Int'l Brotherhood of Electrical Workers, Etc.

INT'L BROTHERHOOD OF ELECTRICAL WORKERS, ETC. 363 WE WILL NOT, either expressly or by intimation , threaten employees that their jobs will be less secure with us as a result of their affiliating with or sup- porting the above or any other union than it would be if they refrained from doing so. WE WILL in all other respects honor the rights of our employees to self- organization , as guaranteed by Section 7 of the Act. WE WILL make Paul Harlan and Larry Bolton whole for the loss of pay sus- tained by them as a result of having been laid off on April 19, 1963 , with interest. All our employees are free to join or not to join , or to support or not io support, Local 512, Retail, Wholesale and Department Store Union, AFL-CIO, or any other labor organization, without fear of reprisal or other discrimination by reason of their choice either way. THE WM. H. BLOCK COMPANY, Employer. 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. Any employees having a question concerning the meaning of the above notice or concerning compliance with its requirements may inquire by mail , telephone, or in person at the Board's Regional Office, 614 ISTA Center, 150 West Market Street, Indianapolis, Indiana, Telephone No. Melrose 3-8921. International Brotherhood of Electrical Workers, AFL-CIO; International Association of Machinists, AFL-CIO; Sheet Metal Workers International Association, AFL-CIO; Inter- national Brotherhood of Boilermakers, Iron Shipbuilders, Blacksmiths, Forgers and Helpers, AFL-CIO; and their agents, System Division No. 87, The Order of Railroad Teleg- raphers and Brotherhood of Maintenance of Way Employees and B. B. McCormick and Sons, Inc. and Houdaille-Duval Company and Blount Brothers Corporation, Charging Parties. Cases Nos. 129-CC-284, 12-CC-286, and 12-CC-287. December 16, 1964 DECISION AND ORDER Upon charges filed on September 12 and 13, 1963, by B. B. Mc- Cormick and Sons, Inc., Houdaille-Duval Company, and Blount Brothers Corporation, herein collectively referred to as the Charging Parties, the General Counsel for the National Labor Relations Board, herein called the General Counsel, by the Regional Director for Region 12, issued a complaint dated April 28, 1964, and amended on May 11 and June 29, 1964, against International Brotherhood of Electrical Workers, AFL-CIO; International Association of Ma- chinists, AFL-CIO; Sheet Metal Workers International Association, AFL-CIO; International Brotherhood of Boilermakers, Iron Ship- builders, Blacksmiths, Forgers and Helpers, AFL-CIO; and their agents, System Division No. 87, The Order of Railroad Telegraphers and Brotherhood of Maintenance of Way Employees, herein collec- 150 NLRB No. 37. 364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tively called the Respondents, alleging that the Respondents had engaged in and were engaging in unfair labor practices affecting commerce within the meaning of Sections 8(b) (4) (i) and (ii) (B) and 2(6) and (7) of the National Labor Relations Act. Copies of the complaint and the charges were duly served upon the Respondents and the Charging Parties. The complaint alleged, in substance, that from on or about Sep- tember 11, 1963, Respondents engaged in or induced or encouraged individuals employed by the Charging Parties and other persons engaged in commerce or in an industry affecting commerce to engage in a strike, or a refusal in the course of their employment to use, manufacture, process, transport, or otherwise handle or work on goods, articles, materials, or commodities, or to perform services, and had threatened, coerced, and restrained the Charging Parties, Na- tional Aeronautics & Space Administration (herein called NASA), U.S. Army Corps of Engineers (herein called Corps of Engineers), U.S. Air Force, and other persons engaged in commerce or in an industry affecting commerce with an object of forcing or requiring NASA, the Corps of Engineers, the U.S. Air Force, the Charging Parties, and other persons engaged in commerce or in an industry affecting commerce, to cease doing business with Florida East Coast Railway Company (herein called FEC). Thereafter, on June 8, 1964, General Counsel, Respondents, and one of the Charging Parties, Blount Brothers Corporation, entered into a stipulation with an addendum dated July 17, 1964, setting forth an agreed statement of facts. The other two Charging Parties subsequently indicated their willingness to have the cases decided upon the basis of the stipulation. The stipulation provides that the parties waive their right to a hearing, to the issuance of a Trial Examiner's Decision, and to the filing of exceptions. The stipulation also provides that the entire record of the proceedings shall consist of the stipulation, the charge, the complaint, the amended complaint, affidavits of service of the charges and complaints, and Respondents' answer to the complaint as amended. It further provides that upon such stipulation and the record herein provided and on the receipt of briefs from the parties, the Board may make findings of fact and conclusions of law, and may issue its Decision and Order. The parties requested oral argument before the Board.' By an order issued June 15, 1964, the Board approved the afore- said stipulation, made it a part of the record herein, and transferred the case to the Board. 1 The request for oral argument is hereby denied as the stipulation and briefs of the parties fully present the issues and the positions of the parties. INT'L BROTHERHOOD OF ELECTRICAL WORKERS, ETC. 365 Upon the basis of the aforesaid stipulation, and the entire record in the case, including the briefs filed by the parties, the Board makes the following : FINDINGS OF FACT I. THE BUSINESS OF THE COMPANIES INVOLVED a. B. B. McCormick and Sons, Inc., is engaged at the Merritt Island Launch Area at Merritt Island, Florida (herein called MILA), in the building and construction of various facilities pur- suant to contracts with the Corps of Engineers. In the operation of its business at MILA, B. B. McCormick and Sons, Inc., annually receives goods and materials from outside the State of Florida valued at more than $50,000 for use at the MILA construction projects. b. Houdaille-Duval Company is engaged at MILA in the building and construction of various facilities pursuant to contracts with the Corps of Engineers. In the operation of its business at MILA, Houdaille-Duval Company annually receives goods and materials from outside the State of Florida valued at more than $50,000 for use at the MILA construction projects. c. Blount Brothers Corporation is engaged at MILA in the build- ing and construction of various facilities pursuant to contracts with the Corps of Engineers. In the operation of its business at MILA, Blount Brothers Corporation annually receives goods and materials from outside the State of Florida valued at more than $50,000 for use at the MILA construction projects. We find that B. B. McCormick and Sons, Inc., Houdaille-Duval Company, and Blount Brothers Corporation are, and at all times material herein have been, engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and that it will effectuate the policies of the Act to assert jurisdiction in this case. II. THE LABOR ORGANIZATIONS INVOLVED The complaint alleges that Respondents International Brotherhood of Electrical Workers, AFL-CIO (herein called IBEW) ; Interna- tional Association of Machinists, AFL-CIO (herein called IAM) ; Sheet Metal Workers International Association, AFL-CIO (herein called Sheet Metal Workers) ; and International Brotherhood of Boilermakers, Iron Shipbuilders, Blacksmiths, Forgers and Helpers, AFL-CIO (herein called Boilermakers), are each labor organizations within the meaning of Section 2(5) of the Act. The answer denies these allegations. This is one of the major contested issues of the case. 366 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The complaint also alleges that Respondents System Division No. 87, The Order of Railroad Telegraphers (herein called Telegra- phers), and Brotherhood of Maintenance of Way Employees (herein called Maintenance of Way Employees) have acted as agents of Respondents IBEW, IAM, Boilermakers, and Sheet Metal Workers within the meaning of Sections 2(13) and 8(b) of the Act. In their answer Respondents deny that Telegraphers and Maintenance of Way Employees are, or have acted as, agents of the other named Respondents. Thus the agency status of these two organizations is also a contested issue in this proceeding. III. THE UNFAIR LABOR PRACTICES A. The picketing incidents Eleven nonoperating unions 2 represent the nonoperating employees of the FEC. In connection with the 1961 contract reopening, these 11 unions, which included all the Respondents, formed a single orga- nization, herein called the Cooperating Organizations, for the purpose of presenting a united front in their collective-bargaining effort with the FEC and other railroads. Under the sponsorship of the Coop- erating Organizations members served identical reopening demands upon these railroads, including the FEC. By June 5, 1962, the Coop- erating Organizations had agreed on terms of a new national con- tract with all class I railroads other than the FEC. The FEC, which had not participated in the national negotiations, refused to be bound by the terms of this agreement. Separate negotiations were fruitless. On January 23, 1963, the Cooperating Organizations called a strike against the FEC which resulted in the placement of pickets along the FEC main line. The picketing was extended to the Cape Kennedy- MILA area on September 11 to 12,1963. The present dispute involves only the picketing of the Cape Kennedy-MILA area. The Cape Kennedy-MILA area is really two peninsulas running south and separated from the mainland by the Indian River. MILA and Cape Kennedy are separated by the Banana River which is shaped like a bay. Florida Route 402 runs from Titusville on the mainland to the Atlantic and, except where it crosses the Indian 2 These unions are: Brotherhood of Maintenance of Way Employees ; Brotherhood of Railway and Steamship Clerks, Freight Handlers, Express and Station Employees ; Broth- erhood of Railroad Signalmen ; The Order of Railroad Telegraphers ; Hotel and Restaurant Employees ' and Bartenders' International Union ; International Association of Machinists ; International Brotherhood of Boilermakers, Iron Shipbuilders, Blacksmiths , Forgers and Helpers ; Sheet Metal Workers International Association ; Brotherhood Railway Carmen of America ; International Brotherhood of Electrical Workers ; and International Brother- hood of Firemen , Oilers, Helpers, Roundhouse and Railway Shop Laborers. INT'L BROTHERHOOD OF ELECTRICAL WORKERS, ETC . 367 River, runs due east and west. The main spur of the FEC runs parallel to Route 402 ending at Wilson which is about halfway across the peninsula. At Wilson two spurs run off the main spur, the west spur to MILA and the east spur to Cape Kennedy. Running parallel to the east spur is Florida Route 401 which ends at the north gate of Cape Kennedy. Also at Wilson, Florida Route AlA running south bisects Route 402, goes through MILA and then crosses the Banana River south of Cape Kennedy at Cocoa Beach. About 6 miles north of where Route AlA crosses the Banana River, Florida Route 528 runs east from the mainland to the south gate of Cape Kennedy. The September 11 to 12 picketing occurred at two points in the MILA area, one south of Wilson where a siding spur leaves the west spur, and the other about 9 miles further south on Route AlA. These two points are indicated, respectively, as I and II on the map at- tached to this Decision marked "Appendix A." The pickets carried signs which read as follows: NOTICE TO THE PUBLIC F.E.C.R.R. WHOSE FACILITIES ARE TRANSPORTING TO THIS PROJECT REFUSES TO BARGAIN IN GOOD FAITH. SYSTEM DIVISION NO. 87, ORDER OF RAILROAD TELEGRAPHERS. WE HAVE NO QUARREL WITH ANY OTHER EMPLOYER. On February 9, 1964, NASA issued a press release which said that FEC had been invested with authority to operate the newly con- structed west spur, such operation to begin on the morning of Feb- ruary 10, 1964. On February 10 and 11, 1964, picketing was resumed with the same picket signs at location II and at five additional loca- tions marked IIA, III, IV, V, and VI on Appendix A. The picket- ing continued until the morning of February 12, 1964, when it was halted by reason of a temporary restraining order issued by a United States District Court. Point IIA is 2 miles south of point II and is opposite a, dirt road leading to a construction project where employees of a secondary employer were engaged in work for the Corps of Engineers. A picket at IIA cannot be seen from the FEC tracks or the spur line. Point III is located at the intersection of highway AIA and U.S. 775-692-65-vol. 15 0-25 368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Route 1 and is near the north gate leading to Merritt Island and Cape Kennedy. A picket at point III cannot be seen from the FEC tracks or-the spur line. Point 1V is where the FEC main spur to Cape Kennedy and MILA leaves the FEC mainline. A picket at this point can be seen by trainmen from both the main FEC track and the FEC spur line at the point where it joins the main track. Point V is on highway 402 just over the causeway across the Indian River leading to MILA and Cape Kennedy. A picket at this point cannot be seen from the main track, but may be seen from the spur track looking down the Indian River. Point VI is on the highway near the south gate to Cape Kennedy. A picket at VI cannot be seen from the FEC main tracks or the spur. In sum, pickets were visible from FEC property only at point IV. FEC•employees did not work at or in the vicinity of the pickets located at points II, IIA, III, V, and VI. On June 8 to 10, 1964, picketing was resumed at points II, IIA, III, V, and VI until again enjoined by the United States District Court. The signs read : 3 NOTICE TO PUBLIC F.E.C.R.R. WHOSE FACILITIES ARE TRANSPORTING TO THIS PROJECT REFUSES TO BARGAIN IN GOOD FAITH BRO'D MAINTENANCE OF WAY EMPL. LOCALS 2020 717. WE HAVE NO QUARREL WITH ANY OTHER EMPLOYERS. All persons entering Cape Kennedy and MILA during these periods had to pass a picket. As a result of the picketing, employees working for neutral contractors doing construction work or oper- ating facilities at MILA and Cape Kennedy, among them employees of the Charging Parties, refused to cross the picket lines to perform services for their respective employers. B. The issues The complaint alleges that by. authorizing, establishing, and main- taining the aforesaid pickets Respondents have induced individuals employed by neutral employers to engage in a strike or a refusal to perform services with an object of forcing such neutral persons to cease 'doing, business- with NASA, the Corps of Engineers, and the U.S. Air Force, and to force NASA, the Corps of Engineers, the U.S. Air Force, and other neutral persons to cease doing business with FEC, in violation of Section 8(b) (4) (i) and (ii) (B) of the Act. 3 On June 8, 1964 , the earlier picket sign was used at point II. INT'L BROTHERHOOD OF ELECTRICAL WORKERS ETC. 369 Respondents defend on two theories: (1) When representing individ- uals employed by companies subject to the Railway Labor, Act, they are not labor organizations as defined in Section 2(5) of the National -Labor Relations Act and so are not subject to any of the subsections of Section 8 (b) of that Act; and (2) even if they are "labor orga- nizations," the picketing engaged in was primary and therefore legal. C. The character of the picketing We defer for the moment consideration of the status of Respondents as "labor organizations" to determine whether the picketing was otherwise illegal. Respondents contend that the picketing conformed with the criteria enunciated by the Board in Moore Dry Dock 4 and was therefore lawful. In Moore Dry Dock, the Board said that in a mixed situs situation picketing of the premises of the; secondary employer harboring the situs of the dispute is lawful where: (a) The picketing is strictly limited to times when the situs of dispute is located on the secondary employer's premises; (b) at the' time of picketing the primary employer is engaged in its normal business at the situs; (c) the picketing is limited 'to place's reasonably close to the location of the situs; and (d) the picket signs disclose clearly that the dispute is with the primary employer. ,- Respondents' labor dispute was solely with FEC, which is the pri- mary employer. The situs of that dispute was the FEC property and tracks, owned or operated by FEC. But Respondents' picketing was not limited to such locations, the situs of the primary dispute. Instead, most of the picketing occurred at points on public highways removed and not visible from EEC tracks and not utilized by FEC personnel. The picketing appeal at such locations could only have been directed at employees of neutral employers unconnected with the FEC dispute or FEC operations, which employers are employers within the meaning of the Act. In fact this was the sole effect of the picketing: employees of neutral employers refused to-cross the picket lines set up on public highways and operations of these employers were shut down or hampered. It is not determinative, therefore, that the picket signs advertised that the dispute was solely with the FEC. We hold that the picketing away from the FEC property was secondary and unlawful. . D. The applicability of the Act to Respondents Having found that the character of picketing was not such as to constitute lawful primary picketing immunized from the scope of Section 8(b) (4) (B), we shall not consider the status of Respond- Sailors' Union of the Pacific, AFL (Moore Dry Dock Company ), 92 NLRB 547, 549. 370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ents and their agents under the Act . We take up first the question of whether the Respondents are labor organizations within the mean- ing of Section 2(5) of the Acts 1. The status of Respondents IAM, IBEW, Boilermakers,' and Sheet Metal Workers Respondents Boilermakers, IAM, IBEW, and Sheet Metal Work- ers are predominantly nonrailway labor unions. Each has, however, a substantial number of members working for railroads , varying from 4,000 for the Boilermakers to 48,000 for the IAM. The propor- tion of railroad workers to total membership of these Unions varies from 21/2 to 8 percent. Railway employees are organized by these Respondents into separate locals and , except for the Boilermakers, are supervised by an International vice president whose jurisdiction is basically limited to railway employees and matters . The railway employees who are members of these Unions vote on all union mat- ters in the same manner as other members of each of the Unions. In International Organization of Masters , Mates and Pilots of America, etc. (Chicago Calumet Stevedoring Company, Inc.),6 the respondent International union, ' whose membership was composed predominantly of supervisors, and the respondent local, whose mem- bership comprising pilots was entirely supervisory , engaged in sec- ondary picketing activities against foreign shipowners to compel them to use the services of pilot members of the local . The Board there held that both the International union and its local had unlaw- fully engaged in secondary boycott activities , notwithstanding that such activities were in support of individuals who were not statutory employees and of a labor union-the local-which was not a statu- tory labor organization . The Board found that the International was a "labor organization" because a small number of its total mem- bership, about 2 percent, who, however, were not involved in the dis- pute, were statutory "employees." The Board also found the local, although not a statutory "labor organization" because its member- 5 Section 2(5) defines a "labor organization" as: ... any organization of any kind . . . In which employees participate and which exists for the purpose, in whole or in part, of dealing with employers concerning grievances , labor disputes, wages, rates of pay, hours of employment, or conditions of work. Section 2(3) defines an "employee" as: ... any employee ... but shall not include . . . any individual employed by an employer subject to the Railway Labor Act ... . Section 2 (2) states: The term "employer" includes any person acting as an agent of an employer, directly or indirectly, but shall not include ... any person subject to the Railway Labor Act ... . 125 NLRB 113, remanded to the Board and modified at 144 NLRB 1172 and 146 NLRB 116. INT'L BROTHERHOOD OF ELECTRICAL WORKERS, ETC. 371 ship was entirely supervisory, jointly responsible for the illegal sec- ondary activity as an agent of the International. The Board re- garded as immaterial the fact that the individuals immediately in- volved in the dispute were not "employees." This conclusion is sup- ported by the opinion of the Court of Appeals in National Marine Engineers, etc. (S d L Towing Co.) v. N.L.R.B.,7 where the court said : We do not believe the question of whether MEBA and MMP are "labor organizations" that may be guilty of unfair labor practices should be decided by looking only at the workers of S & S. We think that the determination whether a labor union charged with an unfair labor practice under Section 8(b) is a "labor organization" turns on whether "employees participate" in the organization charged and that, if they do, the union is a "labor organization" although all the workers of the particular employer whom it is seeking to represent are "supervisors" and therefore not "employees." There is no inconsistency in looking to the identity of the workers of the particular employer when the issue is whether an election must be held or who may vote in it ... but to the entire composition of the union being charged, local or national, when the issue is whether it is a "labor organization" and therefore guilty of an unfair labor practice. The questions arise under different sections of the statute, with different wording and purpose. The membership of Respondents IAM, IBEW, Boilermakers, and Sheet Metal Workers is comprised overwhelmingly of nonrailroad employees. They are unquestionably, therefore, in their overall capacity "labor organizations" and the Board has so held in numer- ous cases. There is no legislative history to support Respondents' contention that, an International union which represents railroad and nonrail- road employees is exempt from the provisions of Section 8 (b) (4) when it engages in otherwise prohibited secondary activity against "any person engaged in commerce" within the meaning of the Act, in support of a strike against a railroad. As we have-indicated above, both the Board and the courts have by clear implication decided to the contrary. It is true that in Paper Makers,8 the Board said that if a railroad union engaged in secondary boycott activity :in support 7274 F. 2d 167, 173 (C.A. 2). Cf. Marine Engineers Beneficial Association v.,Inter- lake Steamship Co. et al., 370 U.S. 173, 179-180. S Local 833, International Union, United Automobile, etc. (Paper Makers Importing Co., Inc., et al.), 116 NLRB 267. 372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of a strike against a railroad it would not be in contravention of Sec- tion 8(b) (4) because a railroad labor union is not a "labor organiza- tion." But in so saying, the Board was considering only a railway labor union whose membership was made up entirely of railroad workers and not one which, as here, includes both railroad and non- railroad workers. It is also true that in Di Giorgio,9 the Board and the Court of Appeals for the District of Columbia dismissed secondary boycott allegations against a local union whose membership consisted only of "agricultural laborers" on the ground that the local union was not a "labor organization" despite the fact that the national union with which it was affiliated was a "labor organization" whose members included workers other than "agricultural laborers." However, in Di Giorgio, unlike here, both the Board and the court found that the local union was not an agent of the national union, which was not named a party respondent. In the present case, on the contrary, the national unions which are named respondents are clearly "labor organizations," and it is these national unions which acted through their agents, the respondent railroad labor unions, to picket the sec- ondary employers.. Accordingly, we find that Respondents IAM, IBEW, Boilermakers, and Sheet Metal Workers are "labor organizations" subject to the provisions of Section 8(b) (4) (B) with respect to their conduct di- rected against secondary employers engaged in commerce within the meaning of the Act. This is so although Respondents' primary dis- pute was with an employer subject to the Railway Labor Act and whose employees are not "employees" under the National Labor Rela- tions Act.1o 2. Responsibility for the picketing and the status of Respondents Telegraphers and Maintenance of Way Employees Respondents IBEW, IAM, Boilermakers, and Sheet Metal Work- ers contend that they are not principals for whom the picketing Unions, Telegraphers and Maintenance of Way Employees were act- ing as agents. We disagree. As noted above, the Cooperating Organizations, which included in its membership all Respondents, as a group decided to strike the FEC. As part- of such strike action Cooperating Organizations set up a subcommittee, designated the master strike team, to direct and coordinate all strike action. Each member of the Cooperating Orga- nizations furnished personnel to carry on the picketing. The master strike team in turn set up local strike teams at various geographic 0 Di Giorgio Fruit Corporation, et al. V. N.L R .B., 191 F. 2d 642, 647 (.C.A D C.). 10 Cf. N.L.R.B . v. Washington-Oregon Shingle Weavers' District Council, AFL (Sound Shingle Co.), 211 F. 2d 149, 152 (C.A. 9). INT'L BROTHERHOOD OF ELECTRICAL WORKERS, ETC. 373 points on the FEC lines to arrange for picketing and other strike action in these local areas., The master strike team included repre- sentatives of Telegraphers and Maintenance of Way Employers. The, local strike teams at Fort Pierce and New Smyrna Beach, Florida, those-directly involved in the picketing which is the, subject of this proceeding, included International representatives of the Sheet Metal Workers and the Boilermakers. Prior to September 11, 1963, the signs carried by pickets indicated merely that nonoperating employees were on strike. Thereafter the picket signs contained the name of either Telegraphers or Mainte- nance of Way Employees as the sponsoring organization. The pick= ets at MILA and Cape Kennedy who carried the Telegraphers signs were placed by the local strike teams; the pickets who carried the Maintenance of Way Employees signs were placed by one of that Union's officials who was a member of the local strike team. The master strike team at all material times had final authority and con- trol over and was kept fully advised of all the picketing. The chair- man of Cooperating Organizations was aware of the Telegraphers and Maintenance of Way Employees picketing prior to and during, its occurrence. Where two or more unions engage, in a strike as a joint venture, each is responsible for the conduct of other members of the joint venture and of agents of each other in pursuit of the common aim.11 In this case, all Respondents were members of Cooperating Orga- nizations which called and managed the strike against FEC in their common behalf. That organization, through its master and local strike teams, had final control of and authority over all the picket- ing. Pickets were actually placed and supervised by members of the local, strike teams. Although picket signs used after September 11, 1963, carried the names of either Telegraphers or Maintenance of Way Employees as sponsor of the picketing, it is apparent, and we find, that these pickets were acting in behalf of all the striking Unions and in furtherance of their common objective to win the strike against the FEC. We further find that the pickets were the agents not only of Telegraphers and Maintenance of ' Way Employ- ees, but of the other Respondents, who were members of Cooperating Organizations. Section 8(b) proscribes conduct by a "labor organization or its agents." Respondents IAM, IBEW, Boilermakers, and Sheet Metal Workers are, as found above, "labor organizations" and as such re- sponsible for the conduct of the pickets. Telegraphers and,Mainte- nance of Way Employees are not, however, "labor organizations" be- 'International Brotherhood of Pulp, Sulphite and Paper Mill Workers , etc. (Solo Cup Company), 144 NLRB 421 ; International Organization of Masters, Mates, & Pilots etc. ( Chicago Calumet Stevedoring ), supra. 374 DECISIONS OFNATIONAL LABOR RELATIONS BOARD cause their membership includes only individuals employed by em- ployers who are subject to the Railway Labor Act and who therefore are not "employees." Although not "labor organizations," these two unions were "agents" of "labor organizations" in their picketing inas- much as such picketing was in pursuance of the joint venture 12 We find, therefore,' that as "agents" of "labor- organizations,", Respond- ents Telegraphers and Maintenance of Way Employees are jointly responsible with the 'other Respondents under the Act for the illegal picketing activity. . " We further find that the picketing of the MILA and Cape Kennedy sites away from tracks either owned or operated` by FEC had as an object to induce work stoppages by employees of neutral persons to force NASA, Corps of Engineers, U.S. Air Force, and other neutral persons to cease doing business with FEC, thereby violating Section 8(b) (4) (i) and (ii) (B). IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES ON COMMERCE The activities of Respondents set forth in section III, above, occur- ring in connection with the operations of the Employers 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 commerce and the free • flow of commerce. V. THE REMEDY Having found that Respondent Unions have violated Section 8(b) (4) (i) and (ii) (B) of the Act, as set forth above, we shall order them to cease and desist from such conduct and take certain affirma- tive action designed to effectuate the policies of the Act. Telegra- phers and the Maintenance of Way Employees will be bound by such an order to the extent that they may act as agents of the other Respondents. CONCLUSIONS OF LAW 1: • International Brotherhood of Electrical Workers, AFL-CIO ; International Association of Machinists, AFL-CIO ; Sheet Metal Workers International Association, AFL-CIO; and International Brotherhood of Boilermakers, Iron Shipbuilders,-Blacksmiths, Forg- ers and Helpers, AFL-CIO, are labor organizations within the mean- ing of Section 2(5) of the Act. '!International Organization of Masters, Mates and Pilots, etc . ( Chicago Calumet Stevedoring), supra; National Marine Engineers v. N L.R.B., supra. INT'L BROTHERHOOD OF ELECTRICAL WORKERS, ETC. 375 '2. System Division No. 87, The Order of Railroad Telegraphers and Brotherhood of Maintenance of Way Employees are agents of the above-named labor organizations within the meaning of Section 8 (b) of the Act. 3. The above-named labor organizations and the above-named agents have engaged in unfair labor practices within the meaning of Section 8(b) (4) (i) and (ii) (B) by inducing and encouraging in- dividuals employed by B. B. McCormick and Sons, Inc., Houdaille- Duval Company, Blount Brothers Corporation, and other persons engaged in commerce or in an industry. affecting commerce within the meaning of the Act to engage in a strike or a refusal in the course of their employment to perform services, and by threatening, coercing, or restraining persons engaged in commerce or in an indus- try affecting commerce with an object of forcing or requiring B. B. McCormick and Sons, Inc., Houdaille-Duval Company, Blount Brothers Corporation, and other persons to cease doing business with NASA, Corps of Engineers, and U.S. Air Force, and to force NASA, Corps of Engineers, U.S. Air Force, and other persons to cease doing business with Florida East Coast Railway Company. 4. The aforesaid unfair labor practices are unfair labor practices within the meaning of Section, 2(6) and (7) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, the Board hereby orders that Respondents International Brotherhood of Electrical Workers, AFL-CIO; International Association of Ma- chinists, AFL-CIO; Sheet Metal Workers International Association, AFL-CIO ; International Brotherhood of Boilermakers, Iron Ship- builders, Blacksmiths, Forgers and Helpers, AFL-CIO; their officers, agents, and representatives, including their agents System Division No. 87, The Order of Railroad Telegraphers, and Brotherhood of Maintenance of Way Employees, shall: 1. Cease and desist from inducing or encouraging any individual employed by B. B. McCormick and Sons, Inc., Houdaille-Duval Company, Blount Brothers Corporation, or by any other person engaged in commerce or in an industry affecting commerce, other than Florida East Coast Railway Company, 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 threatening, coercing, or restraining B. B. McCormick and Sons, Inc., Houdaille- Duval Company, Blount Brothers Corporation, or any other person 376 DECISIONS OF NATIONAL LABOR RELATIONS BOARD engaged in commerce or in an industry affecting commerce where in either case an object thereof is to force or require the aforesaid per- sons to cease doing business with National Aeronautics & Space Ad- ministration, U.S. Corps of Engineers, and U.S. Air Force, and thereby to force National Aeronautics & Space Administration, U.S. Corps of Engineers, U.S. Air Force, and other persons to cease doing - business with Florida East' Coast Railway Company in violation of Section 8(b) (4) (i) and (ii) (B) of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Each Respondent shall post, in conspicuous places in the busi- ness offices and meeting halls of those of its locals which have mem- bers who work for Florida East Coast Railway Company and at all other places where notices to such members are customarily posted, copies of the attached notice marked "Appendix B." 13 Copies of said notice to be furnished by the Regional Director for Region 12, shall, after being duly signed by Respondents' authorized representa- tives, be posted by Respondents immediately upon receipt thereof and be maintained by them for 60 consecutive days. Reasonable steps shall be taken by Respondents to insure that such notices are not altered, defaced, or covered by any other material. (b) Furnish said Regional Director for Region 12 signed copies of the aforesaid notice for posting by B. B. McCormick and Sons, Inc., Houdaille-Duval Company, and Blount Brothers Corporation, if willing, at. places where they customarily post notices to their employees. (c) Notify the Regional Director for Region 12, in writing, within 10-days from the date of this Order, what steps Respondents have taken to comply herewith. MEMBER JENKINS, dissenting: I cannot accept the conclusion' of the majority that this Board has jurisdiction over a labor dispute (specifically the picketing attendant thereto) between a railway'and its employees. First, the fundamental fact is that the dispute involved herein is simply a strike (and picketing) against the Florida East Coast Rail- way by various unions representing nonoperating railway employees who are subject to, the Railway Labor Act. It is incongruous, at the least, to acknowledge that strikers, labor disputes, and the gamut of -labor relations activities that occur between railway employees and 2 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, "a Decision and Order" the words "a Decree of the United States Court of Appeals, Enforcing an Order." INT'L BROTHERHOOD OF ELECTRICAL WORKERS, ETC. 377 railroads are within the exclusive province of the Railway Labor Act and the detailed and extensive procedures set up under the National Mediation Board, but nevertheless,to assert that the picketing herein falls within the jurisdiction of this Board.14 The statute we admin- ister explicitly excludes employees "subject to the Railway Labor Act" and "individuals employed by an employer subject to the Railway Labor Act," and to avoid any incongruity, it is necessary only that the Board apply this exclusion here and decline jurisdiction.15 Second, the application of the 8(b) (4) provisions to the Respond- ents constitutes a clearly disparate application because this Board does not and cannot apply the 8(a) provisions against employers sub- ject to the Railway Labor Act. In Di Giorgio Fruit Corporation et al. v. N.L.R.B., 191 F. 2d 642 (C.A.D.C.), cert. denied 342 U.S. 869, the court discussed whether a farm union constituted a labor organization within the meaning ;of the Act and concluded that because the' Kern County Local was composed of agricultural laborers, they were excluded from- coverage of the Act even though the National Farm Labor Union of which it was a part had in it commercial packinghouse employees and others who were not directly involved in the dispute and who were employ- ees within the meaning of the Act. In discussing agricultural labor- ers the court discussed railroad workers as an analogous situation stating : The Board also supports its view by an analogy to the exclusion of railroad workers from the, definition of "employees". Section 2(3) of the Act [defining employee] . . -. was inserted in 1947; and the Senate Report upon that bill stated : "The exemption of employees of employers subject to the Railway Labor Act is to make it perfectly clear that in providing remedies for unfair labor practices of unions and their agents it was not intended to include such employees." 13 za S. Rept., 105, 80th Cong.; 1st sess. 19 (1947) [191 F. 2d 632 , at 646.1 The court likewise concluded that the term "labor organization" in Section 8(a) and (b) must be uniformly interpreted, pointing out that : The incongruity and conflict resulting from giving the term "employees" its statutory defined meaning, excluding agricultural 14 Cf. Local 833, International Union, United , Automobile, Aircraft and Agricultural Implement Workers (UAW-AFL-CIO) ( Paper Makers Importing . Co, Inc), 116 NLRB 267 us The majority apparently concedes , as it must, that the Florida East Coast Railway and its employees are not "employers" or "employees" as defined in Section 2(2) and (3) of our Act. 378 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employees, but at the same time giving the term "labor organiza- tion"' a non-statutory meaning so as to include agricultural la- ' borers throughout Section 8(b), is emphasized by the Board. Moreover, the Board points out that Section 8(a), which makes illegal an unfair practice by employers, and thus bestows rights and benefits on employees, uses the term "labor organization" throughout. We think that the section' conferring benefits, Sec- tion 8(a), and the section imposing restrictions, Section 8(b), which are subdivisions of the same section of the Act, must be construed in harmony ; and that, if they be construed to apply to organizations of agricultural laborers, they would nullify the exclusion of such laborers from the statutory definition of "em- ployees". [191 F. 2d 642, at 647.] Such rationale is directly applicable to the railway employees here. Third, I cannot base jurisdiction, as my colleagues do, on the fact that Respondent Unions IBEW, IAM, Boilermakers, and Sheet Metal Workers also have locals (not here involved) that contain "employees," employed by "employers" subject to our Act, who thus fall within the definition of our Act. The individuals involved in the dispute here are clearly employees of a railway, their dispute is with the railway, and they are therefore subject to the Railway Labor Act. To regard the separately employed, nondisputing, and non- participating locals, connected with the disputants only through the International union, as somehow' converting the railway locals and employees into a "labor organization" under this Act is to engage in a fiction. Presumably, under the rationale of the majority, this Board'will henceforth intervene in railway and airline labor disputes whenever anyone can show that the International union involved also has members employed by employers subject to our Act; indeed, the International union could control the application of the statute by acquiring or severing such members., Consequently, the extension of jurisdiction here is not only unwise but sets a risky precedent for the future. This risk is more than speculative, for the majority has rested jurisdiction partly on the ground that-the secondary employers picketed are subject to our Act. Such result amounts to a roving commission for the Board to "set aright all types of misconduct condemned by our Act,'without regard to the limits on the Board's jurisdiction. In view of the explicit statutory exclusion of railroad employers and their employees from our Act and the fact that application of the 8(b) provisions would result in a disparate application of only a part of the major provisions of our Act, I find no basis for the assertion of jurisdiction here. INT'L BROTHERHOOD OF ELECTRICAL WORKERS, ETC. APPENDIX A 0- r 379 APPENDIX B NortcE 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 wn L NOT induce or encourage individuals employed by B. B. McCormick and Sons, Inc., Houdaille-Duval Company, 380 DECISIONS OF NATIONAL LABOR RELATIONS 'BOARD Blount Brothers Corporation, or any other persons engaged in commerce or in an industry affecting commerce, 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 perform services, or threaten, restrain, or coerce said employers or any other per- son engaged in commerce or in an industry affecting commerce, where in either case an object thereof is to force or require the aforesaid persons to cease doing business with National Aero- nautics & Space Administration, U.S. Corps of Engineers, and U.S. Air' Force, and thereby to force National Aeronautics & Space Administration, U.S. Corps of Engineers, U.S. Air Force, and other persons to cease.doing business with Florida East Coast Railway Company in violation of Section 8 (b) (4) (i) and (ii) (B) of the Act. INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, AFL-CIO, Labor Organization. Dated---------------- By=------------------------------------ (Representative ) ( Title) INTERNATIONAL ASSOCIATION OF MACHINISTS, AFL-CIO Labor Organization. Dated---------------- By------------------------------------- (Representative ) (Title) SHEET METAL WORKERS INTERNATIONAL ASSOCIATION, AFL-CIO, Labor Organization. Dated---------------- By----------------------------------'--- (Representative ) (Title) INTERNATIONAL BROTHERHOOD OF BOILERMAKERS, IRON SHIPBUILDERS , BLACKSMITHS , FORGERS, AND HELPERS, AFL-CIO, Labor Organization. Dated---------------- By------------------------------------- (Representative ) (Title) SYSTEM DIVISION No. 87, THE ORDER OF RAILROAD TELEGRAPHERS, Labor Organization. Dated---------------- By------------------------------------- (Representative) (Title) BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYEES, Labor Organization. Dated---------------- By-------------=----------------------- !, (Representative ) (Title) SECURITY TOWING COMPANY 381 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, 706 Federal Office Building, 500 Zack Street, Tampa, Florida, Telephone No. 228-7711. Security Towing Company and National Maritime Union of America, AFL-CIO. Case No. 14-CA-3139. December 16, 1961 DECISION AND ORDER On March 31,1964, Trial Examiner Stanley Gilbert issued his Deci- sion in the above-entitled proceeding, finding that the Respondent had not engaged in the unfair labor practices alleged in the complaint, and recommending that the complaint be dismissed in its entirety, as set forth in the attached Trial Examiner's Decision. Thereafter, the General Counsel and the Charging Party filed exceptions, with sup- porting briefs, to the Decision; and the Respondent filed exceptions to the Trial Examiner's failure to make certain findings of fact and conclusions of law, together with a brief in support of the exceptions and the Decision. The Charging Party filed a brief in answer to the Respondent's exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Board has delegated its powers in connection with this case to a three-member panel [Chairman McCul- loch and Members Leedom and Jenkins]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Decision and the entire record in the case, including the exceptions and briefs, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner.' [The Board dismissed the compaint.] 1 As the record , exceptions , and briefs adequately present the issues and the positions of the parties , the request of the Charging Party for oral argument is hereby denied. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE Upon a charge filed August 14, 1963 , by National Maritime Union of America, AFL-CIO (hereinafter referred to as NMU), the complaint was issued October 21, 1963 . The complaint, as amended,1 alleges that Security Towing Company (herein- 1 The complaint was amended by adding the names George H. Courtney , Robert Lee Fowler, Wayne E. Cox, and Bill Lawrence to each of the subparagraphs in paragraph VI of the complaint. At the conclusion of the General Counsel 's case, General Counsel was given leave to withdraw the allegation in subparagraph (b) of paragraph V of the com- plaint, there being no evidence in support of said allegation. 1'50 NLRB No. 23.