Local 1248, Int'l Longshoremen's Association

LOCAL 1248, INT'L LONGSHOREMEN'S ASSOCIATION 891 Local 1248, International Longshoremen's Association and Hamp- ton Roads Maritime Association 1 International Longshoremen's Association and Hampton Roads Maritime Association. Cases Nos. 5-CC-261 and 5-CC-262. May 26, 1965 DECISION AND ORDER On .January 26, 1965, Trial Examiner Thomas S. Wilson issued his Decision in the above-entitled proceeding, finding that the Respond- ents did not engage in unfair labor practices within the meaning of Section 8 (b) (4) (B) of the National Labor Relations Act, as amended, and recommending that the complaint herein be dismissed, as set forth in the attached Trial Examiner's Decision. ']'hereafter, the General Counsel and the Respondents filed exceptions to the Trial Examiner's Decision, and the General Counsel filed a supporting brief. The National Labor Relations 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 Trial Examiner's Decision, the exceptions and the brief, and the entire record in this proceeding, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner only to the extent consistent herewith. In a related proceeding,2 the Board proscribed the very conduct here in question and resolved the underlying jurisdictional dispute by awarding the work in controversy to the employees of Norfolk Oil Transit, Inc. Under the circumstances, we deem it unnecessary to decide whether the Respondents' conducts also violates Section 8(b) (4) (B) of the Act3 Accordingly, we shall dismiss the complaint. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the complaint against the Respondents, Local 1248, International Long- shoremen's Association, and International Longshoremen's Associa- tion, be, and it hereby is, dismissed. MEMBERS FANNING and ZAGORIA took no part in the consideration of the above Decision and Order. I The name of the Charging Party has been corrected and conforms to that established by the record. 'International Longshoremen's Association, AFL-CIO, etc., Local 1248, International Longshoremen's Association, AFL-CIO, etc . (Hampton Roads Maritime Association), 151 NLRB 312. 3 New York Paper Cutters' & Bookbinders, Local Union No. 119, International Brother- hood of Bookbinders, AFL-CIO ( Automatic Sealing Service, Inc.), 148 NLRB 1350. 152 NLRB No. 91. 892 DECISIONS OF NATIONAL LABOR RELATIONS BOARD TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE Upon charges duly filed on April 9, 1964, by Hampton Roads Maritime Associa- tion, Inc., hereinafter called the Association or Charging Party, the General Counsel of the National Labor Relations Board, hereinafter called the General Counsel' and the Board, respectively, by the Regional Director for Region 5 (Baltimore, Mary- land), issued its complaint dated May 6, 1964, against Local 1248, International Longshoremen's Association, and against International Longshoremen's Association, hereinafter respectively referred to as Local 1248 and I.L.A. or the Respondents. The complaint alleged that Respondents had engaged in and were engaging in unfair labor practices affecting commerce within the meaning of Section 8(b)(4)(i) and (ii)(B) and Section 2(6) and (7) of the Labor Management Relations Act, 1947, as amended, herein called the Act. Copies of the charges, the consolidated complaint, and notice of hearing thereon were duly served upon the Charging Party and Respondents. Respondents duly filed answers admitting certain allegations of the complaint but denying the commission of any unfair labor practices. Pursuant to notice, a hearing was held at Norfolk, Virginia, on June 29 and 30 and October 5, 1964,2 before Trial Examiner Thomas S. Wilson. All parties appeared at the hearing, were represented by counsel, and were afforded full oppor- tunity to be heard, to produce, examine, and cross-examine witnesses, and to intro- duce evidence material and pertinent to the issues. Oral argument at the close of the hearing was waived. On October 16, 1964, General Counsel filed a "Motion to -Correct Transcript." No objections to said motion having been filed, the same is hereby granted. Briefs were received from General Counsel and Respondents on November 9,,1964. Upon the entire record in the case, and from his observation of the witnesses, I make the following: FINDINGS OF FACT I. BUSINESS OF CHARGING PARTIES (a) Hampton Roads Maritime Association, Inc., is an organization composed of various steamship lines, steamship agencies, and stevedoring companies doing busi- ness in the Hampton Roads, Virginia, port area, including Norfolk, Virginia. It exists for the purpose, among others, of bargaining collectively on behalf of its member-employers with labor organizations, including, but not limited to, Respond- ents, concerning wages, hours, working conditions, and other conditions of employ- ment of the employees of the employer-members of the Association. Among the employer-members of the Association are United States Lines Company (herein called U.S. Lines), Raleigh Steamship Agency, Inc. (herein called Raleigh), Southern Stevedoring Corporation (herein called Southern), and Old Dominion Stevedoring Corporation (herein called Old Dominion). (b) U.S. Lines is a New Jersey corporation engaged in the transportation of cargo by ocean-going vessels in interstate and foreign commerce. In connection with these operations, its revenues are in excess of $500,000 annually (c) Raleigh is a Virginia corporation engaged in the business of representing the interest of shipowners and steamship companies operating ocean-going vessels in interstate and foreign commerce and providing services for such vessels when they are in port to load or discharge cargo. In connection with these services, Raleigh's annual revenues are in excess of $100,000. (d) Southern and Old Dominion are Virginia corporations engaged in the business of loading and unloading cargo from vessels owned by the companies engaged in interstate and foreign commerce. In connection with these operations, the revenue of each of said corporations is in excess of $100,000 annually. (e) Norfolk Oil Transit, Inc. (herein referred to as Norfolk Oil), is a Delaware corporation engaged in the storage, sale, and distribution of bulk tallow, animal, and 1 This term specifically includes the attorney appearing for the General Counsel at the hearing. 2 The recesses to October 5 were granted In order to give David Alston, International vice president of I.L.A., an opportunity to recuperate from a serious illness in order to be able to testify at the hearing When Alston was unable to appear on October 5, the hearing was closed. LOCAL 1248, INT'L LONGSHOREMEN'S ASSOCIATION 893 vegetable oils. It maintains storage and pumping facilities for loading vessels at pier L, Lambert's Point, Norfolk, Virginia. Its annual gross revenues exceed $500,000. Norfolk Oil is not a member of the Association. The complaint alleged, the Respondents admitted, and I find that each of the employers above named is engaged in commerce within the meaning of the Act. II. THE RESPONDENTS International Longshoremen's Association and Local 1248 thereof are, and at all times material herein have been, labor organizations admitting to membership employees of the aforementioned companies. As of the time of the hearing herein, the employees of Norfolk Oil were the only employees here involved who were not members of Respondents. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The facts There was at all times material herein a collective-bargaining agreement dated October 1, 1962, and extending by its own terms to September 30, 1964,3 in existence between Hampton Roads Maritime Association, Inc., its employer-members,4 and ILA and its Local 1248. Paragraph 1 of this agreement provides: 1. The ILA shall have, insofar as it is compatible with the laws of the United States of America and the State of Virginia, all work of rigging and unrigging of cargo and passenger vessels and the loading and discharging of their cargoes, except vessels loading at coal piers, including mail, baggage and dunnage used in connection with the cargo being handled under the following terms and condi- tions. [Emphasis supplied.] Section 14(t) provides in pertinent part as follows: (t) . both rigging and unrigging will include any and all work necessary to readying hatch or ship for handling of cargo, but no cargo or dunnage will be loaded or discharged until men employed in rigging are made a part of the gang. Paragraph 16 of this agreement provides: Paragraph 16. In the event of any dispute or controversy arising during the life of this agreement as to the interpretation of same, or abuse of any of the provi- sions thereof, the men will continue to work pending an adjustment of the trouble as follows:... . This section then proceeds to set up a two-step arbitration procedure terminating in a decision which should be "final and binding upon all signators to this agreement." ILA and Local 1248 agreed to supply the employer-signatories to this agreement with men capable of rigging and unrigging a vessel and loading and unloading cargo. Respondents also agreed not to supply such labor to persons not signatory to the agreement. The sole employer involved herein who is not a member of the Association, who is not bound by the aforementioned collective-bargaining agreement and whose employees at the time of the hearing were not union is Norfolk Oil. Since 1952, Norfolk Oil has received oils and tallows from the owners thereof (usually located in the central part of the United States), stored the same in its own storage tanks located on shore adjacent to pier L, Lambert's Point Dock, and, upon orders from the owners, has loaded same into the deep tanks of ocean-going vessels for overseas transportation through the use of its own pumping and hose facilities and using its own nonunion employees. In order for Norfolk Oil to perform this operation of transferring the oil from its own storage tanks to the deep tanks of the ships, the undisputed evidence shows that the ship's hatch leading to the deep tank where the cargo is to be carried must be opened, the flexible hoses brought 8 This agreement, resulting from the so-called Morse agreement of 1962 , is the same, except for dates, as the 1959-62 agreement in evidence here as General counsel's exhibit. ' As previously noted, Hampton Roads Maritime Association, Inc., is an organization composed of most , If not all, of the maritime employers engaged in the shipping industry in the Hampton Roads area, including Norfolk, Virginia These members include: U.S Lines, Raleigh, Southern , and Old Dominion . The Association and its member organiza- tions including those named above were bound by the agreement aforementioned. 894 DECISIONS OF NATIONAL LABOR RELATIONS BOARD aboard and attached to the deep tank and the process reversed at the conclusion of the operation. This work requires the use of the ship's winches and a crewmember to operate them. It is also undenied that this is rigging work. The steamship companies appear to have two different types of cargo contracts. The first is for general cargo where the steamship company agrees to pick up general cargo at dockside, load it upon the vessel, transport it to a definite destination, and there unload it upon the dock where the consignee thereof takes control. The second type of transportation contract, known as FIO contracts, involve liquid oil cargoes where the contract of the steamship companies is limited to the transportation of the oil from port to destination with the loading and unloading of the liquid cargo at the expense of and with the facilities of the shipper or consignee thereof. The events of immediate concern here began on March 7, 1964, when the U.S. Lines vessel, American Corsair, tied up at pier L to receive general cargo and also 320 tons of lard then in the storage tanks of Norfolk Oil. This lard destined for London, England, was to be carried under an agreement dated February 24, 1964, between Rath Packing Company and U.S. Lines. Paragraph 4 of this agreement pro- vided: "Shipper agrees to load and pump the oil in ship's tank or tanks, at its risk and expense, and with its own pumps. Vessel to supply steam for pumping, it being understood that carrier accepts delivery only in ship's tank or tanks." 5 On this occasion Southern was doing the stevedoring work on the general cargo using longshore gangs furnished by Local 1248. When employees of Norfolk Oil sought permission from the ship officers to use the ship's winches to open the hatch and bring aboard the flexible hose and attach same to the deep tanks preparatory to loading the oil, Business Agent Charles Benson of Local 1248 approached the assistant dock superintendent for U S. Lines, John Cole, and complained that employees of Norfolk Oil were doing rigging and loading work which under the Association's contract belonged to the ILA. Although Cole's testimony regarding this conversation was sketchy, he caught what he called an "inference" from the con- versation that Benson would "knock off" the ILA gangs at work unless ILA men were put on board to handle the hoses.6 At this time no Norfolk Oil hoses or employees were aboard the Corsair.? Fearful from this "inference" that the Corsair would be tied up, Cole telephoned his U.S. Lines superior, L. E. Pentecost.8 Pente- cost agreed to the employment of an ILA gang to rig up the hoses of Norfolk Oil. An ILA gang for that purpose was promptly hired from the ILA hall. Until that gang arrived aboard the Corsair, Cole attempted to rig the lines by himself. There- after the Corsair was loaded normally and departed on schedule .9 On March 13 the Association requested a meeting with ILA representatives over ILA's contentions and intentions in regard to the loading of these liquid oil shipments. The meeting was chaired by Captain H. B. Cook, chairman of the Association's arbi- tration committee. Also L. E. Pentecost, chairman of the Association's negotiation committee, etc., was present and vocal. ILA was represented by David Alston, its International vice president, and Local 1248 by its president, Raymond Williams, and its business agent , Charles Benson. In addition a representative of Norfolk Oil was in attendance. According to the minutes, the meeting lasted 21/2 hours. The parties were in complete disagreement as to the results, if any, of this meeting. ILA 6 This is the usual provision contained in liquid cargo contracts. Such contracts are known as "free in and out" (FIO) contracts O Benson admitted the complaint but denied the threat, testifying that he probably said that he would take the matter to arbitration. 7 At the hearing the question of why Norfolk Oil employees were not aboard the Corsair at this time, whether due to coercion from Respondents or not, was not investigated due to General Counsel's contention that that matter was immaterial to the issues of this case, as he contended Norfolk Oil was the primary employer involved here . General Counsel acknowledged that this issue was only material in the companion Section 8(b) (4) (1) and (ii) (D) (jurisdictional dispute ) case which was being heard concurrently with the instant case s Regarding his employment with U.S. Lines, Pentecost testified : "I am manager of the Norfolk office and general manager for the South and East. " Regarding his official capacity with Hampton Roads Maritime Association, Pentecost also testified : "I am member of the Executive Committee , I am a Director, I am Chair- man of the Negotiations Committee , Chairman of the Central Records Bureau , and sev- eral other lesser jobs." O The record shows that since its inception in 1952 Norfolk Oil employees had always rigged up its hoses to the vessel's deep tanks using the ship's winches operated by mem- bers of the ship's crew. LOCAL 1248, INT'L LONGSHOREMEN'S ASSOCIATION 895 participants therein testified that an agreement was reached that thereafter an ILA gang would be employed to handle the oil hoses on such shipments while association officials contended just as vigorously that no such agreement was reached.'° On this same day, March 13, the ship Havskar, owned by Meyers Lines and repre- sented in Norfolk by Raleigh, a member of the Association, loaded general cargo and vegetable oil from Norfolk Oil at pier L. Old Dominion, another member of the Association, performed the stevedoring work on the general cargo using ILA gangs. On this occasion ILA put a gang aboard the Havskar to handle the hoses of Norfolk Oil. Business Agent Benson and President Williams of Local 1248 requested Old Dominion Superintendent William Lee to take the names and check numbers of this gang so that the men would be paid by Old Dominion. Acting upon orders of Old Dominion President George Garris, Lee refused so to do on the grounds that the gang had not been ordered by Old Dominion. Havskar loaded and departed on schedule. This extra ILA gang was not paid. On March 19 Old Dominion was scheduled to work general cargo on the Waldeck, a vessel owned by Fresco Lines and represented in Norfolk by Raleigh, a member of the Association. In preparation therefor Old Dominion on the evening of March 18, as was customary, ordered two dock and two ship gangs by name from ILA for general cargo work on the Waldeck beginning at 8 a.m. on March 19. The Waldeck was not to receive any oil cargo. As was also normal, Old Dominion telephoned President Williams of Local 1248 on the morning of March 19 and confirmed this order for the four gangs. During this conversation Williams asked if Old Dominion was going to pay the ILA gang which had worked the oil hoses on the Havskar. Wylie Hall, paymaster for Old Dominion, answered that Old Dominion had nothing to do with that. When work was supposed to commence on the Waldeck at 8 a.m., only two of the four gangs ordered appeared for work. In answer to a telephone call from Hall inquiring where the other two gangs ordered were, Williams acted surprised, sug- gested that no doubt some of the key personnel were sick, and reported that there were no other men at the hall who could fill the vacancies but said that he would get the gangs to the Waldeck as soon as possible. Shortly thereafter Alston telephoned Hall, stated that he had talked with Williams, and inquired if Old Dominion was going to pay the gang which had worked the oil lines on Havskar. Hall replied that Old Dominion had nothing to do with the oil lines and, therefore, was not going to pay the gang. Alston thereupon stated: "Well, I see trouble for the port, and the men want to be paid." Alston also asked Hall to have President Garris call him and added that he (Alston) did not think Old Dominion was going to get any men any more. Garris described his subsequent telephone conversation with Alston as follows: Yes, Mr. David Alston called me at my office just around nine o'clock and asked me if I heard what was going on down the comer, meaning the ILA union hall, and I said I certainly had and I would like to know why gangs properly ordered had not reported for work. He said the men were disgusted with Old Dominion and saying they were the Company that has not paid them for handling of oil lines and wanted to know if they were going to be paid and I told him we cer- tainly were not going to pay them, we were not engaged in the handling of bulk oil and we didn't intend to get involved in it and we were not going to pay for doing it and I said we would like to know on what basis the ILA is refusing to send men down. This ship didn't carry any oil. They were being penalized for not being able to work. He said the men would not work for someone who would not pay them and he said he couldn't tell me when I would get any." About 10:30 that morning Raleigh authorized Old Dominion to pay the gang which had worked the oil hoses on the Havskar under protest. This authorization was promptly reported to Alston. io These minutes kept by an employee of the Association would indicate that no agree- ment was reached between the parties as the minutes end with the rather remarkable statement made by an association representative to the effect that loading liquid cargo on board ship "is definitely not deep sea work." No determination of this conflict is necessary as the matter is immaterial . The minutes do show that the Association refused to arbitrate the dispute. u On this record the testimony of Hall and Garris as to their conversations with Alston remained uncontroverted because, despite the long recess granted , Alston failed to appear and testify . Their testimony is credited. 896 DECISIONS OF NATIONAL LABOR RELATIONS BOARD At 1 p.m. the two ship gangs, missing in the morning , reported to the Waldeck for work. At the hearing Respondents made no effort to prove either that members of those two gangs had been ill that morning or had miraculously recovered by 1 P.M. As previously noted, on April 9, 1964 , the Association by its attorney filed unfair labor practice charges of violations of Section 8(b)(4)(i ) and (ii)(B) against ILA and Local 1248 based upon the facts heretofore found . Subsequently the General Counsel sought an injunction from the appropriate Federal district court. The court refused to issue the requested injunction possibly, from the opening statement of Respondent's counsel at the present hearing, upon the assurance of Respondents that they would maintain the status quo pending the Board determination of the instant matter. Since that time bulk oil has been loaded upon ocean -going vessels by employees of Norfolk Oil without objection or interference by Respondents. B. Conclusions The present complaint alleges that the Respondents violated Section 8(b)(4)(i) and (ii)(B) by coercing members of the Association and their employees in order to force them to cease doing business with Norfolk Oil. This section of the Act, originally enacted in 1947 and amended in 1959, in order to close up certain loop- holes, as Section 8(b)(4)(i) and (ii)(B), has always popularly been known as the "secondary boycott" section of the Act. Despite certain language contained therein which, if literally interpreted, would have outlawed all strikes, it is now firmly estab- lished by Board and judicial decisions that Section 8(b) (4) (i) and (ii) (B) was intended to apply only to "secondary" activities engaged in by unions. As so inter- preted, Section 8(b) (4) (i) and (ii) (B) stripped down to essentials makes it an unfair labor practice for a union to bring pressure by strikes or threats against employers with whom the union has no dispute with "an object" of forcing these neutral third party (secondary) employers "to cease doing business" with the employer with whom the union does have a labor dispute, in an effort through such economic pres- sure from the secondary employers to force the latter (primary) employer to capitu- late to the union's demands in the existing dispute between them. Thus, there are three essential elements in an 8(b) (4) (i) and (ii) (B) violation: (1) union action, (2) against secondary employers, (3) for an illegal object, to wit, to force the primary employer through economic force exerted by the secondary employees to capitulate to the union demands in the existing dispute. As simple as this may sound, there still remain some few problems. Of these the question regarding union action is probably the easiest because the cases, of which there are many, indicate that a wink, a nod, or even a raised eyebrow is sufficient to create union responsibility. As for the question of who is primary and who is second- ary, the Board through the years has formulated innumerable tests, definitions, and criteria by which the one can be distinguished from the other-only to abandon or modify these tests as new cases arose. The test currently in vogue seems to be that the primary employer is the employer having the authority and capability to resolve the existing dispute. The illegal object also presents problems even though the courts have now established the principle that the phrase "to cease doing business" must be an "object" of the action taken by the union and not just the natural and normal "effect" of such action because, if it were otherwise, these words would have outlawed even primary strikes which would be contrary to the proviso contained in clause (B) providing that nothing therein was to be construed to make primary strikes or picket- ing unlawful. The courts have thus recognized the fact that one normal and natural effect of any strike, even a primary strike, is some cessation of business. In the instant case the General Counsel has presented evidence which proved that Respondents, and each of them, definitely took action against the Association and/or its individual members in the form of threats of strike and/or refusals to supply men in accordance with the collective-bargaining agreement between Respondent and the Association and its members. The proof showed, and I find, that ILA and Local 1248 did in fact threaten "trouble" for the port and to "knock off" the longshoremen working the American Corsair, either explicitly or by "inference," and, in addition, were responsible for the failure of two gangs to appear for work on the Waldeck as ordered from and con- firmed by ILA. In other words General Counsel proved the first element of a viola- tion : union action. As to the second element of a violation, General Counsel, in his complaint, at the hearing and in his brief, designated Norfolk Oil to the role of the primary employer, LOCAL 1248 , INT'L LONGSHOREMEN'S ASSOCIATION 897 thus automatically delegating to the Association and its members the role of the sec- ondary employers. These assignments were made by the General Counsel unilater- ally and, unhappily, without explanation as to the rationale behind such designations. Although these assignments of positions make the finding of a violation here simple indeed, their validity and accuracy must be questioned. The facts show, and the parties all agree, that a labor dispute between Respond- ents and Association members arose at pier L in Norfolk on March 7, 1964, when Respondents laid claim to the right to work the oil cargo about to be loaded onto the American Corsair and continued thereafter through the events upon the Waldeck. In each instance Respondents made their claim to the oil cargo work to the associa- tion member responsible for the loading of the vessel basing their claim thereto upon paragraph I of the existing collective -bargaining agreement between themselves and those same association members. As noted, paragraph 1 of that collective -bargaining agreement states in pertinent part as follows: 1. The ILA shall have . . . all work of rigging and unrigging of cargo and passenger vessels and the loading and discharging of their cargoes , except vessels loading at coal piers, ....12 The threats and failure to refer gangs of longshoremen by ILA found above were all directed at these same association members and grew out of the exact same prob- lem: the alleged violation of this work assignment clause in the rigging and the loading work on oil cargoes . Quite obviously, therefore, the principals in the dis- pute which grew out of the terms of the collective -bargaining agreement between the parties were the ILA and these association members. In view of the above -quoted work assignment clause, it cannot be said that Respondents ' claim was either unrea- sonable, baseless, or frivolous . The dispute here is direct and immediate between Respondents and the association members. On the other hand , while it is true that the employees of Norfolk Oil were actually engaged in handling the disputed work at pier L when the dispute involved here arose, Norfolk Oil still seems to be the innocent bystander involved and enmeshed in this dispute only by reason of circumstances beyond its control. Norfolk Oil was doing no business with the shipping companies or their agents, the association members, or with Respondents . Norfolk Oil's business was exclu- sively with Rath Packing Company and Darling & Co ., the owners and the shippers of the oil . Rath and Darling, in turn, were doing business with the shipping com- panies and the association members in arranging for the transportation of their oil under FIO (free in and out) contracts of carriage with them dated February 24 and January 27, 1964, respectively . It was also Rath and Darling who then arranged with Norfolk Oil to store and thereafter load the oil into the vessels as per said FIO contracts, which Norfolk Oil was attempting to do as the agents of Rath and Darling when the instant dispute arose . Hence legally Norfolk Oil was several steps removed from the actual dispute involved here. Thus Norfolk Oil appears to be a third party involved in the dispute by pure chance. General Counsel 's designation of Norfolk Oil as the "primary employer" here may well have been based upon certain theories advanced at the hearing by the witness Pentecost speaking in one or all of his numerous capacities . This witness advanced three ideas : ( 1) As oil cargoes are not specifically mentioned in the collective- bargaining agreement, such oil cargoes are not covered thereby; (2) as Norfolk Oil had been loading such bulk oil cargoes for 10 to 12 years at pier L to the knowledge of Respondents , Respondents had waived their rights to claim the work on such car- goes; and (3) as oil cargoes are transported under FIO contracts , i.e., the loading and unloading of such cargoes being at the expense of and with the facilities of the shipper, the association members had no work in regard to these cargoes which could be assigned to Respondents under the collective agreement. The first point amounts to no more than a poor legal interpretation of the collec- tive agreement. The collective agreement in paragraph 1 thereof speaks of "cargoes" in general and thereafter contains certain specific exemptions therefrom, both in that same paragraph 1 and elsewhere throughout the agreement. If bulk oil cargoes were intended to be exempt from the work assignment clause , that exemption would have to be specifically noted . Furthermore the record proves, without dispute, that for the past 4 or 5 years ILA gangs (although from a different local) have been rigging "No contention is made that pier L is a coal pier 789-730-46-vol. 152-58 898 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and loading bulk liquid cargoes at Newport News upon U.S. Line ships under this same association contract. If this work assignment clause was applicable to bulk liquid cargoes at Newport News, it was equally applicable to oil cargoes in Norfolk.13 As to the second point raised, ILA disclaimed knowledge of these bulk oil cargoes at pier L until shortly before the Corsair incident. Although there is no direct evi- dence to the contrary, I must admit to a very healthy skepticism in regard to that claim. However, past waivers at pier L appear to have been based upon the mutual assent of both parties from which either party was at liberty to withdraw at any time as to any future waiver of such rights This is particularly so in the light of recent Board cases, now enjoying Supreme Court sanction,'4 that whenever an employer seeks to withdraw or withhold, by subcontract or otherwise, work assigned to the appropriate unit, that employer must consult and bargain with the representative of the unit employees affected in relation thereto. The main point General Counsel must have relied upon in making his designa- tions is the last contention raised; namely, that under FIO carriage contracts the shipper has complete and absolute control over the loading and unloading of bulk liquid cargoes with the necessary result that the association members have no work in regard to such cargoes which they can assign under the collective agreement to ILA. In other words, as applied here, Norfolk Oil, as agent of Rath and of Darling, had sole control over the loading of the oil cargoes at pier L leaving nothing for U.S. Lines, Old Dominion, or other association members involved to assign to ILA under the collective-bargaining agreement. Under the "right of control" test, men- tioned supra, this would seem to qualify Norfolk Oil as the primary employer as the General Counsel here contends. This claim is, however, more superficial than real. It is axiomatic that shipping companies must necessarily have the ultimate control not only over their vessels but also over the handling of cargo thereon If, for example, shipowners were suddenly to decide to use these same FIO contracts for the carriage of general cargo, many a ship would leave port in an unseaworthy condition, if indeed the vessel ever man- aged to clear dockside. With oil cargoes, however, shipping companies can use FIO contracts because they know exactly where that cargo will be stowed and that its ships will remain seaworthy. But the shippers' right of control over the loading of oil cargoes still stems ultimately from the shipping company which granted this shipper the right to load and unload oil cargoes among the terms of the FIO carriage agreement. With- out that provision in the contracts the shipper would have no right of control at all Hence, the ultimate right of control over these oil cargoes remains in the shipping company and their agents, the association members So under the "right of control" test, the association members-not Rath, Darling, or Norfolk Oil-remain the "pri- mary" employers. In effect, by making this FIO contract argument, the Association and its members are really pleading that they have disabled themselves from having any capacity to fulfill their obligations to ILA under their existing collective-bargaining agreement by subsequently entering into these FIO contracts with a shipper. The principle of estoppel would be applicable here. It may be that one of the effects of the dispute in the instant case will be that some changes may have to be made in the FIO contracts dealing with oil cargoes between the shipping companies and the shipper. If so, this will be an "effect" result- ing from a primary strike. It was not "an object" of Respondent's actions which was only to force the shipping companies and their agents, members of the Associa- tion, to abide by the work assignment clause of their collective-bargaining agreement with Respondents. We now reach the final element required in order to find a violation of Section 8(b)(4)(i) and (ii)(B): the illegal object. On this it is clear, and I find, that the actions which Respondents took against the association members were directed at and were for the purpose of requiring said association members to observe the work assignment provisions of their collective-bargaining agreement with Respondents, a legitimate and legal objective of a primary strike. '-Pentecost sought to distinguish this Newport News operation from that of Nor- folk 011 on the grounds that at Newport News the bulk liquid cargo was "liquid latex," not oil , and that it was a gravity feed operation rather than steam pumping. The operation at Newport News was thus , in Pentecost's words , "a bastard arrangement " These are distinctions without a difference. M Pibreboard Paper Products Corp. v. N.LR.B., 57 LRRM 2609 [ 379 U.S. 203]. COLUMBIA PICTURES CORPORATION 899 Hence I have found that the actions of the Respondents complained of herein were directed against primary employers for a legitimate and legal purpose. Thus there can be no violation of Section 8(b)(4)(i)(ii)(B) and, therefore, I will recommend that this complaint be dismissed in toto. As a matter of fact, the Board has already decided the law applicable to the instant case when it decided International Longshoremen's and Warehousemen's Local Union No. 19, Independent, et al. (Pacific Maritime Association),15 and adopted the very able opinion of Trial Examiner William E. Spencer, with which I am in complete accord. CONCLUSIONS OF LAW 1. Hampton Roads Maritime Association, Inc., its employer-members: U.S. Lines Company, Raleigh, Southern, and Old Dominion, are each employers within the meaning of Section 2(2) of the Act, and are engaged in commerce within the mean- ing of Section 2(6) and (7) of the Act. 2. Respondent International Longshoremen's Association and its Local 1248 are each of them labor organizations within the meaning of Section 2(5) of the Act. 3. 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. 15 137 NLRB 119. Columbia Pictures Corporation and American Federation of Guards, Local No. 1 and Office Employes International Union, Local No. 174, AFL-CIO. Case No. 21-RC-279. May 26, 1965 DECISION AND ORDER CLARIFYING UNITS On July 17, 1964, the Employer filed a motion for clarification, requesting the National Labor Relations Board to find that the "two individuals employed at the front desk" should be included in the unit represented by the American Federation of Guards, Local No. 1.1 The Office Employes International Union, Local No. 174, AFL-CIO,2 opposed the motion on the grounds that the employees in question did not perform guard duties and have been properly represented by the. Office Employes Union or its predecessor union since 1940. The Guards Union supported the motion. On November 17, 1964, the Board issued an Order in which it directed that the issues raised be resolved at the hearing, and referred the proceeding to the Regional Director for Region 21 for such pur- pose. On February 4, 1965, a hearing was held before Hearing Officer Orville S. Johnson. All parties participated and also submitted briefs. Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, as amended, the Board has delegated its powers in con- 'Hereinafter referred to as the Guards Union. 2 Hereinafter referred to as the Office Employes Union. 152 NLRB No. 90.