ILA, Local 1526

National Labor Relations Board - Board Decisions

Jun 30, 1970

184 N.L.R.B. 438 (N.L.R.B. 1970)

438 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
International Longshoremen's Association, Local
1526, AFL-CIO and Tropical Shipping & Con-
struction Co., Ltd.
International Longshoremen 's Association, Local
1526 , AFL-CIO and Birdsall Construction Com-
pany . Cases 12-CC-632-1 and 12-CC-632-2
June 30, 1970
DECISION AND ORDER
BY MEMBERS FANNING, MCCULLOCH, AND JENKINS
On April 20, 1970, Trial Examiner Sidney D.
Goldberg issued his Decision in the above-entitled
cases, finding that the Respondent had engaged in
and was engaging in certain unfair labor practices
within the meaning of the National Labor Relations
Act, as amended, and recommending that it cease
and desist therefrom and take certain affirmative
action, as set forth in the attached Trial Examiner's
Decision. Thereafter the General Counsel and the
Charging Parties filed exceptions to the Recom-
mended Order of the Trial Examiner together with
supporting briefs, in which they asserted that the
Recommended Order is unduly narrow and
requested, accordingly, that the said Order be ex-
panded in certain specified respects. Respondent
then filed with the Board a statement declaring that
it had no objections to changes in the Recom-
mended Order consistent with the exceptions of
General Counsel and the Charging Parties.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
powers in connection with these cases to a three-
member panel.
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
Trial Examiner's Decision in light of the limited ex-
ceptions filed by the General Counsel and the
Charging Parties, the statement of Respondent
Union in response thereto, and the entire record in
these cases, and hereby adopts the findings,' con-
clusions, and recommendations of the Trial Ex-
aminer with the additions in the Recommended
Order set out below.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner as modified
below2 and hereby orders that Respondent, Interna-
tional Longshoremen's Association, Local 1526,
AFL-CIO, its officers, agents, and representatives,
shall take the action set forth in the Trial Ex-
aminer's Recommended Order, as herein modified:
1. Insert the words "or any other person engaged
in commerce or in an industry affecting commerce"
in paragraph 1(a) of the Recommended Order after
the words "Eller & Co., Inc.," and again after the
words "Birdsall Construction Company."
2. Insert the words "or any other labor organiza-
tion" in paragraph 1(a) and 1(b) of the Recom-
mended Order after the words "AFL-CIO."
3. Delete the words "in Port Everglades, Flor-
ida," from paragraph 1(b) of the Recommended
Order.
4. Insert the words "Tropical Shipping & Con-
struction Co., Ltd., and Birdsall Construction Com-
pany or" in paragraph 1(b) of the Recommended
Order after the words "to cease doing business with
each other or with."
5. Delete the words "or any other stevedoring
employer at Port Everglades, Florida," from the
first full paragraph of the Appendix, and substitute
in their place the word "or any person engaged in
commerce or in an industry affecting commerce."
6. Delete the words "those companies" in the
second full paragraph of the Appendix and sub-
stitute in their place the words "Tropical Shipping
& Construction Co., Ltd ., and Birdsall Construc-
tion Company."
' No exceptions were filed to the Trial Examiner 's violation findings
s The modifications are in accord with the request respectively made by
General Counsel and the Charging Parties and consented to by the Respon-
dent
TRIAL EXAMINER'S DECISION
SIDNEY D. GOLDBERG, Trial Examiner: The facts
in this case are not in serious dispute: the question
for decision is whether the employees' work stop-
page herein was only to compel their employer to
adhere to the terms of the collective-bargaining
contract, or whether it was to force a cessation of
business between certain persons and, therefore, in
violation of Section 8(b)(4)(i) and (ii)(B).
The complaint herein,' under Section 10(b) of
the National Labor Relations Act, as amended (the
Act), alleges that, on dates in July and August
1969,2 Respondent induced employees of Eller &
Co., Inc., a stevedoring company at Port Ever-
glades, Florida, to refuse to load trucks of the
charging parties because it was engaged in a labor
dispute with them. Respondent answered, denying
the material allegations of the complaint, and the
issues so raised came on for trial before me at
' Issued September 22, 1969, on charges filed August 6, 1969
T All dates herein , not otherwise designated , are 1969
184 NLRB No. 48
ILA, LOCAL 1526
Miami, Florida, on November 19, 1969. All parties
were represented, afforded an opportunity to ad-
duce evidence, cross-examine witnesses , and argue
on the fact and the law. Briefs filed by the General
Counsel and by counsel for Respondent have been
carefully considered 3
Upon the entire record4 herein, including my ob-
servation of the demeanor of the witnesses while
testifying, I make the following:
FINDINGS OF FACT
1. The parties
The allegations of the complaint on this subject
are admitted by the answers and, together with un-
disputed testimony, show the following:
Tropical Shipping and Construction Co., Ltd.
(Tropical), incorporated under the laws of Nassau,
Bahamas,6 is engaged in the transportation of goods
by sea, on a regular schedule, from the United
States to Nassau, Freeport, and other points in the
Bahamas , deriving annual gross revenues of more
than $50,000 from such operations. As reflected in
this record, the goods are carried in completely
loaded trailers, owned by Tropical or others, which
are rolled aboard its ships at Riviera Beach, which
is the port of Palm Beach . When the overseas
destination is reached , the trailers are rolled off and
either unloaded at the port or hauled by local
truckers to the consignees. This system is called
"containerized freight."
Birdsall Construction Company (Birdsall), a
Florida corporation, is engaged in the motor hau-
lage of goods and materials from several locations
in the State of Florida to Riviera Beach, Florida,
under certificates of the Interstate Commerce Com-
mission. Its principal function is to haul trailers, be-
longing to Tropical and others, to Riviera Beach for
loading on ships of Tropical. These operations con-
stitute a link in interstate commerce and in com-
merce between the States and a foreign country
and Birdsall derives annual revenues from them ex-
ceeding $50,000. Although the trailers have the
name "Tropical Shipping" painted on their sides
and the tractors have the name "Birdsall" on their
doors, both companies are wholly owned by John S.
Birdsall, Jr., and integrated in operation. Ac-
' After the main briefs had been filed , counsel for Respondent made a
motion to strike portions of the General Counsel 's brief on the ground that
it analyzed , in depth , a contract provision which had not been made the
subject of any testimony or argument during the course of the trial Alter-
natively , the motion requested leave to file a reply brief to meet this par-
ticular argument and a proposed reply brief was attached During the trial,
reference had been made to the complexity of the collective-bargaining
agreement and the difficult issues of law arising from its application, as ar-
gued by Respondent , to the facts of the case In this connection the Trial
Examiner had suggested that it might be advisable , for the full development
of legal arguments on both sides, that reply briefs be filed, promising sym-
pathetic consideration for any such application Accordingly, by order
dated February 5, 1970, the motion to strike portions of the General Coun-
sel's brief was denied and Respondent's reply brief was received Although
Respondent 's motion was served by mail on all parties on January 27, the
General Counsel's opposition was not received until late in the day on
439
cordingly , any reference to either of these compa-
nies , unless otherwise stated, includes the other.
Dant and Russell , Inc. (Dant ), a Nevada corpora-
tion engaged in a multistate business of manufac-
ture and wholesale distribution of lumber and wood
products , maintains a Florida branch at Port Ever-
glades which annually receives , from points in other
states , and ships , to points in other states and out-
side the United States, goods valued at more than
$50,000.
Eller & Co., Inc. (Eller ), a Florida corporation
engaged in stevedoring operations at Port Ever-
glades, Florida , provides loading , unloading, and
handling services in the port area . It also acts as
general agent for shippers and other companies en-
gaged in interstate and foreign commerce and an-
nually derives revenues of more than $50,000 from
such services.
Respondent is a labor organization representing
all the employees , except checkers , handling goods
at Port Everglades , including their movement on
and off ships as well as in the warehouse and
storage areas . John Edward King is its president
and business agent : The checkers at this port are
represented by another local of the International
Longshoremen 's Association (I.L.A.).
Local 1680, I.L.A., is also a labor organization
representing longshore and warehouse employees
in the Palm Beach area, and Earl Gibson is its pre-
sident and business agent . Another I.L.A. local
represents longshore and warehouse employees at
the port of Miami.
2. Method of operation
The goods involved in this case consist of lumber,
produced by Dant on the West Coast and shipped
to Port Everglades in Dant 's ships . The lumber,
strapped in bundles , is removed from the ships and
stored in a designated section of the port area,
called the lumber yard, where lumber belonging to
other lumber companies is also stored . Dant has no
employees at Port Everglades, except some clerical
and management personnel , and all the handling of
its lumber , including removal from the ships to the
dock , from the dock to the lumber yard, from place
to place within the lumber storage area and, ulti-
mately, aboard trucks or trailers for transportation
to customers , is performed for Dant by Eller.
February 5, after the order granting the motion had been issued and
dispatched to the parties Nothing in either the General Counsel's opposi-
tion to Respondent's motion or in his subsequent motion for reconsidera-
tion (except the references to an administrative determination by the Re-
gional Director for Region 22) appears to carry sufficient weight to justify
rejection of the reply brief Accordingly , the motion for reconsideration
will be denied but no consideration will be given to that portion of Respon-
dent 's main brief which refers to an administrative determination by the
Regional Director for Region 22 of the Board
" Motions by the General Counsel and Respondent to correct typo-
graphical errors in the transcript of record were unopposed and, by order
dated March 31, 1970, were granted
3 The answer , as filed, denied any knowledge or information concerning
Eller or the Charging Parties but, at the trial, Respondent conceded the al-
legations of the complaint concerning them
Since 1969, the Commonwealth of the Bahama Islands
440 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
When lumber is sold by Dant, a copy of the sales
order is sent to the Dant office in the port area.
This memo sets forth the material sold, the date
when it is to be picked up at the port lumber yard,
and the carrier which has been designated by the
customer to pick it up. The carrier's driver coming
to pick up the lumber first reports to the Dant of-
fice, where he is given an order describing the
material to be loaded; he takes this order to the of-
fice of Eller and an Eller employee instructs the
driver where in the lumber yard to take his truck
for loading. Since the lumber is in bundles, flatbed
trucks or trailers are generally used and the loading
is done from the side by forklift operators and other
employees of Eller, the stevedoring company, after
which the carrier's employee drives his truck or
trailer out of the port area for delivery to the
customer or to a connecting carrier.
3. Background of the dispute
Tropical does not recognize any labor organiza-
tion as a representative of any of its employees.
On July 2, John H. Birdsall, III, the son of the
owner of Tropical and its vice president in charge
of traffic to Nassau, was visited by four men. Three
identified themselves as representatives of the
I.L.A. locals in Palm Beach, Fort Lauderdale (Port
Everglades), and Miami, respectively; the fourth
stated that he represented the Brotherhood of
Longshoremen in Nassau. After some conversation
concerning the labor situation on the Nassau water-
front, Gibson, president of the Palm Beach local,
picked up the statement of one of the others who
had asked Birdsall to use "union labor", asked
Birdsall whether he would "talk with them" and
whether he would permit Tropical's employees to
talk with them. Birdsall said that the employees
were free to talk with whomever they wished and,
as far as the company was concerned, he gave Gib-
son the name of Tropical's labor counsel, saying
that the union officials could communicate with
that attorney and arrange a meeting .' On July 29,
Tropical received, from the same attorneys who
represent Respondent, a letter stating that a majori-
ty of Tropical's employees in Palm Beach and Dade
County (Miami) had designated I.L.A. Local 1680
as their collective-bargaining representative and
that that Local demanded recognition as such
representative. The classifications of employees
claimed to be represented were set forth, and
r Respondent objected to receipt of any testimony showing statements
made by these men as not binding on Respondent and the testimony con-
cerning this meeting was accepted subject to connection with Respondent
Thereafter, John E King, president of Respondent, admitted that he
"worked very close with Turner (one of those at the meeting) in Miami" and
that Turner told him that he, Turner, was "trying to acquire a contract for
Tropical for the West Palm Beach local " King's testimony , that he knew
nothing about this meeting or any demand on Tropical by Local 1680 until
after the charges herein were filed-more than a month later-is rejected
as incredible in view of his testimony that he learned about the meeting
from Turner, with whom he "worked very close" and from his own mem-
bers, whose inquiries concerning Tropical, he testified , tnggered his activi-
separate units were specified for the Palm Beach
and Dade County employees.
4. The work stoppages
Sometime in July, the Grand Bahamas Millwork
and Building Supply Company purchased six trailer
loads of lumber from Dant and specified that they
were to be delivered, from the lumber yard on
specific dates, to Tropical as its designated carrier.
On July 22, the general manager of Dant called
Tropical and requested that two trailers be sent in
to pick up the lumber ordered for delivery on that
date. Tropical brought in the trailers on the 23rd
and they were loaded and dispatched without in-
cident.
At about noon on the following day, James Ag-
nini, the assistant terminal superintendent of Eller,
saw Respondent's president and business agent,
John Edward King, in the port area in front of El-
ler's office. As a result of a report he had heard
concerning the loading of Tropical's two trucks the
previous evening, he asked King whether it was true
that Respondent was requesting "ship pay" for
loading the two Tropical trucks the previous even-
ing. King said "yes" and, to Agnini's further
question concerning why Respondent wanted the
men paid at ship rates, King answered that the
trucks belonged to Tropical Shipping , a nonunion
company, and that the men would either be paid
for loading them at ship rates or they would not be
loaded. King also said: "We are not going to shake
hands with any trucking outfit that is affiliated with
Tropical."
Agnini testified that King then left and that as
soon as King was gone, he gave instructions to his
dispatcher that any truck that came to the yard to
be loaded was to be loaded without discrimination.
King's version of this conversation was that he
told Agnini that his members had asked him "to
check out the possibility of getting shipside pay for
loading Tropical trucks because under our present
contract we were entitled to it." Although he
claimed, while testifying, that the fact that Tropical
was nonunion had nothing to do with the stoppage
and cited the provisions of the contract calling for
ship pay for the loading of trailers to go directly
aboard ships, his only clear reference to his talk
with Agnini was an admission that the fact that
Tropical was nonunion "was brought out in the
course of the conversation." Most of King's state-
ties Accordingly , there is a sufficient connection between Respondent and
the statements at the meeting , as reflected in Birdsall 's testimony, to
establish that there was a labor dispute between Tropical and the Interna-
tional Longshoremen's Association dating back at least to July 2, and that
Respondent 's president knew about it no later than a few days after that
date
6 The collective-bargaining contract , discussed further hereafter, pro-
vides two scales of pay, although the work involved may be performed by
the same employees The one called " ship pay" is, generally, for loading or
unloading ships, and the other , called "warehouse pay" or "terminal pay,"
is for handling goods in the storage area The "ship" rates are higher than
the "terminal " rates.
ILA, LOCAL 1526
ments on the witness stand consisted of opinion and
argument concerning the employees' rights under
the contract to ship pay for loading Tropical's
trailers, but it does not appear from his testimony
or that of Agnini that he raised that question or
made any of those arguments in his conversation
with Agnini. On the testimony of Agnini and King,
as well as their demeanor while testifying, I find
that the conversation between them on July 24 was
accurately reflected in the testimony of Agnini and
that King demanded that Eller's employees be paid
for loading Tropical's trailers at ship rates because
Tropical was nonunion. King's statement about not
shaking hands with any trucking outfit "affiliated
with Tropical" applied, I find, to Birdsall.
On July 24, Dant's general manager called Tropi-
cal and requested that a single trailer be sent in on
Monday, the 28th, to pick up a load of lumber, part
of the same order. The trailer was brought in but it
was not loaded and there is evidence that Eller's
forklift operator and his helper refused to load the
Tropical trailer.' Dant's manager reported the
refusal to Tropical and gave it until Wednesday "to
straighten the matter out" or he would call another
carrier. On Wednesday, the 30th, he called Alco
Shipping, a carrier transporting goods to the
Bahamas via its own trucks, trailers, and ships from
the port of Miami, and Alco picked up the trailer
load of lumber without incident.
Despite the July 28 occurrence, Dant continued
to follow its customer 's shipping instructions and,
on August 1, again requested Tropical to send in a
single trailer for loading on the 4th. Tropical
delivered the trailer to the lumber yard for loading
but again it was not loaded and Dant shipped the
lumber via Alco on the 6th.
On August 4, when the Tropical trailer was
brought in to pick up the load of lumber and Eller's
employees refused to load it, E. K. Graham, Eller's
terminal superintendent, telephoned King and told
him that the loaders in the lumber yard had refused
to put the lumber on the Tropical truck unless they
received "ship time." King answered: "That's
right." Graham insisted that the contract called for
terminal pay on the operation but King said: "You
can go ahead and load the truck, but you are going
to pay ship time." Graham repeated his refusal to
pay ship time and King said: "Well, that's it," end-
ing the conversation. Graham testified that the only
mention of the contract in this brief exchange was
his own reference to it and King did not testify at
all concerning this telephone conversation. Ac-
cordingly, I find that it occurred as Graham
described it.
5. The contentions of the parties
The General Counsel contends that the evidence
9 Tropical's driver testified to conversations with Eller's checker and
forklift operator on July 28, in which they said they had "called Miami"
and that they would not load a Tropical truck in view of the testimony of
441
adequately establishes: (i) that Respondent was
responsible for the refusal by Eller's employees to
load Tropical's trucks and for the threats, directed
to Eller, that those trucks would not be loaded ex-
cept at a higher rate of pay; and (ii) that an object
of this conduct was to force or require Eller or
Dant to cease doing business with Tropical and to
compel Tropical to recognize an uncertified I.L.A.
local as the representative of its employees.
Respondent, although it contends that the
General Counsel has failed to establish that
Respondent was responsible for the refusal of El-
ler's employees to load Tropical trucks, also con-
tends that Respondent's involvement in the matter
was only a controversy between it and Eller over
the proper rate of pay for those services as
established by their collective-bargaining contract.
6. Discussion and conclusions
To establish the violations of Section 8(b)(4)(i)
and (ii)(B) alleged in the complaint, proof is
required in two specific areas: (a) that Respondent
caused the work stoppages and made the threats,
and (b) that an object of its conduct was to disrupt
or alter the business relationship among Eller,
Dant, and Tropical or, alternatively, to force Tropi-
cal to recognize an I.L.A. local as the representa-
tive of its employees, although neither Respondent
nor any other I.L.A. local has been certified as such
representative.
a. Threats and inducement
While there is no direct evidence in the record
that, prior to July 24 and thereafter, Respondent in-
duced or encouraged Eller's employees to refuse to
load Dant lumber on Tropical's trailers except at
ship pay, it has been found that King's flat state-
ment to Agnini on that date was that " . . . they de-
manded deep sea pay for loading the trucks, either
deep sea pay or they wouldn't load them." This
statement is, by its terms , a threat by Respondent
directed to Eller that, unless something special
were done, its employees would not perform their
customary duties. Followed, as it was, by the refusal
of the Dant employees, members of Respondent, to
load the trucks, these two factors constitute
adequate circumstantial evidence that the refusal
was induced or encouraged by Respondent and I so
find.10 An additional threat, as well as an admission
of Respondent's inducement of Eller's employees,
is contained, I find, in King 's brief conversation
with Eller's terminal superintendent, on August 4,
when the loaders again refused to place the Dant
lumber on the Tropical truck which was there for
that purpose.
The quantity of evidence on this point may not
Respondent 's president and business agent , however, no findings need be
made on the basis of this testimony
"ILA Locals 1224, et a! (Jess Edwards), 160 N LRB 732, 736-737
442 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
be overwhelming, but my estimate of it may be ex-
pressed in the words of Mercutio, assessing his fatal
wound:
'tis not so deep as a well,
nor so wide as a church door;
but `tis enough, `twill serve:
b. Objects
With respect to Respondent's object in the
threats and inducement, the General Counsel's ar-
gument is properly based upon the facts disclosed
by the record: that Respondent's action in prevent-
ing Eller from loading Dant's lumber on Tropical's
trailers was in aid of the effort by another I.L.A.
local to obtain recognition from Tropical or, at the
very least, to interfere with the business relation-
ship between Dant and Eller while Eller was doing
business with Tropical.
The contract argument advanced by Respondent
as a defense is, in my opinion insofar as this case is
concerned, an afterthought. This is not to say that
the contract might not be construed as justifying a
claim for ship pay for loading the Tropical trailers if
properly presented to an appropriate tribunal," but
on the evidence in this record I am convinced that
the contract was not even present in King's mind
when he made the threat and induced the work
stoppages in this case-much less that it was the
sole reason for his conduct, as is assumed
throughout Respondent's briefs.12 As the Court of
Appeals for the District of Columbia succinctly
phrased it in a recent case , dealing with an em-
ployer's motive in taking certain action against em-
ployees:
. the actions of the Company's agents are to
be judged in the context in which they took
place in the plant and are not to be controlled
by the characterization that counsel seeks to
engraft upon them in subsequent legal
proceedings. is
An additional reason for my conclusion that the
contract was not the basis for these activities is that
the claim is not nearly so clear as Respondent's
counsel 's argument would have it appear . In addi-
tion to the testimony of Agnini , Merrill, and
Graham that ship pay was required only where a
trailer was filled for loading on a ship to sail the
same day,"' King conceded that ship pay was not
demanded of Eller for the loading of the Alco
trailers, although Alco's operation in actually trans-
porting the Dant lumber involved was identical with
that which Tropical 's would have been : i.e., the
fully loaded trailers were hauled from Port Ever-
glades over the highway to a port less than 50 miles
away , where they were placed aboard its own
ships . 15 The difference , as King pointed out to the
discomfiture of Respondent 's counsel , was that in
the case of Alco, I.L.A. members in Miami would
handle the cargo at ship rates by driving the trailers
onto the ships there and securing them for the sea
voyage.16
To accept Respondent 's argument , moreover,
would require a finding that the I.L.A. effort to ob-
tain recognition from Tropical played absolutely no
part in motivating Respondent 's threats to Eller and
its inducement of the work stoppages by Eller's em-
ployees. In view of my finding that the conversation
between Agnini and King was accurately reflected
in Agnini 's testimony , and of King 's admission that
reference was made in it to the fact that Tropical
was nonunion , it is impossible to make a finding
that the union campaign against Tropical was
totally irrelevant . Accordingly , if Respondent's ac-
tions were motivated, even in part , by this cam-
paign , it must be concluded that at least "an ob-
ject" thereof was to force or require Dant or Eller
to cease doing business with Tropical and to force
Tropical to recognize an I.L .A. local," and the fact
that those actions might also have had some basis in
a contract dispute is insufficient , under the circum-
stances, to neutralize the presence of the unlawful
object."'
Respondent 's argument that its actions were not
to force or require Eller to cease doing business
with either Dant or Tropical , but only to force Eller
to pay additional wages for the work involved, must
also be rejected . The Board has long held that an
" Resolution of this controversy, according to Respondent 's counsel, is
to be submitted to arbitration under the contract This is the proper
procedure in the noted " Warrior and Gulf trilogy " ( United Steelworkers v
Warrior and Gulf Navigation Co, 363 U S 574 , United Steelworkers v
American Mfg Co, 363 U S 564, and United Steelworkers v Enterprise
Wheel & Car Corp , 363 U S 593) cited in Respondent's reply brief, the
Supreme Court endorsed this method of determining disputes in the ad-
ministration of collective-bargaining contracts and pointed out that the
policy of the national labor laws encouraged the submission of grievances
to arbitration rather than forcing them into a mold of litigation The argu-
ment which Respondent makes herein on the basis of these cases , however,
eludes me since it appears to be an attempt , in this unfair labor practice
case, to obtain a construction of the contract-precisely what the Supreme
Court recommended be not done in conventional litigation Moreover, the
rule of those cases cuts both ways and, as I see it , itself condemns Respon-
dent 's actions in this case It is to be noted that the Court wrote , at 578, that
"Here [ in labor disputes ] arbitration is the substitute for industrial strife"
but Respondent nevertheless, by its threats and work stoppages , chose "in-
dustrial strife "
"Compare Teamsters Local 716 ( Norman Contractors ), 169 NLRB 156,
where the Board found , as a matter of fact , that enforcement of the con-
tract rate of pay was the sole reason for the union's activities and that no
part of its object was to bring about a cessation of business between any of
those involved
" 1 U E ,Local 806 [ SNC Manufacturing Co ] v NLRB , 434 F 2d 473
(1970)
i' Tropical's ships sail according to a fixed schedule and there is no
evidence that the trailers carrying Dant lumber were intended or required
to be placed aboard ships sailing the same day that the trailers were loaded
at Port Everglades
16 Tropical would have hauled them 30 miles north to Riviera Beach, the
port of Palm Beach , whereas Alco hauled them 25 or 30 miles south to
Dodge Island , the port of Miami
i" Any implication that fully loaded trailers might be required to be un-
loaded and reloaded before being placed aboard the ships was nullified by
King's testimony that this never occurred except in rare situations where "a
checker gets a bad count "
" Bangor Building Trades Council, 123 NLRB 484, 489, enfd 278 F 2d
287 (CA 1, 1960)
i" Bangor Building Trades Council, supra, Local 1976, Carpenters v
NLRB , 357 U S 93,105-107
ILA, LOCAL 1526 443
effort to compel a change in the established method
of doing business between two persons constitutes
an effort to force them "to cease doing business"
with each other as that phrase is used in Section
8(b)(4)(B).19 I find, in short, that Respondent's
refusal to load Tropical's trucks except at ship pay
was not because that rate of pay was the proper one
under the contract but because the requirement for
a higher than normal rate of pay for the operation
would prevent Eller from loading Tropical's trucks.
7. The effect of the unfair labor practices upon
commerce
The activities of Respondent set forth in section
4, above, occurring in connection with the opera-
tions of Dant, Eller, and Tropical described in sec-
tions 1 and 2, above, have a close, intimate, and
substantial relationship to trade, traffic, and com-
merce among the several states and between the
states and a foreign country, and tend to lead to
labor disputes burdening and obstructing com-
merce and the free flow thereof.
8. The remedy
Having found that the Respondent has engaged
in unfair labor practices in violation of Section
8(b)(4)(i) and (ii)(B) of the Act, I shall recom-
mend that it be required to cease and desist
therefrom and to take certain affirmative action
designed to remedy the unfair labor practices and
otherwise effectuate the policies of the Act.
Upon the foregoing findings of fact and upon the
entire record herein, I state the following:
CONCLUSIONS OF LAW
1. International Longshoremen's Association,
Local 1526, AFL-CIO, Respondent herein, and In-
ternational Longshoremen's Association, Local
1680, AFL-CIO, are labor organizations within the
meaning of Sections 2(5) and 8(b)(4) of the Act.
2. Dant & Russell, Inc., Eller & Co., Inc., Tropi-
cal Shipping & Construction Co., Ltd., and Birdsall
Construction Company are employers or persons
engaged in interstate commerce within the meaning
of Sections 2(6) and 8(b)(4) of the Act.
3. By inducing and encouraging employees of
Eller & Co., Inc., to engage in strikes or refusals in
the course of their employment to perform services,
with an object of forcing said employers and per-
sons to cease doing business with each other and
with an object of forcing or requiring Tropical or
Birdsall to recognize an uncertified labor organiza-
tion as the representative of its employees, Respon-
dent has engaged, and is engaging, in unfair labor
practices affecting commerce within the meaning of
19 Bangor Building Trades Council, supra, Local 3, IBEW (N Y Telephone
Co ), 140 NLRB 729
S0 In the event no exceptions are filed as provided by Section 102 46 of
the Rules and Regulations of the National Labor Relations Board, the
Section 8(b)(4)(i)(B) and Section 2(6) and (7) of
the Act.
4. By threatening, coercing, and restraining Eller
& Co., Inc., and Dant & Russell, Inc., with an ob-
ject of requiring them to cease doing business with
each other and with Tropical or Birdsall, or with an
object of forcing or requiring Tropical or Birdsall to
recognize an uncertified labor organization as the
representative of its employees, Respondent has en-
gaged, and is engaging, in unfair labor practices af-
fecting commerce within the meaning of Section
8(b)(4)(ii)(B) and Section 2(6) and (7) of the Act.
RECOMMENDED ORDER20
Upon the foregoing findings of fact and conclu-
sions of law and pursuant to Section 10(c) of the
Act, it is recommended that International
Longshoremen 's Association , Local 1526,
AFL-CIO, its officers , agents, and representatives,
shall:
1. Cease and desist from:
(a) Engaging in, or inducing , or encouraging in-
dividuals employed by Eller & Co., Inc., to engage
in, strikes or refusals in the course of their employ-
ment to process , transport , or otherwise handle or
work on any goods , articles , materials , or commodi-
ties, or to perform any services , where an object
thereof is to force or require their employer, or
Dant & Russell , Inc., Tropical Shipping & Con-
struction Co., Ltd., or Birdsall Construction Com-
pany to cease doing business with each other, or to
force or require Tropical or Birdsall to recognize
any local of International Longshoremen 's Associa-
tion , AFL-CIO, as the representative of its em-
ployees, unless and until such labor organization
has been certified as the representative of such em-
ployees under the provisions of Section 9 of the
Act.
(b) Threatening , coercing, or restraining Eller &
Co., Inc ., Dant & Russell, Inc., or any other em-
ployer or person engaged in commerce in Port
Everglades , Florida , with an object of requiring
them, or any of them , to cease doing business with
each other or with any other employer or person
engaged in commerce , or with an object of forcing
or requiring Tropical or Birdsall to recognize any
local of International Longshoremen 's Association,
AFL-CIO, as the representative of its employees,
-unless and until such labor organization has been
certified as the representative of such employees
under the provisions of Section 9 of the Act.
2. Take the following affirmative action, which is
hereby found necessary to effectuate the policies of
the Act:
(a) Post in conspicuous places in each of the
Respondent's business offices , meeting halls, and
other places in Port Everglades and Fort Lau-
findings, conclusions , recommendations, and Recommended Order herein
shall, as provided in Section 102 48 of the Rules and Regulations, be
adopted by the Board and become its findings , conclusions , and order, and
all objections thereto shall be deemed waived for all purposes
444 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
derdale, Florida, where notices to members are
customarily posted, copies of the attached notice
marked "Appendix."" Copies of said notice, on
forms provided by the Regional Director for Region
12, after being duly signed by Respondent's
authorized representative, shall be posted by
Respondent immediately upon receipt thereof, and
be maintained by it for 60 consecutive days
thereafter. Reasonable steps shall be taken by said
Respondent to insure that said notices are not al-
tered, defaced, or covered by any other material.
(b) Mail signed copies of the notice to the Re-
gional Director for Region 12, for posting by Eller
& Co., Inc., and Dant & Russell, Inc., said em-
ployers or persons being willing, at all locations
where notices to their employees are customarily
posted.
(c) Notify said Regional Director, in writing,
within 20 days from receipt of this Decision and
Recommended Order, what steps have been taken
to comply herewith.22
_' In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading " Posted by
Order of the National Labor Relations Board " shall be changed to read "-
Posted Pursuant to a Judgment of the United States Court of Appeals En-
forcing an Order of the National Labor Relations Board "
" In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify said Regional Director, in
writing, within 10 days from the date of this Order , what steps Respondent
has taken to comply herewith "
APPENDIX
NOTICE TO MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a trial at which all parties were given an op-
portunity to present evidence and argument, the
National Labor Relations Board has decided that
we violated the law by committing certain unfair
labor practices and has ordered us to post this
notice. We intend to carry out the order of the
Board and abide by the following:
WE WILL NOT engage in a strike, or induce or
encourage the employees of Eller & Co., Inc ,
or any other stevedoring employer at Port
Everglades, Florida, to engage in a strike or a
refusal, in the course of their employment, to
load lumber or other goods on trucks or
trailers of Tropical Shipping and Construction
Co., Ltd., or Birdsall Construction Company,
where an object thereof is to force or require
Dant & Russell, Inc., Eller & Co., Inc., or any
other person or employer to cease doing busi-
ness with those companies or with each other
or where an object thereof is to force or
require Tropical Shipping and Construction
Co., Ltd., or Birdsall Construction Company to
recognize any local of International
Longshoremen 's Association, AFL-CIO, or
any other labor organization , as the representa-
tive of its employees , unless and until such
labor organization has been certified as the
representative of such employees under the
provisions of Section 9 of the Act.
WE WILL NOT threaten , coerce, or restrain
Eller & Co., Inc., Dant & Russell , Inc., or any
person engaged in commerce , where an object
thereof is to force or require Dant & Russell,
Inc., Eller & Co., Inc ., or any other person or
employer to cease doing business with those
companies or with each other or where an ob-
ject thereof is to force or require Tropical
Shipping and Construction Co., Ltd., or Bird-
sall Construction Company to recognize any
local of International Longshoremen 's Associa-
tion , AFL-CIO, or any other labor organiza-
tion , as the representative of its employees, un-
less and until such labor organization has been
certified as the representative of such em-
ployees under the provisions of Section 9 of
the Act.
WE HEREBY withdraw and cancel any orders
and directions heretofore issued by us incon-
sistent with the above commitments and we
hereby notify our members that we have no
objection to their full performance of their du-
ties in connection with the loading of Tropical
or Birdsall trailers or trucks.
INTERNATIONAL
LONGSHOREMEN'S
ASSOCIATION, LOCAL
1526, AFL-CIO
(Labor Organization)
Dated By
(Representative ) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecu-
tive days from the date of posting and must not be
altered, defaced, or covered by any other material.
Any questions concerning this notice or com-
pliance with its provisions may be directed to the
Board 's Office, Room 706, Federal Office Building,
500 Zack Street, Tampa, Florida 33602, Telephone
813-228-7227.