Sioux City and New Orleans Barge Lines, Inc.

382 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Sioux City and New Orleans Barge Lines, Inc. and Marine Officers Association, Local 54, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Ameri- ca and Inland Boatmen's Union of the Seafarers International Union, Atlantic, Gulf, Lakes and Inland Waters District, AFL-CIO (IBU-AFL-CIO) Sioux City and New Orleans Barge Lines, Inc. and National Maritime Union of America, AFL-CIO (NMU), Petitioner. Cases 14-CA-5943, 14-CA-5943-2, and 14-RC-6549 September 28, 1971 DECISION AND ORDER AND DIRECTION OF SECOND ELECTION between October 13 and October 30, 1970, in Case 14-RC-6549 be, and it hereby is, set aside. [Direction of Second Election' omitted from publication.] In order to assure that all eligible voters may have the opportunity to be informed of the issues in the exercise of their statutory right to vote, all parties to the election should have access to a list of voters and their addresses which may be used to communicate with them Excelsior Underwear Inc, 156 NLRB 1236, N L R B v Wyman-Gordon Co, 394 U.S 759 Accordingly, it is hereby directed that an election ehgiblity list, containing the names and addresses of all the eligible voters, must be filed by the Employer with the Regional Director for Region 14 within 7 days after the date of issuance of the Notice of Second Election by the Regional Director The Regional Director shall make the list available to all parties to the election No extension of time to file this list shall be granted by the Regional Director except in extraordinary circumstances. Failure to comply with this requirement shall be grounds for setting aside the election whenever proper objections are filed. TRIAL EXAMINER'S DECISION BY CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY On May 6, 1971, Trial Examiner Samuel Ross issued his Decision in the above-entitled proceeding, finding that Respondent had engaged in and were engaging in certain unfair labor practices, and recommending that it cease and desist therefrom and take certain affirmative action , as set forth in the attached Trial Examiner's Decision, and ordered that a previous election be set aside and a new election be ordered. Thereafter, Respondent filed exceptions to the Trial Examiner's Decision and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this proceeding to a three- member panel. 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 Trial Examiner's Decision, the exceptions, and brief, and the entire record in this proceeding, and hereby adopts the findings , conclusions, and recommenda- tions of the Trial Examiner. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Trial Examiner and hereby orders that Respondent, Sioux City and New Orleans Barge Lines, Inc., St. Louis, Missouri, its officers, agents, successors, and assigns shall take the action set forth in the Trial Examiner's recommended Order. IT IS ALSO FURTHER ORDERED that the election held STATEMENT OF THE CASE SAMUEL Ross, Trial Examiner : Upon charges filed on November 13, 1970, by Marine Officers Association, Local 54, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (herein called MOA), and on December 28, 1970, by Inland Boatmen's Union of the Seafarers International Union, Atlantic, Gulf, Lakes and Inland Waters District, AFL-CIO (herein called IBU), the General Counsel of the National Labor Relations Board issued a consolidated complaint on December 29, 1970, which alleges that Sioux City and New Orleans Barge Lines, Inc. (herein called the Respondent or the Company) had engaged in and is engaging in unfair labor practices within the meaning of Sections 8(a)(1) and 2(6) and (7) of the Act. More specifically, the consolidated complaint alleges that the Respondent interfered with , restrained, and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act, by refusing to permit representatives of IBU and MOA, during the period preceding a Board election, to have access on board the Company's towboats to the off duty employees who work and live thereon for extended periods of time . The Respondent filed an answer to the complaint which denies the commission of unfair labor practices. In Case 14-RC-6549, an election was conducted between October 13 and 30, 1970,1 pursuant to a stipulation for certification upon consent election , which resulted in I I votes for NMU, 17 for IBU, 17 for MOA, 56 against the participating labor organizations, and 5 challenged ballots. On November 5, 1970, IBU filed timely objections to conduct affecting the results of the election. On December 30, 1970, the Regional Director determined that a hearing on objections was necessary, and ordered that the hearing thereon be consolidated with the hearing in Cases 14-CA-5943 and 14-CA-5943-2. Pursuant to due notice a hearing on these consolidated I As indicated by the heading above, the representation case is based on the petition of National Maritime Union of America, AFL-CIO (NMU), herein called NMU IBU and MOA are intervenors therein 193 NLRB No. 55 SIOUX CITY & NEW ORLEANS BARGE LINES 383 cases was conducted before me at St. Louis, Missouri, on February 9, 1971. Upon the entire record, and my observation of the witnesses and their demeanor, and after due consideration of the briefs filed on behalf of the General Counsel and the Company, I make the following: FINDINGS OF FACT 1. COMMERCE The Respondent Company is an Iowa corporation whose principal office and place of business is located in St. Louis, Missouri. At all times material herein, the Company has been engaged in the business of operating towboats and transporting commodities by barge on the inland water- ways of the United States between various of the States. During the year ending November 30, 1970, a representa- tive period, the Company received revenues in excess of $50,000 for furnishing such interstate transportation services. On these admitted facts, I find that the Respon- dent is engaged in commerce and in operations affecting commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATIONS INVOLVED It is not disputed, and I find , that at all times material herein MOA, IBU, and NMU have been labor organiza- tions within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The Issues Presented The issue presented by the consolidated complaint is whether the Respondent, by refusing to permit representa- tives of IBU and MOA to board its towboats during the period preceding the Board election, and by thus prevent- ing access by such union representatives to the employees who work and live on the towboats for extended periods of time, engaged in unfair labor practices within the meaning of Section 8(a)(I). The issue presented in the representation case is whether the denial to the Unions of access to the employees on the Company's towboats requires the setting aside of the results of the election and the ordering of a rerun election. B. Background Findings2 The Respondent Company operates a fleet of 14 towboats which push barges, generally loaded with commodities but sometimes empty, on the Mississippi, the Missouri, the Tennessee, the Illinois, and the Ohio Rivers. The Company's principal operations are between New Orleans and points along the Missouri River, but at times the Company has extensive operations along the other named inland waterways. Under normal operating condi- tions, the Company's towboats are in continuous motion and stop only for the short time periods required to go through a lock, to refuel on the Missouri River,3 or because of mechanical failure or weather conditions. The employees who operate the Company's towboats live aboard the boats while the voyages are in progress, and normally get off the boats only at the termination of their work cycles of from 30 to 45 days as described hereinafter.4 On September 3, 1970,5 NMU filed a petition for certification as the collective-bargaining representative of certain of the Company's employees who work on its towboats, and thereafter MOA and IBU intervened in the said proceeding. On September 17, the three unions and the Company executed a stipulation for certification upon consent election, approved by the Regional Director on September 18, which provided that an election would be conducted among the Company's employees in the following appropriate collective-bargaining unit: All mates, relief mates, deckhands, oilers and cooks employed on all towboats owned, operated or chartered bareboats by the Employer, EXCLUDING employees employed by the Employer on dredges, tenders, shuttleboats and other small vessels used by the Employer for the performance of harbor work; shore- based employees, captains, relief captains, pilots, chief engineers, relief engineers, assistant engineers ; office clerical and professional employees, guards and super- visors as defined in the Act. According to the eligibility list furnished by the Company prior to the Board election, there were 118 employees in the appropriate collective-bargaining unit whose places of residence when not on the Company's boats, are scattered through 15 of the States of the United States .6 However, not all of these employees work on the Company's towboats at the same time. Thus, since under the Company's employ- ment policy, its towboat employees accumulate one full day of leave with pay for each full day of work,7 at any given time some are on paid leave status. The established procedure is for employees to work for a period of 45 consecutive days without taking leave.8 Thus, during the period between the filing of NMU's representation petition on September 3, and the election in October, 76 of the Company's 118 eligible employees "were actually working" on its boats.9 2 The findings in this and subsequent sections of this decision are largely based on undisputed testimony and/or documentary evidence 3 Refueling on other rivers generally is done while the towboat is proceeding with its voyage 4 At stops for fuel or to go through locks, the captain may permit employees to go off the boats for short periods 5 All dates hereafter refer to 1970 unless otherwise noted. 6 According to the Company 's eligibility list (G C . Exh 8), 22 of the employees lived in Illinois, 20 in Missouri , 19 in Kentucky, 18 in Arkansas , II in Tennessee , 7 each in Louisiana and Mississippi, 5 in Oklahoma , 2 each in Iowa and Nebraska , and I each in Alabama, Florida, Kansas, Ohio , and Texas 7 A full day consists of working two "watches" of 6 hours each with nonwork intervals of 6 hours between the work periods The captain's watches are from 6 a in to 12 noon, and from 6 p.m to 12 midnight The "after" watches are from 12 midnight to 6 a m and from 12 noon to 6 p.m. Employees work one or the other of these schedules. 9 In some cases the employees work fewer consecutive days but generally in excess of 30 days They also are permitted to woik for longer consecutive periods than 45 days if they so desire, and many do so to build up paid leave time for the winter months when the Company operates fewer towboats 9 The quotes are from the credited testimony of Company President E. Thomas Drennon 384 DECISIONS OF NATIONAL LABOR RELATIONS BOARD C. The Request of IBU for Permission To Board the Company's Towboats Under the terms of the stipulation for certification upon consent election, the election was scheduled to be conducted on each of the Company's towboats at various ports during the period from October 13 through 19, and thereafter by mail, with all ballots to be opened and counted in the Regional Office on October 30. The stipulation contained the usual printed provision requiring the Company to furnish the Regional Office with a list of the eligible voters, and it also specifically required the Company to furnish a further list on October 3 of the employees in the unit who would be off duty and not on board any of the Company's towboats during the period between October 13 through 19, and to specify who would be on board each of the Company's towboats. On September 18, following the execution of the aforedescribed stipulation, Barry J. Levine, IBU's counsel, requested the Company by letter to grant permission for IBU's representatives to board the Company's towboats "for the purpose of having access to the crew members aboard such vessels." 10 On September 22, Respondent's counsel, Milton 0 Talent, replied that although "it [the Company] recognizes that under certain circumstances unions are entitled to reasonable access to employees to conduct an organizational campaign," the Company could not understand how IBU's request was appropriate "at the present time and under the present circumstances." 11 On September 23, Levine replied to Talent and cited Interlake Steamship Co., a Division of Pickands Mather & Co., 174 NLRB No. 55, as the authority for his request to board the boats so that IBU might "have access to the crew members thereon." The letter warned that a denial of the request would "be utilized by our client as grounds for objecting to the forthcoming NLRB election." 12 Talent in turn replied on September 24 that the Interlake case was "distinguishable" and inapposite to the Compa- ny's operations in that "our boats do not put into port at any particular points," that they picked up and dropped off "barges in midstream via servicing tugs," or at the most "at private docks inaccessible to members of the public," where they remained "only long enough to pick up or drop the barges," and that therefore arrangements for boarding the boats "could not be made without undue and an unreasonable interference with our operations." The letter further stated that "our employees are aboard our boats only a short period of time and they are accessible elsewhere." Finally, Talent offered to supply IBU with the names and home addresses of the Company's employees, with the dates when they would be on and off the boats, and where "they might disembark or come aboard." Talent further suggested that IBU "coordinate" its request with NMU which had asked for "equal" privileges, and with MOA.13 Levine replied on September 25 that IBU was familiar 10 G C Exh 2 11 G C. Exh 3 12 G C Exh 4 13 G C Exh 5 11 G C Exh 6 15 The list so mailed is Exh 3 attached to G C Exh l-G with the nature of the Company's operations, that IBU "services many boats in transit on the inland waterways and had at its disposal boats which enable its representa- tives to board said boats in midstream," that IBU accomplishes such "servicing" without disturbing the operations of the employer involved, that the boarding privileges which IBU sought were not intended to and would not interfere with the operations of the Company's boats, and that it had no means to contact the employees it sought to represent other than by access to them on the boats. Levine declined Talent's suggestion that IBU "coordinate" its request for boarding privileges with NMU and MOA, and he requested Talent to supply the offered further information regarding the home addresses of the Company's employees, and when and where they were expected to "disembark or come aboard." 14 On October 6, Talent mailed the further list containing such information to Levine.15 D. The Request of MOA for Permission To Board the Company's Vessel About September 29, John R. Harruff, secretary-treasur- er of MOA Local 45, telephoned Company President Drennan and requested permission for MOA's representa- tives to board the Company's vessels for personal contacts with employees at locks, fuel docks, or during harbor operations. Harruff told Drennon that his representative wanted to contact only employees "who were off watch," that MOA would supply its "own transportation," and that it would not interfere with the Company's operations "in any way." Harruff also told Drennan that he would furnish the Company with liability insurance to hold it harmless against any possible injury that might happen to any of MOA's representatives, and would "not hold the Company liable in any way." Drennon replied that since he had denied the right to IBU and NMU, he could not grant permission to MOA to board the vessels without subjecting the Respondent to charges of unfair labor practices. Drennan further stated that if he allowed MOA to do this, it would not be long before women and children also would be boarding the boats, and he wanted no part of that.16 E. IBU's Efforts To Contact Respondent's Employees IBU assigned a staff of 10 organizers to the campaign of organizing support for it at the election. These organizers met at the union's St. Louis office, and upon receipt of the Company's eligibility list in the late afternoon of Friday, September 25, about five of IBU's organizers commenced attempts to reach the employees by long distance telephone calls to their places of residence.17 These telephonic efforts to determine whether the employees were at home or at work aboard the Company's boats continued throughout that weekend, but succeeded in reaching only the homes of 20 of the 118 listed employees. Moreover, some of these contacts were not with the employees personally, but with 16 The findings above are based on Harruff's uncontroverted and credited testimony. 17 The remainder worked at cutting up area maps and making up index cards containing the names and addresses of Respondent 's employees in the appropriate unit SIOUX CITY & NEW ORLEANS BARGE LINES 385 their wives or other relatives. The organizers then decided that further telephonic campaigning would not be fruitful, and accordingly some of the organizers boarded a speed boat on Sunday night (September 27), and for the next few days they sought to contact the Respondent's boats on the rivers in the St. Louis area. By this method, they succeeded in approaching three of the Company's towboats, and in each instance, without attempting to board the boat, they threw union literature aboard into the arms of whoever was on the deck. They also tried to carry on conversations with such crewmembers, but "almost to the man," the latter "disappeared" from view when they learned that the speakers were union representatives. The IBU organizers then decided to attempt to contact the Company's employees at their home addresses, and to that end, they divided up the names on the eligibility list according to geographical area, and each organizer was assigned to cover all employees located in a specific area. However, the ensuing visits to the employees' homes resulted in relatively few contacts with employees because the latter were not home and assertedly were working on the river.18 On October 5, in accordance with its stipulation in the representation case, the Respondent furnished a further list containing the names of 34 employees who were expected to be off duty between October 13 and 19. In addition, on October 6, the Respondent's counsel Talent mailed to IBU's counsel Levine the previously noted list of employees which disclosed their home addresses, the names of the vessels on which they worked, the dates when they would go on or get off said vessels, and the places where they were expected to disembark or go aboard. Upon receipt of these lists, IBU's organizers again visited homes of employees who were listed to be off duty. According to Peter W. Drewes, an IBU business agent, his renewed efforts at home contacts resulted in four reports from wives or other relatives at the employees' homes that the employees listed as off duty were still on the boats. All in all, notwithstanding its extensive campaign to contact employees in person,19 IBU was successful in making "eyeball to eyeball contacts" with only 35 of the 118 employees in the unit. These physical contacts included some made at home, some made alongside a company boat, and some at a dock in Kansas City and at the Omaha terminal.20 F. The Preelection Campaigns of NMU and MOA The record does not disclose that NMU made any efforts to personally contact the Company's employees either at their homes or elsewhere. However, NMU mailed union literature both to the homes of the Company's employees and to their boats. As previously noted, about September 29, MOA's is Whether this was true or not, the organizers were so told at the places of residence by the employees' wives or other relatives 19 IBU also sent two "mailings" to the homes of employees, and as previously noted, it also threw union literature aboard some of Respondent's boats 20 The findings above are based on the credited and uncontroverted testimony of Peter W Drewes 21 Before that request was made and rejected, MOA's representatives had boarded some of the Company's boats at Kansas City during fueling business agent, Harruff, requested the Respondent to permit MOA's representatives to board the Company's boats to speak to its off-duty employees, but his request was denied by Company President Drennan.21 The record does not disclose what efforts, if any, MOA made thereafter to contact the Company's employees in person. However, it does disclose that MOA mailed union literature to the Company's boats.22 G. Conclusions in Respect to the Respondent's Denial of Union Access to its Employees Aboard its Boats 1. The Respondent's contentions As noted at the outset, the issue presented in this case is whether the Respondent violated Section 8(a)(1) of the Act by denying access to its boats by IBU and MOA for the purpose of communicating with off-duty resident employ- ees concerning organizational matters, and/or whether the results of the previous election which the unions lost should be set aside and a new election ordered because of the denial of such access to the Company's employees. The Respondent contends that it "had no duty" to make its boats accessible to nonemployee organizers for solicitation and union discussion because: (a) the unions had other adequate means of communicating with its employees; (b) permitting such access would subject the Company to liability for injuries that the organizers might sustain while getting on or off its moving towboats, and "would undoubtedly result in interference with operations"; and (c) it was not required by the terms of the stipulation for certification upon consent election. 2. The applicable principles The principles applicable to whether an employer is required to permit nonemployee union organizers to enter onto his property to speak to his employees are by now well established. The Supreme Court has long recognized that the "opportunity to organize" without "employer interfer- ence" is a fundamental statutory objective.23 However, the right to pursue organizational activity on company property is not absolute, and requires the "working out of an adjustment" between the right of an employer to control his property, and that of the employees to engage in self- organization.24 As a general rule, an employer cannot prohibit his employees from engaging in union discussion and solicitation on company property during nonworking time, absent a clear showing by the employer that "unusual circumstances" makes some limitation on that right necessary for the maintenance of production or discipline.25 However, the same considerations do not operations, but that practice apparently ended after Drennan, on about September 8 or 9, notified Harruff that it was contrary to company policy to permit people to board its boats 22 On one occasion in Memphis, Tennessee, Harruff observed union literature being thrown overboard by either a captain or a mate of the Respondent 23 Republic Aviation Corporation v N L R. B, 324 U S 793, 798. 24 Id at 797-798 25 Id at 804. 386 DECISIONS OF NATIONAL LABOR RELATIONS BOARD apply to nonemployee organizers. Thus, in N.L.R B. v. Bacock & Wilcox Company,26 the Supreme Court said in this regard: But no such obligation is owed to non-employee organizers . Their access to company property is governed by a different consideration. The right of self- organization depends in some measure on the ability of employees to learn the advantages of self-organization from others. Consequently, if the location of a plant and the living quarters of the employees places the employees beyond the reach of reasonable union efforts to communicate with them, the employer must allow the union to approach his employees on his property. The importance of affording union organizers opportuni- ty to contact employees on company property if reasonable access to them is otherwise difficult or impracticable is self- evident. As the Board has noted, experience demonstrates that "self-organization can be and is severely hampered by lack of assistance from trained, full-time organizers."27 And, in Thomas v. Collins,28 the Supreme Court said in this regard: The guarantees [of the Act] include the workers' right to organize freely for collective bargaining. . . . It include[s] their right fully and freely to discuss and be informed concerning [their] choice [of representatives]. ... Necessarily correlative was the right of the union, its members and officials . . . to discuss with and inform the employees concerning matters involved in their choice. In accordance with the foregoing general principles, it has long been recognized by the Board, with court approval, that notwithstanding the right of an owner to control access to his property, a denial of access by nonemployee organizers to employees on company owned property violates Section 8(a)(1) of the Act, and/or is grounds for setting aside the results of an election, when alternative effective means of direct communication with employees are not available, and no detriment to the employer by such access is shown.29 We look then to the record to determine whether or not, in the light of the foregoing principles, the company "had a duty" to permit nonemployee organizers to have access to its employees on its towboats. 3. The inadequacy of other means of communication with the employees The Respondent's 118 employees in the unit involved in this case resided in a scattered 15 state area when not working on the Company's boats. For a substantial part of 26 351 U S 105, 112. 27 Marshall Field & Company, 98 NLRB 88, 97, In 21 28 323 U 5.516. 29 See, e.g., Weyerhaeuser Timber Company, 31 NLRB 258; W T. Carter and Brother, 90 NLRB 2020, Marshall Field & Company, 98 NLRB 88; N.L R B v Stowe Spinning Co, 336 U S 226, N L R B v Lake Superior Lumber Corp, 167 F.2d 147 (C A 7); Joseph Bancroft & Sons Co, 140 NLRB 1288, S & H Grossinger's, 156 NLRB 233, enfd as modified 372 F.2d 26 (C.A. 2), Interlake Steamship Co, a Division of Pickands Mather & Co, 174 NLRB No. 55 30 In this regard the Respondent urges that since its boats also were widely scattered on the various inland waterways , and since relatively few employees in the unit work on each boat, it would he just as difficult for the unions to contact employees on its boats as at their homes This the preelection period between the execution of the stipulation for certification upon consent election and the balloting, 76 of the 118 lived and worked on the boats. In combination, these factors rendered it virtually impossible, and obviously impractical, for the unions here involved to personally communicate with these employees via union meetings. Other than the Company's boats, the only other means of direct "eyeball to eyeball" communication with these employees was by visits to the homes of employees who were off duty, or at the docks where employees who were going on or off duty were expected to embark or disembark. But as noted above, although both of these methods were pursued by a staff of 10 IBU organizers, they succeeded in achieving actual face to face contacts with only 35 of Respondent's 118 employees. Thus, the denial of access to the employees on the boats relegated the unions to the use of the mails and the tossing aboard of union literature, as their principal method of contact with the bulk of the Respondent's employees. The Respondent contends that the unions had "adequate opportunity" to "proselyte" its employees via the mails, through their "advocates" who worked for the Respondent on its towboats, and by visits to the employees' homes. I regard this contention as devoid of any merit. As noted above, the well-organized and extensive efforts of IBU to contact off duty employees at their homes were able to produce relatively few "eyeball to eyeball" contacts.30 The Respondent's employees were entitled under the Act to have the advice and counsel of "trained, full-time [union] organizers.131 In my view, neither the mails, nor the arguments of amateur employee advocates, are adequate substitutes for the advice and counsel of professionals.32 The Respondent finally urges that since it also supplied the unions with lists which showed the names of the boats on which each of the employees worked, and the dates when, and the places where, they were expected to get on or off, "the unions had ample opportunity ... to contact the employees . . . when they got off [or on] the boats." Contrary to this contention, the record discloses that one of IBU's objections to conduct affecting the results of the election was that the information thus furnished "was incorrect." This objection was overruled by the Regional Director, not because the information supplied by Respon- dent was correct, but only because the investigation failed to disclose that the "inaccuracies in the information submitted by the Employer were deliberate."33 I conclude under all the circumstances that, aside from the Company's boats, none of the sources of communica- tion which were available to the unions, either singly or in argument is patently without merit During the preelection period, practically all of the Respondent's employees worked and lived at least part of the time on one or the other of its 14 boats. It obviously was a lot easier to contact the employees on 14 boats, even though widely scattered geographically, than to catch them when off duty at 118 different residences in 15 scattered states. 31 Marshall Field & Company, supra; N L R B v Babcock & Wilcox, supra 32 The Respondent's contention assumes, moreover, that all of the unions in this case had "advocates " on all of the Respondent's towboats. However, that fact is neither disclosed by the record, nor likely in view of the relatively few employees who worked on each boat 33 G.C Exh I(g), p.4 SIOUX CITY & NEW ORLEANS BARGE LINES 387 combination, constituted effective or practical substitutes for the personal and direct contact with "trained, full time organizers" to which the Respondent's employees were entitled under the Act. 4. The alleged necessity for the exclusion of the organizers As previously noted, the Respondent contends that its exclusion of the Unions' organizers from its vessels was necessary to prevent interference with its operations, and to avoid liability for injuries that might be sustained while getting on or off its moving towboats. In these regards the Respondent argues (brief, p. 5) that "allowing representa- tives of each union on a towboat at the same time would undoubtedly lead to disruptions and, perhaps, even to violence." In addition, it contends that neither insurance nor indemnity agreements from the unions would ade- quately protect it against liability for injuries which the organizers might sustain on its boats. As noted hereinafter, I am unimpressed with these reasons for the denial to the organizers of permission to board the vessels. According to the Respondent's president, Drennan, a towboat is a potentially "hazardous machine," and the Company's towboats generally are in continuous motion. The Respondent therefore has "a rule of no visitors aboard the boats," by "people without business there." The dangers, according to Drennan, result from the presence on the towboats of "face wires and cables that could break and cause injury," and "moving machinery in the form of deck winches," and "heavy ratchets." Notwithstanding the asserted dangers, however, the Respondent permits a number of exceptions to its no visitors rule. Thus, "a customer guest," or "a shipper and his wife," are sometimes permitted on board "for a boat ride," and the captain, and the chief engineer, on occasion are allowed to take their wives on the voyage with them. Moreover, despite the continuous motion of the tow- boats, it is a fairly common occurrence for persons to board and get off the Respondent's towboats, and this occurs even on the Missouri River when the tow is proceeding at speeds as high as 17 miles an hour. Among the categories of persons who get on and off the Respondent's boats while in motion are "electronics people, radio repairmen," "a representative from an engine manufacturer," or "an engine company technician," who come aboard by way of tugboats to make necessary repairs and get off whenever their work aboard is completed. Crewmembers, including women cooks, when commencing a tour of duty, and the employees whom they are replacing, board and disembark from the Company's towboats, for the most part while the latter are in motion. Such boarding and disembarking generally is accomplished via the fuel and supply barges which, as described infra, regularly visit and service the towboats while enroute. Admittedly, such boarding and getting off of the Respondent's towboats is accomplished on the starboard (right) side of the vessels, away from the 34 I note in this regard that President Drennan conceded that during his prior association with General Dynamics Corporation, Material Service Division, his company was provided with and accepted liability insurance furnished by MOA to cover possible injury to its representatives when they potentially dangerous wires and machinery located on the port (left) side of the boat. Refueling at points other than on the Missouri River generally also is done while the towboats proceed with their voyages. On such occasions, the fuel barge comes out to moving towboat, "hooks up" to it, and the fuel hoses and water lines are then attached to the appropriate tanks on the towboat. During the pumping operations by which the fuel and water are transferred from barge to towboat, the two vessels "continue side by side hooked together until the fueling operation is completed." In addition to fuel and water, the towboats also take on stores (groceries) about once a week while in motion in midstream. As in the case of refueling, the supply boat comes alongside and ties up to the towboat, the groceries are handed across to crewmem- bers on duty, and the latter carry the stores to the galley. IBU's organizer Drewes has boarded vessels while in motion on the inland waterways 150 times during a period of a year and a half to process grievances for crewmembers. On such occasions, he comes out to the moving vessel in a speed launch, ties up to the towboat or the first barge, and goes aboard to the mess room. In the light of all the foregoing, including the numerous exceptions to the no visitors rule when it suits the Respondent's convenience, and the admission that board- ing the towboats from the starboard side reduces the risk of injury to a minimum, I regard both the asserted dangers in boarding or disembarking from the towboats in midstream while in motion, and the alleged potential hazards of the towboat, as exaggerated. In any event, since the unions admittedly offered to provide Respondent with insurance and/or indemnity agreements to hold it harmless from liability for injuries to its organizers, I am unpersuaded that it was necessary for Respondent to refuse to allow the organizers to board its towboats in order to avoid liability for possible injuries.34 This brings us to the Respondent's contention that visits to its vessels by the unions' organizers would interfere with its operations, and if conducted by all the unions at the same time, might even "lead to violence." In respect to the latter of these arguments, there was no request by the unions to conduct their visits to the Respondent's boats at the same time, and obviously, without discriminating, the Company could have limited such visits to one union at a time, thus eliminating any possible disruption by multiple visits. In respect to the possible disruptive effects of visits by one organizer at a time, the record discloses that each of the Respondent's towboats is equipped with bedrooms, and with a galley and dining area. Some of the boats also have a lounge area in addition to the galley and dining area. These dining lounge areas or mess rooms are utilized by crewmembers for coffee and relaxation during off duty periods when they are not in their bedrooms sleeping. President Drennan admitted that there is thus a place on each of the Respondent's towboats where organizers could confer with off-duty employees without interfering with the were on that company's vessels. I therefore also regard the Respondent's contention that such insurance or indemnity agreements cannot adequately protect it as without merit 388 DECISIONS OF NATIONAL LABOR RELATIONS BOARD operation of the vessel. Accordingly, I regard the conten- tion that the exclusion of the organizers from the vessels was necessary to prevent interference with the operations of the Respondent as clearly unworthy of merit 5. The Respondent's waiver contention The Respondent's only remaining contention is that since it has complied with all the terms of the stipulation for certification upon consent election, and since there was no provision therein requiring Respondent to allow the Unions access to its employees on its boats, the election should not be set aside, and its results should be certified. Without so designating it, the Respondent in effect is thus urging that the Unions waived any rights to board its vessels to speak to its employees by their failure to request such permission prior to the execution of the stipulation, and by their failure to include a provision therein requiring the Respondent to grant such access. I regard this contention as without merit for the following reasons. As previously noted, the right of access by employees to nonemployee union organizers is one which derives from their right of self-organization guaranteed by Section 7 of the Act.35 Since this was a statutory right, its waiver or relinquishment must be clear and unmistakable. The failure by the unions to assert that right during the conference preceding the execution of the stipulation, and the absence of an express provision therefor in the stipulation, did not, in my view, constitute a waiver of the right.36 I therefore reject this contention. 6. Conclusion I have found above that except for the Respondent's boats which were both the working and living quarters of most of the Company's employees for a substantial portion of the preelection period, no adequate means existed for direct communication between the Respondent's employ- ees and the Unions' organizers. Moreover, for the reasons previously stated, I do not believe that an additional exception to the Company's "no visitor rule," to accommo- date the rights of employees to learn the advantages of self- organization, would result in any substantial interference with or detriment to the Respondent's shipping operations. I therefore find and conclude that by denying reasonable methods of access to its employees by the representatives of IBU and MOA, the Respondent interfered with, restrained, and coerced employees in the exercise of rights guaranteed by Section 7 of the Act, and thereby engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act.37 I further find that by such denial of reasonable access to the employees by the unions' representatives, the Respon- dent interfered with the exercise of free and untrammeled choice in the election held between October 13 and 30, 1970. Accordingly, I recommend that said election be set aside and that a new election be conducted at a time and date to be determined by the Regional Director. 35 Thomas v Collins, supra, N L R B v Babcock & Wilcox, supra, Marshall Field & Company, supra 36 The Timken Roller Bearing Company v N L R B, 325 F 2d 746 (C A 6), cert denied 376 U S 971 31 See cases cited in In 29, supra 3s In the event no exceptions are filed as provided by Sec 102 46 of the IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with the operations of the Respondent described 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 and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices, I will recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Upon the basis of the foregoing findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Sioux City and New Orleans Barge Lines, Inc., is an employer engaged in commerce and in operations affecting commerce within the meaning of Section 2(6) and (7) of the Act. 2. National Maritime Union of America, AFL-CIO (NMU), Marine Officers Association, Local 54, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, and Inland Boatmen's Union of the Seafarers International Union, Atlantic, Gulf, Lakes and Inland Waters District, AFL-CIO, are labor organizations within the meaning of Section 2(5) of the Act. 3. By denying nonemployee organizers of IBU and MOA access to its towboats for the purpose of soliciting employees on behalf of said unions, and for the purpose of otherwise communicating with said employees concerning organizational matters, the Respondent has interfered with, restrained, and coerced employees in the exercise of rights guaranteed by Section 7 of the Act, and thereby has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 4. By its conduct set forth above, the Respondent also has interfered with the exercise of a free and untrammeled choice in the election held between October 13 and 30, 1970. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in this case, I hereby issue the following recommended: 38 Rules and Regulations of the National Labor Relations Board, the findings, conclusions, recommendations, and recommended Order herein shall, as provided in Sec 102.48 of the Rules and Regulations, automatically become the findings, conclusions , decision and order of the Board, and all objections thereto shall be deemed waived for all purposes. SIOUX CITY & NEW ORLEANS BARGE LINES 389 ORDER Respondent, Sioux City and New Orleans Barge Lines, Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Continuing or giving effect to its policy or rule barring nonemployee union organizers from access to employees on its vessels for the purpose of soliciting them during their free time on behalf of any labor organization, or for consulting, advising, meeting, or assisting said employees in regard to their rights to self-organization, provided, however, that nothing herein contained shall be construed to prohibit the Respondent from making and enforcing reasonable regulations in respect to visits to its vessels by such nonemployee union organizers. (b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of their rights to self-organization, to form labor organizations, to join or assist National Maritime Union of America, AFL-CIO (NMU), Marine Officers Association, Local 54, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, and Inland Boatmen's Union of the Seafarers International Union, Atlantic, Gulf, Lakes and Inland Waters District, AFL-CIO, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from engaging in such activities. 2. Take the following affirmative action to effectuate the policies of the Act: (a) Post on each of its 14 towboats which operate on the inland waterways, copies of the notice marked "Appendix."39 Copies of said notice, on forms provided by the Regional Director for Region 14, after being duly signed by Respondent, shall be posted by it for a period of 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for Region 14, in writing, within 20 days from the date of the receipt of this Decision, what steps have been taken to comply herewith.40 IT IS FURTHER RECOMMENDED that the election held in Case 14-RC-6549 between October 13 and 30, 1970, be set aside and that a new election be conducted at such time, date, places, and manner as the Regional Director for Region 14 deems appropriate. ae In the event that the Board's Order is enforced by a judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " 40 In the event that this recommended Order is adopted by the Board, after exceptions have been filed, this provision shall be modified to read. "Notify said Regional Director for Region 14, in writing , within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith." APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a trial at which all sides had the opportunity to present their evidence, a Trial Examiner of the National Labor Relations Board has found that we violated the National Labor Relations Act, and has ordered us to post this notice and we intend to carry out the Order of the Board. The Act gives all employees these rights: To engage in self-organization To form, join, or help unions To bargain collectively through a representative of their own choosing To act together for collective bargaining or other mutual aid or protection To refrain from any and all these things. WE WILL NOT do anything that interferes with these rights. More specifically, WE WILL, subject to reasonable rules and regulations, allow nonemployee union organizers to have access on our vessels to our employees during their free time for the purpose of soliciting them on behalf of any labor organization, or for consulting, advising, meeting, or assisting our employees in regard to their rights to self- organization. WE WILL NOT in any other manner interfere with your right to make a free and untrammeled choice in any election conducted by the National Labor Rela- tions Board. SIOUX CITY AND NEW ORLEANS BARGE LINES, INC. (Employer) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. 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 questions concerning this notice or compliance with its provisions may be directed to the Board's Office, 210 North 12th Boulevard, Room 448, St. Louis, Missouri, 63101, Telephone 314-622-4174.