Great Lakes District, Seafarers' Int'l Union

National Labor Relations Board - Board Decisions

Oct 18, 1962

139 N.L.R.B. 216 (N.L.R.B. 1962)

216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2-3300 , Extension 553, or 849 South Broadway , Los Angeles , California , Telephone
Number, Richmond 9-4711 , Extension 1031 , as the case may be , if they have any
question concerning this notice or compliance with its provisions.
APPENDIX B
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board , and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify all employees that:
WE WILL NOT engage in espionage or surveillance in behalf of Harvey
Aluminum ( Incorporated ) or General Engineering , Inc., or any other employer,
for the purpose of ascertaining the membership , views, or activity of employees
in or on behalf of United Steelworkers of America , AFL-CIO, or any other
labor organization.
WE WILL NOT in any like or related manner interfere with the union activities
of the employees of the above -named or any other employer.
WALLACE A. UMMEL D/B/A WALLACE DETECTIVE
AND SECURITY AGENCY,
Employer.
Dated-------------------- By (signed)---------------------------------
(WALLACE A . UMMEL)
This notice must remain posted for 60 days from the date hereof, and must not be
altered, defaced , or covered by any other material.
Employees may communicate directly with the Board 's Regional Offices, 327
Logan Building , 500 Union Street , Seattle, Washington, Telephone Number, Mutual
2-3300, Extension 553, or 849 South Broadway , Los Angeles , California , Telephone
Number , Richmond 9-4711 , Extension 1031 , as the case may be, if they have any
question concerning this notice or compliance with its provisions.
Great Lakes District , Seafarers' International Union of North
America, AFL-CIO, and Seafarers ' International Union of
North America, AFL-CIO and Upper Lakes Shipping, Ltd.,
as agent for Island Shipping , Ltd. and Lake Superior and
Ishpeming Railroad Company. Case No. 18-CC-108. October
18, 1962
DECISION AND ORDER
On February 1, 1962, Trial Examiner Sydney S. Asher, Jr., issued
his Intermediate Report, attached hereto, in the above-entitled pro-
ceeding, finding that the General Counsel had failed to establish that
it would effectuate the purposes of the Act for the Board to exercise
jurisdiction in this case, and recommended that the complaint be dis-
missed in its entirety. On February 12, 1962, the General Counsel
filed with the Board a motion to remand the proceeding to the Trial
Examiner for further hearing and reopen the record to receive in
evidence additional commerce facts. The Respondents filed opposition
thereto. On March 20, 1962, the Board granted the motion, reopened
the record, directed that a supplemental hearing be held before the
aforementioned Trial Examiner for the purpose of receiving addi-
tional commerce information, and further directed that following the
139 NLRB No. 18.
GREAT LAKES DISTRICT, SEAFARERS' INT'L UNION 217
hearing a Supplemental Intermediate Report be prepared and served
upon the parties. On April 26, 1962, the General Counsel filed with
the Trial Examiner a stipulation concerning certain commerce facts,
signed by representatives of all parties. The stipulation recited that
the facts set forth therein be received in evidence, that the parties
waived the taking of further testimony and the submission of further
evidence in the matter, and agreed that the Trial Examiner might is-
sue a Supplemental Intermediate Report based upon the stipulation
and the record made at the hearing. That stipulation was made a part
of the record herein and the record was closed.
On June 15, 1962, the Trial Examiner issued his Supplemental
Intermediate Report, finding that the Respondent Great Lakes Dis-
trict, Seafarers' International Union of North America, AFL-CIO,
hereinafter called the Respondent District, had engaged in certain
unfair labor practices, and recommending that it cease and desist there-
from and take certain affirmative action, as set forth in the attached
Supplemental Intermediate Report. The Trial Examiner also found
that the Respondent District had not engaged in certain other unfair
labor practices alleged in the complaint. The Trial Examiner also
recommended that the complaint against Seafarers' International
Union of North America, AFL-CIO, hereinafter called the Respond-
ent International, be dismissed in its entirety. Thereafter, the Gen-
eral Counsel, the Respondents, and the Charging Parties filed excep-
tions to the Supplemental Intermediate Report together with support-
ing briefs.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Members Rodgers, Fanning, and Brown].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the
Supplemental Intermediate Report,' the exceptions and briefs, and
the entire record in the case. The Board finds merit in certain ex-
ceptions of the General Counsel and adopts only those findings, con-
clusions, and recommendations of the Trial Examiner that are con-
sistent with this Decision and Order.
In our view, the record clearly establishes that the Respondent
District engaged in conduct violative of Section 8(b) (4) (i) and
(ii) (B) of the Act as amended. The material facts are as follows:
I. FACTUAL BACKGROUND
The complaint, which alleges that the Respondents herein have
engaged in conduct in violation of Section 8(b) (4) (i) and (ii) (B)
'Hereinafter the Supplemental Intermediate Report will be referred to as the Inter-
mediate Report.
218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the Act, was issued as a result of a charge and a first amended charge
filed by Upper Lakes Shipping, Ltd., as agent for Island Shipping,
Ltd., herein referred to individually as Upper Lakes and Island and
collectively as the Charging Parties. Island, a Bermuda corporation,
operates a fleet of oceangoing vessels carrying bulk ore. One of these
vessels is the SS Northern Venture, herein called Venture, which is
under charter from its owner, Northern Shipping, Ltd., a Bahama
corporation. Since July 1, 1961, the Venture has been registered under
the Canadian flag, with a home port at Toronto, and is engaged in
carrying iron ore to and from various ports on the Great Lakes in
the United States and Canada.
The Lake Superior and Ishpeming Railroad Company, herein called
Railroad, a common carrier with principal offices at Marquette, Mich-
igan, is engaged in transporting iron ore and other commodities. In
the course of its business, Railroad operates an ore dock at Marquette,
Michigan. On or about September 19, 1961,2 the Venture docked at
the Railroad's ore dock in Marquette, for the purpose of taking on a
cargo of iron ore. Almost immediately pickets appeared at several
places in the vicinity of the dock? The pickets carried signs indi-
cating that the picketing was being conducted by the Maritime Trade
Department (M.T.D.), an arm of the AFL-CIO. Upon the appear-
ance of the pickets, the Railroad's dock crews refused to load the
Venture. The pickets remained all that day. At about 2:15 a.m. on
September 20, the Venture pulled away from the ore dock, empty,
and anchored in the harbor in a spot visible from Marquette. The
pickets then left. The Venture returned to the Railroad's ore dock
on the morning of September 22, still empty, and the picketing was
resumed.' The Railroad's dockmen again refused to load the Ven-
ture, and left the dock. The Venture remained at the dock for several
hours, and then left port without having taken on a cargo of iron
ore as originally intended.
During the period of September 19 to 22, while the picketing was
taking place, Peter Drewes, Respondent District's port agent at Du-
luth, Minnesota, was dispatched to the scene by the Respondent Dis-
trict's secretary-treasurer, Fred Farnen. The testimony on the Record
is that Drewes was sent to Marquette to see to it that the Respondent
District "did not get involved."
2 All dates herein are 1961 unless otherwise specified.
8 Some pickets took a position directly in front of the gate underneath the ore dock,
where a public highway passes under the dock. Hereinafter, this shall be called Site No 1.
Others were on either side of a road which , branching off the main highway, leads to the
Railroad 's car shop and roundhouse repair department . Hereinafter , this shall be called
Site No. 2. Still others appeared some distance to the west , on an access road leading
from the highway to an oil-tank farm and ore yard on the Railroad 's property . Herein-
after, this shall be called Site No. 3.
* Picketing was resumed at Sites Nos. 1 and 2 , but not at Site No . 3 In addition, there
were, for the first time , pickets at the entrance to the Railroad 's merchandise dock, which
is a separate dock several hundred yards from the ore dock Hereinafter, this shall be
called Site No. 4.
GREAT LAKES DISTRICT , SEAFARERS ' INT'L UNION 219
II. UNFAIR LABOR PRACTICES
The Trial Examiner found , and we agree , that Peter Drewes, act-
ing solely as agent for and on behalf of Respondent District , induced
and encouraged individuals employed by the Railroad to engage in
a strike or a refusal in the course of their employment to perform
services with the object of forcing the Railroad to cease doing business
with the Venture , its owners , operators and/or lessees , in violation of
Section 8 ( b) (4) (i) (B ) of the Act . The Trial Examiner based his
finding upon a conversation which took place on the afternoon of
September 19, between the aforementioned Drewes and Edward R.
Anderson, an employee of the Railroad and chairman of the union
representing the Railroad 's car shop employees. In this conversa-
tion, Drewes appealed to Anderson to require the carshop employees
to honor the picket line, and at the same time, he offered to furnish
the Railroad 's employees with an excuse not to cross the picket line
by threatening violence. Notwithstanding this credited testimony,
the Trial Examiner refused to find that the Respondent District was
in any way responsible for the picket line itself , and found instead
that the unlawful inducement and encouragement of the Railroad's
employees by Drewes was entirely independent of any activity of
the pickets. We disagree with this finding.
The record clearly establishes that Drewes was present on the
picket line during the greater portion of the period that the Venture
was picketed ; that he was frequently seen going from one picketing
site to another; and that on one occasion , while he was observed talk-
ing to some pickets at Site No. 1, he gestured to direct a picket to go
from Site No . 1 to Site No. 2. Additionally , on September 19, James
P. Clancey, an attorney for the Railroad, drove his car to Site No. 3,
where his way was blocked by a picket standing in the road. Drewes,
who was present , asked Clancey who he was, informed him that this
was a picket dine, and asked him if he still desired to enter the Rail-
road's property . Clancey replied in the affirmative , but stated he
would not move so long as the picket remained in the road. After
conversing with Drewes, the picket stepped aside and Clancey was
permitted to pass through the picket line.
We find that Drewes' by the above -described activity with the
pickets, by his conversation with Anderson , and by his instruction
to the picket to permit Clancey to go through the picket line, demon-
strated that the Respondent District exercised a marked degree of
control of the picket line. We think it clear that even if the Respondent
District did not originally establish the picket line, it adopted it as its
own by Drewes' actions . The Respondent District , thus, cannot dis-
claim responsibility for that picketing.
220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Because the Trial Examiner found that the Respondent District
was not in any way responsible for the picket line, he did not deter-
mine whether the picketing at Sites Nos. 3 and 4 complied with
Moore Dry Dock 8 standards. The record clearly shows that these
standards were not observed. In order to accommodate lawful pri-
mary picketing while shielding secondary employers and their em-
ployees from pressure in controversies not their own, the Board re-
quires that common situs picketing be limted to places reasonably
close to the location of the situs. In the instant case, the chief picket-
ing was at Site No. 1, which was the closest point to the entrance to
the ore dock where the Venture was berthed. The picketing at Site
No. 2 appears to have been virtually equidistant, and in view of the
vessel, although it is doubtful that the picket signs could have been
read at that distance. However, the picketing at Sites Nos. 3 and 4
was clearly divorced from any contact with the employees of the
primary employers (Island and Upper Lakes), and we find, therefore,
that it was obviously intended to enmesh the employees of the second-
ary employer (Railroad) in the primary dispute, and thus violative
of Section 8(b) (4) (i) (B) of the Act.
We further find that this picketing by the Respondent District,
which was directed at and induced individuals engaged by the Rail-
road at Sites Nos. 3 and 4, restrained and coerced the Railroad, the
secondary employer, with the unlawful object of forcing the Railroad
to cease doing business with the owners and/or lessees of the Venture,
and that by such picketing, the Respondent District violated Section
8 (b) (4) (ii) (B) of the Act .6
III. THE REMEDY
Having found that the Respondent District has violated Section
8(b) (4) (i) and (ii) (B) of the Act, we shall order it to cease and
desist therefrom to the extent herein found unlawful, and take certain
affirmative action designed to effectuate the policies of the Act.
Upon the basis of the foregoing finding of fact and upon the entire
record in the case, the Board makes the following :
ADDITIONAL CONCLUSIONS OF LAw
1. By inducing and encouraging individuals employed by Lake
Superior and Ishpeming Railroad Company to engage in a strike
or refusal in the course of their employment to perform services, and
by threatening, coercing, or restraining Lake Superior and Ishpeming
sSailors' Union of the Pacific, AFL (Moore Dry Dock Company), 92 NLRB 547.
e Sheet Metal Workers International Assocaation, Local Union No. 299, et al. (S M.
Eisner (deceased), et al, d/b/a S. M. Eisner and Sons), 131 NLRB 1196, 1201; Inter-
national Hod Carriers, etc., Local 1140 (Gilmore Construction Company), 127 NLRB
541, 545, footnote 6.
GREAT LAKES DISTRICT, SEAFARERS' INT'L UNION 221
Railroad Company, with an object of preventing Lake Superior and
Ishpeming Railroad Company from loading the SS Northern Venture,
or forcing or requiring Lake Superior and Ishpeming Railroad Com-
pany to cease doing business with the operators and/or lessees of the
SS Northern Venture, Great Lakes District, Seafarers' International
Union of North America, AFL-CIO, has engaged in and is engaging
in unfair labor practices within the meaning of Section 8(b) (4) (i)
and (ii) (B) of the Act.
2. The above-described unfair labor practices are unfair labor prac-
tices within the meaning of Section 2(6) and (7) of the Act.
3. The General Counsel has failed to establish that Seafarers' In-
ternational Union of North America, AFL-CIO, has engaged in or
is engaging in any unfair labor practices within the meaning of the
Act.
ORDER
Upon the basis of the entire record in this proceeding, and pursuant
to Section 10 (c) of the National Labor Relations Act, as amended,
the National Labor Relations Board hereby orders that the Respond-
ent, Great Lakes District, Seafarers' International Union of North
America, AFL-CIO, its officers, representatives, agents, successors,
and assigns, shall :
1. Cease and desist from :
(a) Picketing the premises of Lake Superior and Ishpeming Rail-
road Company, or in any other manner inducing or encouraging any
individual employed by Lake Superior and Ishpeming Railroad Com-
pany to engage in a strike or a refusal in the course of his employment
to perform services; or threatening, coercing, or restraining the afore-
said employer; where in either case an object thereof is to prevent
Lake Superior and Ishpeming Railroad Company from loading the
SS Northern Venture, or to force or require Lake Superior and Ish-
peming Railroad Company to cease doing business with the operators
and/or lessees of the SS Northern Venture.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Post in conspicuous places in its business offices and meeting
halls in Alpena, Michigan, and Duluth, Minnesota, where notices to
members are customarily posted, copies of the notice attached hereto
marked "Appendix."' Copies of this notice, to be furnished by the
Regional Director for the Eighteenth Region, shall, after being signed
by an authorized representative of Respondent District, be posted
by Respondent District immediately upon receipt thereof and be
maintained by it for 60 consecutive days thereafter. Reasonable
7 In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order."
222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
steps shall be taken to insure that such notice is not altered, defaced,
or covered by any other material.
(b) Sign and mail sufficient copies of this notice to the said Re-
gional Director for posting by Lake Superior and Ishpeming Rail-
road Company, if it is willing, at all locations where notices to its
employees are customarily posted.
(c) Notify the said Regional Director, in writing, within 10 days
from the date of this Order what steps have been taken to comply
herewith.
It is further ordered that the complaint, insofar as it alleges that
Seafarers' International Union of North America, AFL-CIO, vio-
lated the Act, be, and it is hereby, dismissed.
APPENDIX
NOTICE TO ALL OUR OFFICERS, REPRESENTATIVES, AGENTS AND MEMBERS
AND TO EMPLOYEES OF LAKE SUPERIOR AND ISHPEMING RAILROAD
COMPANY
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, you are notified that:
WE WILL NOT by picketing or any other means induce or en-
courage any individual employed by Lake Superior and Ish-
peming Railroad Company to engage in a strike or a refusal in
the course of his employment, to perform any work, where an
object is to prevent Lake Superior and Ishpeming Railroad Com-
pany from loading the SS Northern Venture, or to force or re-
quire Lake Superior and Ishpeming Railroad Company to stop
dealing with the operators or lessees of the SS Northern Venture.
WE WILL NOT threaten, coerce, or restrain Lake Superior and
Ishpeming Railroad Company, where an object is to prevent Lake
Superior and Ishpeming Railroad Company from loading the
SS Northern Venture, or to force or require Lake Superior and
Ishpeming Railroad Company to stop dealing with the operators
or lessees of the SS Northern Venture.
GREAT LAKES DISTRICT, SEAFARERS ' INTERNATIONAL
UNION OF NORTH AMERICA, AFL-CIO,
Labor Organization.
Dated---- ------------ By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 consecutive days from the
date of posting, and must not be altered, defaced, or covered by any
other material.
Employees may communicate directly with the Board's Regional
GREAT LAKES DISTRICT , SEAFARERS' INT'L UNION 223
Office, 316 Federal Building , 110 South Fourth Street , Minneapolis 1,
Minnesota, Telephone Number, 339-0112, Extension 2601 , if they have
any question concerning this notice or compliance with its provisions.
INTERMEDIATE REPORT
On September 19, 1961, Upper Lakes Shipping, Ltd., as agent for Island Shipping,
Ltd., both of Toronto, Ontario, Canada, herein called Upper Lakes and Island, re-
spectively, filed charges against Seafarers' International Union of North America,
AFL-CIO, herein called Respondent International.' On October 13, 1961, the same
Charging Party filed amended charges, not only against Respondent International,
but also against Great 'Lakes District, Seafarers' International Union of North
America, AFL-CIO, herein called Respondent District 2 On October 17, 1961, the
General Counsel 3 issued a complaint against both Respondents alleging that since on
or about September 19, 1961, the Respondents have induced and encouraged indi-
viduals employed by Lake Superior and Ishpeming Railroad Company, herein called
the Railroad, to engage in concerted refusals to perform services for their employer;
and have threatened, coerced, and restrained the Railroad from doing business with
the SS Northern Venture, herein called the Venture, its lessees or operators; and that
an object of this conduct is to force and require the Railroad to cease transporting
freight destined for, or to cease doing business with, the Venture, its lessees or
operators. It is alleged that such conduct violates Section 8(b) (4) (i) and (u) (B) of
the National Labor Relations Act, as amended (61 Stat. 136), herein called the Act.
Thereafter, Respondent International filed an answer denying the allegations of the
complaint.4 Respondent District filed a motion to dismiss complaint. The General
Counsel filed an opposition to this motion.
Pursuant to notice, a hearing was held before Trial Examiner Sydney S. Asher, Jr.,
on November 15 and,16, 1961, at Marquette, Michigan. The Railroad was permitted
to intervene. All parties were represented and participated fully in the hearing. The
motion of Respondent District to dismiss the complaint as to it was denied.5 At
the close of the session of November 16, 1961, the hearing was adjourned
indefinitely. On December 18, 1961, upon motion of the General Counsel, an order
was issued closing the hearing. Thereafter, on January 8, 1962, the General Counsel
and the Respondents filed briefs. These have been duly considered insofar as they
bear on the jurisdictional issue.6
Upon the entire record in this case,7 and from my observation of the witnesses, I
make the following:
i The charges allege that certain events occurred at approximately 8 a.m , Septem-
ber 19, 1961. As the Respondents point out, the charges were prepared, signed, and dated
on September 18, 1961, before these alleged events took place However, the charges
show on their face that they were not received at the office of the Board until approxi-
mately 10 am, September 19, 1961 It is accordingly found that the charges were not
prematurely filed Although they were prematurely prepared, that fact does not, in my
opinion, affect their validity.
2 Both Respondents are referred to collectively as the Respondents
3 The term General Counsel includes the General Counsel of the National Labor Rela-
tions Board and his representative at the hearing
4 Respondent International also filed a motion for bill of particulars, and the General
Counsel filed an opposition thereto At the hearing, the motion was granted in part and
denied in part.
5 Thereafter Respondent District adopted as its answer the answer previously filed by
Respondent International
9 The Regional Director sought a temporary injunction against Respondent International
in United States District Court. On October 10, 1961, Hon. W. Wallace Kent handed down
a decision finding that the Board had reasonable cause to believe that Respondent Inter-
national had violated Section 8(b) (4) (i) (B) of the Act C. Edward Knapp, Reg. Dir. v.
Seafarers ' International Union of North America (Upper Lakes Shipping-Island Shipping),
48 LRRM 3138 (D C. W. Mich.). Pending final disposition by the Board, Respondent
International was enjoined from picketing at or near the Railroad's piemises in Marquette,
Michigan, and from violating Section 8(b) (4) (i) (B) or 8(b) (4) (ii) (B) of the Act. This
decree, as modified on November 3, 1961, is apparently still in effect.
7 On January 22, 1962, an order was issued correcting the transcript in certain respects
224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT
1. Island Shipping, Ltd., a wholly owned subsidiary of Upper Lakes Shipping, Ltd.,
is a Bermuda corporation having its principal office and place of business in Hamil-
ton, Bermuda, where it is engaged, among other things, in foreign commerce in the
lease and operation of the SS Northern Venture as a common carrier of iron ore
between several Great Lakes ports located in several States of the United States
and the Provinces of Canada.
2. Upper Lakes Shipping, Ltd., is a Canadian corporation, having its principal
office and place of business in Toronto, Ontario, Canada, where it is engaged, as the
duly authorized Canadian agent for certain limited purposes for Island, in connec-
tion with the operation by Island of the Venture on the Great Lakes. Upper Lakes
is a member of the Association of Lake Carriers, an organization composed of opera-
tors of lake vessels, all of whom are Canadian corporations. Upper Lakes is owned
approximately one-third by Leitch Transport and two-thirds by Norris Grain Com-
pany, Ltd., a Canadian corporation with its principal office in Winnipeg, Manitoba,
Canada.
3. During the year prior to October 17, 1961, Island and its agent, Upper Lakes,
in the course and conduct of their shipping operations in the United States and
Canada, derived gross income in excess of $500,000.
4. Northern Shipping-Bahamas, Ltd., herein called Northern, is a Bahama corpora-
tion. A majority of its capital stock is owned by Upper Lakes.
,5. The Venture was formerly a tanker but was converted in Germany to a Great
Lakes bulk carrier. She is owned by Northern. Before September 7, 1961, the
Venture was registered at the Port of Nassau, Bahamas, but sailed under the British
flag. Since September 7, 1961, she has been registered under the Canadian flag.
6. On July 1, 1961, Northern leased the Venture to Island by bareboat charter.
Upper Lakes, as agent for Island, manages the vessel for certain specific purposes set
out in the management contract, including the finding of cargoes, the direction of
her voyages, and similar matters. Upper Lakes operates the vessel and hires her
crew but the crew is paid by Island.
7. The Venture was delivered to the operators late in June or early in July 1961
at Port Wellers, Ontario, Canada. Between the middle of July and the last part
of September 1961 the Venture touched, at least, at Duluth, Minnesota, and at
Marquette, Michigan. On two occasions, she took on cargo at Marquette.
8. On July 11, 1961, the Canadian Brotherhood of Railway, Transport and Gen-
eral Workers, herein called the Brotherhood, entered into a collective-bargaining
agreement with Island covering, among others, the unlicensed crew of the Venture.
On September 3 and 4, 1961, the Canada Labor Relations Board conducted an elec-
tion in a unit composed, in part, of the unlicensed personnel aboard the Venture.
As a result of this election, on September 29, 1961, the Canada Labor Relations
Board certified the Brotherhood as the collective-bargaining representative of these
employees.
9. Lake Superior and Ishpeming Railroad Company is a common carrier with its
principal office and place of business at Marquette, Michigan, where it is engaged
in transporting iron ore and other commodities between various points within the
State of Michigan. During the year prior to October 17, 1961, the Railroad derived
revenues in excess of $500,000 for services performed as a connecting link in
interstate transportation between points located within the State of Michigan and
various other States of the United States.
Upon the basis of the above findings of fact, and upon the entire record in this
case, I make the following:
CONCLUSION OF LAW
It is the General Counsel's theory that there was a dispute between the Respond-
ents, on the one hand, and Upper Lakes and Island, on the other, concerning the
crew aboard the Venture. In furtherance of this controversy, argues the General
Counsel, the Respondents picketed the Railroad at Marquette, Michigan, when the
Venture docked there for loading, and thereby induced the Railroad's employees not
to load the Venture. The Respondents also, according to the General Counsel,
coerced the Railroad's managerial personnel in a further effort to prevent the
Venture's loading at Marquette. It is therefore clear that, for purposes of determin-
ing the Board's jurisdiction, Upper Lakes and Island must be considered as the
alleged primary employers and the Railroad as the alleged secondary or neutral
employer.8
8 Compare Sheet Metal Workers International Association, Local No. 51 (W. H. Arthur
Company), 116 NLRB 1137, 1142.
GREAT LAKES DISTRICT, SEAFARERS' INT'L UNION 225
At the outset, it is important to determine whether the maritime operation here
in question maintained substantial United States contacts.9 Let us turn then to the
alleged primary employers. Both Island and Upper Lakes are foreign corporations
with their principal offices in foreign countries. Upper Lakes is controlled by an-
other foreign corporation and is a member of an association of foreign employers.
There is no evidence that any United States citizen or resident has any proprietary
interest, direct or indirect, in any of the corporations involved herein. The Venture
was converted abroad; she ,is owned by one foreign corporation and leased to another.
She flies a foreign flag and sails the waters of the country whose flag she flies. She
also calls on ports in the United States. There is no evidence that any of her crew
are United States citizens or residents; there is no proof that any part of her crew
was recruited in this country or that her crewmembers carry United States licenses
or signed on under United States articles. There is no evidence that the Venture
ever flew the United States flag or was ever repaired in this country. Nor is there
any proof that she was subject to periodic inspection by United States authorities. 'In
sum, on the record before me, her only contact with this country seems to be that
she temporarily touched at two United States ports and received cargo. Under these
circumstances it is found that it has not been shown that the Venture has substantial
United States contacts. This finding is further bolstered by the fact that a foreign
tribunal has certified a foreign union as bargaining agent for the Venture's crew. Ac-
cordingly, she did not constitute part of this country's foreign shipping. Therefore,
were we to look to the alleged primary employers alone, there would be no adequate
grounds for asserting jurisdiction.io
The General Counsel appears to recognize this. At the hearing he denied that
the Venture was a "runaway ship"-i.e., a vessel flying a foreign flag but in reality
controlled by United States interests. And in his brief he states:
The question of whether or not the Board would assert jurisdiction over the
foreign corporations who own, lease or operate the Venture need not be answered
here. It is sufficient that the Board has jurisdiction over the secondary employer,
Lake Superior and Ishpeming Railroad Company.
In support of this position, the General Counsel relies upon the admitted fact that
the Railroad (although it operates entirely within Michigan) is a substantial con-
necting link in interstate transportation, obtaining therefrom an income of more
than $500,000 annually. It follows, and I find, that at all material times the Railroad's
operations have constituted operations "affecting commerce" within the meaning of
Section 2(7) of the Act.
But this does not dispose of the matter. The Board does not always exercise its
jurisdiction to the fullest possible extent. On the contrary, it has established certain
standards which determine when it will effectuate the policies of the Act to exercise
jurisdiction. One of these standards governs alleged secondary boycott situations
where, as here, operations of the alleged primary employer do not meet the Board's
jurisdictional standards. In such situations the Board long ago stated that it would
take into consideration for jurisdictional purposes the operations of the secondary
employer, limited, however, .to operations at the location affected by the alleged con-
9 Compare, for example , Eastern Shipping Corporation, at at ., 132 NLRB 930.
10 See Compania Maritimo Sansoo Limitada, Case No. 20-RC-809, May 1, 1950, CCFI
NLRB Decisions, 1950-51, par. 10,081. The following cases are distinguishable from the
instant matter, for in them there existed substantial United States contacts : Incree
Steamship Company, Ltd. v International Maritime Workers Union, 10 N Y. 2d 218,
219 N .Y.S. 2d 21, cert. granted December 4, 1961, 49 LRR 180; Navios Corporation,
et at. v. National Maritime Union of America, et at., 402 Pa. 325, 166 A. 2d 625;
Peninsular & Occidental Steamship Co., at al., 120 NLRB 1097 ; West India Fruit and
Steamship Company, Inc., et at., 130 NLRB 343 (petition to review and set aside pend-
ing in United States Court of Appeals for the Fifth Circuit ) ; Eastern Shipping Corpora-
tion, 'et al., supra; Peninsular & Occidental Steamship Company, et al, 132 NLRB 10;
Hamilton Bros. Inc, 133 NLRB 868; Grace Line, Inc., 135 NLRB 775; and United Fruit
Company, 134 NLRB 287 . The Board-directed election in the last -named case has re-
cently been enjoined by two Federal courts on the ground that substantial United States
contacts do not appear. Ivan C. McLeod, Reg. Dir. v. Empresa Hondurena De Vaporer,
S.A. (United Fruit Company ), 300 F. 2d 222 ( C.A. 2) ; and Sociedad National de Marineros
de Honduras (United Fruit Company ) v. Frank W. McCulloch, Chairman, 201 F. Supp. 82
(D C D.C,).
226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
duct involved.il And this rule, including the limitation, was recently reiterated by
the Board.12 Applying this principle to the case at hand, in order to meet the Board's
jurisdictional standards it must be shown that the Railroad's gross revenues from the
operations of its Marquette, Michigan, establishment alone total at least $50,000
annually.13 This does not appear from the present record. Accordingly, it is found
that the General Counsel has failed to establish that it would effectuate the purposes
of the Act for the Board to exercise jurisdiction in this case.
In the light of the foregoing, it becomes unnecessary to discuss herein other
problems relating to jurisdiction. These include whether, in the light of Benz,14 the
shoreside picketing of a truly foreign ship under the circumstances here present is
within the coverage of the Act.15 Also, assuming that the Board has jurisdiction,
whether it should be exercised, in view of related CA and CB charges pending in the
Thirteenth Region.16 Also, in the light of the Moore Dry Dock decision,17 what
impact the proviso to Section 14(c) (1) of the Act might have.is
[Recommendations omitted from publication ]
it Truck Drivers Local Union No 649, International Brotherhood of Teamsters, etc.
(Jamestown Builders Exchange, Inc ), 93 NLRB 386, 387; Marie T Reilly, d/ b/a Reilly
Cartage Company, 110 NLRB 1742, 1743-1744; International Brotherhood of Teamsters,
etc (McAllister Transfer, Inc ), 110 NLRB 1769, 1771-1772; and Madison Building &
Construction Trades Council, et at. (Wallace Hildebrandt, et at, d /b/a H & K Lathing
Co.), 134 NLRB 517 General Drivers, Chauffeurs and Helpers, Local Union No 896 etc.
(James D. O'Dell, et at, d/b/a Ada T)ansst Mix), 130 NLRB 788, cited by the General
Counsel in his brief, also so holds.
12 E. W. Jemison, at at, doing business as Jemcon Broadcasting Company, 135 NLRB 362.
13HPO Service, Inc, 122 NLRB 394, 395
14 William E. Benz, et at v. Compania Naviera Hidalgo, S A , a corporation, 353 U S. 138
See Marine Cooks & Stewards etc., et at v. Panama Steamship Company, 362 U S. 365,
footnote 12.
1s See Afsan Transport Company v. National Maritime Union, 169 F Supp. 416 and
175 F, Supp. 285 (D C S D N.Y) ; Fianna Cia. Nov S A. v. Benz. 178 F. Supp. 243
(D.C. Oreg) ; Noriis Grain Company v. Nordaas, 232 Minn 91, 46 N W. 2d 94, and The
Effect of United States Labor Legislation on the Flag-of-Convenience Fleet, etc , 69 Yale
L J. 498, 516-523.
10 Case No. 13-CA-4480 filed on October 10, 1961, by four individuals alleging that
Upper Lakes and Island violated Section 8(a) (1), (2), and (3) of the Act, and mentioning
the Venture and later amended to include additional Respondents; Case No. 13-CA-4480-2
filed on October 24, 1961, by a Canadian affiliate of Respondent International against the
same parties alleging the same violations, similarly later amended ; Case No. 13-CB-1128
filed on October 10, 1961, by four individuals alleging that the Brotherhood and another
Canadian union had violated Section 8(b) (1) and (2) of the Act, and later amended;
and Case No. 13-CB-1128-2 filed October 24, 1961, by a Canadian affiliate of Respondent
International against the same parties alleging the same violations, likewise later amended.
No complaints have as yet been issued. Should the Regional Director refuse to take juris-
diction in those cases, would the Board go ahead here, thereby "fragmentizing" the dis-
pute? Compare Marie T. Reilly, d/b/a Reilly Cartage Company, 110 NLRB 1742, 1744,
see also 69 Yale L.J. supra, at 518.
17 Sailors' Union of the Pacific, AFL (Moore Dry Dock Company), 92 NLRB 547. So
far as I have been able to ascertain, this is the only time the Board has taken jurisdiction
over the shoreside picketing of a foreign ship.
is A related problem was discussed at length by the Board in West India Fruit and
Steamship Company, Inc, supra.
SUPPLEMENTAL INTERMEDIATE REPORT
On February 1, 1962, 1 issued an Intermediate Report in the above-entitled pro-
ceeding, in which I found that the General Counsel had failed to establish that it
would effectuate the purposes of the Act for the Board to exercise jurisdiction in this
case, and recommended that the complaint be dismissed in its entirety. On the same
day the proceeding was transferred to the Board. On February 12, 1962, the General
Counsel filed with the Board a motion to remand the proceeding to the Trial Examiner
for further hearing and reopen the record to receive in evidence additional commerce
facts. The Respondents filed opposition thereto. On March 20, 1962, the Board
granted the motion, reopened the record, directed that a supplemental hearing be
held before me "for the purpose of receiving additional commerce information,"
and directed that following the hearing I prepare and serve upon the parties a Sup-
GREAT LAKES DISTRICT, SEAFARERS' INT'L UNION 227
plemental Intermediate Report. On April 26, 1962, the General Counsel filed with
me a stipulation concerning certain commerce facts, signed by representatives of
all parties. The stipulation recites that the facts set forth therein may be received
in evidence, that the parties waive the taking of further testimony and the submis-
sion of further evidence in the matter, and agree that the Trial Examiner may issue
a Supplemental Intermediate Report based upon the stipulation and the record made
at the hearing. That stipulation is made part of the record herein and the record
is now closed.
The temporary injunction against Respondent International, issued by Judge Kent
on October 10, 1961, referred to in footnote 6 of the original Intermediate Report,
is apparently still in effect.
Upon the entire record in this case,' including my observation of the witnesses,
and including the postremand stipulation of the parties, I make the following:
SUPPLEMENTAL FINDINGS OF FACT
1. YHE JURISDICTION OF THE BOARD
10. The Railroad's track system is approximately 160 miles long, and is confined
to an area within a 50-mile radius of Marquette, where the Railroad maintains car
repair shops, a commercial dock, an ore yard, and an ore dock.
11. The Railroad annually derives revenues in excess of $1,800,000 from trans-
portation of iron ore from several points on its system to its ore yard and ore dock
at Marquette, where the Railroad prepares and loads the ore on vessels for ship-
ment in interstate commerce to various destinations in several States.
12. During the 12-month period ending November 1, 1961, the Railroad derived
revenues in excess of $1,000,000 from the operation of its ore yard and ore dock
facilities at Marquette. During the same period, the Railroad derived revenues
in excess of $400,000 from charges for the use of its ore dock to vessels loading
and transporting ore from Marquette to various destinations in several States.
The additional facts set forth above, obtained from the postremand stipulation,
were not previously part of the record. They compel a revaluation of the findings
in the original Intermediate Report. The previous finding that at all material times
the Railroad's operations constituted operations "affecting commerce" within the
meaning of Section 2(7) of the Act is reaffirmed. However, the finding in the
original Intermediate Report that the General Counsel has failed to establish that
it would effectuate the purposes of the Act for the Board to exercise jurisdiction
in this case is revoked.
As set forth in the original Intermediate Report, the Board will take into consid-
eration for jurisdictional purposes the operations of the alleged secondary employer,
limited, however, to operations at the locations affected by the alleged conduct
involved. Applying this principle to the case at hand, in order to meet the Board's
jurisdictional standards it must appear that the Railroad's gross revenues from the
operations of its Marquette establishment alone total at least $50,000 annually.
The facts set forth above demonstrate that this test has been met. Accordingly, in
view of the additional data contained in the stipulation, it is now found that it
would effectuate the purposes of the Act for the Board to exercise jurisdiction in
this case .2
1 The spelling of "Deluth" in the original Intermediate Report is corrected to read
"Duluth."
z I deem it unnecessary to discuss at length the broad policy considerations involved in
enjoining the shoreside picketing of foreign vessels The Board has already issued one
cease-and-desist order against such picketing. International Organization of Masters,
Mates and Pilots of America, Inc, AFL-CIO, et at. (Chicago Calumet Stevedoring Co,
Inc), 125 NLRB 113 That decision is binding on me As to the Board's opinion of
the impact of the proviso to Section 14(c) (1) of the Act, see West India Fruit and Steam-
ship Company, Inc, 130 NLRB 343, 370-372 (petition to review and set aside pending in
United States Court of Appeals for the Fifth Circuit)
Additional cases on the subject of foreign ships published since the original Inter-
mediate Report include Fruit Dispatch Company v. National Maritime Union of America,
50 LRRM 2077 (La. Ct App ), March 12, 1962; South Georgia Company, Ltd, etc. v
Marine Engineers Beneficial Association , et at, 49 LRRM 2561 ( La. Dist. Ct ), Decem-
ber 22, 1901 , Bowater Steamship Company, Ltd v Patterson Intl Woodworkers, et at, 49
LRRM 3071 (CA. 2), March 28, 1962 ; Oioens-Illinois Glass Company, 136 NLRB 389 , and
Dalzell Towing Company, Inc, et at., 137 NLRB 427
672010-63-vol. 139-16
228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
II. THE RESPONDENTS
The complaint alleges, the answer admits, and it is now found , .that each Respond-
ent is, and at all material times has been, a labor organization as defined in the Act.
III. THE UNFAIR LABOR PRACTICES
A. Background
During 1961 the Maritime Trades Department of the AFL-C103 and both
Respondents herein waged a campaign against "run-away flags." The publica-
tions of Respondent International, of the M.T.D., and of the United Steelworkers
of America carried on "a vigorous fight ... against this type of operation." There
is no convincing evidence in the record before me to indicate that the SS Northern
Venture had ever been under United States registry, or that any part of her ultimate
ownership resides in the hands of United States citizens. Nor does the record con-
tain probative evidence that either of the Respondents-or even their Canadian
affiliate-made demands upon the Venture's owners or operators to be recognized
as bargaining agent for any members of her crew. The record is clear that neither
Respondent had any dispute with the Railroad at any material time.
As set forth in the original Intermediate Report, the Venture was delivered to the
operators late in June or early in July 5 at Port Weller, Ontario, Canada. From
about July 10 to about July 15 she was picketed at Port Weller, and some crew
members left the ship. This picketing was enjoined by the Supreme Court of
Ontario. During the same month, the Venture touched at Duluth, Minnesota,
where she was likewise picketed. An unsuccessful attempt was made to obtain an
injunction against this picketing from a Minnesota State court.
Late in August the Venture berthed at the Railroad's ore dock in Marquette for the
purpose of taking on a cargo of ore. Normally, the work of loading the ore would
have fallen to the Railroad's rank-and-file employees. On this ocassion, however,
pickets appeared at or near the Railroad's ore dock when the Venture arrived and
the Railroad's rank-and-file employees refused to load her. She was loaded by the
Railroad's supervisors. On September 8 and 9 the Venture again came into the
Railroad's ore dock, empty, for loading. Again pickets appeared; once more the
rank-and-file employees of the Railroad refused to load her, and the job was ac-
complished by the Railroad's supervisors.
The General Counsel does not contend that either Respondent was responsible
for the picketing on any of the four occasions described above. He takes the posi-
tion that such picketing is relevant only as background and is not covered by the
allegations of the complaint.
B. The events of September 19 through 22
A few days before September 19 it became known among seamen in nearby ports
that the Venture was again expected to arrive at Marquette, empty, on about Septem-
ber 19 to take on another load of ore. A group of seamen gathered at Respondent
District's Alpena, Michigan, hiring hall discussed the matter and decided to go to
Marquette to picket the Venture when she arrived.6 A group of seamen at Respondent
District's Duluth, Minnesota, hiring hall reached the same decision? These plans
came to the attention of Fred J. Farnen, Respondent District's secretary-treasurer.
Farnen then directed Peter W. Drewes, Respondent District's port agent at Duluth
'Approximately 30 international unions affiliated with the AFL-CIO, Including Re-
spondent International, are affiliates of the Maritime Trades Department, herein called
the M T.D.
' This term is apparently applied in the maritime trades to ships actually owned by
United States citizens, but register in, and flying the flag of, other nations.
s All dates hereafter refer to the year 1961, unless otherwise noted.
' The finding of fact that such discussions took place at the Alpena hiring hall is based
upon the testimony of Thorbern C. Pauley and James Gamble, witnesses for the General
Counsel, as corroborated by a report made by Respondent District's port agent at Alpena
to his supervisor and further corroborated by the presence of Pauley, Gamble, and other
seamen from Alpena at Marquette when the Venture visited that port on September 19.
In all other respects I consider Pauley and Gamble unreliable witnesses, and will base no
findings on the remainder of their testimony.
T The finding of fact regarding the Duluth conversations is based upon the testimony of
Respondent District's port agent In Duluth, who overheard the seamen talking, cor-
roborated by the presence of seamen from Duluth at Marquette when the Venture touched
that port on September 19
GREAT LAKES DISTRICT, SEAFARERS' INT'L UNION 229
(whose geographical area included Marquette) to go to Marquette " to see that our
name was not connected with any activities . taking place in this area .. .
[and] if any of our members were in this area to see that they didn't get into any
trouble . . . [and] if there were any pickets put up that we were not held re-
sponsible...." 8
The Venture berthed at the Railroad's ore dock in Marquette at approximately
8 a.m. on September 19. She was empty and came in to load a cargo of ore. Al-
most immediately pickets appeared at several places. Some were directly in front
of the gate underneath the ore dock, where a public highway passes under the dock.
This is referred to in the record as Site No. 1; it is as near the Venture as the pickets
could get while remaining on public property and without trespassing on the Rail-
road's property. Others were on either side of a road which, branching off the
main road, leads to the Railroad's car shop and roundhouse repair department. This
is referred to as Site No. 2. Still others appeared some distance to the west, on an
access road leading from the main road to an oil-tank farm and ore yard on the
Railroad's property. This is referred to as Site No. 3. At each of the these points
pickets had a sign reading:
M T D AFL-.CIO
PROTEST
THREAT TO JOBS
& WORKING CONDITIONS
STR. [Northern Venture]
We have No Dispute with Any Other Employer
The words "Northern Venture" were written in crayon or pencil on pieces of
paper pasted over the signs; the remainder of the signs was painted.
Some of the pickets had come to Marquette from Alpena and Duluth, in accordance
with the agreements among the men referred to above. Some were members of
Respondent District.
Upon appearance of the pickets, the Railroad's dock crews refused to load the
Venture.9
Pickets remained all day. At about 2:15 a.m. on September 20 the Venture
pulled away from the ore dock, empty, and anchored in the harbor in a spot visible
from Marquette. The pickets immediately dispersed.
Meanwhile, Drewes arrived in Marquette at about 9 a.m. on September 19, ap-
proximately an hour after the picketing had begun. He made frequent trips in his
auto to the three points where pickets were stationed, talked to the pickets, and dis-
cussed the situation with various people, including employees of the Railroad.
The Venture returned to the Railroad's ore dock on the morning of September 22,
still empty. Picketing was resumed at Sites Nos. 1 and 2, but not at Site No. 3.
In addition, there were, for the first time, pickets at the entrance to the Railroad's
merchandise dock, a separate dock a short distance from the ore dock. This is
referred to as Site No. 4. A two-man picket boat also went out into the harbor
from the city dock. The pickets on September 22 appear to have been mostly the
same men who picketed on September 19. The signs carried on September 22, on
land and sea, bore the following painted message:
UNEMPLOYED
AMERICAN SEAMEN
PROTEST
THREAT TO JOBS
& WORKING
CONDITIONS
BY
S.S. NORTHERN VENTURE
THIS DISPUTE INVOLVES
NO OTHER EMPLOYER
Upon resumption of picketing, the Railroad's dockmen again refused to load the
Venture, and left the dock. The Venture remained at the dock, empty, for about
2 hours, then left. The picketing thereupon ceased. Drewes was still in Marquette
during the events of September 22.
8 Farnen had similarly directed Drewes to go to Marquette at the end of August, when
the Venture was picketed there, "to see to it that the Union 's name was protected."
Drewes had then proceeded to Marquette in response to this direction.
9 This applies to all three dock crews , which reported that day respectively at 7 a.m.,
3 p.m., and 11 p.m.
230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
C. Respondent District's inducement and encouragement
1. Contentions of the parties
The complaint alleges, and the answer denies, that since on or about September 19
the Respondents induced and encouraged employees of the Railroad to refuse con-
certedly to perform work for their employer. The General Counsel's position is that
Drewes, as agent for both Respondents, orally induced employees of the Railroad
not to work for the Railroad; and also that Respondents "took effective charge of
the picket line." The Respondents, conversely, vigorously deny that they participated
in the picketing in any way. For the present, the matter will be treated with respect
to Respondent District alone; the role of Respondent International will be con-
sidered later.
2. Facts
The Railroad's rank-and-file employees who work in the Marquette car shop and
roundhouse repair department are represented for purposes of collective bargaining
by Brotherhood of Railroad Carmen of America, herein called the Carmen. These
employees went to work as usual on September 19 before the Venture arrived and
before picketing commenced. A short while after picketing began, word reached
these employees that pickets were stationed at the entrance to the access road leading
into their shop. They asked Edward R. Anderson, one of their number and general
chairman of the Carmen for the Railroad's employees, to investigate.10 At about
4 p.m., after quitting time for the shop workers, Anderson had a conversation with
Drewes in front of the Railroad's dock office. According to Anderson's credited
testimony, the conversation went as follows:
Q. (By Mr. GOSLEE.) All right. Will you relate what the conversation was
and what you said and what Mr. Drewes said?
A. Well, first I introduced myself and he introduced himself. I asked what
the object was and so he told me they were there to picket the Northern Venture
because it was a scab boat and hiring foreign labor and not under American
registry. So then I asked him what he was there for and he was there to see
that everything was kept orderly.
Q. All right. Was there anything further to the conversation?
A. Well, then, I explained our set-up on the road, what was the idea of picket-
ing on our road. Well, the main idea was to try to keep our supervisors from
using the road to get into the office.
Q. You say the "main idea," was this what Mr. Drewes said or what you
said?
A. Well, that was the idea of picketing the road, to try to keep the supervisory
bunch from getting in and loading out.
Q. All right. Is that what Mr. Drewes said?
A. I'm pretty positive.
Q. All right, it wasn't that I was indicating the word "positive" but you just
didn't identify who said what. Would you do that in the rest of the conversation?
A. Well, I told him that I couldn't see no reason why it was there, and I
explained that because actually we were working in the car shop and had nothing
to do with the loading of the ore on the boat. Well, he asked me what we
worked on and I told him all type of freight cars, ore cars. Well, then, he said
the ore cars are used to haul ore. So I didn't argue the point there on that. I
said the men over there wanted me to find out, we've got men that just came
back to work, they want to keep working. I just wanted to understand on that
line. So he says, he asked me, he'd like to have us honor it and I say what would
you gain. He says, well the Railroad [sic] has nothing against the Railroad
or us and if it would possibly help their case against the Northern Venture.
Q. Was there anything further to the conversation that you recall at this time?
A. Well, I told him at that time that we don't know how it would pressure
us on receiving unemployment. He made a mention to take us off the hook, in
19 At about 9.30 a in , Anderson went to Site No. 2 and talked with pickets there.
Anderson returned to the shop and posted a sign requesting the men to honor the picket
line, telephoned to an official of the Carmen, then removed the sign. One shop employee
went home for lunch and did not return ; his failure to return is not explained, Another
refused to go home for lunch, apparently in order to avoid having to cross the picket line
on his return.
GREAT LAKES DISTRICT, SEAFARERS' INT'L UNION 231
other words, so there would be no trouble for us, he could threaten violence,
but actually they wouldn't threaten. I said I wouldn't use that."
3. Conclusions
Section 8 of the Act provides, in pertinent part:
(b) It shall bean unfair labor practice for a labor organization or its agents-
( * *
(4) (i) to . .. induce or encourage any individual employed by any
person engaged in commerce or in an industry affecting commerce to en-
gage in, a strike or a refusal ... to perform any services... .
where an object thereof is proscribed. The United States Supreme Court, speaking
of Section 8(b) (4) (A) of the Act, the predecessor of the present Section 8(b) (4) (i),
stated: "The words `induce or encourage' are broad enough to include in them
every form of influence and persuasion." 12
Clearly, on September 19 Drewes orally importuned Anderson not to work for
the Railroad so long as the pickets remained.13 And even assuming that Anderson
was the only employee contacted by Drewes in this manner, this would not prevent
the existence of the requisite inducement of the employees because Anderson was,
as Drewes knew,14 the general chairman of the Carmen in the Railroad's shop.
Accordingly, he could reasonably have been expected to transmit Drewes' message to
his fellow workmen. This is further indicated by Drewes' use of the word "us"
when he told Anderson he would "like to have us honor" the picket line. In sum,
through their spokesman, Anderson, Drewes was in fact appealing to all the Railroad's
shop employees -to respect the picket line." Moreover, he did so as agent for
Respondent District acting within the scope of his general authority as port agent
for the territory which included Marquette. Accordingly, Respondent District is
accountable for this conduct.
D. Object of the inducement and encouragement
1. Contentions of the parties
One of the objects proscribed by Section 8(b) (4) (i) (B) of the Act is "forcing
or requiring any person . . . to cease doing business with any other person." The
complaint alleges and the answer denies that an object of the inducement and en-
couragement was "to force and require the Railroad to cease handling or transporting
products destined for, or to cease doing business with, the Northern Venture, its
lessees or operators." The General Counsel contends that there was a primary
dispute between the Respondents and the Charging Party "concerning the personnel
on the Northern Venture," and that the Railroad was a neutral not 'involved in the
dispute. He further maintains that the inducement and encouragement was directed
toward the Railroad's employees, rather than the Venture's crew, as shown by the
picket lines' failure to comply with the tests for primary picketing set forth in Moore
Dry Dock.1° Finally, he urges that Drewes' oral appeal to Anderson shows the
proscribed object of the inducement and encouragement. The Respondents deny that
any primary dispute existed between them and the Charging Party regarding the
Venture's crew. Moreover, they deny their responsibility for the picket lines. Addi-
tionally, they contend that the picket lines conformed to the Moore Dry Dock stand-
ards for primary picketing and therefore if any inducement or encouragement
existed it was aimed only at the Venture's crew, not at the Railroad's employees.
"Although Drewes admitted that he "might have said that these men would appreciate
no one crossing their picket line ," he in substance denied the remainder of Anderson's
testimony Drewei ' denial in this respect is not credited.
12 International l3rotherhood of Electrical Workers, Local 501, et al. ( Samuel Langer) v.
NLRB. , 341 U S 694 , 701-702.
13 This is so regardless of who established or maintained the picket line It is also true
whether Drewes used the words "I would like to have you honor the picket line" or the
words "These men would appreciate no one crossing their picket line."
"Anderson had introduced himself and told Drewes " the men . . . wanted me to
find out."
ae N.L.R B. v Local 11, United Brothel hood of Carpenters , etc, at al ( General Mill-
work Corp ), 242 F. 2d 932 , 935 (CA 6 ) ; and Wells, et al. v. International Union of
Operating Engineers , AFL-CIO, Local 181 , et al., 206 F 2d 414 (C A 6).
16 Sailors ' Union of the Pacific , AFL (Moore Diy Dock Company ), 92 NLRB 547.
232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Finally, they urge that in any event the Railroad became an "ally" of the Charging
Party and was accordingly not protected by the Act against inducement and encour-
agement of its employees. Again, the issue will be treated at this point only insofar
as it relates to Respondent District.
2. Conclusions
I deem it unnecessary to determine whether a dispute existed between the Respond-
ents and the Charging Party. Even if there were no such dispute, this fact would
not immunize the Respondents from the terms of Section 8('b) (4) of the Act, which
neither literally nor implicitly requires the existence of such a dispute as a condi-
tion of its operation.17
The Respondents' argument that the Railroad became the "ally" of the Charging
Party seems to rest upon three factors: (1) attorneys for the Railroad consulted
with and collaborated with attorneys for the Charging Party; (2) the charges were
prepared, signed, and dated on September 18, before the Venture came in to Mar-
quette (however, as pointed out in footnote 1 of the original Intermediate Report,
they were not filed until 10 a.m . September 19); and (3) the Venture was not loaded
by the Railroad's supervisory employees on September 19, 20, or 22, although that
technique had been used on prior occasions when picket lines appeared. I am unable
to find in these matters sufficient substance to convince me that the Railroad and
the Charging Party acted collusively to such an extent as to constitute them "allies"
for purposes of the Act Accordingly, I find this defense lacking in merit.
It need not be decided at this point whether the Respondents are responsible for
the picket lines, or whether the standards of Moore Dry Dock apply. For here the
finding of inducement and encouragement is bottomed solely upon oral persuasion
used by Drewes toward the Railroad's employees on September 19 at about 4 p.m.,
and is entirely independent of any activity of the pickets.
Thus the search for the object of the inducement and encouragement leads back
to the same conversation between Anderson and Drewes on September 19 which
contained the inducement and encouragement. In that conversation Drewes re-
ferred to the Venture as a "scab boat" and pointed out that the Railroad workers,
by honoring the picket lines, "would possibly help their 18 case against the Northern
Venture." In my opinion, in this conversation Drewes made it unmistakably clear
that an object of Respondent District's inducement and encouragement of the Rail-
road's employees was to impede the loading of the Venture and thereby cause the
Railroad to cease doing business with the Venture's operators and/or lessees. Such
an object is forbidden by the Act. It follows that, on September 19, Respondent
District violated Section 8 (b)(4)(i)(B) of the Act. I so find.19
E. Alleged threats, coercion , and restraint
1. Contentions of the parties
The complaint alleges, and the answer denies, that since on or about September 19
the Respondents "threatened, coerced and restrained ... the Railroad ... from ...
doing business with, the Northern Venture, its lessees or operators." The General
Counsel maintains that the threats to, coercion of, and restraint of the Railroad
were accomplished by the existence of picket lines. He further contends that the
Respondents either were responsible for and originated these picket lines in the
first place, or else at least "took effective charge of the picket line after the action
had started," so as to make the Respondents accountable therefor. In addition, he
relies upon certain specific threats allegedly made by pickets to certain identified
individual officials of the Railroad. The Respondents deny taking part in the
picket lines, either originally or at any later time, and disclaim responsibility for
any actions of the pickets.
'- '' N.L R B v. Local 11, United Brotherhood of Carpenters, etc., et at. (General Mill-
work Corp ), supra, at 934-935; and N L R.B v. Washington-Oregon Shingle Weavers'
District Council, et at (Sound Shingle Co ), 211 F. 2d 149, 152 (C.A. 9).
18 The use of the word "their" in this context would appear to be ambiguous-it might
mean the pickets, but it also might mean the Respondents.
19 In their brief, the Respondents move to dismiss the complaint. Insofar as the com-
plaint alleges that Respondent District violated Section 8(b) (4) (1) (B) of the Act, the
motion to dismiss is denied
GREAT LAKES DISTRICT, SEAFARERS' INT'L UNION 233
2. Factors supporting the General Counsel's position
Let us examine the factors which might tend to militate in favor of the Respond-
ents ' responsibility for the picket lines:
(a) Talk of picketing the Venture originated in Respondent District's hiring halls
in Alpena and Duluth.
(b) Farnen had advance notice that picketing of the Venture when it planned
to dock in Marquette was likely, and sent Drewes there.
(c) Drewes remained in Marquette during all the picketing except about the
first hour.
(d) Many of the pickets were members of Respondent District 20
(e) Drewes made frequent visits to the various points where picketing was being
conducted and engaged in numerous discussions with pickets and other people,
including employees of the Railroad. He also made a telephone call from a public
telephone booth in Marquette.
(f) On one occasion on September 19 Drewes stopped his car at Site No. 1,
got out and talked to several men standing there (possibly pickets), and gestured
toward Site No. 2. Thereupon one of the men to whom Drewes had spoken started
down the road in the direction of Site No. 2.
(g) Drewes brought coffee to the pickets and admittedly sympathized with their
point of view.
(h) As related in detail above, Drewes appealed to the Railroad's shop workers,
through Anderson, to honor the picket line.
(i) On one occasion on September 19, James P. Clancey, attorney for the Railroad,
drove to Site No. 3. His way was blocked by a picket standing in the road,21 and
he stopped. Drewes, who was present, asked Clancey who he was and Clancey,
after identifying himself, inquired if he could go through. Drewes replied either
that he had no control over that, or that it was up to Clancey. Drewes went over
to the picket and told him he should not be standing in the road. The picket then
stepped aside and Clancey went through.22
(j) After the issuance of the injunction referred to in footnote 6 of the original
Intermediate Report, the Venture returned to the Railroad's ore dock in Marquette,
empty, and was loaded, presumably by the Railroad's employees, without incident
or picketing.
3. Factors supporting the Respondents' position
We turn now to factors which might tend to absolve the Respondents from any
responsibility for the picketing:
(k) There is no probative evidence that any agent of either Respondent suggested
the picketing.
(1) The name of neither Respondent appeared upon any picket sign.
(m) The picketing commenced before any agent of either Respondent was in
Marquette.
(n) It was not shown that all pickets were members of Respondent District.
(o) Neither Respondent contributed toward the transportation of men from
Alpena and Duluth to Marquette or furnished subsistence or lodging to them while
in Marquette (except coffee, as noted before).
(p) Neither Respondent supplied the pickets with picket signs or the picket boat.
(q) Neither Respondent gave orders, directions or, instructions to any picket
except the one instance involving Drewes on September 19, described in (i) above.
(r) Pickets had appeared when the Venture docked at various ports on four pre-
vious occasions, and there is no contention by the General Counsel that either Re-
spondent was responsible therefor. In short, a pattern of picketing the Venture
wherever and whenever she appeared had already become established without being
aided or abetted by the Respondents, so far as this record shows.
20 The pickets on land apparently did not patrol but simply gathered in groups near or
around a picket sign. Sometimes one carried the sign For this reason, it was often
difficult to differentiate between pickets and mere curious onlookers. In this context, I
consider of little probative value any testimony regarding the numbers of pickets.
Si Drewes identified this picket as John Johanson or John Jackson, a member of Re-
spondent District from Duluth.
22 This incident was apparently relied upon by the General Counsel only to show the ex-
tent of Drewes' control over the pickets. I express no opinion as to whether Ciancey, who
was engaged in the private practice of law, constitutes a "person engaged in commerce or
in an industry affecting commerce" within the meaning of Section 8(b) (4) (ii) of the Act.
234 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. Conclusions
In order to prove that either Respondent is legally responsible for the picketing, it
is not enough to show that it sympathized with the pickets, or gave them moral or
tangible support . There must be more; namely , evidence that the Respondents or
their agents either actually established the picket lines in the first place , or at least
took over control of the picketing at some later time . And the burden of proving
this rests upon the General Counsel. Let us then evaluate the factors set forth above.
As for (a), it is natural for seamen to gather at hiring halls, and to discuss mat-
ters of common interest . And it is not surprising that the Venture, a ship already
picketed four times , should have been a topic of conversation.
As for (b ), Farnen was not the only party with advance warning that the
Venture might again be picketed when she came into Marquette . Indeed, the Charg-
ing Party considered this so likely that charges were drafted and signed in advance.
It was surely no more suspicious for the Respondents to anticipate events than it was
for the Charging Party to do so.
Perhaps Farnen might have been wiser not to have sent Drewes to Marquette.
But it is not for me or the Board, in hindsight , to weigh his wisdom . Our function
is only to evaluate Farnen's motive in the light of matters as they stood at that time.
It must be recalled that when the Venture was picketed earlier in Duluth an un-
successful attempt was made in court to establish Respondent District 's responsibility
therefor . Farnen testified that he did not want to risk this happening again, and
felt that Drewes ' presence in Marquette on September 19 (as well as during earlier
picketing of the Venture in Marquette ) might protect Respondent District against
possible future litigation . In view of the cat-and -mouse game each side seems to have
been playing at that time, I cannot reject Farnen 's explanation as unreasonable. This
also applies to (c), as Drewes' presence in Marquette was directly due to Farnen's
orders.
As for ( d), it seems to be offset largely by (n). Factors (e), (f), (j), and (1) are
in my opinion ambiguous , inconclusive , and unreliable in making a determination
of the Respondents ' responsibility for the picketing . 23 Factors ( g) and ( h) show a
strong bond of sympathy between Drewes and the pickets , but nothing more. Factor
(i), the so-called Clancey incident , indicates that Drewes exercised some measure of
control over the actions of one picket on one occasion and thus lends support to
the General Counsel's position . But the combination of factors ( k), (m), (o), (p),
(q), and ( r) are, I consider, strong enough to counter factor ( i), and even to outweigh
and overbalance it. I conclude that, although the matter is not entirely free from
doubt, the General Counsel , in this respect , has failed to carry his burden of proof.
It is accordingly found that the General Counsel has not established that either
Respondent was accountable for the conduct of the pickets and has not established
that either Respondent violated Section 8(b) (4) (ii ) ( B) of theAct .24
F. Respondent International 's alleged inducement and encouragement
1. Contentions of the parties
There remains the question of whether Respondent International is legally liable
for the violation of Section 8(b) (4) (i ) ( B) of the Act , which it has been found was
committed by Respondent District on September 19. This, in turn, depends upon
(1) whether either Drewes or his superior, Farnen , or both, were agents of Respond-
ent International on that date , as well as agents of Respondent District , as already
found ,25 and ( 2) whether Respondent District was a mere operating branch and
administrative division of Respondent International . The General Counsel contends
that Farnen and Drewes were agents of Respondent International so as to render
it responsible for their conduct. Conversely , the Respondents maintain that there was
no agency relationship between Farnen and Drewes on the one hand and Respondent
International on the other . The Respondents also urge that Respondent District is
an autonomous affiliate , not simply an arm or branch of Respondent International.
28 Factor ( j) particularly may have been due to an overabundance of caution on the
pickets' part , or to the advice of their attorney.
24 Accordingly I grant the motions of the Respondents to strike the testimony of
William Carlson as to what an unidentified picket told him; that of Harry L. Kirk as to
a similar incident ; and that of Robley Morrison as to still another similar occurrence.
25 The parties stipulated that Al Tanner visited Marquette during the picketing of the
Venture . However, as there is no record of what he did there, I find it unnecessary to
decide whether he was an agent of Respondent International.
GREAT LAKES DISTRICT, SEAFARERS' INT'L UNION 235
2. Conclusions
Respondent International is composed of (a) local unions and (b) district organi-
zations with branches. There are a number of such affiliated district organizations,
including Respondent District; Seafarers' International Union of North America,
Atlantic and Gulf District, AFL-CIO, herein called Atlantic and Gulf District;
Sailors' Union of the Pacific, herein called the S.U.P.; and others. Respondent Inter-
national 's officers are not the same individuals who hold office in Respondent District.
Respondent District has individual members, for whom it pays per capita dues to
Respondent International. The constitutions of these two organizations plus testi-
mony in the record make it clear that Respondent District is no mere administrative
branch under the control of Respondent International, but on the contrary is a
completely autonomous body, self-governing and independent.
To show that Farnen and Drewes (and other port agents of Respondent District)
are controlled by Respondent International , the General Counsel relies heavily upon
the manner in which they are compensated. The record shows that their salaries
and reimbursement for their expenses are paid entirely from the Great Lakes and
St. Lawrence Seaway Organizing Fund, herein called the Fund. The moneys in the
Fund originate from three separate sources: the income of Respondent District,
appropriations from the Atlantic and Gulf District and appropriations from the
S U P. The Fund is administered by three individuals: Paul Hall, president of Re-
spondent International and of the Atlantic and Gulf District; Farnen; and Morris
Weisberger, head of the S.U.P. Moneys of the Fund are actually disbursed by
Al Kerr, secretary-treasurer of the Atlantic and Gulf District, who is authorized to
sign checks. I cannot agree with the General Counsel that the mere fact that
Farnen and Drewes are paid by a fund, one of the administrators of which is presi-
dent of Respondent International as well as president of the Atlantic and Gulf
District, proves that Respondent International controls them or that any principal-
agent relationship exists. And the fact that Respondent International does not itself
contribute to the Fund strengthens this conclusion. It is accordingly found that the
General Counsel has failed to establish Respondent International's responsibility
for the conduct of Farnen or Drewes, or that Respondent International violated the
Act in any manner.26
AMENDED CONCLUSIONS OF LAW
In view of the postremand stipulation of the parties, the conclusion of law in the
original Intermediate Report is now revoked. Upon the basis of the findings of fact
in the original Intermediate Report, the supplemental findings of fact herein, and
upon the entire record in this case, including the postremand stipulation, in lieu of
the revoked conclusion of law I now make the following amended conclusions of
law :
1. The operations of Lake Superior and Ishpeming Railroad Company constitute,
and at all material times have constituted, operations affecting commerce within the
meaning of Section 2(7) of the Act.
2. Great Lakes District, Seafarers' International Union of North America, AFL-
CIO, is, and at all material times has been, a labor organization within the meaning
of Section 2(5) of the Act. Fred J. Farnen and Peter W. Drewes are, and at all
material times have been, its agents within the meaning of Section 8(b) of the Act.
3. Seafarers' International Union of North America, AFL-CIO, is, and at all
material times has been, a labor organization within the meaning of Section 2(5)
of the Act. Neither Fred J. Farnen nor Peter W Drewes is, nor has at any material
time been, its agent within the meaning of Section 8(b) of the Act.
4. By inducing and encouraging individuals employed by Lake Superior and
Ishpeming Railroad Company to engage in a strike or refusal in the course of their
employment to perform services, with an object of preventing Lake Superior and
Ishpeming Railroad Company from loading the SS Northern Venture, or forcing
or requiring Lake Superior and Ishpeming Railroad Company to cease doing busi-
ness with the operators and/or lessees of the SS Northern Venture, Great Lakes
District, Seafarers' International Union of North America, AFL-CIO, has engaged
in and is engaging in unfair labor practices within the meaning of Section
8(b) (4) (i) (B) of the Act.
11 The record contains an indication that Drewes might have introduced himself to the
General Counsel as an agent of Respondent International But if this did occur, it is im-
material It is well settled that an agent's authority cannot be established by means of
his own unauthorized declarations Restatement of Agency (2d) Section 285.
236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
5. The above-described unfair labor practices tend to lead to labor disputes
burdening and obstructing commerce and the free flow of commerce, and constitute
unfair labor practices affecting commerce within the meaning of Section 2(6) and
(7) of the Act.
6. The General Counsel has failed to establish that Great Lakes District, Sea-
farers' International Union of North America, AFL-CIO, has engaged in or is
engaging in unfair labor practices within the meaning of Section 8(b) (4) (ii) (B)
of the Act.
7. The General Counsel has failed to establish that Seafarers ' International Union
of North America, AFL-CIO, has engaged in or is engaging in any unfair labor
practices.
[Amended Recommendations omitted from publication.]
Building and Construction Trades Council of San Bernardino
and Riverside Counties ; and Plasterers Local No. 73, and its
agent, D. A. Kidd, Financial Secretary [Gordon Fields; Huey
Carpenter] and Golding and Jones , Inc., and Interstate Em-
ployers, Inc. Case No. 21-CC-475. October 18, 1962
DECISION AND ORDER
On July 10, 1962, Trial Examiner John P. von Rohr issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondents had engaged in and were engaging in certain unfair labor
practices and recommending that they cease and desist therefrom and
take certain affirmative action, as set forth in the attached Intermedi-
ate Report. Thereafter, the Respondents filed exceptions to the In-
termediate Report and supporting briefs.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Leedom and Fanning].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and brief, and the entire record in the
case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner.'
1 The Trial Examiner found it unnecessary to decide whether Fields in his individual
capacity was a party to the contract with the Respondents. Unlike the Trial Examiner,
we find that Fields as the individual owner of the enterprise involved herein was not a
party to any agreement with the Respondents . Accordingly, we find that Respondents
engaged in proscribed conduct with an object of compelling Fields to enter into an agree-
ment prohibited by Section 8(e) and thereby violated Section 8 ( b) (4) (it ) (A). Construe.
tion, Production & Maintenance Laborers Union Local 383, AFL-CIO, et al. ( Colson and
Stevens Construction Co., Inc.), 137 NLRB 1650. Moreover, Chairman McCulloch and
Member Leedom but not Member Fanning, would find this violation even if Fields were a
party to such an agreement in that this conduct would then have the proscribed object of
compelling Fields to abide by such agreement . (See their respective positions in Los
Angeles Mailers Union No. 9, I.T.U. (Hillbro Newspaper Printing Company, Division of
Hearst Publishing Company, Inc.), 135 NLRB 1132.
139 NLRB No. 19.