Local 1355, Int'l Longshoremen's Association

LOCAL 1355, INT'L LONGSHOREMEN'S ASSOCIATION 723 Company, was not with delivery at the dock per se or with irregular dock pickups by small retail concerns, b_ t by regular daily dock pickups by people who were not on any Sealtest employee wholesale route. The Union was concerned that if this regudar_daily-practice were permitted to continue, this fact, coupled with the cheaper price at the dock, would attract and invite more and more dock purchases and that ultimately Sealtest would or might discontinue wholesale deliveries just as in 1959 it had discontinued retail deliveries. In that event Sealtest's employees who were in the bargaining unit, the wholesale deliverers, would be out of jobs, or, at the least, might be given an opportunity to purchase the wholesale routes and compete with the Company's sales at the dock. Carney's testimony indicated the Union believed that ir0959 the Company forced its retail deliverers to buy their routes or lose their jobs. (Regardless of the truth of that belief clearly the Union took the action it did in the hope of avoiding a repetition of that episode with respect to the wholesale routemen. The Union had a legitimate interest in acting to preserve and maintain Sealtest's historic wholesale delivery system under which deliveries to Sealtest's customers were made by Sealtest employees who were a part of the bargaining unit .2 Preserving this delivery system under its contract which was based in part upon this system was the Union's only dispute and its primary concern. (Me dispute with Sealtest and the Union's statements and actions with respect to Sealtest and Ogden and Rom's were primary statements and actions, not secondary, and therefore fell into the proviso to Section 8(b)(4)(B) of the amended Act, which permitted primary activity. On the entire record it is so found.) Under these circumstances it is of no legal consequence that an incidental effect, as contrasted with an object, of the Union's statements and actions, was to force Sealtest to modify its method of doing business with Ogden and Rom's, and to induce and encourage Sealtest employees to cease serving them. Cf. International Union of Operating Engineers, Local 545 (Syracuse Supply Company), 139 NLRB 778. Upon the above considerations and upon the entire record considered as a whole I recommend that the complaint be dismissed. 2 Cf. Retail Clerks Union Local 770 v. N.L.R. B., 296 F. 2d 368, 373 (C.A.D.C.). Local 1355, International Longshoremen's Association and Ocean Shipping Service, Ltd. International Longshoremen's Association and Ocean Shipping Service, Ltd. Cases Nos. 5-CC-254 and 5-CC-9255. April 9, 1961 DECISION AND ORDER Unfair labor practice charges were filed on behalf of Ocean Ship- ping Service, Ltd., also referred to as Ocean, on January 27, 1964,1 against Respondents Local 1355, International Longshoremen's As- sociation,.and the International Longshoremen's Association, referred to as ILA. Thereafter, on February 19, the General Counsel of the National Labor Relations Board, by the Regional Director for the Fifth Region, issued a complaint and notice of hearing, alleging that the Respondents had engaged in and were engaging in unfair labor practices affecting commerce within the meaning of Section 8(b) (4) (ii) (B) and Section 2(6) and (7) of the Act. On March 20, all parties to this proceeding filed a stipulation of facts and a motion to transfer this proceeding directly to the Board ' Unless otherwise indicated all dates refer to 1964. 146 NLRB No. 100. 724 DECISIONS OF NATIONAL LABOR RELATIONS BOARD for issuance of a Decision and Order after the filing of briefs and without further hearing. The stipulation states in substance that the parties waived their rights to a hearing before a Trial Examiner and the issuance of Trial Examiner's Decision, and that the entire record in this case should consist of the charges, complaint, answer, various exhibits, and the transcript and exhibits received in evidence at a hearing before the United States District Court, District of Mary- land in the case of John A. Penello, Beg. Dir. v. International Long- shoremen's Association and Local 1355, etc., 227 F. Supp. 164. There- after, the General Counsel and Respondents filed briefs. On March 24, the Board approved the stipulation, and ordered transferral of the proceedings to the Board. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel [Chair- man McCulloch and Members Leedom and Fanning]. Upon the basis of the aforesaid stipulation and the entire record 2 in the case, and having considered the briefs of the parties, the Board makes the following : FINDNGS OF FACT 1. THE BUSINESS OF THE COMPANIES Ocean is a Bermuda corporation, engaged in the business of trans- porting cargo in foreign commerce, inter alia, between points in the United States and points in foreign countries. It owns two vessels, the 2JIuswell Hill and the Tulse Hill. The Tulse Hill is of British registry and is manned by foreign nationals. Maryland Ship Ceiling Company, Inc., herein called Maryland Ship, is engaged at Baltimore, Maryland, in the business of fitting ves- sels, which operate in interstate and foreign commerce, to receive cargo. Its revenues from providing such services to vessels of both foreign and American registry are about $200,000 annually. On these facts, we find that, at all times material herein, Maryland Ship was engaged in commerce within the meaning of Section 2(6) and (7) of the Act 3 2 Respondents' request for oral argument is hereby denied because the record and briefs adequately present the positions of the parties. 8 Respondents argue that the Board should dismiss this case for lack of iurisdictinn. They first contend that the Board is precluded from asserting jurisdiction in this case because the Tulse Htil is a foreign-flag vessel manned by an alien crew. As the instant proceeding involves. no issue bearing upon labor relations aboard the Tulse Hill, its registry and the composition of the vessel's crew are immaterial in determining the Board's power to entertain Ocean's unfair labor practice charges against Respondents. See Ineres Steamship Co., Ltd. v. International Maritime Workers Union, 372 U.S. 24, 27-28; Local Union 25, International Brotherhood of Teamsters V. New Fork, New Haven & Hartford Railroad Co., 350 U.S. 155; Great Lakes District, Seafarers' International Union, etc., et at. (Upper Lakes Shipping, Ltd ), 139 NLRB 216. We find no merit in Respondents' further contention that the complaint should be dis- missed because the General Counsel failed to prove commerce facts satisfying the Board's LOCAL 1355, INT'L LONGSHOREMEN'S ASSOCIATION 725 II. THE LABOR ORGANIZATIONS INVOLVED We find that Respondent Local 1355 and Respondent ILA are, and. at all times material herein have been, labor organizations within the meaning of Section 2 (5) of the Act. - M. THE UNFAIR LABOR PRACTICES On October 8, 1962, the ILA issued a press release outlining the steps it was taking'to eliminate all trade with Cuba. This press release provided, inter alia, that "The International Longshoremen's As- sociation will not load or unload U.S. Government, commercial or cargoes of any nature in ships of any owner whose vessels are used in trade with Cuba." In December 1963 the ILA issued to all International representa- tives and to the president of each ILA local a document called the "I.L.A. Fact Sheet," containing instructions that "If any of the ships listed below arrive at any ILA port, our membership is forbidden to handle them. Any ship on the list that enters an ILA port should be reported immediately to John Bowers, International Executive Vice President, at International Headquarters, in New York City." The fact sheet appended a list of vessels used in Cuban trade, which was based upon a list prepared by the Department of Commerce, Maritime Administration,4 and included the Tulse Hill. In bold type at the bottom of the blacklist appeared the further instruction : "Re- port any of these ships that enter your port . . . . By no means work them." At the time of the events herein, however, the Tulsse Hill was not on the Commerce Department's blacklist, as its eligibility for Government-financed cargo had been restored on December 20, 1963. Sometime in January it was determined that the Tulse Hill would sail to Baltimore to be fitted for a cargo of grain, to be loaded there, and then shipped to Liverpool, England. This "fitting out" was to be done by Maryland Ship, under its contract with Ocean Shipping en- tered into for the latter through its agent. On January 17 Respondent ILA, by telegram under signature of International Vice President Bowers, instructed and directed rep- resentatives and affiliated local unions in Baltimore, Maryland, not to jurisdictional standards. As the owners and operators of the foreign-flag vessels for which Maryland Ship performs services are engaged in operations of the magnitude neces- sary for assertion of jurisdiction over comparable nonexempt organizations , the value of Maryland Ship services to foreign -flag vessels may be treated as indirect outflow in accord- ance with established Board policy . G. C. McBride Company, 110 NLRB 1255; Siemon8 Mailing Service. 122 NLRB 81 , at 85, footnote 12. Accordingly , we are satisfied that Maryland Ship's annual gross volume at the Baltimore location meets our indirect outflow standard for nonretal enterprises. 'The Department of Commerce was responsible for circulation of this list to various governmental agencies in accordance with the policy established by National Security Action Memorandum No. 220 which provided that designated vessels weze ineligible to carry O.S. Government-finances' cargoes. 726 DECISIONS OF NATIONAL LABOR RELATIONS BOARD work the Tulse Hill because it had engaged in Cuban trade. On January 20, Maryland Ship was informed that the Tulse Hill would arrive in Baltimore the following day. Accordingly, Maryland Ship, as party to a hiring-hall agreement 5 with Local 1355, on January 20, ordered five gangs from Local 1355 to begin fitting the Tulse Hill on January 21. However, pursuant to instruction from an ILA vice president, Local 1355 refused to refer any employees represented by Respondents for that purpose. The instructions against working the Tulse Hill were then communicated to the membership by Local 1355's business agent. On each succeeding day, up to and including Janu- ary 24, Maryland Ship ordered five gangs for work on the Tulse Hill. Local 1355 posted each "order" but still refused to refer any employees for work on the Tulse Hill.' On January 25, the vessel moved from its berth to an anchorage in Baltimore Harbor to await further developments. Pursuant to a proceeding under Section 10(1) of the Act, the District Court for the District of Maryland on March 18 granted a temporary injunction against Respondents. On March 19 the district court granted a temporary stay of the injunction, which was ex- tended, on March 30, to April 13 by Chief Judge Sobeloff of the U.S. Court of Appeals, Fourth Circuit. The complaint alleges that Respondents violated Section 8(b) (4) (ii) (B) of the Act by threatening, coercing, and restraining Maryland Ship Ceiling Company, Inc., with an object of forcing or requiring it to cease doing business with Ocean. The Respondents contend that the complaint should be dismissed on grounds (1) that Section 8(b) (4) (ii) (B) does not apply absent -a labor dispute with a primary employer, and (2) that the General Counsel failed to establish by a preponderance of the evidence that the conduct complained of fell within the proscriptions of Section 8(b) (4) (ii) (B). Considering the evidentiary matters first, we are satisfied and find that the General Counsel has established that Respondent Local 1355, on instructions from Respondent ILA, informed its members not to work the Tulse Hill, and refused, contrary to past practice under the governing hiring-hall arrangement, to furnish to Maryland Ship work gangs for this purpose. Such action constituted threats, re- 6 The agreement provides that employees shall be hired through the Union 's ball in ac- cordance with specified procedures Maryland Ship, like the other ship ceiling companies covered by the agreement, places orders with Local 1355 the day before the work is to be done. Maryland Ship has its preferred or regular gangs. The contract permits the com- panies to obtain workers from other sources when Local 1355 does not have sufficient men available. However, Maryland Ship has done so only three times in 10 years. (See footnote 8, infra.) The gangs referred by Local 1355 regularly include winchmen, an experienced leader (gang carrier ), and members who have special qualifications for, and experience in, ship ceiling work. 6 Local 1355 has continued throughout to supply men to Maryland Ship for work on other vessels. LOCAL 1355, INT'L LONGSHOREMEN'S ASSOCIATION 727 straints, and coercion within the meaning of Section 8 (b) (4) (ii) of the Act? The evidence also reveals that this conduct had an object falling within the plain terms of Section 8 (b) (4) (B), i.e., "forcing or requiring any person ... to cease doing business with any other person . . . ." The refusal to refer work gangs had the effect -of denying Maryland Ship its customary work force, and those employees on which it depended, to perform the services re- quired by its agreement with'Ocean's agent.8 Moreover, this action was an implementation of Respondent ILA's clearly defined policy calculated to eliminate trade with Cuba by withholding the labor of its members from ships that had engaged in such trade. Obviously this course of action could only prove effective if the blacklisted vessels were not worked. In these circumstances, whatever its ul- timate object, at least "an object" of Respondents' conduct was to force or require the cessation of business between Maryland Ship and Ocean.' And as Respondent Local 1355, in engaging in the above conduct, was merely implementing the instructions and pol- icies of Respondent ILA, as evidenced in the press release, fact sheet, and_ telegram, we find that both are responsible for the conduct. There is no merit in Respondents' contention that Section 8(b) (4) (B) may not be applied in the absence of a labor dispute with a primary employer. Neither the legislative history nor the Act itself suggests that the existence of such a dispute is a precondi- tion for regulation of conduct, not involving traditional primary activity," falling within the literal ban of that section and tending 7Local 756 International Brotherhood of Electrical Workers, etc ., et al. ( The Martin Company ), 131 NLRB 1010, 1011. Local 825 International Union of Operating Engineers, AFL-CIO (R. G. Maupai Co., Inc ), 135 NLRB 578 , 579, enfd. 315 F. 2d 695 (C.A 3). See also Local No. 5, United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, AFL-CIO (Arthur Venneri Co.) v. N.L R.B., 321 F. 2d 366 (C A.D C.). 8 We find no merit in Respondents ' argument that Maryland Ship could draw labor from other available sources to work the Pulse Hill. The evidence shows that Maryland Ship in the last 10 years has , with the exception of three occasions , relied exclusively on Local 1355 for its work force . Although, on rare occasions, it had used carpenters repre- sented by Local 101 of the United Brotherhood of Carpenters and Joiners of America, these workers merely supplemented incomplete gangs furnished by Local 1355. It also appears that when Maryland Ship attempted to order carpenters from Local 101 for work on the Tulse Hill, it was advised that Local 101 carpenters would only be supplied to vessels on which Local 1355 ship ceilers were engaged. In any event, we agree with Judge Thomsen 's general findings in the 10( 1) proceeding, John A. Penello , Beg Dir. V. International Longshoremen's Association and Local 1355, 227 F. Supp. 164 (D C. Md ), that it would not be feasible for Maryland Ship to seek labor from sources other than the pool maintained by Local 1355. 9 According to settled principle it is not necessary to find that the sole object of a union's conduct was to force or require a cessation of business . N L R B. v Denver Building and Construction Trades Council , et al., 341 U.S. 675 at 686 ; International Longshoremen's Association, etc. (The Board of Harbor Commissioners ), 137 NLRB 1178, 1184. 10 By virtue of a proviso to Section 8(b) (4) (B ) of the amended Act, Congress extended specific protection to the union's right to engage in "any primary strike or primary picketing." 728 DECISIONS OF NATIONAL LABOR RELATIONS -BOARD to burden and obstruct commerce. It being clear that the present controversy does not involve the right of a labor organization to engage in "traditional primary activity," 11 we reject Respondents' contention that a labor dispute with a primary employer must exist before Section 8(b) (4) (B) of the Act may be invoked 12 For the above reasons, we find that Respondent Local 1355 and Re- spondent ILA violated Section 8(b) (4) (ii) (B) of the Act by threat- ening, coercing, and restraining Maryland Ship with an object of forcing or requiring Maryland Ship to cease doing business with Ocean. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICE UPON COMMERCE The activities of the Respondents set forth above, occurring in con- nection with the operations of Maryland Ship Ceiling Company, Inc., a person engaged in commerce in the port of Baltimore, have a close, intimate, and substantial relation to trade, traffic, and commerce among and between the several States and foreign countries and tend to lead to industrial strife burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondents have engaged in unfair labor practices in violation of Section 8(b) (4) (ii) (B) of the Act, we shall order that Respondents cease and desist therefrom and take certain affirmative action designed to remedy the unfair labor practices and otherwise effectuate the policies of the Act. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, we make the following : CONCLUSIONS OF LAW 1. Maryland Ship Ceiling Company, Inc., is a person engaged in commerce and an industry affecting commerce within the meaning of the Act. 2. Ocean Shipping Service, Ltd., is ,a person within the meaning of the Act. u See United Marine Division, Local 333 et al. (New York Shipping Association), 107 NLRB 686, 710-711. ' Our view, that the existence of a labor dispute with a primary employer is immaterial, is supported by the language of the Ninth Circuit in N.L.R.B. v. Washington- Oregon Shingle Weavers' District Council at ai., 211 F. 2d 149, where, at page 152, the court stated : The Union's argument that there was no evidence if a dispute between it and the Canadian plants is without merit. If that were true it would not make the Union's conduct any more excusable ... . LOCAL 1355, INT'L LONGSHOREMEN'S ASSOCIATION 729 3. Respondent International Longshoremen's Association and Re- spondent Local 1355, International Longshoremen's Association are labor orgaizations within the meaning of the Act. 4. By threatening, coercing, and restraining Maryland Ship Ceil- ing Company, Inc., with an object of forcing or requiring it to cease doing business with Ocean Shipping Service, Ltd., Respondents have engaged in and are engaging in unfair labor practices affecting com- merce within the meaning of Section 8(b) (4) (ii) (B) and Section 2(6) and (7) of the Act. 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 orders that the Respondent International Long- shoremen's Association and Respondent Local 1355, International Longshoremen's Association, their officers, agents, representatives, suc- cessors, and assigns, shall : . 1. Cease and desist from threatening, restraining, or coercing-Mary= land Ship Ceiling Company, Inc., where an object thereof is to force or require Maryland Ship Ceiling Company, Inc., to cease doing busi- ness with Ocean Shipping Service, Ltd., under circumstances prohib- ited by Section 8(b) (4) (ii) (B) of the Act. 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Post at their business offices and meeting halls, in Baltimore, Maryland, copies of the attached notice marked "Appendix." 13 Copies of said notice, to be furnished by the Regional Director for the Fifth Region, shall, after being duly signed by authorized representatives of the Respondents, be posted by Respondents immediately upon receipt thereof, and be maintained by them for 60 consecutive days thereafter, in conspicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by Respondents to insure that said notices are not altered, defaced, or covered by any other material. (b) Sign and mail to the Regional Director for the Fifth Region sufficient copies of said notice, to be furnished by him, for posting by Maryland Ship Ceiling Company, Inc., if willing. (c) Notify the said Regional Director, in writing, within 10 days from the date of this Order, what steps Respondents have taken to comply herewith. "In the event that this Order is enforced by a decree of a United States Court of Appeals, this notice shall be amended by substituting for the words "A Decision and Order" the words "A Decree of the United States Court of Appeals, Enforcing an Order." 730 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX NOTICE TO ALL MEMBERS OF INTERNATIONAL LONGSHOREMEN'S Asso- CIATION AND LOCAL 1355, INTERNATIONAL LONGSHOREMEN'S ASSOCIA- TION, EMPLOYED IN THE PORT OF BALTIMORE, MARYLAND 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 threaten, restrain, or coerce Maryland Ship Ceiling Company, Inc., where an object thereof is to force or re- quire Maryland Ship Ceiling Company, Inc., to cease doing busi- ness with Ocean Shipping Service, Ltd., under circumstances pro- hibited by Section8(b) (4) (ii) (B) of the Act. INTERNATIONAL LONGSHOREMEN 'S ASSOCIATION, Labor Organization. Dated--------- ------- By------------------------------------- (Representative ) (Title) LOCAL 1355, INTERNATIONAL LONGSIIORE- MEN'S ASSOCIATION, Labor Organization. Dated---------------- By-------------------------------------- (Representative ) (Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. Employees may communicate directly with the Board's Regional Office, Sixth Floor, 707 North Calvert Street, Baltimore, Maryland, Telephone No. 752-8460, Extension 2100, if they have any question concerning this notice or compliance with its provisions. W. C. Ford, d/b/a General Tire and Tread Company and Chauf- feurs, Teamsters and Helpers, Local Union No. 175, affiliated with The International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Case No. 9-CA-9925. April 9, 1964 DECISION AND ORDER On January 31, 1964, Trial Examiner Thomas F. Maher issued his Decision in the above-entitled proceeding, finding that the Respond- ent had engaged in and was engaging in -certain unfair labor prac- tices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Exam- 146 NLRB No. 90.