Belcher Towing Company

National Labor Relations Board - Board Decisions

Jun 18, 1981

256 N.L.R.B. 666 (N.L.R.B. 1981)

666 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Belcher Towing Company and Local 333, United
Marine Division, International Longshoremen's
Association, AFL-CIO and District 2, Marine
Engineers Beneficial Association-Associated
Maritime Officers, AFL-CIO and John A. Hill.
Cases 12-CA-6971, 12-CA-7070, 12-CA-
7177, 12-CA-7125, and 12-CA-7176
June 18, 1981
SUPPLEMENTAL DECISION AND
ORDER
On September 27, 1981, the National Labor Re-
lations Board issued a Decision and Order in the
above-entitled proceeding,' finding, inter alia, that
the Respondent had violated Section 8(a)(1) of the
National Labor Relations Act, as amended, by re-
fusing access to its board by union organizers for
the purpose of soliciting support for unionization,
and ordering the Respondent to cease and desist
therefrom and to take certain affirmative action.
Thereafter, on March 21, 1980, the United States
Court of Appeals for the Fifth Circuit issued its de-
cision 2 in which it declined to enforce the above-
described portion of the Board's Order, 3 based
upon its intervening decision in Sabine Towing &
Transportation Company Inc. v. N.L.R.B., 599 F.2d
663 (1979), in which the court denied enforcement
of a Board ship-access order. The court in Sabine
concluded that the facts established in that case did
not present a situation "where nonemployee access
to an employer's property is required by [N.L.R.B.
v.] Babcock & Wilcox [351 U.S. 105 (1956)]," noting
further its view that the Board erred in failing to
place a sufficient burden on the General Counsel of
proving that no reasonable alternative means of
communication existed. 599 F.2d at 665-666. Here
the court observed that while "the Board did not
explicitly allocate the burden of proof, it followed
its earlier decision in Sabine .... which placed
the burden on the employer."4 Consequently, the
court "remanded to the Board for a reconsideration
of the issue of alternative means under a correct al-
location of the burden of proof." 5
The Board accepted the remand. Pursuant to
said remand, the Board invited the parties to file
statements of position with respect to the outstand-
ing issue. Such statements were filed by the Gener-
al Counsel, the Respondent, and Charging Party
District 2, MEBA-AMO.
' 238 NLRB 446.
2 614 F.2d 88.
3 The court enforced the Board's Order insofar as it found certain
other conduct of the Respondent to be violative of Sec. 8(a)(1) and (3),
except that it denied enforcement of the Order insofar as it found the Re-
spondent's application of its no-solicitation rule to be discriminatory. 614
F.2d at 90-92.
4 614 F.2d at 91, fn. 2.
5 Id. at 91.
256 NLRB No. 99
We have reviewed the entire record in this pro-
ceeding, including the statements of position, and
have reconsidered the Administrative Law Judge's
Decision in light of the court's holding that lack of
reasonable means of access to employees other than
by access to employee property must be affirma-
tively established by the General Counsel. We find
that, regardless of whether the evidence was pre-
sented by the General Counsel, Charging Parties,
or the Respondent, the record as a whole clearly
established that the Charging Party Unions did not
have reasonable alternative means of access to Re-
spondent's employees.6 Therefore, we reaffirm our
conclusion that Respondent violated Section 8(a)(1)
by denying access to its boats to union representa-
tives. 7 While we do so for the reasons stated in our
original Decision, we note that the record here re-
vealed a stronger case for finding the 8(a)(1) viola-
tion than the record in Sabine.
In Sabine, 167 unit employees worked on five
different tankers, in crews of 25 to 28. Here, ap-
proximately 100 employees worked on 15 different
ships in crews of three to five. Consequently, union
organizers were able to get to ports to meet the
ships in Sabine, departing employees had a certain
safety in numbers from the eyes of management,
for it would not be easy for supervisory personnel
to be able to pick out which employees were re-
sponding to union organizers when the employees
were in a large group, moving away from the ship.
And even when a number of employees chose to
sleep or otherwise rest aboard ship, a goodly
number were likely to be leaving the ship, thus af-
fording union organizers some opportunity to
convey their message. Here, on the other hand, if a
number chose to rest aboard the boat (as was fre-
quently the case), there might be no one to ap-
proach. Or if some, or even all, did leave the boat,
they would not have the safety in number present
in Sabine.8 In addition, the smaller crews inevitably
made it far more difficult for union organizers to
locate any employees at off-the-dock places at
6 In Sabine the court ruled that, in agreement with the Administrative
Law Judge, the record as a whole did not establish lack of reasonable
alternative means of access, and that the Board had erred in determining
that the evidence presented by the General Counsel was sufficient to shift
the burden of proof as to alternative means to the respondent. In remand-
ing the instant case, we understand the court to have not reviewed the
question of whether the entire record supported the Board's finding, but
rather to have taken the position that since the Board had not required
the General Counsel to come forward with the requisite evidence, the
Board should reexamine its decision in light of the court's opinion in
Sabine. As explained infra, we find that the totality of the evidence here
eablished that reasonable alternative means of access did not exist.
I In so doing, we do not reaffirm our alternative finding in the original
case that Respondent discriminatorily applied its no-solicitation rule, inas-
much as the court of appeals ruled that our order could not be enforced
on that basis
8 This is particularly significant in light of the fact that here the Re-
spondent had ordered its supervisors to report all union activity.
BELCHER TOWING COMPANY 667
which seamen might congregate. Furthermore,
while in Sabine we were unable to determine
whether union oganizers were able to meet em-
ployees coming directly off the ships, here the
record is clear that 9 of the 15 boats were based at
the Respondent's restricted Miami facility, and of
the delivery points serviced by the 12 boats which
left base 4 were also restricted.9
Moreover, in Sabine the evidence indicated that
the union organizers contacted between 84 and 107
of the 167 unit employees-between 50 percent and
70 percent. Here, on the other hand, the MEBA
organizers were able personally to contact only 20
of the 100 unit employees in 4 months, and the
ILA organizer personally was able to see only 8 or
10, despite the extraordinary efforts described in
our orginial Decision. Direct personal contact is
the most truly effective means of communicating
not only the option of collective bargaining, but
the most compelling reasons for exercising that
option. In any event, the impact of the numerical
differences is even more pronounced when viewed
in light of the fact that while the larger crew sizes
in Sabine meant that there was some chance there
that the union organizers could get their message
across to perhaps all the employees indirectly
through those to whom they spoke directly, here
the small crew sizes indicate that even contact with
a significant percentage through reasonable efforts
is unlikely. These facts, combined with the consid-
erations discussed in our original Decision, includ-
ing the wide geographic dispersal of the unit em-
ployees °0 and the length of time spent aboard ship,
9 The "restricted" ports ere those which, for security reasons, barred
the general public from entering the facility at all, or at least the docking
area. For example, at the home port of Miami, no one may go to the
dock without first getting clearance from the Respondent's tugboat dis-
patching office
'0 Although the employees were more widely dispersed in Sabine than
here, in both cases, the dispersal rendered home contact ineffectual as an
lead us to conclude, upon reconsideration, that
union organizers have no reasonable means of
access to employees to convey their oganizational
message, and that therefore the Respondent violat-
ed Section 8(a)(1) of the Act by refusing access to
its boats to union representatives. 1
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Board Act, as amended, the National
Labor Relations Board reaffirms its order issued in
this proceeding on September 27, 1978 (reported at
238 NLRB 446) and hereby orders that the Re-
spondent, Belcher Towing Company, Coral
Gables, Florida, its oficers, agents, successors, and
assigns, shall take the action set forth in the said
Order.
alternative to direct contact at or near the workplace And. as explained
aho',e, direct contact near the workplace was far more difficult here than
in Sabine
I Since it need only be shown that reasonable alternatives to access to
company property did not exist, the fact that some, or even many, em-
ployees were reached through extraordinary efforts by union organizers
is not a basis for dismissing a complaint allegation such as the one in-
volved here As shown in our original Decision, representatives did, in
fact, engage in extraordinary efforts. That, as alleged by the Respondent
in its statement of position on remand, MEBA has been able to contact a
sufficient number of employees to make a showing of interest and, in one
case, to achieve certification, does not negate our finding that reasonable
alternative means of access were unavailable. Of course, a union may be
willing and able to overcome obstacles present in situations in hich em-
ployees are unusually isolated But, as the Supreme Court recognized in
N.L.R.B. . Babcock Wilcox, 351 U.S. at 113, it is the employees' right
of self-organization that is of great importance and the effectiveness of
that right "depends in some measure on the ability of employees to learn
the advantages of self-organization from others." Consequently, the effec-
tivenes of that right should not be contingent on the ability of outsiders
to engage in extraordinary efforts to communicate. (Indeed. the lack of
reasonable alternatives forced the ILA to abandon its efforts, thus leaving
the employees with a choice of one union rather than two.) Thus, we
find, in full accord with Babcock d Wilcox and its progeny, that where
reasonable alternative means of communicating the organizational mes-
sage are unavailable, an employer's right to exclude nonemployee union
organizers from its property must yield
BELCHER TOWING COMPANY 67