-Griffin enactment, though based on the Act prior to amendment , cannot be said to have been considered by Congress as incorporated in the body of "Present rules of law permitting picketing at the site of a primary labor dispute " The product boycott cases relied on by the General Counsel I consider in- apposite, for they involved the refusal of employees to work on the nonunion products of other than their own employers, products which they would not themselves manu- facture in the course of their employment The threat of displacement in the normal course of their employment was remote and posed no violation of their contractual rights. Washington-Oregon Shingle Weavers' District Council etc. (Sound Shingle Co ), 101 NLRB 1159 , enfd 211 F . 2d 149 ( CA. 9) ; Local 1976, United Brotherhood of Carpenters etc. (Sand Door & Plywood Co ) v N.L R B , 357 U. S 93, enfg 113 NLRB 1210 Lozano Enterprises and Jose Nabor Villasenor. Case No. 21-CA- 4513. May 15, 1962 DECISION AND ORDER On March 5, 1962, Trial Examiner David F. Doyle issued his In- termediate Report in the above-entitled proceeding finding that the Respondent had engaged in and is engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the Intermediate Report attached hereto. Thereafter, the Respondent filed exceptions to the Intermediate Report and a brief in support thereof. 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, Fanning, and Brown]. 137 NLRB No. 15.