G. W. Gladders Towing Co.

186 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD G. W. Gladders Towing Company and National Maritime Union of America , AFL-CIO. Case 14-CA-12904 15 December 1987 DECISION AND ORDER By MEMBERS JOHANSEN, BABSON, AND STEPHENS On 7 April 1981, Administrative Law Judge James M. Fitzpatrick issued the attached decision. The Respondent filed exceptions and a supporting brief. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and brief and has decided to affirm the judge's rulings, findings, and conclusions and to adopt the recommended Order as modified. The question presented is whether the Respond- ent violated Section 8(a)(1) of the Act by denying' nonemployee union organizers access to its tow- boats to speak to employee crewmen. As in SCNO Barge Lines, 287 NLRB 169, decided this day, which also concerns a union's request for access to crewmen working on towboats, we apply the test set forth in Fairmont Hotel' and find that the prop- erty right and the Section 7 right at issue here are relatively equal in strength. Unlike SCNO, howev- er, we find on the pertinent facts of this case that no reasonable means of communicating the Union's organizational message to employees existed other than through the Respondent's allowing the Union access to its crewmen. As detailed in the judge's decision, the Respond- ent operates towboats and barges on the Mississipi and Illinois Rivers and the intercoastal canal in the vicinity of New Orleans-Baton Rouge. In April 19792 the Union commenced a campaign to orga- nize crewmen of 20 nonorganized companies in the Mississippi River system, including those employed by Gladders. On 25 July the Union, by letter, re- quested access to Gladders' boats. Gladders, by letter, denied the Union's request. On 30 August the Union, by letter, requested from Gladders the names of its employees, excluding captains and pilots, along "with their home addresses and com- pany address by boat." Gladders replied to this re- quest with an inquiry for clarification of the phrase "the Company's address by boat," but provided none of the information sought. 282 NLRB 139 (1986) z All dates are in 1979 unless otherwise indicated In Fairmont, supra, the Board enumerated some of the factors to be considered in determining the relative strength or weakness of property and Sec- tion 7 rights.3 Applying these factors, we find that the Respondent is asserting a very strong property right. The property in question is the Respondent's towboats. The towboats tie up at docks or along banks only briefly while waiting to go through Lock 26 on the Mississippi River, at the end of each voyage, for occasional repairs and, in some cases, for refueling. Otherwise, they are in continu- ous motion along the river system. Numerous haz- ards accompany coming aboard these vessels and visitors are not encouraged. Work aboard the tow- boats goes on around the clock and access to the messroom and lounge area, where nonemployee union organizers wish to meet with off-duty crew- men, requires passing through work areas, neces- sarily raising the risk that nonemployee organizers coming aboard will interefere with production. There is no question but that the right of work- ers to organize freely for the purpose of collective bargaining is a very strong. Section 7 right, one found by the Supreme Court to be "at the very core of the purpose for which the NLRA was en- acted."4 Here, the union organizers sought access to vessels of the Respondent, the targeted employ- er, in furtherance of this paramount right of em- ployees to organize.5 We thus find that both the property and Section 7 rights are very strong and stand on relatively equal footing. Accordingly, we deem it necessary to consider whether reasonable alternative means by which the Union could have communicated its message were available.6 3 Fairmont, supra at 141-142 a Sears, Roebuck & Co v San Diego County District Council of Carpen. ters, 436 U S 180, 206 fn 42 (1978) 5 Fairmont Hotel, supra at 142, in 18 6 Member Stephens reads NLRB v Babcock & Wilcox Co, 351 US 105 (1956), as holding that when nonemployee union agents seek access to private property to organize an employer's employees, and when there is no claim that the property owner has discriminated against unions in its access restrictions, we can order access only if it is demonstrated that the locations of the employees' workplace and living quarters are such that "the employees are beyond the reach of reasonable union efforts to com- municate with them " Id at 113 Hence, he believes that we need not engage in any balancing of Sec 7 rights against property rights before applying the reasonable alternative means test He agrees, howev- er, that the balance struck in this opinion comports with the principles of Fairmont Hotel, supra In Member Babson's view, the analysis set forth in Fairmont Hotel is consistent with Babcock & Wilcox, supra In Babcock & Wilcox, the prop- erty and Sec 7 rights were each compelling As both rights were com- pelling, the Supreme Court proceeded to examine whether there were al- ternative means of communication available to the union that would ac- commodate the union's Sec 7 right while maintaining the employer's property right In Member Babson's view, the Court's analysis in Babcock & Wilcox assumed the relative equality of the Sec 7 and property rights in issue See Fairmont Hotel, supra, 282 NLRB at 142 in 18 287 NLRB No. 30 G W GLADDERS TOWING CO 187 In considering this question, it is instructive to review the Supreme Court's decision in Babcock & Wilcox, supra, the seminal case involving the ac- commodation of property rights and Section 7 rights. In Babcock & Wilcox, union organizers sought access to privately owned parking lots at an industrial site so that they could organize the em- ployees. As both rights claimed were important ones, the Court carefully reviewed the facts before it to ascertain if there was some way that the Sec- tion 7 right in issue could be effectuated without requiring trespassory access. The Court concluded that access to the employees could be obtained in the adjacent town or at the employees' homes. Therefore, access to Babcock and Wilcox's proper- ty was denied. The Court specifically acknowl- edged, however, that in rare circumstances the ac- commodation principle may require trespassory or- ganization activities, citing NLRB v. Lake Superior Lumber Corp.,7 a case invalidating restrictions placed on access to employees living and working at an isolated lumber camp. The Court elaborated: "If the location of a plant and living quarters of the employees place the employees beyond the reach of reasonable union efforts to communicate with them, the, employer must allow the union to ap- proach his employees on his property."8 In Sears, Roebuck & Co. v. San Diego County District Council of Carpenters, supra, the court again acknowledged that union access for organizational activity is properly granted "in cases involving unique obsta- cles to nontrespassory methods of communication with the employees,"9 citing Lake Superior Lumber and also NLRB v. S&H Grossinger's, 10 a case or- dering union access to employees living and work- ing on the premises of a resort hotel. We conclude that the case at hand presents a rare situation that, like Lake Superior Lumber and Grossinger's, involves "unique obstacles to nontre- spassory methods of communicating with employ- ees"' 1 warranting union access for organizational purposes The General Counsel has established that the "inaccessibility" of the Respondent's crewmen "makes ineffective reasonable attempts by nonem- ployee union organizers to communicate with them through the usual channels." 12 This case, in many respects, is similar to SCNO Barge Lines, in which we this day dismissed the complaint because we concluded that the General Counsel failed to establish that there were no rea- sonable alternative means through which the union 7 167 F 2d 147 (6th Cir 1948), enfg 70 NLRB 178 (1946) 8351 US at 113 8 Supra, 436 U S at 205 fn 41 10 372 F 2d 26 (2d Cir 1961), enfg as modified 156 NLRB 333 (1965) 1 See fn 9, supra 12 Babcock & Wilcox, supra, 351 U S at 112 could have communicated its message to the em- ployer's crewmen. The present case, however, dif- fers in two significant ways from SCNO. In SCNO, we found that the absence of alternative means of communicating the union's message to the crew- men had not been demonstrated because, despite having possession of the crewmen's names and home addresses, the union had not tried to tele- phone or visit the crewmen at their homes and did not otherwise show that it would not be feasible to do so. In addition, in SCNO we noted that in a prior case unions in an election campaign had suc- ceeded in contacting a fair portion of SCNO's crewmen, despite being denied access to SCNO's towboats, by using methods that included tele- phone calls and home visits. We found that, given this prior history, it was particularly imperative for the General Counsel or the union to show that such methods were not reasonable alternatives in the organizing campaign in issue in that case. These crucial circumstances are not present in the case before us. The Union asked the Respond- ent for its crewmen's names and home addresses, but the Respondent did not supply this information and the Union had no other way to obtain it. Absent knowledge of the crewmen's names and ad- dresses, the Union could not attempt to visit or telephone the crewmen at their homes. Additional- ly, unlike SCNO, there is no record of prior union success in contacting the Respondent's crewmen that would indicate the availability of means of communicating with the crewmen. In these circum- stances, unlike in SCNO, it is clear that visits and telephone calls to crewmen's homes were not avail- able as a means by with the Union could have communicated with the Respondent's crewmen. For the reasons stated by the judge, we find that the evidence shows that the other asserted alterna- tive means of communicating with crewmen were unavailable or would not actually provide a means of communication. Accordingly, we conclude that the General Counsel has met the burden of show- ing that no reasonable alternative means for the Union to communicate its organizational message to the Respondent's crewmen existed.13 We, there- I3 In sec III,C,1 of his decision, in the context of discussing a different issue, the judge quotes a portion of the Board's decision in Alaska Barite Co, 197 NLRB 1023 (1972), that includes a statement that may be viewed as indicating that in certain circumstances the union or the Gen- eral Counsel does not bear the burden of proving that reasonable alterna- tive means of communication do not exist Later, however, when express- ly considering the burden of proof issue in sec III,C,2,d of his decision, the judge acknowledges the Supreme Court's decision in Sears, Roebuck & Co v San Diego County District Council of Carpenters, supra, 436 U S at 205, which held, subsequent to Alaska Barite, that "[tlo gain access, the union has the burden of showing that no other reasonable means of com- municating its organizational message to the employees exists " the Continued 188 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD fore, find that the Respondent violated Section 8(a)(1) of the Act by denying the Union access to its towboats,14 and that an access order is appro- priate. REMEDY While we find that the record warrants requiring the Respondent to allow the Union access to the Respondent's crewmen, we are, nevertheless, cog- nizant of the particular burden that may be im- posed on the Respondent and the particular inter- ference that may be caused to the Respondent's op- erations by visits of union organizers to the Re- spondent's towboats, as the towboats generally are in constant operation, are engaged in work that is somewhat hazardous, and have confined quarters so that visiting union representatives would have to pass through work areas. Under these circum- stances, we conclude that an adequate and appro- judge further indicates that the requisite burden has been met in this case We understand the judge's decision as correctly placing on the General Counsel the burden of proving that reasonable alternative means of com- munication did not exist In any event , this burden of proof is the one that we have applied in our consideration of the case 14 In finding a violation, we note that this case is significantly different from prior "ship access" cases in which the Board's orders have been denied enforcement by courts of appeals In Sioux City Barge Lines, 193 NLRB 382 (1971), enf denied 472 F 2d 753 (8th Cir 1973), unlike the present case, the employer provided to the unions trying to organize the crewmen an Excelsior list with the names and home addresses of its crew- men, the dates crewmen would be off duty and not on board ship, and points where they might disembark or come aboard One of the unions there succeeded in making face-to-face contact with 35 of the 118 unit employees, in part through use of the address list The court found that this showed that the union could achieve personal meetings with employ- ees even absent an access order Additionally, in that case the court found that it would impose a substantial burden on the employer's prop- erty and managerial interests to coordinate and oversee towboat visits by representatives of three competing unions In the present case, by con- trast, there is only one union seeking access Moreover, as addressed in the remedy section , infra , we have fashioned our access order to substan- tially lessen the potential burden to the Respondent 's interest in produc- tion and safety In Sabine Towing Co, 205 NLRB 423 (1973), enf denied in pertinent part 599 F 2d 663 (5th Cir 1979), the employer's ships were in port about eight times a month for periods of 17 to 35 hours, the employees fre- quently went ashore on these occasions, and the union had succeeded in talking to a substantial number of employees at these times This evidence led the court of appeals to conclude that the General Counsel had failed to show lack of alternative means of communication By contrast, in the present case the Respondent's towboats are virtually in constant oper- ation and do not dock for any substantial periods Additionally, in Sabine Towing, the court held that the Board erroneously placed the burden of proof concerning alternative means of communication on the employer in the present case, however, we have placed on the General Counsel the burden of proving the absence of reasonable alternative means of communication In Belcher Towing Co, 238 NLRB 446 (1978), enf denied 614 F 2d 88 (5th Cir 1980), on remand 256 NLRB 666 (1981), enf denied without published opinion 683 F 2d 418 (11th Cir 1982), the court of appeals again held that the Board erroneously placed the burden of proof about alternative means of communication on the employer Following remand to the Board , the court again denied enforcement , stating in its unpub- lished order that the evidence indicated that organizers for three different unions had, within a relatively short period of time, contacted a large number of Belcher 's seamen and solicited cards from them In contrast, in the present case there is no similar evidence of success by any union in contacting the Respondent 's crewmen priate remedy may be afforded by ordering that the Respondent allow the Union reasonable access to its crewmen on board its towboats or, alterna- tively, that the Respondent instead provide suitable on-shore access to its crewmen, such as at locations where crewmen board or disembark from the Re- spondent's towboats. Such alternative on-shore access would include arrangements whereby, pur- suant to advance consultation and notification be- tween the Respondent and the Union, crewmen of the Respondent, identified as such to the Union, would be present and could be contacted face to face by the Union on the Respondent's property, or other property where the Union has a right to be present, for regular periods and reasonable lengths of time, as when crewmen are off-duty on board the towboats. By providing in our Order for this alternative form of access, we are fulfilling our responsibility to strike an appropriate accommoda- tion between the crewmen's Section 7 right and the Respondent's particular property right as they occur in the context of this case.15 ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, G. W. Gladders Towing Company, Clayton, Missouri, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) continuing or giving effect to its policy bar- ring nonemployee organizers from access to em- ployees on its vessels for the purpose of soliciting them during their free time on behalf of the Na- tional Maritime Union of America, AFL-CIO, or any other labor organization, or for consulting, ad- vising, meeting, or assisting the employees in regard to their rights to self-organization, provided, however, that nothing herein shall be construed to prohibit the Respondent from making and enforc- ing reasonable regulations with respect to visits to its vessel by such nonempioyee union organizers or from providing, as full compliance with this Order, suitable on-shore access to the organizers as de- scribed in the remedy section of this decision. (b) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. (a) Subject to reasonable regulations, allow non- employee organizers of the National Maritime i5 See Hudgens v NLRB, 424 U S 507, 522 (1976) G W GLADDERS TOWING CO 189 Union of America, AFL-CIO, or any other labor organization , to have access on the Respondent's vessels to the Respondent's employees during their free time for the purpose of soliciting them on behalf of a labor organization, or for consulting, advising , meeting, or assisting the Respondent's employees in regard to their rights to self-organiza- tion (b) Alternatively to paragraph (a), above, allow nonemployee organizers of the National Maritime Union of America, AFL-CIO, or any other labor organization , to have on-shore access to Respond- ent's employees as described in the remedy section of this decision for the purpose of soliciting them on behalf of a labor organization , or for consulting, advising, meeting, or assisting the Respondent's employees in regard to their rights to self-organiza- tion. (c) Post at its premises in St. Louis and on each of its towboats copies of the attached notice marked "Appendix." 16 Copies of the notice, on forms provided by the Regional Director for Region 14, after being signed by the Respondent's authorized representative , shall be posted by the Respondent immediately upon receipt and main- tained for 60 consecutive days in conspicuous places including all places where notices to em- ployees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered , defaced, or covered by any other material. (d) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. MEMBER JOHANSEN , concurring. I agree with my colleagues that the General Counsel has met her burden of proving that the Union had no reasonable alternative means of com- municating its organizational message to employ- ees. With due regard for this significant factor as it affects the nature and strength of the Section 7 claim, I find that the Section 7 interest outweighs the property interest, and that the latter must there- fore yield . Accordingly, I join my colleagues in finding that the Respondent's refusal to allow orga- nizers aboard its towboats violated Section 8(a)(1). I disagree, however, with the significance my colleagues attach to telephone calls, and ultimately home visits , to crewmembers as alternatives in whose pursuit the Union was fatally impaired when the Respondent failed to furnish it a list of crew- 16 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading "Posted by Order of the Nation- al Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " member names and addresses. When, as here, a union seeks to organize 111 crewmembers with homes scattered throughout 13 States and the Dis- trict of Columbia, and when, as found by the judge, it has tried and failed to reach employees going on leave because of their unpredictable times and locations of deboarding, the effectiveness of telephone solicitation as a catalyst to home visits is patently minimal.' As aptly expressed by the Gen- eral Counsel in briefing the judge, "Lex non prae- cipit inutilia; quia inutilis labor stultus."2 I See my dissent in SCNO Barge Lines, 287 NLRB 169, issued today This is not to state that there may not be uses to which the Union might have effectively put such a list, at least in conjunction with other tech- niques 2 Commentaries by Littleton by Sir Edward Coke ("The law com- mands not useless things, for useless things are folly ") APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board 'has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representa- tives of their own choice To act together for other mutual aid or pro- tection To choose not to engage in any of these protected concerted activities. WE WILL NOT continue or give effect to our policy of barring nonemployee union organizers from access to employees on our towboats for the purpose of soliciting them during their free time on behalf of the National Maritime Union of America, AFL-CIO, or any other labor organization, for consulting, advising, meeting, or assisting our em- ployees in regard to their rights to self-organiza- tion, provided that we may make and enforce rea- sonable regulations about nonemployee union orga- nizers' visits to out towboats and we may provide suitable on-shore access to the organizers as de- scribed in the remedy section of the Board's deci- sion instead of providing access on our towboats. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. 190 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD WE WILL, subject to reasonable rules and regula- tions, allow nonemployee organizers of the Nation- al Maritime Union of America, AFL-CIO, to have access on our vessels to our employees during their free time for the purpose of soliciting them on behalf of a labor organization , or for consulting, advising, meeting, or assisting our employees in regard to their rights to self-organization, or we shall provide a suitable onshore site to the Union for such purposes. G. W. GLADDERS TOWING COMPA- NY Keltner W. Locke, Esq., for the General Counsel John O. Harris, Esq. and Michael E. Kaemmerer, Esq, of Chesterfield, Missouri, for the Respondent. Mr. John A. Guay, of San Francisco, California, for the Charging Party. DECISION STATEMENT OF THE CASE JAMES M FITZPATRICK, Administrative Law Judge. In this case a river towboat company refused to allow union organizers to board its towboats for the purpose of organizing the crewmembers As detailed below, I find that in the circumstances presented union organizers should be allowed aboard. This is one of two cases arising from unfair labor prac- tice charges filed August 23, 1979,' by the National Mar- itime Union of America, AFL-CIO (the Union). In the instant matter, Case 14-CA-12904, the charges are against G. W. Gladders towing Company, Inc. (Re- spondent or Gladders). In the second matter, Case 14- CA-12905, they are against SCNO Barge Lines, Inc. On November 9 the two matters were administratively con- solidated and a consolidated complaint and notice of hearing issued . On November 16 Gladders answered the consolidated complaint. Both companies moved for sev- erance. On November 20 the cases were administratively severed and on December 5 an amended complaint issued against Gladders reflecting the severance This complaint alleges, inter alia, that Gladders committed unfair labor practices proscribed by Section 8(a)(1) of the National Labor Relations Act (the Act), by its letter of August 10 in which it denied nonemployee union orga- nizers access to Gladders' towboats for purposes of orga- nizing among Gladders' crewmen. On December 14, Gladders answered again denying that by its letter, or otherwise, it had engaged in unfair labor practices. All other allegations including jurisdiction and identity of the parties were admitted. The sole issue remaining is whether refusal to allow nonemployee organizers aboard towboats to organize among employees violated Section 8(a)(1) of the Act. The case was heard before me at St. Louis, Missouri, on December 18. Based on the entire record,2 including .my observation of the witnesses, arguments of counsel, and consideration of the briefs of the General Counsel and the Respondent, I make the following FINDINGS OF FACT 1. EMPLOYER OPERATIONS A. Commerce and Business Gladders, a Missouri corporation, is engaged at Clay- ton in the vicinity of St Louis, Missouri, in the business of transporting of customers' dry cargo barges propelled by its own towboats on inland waterways of the United States, specifically the Mississippi and Illinois Rivers and the Gulf Intercoastal Canal between Baton Rouge and New Orleans, Louisiana This transportation moves com- modities and equipment between various States and is a form of interstate commerce. During the calendar year ending June 30, a period rep- resentative of its operations, Gladders, in the course of its business, received revenues exceeding $50,000 for its services as an instrumentality or link in interstate com- merce. I find Gladders is an employer engaged in inter- state commerce B How Towboats Function A towboat pushes a group of barges, all of which may be empty, or loaded with cargo, or some empty and some loaded. Each barge, 195 feet long and with a beam of 35 feet, is capable of carrying 1500 tons of cargo Gladders' towboats typically push up to 15 barges and at times handle as many as 40. The barges being pushed (the tow) are secured to each other and the towboat by steel cables, thus making the tow and towboat an integral unit for navigating In the event of collision, groundings, or any occasion when the cables are subjected to extraordinary stress, they may part, creating a serious hazard to persons aboard the barges or towboat Similarly, ratchets used to tighten cables may be sent flying, thereby creating additional hazards Numerous other hazards are inherent in towboat operations including insecure footing aboard, and the ever present risk of fire, which is enhanced by the large amount of diesel fuel used to power them I find such hazards are normal conditions of the workplace on tows and towboats t C. Upper River Locks Although Gladders normally operates on the Illinois River and on the Mississippi from the confluence of the Illinois with the Mississippi south to New Orleans, in- cluding the intercoastal canal, it occasionally has a tow on the upper Mississippi above the mouth of the Illinois North of St. Louis, locks in the Mississippi and Illinois ensure a navigable channel There are no locks south of St Louis The second lock north of St. Louis, Lock 26, l Respondent's unopposed motion to correct the transcript is granted The record is corrected as get forth in Appendix B attached and made a All dates herein are in 1979 unless otherwise indicated part hereof [omitted from publication] G. W. GLADDERS TOWING CO. 191 in the vicinity of Alton, Illinois, is the scene of frequent bottlenecks of marine traffic, which may back up as far as 15 miles. On those occasions, towboats and tows typi- cally tie up along the Illinois bank to await their turn through the lock. A highway on the adjacent bank paral- lel to this tieup site provides easy access to boats waiting there. A Gladders towboat arrives at Lock 26 on the av- erage of one every third day. D. The Gladders Fleet The Gladders fleet consists of five towboats, the two smallest operating through the locks above St. Louis, the two largest between St. Louis and New Orleans, and the fifth towboat on the intercoastal canal in the vicinity of New Orleans-Baton Rouge . All the towboats are of sub- stantial size, the smallest being 85 feet in length and the largest 168 feet. Each towboat has living accommodations aboard for the crew, including a mess room where they gather for meals, and four also have lounges where crewmen spend off-duty time. E. Supplies Gladders towboats are intended to operate continuous- ly. Normally they are on the move except for a 1 to 1- 1/2 hour pause at the end of each voyage when the tow is delivered and another is picked up, and except for oc- casional marine repairs or servicing. In addition, the second largest towboat (and occasionally others) typical- ly takes on fuel at the riverbank in St . Louis, stopping there for 3 or more hours . But most deliveries of fuel as well as groceries are made underway, supply craft coming out from the shore and moving alongside the towboat as the transfer of the supplies are carried out. These supply functions are performed in the vicinity of Memphis by a marine supply store there and in the Baton Rouge-New Orleans area, by another marine supply store. F. Towboat Personnel Gladders towboats are manned by a crew of 11 includ- ing the captain , a pilot, 2 engineers, I cook, and 6 deck- hands. Except for the cook, all work alternating 6-hour watches. A normal tour of duty aboard is 30 days. For each day aboard, a crewman earns 1 day of paid leave ashore. When a crewmember's tour aboard is about completed, Gladders management arranges for relief by a substitute crewmember. Ordinarily, change in the entire crew does not occur at one time . The crew changes are staggered based on the work schedule of the individual crewman involved. When relief of an on-duty crewmember is imminent, management notifies the towboat captain of the time and location of relief and also contacts the relieving crew- member at home to be at the designated point for the ex- change . The normal points for crew changes are in the vicinity of Lock 26 where towboats tie up to the Illinois bank adjacent to the highway, at St. Louis on those oc- casions when a towboat is being refueled there, in the vi- cinity of Memphis in connection with the marine supply store's delivery of fuel and groceries, and in the Baton Rouge-New Orleans vicinity, also in connection with de- liveries to the towboat. The crewmembers involved usually travel between these locations and their homes by public transportation for which Gladders either prepays or reimburses them. During the period July 25 to November 9, which I find is representative of Gladders operations, the Company employed a total of 111 crewmen, excluding captains and pilots. Although the residences of some of these individ- uals were as diverse at the District of Columbia and 13 different States, 22 live in the St. Louis area, 28 in the area around Cape Girardeau and Poplar Bluff, Missouri, and 11 in the vicinity of Memphis. Thus, of the 111, 61 reside in three general areas close to the Mississippi and the residences of 50 are widely dispersed elsewhere. G. Visitors Aboard Gladders does not encourage visitors aboard its tow- boats. However, as an accommodation to customers it allows them and their friends aboard. To ensure the safety of these visitors, the Company has in effect a writ- ten guest policy for the guidance of towboat captains and crews. Visitors usually come aboard in connection with a delivery of supplies by one or the other of the two marine supply stores in the lower river. II. THE UNION The Union, a labor organization as contemplated in the Act, represents maritime personnel, including em- ployees aboard vessels on the inland waterways of the United States. It maintains an office in San Francisco and branch offices in Omaha, Nebraska; St. Louis, Missouri; Paducah, Kentucky; Memphis, Tennessee ; New Orleans, Louisiana; and Joliet, Illinois. The Union also maintains patrolmen (business agents) at various points along the Mississippi River system, including the union offices at the cities mentioned. The Union maintains collective-bargaining agreements with certain towboat companies operating on the river system whose crewmen it represents . On these vessels it has designated delegates among the crewmembers who fulfill functions similar to a shop steward in a plant ashore. The Union does not represent Gladders' employ- ees. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Commencement of Organizing Campaign As noted above the Union already represents crew- members of some towboat companies operating on the Mississippi river system . In April it began a new cam- paign to organize unorganized crewman on the river system. Although in its brief Gladders urges that this was an effort to organize 30,000 employees working for 200 unorganized companies throughout the United States, the union effort was much more limited in that it targeted 20 unorganized towboat companies , including Gladders, as objects of its organizing. 192 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD B Events Relating to Gladders 1 At Lock 26 in June After reviewing its past organizing efforts on the river, union organizers concluded that the optimum site for their efforts was along the Illinois bank near Lock 26 where towboats frequently tie up. With that in mind International Organizer John Guay stationed himself on the bank on two occasions in early June, handing out packets of pledge cards along with his own business card to crewmen aboard boats already organized by the Union with the request from Guay that they pass them along to crewmen on unorganized boats During these two visits to the area of Lock 26 he did not encounter any Gladders boats, nor is there evidence that material that he passed out reached Gladders crewmen. Shortly after mid-June, specifically during the period June 18 through 23, Union Organizers Raymond Zapor- owski and Thomas Blessie also stationed themselves on the Illinois bank in the vicinity of Lock 26 for the same purpose. According to Zaporowski, whom I credit, they found one Gladders towboat tied to the bank There being no one on the deck, they hailed the pilot house from which two unidentified men emerged The two or- ganizers identified themselves, stated their purpose, and requested permission to come aboard. The men on the towboat declared they were not interested in the Union. Zaporowski replied that they were not there to organize them but instead to organize their crew. One of the men on board responded, "They're not interested." In the circumstances I find that, although not specifi- cally identified, the two who emerged from the pilot house were the captain and the pilot, the pilot house being their normal work station and not the normal sta- tion for the deckhands, engineers, or the cook The cap- tain has overall responsibility for the towboat and the tow, and his alternate when he is not on watch is the pilot. I 'further find that their language used in respond- ing to the union organizers was reasonably understood as a refusal to allow access to Gladders crewmen aboard for purposes of union organizing 2 Written request for access Having once been denied permission to board a Glad- ders towboat in June, the Union, on July 25, wrote to the company president advising that it had commenced an organizing drive on Gladders' boats. The letter con- tinued, "we are hereby requesting access on all of your boats, wherever they may be, to meet with your employ- ees." On August 10, Gladders' attorneys replied in a letter stating that the Company had no legal obligation to permit union access to its boats as requested and therefore the request was denied. 3. At Lock 26 in August During the week of August 5 through 12, Guay, Za- porowski, and Blessie again stationed themselves along the bank in the vicinity of Lock 26 During this period they again spotted one Gladders boat. Guay hailed the pilot house and, as a man emerged from it, the organizers identified themselves and asked to come aboard The man said no As with the incident in June, I find in these circumstances the man emerging from the pilot house was either the captain or the pilot This again was rea- sonably understood as a denial to union organizers of access to crewmen aboard for the purpose of organizing on behalf of the Union. During this same period the organizers handed out pledge cards to crewmembers on boats already under contract with the Union with the request that should they be alongside a nonunion boat, they attempt to pass the information to crewmen aboard the other boat. In addition to the union pledge cards the literature handed out included reprints from the union newspaper involv- ing the general campaign to further organize employees on river boats. 4. The Union's second letter On August 23 the Union filed the unfair labor practice charges in this case. On August 30 it sent a second letter to Respondent's president again notifying him that the Union had commenced an organizing drive on Gladders boats and adding to its earlier request for access a re- quest for a "mailing list of all employees on your boats excluding captains and pilots, also their home addresses and the company address by boat." Gladders attorneys responded on September 12 in a letter asking for clarifi- cation of the phrase "the Company's address by boat" as used in the union letter They wrote that the Union's answer would help them in evaluating the union request. There is no claim here that the response on behalf of the Company was an unfair labor practice Rather, the General Counsel offers the evidence to establish that Gladders in fact did not identify its crewmen by name or give their home addresses or the boat to which they were assigned No further information in this regard was supplied the Union until the hearing on December 18 when by agreement Respondent supplied to the General Counsel a list of the names only of the 111 crewmen em- ployed In its brief the Company argues that the Union is re- sponsible for any delay in the Company supplying infor- mation because it never replied to the company request for clarification of the phrase "the Company's address by boat." This argument is without merit. While there may be some slight ambiguity in the wording of the union letter, there is no real doubt about its meaning The per- tinent part reads The National Maritime Union in addition to the re- quest of access on all your boats hereby requests a mailing list of all employees on your boats exclud- ing captains and pilots; also their home addresses the company address by boat Fairly read, this means that the Union requested a mail- ing list of all crewmen, the list to include their home ad- dresses and their mailing address aboard the boats to which they were assigned. I view the September 12 letter requesting clarification as a ploy for delaying a re- sponse G W GLADDERS TOWING CO 193 5. Union mailing In September the Union continued its campaign by mailing to its delegates on unionized towboats packets of campaign literature with the request that they distribute the material to crewmen on nonunion boats Each packet contained 20 brochures explaining the benefits of union- ization plans a detachable union plede card. The Union received no response from Gladders employees as a result of these mailings In fact there is no indication that any Gladders crewmen acutally received the literature exclude from property has been required to yield to the extent needed to permit communication of infor- mation on the right to organize The right of self-organization depends in some measure on the ability of employees to learn the ad- vantages of self-organization from others. Conse- quently, if the location of a plant and the living quarters of the employees place 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 proper- C. Discussion This case is one in which the Board must reach an ac- commodation between Section 7 organizational rights of nonemployee organizers and employees on the one hand and conflicting private property rights of the employer on the other. The General Counsel contends that union organizers are entitled to access aboard company boats because reasonably adequate alternative means do not exist for communicating with the crewmen. Gladders argues that the Union is not entitled to access because organizers made no respectable attempt to use alternative means before seeking access, that even if they had, rea- sonable alternative means of communication exist, and fi- nally that safety and liablility risks that could result from the presence of organizers aboard justify the Company in refusing access 1 Adequacy of organizing by alternative methods With some encouragement during the hearing3 Glad- ders counsel urged then and also in his brief that prior to seeking access to employer premises, union organizers must first attempt without success alternate means of communication. He argues further that the Union, having failed to exhaust available alternatives, lacks the right to request access aboard. On further consideration I conclude that my comment at the hearing was in error and the point urged by Respondent is not valid The underlying test in access cases was laid down by the Supreme Court in NLRB v Babcock & Wilcox Co., 351 U.S. 105 (1956) The Court stated (at 112-113). It is our judgment, however, that an employer may validly post his property against nonemployee distribution of union literature if reasonable efforts by the the union through other available channels of communication will enable it to reach the em- ployees with its message and if the employer's notice or order does not discriminate against the union by allowing other distribution. The employer may not affirmatively interfere with organization; the union may not always insist that the employer aid organization. But when the inac- cessibility of employees makes ineffective the rea- sonable attempts by nonemployees to communicate with them through the usual channels, the right to a I commented as follows, "If the Union made an effort on one occa- sion to get aboard a boat and didn 't succeed , it's not going to win the campaign either on the river or before the Board " (Tr 51 ) ty A fair reading of the Court's language does not require that the General Counsel show that before seeking access to company property the Union already had at- tempted to use other available channels of communica- tion. The appropriate standard, it seems to me, is set forth in Alaska Barite Co., 197 NLRB 1023, 1029 fn. 9 (1972), enfd. 83 LRRM 2992 (9th Cir. 1973), in which the Board stated- Nothing within the Supreme Court's Babcock & Wilcox decision suggests that unions must be re- quired to prove available alternatives inadequate, where the "location of a plant and the living quar- ters of the employees" themselves show that such workers are "beyond the reach of reasonable union efforts" to communicate with them. To require a labor organization's representative, nonetheless, to seek contact with the concerned workers in some other manner would be to dictate little more than a futile gesture, which would serve no constructive purpose but would, rather, require the expenditure of considerable time, effort, and resources, merely to confirm what should be clear from the objective facts-that such other methods of communication provide "no substitute for face to face contact" within a relaxed atmosphere, and must therefore be considered ineffective More recently in Hutzler Bros. Co., 241 NLRB 914, 915 (1979), Administrative Law Judge Jalette, with apparent Board approval, concluded as follows: The test of Babcock & Wilcox, supra, is one of the existence of reasonable alternative means of commu- nication, not whether such means were in fact used. In the absence of attempts by the Union to use other means of communication, there may be insuf- ficient evidentiary support for the assertion that other means were not reasonable, but this a matter of proof, not a matter of essence to the cause of action This is also the approach taken by the Fifth Circuit in Belcher Towing v. NLRB, 614 F.2d 88, 91 (1980) See also Monogram Models, 192 NLRB 705, 707 fn. 7 (1971). But see: NLRB v. Tamiment, Inc, 451 F 2d 794 (3d Cir. 1971); and contra- NLRB v. New Pines, Inc, 468 F 2d 427 (2d Cir. 1972) With due respect to conflicting court de- cisions, I deem the Alaska Barite and Hutzler decisions as 194 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD indicative of the Board's view and therefore binding on me. Iowa Beef Packers, Inc., 144 NLRB 615, 616 (1963), and cases cited therein Accordingly, I conclude that Gladders argument that the affirmative case must fail be- cause the Union did not attempt to use, or insufficiently used, available alternative means of communication lacks merit. 2 Alternative means of reaching crewmen a. Reaching crewmen at home The opportunities for an organizer to reach a crewman at home are greatly limited by their absence from home every other month and also because each crewman fol- lows an individual duty and leave schedule. Moreover, 50 of the 111 crewmen reside in widely dispersed loca- tions. Although 61 crewmen live in three general areas near the Mississippi River, the Union has no effective way of learning the address of any crewman unless the Company provides the information, which it has elected not to do. I find in these circumstances that home visita- tions are not a viable alternative for access aboard the towboats. Belcher Towing Co., 238 NLRB 446, 475 (1978), modified on other grounds 614 F 2d 88 (5th Cir. 1980). b. Alternative means of reaching crewmen aboard towboats Inasmuch as the Company refuses to allow union orga- nizers aboard the towboats, direct personal contact be- tween organizers and crewmen aboard is effectively ruled out Nevertheless, Gladders urges that other means are available and reasonable. One such technique sug- gested at the hearing was that organizers use ship to shore telephone calls to crewmen aboard the towboats. But that obviously is not a viable alternative. Apart from the fact that the identity of crewmen on any craft is un- known to organizers who had no effective means of learning their identity so long as Gladders withheld the information, the ship to shore telephones aboard are lo- cated in the pilot houses, the situs of managerial author- ity on towboats, where calls would be under the surveil- lance of the captain or the pilot. As in New Pines, supra, the employees to be reached have no telephones in their own quarters. Gladders also urges that crewmen aboard could be reached by union advertisements in the mass media in- cluding area newspapers published in cities along the Mississippi River and radio and television stations All Gladders towboats have radios and televisions aboard in the lounge or dining areas. Presumably daily newspapers are brought aboard from time to time. In various past sit- uations the Board has ruled that use of "shotgun" mass media to communicate with a small group of targeted persons is not a reasonable alternative means of commu- nication, particularly in view of the cost of such expo- sure . S. & H. Grossinger's, Inc, 156 NLRB 233 (1965), enfd. 372 F 2d 26 (2d Cir. 1967); Scott Hudgens, 205 NLRB 628, 631 (1973); Scott Hudgens, 230 NLRB 414, 416 (1977); Holland Rantos Co., 234 NLRB 726 fn 5, and 733-734 (1978); and Hutzler Bros. Co., 241 NLRB 914 fn. 2, 916. I find similarly in the present matter that radio, television, and area newspapers generally are not reason- able alternatives for communicating with the small number of crewmen aboard each towboat constantly in motion up and down the river. Gladders has more of a point in urging that the Union could place advertisements in a waterman's publication known as the Waterfront Journal, a weekly found aboard all Gladders craft and available to all crewmembers. It publishes all forms of information of interest to anyone working on the river which, presumably, would include information or advertisements about the Union's organiz- ing activity Use of the Waterfront Journal is a reasona- ble and available means for some degree of indirect con- tact between the Union and Gladders crewmen. But as in Hutzler Bros. Co., supra at 916, use of that publication, as with area newspapers and radio and television, would be wholly impersonal affording no opportunity to exchange ideas with crewmen or to present the union message with any measure of persuasiveness. For that reason I do not view use of the Waterfront Journal as a reasonable alternative to the direct personal contact which would be available if organizers could board the towboats. Gladders also urges in its brief that union organizers could maintain surveillance over the river and on spot- ting a Gladders towboat, pursue it by means of a speed- boat or other craft, and thereby make an effort to con- tact crewmen or pass literature aboard, or possibly dis- play an organizing sign from the pursuing boat But having been refused access to board the towboats, I find the organizers reasonably would believe that that refusal encompassed tying up to the towboat while underway or even coming sufficiently close aboard to pass literature. Moreover, there is a good possibility that any crewmen on deck would be working at the time. Such boat fol- lowing would have a minimal chance of achieving real communication and certainly would afford no realistic opportunity for interchange of ideas or for persuasion c. Reaching crewmen during crew changes In the judgment of union organizers the most likely point for contacting crewmembers arriving at or leaving from a towboat was along the Illinois bank in the vicini- ty of Lock 26 But their actual experience in that locale suggests that their optimism was misplaced International Organizer Guay was there on two occasions in June but no Gladders boats appeared Organizers Zaporowski and Blessie spent the week of June 18 to 23 there and spotted only one Gladders boat. Again during the week of August 5 to 12, all three organizers were there and spot- ted only one Gladders boat 4 The lack of success in contacting changing crewmem- bers at the points of interchange is understandable con- sidering that the total crew size on a Gladders towboat numbers only 11, including officers, that each crewmem- ber stays aboard for about 30 days, and that reliefs are on an individual basis, not on a general preset predictable schedule Although Gladders president estimated that 70 4 Apparently some effort was also made to contact changing crew- members at the Memphis boat store, but the extent of that effort is not developed in the record G W GLADDERS TOWING CO 195 to 75 percent of crew reliefs are made at three locales (Lock 26 and the two lower river boat stores), it would require round-the-clock surveillance for a couple of months at all three locales to contact the crewman changing at those points Surveillance along the Illinois bank near Lock 26 would have to be maintained for a substantial distance, possibly as long as 15 miles. The two boat stores are the private property of those estab- lishments and, although each maintains a waiting area for the crewmen of their customers, they are not public premises Gladders also urges that union organizers could take certain specific steps to determine the time at which a Gladders craft might be at a point of crew change and then proceed to that point to intercept the changing crewmembers In this connection it was suggested at the hearing that because Gladders management and towboat captains communicate with each other by VHF radio when craft are within range of St. Louis, union organiz- ers could, by purchasing a relatively inexpensive receiv- er, monitor the frequencies ordinarily used, and by such surveillance intercept company messages and identify the anticipated time of arrival at crew interchange points Respondent's president also noted his opinion, however, that such surveillance is technically illegal In any case, such would involve extended surveillance of all calls on the frequencies in question, whether Gladders calls or others, and in my view would be an inappropriate and therefore not a reasonable alternative means for organiz- ing At the hearing and in its brief Respondent urges that union organizers could make periodic calls to the United States Army Engineers who operate locks in the upper rivers to inquire whether a Gladders boat is in the vicini- ty According to Respondent's counsel, army engineers provide such information to anyone who calls. This is one means of communication sometimes used by Glad- ders management to gain information about their own towboats Whether such information from the army engi- neers is available to any or all who inquire is, however, not specifically established in this record It is clear that union organizers made no effort to place such calls if it ever occurred to them to do so. Thus, telephone calls to the locks is arguably a means of locating Gladders tow- boats that organizers might attempt The fact that they did not try that particular means to locate the boats is not, however, in all the circumstances revealed in this record, a basis for concluding that a reasonable alterna- tive for organizing exists. I so find because, although Gladders management estimates that one or another of its towboats is in the vicinity of Lock 26 on an average of every 3 days, such showups are not regular, that being only an average figure. Moreover, the frequency of a Gladders towboat's presence at Lock 26, considering the small crew and infrequency of crew changes, indicates that the opportunity for intercepting changing crewmen would be much less frequent than the presence of a Gladders towboat. In its brief Gladders also urges that the Union could use its own boat to maintain general surveillance on the river and follow any Gladders boats spotted, thereby as- certaining points of crew change and developing oppor- tunities for communications with changing crewmen For the reasons set out above as to the ineffectiveness of pos- sible organizing while a union and a Gladders craft are both underway, and also the distances involved, I find that such means for preliminarily identifying points and times of crew change would likely be a singularly unpro- ductive expenditure of effort for organizers and therefore not a reasonable alternative to their access aboard Glad- ders boats. In the course of the hearing it was suggested by Glad- ders counsel that union organizers have an opportunity to intercept relieving crewmen who fly into Lambert Airport in St. Louis But this could not be a fruitful al- ternative simply because the identity of Gladders crew- men is unknown to union organizers. There would be no way of knowing which flights to meet or who to ap- proach even if the flights were known. The record indicates that the most frequent mode of transportation for relieving crewmen headed for the vi- cinity of Lock 26 is to fly into the St. Louis airport and ride a limousine to the vicinity of the lock. In the other direction the relieved crewmen often rode the limousine back to the airport Respondent's counsel urges that one viable means of communicating with crewmen would be for organizers to ride the limousine and engage crewmen in conversation during the ride Such technique would require surveillance of the limousine service at either or both the airport and the 15-mile stretch along the Illinois bank near Lock 26 and, again, to be at all effective would require advance knowledge regarding flight arriv- als and identity of relieving crewmen at the airport, and towboat arrivals for crew change purposes at some point along the Illinois bank near Lock 26 That is too much of a hit-and-miss proposition to be a reasonable alterna- tive. Organizers could spend months in such activity with no perceptibly affirmative results Counsel also urges that similar surveillance could be maintained over the boat stores in Memphis and Baton Rouge-New Orleans This argument assumes that which is not the case, that an organizer could practically devel- op some idea of the time of crew change and the identity of those changing With respect to the arrival of a tow- boat, counsel suggests that it is common for a boat store to post that information in the boat store lounge area. But there is no basis in this record for finding that posted information is available to other than store customers or employee of customers Accordingly, I find, based on the record, that the chances of usable information about crew changes at boat stores is too slim to be practical for developing contact with Gladders crewmen. I find that the existence of such stores as a service to the employers and their function in crew changes for Gladders does not provide a reasonable practical alternative to access to towboats in communicating with crewmen about union organization. d. Conclusions respecting alternative means of communication Given the above circumstances, I find, based on a pre- ponderance of the evidence in the record as a whole and pursuant to Section 10(c) of the Act, that reasonable al- 196 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ternative means to direct access to crewmembers aboard Gladders towboats do not exist whereby union organiz- ers and crewmembers may reasonably communicate with each other about organizing a union Accordingly, under the precepts of NLRB v. Babcock & Wilcox Co., supra, union organizers should be allowed aboard the towboats for such communication Interlake Steamship Co., 174 NLRB 308 (1969), Sioux City & New Orleans Barge Lines, 193 NLRB 382 (1971), enf denied on other grounds 472 F 2d 753 (8th Cir 1973); Ingram Barge Co., 204 NLRB 63 (1973); Sabine Towing & Transportation Co, 224 NLRB 941 (1976), enf. denied 599 F 2d 663 (5th Cir. 1979), Belcher Towing Co, 238 NLRB 446 (1978), enf denied 614 F 2d 88 (5th Cir. 1980). In reaching this conclusion I specifically rely on the Board decisions cited above. With due respect to the differing views of reviewing circuit courts in Sioux City, Sabine, and Belch- er, I disagree, noting further, that in any case I am bound by Board decisions. Iowa Beef Packers, supra In his brief Gladders counsel contends this conclusion cannot be reached because of "lack of proof that the Company's denial of access to its towboats deprives the organizers reasonable opportunity to communicate their message to the crewmen." He argues that the burden for this proof rests on the General Counsel, citing the Su- preme Court's decision in Sears, Roebuck & Co. v. San Diego County Carpenters, 436 U.S 180 (1978), and the Fifth Circuit's decision in Sabine Towing, supra (599 F 2d 663). However, considering the entire record, I find the requisite burden has been met.5 If counsel is urging by implication that in Sears the Court modified Babcock & Wilcox and somehow limited the cause of action in access cases under 8(a)(1) proceed- ings before the Board, then I disagree. First, Sears did not arise in a Board proceeding and the Court was not ruling on a particular Board action. Second, read in its entirety, Sears reemphasizes the availability of Board ju- risdiction in access cases (436 U.S. at 201-202), by noting "the balance struck by the Board and the Courts" in NLRB v S. & H. Grossinger's, Inc, 372 F.2d 26 (2d Cir. 1967), and NLRB v. Lake Superior Lumber Corp, 167 F 2d 147 (6th Cir 1948) (436 US at 205 and fn 41), both Board proceedings in which "unique obstacles to non-trespassory methods of communication with employ- ees" persuaded the Board to order union access to em- ployer premises, and by noting the Board's role in access cases to enuciate an accommodation of employer proper- ty rights and union Section 7 rights (436 U S 201 and 204). The Court thus points to the Board as the available and approved forum for adjudging access cases under Section 8(a)(1) and certainly does not disavow the deci- sional law of the Board already developed in its applica- tion of Babcock & Wilcox, supra. On the contrary, the language in Sears is entirely consistent with the Board's role,as the single official agency with nationwide juris- diction designated in the Act to administer it Board 5 The issue of alternative means of communication is before me, as are other issues in the case, on the evidence in the record as a whole, and are to be determined by findings based on a preponderance of that evidence pursuant to Sec 10(c) of the Act There are no pending motions testing the adequacy of proof at any interim stage of the hearing or of that prof- fered by specific parties precedents, therefore, have special significance in evalu- ating the allegations of unfair labor practices presented here 3. The reasonableness of access aboard as a means of organizational communication Accommodations aboard towboats, designed as they are for prolonged and relatively uninterrupted use, afford adequate facilities for employees and organizers to dis- cuss self-organization in a reasonably tranquil, uninter- rupted atmosphere This is particularly true of the mess areas and lounges aboard and the crew quarters Respondent argues with some cogency that the pres- ence aboard of unwanted strangers subjects the Compa- ny to burdens and responsibilities which it should not be required to carry The significance of such burdens has, in my view, been somewhat exaggerated in argument in view of the fact that the Company already allows visi- tors aboard and has in place rules and regulations to con- trol and protect those outsiders Just how much this ex- isting burden would be enlarged, if at all, should union organizers come aboard is not totally clear But the find- ing is warranted that suitable conditions for access could be arranged, as apparently they are aboard boats operat- ed by companies under contract with the Union While life aboard a towboat involves special hazards and re- sponsibilities for management peculiar to that workplace, analogous hazards exist in many workplaces, where non- employee union officials are allowed in the workplace See Peerless Food Products, 236 NLRB 161 (1978) Gladders counsel makes the point that the Company's liability insurance is experience based and the presence of added strangers aboard subjects the Company to added risks not only of unwanted accidents and responsibilities but also costs, including insurance Nevertheless, these factors should be amenable to some reasonable arrange- ment between employer and union and ought not be the basis for a categorical ban on union access to employees aboard. Counsel makes a further legal argument that river craft are governed by marine law, a body of law different from that governing land operations, and that under marine law the responsibilities and possible liabilities of an employer operating craft are extraordinarily heavy Counsel points to three problem areas (a) contributory negligence and assumption of risk, (b) statutes of limita- tion, and (c) limitations on amounts recoverable As to the maritime law of contributory negligence and assumption of risk counsel cites Socony-Vacuum Oil Co. v. Smith, 305 U S. 424 (1939); Skidmore v. Grueninger, 506 F 2d 716, 727 (5th Cir 1975), Arizona v Anehch, 298 U S. 110 (1936); Movible Offshore Co. v Ousley, 346 F 2d 870, 873 (5th Cir 1965), Beadle v Spencer, 298 U.S. 124 (1936); and King v. Testerman, 214 F Supp 335 (E D Tenn. 1963). See also Palermo v. Luckenback S.S. Co, 355 U.S 20 (1957) These cases make clear that under maritime law standards of liability differ significantly from those applicable in nonmaritime situations Without presuming to definitively state those principles, it appears generally that in adjudging claims for injury under mari- time law, the doctrine of contributory negligence is no G W GLADDERS TOWING CO 197 defense and is of significance only in mitigating damages. And the defense of assumption of risk is not recognized in maritime law Regarding the applicability of statutes of limitation, counsel cites Burke v. Gateway Clipper, 441 F 2d 946 (3d Cir. 1971); and Larios v. Victory Carriers, 316 F.2d 63 (2d Cir 1963) See also Pope & Talbot, Inc v. Hawn, 346 U.S. 406 (1953) Again, without purporting to state definitive- ly those legal propositions, it appears that in claims at admiralty state statutes of limitation are inapplicable, the limitations of actions provision of the Federal Employ- ers' Liability Act (the Jones Act) do apply Nevertheless, action may be brought thereafter, absent inexcusable ]aches, and in construing laches the applicable state stat- ute of limitations serves as a rule of thumb. As to limitations on amounts recoverable, counsel cites Sea-Land Services v. Gaudet, 414 U S 573 (1974), rehear- ing denied 415 U.S. 986 (1974), for the proposition that in wrongful death actions in admiralty, time limitations for filing suit or limitations on the amount recoverable does not apply Again, without purporting to definitively state this special law, that case appears to stand for the proposition that under maritime law a cause of action for wrongful death does not accrue for a dependent of a de- cedent until the decedent's death. If prior to death the decedent brought action for personal injuries, recovery by that action would not under the doctrine of res judi- cata preclude a later action by dependents on a theory of wrongful death. Limits are placed on the amount recov- erable in a wrongful death action in that a decedent's re- covery for loss of future wages is offset against amounts that dependents may recover for loss of support by the decedent. From the above it is apparent that different legal con- siderations affect liability and cost factors for enterprises afloat than for landside enterprises From this I do not conclude that such differences are so great as to make the sometime presence of nonemployee union organizers aboard an unreasonable circumstance To some extent, as noted above, Respondent already has reduced the prob- lem by whatever adjustments, if any, it has made to ac- count for its existing visitors aboard policy. The practica- lities of accommodating relatively brief visits of union organizers appears less burdensome than the already-in- place system for occasional visitors who may stay aboard several days Access for organizers need not go beyond what is reasonably necessary to accomplish the commu- nication involved in organizing. Central Hardware Co. v. NLRB, 407 U.S 539, 544-545 (1972), NLRB v Lake Su- perior Lumber Corp, supra, see also Peerless Food Prod- ucts, supra In the particular circumstances of this case any additional "yielding" of Gladders property rights re- quired by the granting of access to union organizers would be "both temporary and minimal " Central Hard- ware Co. v. NLRB, supra at 545. On the other hand, without access the Section 7 rights of nonemployee orga- nizers here are virtually meaningless and those of Glad- ders own employees substantially limited Giving due consideration to the factual context of this case in ac- cordance with the Supreme Court's instruction in Hud- gens v. NLRB, 424 U.S 507, 521-522 (1976), I find that the least destruction of the conflicting Section 7 rights and employer property rights here will result by an ac- commodation allowing organizers access to the tow- boats. NLRB Y. Babcock & Wilcox Co., supra at 112 In so finding I am mindful of the result reached by the court of appeals in NLRB v. Sioux City & New Orleans Barge Lines, 472 F.2d 753. But my reading of Board de- cisions in access cases generally, and specifically in marine cases, persuades me that on the record here the Board requires some yielding of the property rights of the employer to accommodate Section 7 rights under the Act. See particularly (marine cases) Interlake Steamship Co, supra; Sioux City & New Orleans Barge Lines, supra; Ingram Barge Co., supra, Sabine Towing & Transportation Co., supra; and Belcher Towing Co, supra; and generally (nonmarine cases) S. & H. Grossinger's, supra; New Pines, supra, Monogram Models, supra, Alaska Barite Co, supra; Scott Hudgens (205 NLRB 628 and 230 NLRB 414), supra, Holland Rantos Co., supra; and Hutzler Bros. Co, supra Accordingly, pursuant to Section 10(c) of the Act and based on a preponderance of the evidence in the record as a whole, I find and conclude that Gladders should allow the Union's organizers reasonable access to their towboats to permit that accommodation. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES ON COMMERCE The activities of Gladders set forth in section I, above occurring in connection with its operations described therein, have a close, intimate, and substantial relation- ship 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 CONCLUSIONS OF LAW 1 Gladders is an employer within the meaning of Sec- tion 2(2) and is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3 Respondent, by refusing to allow union organizers aboard its towboats to engage in organizing activity among its towboat crewmembers, engaged in, and is en- gaging in, unfair labor practices within the meaning of Section 8(a)(1) of the Act 4 The unfair practices found above affect commerce within the meaning of Section 2(6) and (7) of the Act THE REMEDY Having found that Gladders violated Section 8(a)(1) of the Act, I recommend that it be ordered to cease and desist therefrom and that it take certain affirmative action necessary to effectuate the policies of the Act. Such order shall contemplate reasonable arrangements to allow union access to Respondent's boats while avoiding needless interference with company operations. [Recommended Order omitted from publication]