Seafarers International Union

SEAFARERS INTERNATIONAL UNION Seafarers International Union of North America, At- lantic, Gulf, Lakes and Inland Water District and American Commercial Barge Line Compa- ny. Case 15-CC-728 15-CC-728 November 18, 1980 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND PENEII.O On June 23, 1980, Administrative Law Judge Leonard M. Wagman issued the attached Decision in this proceeding. Thereafter, Respondent filed ex- ceptions and a supporting brief, and the General Counsel filed a brief in support of the Administra- tive Law Judge's Decision. 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 au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided toaffirm the rulings, and findings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent, Seafarers Inter- national Union of North America, Atlantic, Gulf, Lakes and Inland Water District, New Orleans, Louisiana, its officers, agents, and representatives, shall take the action set forth in the said recom- mended Order. i Respondent has excepted to certain credibility findings made by the Administrative Law Judge It is the Board's established policy not to overrule an administrative lav. judge's resolutions with respect to credi- hility unless the clear preponderance of all o the relevant eidence con- vinces us that the resolutions are incorrect Standard Dry Wall Products. Inc. 91 NLRB 544 (1950), enfd. 188 F2d 362 (3d Cir. 1951). We have carefully examined the record and find no hasis for reversing hi, findings. DECISION STATEMENr OF THE CASI LEONARD M. WAGMAN, Administrative Law Judge: This case was heard at New Orleans, Louisiana, on March 3 and 4, 1980, upon a complaint issued on Janu- ary 17, 1980, by the Acting Regional Director for Region 15 of the National Labor Relations Board, upon a charge filed by the Charging Party, American Com- mercial Barge Line Company. referred to herein as I The name of the Charging Ptarty appears as correcled upon the G(en- eral Counsel's motilon ACBI., on January 2, 1980. alleging that Seafarers Inter- national Union of North America, Atlantic, Gulf, Lakes and Inland Waters District. referred to herein as the Union, violated Section 8(b)(4)(i) and (ii)(B) of the Na- tional Labor Relations Act, as amended (29 U.S.C. Sec. 151, et seq.), herein called the Act, by picketing the facil- ities of Cooper Stevedoring Company, Inc., referred to below as Cooper. and Gulf Elevator and Transfer Com- pany, referred to below as GETCO, at Darrow, Louisi- ana, during a labor dispute with ACBL, and its affiliates, American Barge Line Company, referred to as ABL, Southern Ohio Towing Company, Inc.. referred to below as Southern, and Inland Tugs Co., referred to below as Inland. The Union filed an answer denying the commission of any unfair labor practices. Following the close of the hearing, the General Counsel, the Union, and the Charging party filed briefs. Upon the entire record in this case, from my observa- tion of the witnesses' demeanor, and upon careful consid- eration of the briefs, I make the following: FINDINGS AND CONCLUSIONS I. THE BUSINESS OF THE EMPI.OYERS ACBL, ABL, Southern, and Inland are each Delaware corporations with principal offices and places of business, respectively, at Jeffersonville, Indiana. Each is a wholly owned subsidiary of American Commercial Line, Inc. (ACL). Each of these corporations is engaged in the in- terstate transportation of goods and commodities by river barge throughout the United States. During the 12 months preceding the issuance of the complaint herein, which period is representative of all times material to this case, each of these employers received gross rev- enues exceeding $50,000 from its respective operations and purchased and received goods and materials valued in excess of $50,000, directly from points located outside the State of Louisiana. GETCO is a Delaware corporation and Cooper is an Alabama corporation. Each engages in the unloading and loading of goods and commodities from river barges to ships and has its principal offices and places of business at Darrow, Louisiana. Both GETCO and Cooper annual- ly receive gross revenues exceeding $50,000 from their business operations. Each purchases and receives goods and materials valued in excess of $50,000 directly from points located outside the State of Louisiana. I find from the foregoing that ACBL, American, Southern, Inland. GETCO, and Cooper are and have been, respectively, at all times material herein, employers engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. II. THE I ABOR ORGANIZATION INVOI VED Seafarers International Union of North America, At- lantic, Gulf, Lakes and Inland Water District is, and at all times material to this case has been, a labor organiza- tion as defined in Section 2(5) of the Act. 253 NLRB No. 33 337 DEFCISIONS OF NATIONAI. ILABOR RELATIONS BO()ARD il. IHI. Al.I (i.1l) UNFAIR I ABOR P'RACIICIS A. The Issues Essentially. the complaint alleges that beginning on or about December 29, 1979, and continuing until January 15, 1980, the Union engaged in unlawful secondary pick- eting in furtherance of its labor dispute with ACBL, ABL, Southern, and Inland, by picketing the Darrow, Louisiana, facilities of GETCO and Cooper at times when there were no employees of ACBL, American, Southern, or Inland present at those facilities. The com- plaint also alleges that, by such picketing, the Union has attempted to persuade or encourage employees of GETCO and Cooper to stop working for their respec- tive employers and has threatened, coerced, and re- strained the same employers and has succeeded in per- suading employees of GETCO and Cooper to engage in work stoppages, all with an object to force or require GETCO and Cooper to cease handling, transporting, or otherwise dealing in the products of, or to cease doing business with, ACBL, ABL, Southern, and Inland, and thereby violated Section 8(b)(4)(i) and (ii)(B) of the Act. The Union, by its answer, denied that it has committed the alleged unfair labor practices and claims that it en- gaged in lawful primary picketing at the Darrow site. B. The Facts 1. The Operations of ACBL., ABL, Southern, and Inland and the Union's dispute with these ACBL, ABL, Southern, and Inland together with ANCOM, Inc., Commercial Barge Line Company (CBL), Commercial Transport Corporation (CTC), Northern Towing Company (Northern), The Southland Towing Incorporated (Southland), and MAC Towing Inc. (MAC), are wholly owned subsidiaries of ACL. ACBL and six of these affiliates engage in the barging of freight on the Mississippi River, its tributaries, and the Gulf coast. CTC, Northern, and Southland are not pres- ently active. Together, the 7 firms, known as the Barging Group, operate 59 towboats and 1,400 barges. ACL owns 49 of the towboats. The remaining 10 are owned by Southland, Inland, and MAC. ACL owns all the barges. CBL leases towboats and barges from ACL and sub- leases that equipment to ACBL. ACBL is the leading company in the barging operation. It advertises and se- cures contracts for the barging operation and deploys and controls the towboats and barges owned by ACL and the other affiliates to perform the barging transporta- tion business. ACBL provides all the necessary adminis- tration and services for the transportation of its custom- ers' goods. ACBL employs personnel to handle the barg- ing operations, including the operation and deployment of barges and towboats and supporting accounting, finan- cial, and other administrative activities. ACBL headquar- ters is at Jeffersonville, Indiana, where it maintains radio station WFN, its central line of communication for con- trolling and deploying its towboats and barges along its 14,000 miles of service route. ABL, Inland, Southern, and MAC operate the tow- boats. ACBL employs towboat captains, relief captains, pilots, and pilot house employees. Either ABL, Inland, Southern, or MAC employ the towboats' deck person- nel, engineers, and cooks. All towboats and barges oper- ated by the barging operation carry the ACBL logo. ACBL dispatchers deploy boats, barges, and crews. All towboats and barges are interchanged. The dispatch- ers station towboats in designated segments of the barg- ing operation and direct their movements and runs. Fur- ther, the dispatchers direct and coordinate the towboats in respect to the picking up and dropping off of barges along the system. They also assign crewmembets to tow- boats and designate the point at which the crewmember may rendezvous with his assigned towboat at the end of his leave time. Dispatchers hire and assign employees to tow boats and direct them to rendezvous points where they board their assigned vessels. ACBL operates the towboats and barges as a fleet without regard to their ownership or the operating com- pany. All of the towboats and barges operate in all parts of the ACBL system. ACBL directs all barge transporta- tion matters arising north of Baton Rouge, Louisiana, from its office at Jeffersonville, Indiana. ACBL's office at New Orleans, Louisiana, administers all transportation matters arising south of Baton Rouge. ANCOM owns and operates a radio transmitting facili- ty which provides communication service for ACBLI barging operations on the Mississippi, its tributaries, and along the Gulf. All of ACBL's towboat dispatchers, port captains, and port engineers2 and the respective offices, receive and send messages on this radio system. These messages pertain to assignments, reports, pickups, drops, deliveries, and other activities of the barge operation. ACBL's system is divided up geographically into the Ohio River system, the upper Mississippi system, the lower Mississippi system, Intercoastal Canal West, and Intercoastal Canal East. ACBL's publication, "Inland Waterways Mileage Guide," shows several hundred stopping points along the major rivers and tributaries and the intercoastal canal system, all served by ACBL and its related companies. From the testimony of Norman Stan- ley Ivey, general manager of ACBL's Gulf Coast area, I find that from Head of the Passes, i.e., the mouth of the Mississippi, up to Baton Rouge, ACBL towboats visit about 100 different delivery and pickup points. I also find from Ivey's testimony that from St. Paul, Minnesota, to Baton Rouge ACBL has approximately 150 stops. I find from Ivey's testimony that the entire system has 400 to 500 stops or service points. The service points listed in ACBL's "Inland Water- ways Mileage Guide" are designated by mile markers. Zero is the designation for Head of Passes, the mouth of the Mississippi. Cairo, Illinois, is marked "980" indicating 980 miles from Head of Passes. Darrow, Louisiana, the location of the alleged viola- tion, is on the east bank of the Mississippi River, at mile 175. However, Darrow's designation is absent from the ACBL's mileage guide which was printed prior to the AC (ls shoreside port captains and port engileers are assigned o areas f ACI.'31 barge system to assist toboalts traversing their areas with rpcl to opcralional, persollltl, ailtlelllalce, and repair problems. 338x SEAFARERS INTERNATIONAL UNI()N establishment of the I)arrow. Louisiana, river port acili- ties. The towboats involved in AC13L's operation range in horsepower from 1,8(X) to 8,4(X00. ACBI3 operates two towboats in the lower Mississippi system, the MV Crl Shelton, and the MV C. ,.: Peters. The barges which they push are 195 feet long. 35 feet wide, and 12 feet in depth. Barges are towed individually or in groups called tiers. A towboat may push as man as 48 of these barges at one time. The barges carry grain, coal, liquid, dry bulk, and other commodities. Typically, a towboat pushes its tow, a group of barges, up or down river, until it arrives at a point on ACBL's system, where the dispatcher has instructed the towboat captain to pick up or drop off one or more barges. A switch boat provided by a fleeting company, or some other independent firm, meets the tow at the designated point. The switch boat removes desig- nated barges from the tow or transfers barges to the ex- isting tow. The towboat's deck crew, under the captain's direction, secures the additional barges to the tow or re- leases the barges from the tow to the switch boat for transfer to a barge staging area, also called a fleeting area, where empty and loaded barges are assembled, waiting to be loaded unloaded, or transferred to a pass- ing towboat. The transfer of loaded barges from the tow to the transfer boat and the release of empty barges re- quires varying amounts of time from 2 to 12 hours, de- pending on the number of barges. The fleeting area involved here is known as Darrow Fleeting and is located in the vicinity of mile marker 175, on the left or east bank of the Mississippi River. The stevedoring companies, Cooper and GETCO, maintain separate mobile offices at mile 175, between the river and the levee, on the east bank of the Mississippi. in the vicinity of the Darrow Fleeting area. ACBL also main- tains an office in a small building alongside a road run- ning behind the levee, across from GETCO's and Coo- per's offices. Only one ACBL employee, a clerical, is stationed at ACBL's Darrow Fleeting area office. This clerk per- forms filing and recordkeeping relating to ACIL barge traffic into and out of Darrow Fleeting. In addition. ACBL's Darrow clerk keeps records of communications between Darrow and New Orleans and Darrow and Baton Rouge. She obtains traffic information from ACBL's New Orleans office by telephone. She also re- ceives instructions to check on designated towboats. The clerk has a radio with which to contact towboats on the river and pass on messages from New Orleans to a tow- boat or to Baton Rouge, or from a towboat to New Or- leans or to Baton Rouge. A sign bearing "ACBL" is out- side the ACBL Darrow office. The Union is, and has been at all times material to this case, the collective-bargaining representative of all engi- neers, assistant engineers, cooks, head deckhands, and deckhands employed by the barging group employers headed by ACBL. The most recent collective-bargaining agreement expired on December 30, 1979. On December 14, 1979, the Union filed an unfair labor practice charge against ACL and its subsidiaries ACBL, ABL, Southern, Northern, Inland, and MAC, in Case 9-CA-14657. Thereafter, the Union filed an amended charge on Feb- ruary 2, 1980, and a second amended charge on Febru- ary 11, 1980. On February 20, 1980, the Regional Direc- tor for Region 9 issued a complaint alleging that the re- spondents in Case 9-CA-14657 had committed a number of violations of Section 8(a)(I), (2), (3). and (5) of the Act. A hearing on this complaint has been scheduled for August 18. 1980. 2. The operations of GETCO and Cooper at Darrow, Louisiana GETCO and Cooper are affiliated stevedoring firms, with offices on the east bank of the Mississippi River, at Darrow, Louisiana. GETC() and Cooper maintain mer- chant ship mooring buoys on the Mississippi River in the vicinity of Darrow. GETCO's sites are at mile markers 171 and 172. Cooper's sites are at markers 175, 180, and 182. Cooper operates floating cranes equipped to handle grain, cattle feed, soybean meal, ore, and other bulk ma- terials. Cooper owns some of the cranes it operates. Cooper also leases cranes from GETCO and other sources. GETCO also owns and operates cranes by which it loads and unloads merchant ships. The floating cranes are equipped to load or unload barges by suction devices or clam shells, or revolving buckets. As many as four crane barges service a single ship. GETCO and Cooper act as stevedores from various customers. Under the usual loading contract, the custom- er notifies GETCO or Cooper that a specified merchant ship will arrive at the GETCO or Cooper berthing area on a specified day to take on a specified cargo or car- goes. If more than one type cargo will be loaded, instructions for each product specify which type of cargo is to be loaded in which batch on the ship. Also included in the communication is a designation of the barge by its source and number, such as "ACBL01." Neither GETCO nor Cooper is responsible for moving the barges from the fleeting area to the side of the ship to be loaded. Darrow Fleeting Service, a separate firm with no ties to ACBL, performs that function: When GETCO or Cooper is ready to unload a barge into a moored merchant ship, they radio Darrow Fleeting and designate the barge or barges to be delivered by Darrow Fleeting to a designated merchant ship. The transferral of barges by Darrow Fleeting from its fleeting area to the ship is accomplished by a Darrow tugboat. Nor do the stevedores arrange for the berthing and mooring of the merchant ship. That function is performed by the ship's agent. In sum, GETCO and Cooper are responsi- ble only for the transferral of cargo between the barges and the merchant ships assembled in their operating areas. ACBL towboats stop on the west bank of the Missis- sippi, across from the Darrow facilities of GETCO and Cooper, approximately five times per week. Southbound ACBL towboats usually stop at mile marker 175. Their practice is to hold their tows close to the west bank and remain there until a switch boat from Darrow Fleeting comes across the river either to pick up a barge or barges from the tow, or bring barges for addition to the tow. The switch boat moves barges taken from the tow to the Darrow Fleeting area on the east bank. Darrow 33.19 DECISIONS OF NAFIONAL L.ABOR RE.ATIONS BOARD Fleeting leases one switch boat from GETCO and seven others from other firms. ACBL crewmen remain on their towboats during barge transfer operations. Southbound ACBL towboats usually drop off loaded barges. North- bound ACBL towboats usually receive empty barges from Darrow Fleeting. On the northward trip, the ACBL towboats will rest near markers 172, 175, or 180 on the west bank, while waiting for the switch boat. Cooper and GETCO each use their own employees to load and unload ships. GETCO's and Cooper's employ- ees are covered by collective-bargaining agreements with International Longshoremen Association Locals 1830 and 1833 (referred to below as the ILA Locals) and with International Union of Operating Engineers Local 406 (referred to as Operating Engineers Local 406). Employ- ees represented by Operating Engineers Local 406 oper- ate the cranes. Employees represented by Local 1830 or by Local 1833 perform the remaining loading and un- loading operations aboard the merchant ships and on the barges. No employees of ACBL or its affiliated barging operation employers participate in the loading or unload- ing of the merchant ships. Nor do any employees of ACBL or its affiliates ever work in the fleeting area, or in the immediate vicinity of GETCO's or Cooper's steve- doring activity. ACBL employees rarely enter the Darrow stevedoring areas. Darrow Fleeting assumes responsibility for the secu- rity and safety of ACBL barges and their contents while they are under Darrow's control, in the fleeting area, and during transfer. The stevedoring companies are simi- larly responsible for ACBL barges and their cargoes while the barges are being loaded or unloaded alongside a merchant vessel. 3. The picketing On Friday morning, December 28, 1979, Cooper and GETCO received the following telegraphic message from the Union: This organization has a labor dispute with Ameri- can Commercial Barge Lines "ACBL" and its affili- ated companies. We are picketing their tugs and barge equipment by reason of such dispute. Some of such equipment appears at your dock site. To mini- mize if not avoid any involvement of your company in this dispute we request your permission to picket at your dock site as and when ACBL equipment ap- pears. When such equipment is not present at your dock site our pickets will withdraw. In the event our requested permission is denied we shall have no alternative but to picket in front of your premises at such time as the ACBL equipment appears at your dock site. Please advise relative to your permission to picket the dock site. Failure to hear from you within 24 hours relative to our request we will un- derstand your silence to be a denial of our request. On the following day, the Union broadcast the following message over ACBL's radio station, WFN, to ACBL's towboats: To S.I.U. Special Boat Delegate and crew mem- bers: Your S.I.U. contract with A.C.B.L. may run out at midnight December 30, 1979. As of right now A.C.B.L. is installing the con- tract talks but, your Union is standing firm on your demands. If the contract runs out it is very important for every S.I.U. Engineer. Cook, Lead Deckhand, and Deckhand to stay on board your boat and keep working. Wait to hear from your Union. We will keep you advised by talking to you over the radio and send- ing you leaflets. For now tell all the S.l.U. Brothers and Sisters on your boat to stay on board. Let A.C.B.L. see that the S.I.U. members are united and are on their boats to stay. Remember, do not take any other action until you here [sic] from your Union. If you or any of your Brothers and Sisters have any problems or questions call your Union day or night toll free at 1-800-325-9570. Fraternaly [sic] Seafarers International Union Upon receipt of the Union's telegram, Cooper's and GETCO's general manager, Newell W. Wright, contact- ed President Durnin of ILA Local 1833, President Young of Local 1830, and Business Agent Hernandez of Operating Engineers Local 406. Business Agent Hernan- dez said that he was not aware of the Union's dispute but that, if a union picket line appeared, his members would honor it. The presidents of Local 1833 and 1830, respec- tively, stated that their members would honor such picket line as the Union might set up. About 9:15 or 9:30 p.m. on Friday evening, December 28, at the request of Cooper, an ACBL barge was placed near a Cooper crane in preparation for loading the con- tents of the barge into the merchant ship, Maria Jose 7T After the ACBL barge was in place, a 14-foot aluminum skiff propelled by an outboard engine, carrying two men each of whom held up a picket sign, appeared about 20 yards from the Cooper crane barge. The skiff came alongside Cooper's crane barge and the two men gave handbills to the Cooper employees on the barge. The handbills carried the following message: WHY WE PROTEST AND PICKET The non-supervisory tug boat employees of the integrated affiliated barging operation of American Barge Lines, Southern Ohio, Inland Tugs and American Commercial Barge Lines, have been rep- resented by the SIU for many years. The above affiliated and integrated companies in conjunction with other affiliated companies have, over the past several months and continuing to date, been and still are engaged in unfair labor practices against our members, their employees and against our union. This conduct, among other things, is de- priving the employees of rights guaranteed in the labor act; unlawfully discriminating against employ- ees and dismissal of others; unlawfully assisting an- other union; and refused to bargain in good faith 340 S-AI:AR[IRS INI-lKRNAVINA)NI. UNIO)N with our union. It is apparent to us that the aboe affiliated and integrated companies are engaged in massive activities to undermine our unlion. We have filed unfair labor practice charges ,kith the National Labor Relations Board and thev are being processed. Our picketing is to protest the above unlawful conduct. We have no dispute with any other cornpan . Seafarers International Union of North America AGLIWD, AFI.CI() Cooper's superintendent, Pearson, warned the two men in the kiff who were distributing handbills that the were on Cooper's jobsite and asked them to remain away from the barges. Pearson also told the pickets that Cooper would be held liable if they were injured while in the stevedoring area. Pearson returned to the riv er- bank, where he informed General Manager Wright about the two men in the skiff and their picket sign. Wright instructed Pearson to tell the pickets to remain away from Cooper's crane barge because of the tugboat's propeller wash, and to obtain a copy of the handbill. Pearson complied with those instructions aid received four or five copies of the handbill from the men in the skiff. After receiving the handbill, Pearson went to the Maria Jose 7t, he instructed the foreman of Cooper's longshoremen, Larry Carter, on the sequence of cranes and barges involved in loading the merchant ship. Fore- man Carter asked Pearson what was going on and who was picketing. Pearson told him that the pickets were members of the Union arid that they were "out here striking against ACBL and it doesn't concern Cooper, so just keep on working." Pearson told Carter that, after the employees finished unloading the ACBL barge which was then alongside the Maria Jose T., that he wanted to bring another barge alongside to be unloaded. Pearson went back to his office, telephoned a repre- sentative of the ILA Locals, Lawrence Cutno, and re- quested that he refer two employees and that they be present at Cooper's jobsite at I a.m. that same night. Cutno agreed. At this point it was approximately I p.m. Ten minutes later, Cutno appeared at Pearson's office and inquired about the presence of some pickets out on the river. Pearson explained that they were picketing ACBL and not Cooper. Shortly after midnight, the Operating Engineers Local 460's steward, Wayne Turner, and the ILA Locals' rep- resentative, Cutno, came to Pearson's office and, using the radio that Cooper used to communicate with its crane barges, sought to inform their respective members of the pickets and to instruct them to leave their work area. Following these announcements, all of Cooper's employees who were loading the aria Jose 17 ceased working and came to the riverbank. The men remained off the job for little more than an hour. During this stoppage, Pearson, Turner, and Cutno went to the pickets' campsite along the riverbank, about 150 yards south of Cooper's trailer office. Pearson com- plained to the pickets that all of his men had ceased work on the loading of the Maria Jose T He asked the pickets if they would wilhhold their picket signs if the ACBL barge were removed from Cooper's worksite. One of the pickets agreed that, if the ACBL barge were removed, the pickting would stop. Pearson returned to his office. He called Darrow Flecting and requested a tugboat to remove the ACBL barge. With the removal of the ACBL barge, the long- shoremen and the operating engineers returned to work Cooper did not unload any ACBI. barges during the re- mainder of that night. However, as each barge arrived for unloading, the pickets inspected it but did not resurne picketing. On Monda, December 31, General Manager Wright visited the two pickets in their camp arid photographed one of their picket signs. The sign read: UNFAIR Wt PIROIIt i ilt UNIAIR LAHOR PR \( ICI.S 01 AMERICAN COMMERCIAL BARGE LINES and the integrated Affiliated Companies AMERICAN BARGE LINES SOUTHERN OHIO TOWING and INLAND TUGS We have no dispute with any other Company SEAFARERS INTERNATIONAL UNION OF NORTH AMERICA AGLIWD AFL-CIO Wright learned from the pickets that their purpose was as stated on their picket signs. Another work stoppage occurred on Friday afternoon, January 3 1980. when pickets appeared in a boat, cir- cling the Pollycrusader at mile 172, as 50 of GETCO's employees, half represented by the ILA Locals and half by Operating Engineers Local 406, were loading the ship from an ACBL barge, tied alongside. General Manager Wright came to the riverbank, where the GETCO em- ployees were coming ashore, and announced his inten- tion to remove the ACBL barge from the Pollvcrusader. The ACBLI barge was removed and, after a 1-1/2-hour work stoppage, the employees returned to loading the Pollycrusader. On January 4, employees of GETCO and Cooper, on instructions from General Manager Wright, altered the ACBL logo on several GETCO-unloaded barges to read "OBL." On January 5, GETCO unloaded the "OBL" barges into the Pollycrusader. The pickets scrutinized the "OBL" barges, but did not picket. On January 5, several other ACBL barges were relet- tered "OBL" ad then brought to mile marker 172, where GETC() employees began unloading them into the Pollycrusader. However, there was no work stoppage on those barges. The following day, picketing at the Pol- lycrusader resumed for approximately 1-1/2 hours as 341 I)ltt'ISIO)NS ()F NAIO()NAI I.A()R RIA I .AIO()NS O()ARI) GETCO employees were unloading a relettered AC3I. barge. The picket signs used on this last incident of pick- eting were similar to those seen by Wright at the pickets' camp on December 31, 197'). ''here was no further pick- eting of GETC() or Cooper after January 6. During the period covered by the incidents recited above, picketing at Cooper or GE''ICO's operations occurred only wher their employees were unloading barges marked "AC11l" or ACI. barges relettered to show "()031.." C. .nlysis and Conrclusions Section 8(b)(4) of the Act makes it an unfaiir labor practice for a union: (i) to engage ill, or to induce ally individual enm- ployed by any person . . . to engage in, a strike or a refusal in the course of his cmployment . . . to perform any services; or (ii) to threaten, coerce, or restrain any person engaged in commerce or in an industry affecting commerce, where in either case an object thereof is: (13) forcing or requiring any perso .... to cease doing business with any other person . . . provided, That nothing conltained in this clause (B) shall be construed to make unlawful, where not otherwise unlawful, any primary strike or pri- mary picketing . These provisions implement "the dual congressional objectives of preserving the right of labor organizations to bring pressure to bear on offending employers in pri- mary labor disputes and of shielding unoffending em- ployers and others from pressures and controversies not their own." N.L.R.B. v. Denver Building & Construction Trades Council [Gould & Preisner], 341 U.S. 675, 692 (1951): see National Woodwork Manufacturers Association v. N.L.R.B., 386 U.S. 612, 620-627 (1967). As explained in N.L.R.B. v. Local 825, International Union of Operat- ing Engineers, AFL-CIO [Burns & Roe, Inc.], 400 U.S. 297, 302-303 (1971): Congressional concern over the involvement of third parties in labor disputes not their own prompt- ed Section 8(b)(4)(B). This concern was focused on pressure brought to bear, not "upon the em- ployer who alone is a party [to a dispute], but upon some third party who has no concern in it" with the objective of forcing the third party to bring pressure on the employer who agreed to the union's demand. Section 8(b)(4)(B) is, however, the product of legislative compromise and also reflects a concern with protecting labor organizations' right to exert legitimate pressure aimed at the employer with whom there is a primary dispute. Section 8(b)(4)(B) requires that disputed union conduct be classified either as legitimate "primary" activity directed against the offending employer or as unlawful "secondary" activity directed against the neutral employer with whom the union has no dispute. See N.L.R.B. v. Local 825, Operating Engi- neers, 4(X) U.S. at 303; Local 761 International Union eoj I:lectrical, Radio & Machine Workers, AlFL-CIO [General Electric Corporation] v. .L.R.B., 366 U.S. 667, 672-673 (1961). In short, the overriding object of Section X(b)(4)(13) is "to confine labor conflicts to the employer in whose labor relations the conflict has arisenl... " merican Federation of elev'ision and Radio .Artists. etc. [Baltimore News American Di- vlsion] v. N.L.R.B.. 462 F.2d 887, 890 (D.C. Cir. 1972), quoting Miami Newspaper Pre.ssmens Local No. 46 [K'night Newspupers Inc.] v. .L.R.B.. 322 F.2d 405, 410 (D.C. Cir. 1963). Thus, whert the evidence shows that a union is direct- ing its attention toward a neutral employer with whom it has no dispute, it is settled law that the union's peaceful picketing, without more, provides the basis fr finding violations of subsections (i) and (ii). Otherwise, the sec- ondary boycott provision would be a virtual nullity, since the "customary means of enlisting the support of employees to bring economic pressure to bear on their employer" would be exempted from its coverage. Inter- national Brotherhood of Electrical Workers [Giorgi Con- struction Company]v. N.L.R.B., 341 U.S. 694, 703 705 (1951). See also N.L.R.B. v. Dallas General Drivers Ware- housemen and elpers, etc., Local No. 745 [Associated Wholesale Grocery of Dallas], 264 F.2d 642. 648 (5th Cir. 1959), cert. denied 361 U.S. 814. Applying the fioreg)ing principles to the instant case, I find, contrary to the Union's contention and in agree- ment with the General Counsel and the Charginq Party, that the picketing in the instant case was secondary for the following reasons: The Union's primary dispute was with ACBL, South- ern Ohio Towing, and Inland Tugs. This was made plain by the Union's picket signs, its handbills, its telegrams to Cooper and GFITC0, and by its radio message to its del- egates and members. However, the Union brought pressure on neutrals; i.e., Cooper and GETCO. The Union picketed near Cooper's and GETCO's crane barges when there were no employ- ees of the primary employers working on or near the crane barges, on or near the ACBL barges, or on or near the merchant ships which were being loaded only by em- ployees of the neutrals.:' Further, the Union could easily have learned that no ACBL employees were expected to be at or near Cooper's or GETCO's worksites. Nor did the Union show any interest in putting direct pressure upon AC13L and its affiliates. Thus, the Union refrained from picketing the plainly marked ACBL office located near the Darrow Fleet area, Nor did the Union ' I fild that situs ofr the picketing IIn each instance was limited it the illlediatc sicririty o the neutral' (Cooper and CiGF CO) crane barges as they were loading either he M1aria Jore 1 or the Pollycrusader I further find hal as the primary (AC131) employees were nt employed at tholse sitcs arid neser worked at such sites, a (irmlmil situs did not exist where the Coolper or (ETCO) eployees ere engaged ill loading these two merch ant ships. I have tr herelore rejected coltentlions that the Board's Vinure IDry yDk standards fior commlon sirus pickering, as expressed in Sui/err Unlion of the Pureii.. L. -('10 (.n4r Dry Dock (rnpunvy). 92 NI.RIt 547. 54' (95()), should be applied to this case 342 SEAl:ARtIRS INTERNA I I)NAL Nl()N attempt to picket the ACBL towboats as they stood off the Mississippi's west bank across from Darrow during the period of the dispute. I find no merit in the Unio'is assertiion that it could not safely picket the AC1IL touwboals and barges while the tow als underway or while the tow was standing off the west bank heclause of inaccessibility front the ri er- bank and the perilous conditions created by the tow- boats' propellers and movements. The record shows. however, that the peril urged by the Union is limited in radius, and tliat the riverbank is accessible to fishermen and other pedestrians. Further, the ACBL towboats remain near the west bank of the Mississippi for at least 2 hours, while receiving or releasing barges. Thus, it ap- pears that the Union was not deprived of any opportuni- ty to engage in primary picketing. More important, the Union was not interested in such primary activity. On the contrary, it broadcast a message to ACBL's employ- ees urging them to remain at work despite the expiration of the current collective-bargaining agreement and ACBL's "stalling." The Union was not interested in picketing either ACBL's Darrow office, or any other ACBL installation along its 15,(X)-mile system. Instead. the Union directed its picketing activity only at the neu- tral worksites of Cooper and GETCO, where no em- ployees of ACBL nor of any of its affiliates ever work. The presence of ACBL's barges did not convert the Union's picketing of Cooper's or GETCO's loading op- erations into primary picketing. Drivers. Salesmen. Harc- housemen. Milk Processors. Cannery Dairy Employees and Hfelpers lion Local 695, IBI (ony Plc/litler Trucking Service. Inc.), 174 NLRIB 753, 759 (1969); National Mari- time Union of Americu, .41-L-CIO (armers nion Grain Terminal A.ssociation), 152 NRI3 1447, 1458 (1965). Nor can it be argued that because they transferred commod- ities from ACHL's barges to oceangoing steamships, GETCO and Cooper performed an operational function of the primary employer, and thus were lawfully picket- ed by the Union. For neither AC1L nor any of its affili- ates involved in the dispute load or unload barges as part of their service. Their only function is to tow barges from a shipping point to a destination along the Missis- sippi, its tributaries, and the Gulf intracoastal canal system. In sum, GETCO and Cooper were independents of ACBL and its related firms and were not engaged in any activity normally engaged in by ACBL. Southern Ohio, or Inland Instead, I find that Cooper and GETCO were neutral employers engaged in their own usual day- to-day activity. In sum, I find that the Union, by picketing Cooper and GETCO as described above, attempted to involve these two neutral employers and their employees in its dispute with ACBL, Southern Ohio Towing, and Inland. I also find that the purpose of the picketing was to persuade GETCO's and Cooper's employees to refuse to unload the ACBL barges and thus engage in a refusal to per- form services within the meaning of Section 8(b)(4)(i) and that by this same picketing GEJCO and Cooper were threatened, restrained, and coerced within the meaning of Section 8(b)(4)(ii); and that the object of this same picketing was to force or to require (ETC() and Cooper and their customers to cease using the primary employer's barges or to otherwise cease doing business with those primary employers. I therefore find that by this picketing the Union violated Section 8(b)(4)(i) and (ii)(13) of the Act. l'armnr Union (rain li'rminal .lssoci- ation, 152 NLRB at 146hl. CO( I USIONS o( L w 1. The Union, Seafarers International Union of North America, Atlantic. Gulf. Lakes and Inland Water Dis- trict, is a labor organization within the meaning of Sec- tion 2(5) of the Act. 2. American Commercial Barge l ine Conlpany. South- ern Ohio Towing Company, Inc., Inland Tugs Company, Gulf' Elevator and Transfer Company, and Cooper Ste- vedorinig Company, Inc.. and American Barge Line Company, are each employers engaged in commerce or in an industry affecting commerce within the meaning of the Act. 3. The Union, by picketing the worksites of Cooper Stevedoring Company, Inc. (Cooper) and Gulf Elevator and Transfer Company (GETCO), has induced and en- couraged individuals employed by Cooper and GETCO to engage in strike oi refusal in the course of their em- ployment to perform services for their respective em- ployers, and has restrained and coerced Cooper and GETCO with an object, in each instance, of forcing or requiring Cooper and GETCO to cease handling the barges of American Commercial Barge Line Company and its affiliates or otherwise doing business with those firms and has thereby engaged in unfair labor practices within the meaning of Section 8(b)(4)(i) and (ii)(B) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. THIi RINtlI)Ym Having found that the Union engaged in unfair labor practices within the meaning of Section 8(b)(4)(i) and (ii)(B) of the Act, I shall recommend that the Union cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. I shall also recommend posting of the usual notice. Upon the basis of the foregoing findings of fact, con- clusions of law, and the entire record in this proceeding, and pursuant to Section iO(c) of the Act, I hereby issue the following recommended: ORDER 4 The Respondent. Seafarers International Union of North America, Atlantic, Gulf, akes and Inland Water District, its officers. agents, and representatives. shall: 1. Cease and desist from: (a) Inducing or encouraging any individual employed by Gulf Elevator and Transfer Company or Cooper Ste- 4 In he ci.cn1 nlo cxncplilons are filed as pro idel hy Sc 10(12 46 f he Rules, ian Regulai on, of the Nalional I ahor Rcltior t Ios ard the find- rlgs , ColItl1iuon., tld recillnm rdll.l Order h}rcin shall, as pro ided in Sec 102 4 of the ults rin R'gutla whon., e Patpt'td hb the toard and heL inc its il il gS, cmnciltlo 11 tiltd ()rder ialrd all objections thereto shall hbe decmed 'vaised Fo r al purpses 141 DECISIONS OF NATIONAL .AIO()R RATIONS I()ARI) vedoring Company, Inc., or any other person engaged in commerce or in an industry affecting commerce with whom it has no primary dispute, to engage in a strike or refusal in the course of his or her employment to per- form any services, where an object thereof is to force or require the above-named persons to cease doing business with American Commercial Barge Line Company, Southern Ohio Towing Company, Inc., Inland Tugs Co., or any other affiliate of American Commercial Barge Line Company. (b) Restraining Gulf Elevator and Transfer Company, Cooper Stevedoring Company, Inc., or any other person engaged in commerce or in an industry affecting com- merce, with whom it has no primary dispute, where an object thereof is to force or to require the above-named persons to cease doing business with American Commer- cial Barge Line Company, Southern Ohio Towing Com- pany, Inc., Inland Tugs Co., or any other affiliate of American Commercial Barge Line Company. 2. Take the following affirmative action which is deemed necessary to effectuate the policies of the Act: (a) Post at its business offices, meeting halls, and at all places where Respondent, Seafarers International Union of North America, Atlantic, Gulf, Lakes and Inland Water District, customarily posts its notices copies of the attached notice marked "Appendix." 5 Copies of said no- tices on forms provided by the Regional Director for Region 15, after being duly signed by Respondent's au- thorized representative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 con- secutive days thereafter, in conspicuous places, inlcuding all places where notices to members are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced. or cov- ered by any other material. (b) Furnish the Regional Director for Region 15 signed copies of aforesaid notice to be posted by the above-named companies, if they are willing, at places where they customarily post notices to their employees. s In the eent that this Order is enforced by a Judgment of a United States Court of Appeals, the words ill the notice reading "Posted y Order of the National Labor Relations Hoard" shall read "'oslted P'ursu- ant to a Judgment of the United States Court of Appeals Fnfircing an Order of the Natiotnal Labhor Re lat iions Ioard." (c) Notify the Regional Director for Region 15, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. APPEN DIX No itci. To En'It OYI.L..s PosTli ) tH ORIE)R OF: I lit NA I IONAl LABOR Ri I IIONS BOARD An Agency of the United States Government After a hearing at which all parties were represented by their attorneys and afforded the opportunity to present evidence in support of their respective positions, it has been found that we have violated the National Labor Relations Act in certain respects and we have been or- dered to post this notice to you and to carry out its terms. WlI WILL. NOT induce or encourage any individ- ual employed by Cooper Stevedoring Company, Inc., or by Gulf Elevator and Transfer Company, or by any person engaged in commerce, or in an in- dustry affecting commerce. with whom we have no primary dispute, to engage in a strike or refusal in the course of his or her employment to perform any services where an object thereof is to force or re- quire the above-named persons to cease doing busi- ness with American Commercial Barge Line Com- pany, Southern Ohio Towing Company, Inc., Inland Tugs Co., or any other affiliate of American Barge Line Company WI. Wvi I NOT coerce or restrain Gulf Elevator and Transfer Company. Cooper Stevedoring Com- pany, Inc.. or any other person engaged in com- merce or in an industry affecting commerce, with whom it has no primary dispute. where an object therof is to force or require the above-named per- sons to cease doing business with American Com- mercial Barge Line Company. Southern Ohio Towing Company, Inc., Inland Tugs Co., or any other affiliate of American Commercial Barge Line Company. SIAARIRS IN'FR NA I IONAI UNION O1 NOR I it ANi ERICA, A II.AN I IC, GUI F, LAKiS ANt) INI.AND W I IR DISTRIC I 344