United Steelworkers of America

UNITED STEELWORKERS OF AMERICA 425 United Steelworkers of America, AFL-CIO and Georgetown Steel Corporation . Case 11-CC-71 May 19, 1971 DECISION AND ORDER BY MEMBERS FANNING, BROWN, AND JENKINS On December 2, 1970, Trial Examiner Melvin J. Welles issued his Decision in the above-entitled pro- ceeding, finding that the Respondent had not engaged in certain unfair labor practices alleged in the com- plaint and recommending that the complaint be dis- missed in its entirety, as set forth in the attached Trial Examiner's Decision. Thereafter, the General Counsel filed exceptions to the Trial Examiner's Decision and a supporting brief. The General Counsel also filed a motion requesting permission to file supplemental memorandum to General Counsel's brief in support of exceptions and a supplemental memorandum. The Re- spondent filed a reply brief to the General Counsel's supplemental memorandum. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its powers in connection with this case to a three-member panel. The Board has reviewed the rulings of the Trial Ex- aminer made at the hearing and finds that no prejudi- cial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Ex- aminer's Decision, the exceptions and briefs, the mo- tion,' and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. ORDER Pursuant to Section 10(c) of the National Labor Re- lations Act, as amended, the National Labor Relations Board adopts as its Order the recommended Order of the Trial Examiner and hereby orders that the com- plaint herein be, and it hereby is, dismissed in its en- tirety. ' There being no objection by the Respondent to the General Counsel's motion we hereby grant the motion We have duly considered the General Counsel's supplemental memorandum and the Respondent's reply thereto in reaching our decision herein TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE MELVIN J. WELLES, Trial Examiner: This case, before me on a complaint issued September 11, and amended September 21, 1970, based on charges filed August 21 and 23, 1970, was heard at Myrtle Beach, South Carolina, on September 30 and October 1, 1970. The complaint alleged that Respondent vi- olated Section 8(b)(4)(i) and (ii)(B) of the Act. Respondent's 190 NLRB No. 80 answer denied that it violated the Act. Counsel for the Gen- eral Counsel and for the Respondent filed briefs. Upon the entire record in the case, including my observa- tions of the demeanor of the witnesses, I make the following: FINDINGS OF FACT I THE BUSINESS OF THE EMPLOYER Georgetown Steel Corporation, a Delaware corporation, has its principal office and place of business at Georgetown, South Carolina, where it is engaged in the manufacture of steel. During the past year, it both received and shipped goods valued at more than $50,000 from and to points outside the State of South Carolina I find, as the complaint alleges and all parties agree, that Georgetown Steel Corporation is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II THE LABOR ORGANIZATION INVOLVED Respondent is a labor organization within the meaning of Section 2(5) of the Act. III THE ALLEGED UNFAIR LABOR PRACTICES A. The Facts Georgetown Steel Corporation began operations July 1969. Since December 1969 it has been shipping its products over- seas from Georgetown, South Carolina. Until May 1970, these products were delivered from the plant to the pier by Phillips Trucking Company, a common carrier, then loaded by longshoremen employed by Palmetto Stevedoring Com- pany onto the ships. In April 1970, Georgetown Steel decided to institute an arrangement on an experimental basis whereby Phillips would deliver the steel to an open storage area on the Georgetown Port Authority premises in anticipation of the arrival of a ship, in order to expedite loading. Normally, Port Authority personnel and equipment would unload the trucks in such an arrangement, then reload the trucks for transport to the ship when it arrived. Port Authority Superintendent William Porter informed the Company's shipping foreman, Isaac Burch, that he had neither the men nor equipment to handle such work but would requisition them Parsons, Presi- dent of Longshoremen's Local No. 1751, was asked by Burch if longshoremen could do this work, and he, too, said that his men did not have the necessary equipment. On about May 9, Georgetown began using the new method, shipping the steel to the Port Authority on Phillips' trucks, then using its own personnel and leased equipment to unload the steel from the trucks, reload the steel on the trucks or on rail cars for delivery to shipside when a ship arrived, and perform inciden- tal repair, marking, and banding work at the premises. This method was used in the loading of six ships from May to August, as a supplement to the regularly used method of delivering the steel directly to the ship in Phillips' trucks. These six ships were also loaded in part by the regular method, and other ships, about nine in number, were totally loaded by the regular method during this period. About August 15, 1970, Respondent struck Georgetown Steel Company About August 21, Respondent picketed the entrances to the Port Authority premises with signs reading "This is a strike against Georgetown Steel. Unfair Labor Practices." President Jansen of Georgetown Steel then or- dered that the Georgetown Steel employees and rented equip- ment be withdrawn from the Port Authority premises The Company notified Respondent and the NLRB Regional Office by telegram that this had been done, and that the Company did not plan to have any equipment or personnel at the premises thereafter The pickets were then withdrawn. 426 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The next day, August 22, the Company arranged with Pal- metto to complete the job that had been performed up to then by company employees. President Jansen testified that "the Union's action [that is, its picketing August 20 and 21] precipitated our removing all equipment and personnel from the dock site area." When asked whether he "would have finished the job using [his] own employees and equipment, which [he] had been using up to August 21, but for the Union's picketing," Jansen replied "This is correct." On August 23, 1970, picketing ceased as a result of a temporary restraining order issued by District Judge Simons. On September 1, Judge Simons granted a temporary injunc- tion. On October 13, the Fourth Circuit affirmed the injunc- tion (75 LRRM 2524), in a per curtain opinion which did not discuss the legal issues or the merits other than to hold that the district court's finding of "reasonable cause" was not "clearly erroneous", and that there was no "abuse of discre- tion in granting the injunction." B Discussion and Conclusions The General Counsel contends that the picketing on and after August 21, 1970, violated 8(b)(4)(i) and (ii)(B) because the Company had "permanently" removed all its employees and equipment from the Port Authority premises by then, and the continued presence on the premises of the steel did not suffice to make the premises a "normal place of business" of the Company. The General Counsel distinguishes the Board's decision in Auburndale,' on the ground that here the storage of steel was temporary, experimental, free,' sporadic, and of short duration, and the work performed by company employees was only an expedient until the Port Authority could supply men and equipment. Both at the hearing and in his brief to me, the General Counsel did not concede that the picketing at the Port Authority premises was legal until Georgetown Steel employees had been removed from the premises; the complaint, however, alleges only that picketing that occurred on and after August 22 (for 2 days) as unlawful. In a letter memorandum to the Fourth Circuit, the Board (by Assistant General Counsel Marcel Mallet-Prevost, on behalf of the Regional Director) stated that prior to August 21, while Georgetown Steel's employees were engaged in work at the pier, "the picketing at such time was presump- tively lawful." I agree with the General Counsel that such a statement is not conclusive as far as I, or the Board, am concerned. I do, however, regard the picketing before the Georgetown Steel employees were removed from the prem- ises as wholly primary, and, on the evidence both at the injunction proceeding and before me, as conforming to the Moore Dry Dock' criteria. Thus, my consideration of the legality of the post-August 21 picketing is predicated on the legality of the earlier picketing. United Steelworkers of America, 177 NLRB No 108 Except for a charge if steel was there for more than 30 days Sailors' Union of thePacifzcAFL (MooreDryDock Co), 92 NLRB 547, 549 The General Counsel , relying obviously on the argument of Respondent' before Judge Simons, in the injunction pro- ceeding, claims that the legality of the picketing "must be measured against the findings of Auburndale . . . "; that it "must stand or fall based on its [the Union's] conduct com- porting to the factual context of the Auburndale case." I am, however, concerned with the legality of Respondent's picket- ing, as measured against Board law, not a single case to which General Counsel would confine me, and that would be so even were Respondent now relying solely on Auburndale. In fact, in its brief to me Respondent does not even cite Auburn- dale. The General Counsel could not , of course, have known this, and cannot be faulted for arguing the applicability of Auburndale. In any event, I view Auburndale as wholly inapposite to the picketing that occurred between August 22 and 24. It would have relevance and significance had Georgetown Steel permanently abandoned having the particular steel stored there at that time processed for loading on the ship, or had permanently, for reasons unrelated to the strike or picketing, changed its method of operations from having the work done by its own employees to having it done by an independent contractor. Here, however, as I have indicated, the work would have been done by Georgetown Steel employees, as President Jansen testified, but for the picketing by Respond- ent. If, at some future time, Georgetown Steel elected to store steel at the Port Authority premises, and have the loading and unloading of trucks performed by Port Authority person- nel or employees of a contractor such as Palmetto , then there would be a real question whether the Union could picket there; whether, as in Auburndale, the storage area was an integral part of the Company's production process. Here we have what in my view is a hornbook example of "struck work." N.L.R.B. v. Business Machines and Office Appliance Mechanics Conference Board, Local 459, 228 F.2d 553 (C.A. 2). But for the strike and picketing the work in question would concededly have been performed by Georgetown Steel employees . It follows that the Union had the right to picket the employees who had taken over that work , provided, as was the case here, they took normal and reasonable safe- guards, this being a "common situs," to avoid enmeshing neutral employers in their dispute. That they observed the kind of safeguards the Board requires in these circumstances is not questioned . In my view this case is squarely controlled by the Board's decision in Brewery Workers Union No. 8, International Union of United Brewery, Flour, Cereal, Soft Drink & Distillery Workers of America, AFL-CIO (Bert F. Williams, Inc.), 148 NLRB 728, 731-733. As I am persuaded that Respondent has not violated Section 8(b)(4)(i) and (ii)(B), I issue the following recommended: ORDER The complaint is dismissed in its entirety. ' Respondent took the position there that the Board's Auburndale deci- sion established the legality of its picketing