International Longshoremen's and Warehousemen's Union

National Labor Relations Board - Board Decisions

Aug 7, 1950

90 N.L.R.B. 1753 (N.L.R.B. 1950)

In the Matter Of INTERNATIONAL LONGSIIOREMEN'S AND WAREHOUSE-
-.MEN'S UNION, LOCAL No. 16, CIO,, AND GEORGE FORD, ORVILLE
WHEAT, JOE GUY AND VERNE ALBRIGHT, AS ITS AGENTS and JUNEAU
SPRUCE CORPORATION
In the Matter of INTERNATIONAL LONGSHOREMEN'S AND WAREHOUSE-
IIEN'S UNION, LOCAL No. 16, CIO and JUNEAU SPRUCE CORPORATION
Cases Nos. 19-CD-4 and 19-CD-,'5.-Decided August 7, 1950
DECISION AND ORDER
On September 30, 1949, Trial Examiner William R. Ringer issued
his Intermediate Report in the above-entitled proceeding, finding that
the Respondents had engaged in and were engaging in certain unfair
labor practices in violation of Section 8 (b) (4) (D) and 8 (b) (2)
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 copy of the Intermediate Report attached hereto.
Thereafter the Respondents filed exceptions to the Intermediate Re-
port.
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 the entire record in the case and
hereby adopts the findings, conclusions, and recommendations of the
Trial Examiner insofar as they are consistent with this Decision and
Order.
1. The Trial Examiner found, and we agree, that the requests to
the Company to sign the hiring hall contract, the protests to the Com-
' The Respondents allege in their exceptions that the controversy is moot. In support
of this allegation they have submitted an affidavit by their counsel stating that on August
28, 1949, substantially the entire plant of the Company at Juneau burned, the plant has
ceased to be an operating property, and the Company has no plans for rebuilding. There
is no allegation that the Company, a corporation, has dissolved. Nor have the Respond-
ents conceded that they have engaged in unfair labor practices. To the contrary, they
have consistently urged (and, indeed, do so in their exceptions to the Intermediate Report)
the validity of their activities. They would he free to resume the activities found herein
to be unfair labor practices were the Company to rebuild and continue its operations at
Juneau. We find, therefore, that the controversy between the adverse parties still exists,
that the case is not moot, and that the Board should issue an order in this case to bar
resumption of the activities found to be unfair labor practices. See The Howland Dry
Goods Company, at al., 85 NLRB 1037, and the cases cited therein.'
90 NLRB No. 223.
1753
1754 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pany because it did not sign the contract or assign the longshore work
to longshoremen dispatched by Local 16, and the threats to picket to
compel the Company to take that action were not violative of Section
8 (b) (4) (D) 2 of the Act. Section 8 (b) (4) (D) prohibits induce-
ment or encouragement of employees only. It does not prohibit
inducement and encouragement of an employer, and, as the requests,
protests, and threats to picket were addressed to the employer and
not to the employees, they were not violative of Section 8 (b) (4) (D) .3
2. On the other hand, the Trial Examiner found that the picketing
by the Respondent of the Company's premises at Juneau violates Sec-
tion 8 (b) (4) (D). With this we also agree. All the factors essen-
tial to a violation of this section of the amended Act are present : By
picketing the Company's premises, the Respondents induced and en-
couraged the Company's mill and millyard employees to engage in a
concerted refusal in the course of their employment to perform services
for the Company; the Respondents' object was to force the Company
to assign the bargeloading work to the members of Local 16, or work-
ers dispatched by Local 16, instead of to the mill and millyard em-
ployees; the Company was not failing to conform to a certification of
the Board determining the bargaining representative of the employees
performing the bargeloading work, for there has been no such certifica-
tion; anq, finally, the Respondents did not comply with the Board7s
decision and determination of dispute 4 in the previous proceeding
held under Section 10 (k) of the Act.5
3. The Trial Examiner found that the Respondents' requests to
the Company to sign the preferential hiring hall contract and the pro-
tests against the refusal to sign the contract and to assign the barge-
loading work to the longshoremen dispatched by Respondent Local 16
2 Section 8 ( b) (4) (D) makes it an unfair labor practice for a labor organization or its
agents:
. . . to engage in, or to induce or encourage employees of any employer to engage in,
a strike or a concerted refusal in the course of their employment to use , manufacture,
process, transport , or otherwise handle or work on any goods , articles , materials, or
commodities or to perform any services , where an object thereof is : ( D) forcing or
requiring any employer to assign particular work to employees in a particular labor
organization or in a particular trade , craft , or class rather than the employees in
another labor organization or in another trade , craft , or class ; unless such employer
is failing to conform to an order or certification of the Board determining the bargain-
ing representative for employees performing such work . . .
2 Conway's Express, 87 NLRB 972 , and the cases cited in footnote 25.
4 82 NLRB 650 , issued April 1, 1949.
5 The Respondents continued the picketing up to May 9 , 1949, 39 days after the issuance
of the Board ' s Section 10 (k) determination . On May 9 the Respondents discontinued the
picketing , shortly before the Regional Director 's anticipated application for an injunction
which was issued on May 14 , 1949. In their answer , dated May 7, 1949 , and again at the
hearing on July 11, 1949 , the Respondents admitted that "within the time fixed in said
Decision [ they] did not elect to accept or to comply with the Determination of Dispute."
Moreover , in their answer , at the hearing, and in their exceptions , the Respondents have
adhered to their 'contention that Respondent Local 16 has a contract right to the
bargeloading work.
INTERNAT'L LONGSHOREMEN'S AND WAREHOUSEMEN'S UNIoN1755
did not constitute violations of Section 8 (b) (2). He further found
that the threats to picket and the picketing did violate that Section of
the Act. For the reasons given in our opinion in the Henry Shone
case e decided today, we agree with the Trial Examiner with regard
to the requests and protests and also with his findings concerning the
threats and the picketing.
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that International Longshoremen's and
Warehousemen's Union, Local No. 16, CIO, and George Ford, Orville
Wheat, Joe Guy, and Verne Albright as its agents, shall :
1. Cease and desist, from :
(a) Inducing or encouraging employees of the Company to engage
in a concerted refusal in the course of their employment to load barges
of the Company, with an object of forcing the Company to assign its
work of loading its barges only to members of Local 16 or longshore-
men dispatched by it, unless and until Local 16 is certified by the Board
as the bargaining representative of the employees performing such
work;
(b) Picketing the operations of the Company with an object of forc-
ing the Company to' assign the work of loading its barges only to mem-
bers of Local 16 or longshoremen dispatched by it, unless and until
Local 16 is certified by the Board as the bargaining representative for
the employees performing such work ;
(c) Causing or attempting to cause the Company to discriminate
against its employees by threatening to picket and by picketing the
operations of the Company in order to cause the Company to assign
the work of loading its barges only to members of Local 16 or long-
shoremen dispatched by it.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act, as amended :
(a) Post immediately in conspicuous places at all places where
notices to members engaged in longshore work in Alaskan waters are
customarily posted and maintain for a period of at least sixty (60) con-
secutive days, copies of the notices attached hereto and marked Ap-
pendix A.7 The notices shall be signed by the Union and the in-
dividual Respondents;
6 Denver Building and Construction Trades Council, et al: (Henry Shore ), 90 NLRB
1768.
4 In the event that this Order is enforced by decree of a United States Court of Appeals,
there shall be inserted - before the words : "A Decision and Order " the words : "A Decree of
the United States Court of Appeals Enforcing."
1756 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Notify the Regional Director for the Nineteenth Region (Seat-
tle, Washington) in writing within tell (10) days from the date of
this Order what steps the Respondents have taken to comply therewith.
AND IT IS FURTHER ORDERED that the amended complaint be, and it
hereby is, dismissed insofar as it alleges that the Respondents by
'tegii`esting the Company to become a party to the contract between
Local 16 and the Waterfront Employers Association and by protesting
to the Company, violated Section 8 (b) (2) and Section 8 (b) (4) (D)
of the Act, and insofar as it alleges that the Respondent by threatening
to picket the operations of the Company violated Section 8 (b)
(4) (D) of the Act.
APPENDIX A
NOTICE TO ALL OFFICERS, REPRESENTATIVES, AGENTS, AND M EMBERS OF
INTERNATIONAL LONGSHOREMEN'S AND WAREHOUSEMEN'S UNION,
LOCAL No. 16, CIO
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, we hereby notify you that:
WE WILL NOT,' by picketing the operations of Juneau Spruce
Corporation, induce or encourage its eiiiployees to engage in a
concerted refusal in the course of their employment to perform
assigned work, with an object of forcing the said Company to
assign the work of loading its barges to our members or long-
shoremen dispatched by us, rather than to mill and millyard work-
ers of the Company, unless the Company fails to conform to an
order of the Board certifying us as the representative of employees
performing such work.
AVE WILL NOT threaten to picket or picket the operations of the
Company in order to cause it to assign the work of loading its
barges only to members of Local 16 or longshoremen dispatched
by it.
INTERNATIONAL LONGSHOREMEN'S AND WARE-
HOUSEMEN'S UNION, LOCAL No. 16, CIO,
Labor Organization.
By ---------------------------------------------------
(Title of Officer)
Dated ----------------------------
GEORGE FORD.
ORVILLE WHEAT.
JOE Guy.
VERNE ALBRIGHT.
Dated ----------------------------
INTERNAT'L LONGSHOREMEN'S AND WAREHOUSEMEN'S UNION 1757
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
MLr•. Melton Boyd, for the General Counsel, National Labor Relations Board_
AD% William -11. Paul, Jr., of Juneau, Alaska, for International Longshoremen's
and Warehousemen's Union, Local No. 16, CIO, and George Ford, Orville Wheat,.
Joe Guy, and Verne Albright.
Mr•. N. C. Ban field, of Juneau, Alaska, for Juneau Spruce Corporation.
STATEMENT OF THE CASE
This proceeding arises under Sections 8 (b) (2), 8 (b) (4) (D), and 10 (k)'
of the Labor Management Relations Act of 1947; herein called the Act.
On August 3, 1948, Juneau Spruce Corporation, herein called the Company,.
filed with the Regional Director for the Nineteenth Region of the Board a charge
in Case No. 19-CD-4 alleging, among other things, that International Long-
shoremen's and Warehousemen's Union, Local No. 16, herein called Local 1.6,
and George Ford, Orville Wheat, Joe Guy, and Verne Albright, as its agents,
violated Sections S (b) (2) and 8 (b) (4) (D) of the Act.
On September 16, 1948, the Company filed a charge in Case No. 1.9-CD-5
alleging, among other things, a later violation of Sections 8 (b) (2) and 8 (b)
(4) (D) of the Act. On September 21, 1948, the cases were consolidated.
Thereafter a hearing was held before a hearing officer of the Board at which
International Woodworkers of America, Local No. M-271, herein called Wood-
workers, also affiliated with the Congress of Industrial Organizations, was per-
mitted to intervene. This hearing was held under Section 10 (k) of the Act
for the purpose of hearing and determining the dispute out of which the alleged
violation of Section 8 (b) (4) (D) had arisen.
On April 1, 1949, the Board issued its Decision and Determination of Dispute,
finding that the Company is engaged in commerce; that the alleged violation
of Section S (b) (4) (D) comes within the purview of such subsection; that
the Board is empowered to hear and determine the dispute; and that Local 1.6
is not lawfully entitled to force or require the Company to assign its longshore
work to members of that labor organization rather than to employees of the
Company who are members of the Woodworkers or members of any other organi-
zation.
On January 26, 1949, the General Counsel of the Board, by the Regional
Director of the Nineteenth Region, issued a complaint in Case No. 19-CD-4
against Local 16 alleging violation of Section 8 (b) (2) of the Act. On April 28,
1949, after the Decision and Determination of Dispute, the General Counsel,
by said Regional Director, issued an amended complaint in cases numbered
19-CD-4 and 19-CD-5 against Local 16 and the four named individuals as
agents, alleging violation of Sections 8 (b) (2) and 8 (b) (4) (D) of the Act.
The earlier complaint was then withdrawn.
With respect to unfair labor practices; the amended complaint after allega-
tions of ownership and operation by the Company of a lumber mill in Juneau,
Alaska, in interstate commerce, and the existence of Local 16 as a labor organi-
' The National Labor Relations Act as amended by Public Law 101, Chapter 120, 80th
Cong., 1st Sess.
1758 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
zation, alleges unfair labor practices by the Respondent Local 16 and its four
named agents, as having occurred and as occurring in substance as follows :
(1) Violating Section 8 (b) (4) (D) of the Act in that they induced and
encouraged employees of the Company to engage in a concerted refusal in the
course of their employment to load lumber on the Company's barges and en-
gaged in picketing the operations of the Company, with an object of forcing
the Company to assign the work of loading barges to members of Local 16 or
persons dispatched by it [longshoremen, as a trade, craft or class] rather than
to mill and millyard workers [members of the Woodworkers], Local 16 not
having been certified by the Board under Section 9. (c) or (e) of the Act;
(2) Violating Section 8 (b) (2) of the Act in that they attempted to cause
the Company to discriminate against its employees, by requesting the Company
to, become a party to an agreement between Local 16 and the Water Front Em-
ployers'. Association, which agreement required loading of barges by longshore-
men who were members of the Union, or were dispatched by it, by protesting
the assignment to loading barges of mill and millyard employees rather than
members of Local 16 or longshoremen dispatched by Local 16, and by threaten-
ing to picket and by picketing the operations of the Company in order to cause
the Company to load its barges only by longshoremen who were members of
Local 16 or were dispatched by it.
. The answer of Local 16 admits certain of the allegations of the amended
complaint, denies others and sets up what is called an affirmative defense, in
substance, that International Longshoremen's and Warehousemen's Union, herein
called ILWU, with which Local 16 is affiliated, was certified by the Board as
bargaining agent in an appropriate unit consisting of all employees engaged in
longshore work in "Pacific Coast Ports of the United States" ; that Local 16
since 1936 has been a party to continuing contracts with such employers' asso-
ciation providing that longshore work be performed by members of Local 16 or
persons given approval by it; that the Company by operation of law has been a
party to such contract at all times since it purchased the assets of its predecessor ;
that the Company violated such contract by assigning loading work to employees
who were not members of or approved by Local 16; that the acts of Local 16
in, requesting the Company to put in writing its contractual relationship with
Local 16, its protests to the Company, and the threats to picket and the picketing
were for the purpose of inducing the Company to comply with such contract and
abstain from violating it.
Pursuant to notice, a hearing was held in Juneau, Alaska, on July 11, 1949, be-
fore William R. Ringer, the undersigned Trial Examiner, duly designated to
conduct such hearing. Each party was represented by counsel and participated
in the hearing. Full opportunity to be heard,. to examine and cross-examine wit-
nesses, and to introduce evidence pertinent to the issues was afforded all parties.
Opportunity was afforded for oral argument and for filing briefs with the Trial
Examiner. Oral argument was made by counsel for the General Counsel and by
counsel for Local 16. No briefs have been received.
Upon the entire record in the case and from his observation of the witnesses,
the undersigned makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
In accordance with the allegations in the amended complaint, the admissions
in the answer , and the decision of the Board in its determination of the jurisdic-
INTERNAT" L LONGSHOREMEN 'S AND WAREHOUSEMEN ' S UNION1759
tional dispute, the undersigned finds that Juneau Spruce Corporation, an
Alaskan corporation with its principal place of business in Juneau, Alaska, is
engaged in the business of felling timber and manufacturing lumber products
valued annually at more than $1,000,000, which products are sold and shipped
by the Company from Juneau to customers in other places. in Alaska, in various
States of the United States, and in the Dominion of Canada. I find that the
Company is engaged in commerce within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED ; ITS AGENTS
In accordance with the admission in its answer, I find that International
Longshoremen's and Warehousemen's Union, Local No. 16, affiliated with the'
Congress of, Industrial Organizations, is a labor organization within the meaning
of Section 2 (5) of the Act, functioning in the territory of Alaska. In accordance
with a stipulation entered into by the parties at the hearing the undersigned
finds that George Ford, Orville Wheat, Joe Guy, and Verne Albright acted as the
agents of Local 16 in the activities of such Local, including picketing, until May
9, 1949.
III. THE UNFAIR LABOR PRACTICES
A. Chronology of events
On April 30, 1947, the Company purchased from Juneau Lumber Mills, Inc., a
sawmill and planing mill at Juneau, Alaska, logging equipment at Edna Bay,
Alaska, retail yards at Juneau, Anchorage, and Fairbanks, Alaska, together with
all equipment used in the operations of said properties. This purchase was effec-
tive at midnight of April 30, 1947. The Company did not purchase the corporate
stock of the seller nor any of its accounts receivable or contracts, and did not
assume any of its liabilities. The contract of sale expressly excluded from the
sale any collective bargaining or labor agreements between the seller and its
employees. A few days before the sale, notices were posted advising employees
that Juneau Lumber Mills, Inc., was to cease operations at the close of business on
April 30, and that persons desiring employment should apply the following day.
All mill employees of the seller applied and were hired. The Company began its
operations on May 2, 1947, with the same employee complement.
When the Company made such purchase of physical assets of the seller, almost
all the lumber it produced was being taken by the U. S. Army Engineers and
from May to September 1947, it continued to sell to the same buyer. Anticipating
the completion of its contract with the U. S. Army Engineers and the necessity of
selling its products elsewhere, the Company acquired a seagoing barge to trans-
port lumber to points in Canada and the United States. In October 1947, it
began using its mill and millyard workers to move the lumber to the edge of the
dock at Juneau and to load it on the barge by use of a dock crane. Part of such
lumber had been in storage areas and part was taken directly from the mill to
the barge. The first bargeload of lumber was shipped in October and another in
February 1948, and a third in April 1948. The loading of these barges was done
by the regular employees of the Company, who were represented by the Wood-
workers.
At the time of the sale, the seller had a collective bargaining agreement at the
mill and retail yard at Juneau with the Woodworkers, the recognized bargaining
agent of the employees at the mill and retail yard. This contract was not assumed
by the Company and no new contract was immediately entered into. In July 1947,
negotiations began between the Company and the Woodworkers, continued
through October 1947, resulting in an agreement signed November 3, 1%47.
1760 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
At the time of the sale, there was in existence an agreement between the Inter-
national Longshoremen's and Warehousemen's Union and the Juneau Waterfront
Employers Association providing that employers should assign all longshore work
to members of the ILWU or to persons dispatched by it. Shortly after the Com-
pany began operations in May 1947, the ILWU requested the Company as one
of the waterfront employers to sign an agreement with the ILWU indicating
that it was a party to the agreement between the ILWU and the Association.
This request remained in abeyance and in October 1947, when the ILWU learned
that the barge was being loaded by the Company's mill workers, members of
the Woodworkers, the ILWU notified the Company-that such work should be
assigned to members of Local 16 or persons dispatched by it, as being longshore
work, contending that the Company was the successor of Juneau Lumber Mills,
Inc., a party signatory to the agreement, and was bound as a matter of law by
the latter's contractual obligations therein. The Company refused. Local 16
had no members among the Company's mill employees at the time of this request
and refusal nor at any time thereafter.
The mill was closed from December 1947, through most of March 1948, on
account of the winter shutdown.
In April 1948, as mentioned above, Company employees, members of the Wood-
workers, loaded the Company barge as they had done the previous October and
February. Representatives of Local 16 again attempted to persuade the Com-
pany to assign bargeloading to its members or persons dispatched by it rather
than to the Company's mill or millyard employees. Upon the Company's re-
fusal, Local 16 on April 10, 1948, established a picket line at the Company's op-
erations in Juneau. The mill workers refused to cross this picket line and all
mill,operations ceased. On July 2, 1948, the Woodworkers agreed with the Com-
pany that it should definitely assert jurisdiction to load company barges under
the circumstances and on July 3, 1948, the mill employees began returning to
work. By July 19, they had returned and have been at work ever since. The
picket line of Local 16 continued.
On August 27, 1948, the Company, by mill or millyard employees, loaded its
ocean-going barge and moved such load to Prince Rupert, British Columbia,
arriving August 30. A company representative there sought to have the lumber
unloaded by a stevedoring firm. This firm advised that its employees, members of
another local of the ILWVU, would not handle the cargo because it had come
"from behind an ILWU picket line." The loaded barge was then moved to a
port in the United States.
Local 16 continued its picket line until May 9, 1949. At that time, the picket
line was removed. It is clear from the entire record that Local 16 has not
abandoned its contention that it is entitled to maintain such picket line and
that removal of the picket line has not rendered moot the issue of unfair labor
practices in this case.
The Decision and Determination of Dispute under the provisions of Section
10 (k) of the Act was issued on April 1, 1949, after a hearing, of the charges
filed. In it, the Board determined as follows :
International Longshoremen's and Warehousemen's Union, Local 16,
C. I. 0., is not and has not been lawfully entitled to force or require Juneau
Spruce Corporation, Juneau, Alaska, to assign its longshore work to the
members of that labor organization rather than to the employees of the
corporation who have been and are members of the International Wood-
workers of America, Local No. M-271, C. I. 0., or members of any other
labor organization.
0
i
INTERNAT'L LONGSHOREMEN'S AND WAREHOUSEMEN'S UNION1761
It is conceded that Local 16 has not at any time since such decision and determi-
nation of jurisdiction complied with the decision of the Board and there has been
no voluntary adjustment of the dispute.
B. Inducing and encouraging concerted refusal to perform services in order to
force employer to assign particular work
The amended complaint alleges that Local 16, not having been certified by the
Board under Section 9 (c) or 9 (e) of the Act, induced and encouraged em-
ployees of the Company to engage in a concerted refusal in the course of their
employment to load lumber on the Company's barges, by four types of acts :
(1) Requests to the Company to sign the "hiring-hall" contract; (2) protests to
the Company that it did not sign the contract and was not assigning barge load-
ing to longshoremen but to its mill and millyard workers; (3) threats to picket
unless the Company followed "hiring-hall" procedures; and (4) picketing to
compel the Company to sign a "hiring-hall" contract or follow such procedures ;
all with an object of forcing the Company to assign barge loading to members,
of Local 16 or longshoremen dispatched by it. The Respondents contend that
the Company is the successor of Juneau Lumber Mills, Inc., as such was under
contract with Local 16, and that the acts of Local 16 and its agents were solely
for the object of inducing compliance of the Company with its obligations under
such contract. The facts are not substantially in dispute.
The evidence taken at the 10 (k) hearing and the Board's Decision and Deter-
mination of Dispute were introduced in evidence at the hearing. The undersigned
is bound by the Board's Decision and Determination of the Jurisdictional Dis-
pute and accepts its findings of fact therein contained. In accordance with such
decision and determination, the undersigned finds that International Long-
shoremen's and Warehousemen's Union, Local No. 16, CIO, is not and has not
been lawfully entitled to force or require Juneau Spruce Corporation, Juneau,
Alaska, to assign its longshore work to the members of that organization rather
than to the employees of the corporation who have been and are members of the
International Woodworkers of America, Local No. M-271, C. I. O. On the record
before me, there is no question that Local 16 and its agents requested the Com-
pany to become an express party to the collective bargaining agreement between
Local 16 and the Waterfront Employers Association, protested to the Company
against its assignment and employment of mill and millyard employees in load-
ing its barges and against the Company's failure to employ members of Local
16 or persons dispatched by it, to perform such work, threatened the Company
that it would picket the plant unless the Company executed the contract or fol-
lowed the practice of assigning the work of loading its barges only by members
of Local 16 or longshoremen dispatched by it, and picketed the plant for the
same object. It is clear also that in each instance the purpose was to cause the
Company to use exclusively members of Local 16 or longshoremen dispatched
by it in loading lumber on company barges.
Did the Respondents thereby induce and encourage employees of the Company
to engage in a concerted refusal in the course of their employment to perform
services? The employees of the Company concertedly abstained from crossing the
picket line after the picketing began, but no other refusal or expected refusal to
perform services is shown by the record. It is apparent that the requests, the
protests, and the threats to picket had no purpose to affect the continued services
of the mill and millyard employees, and certainly not to cause them to refuse to
903847-51-vol. 90--112
1762 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
perform services for the Company. On the contrary, the purpose by such acts was
to cause the Company to. act in such manner as to avoid any occasion for the
mill and millyard employees to withhold their services. I find that the Respond-
ents, by the alleged requests, protests, and threats to picket did not induce or
encourage employees of the Company to engage in a concerted refusal in the
course of their employment to-perform assigned work.
The effect, however, of the admitted picketing was different. For several
months, the mill and millyard employees, members of the Woodworkers, cons
certedly respected the picket line and did not cross it, thereby refusing to perform
their usual assigned work.
Section 8 (b) (4) (D) contains a proviso as follows:
. . . unless such employer is failing to conform to an order or certification
of the Board determining the bargaining representative for employees per-,
forming such work.
Accordingly, if it should be found that the Board has certified Local 16 or the
ILWU as the bargaining representative for employees doing bargeloading and
that the employer has failed to conform to that certification, the object admittedly
sought by Local 16 would fall within the language of the proviso. This question
was raised by Local 16 in the 10 (k) proceeding in this case and was decided
adversely by the Board? It is entirely clear that in no other proceeding has the
ILWU or Local 16 been certified or found by the Board to be the bargaining
representative of any of the Company's employees at the Juneau mill or yard. It
is likewise entirely clear that Local 16 has not been certified by the Board under
Section 9 (e) of the Act as authorized to negotiate a collective bargaining agree-
ment providing for membership in Local 16 as a condition of employment.
It is conceded that Local 16 has not within the time fixed by the Board in its
Decision and Determination of Jurisdictional Dispute or at any time complied
with the determination of jurisdiction by the Board. Local 16 has continued to
insist that it is entitled to the assignment of the loading of company barges to
its members and in no way has abandoned its contentions in that respect.
I find that. Local 16 and its agents,'George Ford, Orville Wheat, Joe Guy,
and Verne Albright, by requesting the Company to execute an agreement that
the Company should assign bargeloading on its own barges only to members
of Local 16 or longshoremen dispatched by it, by protesting to the Company
against its assignment and employment of mill and millyard employees in load-
ing its barges and against its failure to employ members of Local 16 or long-
shoremen dispatched by it to perform such work, by threatening to picket the
operations of the Company unless the Company should enter into such an agree-
ment or make such assignments of bargeloading only to members of Local 16
or longshoremen dispatched by it, with an object of forcing the Company so to
assign its work of loading its barges only to, members of Local 16 or longshore-
men dispatched by it have not induced or encouraged the employees of the
Company to engage in a concerted refusal in the course of their employment to
perform' services for the Company.
I further find that Local 16 and its agents, George Ford, Orville Wheat, Joe
Guy, and Verne Albright, by picketing the operations of the Company, with an
object of forcing and requiring the Company to assign particular work to em-
2 The Board expressly held Ship Owners' Association of the Pacific Coast, Waterfront
Employers ' Association of the Pacific Coast, The Waterfront Employers ' Association of
Seattle, The Waterfront Employers ' Association of Portland , The Waterfront Employers'
Association of San Francisco, The Waterfront Employers' Association of California, 7
NLRB 1002 ( 1938 ), did not apply to the parties in the present case.
INTERNAT'L LONGSHOREMEN'S AND WAREHOUSEMEN'S UNION1763
ployees in a particular labor organization and in a particular trade, craft, or
class rather than to employees in another labor organization or in another trade,
craft, or class, have induced and encouraged employees of the Company to engage
in a concerted refusal in the course of their employment to perform services for
the Company.
. C. Attempting to cause employer to discriminate
The amended complaint alleges violation of Section 8 (b) (2) of the Act by
attempting to cause the Company to discriminate against its employees in request-
ing the Company to become an express party to the agreement between Local 16
and the Waterfront Employers' Association (which agreement required loading
of barges only by members of Local 16 or longshoremen dispatched by it, in
protesting the assignment of mill and millyard employees rather than members
of Local 16 to the loading of company barges, and in threatening to picket and
picketing the operations of the Company in order to cause the Company to load
its barges only by members of Local 16 or, longshoremen dispatched by it. This
alleged violation is not directly connected with the 10 (k) jurisdictional dis-
pute and depends upon the language of Section 8 (b) (2) of the Act which pro-
vides that it shall be an unfair labor practice, among other things, for a union
or its agents to ". . . attempt to cause an employer to discriminate against an
employee in violation" of Section 8 (a) (3). The theory of the amended com-
plaint is that a contractual provision or practice making membership in Local
16 a requirement for assignment of the work of loading barges can be valid only
upon compliance with Section 9 (c) and Section 9 (e) of the Act; that such
assignment by the Company would discriminate against regular employees of the
Company whom the Company would normally assign to such loading work ; that
a request for such contractual provision or such practice, protests against the
absence of such requirement, and threats to picket or picketing with such re-
quirement as an object would amount in each instance to an attempt to cause the
Company to discriminate against its employees.
The vital word in the subsection as applicable to this issue is "attempt."
Otherwise the facts as heretofore found fall squarely within its language. A
contractual provision or practice making membership in Local 16 a requirement
for. assignment of the work of loading barges is invalid except upon compliance
with Section 9 (c) and 9 (e) of the Act' The legislative history of the sub-
section indicates that the original language in the Senate bill was "to persuade
or attempt to persuade" and that the change to read "to cause or attempt to
cause" was made in conference to guarantee all parties freedom of expression.
It is my opinion that the evidence is insufficient on which to base a finding of
attempt to cause the Company to discriminate, with respect to the requests to
enter into a contract and the protests to. the Company as to its practice in
assigning bargeloading to its regular employees, particularly since, as. the Board
found, there existed during this period a jurisdictional dispute between the
parties. The real question of this case is to be determined under the issues of
Section 8 (b) (4) (D) and -1 see no advantage in making a finding of violation
of Section 8 (b) (2) on the evidence available with respect to the above-men-
tioned requests and protests. The undersigned finds that Local 16 neither by
requesting the Company to sign expressly as a party to the contract between
Local 16 and the waterfront employers nor by protesting the assignment by the
Company of the work of loading barges to its regular employees rather than to
a7'lational Maritime'Union (1948), 78 NLRB 971.
1764' DECISIONS OF NATIONAL LABOR RELATIONS BOARD
members of Local 16, has attempted to cause the Company to discriminate against
its employees.
The situation is different with respect to the threats to picket and the picket-
ing. The facts are entirely clear that picketing would be expected to cause
and actually did cause employees of the Company to refrain from crossing the
picket line and, accordingly, not continue to perform their assigned work, with
the definite purpose of forcing the Company to abandon its practice of assigning
such work to its regular mill employees and to assign it, to members of Local 16
or longshoremen dispatched by it. Threats to picket and picketing are clearly
an attempt of serious character going well beyond. persuasion and free expression
of opinion. If they are with an object of forcing the employer to discriminate,
they amount to an attempt to cause discrimination. The undersigned finds that
Local 16 and its agents by threatening to picket and by picketing in order to
cause the Company to become an express party to the collective bargaining
agreement between Local 16 and the waterfront employers requiring loading of
Company barges only by members of Local 16 or longshoremen dispatched by it
and to cause the Company to assign such bargeloading only to members of Local
16 or longshoremen dispatched by it rather than to its own employees, attempted
to cause the, Company to discriminate against employees in violation of Section
b (a) (3) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
The activities of the Respondents as set forth in Section III above occurring
in connection with the operations of the Company described in Section I above,
have a close, intimate, and substantial relation to trade, traffic, and commerce,
within the Territory of Alaska, and between the Territory of Alaska and the
Dominion of Canada, and between the Territory of Alaska and the various
(States of the United States, and tend to lead and have led to labor disputes
burdening and obstructing commerce and the free flow of commerce.
V. THE REMEDY
Since by picketing the Respondents have induced and encouraged employees
of the Company to engage in a concerted refusal to load lumber on the Com-
pany's barges in violation of Section 8 (b) (4) (D) of the Act, it will be
recommended that they cease and desist therefrom and take certain affirmative
action to remedy such violation. Since the. Respondents, in violation of Section
5 (b) (2), have attempted to cause the Company to discriminate against its
employees by threatening to picket and by picketing the operations of the
Company to force the Company, to load its barges only by members of Local 16,
or longshoremen dispatched by it, it will be recommended that the Respondents
cease and desist in that respect.
.On the basis of the above findings of fact in the entire record in the case, the
undersigned makes the following:
CONCLUSIONS OF LAw
1. International Longshoremen's and Warehousemen's Union, Local No. 16,
CIO, is a labor organization within the meaning of Section 2 (5) of the Act.
George Ford, Orville Wheat, Joe Guy, and Verne Albright, are and at all times
material herein have been agents of the Respondent International Longshore-
men's and Warehousemen's Union, Local No. 16, CIO, within the meaning of the
Act.
INTERNAT'L LONGSHOREMEN'S AND WAREHOUSEMEN'S UNION 1765
2. By picketing the operations of the Company , thereby inducing and en-
couraging employees of the Company to engage in a concerted refusal in the
course of their employment to perform assigned work, with an object of forcing
the Company to assign the- work . of loading barges to members of Local 16 or
longshoremen dispatched by it, rather than to mill and millyard workers of the
Company, without certification by the Board determining the bargaining repre-
sentative .- of employees performing such work , the Respondents , and each of
them, have engaged in unfair labor practices within the meaning of Section 8
( b) (4) (D) of the Act.
3, By threatening to picket and by picketing the operations of the Company
in order to cause the Company to become an express party , to the collective
bargaining agreement between Local 16 and the Waterfront Employers Asso-
ciation of Juneau, requiring loading of company barges only by members
of Local 16 or longshoremen dispatched by it, and in order to cause the Company
to assign such bargeloading only to members of Local 16 or longshoremen dis-
patched by it, the Respondents , and each of them, have engaged in unfair
labor practices within the meaning of Section 8 ( b) (2) of the Act.
4, The aforesaid unfair labor practices are unfair labor practices within the
meaning of Section 2 ( 6) and ( 7) of the Act.
RECOMM ENDATIONS
Upon the basis of the above findings of fact ands conclusions of law, and upon
the entire record in the case, the undersigned recommends that International
Longshoremen's and Warehousemen's Union, Local No. 1.6, CIO, and George Ford,
Orville Wheat, Joe Guy, and,Verne Albright as its agents, shall:
1. Cease and desist from :
(a) Inducing or encouraging employees of the Company to engage in a con-
certed refusal in the course of their employment to load barges of the Company,
with an object of forcing the Company to assign its work of loading its barges
only to members of Local 16 or longshoremen dispatched by it, unless and until
Local 1.6 is certified by the Board as the bargaining representative of the
employees performing such Work;
(1r) Picketing the operations of the Company with an object of forcing the
Company to assign the work of loading its barges only to members of Local 16
or longshoremen dispatched by it, unless and until Local 16 is,certified by the
Board as the bargaining representative for the employees performing such work ;
(c) Attempting to cause the Company to discriminate against its employees
by threatening to picket and picketing the operations of the Company in order
to cause the Company to assign the work of loading its barges only to members
of Local 16 or longshoremen dispatched by it.
2. Take the following affirmative action, which the undersigned finds will
effectuate the purposes of the Act :
(a) Post immediately in conspicuous places at all places where notices to
members engaged in longshore work in Alaskan waters are customarily posted
and maintain for a period of at least sixty (60) consecutive days, copies of the
notices attached hereto and marked Appendix A. The notices shall be signed by
the Union and the individual Respondents ;
(b) Notify the Regional Director for the Nineteenth Region (Seattle, Wash-
ington) in writing within ten (10)_, days from the receipt of this Intermediate
Report and Recommended Order what steps the Respondents have taken to
comply therewith.
1766 DECISIONS OF NATIONAL LABOR RELATIONS BOARD `
It is further recommended that, unless the Respondents shall, within ten (10)
days from the receipt of this Intermediate Report and Recommended Order notify
said Regional Director in writing that they will comply with the foregoing recom-
mendations, the National Labor Relations Board issue an order requiring them
to take the action aforesaid.
It is further recommended that the amended complaint be dismissed insofar
as it alleges that the Respondents by requesting the Company to become an
express party to the contract between Local 16 and the Waterfront Employers
Association, and by protesting to the Company, violated Section 8 (b) (2) and
Section 8 (b) (4) (D) of the Act, and insofar as it alleges that the Respondents
by threatening to picket the operations of the Company violated Section 8 (b)
(4). (D) of the Act.
As provided in Section 203.46 of the Rules and Regulations of the National
Labor Relations Board, any party may, within twenty (20) days fromthe date
of service of the order transferring the case to the Board, pursuant to Section
203.45 of said Rules and Regulations, file with the Board, Washington 25, D. C.,
an original and six copies of a statement in writing setting forth such exceptions
to the intermediate Report and Recommended Order or to any other part of the
record or proceeding (including rulings upon all motions or objections) as he
relies upon together with the original and six copies of a brief in support thereof ;
any party may, within the same period; file an original and six copies of a brief
in support of the Intermediate Report and Recommended Order. Immediately
upon the filing of such statement of exceptions and/or briefs, the party filing
the same shall serve a copy thereof upon each of the other parties. Statement
of exceptions and briefs shall designate by precise citation the portions of the
record relied upon and shall be legibly printed or'mimeographed, and if mimeo-
graphed shall be double spaced. Proof of service on the other parties of all
papers filed with the Board shall be promptly made as required by Section 203.85.
As further provided in said, Section 203.46 should any party desire permission to
argue orally before the Board, request therefor must be made in writing to the
Board within ten (10) days from the date of service of the order transferring
the case to the Board.
In the event no Statement of Exceptions is filed as provided by the aforesaid
Rules and Regulations, the findings, conclusions, recommendations, and recom-
mended order herein contained shall, as provided in Section 203.48, of said 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.
Dated at Washington, D. C., this 30th day of September 1949.
WILLIAM R. RINGER,
Trial Examiner.
APPENDIX A
NOTICE TO ALL OFFICERS, REPRESENTATIVES, AGENTS, AND MEMBERS OF INTERNA-
TIONAL LONGSHOREMEN'S AND WAREHOUSEMEN'S UNION, LOCAL No. 16, CIO
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Relations
Act, as amended, we hereby notify you that :
WE WILL NOT by picketing the operations Of JUNEAU SPRUCE CORPORATION
induce or encourage its employees to engage in a concerted refusal in the
course of their employment to perform assigned work, with an object of
forcing the said company to assign the work of loading its barges to our
IlN'ER'NAT'L LONGSHOREMEN'S AND, WAREHOUSEMEN'S UNI ON 1767
members or longshoremen dispatched by us, rather than to mill and mill-
yard workers of the company, unless the company fails to conform to an
order of the Board certifying us as the representative of employees per-
forming such work.
WE WILL NOT threaten to picket or picket the operations of the company
in order to cause it to assign the work of loading its barges only to members
of Local 16 or longshoremen dispatched by it.
INTERNATIONAL LONGSHOREMEN'S AND WARE-
HOUSEMEN'S UNION, LocAL No. 16, CIO,
Labor Organization.
By ----------------------------------------------------
(Title of Officer)
Dated ------------------------
GEORGE FORD.
ORVILLE WHEAT.
JOE Guy.
VERNE ALBRIGHT.
Dated -----------------------
This notice must remain posted for sixty (60) days from the date hereof, and
must not be altered, defaced, or covered by any other material.