Belcher Towing Company

666 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Belcher Towing Company and Local 333, United Marine Division, International Longshoremen's Association, AFL-CIO and District 2, Marine Engineers Beneficial Association-Associated Maritime Officers, AFL-CIO and John A. Hill. Cases 12-CA-6971, 12-CA-7070, 12-CA- 7177, 12-CA-7125, and 12-CA-7176 June 18, 1981 SUPPLEMENTAL DECISION AND ORDER On September 27, 1981, the National Labor Re- lations Board issued a Decision and Order in the above-entitled proceeding,' finding, inter alia, that the Respondent had violated Section 8(a)(1) of the National Labor Relations Act, as amended, by re- fusing access to its board by union organizers for the purpose of soliciting support for unionization, and ordering the Respondent to cease and desist therefrom and to take certain affirmative action. Thereafter, on March 21, 1980, the United States Court of Appeals for the Fifth Circuit issued its de- cision 2 in which it declined to enforce the above- described portion of the Board's Order, 3 based upon its intervening decision in Sabine Towing & Transportation Company Inc. v. N.L.R.B., 599 F.2d 663 (1979), in which the court denied enforcement of a Board ship-access order. The court in Sabine concluded that the facts established in that case did not present a situation "where nonemployee access to an employer's property is required by [N.L.R.B. v.] Babcock & Wilcox [351 U.S. 105 (1956)]," noting further its view that the Board erred in failing to place a sufficient burden on the General Counsel of proving that no reasonable alternative means of communication existed. 599 F.2d at 665-666. Here the court observed that while "the Board did not explicitly allocate the burden of proof, it followed its earlier decision in Sabine .... which placed the burden on the employer."4 Consequently, the court "remanded to the Board for a reconsideration of the issue of alternative means under a correct al- location of the burden of proof." 5 The Board accepted the remand. Pursuant to said remand, the Board invited the parties to file statements of position with respect to the outstand- ing issue. Such statements were filed by the Gener- al Counsel, the Respondent, and Charging Party District 2, MEBA-AMO. ' 238 NLRB 446. 2 614 F.2d 88. 3 The court enforced the Board's Order insofar as it found certain other conduct of the Respondent to be violative of Sec. 8(a)(1) and (3), except that it denied enforcement of the Order insofar as it found the Re- spondent's application of its no-solicitation rule to be discriminatory. 614 F.2d at 90-92. 4 614 F.2d at 91, fn. 2. 5 Id. at 91. 256 NLRB No. 99 We have reviewed the entire record in this pro- ceeding, including the statements of position, and have reconsidered the Administrative Law Judge's Decision in light of the court's holding that lack of reasonable means of access to employees other than by access to employee property must be affirma- tively established by the General Counsel. We find that, regardless of whether the evidence was pre- sented by the General Counsel, Charging Parties, or the Respondent, the record as a whole clearly established that the Charging Party Unions did not have reasonable alternative means of access to Re- spondent's employees.6 Therefore, we reaffirm our conclusion that Respondent violated Section 8(a)(1) by denying access to its boats to union representa- tives. 7 While we do so for the reasons stated in our original Decision, we note that the record here re- vealed a stronger case for finding the 8(a)(1) viola- tion than the record in Sabine. In Sabine, 167 unit employees worked on five different tankers, in crews of 25 to 28. Here, ap- proximately 100 employees worked on 15 different ships in crews of three to five. Consequently, union organizers were able to get to ports to meet the ships in Sabine, departing employees had a certain safety in numbers from the eyes of management, for it would not be easy for supervisory personnel to be able to pick out which employees were re- sponding to union organizers when the employees were in a large group, moving away from the ship. And even when a number of employees chose to sleep or otherwise rest aboard ship, a goodly number were likely to be leaving the ship, thus af- fording union organizers some opportunity to convey their message. Here, on the other hand, if a number chose to rest aboard the boat (as was fre- quently the case), there might be no one to ap- proach. Or if some, or even all, did leave the boat, they would not have the safety in number present in Sabine.8 In addition, the smaller crews inevitably made it far more difficult for union organizers to locate any employees at off-the-dock places at 6 In Sabine the court ruled that, in agreement with the Administrative Law Judge, the record as a whole did not establish lack of reasonable alternative means of access, and that the Board had erred in determining that the evidence presented by the General Counsel was sufficient to shift the burden of proof as to alternative means to the respondent. In remand- ing the instant case, we understand the court to have not reviewed the question of whether the entire record supported the Board's finding, but rather to have taken the position that since the Board had not required the General Counsel to come forward with the requisite evidence, the Board should reexamine its decision in light of the court's opinion in Sabine. As explained infra, we find that the totality of the evidence here eablished that reasonable alternative means of access did not exist. I In so doing, we do not reaffirm our alternative finding in the original case that Respondent discriminatorily applied its no-solicitation rule, inas- much as the court of appeals ruled that our order could not be enforced on that basis 8 This is particularly significant in light of the fact that here the Re- spondent had ordered its supervisors to report all union activity. BELCHER TOWING COMPANY 667 which seamen might congregate. Furthermore, while in Sabine we were unable to determine whether union oganizers were able to meet em- ployees coming directly off the ships, here the record is clear that 9 of the 15 boats were based at the Respondent's restricted Miami facility, and of the delivery points serviced by the 12 boats which left base 4 were also restricted.9 Moreover, in Sabine the evidence indicated that the union organizers contacted between 84 and 107 of the 167 unit employees-between 50 percent and 70 percent. Here, on the other hand, the MEBA organizers were able personally to contact only 20 of the 100 unit employees in 4 months, and the ILA organizer personally was able to see only 8 or 10, despite the extraordinary efforts described in our orginial Decision. Direct personal contact is the most truly effective means of communicating not only the option of collective bargaining, but the most compelling reasons for exercising that option. In any event, the impact of the numerical differences is even more pronounced when viewed in light of the fact that while the larger crew sizes in Sabine meant that there was some chance there that the union organizers could get their message across to perhaps all the employees indirectly through those to whom they spoke directly, here the small crew sizes indicate that even contact with a significant percentage through reasonable efforts is unlikely. These facts, combined with the consid- erations discussed in our original Decision, includ- ing the wide geographic dispersal of the unit em- ployees °0 and the length of time spent aboard ship, 9 The "restricted" ports ere those which, for security reasons, barred the general public from entering the facility at all, or at least the docking area. For example, at the home port of Miami, no one may go to the dock without first getting clearance from the Respondent's tugboat dis- patching office '0 Although the employees were more widely dispersed in Sabine than here, in both cases, the dispersal rendered home contact ineffectual as an lead us to conclude, upon reconsideration, that union organizers have no reasonable means of access to employees to convey their oganizational message, and that therefore the Respondent violat- ed Section 8(a)(1) of the Act by refusing access to its boats to union representatives. 1 ORDER Pursuant to Section 10(c) of the National Labor Relations Board Act, as amended, the National Labor Relations Board reaffirms its order issued in this proceeding on September 27, 1978 (reported at 238 NLRB 446) and hereby orders that the Re- spondent, Belcher Towing Company, Coral Gables, Florida, its oficers, agents, successors, and assigns, shall take the action set forth in the said Order. alternative to direct contact at or near the workplace And. as explained aho',e, direct contact near the workplace was far more difficult here than in Sabine I Since it need only be shown that reasonable alternatives to access to company property did not exist, the fact that some, or even many, em- ployees were reached through extraordinary efforts by union organizers is not a basis for dismissing a complaint allegation such as the one in- volved here As shown in our original Decision, representatives did, in fact, engage in extraordinary efforts. That, as alleged by the Respondent in its statement of position on remand, MEBA has been able to contact a sufficient number of employees to make a showing of interest and, in one case, to achieve certification, does not negate our finding that reasonable alternative means of access were unavailable. Of course, a union may be willing and able to overcome obstacles present in situations in hich em- ployees are unusually isolated But, as the Supreme Court recognized in N.L.R.B. . Babcock Wilcox, 351 U.S. at 113, it is the employees' right of self-organization that is of great importance and the effectiveness of that right "depends in some measure on the ability of employees to learn the advantages of self-organization from others." Consequently, the effec- tivenes of that right should not be contingent on the ability of outsiders to engage in extraordinary efforts to communicate. (Indeed. the lack of reasonable alternatives forced the ILA to abandon its efforts, thus leaving the employees with a choice of one union rather than two.) Thus, we find, in full accord with Babcock d Wilcox and its progeny, that where reasonable alternative means of communicating the organizational mes- sage are unavailable, an employer's right to exclude nonemployee union organizers from its property must yield BELCHER TOWING COMPANY 667