International Longshoremen's Association, ETC.

National Labor Relations Board - Board Decisions

Jul 3, 1962

137 N.L.R.B. 1178 (N.L.R.B. 1962)

1178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
International Longshoremen 's Association,' AFL-CIO ; Inter-
national Longshoremen 's Association , Local No. 1694, AFL-
CIO; and James T. Moock; and Clifford Carter and The Board
of Harbor Commissioners, Wilmington , Delaware. Case No.
4-CC-144. July 3, 1962
DECISION AND ORDER
On January 13, 1961, Trial Examiner Louis Plost issued his Inter-
mediate 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 Intermediate Re-
port attached hereto. Thereafter, the Respondents and the General
Counsel filed exceptions to the Intermediate Report, and briefs in
support thereof.
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, briefs, and the entire record in this
case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner with the following additions, exceptions,
and modifications?
The pertinent facts are set forth in the Intermediate Report. In
brief, The Board of Harbor Commissioners, herein referred to as
BHC, a political subdivision of the city of Wilmington, Delaware, op-
erates, pursuant to a Delaware statute, the marine terminal in Wil-
mington. BHC rents space and provides facilities for the dockage
and wharfage of vessels and the storage and handling of cargo at the
terminal. At all relevant times herein, BHC had a collective-
bargaining contract with Teamsters, Local 107, recognizing Teamsters
as the exclusive representative of its employees doing labor work.
Transit Freeze Corporation, herein referred to as Transit, is engaged
in the handling of frozen commodities, including meat, for storage and
transportation. On September 21, 1959, BHC and Transit entered
into a written lease under which Transit leased from BHC certain
land at the terminal on which Transit agreed to erect and operate a
refrigerating facility where frozen meat would be stored. BHC and
Transit also entered into an oral agreement under which BHC was
Herein referred to as ILA
z We do not adopt the characterization by the Trial Examiner of longshoremen mem-
bers of the Respondents, as "sea lawyers." We also do not adopt the finding in the
Intermediate Report that Clifford Carter is an officer of Respondent Local 1694 The
record establishes that Clifford Carter is vice president of the Atlantic Coast District of
the International Longshoremen's Association These changes do not affect our ultimate
conclusions.
137 NLRB No. 117.
INTERNATIONAL LONGSHOREMEN'S ASSOCIATION, ETC. 1179
to supply on a cost-plus basis all the labor needed by Transit to handle
products coming into and leaving its facility at the terminal.
Murphy-Cooke and Co., herein referred to as Murphy, is a stevedor-
ing company which employs longshoremen who load and unload ships
docking at the terminal. Norton-Lilly and Company, Inc., herein
called Norton, is a shipping agent which arranges, on behalf of its
principals, for the docking, wharfing, loading, and unloading of
ships at the terminal. Both Murphy and Norton are members of an
association of employers, Philadelphia Marine Trade Association,
herein referred to as PMTA, which has a collective-bargaining con-
tract with Respondent ILA, Local 1694, covering certain work at a
number of ports, including the loading and unloading of cargoes at
the terminal. This contract provides :
The Employer-members of the Association agree that they will
not directly perform work done on a pier or terminal or contract
out such work which historically and regularly has been and
currently is performed by employees covered by this agreement
or employees covered by ILA craft agreements unless such work
on such pier or terminal is performed by employees covered by
ILA agreements.
BHC is not a party to this contract.
The first frozen meat cargo destined for Transit's freezing unit at
the marine terminal was scheduled to arrive on the SS Pipiriki in
August 1960. In connection with the arrival of the Pipiriki, Norton,
as shipping agent, was engaged by the owner of the Pipiriki to ar-
range for the docking and unloading of the ship. Norton then ar-
ranged with BHC for the docking of the Pipiriki at the terminal and
Norton engaged Murphy, with whom it has a contract, to do the long-
shore work of unloading the Pipiriki. The specific dispute herein re-
lated to the question whether employees of Murphy, members of ILA,
or employees of BHC, members of Teamsters, would do the work of
moving the frozen meats from shipside of the Pipiriki (where, con-
cededly, it was to be carried by ILA members) to the door of Transit's
freezer, including the interim coopering.3 When BHC indicated
8 The general practice at the marine terminal is for longshoremen to unload cargo from
ships docked at the terminal and to deposit the cargo at a "final point of rest ," where it
is picked up by the consignee . This "final point of rest" is sometimes at shipside and
sometimes elsewhere at the terminal . As noted, longshore work at the terminal is done
by stevedoring companies which employ ILA members However, Transit, the consignee
of the Pipirtiki cargo, had arranged that BHC would provide labor for it A dispute
arose as to whether the "final point of rest" of the Pipiriki cargo was at the Transit
freezer door , in which case the moving of the cargo across the dock would be a con-
tinuation of the unloading of the ship and thus employees of Murphy, the stevedoring
company, would do the disputed work, or whether the "final point of rest" was at sbip-
side, in which case employees of the consignee , or, in this case , employees of its agent,
BHC, would do the disputed work. Coopering consists of breaking open the packages of
meat so that they can be inspected by a United States inspector , and repacking the meat
following the inspection . This operation takes place on the dock.
1180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that this work would be done by its own employees, members of the
Teamsters, the Respondents engaged in a course of conduct, described
in detail in the Intermediate Report, to obtain the disputed work for
themselves. More particularly, the Respondents in substance stated
to representatives of BHC, Transit, Norton, and Murphy that there
would be "trouble" on the dock and that the Pipiriki would not be
unloaded if the ILA was not assigned the disputed work. However,
the Respondents' efforts were unsuccessful in obtaining the work
and, on August 22, 1960, when the Pipiriki docked, employees of
Murphy, members of the ILA, refused to unload the Pipiriki under
circumstances discussed hereinafter. This refusal to work continued
until a United States district court temporarily restrained the Re-
spondents from engaging in the unfair labor practices alleged herein.
The complaint alleges that, by inducing individuals employed by
Murphy and Norton to engage in a refusal to perform services for
Murphy, and by threatening, restraining, and coercing Murphy,
Norton, and BHC, with an object of compelling Murphy and Norton
to cease doing business with other persons, and of compelling other
persons to cease doing business with BHC, and with a further object
of requiring Murphy and Norton to enter into an agreement pro-
scribed by Section 8(e), the Respondents violated Section 8(b) (4) (i)
and (ii) (A) and (B) of the Act.
The Trial Examiner found violations of Section 8(b) (4) (i) and
(ii) (A) and (B), as alleged in the complaint. He found, in substance,
that since BHC controlled the assignment of the disputed work, it
was the primary employer and that the conduct of the Respondents
directed at Murphy, Norton, and other persons was secondary activity.
Relying on an incident which occurred on August 22, 1960, discussed
hereinafter, the Trial Examiner further found that the Respondents
induced employees of Murphy 4 to engage in a strike within the mean-
ing of 8(b) (4) (i). The Trial Examiner also found that, by threat-
ening to strike, by striking, and by other conduct described in the
Intermediate Report, the Respondents threatened, restrained, and
coerced BHC, Norton, and Murphy within the meaning of Section
8(b) (4 (ii). Finally, the Trial Examiner found, in substance, that
an object of the Respondents' conduct was to force Murphy and Nor-
ton to cease doing business with other persons and to force such other
4 while, as noted, the complaint alleged also inducement of Norton's employees, the
Trial Examiner did not find, and the record does not establish, any such inducement of
Norton's employees. We do not adopt the Intermediate Report insofar as it suggests that
the Respondents' statements to Robert J. Hughes, Norton's Philadelphia manager, con-
stituted inducement of any individual employed by Norton to engage in a strike for pro-
scribed objects . Local Union No 505 , International Brotherhood of Teamsters , Chauf-
feurs , Warehousemen & Helpers of America, et at. (Carolina Lumber Company), 130
NLRB 1438
INTERNATIONAL LONGSHOREMEN'S ASSOCIATION, ETC. 1181
persons to cease doing business with BHC, within the meaning of
subsection (B) of Section 8(b) (4), and that a further object thereof
was to require Murphy and Norton to enter into an agreement pro-
scribed by Section 8(e), within the meaning of subsection (A) of
Section 8(b) (4).
1. We find, in agreement with the Trial Examiner, that BHC, which
controlled the assignment of the disputed work, was the primary em-
ployer and that the Respondents' conduct was therefore secondary.
Relying on the above-quoted clause in their contract with PMTA, the
Respondents contend that the disputed work was of a type "histori-
cally and regularly" performed by employees covered by ILA agree-
ments and hence such work belonged to Murphy's employees, members
of ILA, and that the Respondents, by their conduct, sought only to
compel Murphy to abide by its contract with the Respondents by
assignment of the disputed work to its own employees, and therefore
their conduct was lawful primary activity designed to protect such
work jurisdiction.
Like the Trial Examiner, we find no merit in this contention. The
Respondents' contention that they engaged solely in primary activity
is necessarily predicated on the premise that Murphy or Norton was
authorized to assign the disputed work to Murphy's employees. How-
ever, the Trial Examiner found, and the record supports this finding,
that BHC, and not Murphy or Norton, was authorized to decide which
contractor and hence which group of employees would do the work in
question .' As neither Murphy nor Norton had authority to decide
whether Murphy's employees or BHC's employees would do the dis-
puted work, it is clear that the Respondents' conduct could not have
been designed to compel Murphy or Norton to assign the disputed work
since it was not Murphy or Norton, but BHC, that had the work to
assign . The Respondents could have achieved their purpose to obtain
5 The Respondents also contend that, because the disputed work had customarily been
done by employees covered by ILA agreements, such work "was within the scope of the
collective bargaining agreement between ILA and Murphy Cooke and Norton Lilly and,
therefore, was the work of the latter to assign." We find no merit in this contention.
Assuming that employees covered by ILA contracts previously had performed the dis-
puted work, this would tend only to prove that ILA was entitled to the disputed work
under the PMTA-ILA contract However, while the issue as to which union was en-
titled to the disputed work would be relevant in a jurisdictional dispute proceeding under
Section 10(k), that issue is not involved in this case Here, in deciding whether the
Respondents' conduct was secondary, we are confronted solely with the question whether
the employers under the direct pressure of the union strike action were authorized to
decide which union was entitled to do the disputed work. As we have indicated, the
Trial Examiner found, and the record establishes, that BHC was authorized to make that
determination we do not adopt the statement in the Intermediate Report that, where
a union seeks to compel an employer to comply with a contract provision and such con-
duct by the union would require the employer to cease doing business with another em-
ployer, such conduct is lawful under former Section 8(b) (4) (A) if the "contract itself
makes a clear, enforceable assignment of work."
1182 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the disputed work for Murphy's employees only by forcing Murphy
and Norton to bring pressure on BHC to reassign the disputed work.'
The Board has held, with court approval, that where the employer
under economic pressure by a union is without power to resolve the
underlying dispute, such employer is the secondary or neutral em-
ployer and that the employer with power to resolve the dispute is the
primary employer.' We find, therefore, that, with respect to the dis-
pute as to whether Murphy's employees or BHC's employees should
perform the work of moving Transit's cargo from dockside to Transit's
freezer, BHC was the primary employer and that the Respondents'
conduct directed against Murphy and Norton to obtain such work was
secondary activity.'
Our dissenting colleague asserts that, in finding that Murphy and
Norton were secondary employers, we have given too much weight
to the fact that these employers were powerless to assign the disputed
work to members of ILA. He argues that, if power to resolve the
dispute were the "touchstone" of a primary dispute, then even pri-
mary strikes would be unlawful where the ability of the struck em-
ployer to grant the wage increase sought by the union depended on the
willingness of the customers of the employer to pay higher prices for
the employer's products. We believe that our dissenting colleague
misconceives the basis for our decision and fails to distinguish between
the situation where an employer has no legal power to take a particu-
lar action and the situation where the employer possesses such power
but finds it not economically feasible to exercise it. In the case of a
primary strike, while it sometimes may be difficult as a matter of
8 Viewed in terms of the PMTA-ILA contract, the Respondents ' conduct was an attempt
to enforce that portion of the contract clause which provides that employer -members of
the Association could not work on a pier where work historically and regularly performed
by employees in the bargaining unit was being performed by employees not covered by
ILA agreements. However, the Trial Examiner found , and we agree , that the PMTA-ILA
contract, insofar as it obligated members of PMTA not to do business on a pier where
work historically done by ILA employees was being done by non-ILA employees, was a
"hot cargo" type of contract proscribed by Section 8(e). It was, of course , well estab-
lished even prior to the 1959 amendments that otherwise unlawful secondary conduct by
a union is not protected activity because such conduct is for the purpose of enforcing a
hot-cargo clause Local 1976, United Brotherhood of Carpenters and Joiners of America,
AFL, et at (Sand Door it Plywood Co ) v. NL.RB, 357 U S. 93, see Section 8(e)
7 Clifton Deangulo, Business Representative , Local Union No. 98, Sheet Metal Workers'
International Association, AFL-CIO ( York Corporation ), 121 NLRB 676, 685; Local No.
636 of the United Association of Journeymen and Apprentices of the Plumbing and Pipe
Fitting Industry of the United States and Canada , AFL-CIO, et al. (The Detroit Edison
Company, et al .), 123 NLRB 225, 261, enfd in relevant part, as mod 278 F 2d 858
(CAD C ) ; Mechanical Contractors Association of New York, Inc, et al. ( Consolidated
Edison Company of New York Inc ), 124 NLRB 521, 527, enfd as mod 285 F 2d 642
(CA 2) ; United Steelworkeis of America, AFL-CIO, and Local 4203 , etc (Tennessee
Coal & Iron Div. of U S Steel Corp ) v N.L.R B , 294 F. 2d 256 (C.A.D.C.), enfg. as mod.
127 NLRB 823; International Longshoremen & Warehousemen 's Union, and Local No. 13,
International Longshoremen it Warehousemen's Union (Catalina Island Sightseeing Lines),
124 NLRB 813
8 Local 5, United Association of Journeymen and Apprentices of the Plumbing and Pipe-
fitting Industry of the United States and Canada, AFL -CIO (Arthur Venneri Company),
137 NLRB 828.
INTERNATIONAL LONGSHOREMEN'S ASSOCIATION, ETC. 1183
economics for the struck employer to raise wages, there can be no
doubt that the struck employer has the power to grant the increase
sought. For this reason, it is not a secondary boycott for the union
to strike that employer to compel it to satisfy the union's wage de-
mands. But, in this case, it is not that Murphy and Norton are reluc-
tant to grant ILA's demands because of economic difficulties. The
fact is that Murphy and Norton simply have no power to take the
action sought. Thus, ILA's strike against Murphy and Norton was
necessarily directed against BHC, which did have power to reassign
the work, and which therefore was the primary employer.
Our dissenting colleague also seems to suggest that, in any event, the
strike was lawful as Murphy and Norton could have satisfied ILA by
refusing to comply with BHC's directives on the ground that they
required a curtailment of the customary work of Murphy's employees.
But our dissenting colleague concedes that such action would most
likely have forced Murphy and Norton off the Wilmington docks. In
other words, Murphy and Norton could have satisfied ILA's demands
only by ceasing doing business with BIIC. Far from establishing that
Murphy and Norton are primary employers, we believe that this argu-
ment proves that we are confronted here with the prototype of a sec-
ondary boycott situation, since Murphy and Norton could satisfy
ILA's demands not by reassigning the work themselves but only by
disrupting existing business relationships 9 and forcing BHC to re-
assign the work to ILA.
Nor can we discern any basis for distinguishing, as does our dissent-
ing colleague, this case from the Board's decision in Sound Shingle
Co.10 According to our dissenting colleague, Sound Shingle involves
a "typical" secondary boycott as there the basic dispute was between
the union and the nonunion manufacturer, whereas here Murphy and
Norton are primary employers because their employees "are bringing
economic pressure against their own employer to protect work in the
bargaining unit they have traditionally performed." But surely, the
fact that Murphy's employees were bringing pressure on their own
employer does not in itself make the dispute a primary one. In Sound
Shingle, employees of Sound Shingle struck against their own em-
ployer, and yet the Board found that Sound Shingle was the secondary
employer. It is apparent, therefore, that, in secondary boycott cases,
the crucial question is not the relationship between the striking em-
ployees and the struck employer, but rather whether the struck em-
ployer is the employer with whom the union has its primary dispute.
Nor is the fact that ILA's conduct was allegedly designed to protect
work for Murphy's employees dispositive of the issues raised here.
A full discussion as to the cease - doing-business object appears below.
io Washington-Oregon Shingle Weavers' District Council, et at. (John E. Martin and
Frank S Barker, Co-partners doing business as Sound Shingle Co.), 101 NLRB 1159,
enfd. 211 F 2d 149 (C A. 9).
1184 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Even assuming, contrary to the fact, that ILA members had tradition-
ally performed the disputed work," and ILA could have lawfully
brought pressure on the employer empowered to assign the work in
order to obtain this work, still, Section 8(b) (4) prohibits a union
from involving neutrals in its efforts to force another employer to
give the union work to which it believes it is rightfully entitled. In
this respect, this case is significantly different from Food Employers
Council, Inc.ia There, Retail Clerks, representing supermarket em-
ployees, struck the supermarkets in an effort to force the supermarkets
to assign certain stacking work to their own employees rather than to
the employees of rack jobbers. In remanding the case to the Board
for further findings, the Court of Appeals for the District of Columbia
suggested that, if the record established that the Retail Clerks was
trying to protect the stacking work for employees of the supermarkets,
the strike against the supermarkets would have been lawful primary
activity. But in Food Employers Council Inc., it is clear that the
supermarkets could make the decision as to which employees would
do the stacking work and, therefore, the court was of the view that
the supermarkets might have been the primary employers. But here,
as we have already emphasized, ILA was attempting to protect the
jobs of ILA members by means of indirect pressure against BHC.
This, we find, Section 8 (b) (4) does not permit it to do.
2. Although we have found, contrary to the contention of the Re-
spondents, that BHC was the primary employer and the Respondents'
conduct was secondary, the question remains whether "an object" of
the Respondents' conduct was unlawful under Section 8(b) (4).13
The Supreme Court has held that Section 8(b) (4) prohibits conduct
for "an object" specified in the Act, even though such object is not
the sole object of the union conduct, and the union may have other
lawful objects.14 Similarly, the Board has found that the term "an
object" is not limited to the "ultimate" object of the union's conduct,
that is, the "concluding state of affairs" sought by the union," but has
construed "an object" as encompassing also "alternative" objects, 16
"In fact , the work in dispute was a new type of activity, involving the use of a re-
frigerator facility for the storage of meats , which had not been traditionally performed
by any employees.
"Retail Clerks Union Local 770, et al v NLR.B., 296 F 2d 368 (C.A.D.C.), remand-
ing in part 127 NLRB 1522.
18 As the Supreme 'Court noted in the Sand Door decision, supra , Section 8 ( b) (4) "does
not speak generally of secondary boycotts" but "describes and condemns specific union
conduct directed to specific objectives "
14 N L R.B. v Denver Building and Construction Trades Council , et al. (Gould &
Preisner), 341 U S 675
15 Cf Douds v. International Longshoremen's Association , Independent, et al (New
York Shipping Association ), 224 F. 2d 455 , 459 (C.A. 2).
16 Bangor Building Trades Council , AFL-CIO ( Davison Construction Company, Inc ),
123 NLRB 484, 489, enfd as mod, 278 F. 2d 287 (C.A. 1). There, the Board found that
although "the ultimate purpose" of the respondent union's conduct may have been to have
union working standards observed throughout the entire project, "at least an object" of
its conduct was to cause Davison, the general contractor , to cease doing business with
Cianchette , the nonunion subcontractor . In enforcing the Board decision, the court of
INTERNATIONAL LONGSHOREMEN'S ASSOCIATION, ETC. 1185
"conditional" objects,'' and "immediate" objects.'$ With these con-
siderations in mind, we shall proceed to evaluate the facts in this case.
While "ultimately" the Respondents sought only to obtain the dis-
puted work from BHC, the means adopted by the Respondents to
achieve this object was to threaten and effect a disruption of the busi-
ness relations of all employees involved in the Transit Freeze operation
at the marine terminal, including BHC, until such time that BHC
would comply with their demands for the disputed work. More spe-
cifically, we find that "an object" of the Respondents' conduct was to
cause Murphy to cease doing business with Norton, to cause Norton to
cease doing business with BHC, and to cause Transit Freeze to cease
doing business with BHC, and, in this manner, to bring pressure on
BHC to assign the disputed work to ILA members. That the inter-
ruption of these business relations was not a mere "hope" or "expecta-
tion" of the Respondents," but, rather, was "an object" of the Respon-
dents' conduct is made plain by the Respondents' conduct threatening-
secondary employers that, if BHC did not comply with its demands,
the Pipiriki would not be unloaded, and by the Respondents' conduct,
when the Pipiriki docked, of inducing employees of Murphy to refuse
to unload the ship," thus effectively disrupting all business relations
at the marine terminal. Accordingly, we find that the Respondents'
appeals, citing N L R B v. Denver Building and Construction Trades Council, et al.
(Gould & Preisner), supra, stated: "If one alternative purpose of a strike is an unlawful
one within the purview of Section 8(b) (4), that purpose must be regarded as 'an object.' "
"Local 47, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, AFL, et al . (Texas In(lustries, Inc ), 112 NLRB 923, 925, footnote 2,
enfd. 234 F. 2d 296 (C A. 5) There, the respondent union picketed the general con-
tractors to force them to sign a contract providing that all subcontractors of the general
contractor shall assume the terms and conditions of the agreement wih the general con-
tractors The Board found that, while "the sole object of the picketing was to force the
general contractors to cease doing business with Texas and Hall [subcontractors] only
if they refused to adopt the wage rates in the union's proposed contract with the general
contractors," such "conditional" object was unlawful under former Section '8(b) (4) (A).
is United Steelworkers of America, AFL-CIO (Tennessee Coal & Iron Division of the
United States Steel Corporation), 127 NLRB 823, enfd. with modifications not here rele-
vant 294 F. 2d 256 (CA.D.C.). There, Tennessee Coal and Iron (TCI) contracted cer-
tain work to Koppers and Sullivan who subcontracted this work to subcontractors. Claim-
ing that the work should have been assigned to its members, employees of TCI, some of
whom had been laid off, the respondent union engaged in picketing to enforce this de-
mand. The Board found that the union conduct was for a cease-doing-business object
under former Section 8(b) (4) (A). Rejecting the union's contention that the "ultimate"
objective of its conduct was to cause TCI to assign the disputed work to its own em-
ployees, the Board stated (at p. 828) : "Although the assignment of the disputed work to
ICI's own employees could have been the Respondent's ultimate objective, we are satisfied
that in resorting to the picketing the Respondents had another immediate objective, that
of forcing or requiring the contractors to cease doing business with TCI, or to force the
subcontractors to cease doing business with subcontractors " [Emphasis supplied ]
19 See Seafarers International Union of North America, Atlantic and Gulf District,
Harbor and Inland Waterways Division, AFL-CIO (Salt Dome Production Co) v. N L.R.B.,
265 F. 2d 585 (C.A.D C ), setting aside 119 NLRB 1639.
20 The finding with respect to the inducement of Murphy employees to strike appears
infra.
649856-63-vol. 137-76
1186 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
conduct was for a "cease-doing-business" object within the meaning
of subsection (B) of Section 8 (b) (4)."
3. We also find, in agreement with the Trial Examiner, that an
object of the Respondents' conduct was to force Murphy and Norton
"to enter into any agreement which is prohibited by Section 8(e),"
within the meaning of subsection (A) of Section 8 (b) (4). The Board
has decided that a contract clause, allowing an employer to subcontract
the work ordinarily performed by employees covered by the contract
but limiting the group of employers to whom such employer may
subcontract the work to those under contract with the union, is a hot-
cargo clause , unlawful under Section 8(e), since the purpose of such
clause is not to protect the work for employees in the unit but rather
to protect such work for members of the union in general.22 The
Board reasoned that a no-subcontracting agreement containing an
"except clause" allowing the employer to subcontract work only to
union subcontractors is not meaningfully different from a clause which
prohibits an employer from handling products produced by a non-
union firm23 While the clause relied on by the Respondents in the
instant case is not a model of clarity, we find that it is an "except"
type of no-subcontracting clause, designed to protect the disputed
work not for the employees of Murphy in the bargaining unit but
rather for the members of the ILA in general.24
In Hillbro Newspaper Printing Company Division of Hearst Pub-
lishing Company, Inc.," the Board held that, where a union and an
employer are parties to a hot-cargo agreement and the union attempts
to require the employer to live up to such agreement and, thus, to ob-
tain the reaffirmation of such agreement from the employer, such
21 See United Marine Division, Local 333 , International Longshoremen's Association,
at al. ( New York Shipping Association ), 107 NLRB 686, 710
^ District No 9, International Association of Machinists , AFL-CIO ( Greater St. Louis
Automotive Trimmers and Upholsterers Association, Inc), 134 NLRB 1354 ( Members
Fanning and Brown dissenting on other grounds ) , see also Retail Clerks Union Local
770, et al (Food Employers Council, Inc ) v. N.L R B , 296 F. 2d 368 (C.A.D,C.), remand-
ing in part 127 NLRB 1522; Butchers ' Union Local 563, Amalgamated Meat Cutters and
Butcher Workmen of North America, AFL-CIO (Huntington Meat Packing Company,
d/b/a Oxford Meat Co .), 134 NLRB 136
23 The latter type clause is unlawful under Section 8(e) of the Act See Mary Fester,
d/b/a American Feed Company, 133 NLRB 214, footnote 1.
23 The PMTA-ILA contract provides that the employer -members of the Association
"will not directly perform work done on a pier or terminal or contract out such work
which historically and regularly has been and currently is performed by employees cov-
ered by this agreement or employees covered by ILA craft agreements unless such, work
of such pier or terminal is performed by employees covered by ILA agreements." [Em-
phasis supplied I We construe this clause to mean that members of the Association may
not contract out "such work ," that is, "work done on it pier or terminal ," which has
historically been done and currently is being done by ILA employees "unless" "such
work," that is, the work contracted out, is to be performed by employees covered by ILA
contracts . Thus, the clause , in effect, prohibits subcontracting unless the subcontractor
is under contract with ILA.
25 135 NLRB 1132 ( Members Fanning and Brown dissenting ). See also District No 9,
International Association of Machinists, AFL-CIO ( Greater St. Louis Automotive Trim-
mers and Upholsterers Association, Inc.), 134 NLRB 1354 ( Members Fanning and Brown
dissenting).
INTERNATIONAL LONGSHOREMEN'S ASSOCIATION, ETC. 1187
conduct is for an object unlawful under subsection (A) of Section
8(b) (4). Here, as the Respondents and Murphy and Norton were,
as we have already found, parties to a hot-cargo agreement, and as
the Respondents attempted to require Murphy and Norton to live up
to this hot-cargo agreement, we find that the Respondents' conduct
was for the further object of requiring Murphy and Norton to re-
affirm the hot-cargo agreement and that such object was unlawful un-
der subsection (A) of Section 8 (b) (4).
4. We also find, in agreement with the Trial Examiner, that, by the
conduct described more fully in the Intermediate Report, the Re-
spondents threatened, restrained, and coerced Murphy, Norton, BHC,
and Transit Freeze for the above-described proscribed objects within
the meaning of subsection (ii) of Section 8(b) (4).26 The Trial Ex-
aminer also found, and we agree, that, by the conduct described here-
inafter, the Respondents induced employees of Murphy to engage in a
strike for proscribed objects within the meaning of subsection (i) of
Section 8(b) (4). The relevant facts are as follows. On August 22,
1960, the day the SS Pipiriki docked, agents of the Respondents met
representatives of Murphy, Norton, Transit, and other employers in
the dock office. During the ensuing conversation, the Respondents'
agents stated that, if the ILA did not obtain the disputed work, they
would not unload the Pipiriki. While this conversation was taking
place, a number of Murphy's employees who were to unload the
Pipiriki gathered around the open doors and open windows of the
dock office where they could overhear the conversation that was taking
place. When the meeting was over, Murphy's employees asked the
agents of the Respondents what had happened. When the Respond-
ents' agents told them what had taken place, Murphy's employees then
said , "If this is the case we are not going to do a damn thing." The
agents of Respondents said nothing. Nor does it appear that they
sought thereafter to prevent Murphy's employees from refusing to un-
load the Pipiriki. We find that, under all these circumstances, the
conduct of the Respondents' agents constituted inducement by the Re-
spondents of Murphy's employees to engage in the strike 27
The General Counsel excepted to the failure by the Trial Examiner to find that
Transit was also a secondary employer herein and that the Respondents threatened, re-
strained , and coerced Transit for unlawful objectives We find merit in this exception
As we have found that BHC was the primary employer , Transit as well as Murphy and
Norton were neutral to the dispute between BHC and the Respondents We accoi dangly
find that Transit was a secondary employer and that the Respondents , by telling Ralph
E. Melvin, an officer of Transit, that there would be "trouble " at the port if ILA did not
obtain the disputed work, threatened, restrained, and coerced Transit for proscribed ob-
jects. Although the complaint did not specifically allege that Transit was also a secondary
employer , as noted, the general issue as to which employers were primary and which
employers were secondary was fully litigated at the hearing
27 Chauffeurs, Teamsters and Helpers Local Union No. 175, International Brotherhood
of Teamsters , Chauffeurs, Warehousemen and Helpers of America , et al (McJunkin Cor-
poration ), 128 NLRB 522, 534, enfd . as mod . 294 F. 2d 261 (C.A D C ) ; Local No 636 of
the United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting
Industry of the United States and Canada, AFL-CIO, et al. (The Detroit Edison Com-
1188 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the basis of the foregoing, and the entire record in this case,
we hereby reject the Trial Examiner's Conclusion of Law No. 5 and
instead make the following :
CONCLUSION OF LAW
5. By inducing and encouraging employees of Murphy to engage
in a strike or a refusal in the course of their employment to perform
services and by threatening, restraining, and coercing Murphy, Nor-
ton, Transit Freeze, and BHC, with the object of forcing or requir-
ing Murphy and Norton to enter into an agreement proscribed by Sec-
tion 8(e) of the Act, and forcing or requiring Murphy to cease doing
business with Norton, Norton to cease doing business with BHC, and
Transit Freeze to cease doing business with BHC, the Respondents
have engaged in unfair labor practices within the meaning of Section
8(b) (4) (i) and (ii) (A) and (B) of the Act.
ORDER
Upon the entire record in this case, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that Respondents, International Long-
shoremen's Association, AFL-CIO, and International Longshore-
men's Association, Local No. 1694, AFL-CIO, their officers, repre-
sentatives, agents, successors, and assigns, including James T. Moock
and Clifford Carter, shall :
1. Cease and desist from engaging in, or inducing any individual
employed by Murphy-Cooke and Co., or any other person, to engage in,
a strike or refusal in the course of his employment to use, manufacture,
process, transport, or otherwise handle or work on any goods, articles,
materials , or commodities, or to perform any service, or to threaten,
coerce, or restrain Murphy-Cooke and Co., Norton-Lilly and Company,,
Inc., Transit Freeze Corporation, and The Board of Harbor Commis-
sioners, or any other person, where an object thereof is to force or re-
quire Murphy-Cooke and Co. and/or Norton-Lilly and Company, Inc.,,
to enter into an agreement proscribed by Section 8 (e) of the Act, or to
force or require Murphy-Cooke and Co., or any other person, to cease
doing business with Norton-Lilly and Company, Inc., or to force or-
require Norton-Lilly and Company, Inc., or Transit Freeze Corpora-
pany, et al ), supra, at 230 . See also Local 760, International Brotherhood of Electrical-
Workers, A .F. of L ( Roane-Anderson Company ), 82 NLRB 696 , 714; Local 394, Inter-
national Brotherhood of Teamsters , Chauffeurs, Warehousemen and Helpers of America,
et at. (Bonded Freightways, Inc.), 121 NLRB 924, 931, enfd 273 F. 2d 696 ( C A. 2) ;
International Longshoremen's and Warehousemen's Union Local 8, et al. ( General Ore,.
Inc ), 124 NLRB 626, 636 . In agreement with the Trial Examiner, we also find that an
employer-employee relationship existed between Murphy and the longshoremen who were
hired each day on the basis of a "gang system ." United Marine Division , Local 883,
International Longshoremen 's Association, et al. (New York Shipping Association ), supra,
at 709.
INTERNATIONAL LONGSHOREMEN'S ASSOCIATION, ETC. 1189
tion, or any other person, to cease doing business with The Board of
Harbor Commissioners.
2. Take the following affirmative action which the Board finds will
effectuate the policy of the Act :
(a) Post in conspicuous places in the Respondents' business offices
and meeting halls, copies of the notice attached hereto marked "Ap-
pendix." 28 Copies of said notice, to be furnished by the Regional Di-
rector for the Fourth Region, shall, after being duly signed by official
representatives of the Respondents, be posted by the Respondents im-
mediately upon receipt thereof, and be maintained by them for 60
consecutive days thereafter, in conspicuous places, including all places
where notices to members are customarily posted. Reasonable steps
shall be taken by the Respondents to insure that said notice is not
altered, defaced, or covered by any other material.
(b) Furnish to the Regional Director for the Fourth Region signed
copies of said notice for posting by Murphy-Cooke and Co., Norton-
Lilly sand Company, Inc., Transit Freeze Corporation, and The Board
of Harbor Commissioners, if willing, in places where notices to em-
ployees are customarily posted. Copies of said notice, to be furnished
by the Regional Director, shall, after being signed by the Respond-
ents, as indicated, be forthwith returned to the Regional Director for
disposition by him.
(c) Notify the Regional Director for the Fourth Region, in writing,
within 10 days from the date of this Order, what steps have been
taken to comply herewith.
MEMBER FANNING, concurring :
I concur in the majority's conclusion that the Respondent Unions
violated Section 8 (b) (4) (B) in this case.29 While this record presents
facts normally indicative of a jurisdictional dispute,30 I do not believe
that Respondents' strike over work assignment is cognizable under
Sections 10(k) and 8(b) (4) (D) because The Board of Harbor Com-
missioners, a political subdivision of Wilmington, Delaware, is not an
"employer" within the meaning of the latter section. Accordingly,
Respondents' conduct, in my opinion, must be governed by the pro-
visions of Section 8(b) (4) (B) where the prohibited objective relates
to forcing or requiring "any person" to cease doing business with any
other person.
28 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."
21 For the reasons stated in the dissent in Hillbro Newspaper Printing Company Division
of Hearst Publishing Company, Inc ., supra, I do not find that the Respondents' conduct
was for an object proscribed by subsection (A) of 8( b) (4).
80 See my dissenting opinion in Local 5, United Association of Journeymen and Appren-
tices of the Plumbing and Pipe fitting Industry of the United States and Canada, AFL-CIO
(Arthur Venneri Company), 137 NLRB 82'8
1190 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
MEMBER BROWN, dissenting :
Involved here, in my opinion, is a primary dispute between an em-
ployer and his employees concerning the terms and conditions of
their employment. Norton (the shipping agent for SS Pipiriki)
arranged to have Murphy (a stevedoring company employing long-
shoremen represented by Respondent ILA) unload the Pipiriki and
deposit the cargo at shipside; and Norton also arranged with The
Board of Harbor Commissioners (BHC) to have BHC's teamster
employees then move the cargo from shipside to Transit (a refrigera-
tion company at the pier) and perform the interim coopering opera-
tions.31 These mentioned functions were traditionally and regularly
performed by these longshoremen employed by Murphy, other
stevedoring concerns, and shipping agents (including Norton), all of
whom are under contract with the ILA. The present dispute arose
when Murphy's longshoremen, represented by the ILA, refused to
unload the Pipiriki and thereby struck Murphy in protest against
Murphy's failure to furnish them this traditional work of handling
the Pipiriki cargo.
In finding that Murphy was a neutral, unconcerned party and that
Respondent ILA has violated Section 8(b) (4) (B) in the premises, I
believe that my colleagues misconceive the nature of an employment
relationship and a primary dispute between striking employees and
their struck employer. Almost always, needless to say, a primary
strike has its impact on business arrangements of other employers;
and frequently an employers' relationships with his own employees are
in turn also affected by other employers' arrangements and conduct.
In ascertaining a union's objective in proceedings under Section
8 (b) (4) (B) we must, of course, consider the means used as well as the
economic interaction, both as to cause and effect, with other employers.
Care must be exercised in this process, however, to avoid inverting the
true relationship of the parties on the basis of so-called incidental or
secondary effects and causes.32
In deciding which employer is primary, the crucial factor, as I have
indicated elsewhere,33 is the fundamental character of the dispute.
Here, Murphy's employees brought economic pressure on their own
employer to protect their work in the bargaining unit as contemplated
in These arrangements were made upon the insistence of BHC.
32 Local 761 , International Union of Electrical, Radio and Machine Workers , AFL-CIO
(General Electric Company ) v. N L.R B., 366 U S. 667, 672 ; Seafarers International Union
of North America, Atlantic and Gulf District, Harbor and Inland Waterways Division,
AFL-CIO ( Salt Dome Production Co.) v N L R B., 265 F. 2d 585, 590-592 (C.A.D C) ;
cf. N.L.R B v. Denver Building and Construction Trades Council, et at. (Gould &
Preisner ), 341 U S 675, 687.
$ Local 1066, International Longshoremen's Association , AFL-CIO ( Wiggin Terminals,
Inc ), 137 NLRB 45 ( dissenting opinion ). See, also , International Longshoremen's and
Warehousemen's Local Union No. 19, Independent, et at. (Pacific Maritime Association),
137 NLRB 119
INTERNATIONAL LONGSHOREMEN'S ASSOCIATION, ETC. 1191
by their contract and which they had traditionally performed.34 In
my opinion, this was lawful primary activity. The present situation
thus is significantly different from the typical type of secondary boy-
cott proceeding, e.g., Sound Shingle,35 where the focal point of the
dispute was the nonunion status of the employer who manufactured
the shingles and not any characteristic of the struck employer. In
this case, it is conceded that the underlying dispute is over the question
whether Murphy's employees should do the disputed work, that is,
over the terns and conditions of employment of Murphy's employees.
Although not denying that the dispute here was over the conditions
of employment of Murphy's employees, the majority places its reli-
ance on the fact that it was BHC and not Muruhy which had the power
to resolve this dispute. In the first place I am not satisfied that the
record establishes that BHC alone had authority to resolve the dispute.
But, even accepting the majority's factual finding on this point, I am
constrained to disagree with its conclusion. In fashioning this novel
"right-to resolve" test, the majority ignores the basic nature of the
dispute and makes an incidental factor-the extent to which the
struck employer could satisfy the union's demands-the determina-
tive consideration. The majority thus disregards the obvious fact
that in lawful primary strikes employers may not be willing or at
times even able to satisfy their employees' lawful demands,36 as em-
ployees also may not be willing or even able to comply with their
employer's legitimate directions. But that is the raw stuff of a labor
dispute between them; and a dissatisfied employer may lay off or
terminate his employees, while dissatisfied employees may strike to
obtain their own economic ends. If control or ability to comply were
the touchstone of a primary dispute, then the traditional strike for
increased wage demands also would be removed from the primary dis-
pute area where the struck employer's ability to grant such demands
depends on his own customers' willingness to pay him more for the
products he sells them 37
34 See Retail Clerks Union, Local 770, at al. (Food Employers Council, Inc) v N L R B ,
296 F. 2d 368, 373 (C.AD.C.). See, also, Cox, Law and the National Labor Policy, 34
(1960).
35 Washington-Oregon Shingle Weavers' District Council, et al (John E Martin and
Frank A Barker, Co-partners doing business as Sound Shingle Co.), 101 NLRB '1159,
enfd 211 F. 2d 149 (CA 9).
38 Clearly here Norton and Murphy could have refused to comply with BHC's directives
on the ground that this would require a curtailment of the customary work of their em-
ployees. Such a decision might have resulted in Murphy and Norton being denied the use
of the port facilities, but employers are faced with decisions daily which affect their
business opportunities.
37 Murphy is no less a primary disputant because the ILA protested the arrangement
to BHC; whatever occurred between ILA and BHC, I regard as a hope or expectation to
alleviate the possibility of a strike against Murphy and as a means of notifying BHC of
prospective strike action against Murphy. See Plumbers if Pipefitters Local No .¢ 71 etc.
(Leo E Murray, Inc., an Individual, d/b/a Wyckoff Plumbing), 135 NLRB 329 ; Retail
Clerk's Union v. N.L. R B., supra.
1192 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Nor do I consider ILA's strike any less primary because of the clause
in the PMTA-ILA contract. In the first place, the clause is, as the
majority concedes, not a model of clarity, and since it may be con-
strued to be lawful, I am not constrained to interpret it otherwise.38
More significantly, however, even assuming the clause to be of the hot
cargo variety, in this type of situation the presence of the clause does
not necessarily make the ILA conduct unlawful. The court in Food
Employers Council, Inc., supra, made it quite clear that the right of
employees to bring pressure on their employees to protect work in
their own unit does not depend on a work-protection clause in a
collective-bargaining agreement, but rather that the continued assign-
ment of the work to employees in the unit may be a "tacit but essential"
premise of the employment relationship. Thus, it would have to be
conceded that if there were no contract at all, ILA's conduct would be
lawful. It would be an anomolous result if Murphy's employees lost
their right to protect their work, merely because of a contract clause
which, in any event, was not the predicate for their action and which
concededly is only arguably unlawful. In this respect the instant
case is totally different from Food Employers Council, Inc., where
there was independent evidence, including attempts to gain recogni-
tion from the rack-jobbers, to estabmlish that Retail Clerks sought
not the primary object of protecting the work for employees in the
unit but the secondary object of protecting the work for union mem-
bers. Here, however, there is no evidence, and the majority cites none,
that the ILA sought recognition for the BHC's employees. And, so
far as appears, Murphy's employees struck only to protect their n ormal
work with Murphy, and not for ILA members generally.
I would dismiss the complaint.
sa Milk Drivers and Dairy Employees Union , Local No. 546, International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Helpers of America (Minnesota Milk Com-
pany ), 133 NLRB 1314 For the additional reasons stated in the dissent in the Hillbro
Newspaper Printing case, footnote 26, supra, I would not find that Respondents violated
Section 8 ( b) (4) (1) and (ii) (A) of the Act.
APPENDIX
NOTICE TO ALL ODE MEMBERS AND TO ALL EMPLOYEES OF MuRPHY-
COOKE AND Co., NORTON-LILLY AND COMPANY, INC., TRANSIT FREEZE
CORPORATION, AND THE BOARD OF HARBOR COMMISSIONERS
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, we hereby give notice that :
WE WILL NOT engage in or induce or encourage any individual
employed by Murphy-Cooke and Co., or any other person, to en-
gage in a strike or refusal in the course of his employment to use,
INTERNATIONAL LONGSHOREMEN'S ASSOCIATION, ETC. 1193
manufacture, transport, or otherwise handle or work on any goods,
articles, materials, or commodities or to perform any service, or
threaten, coerce, or restrain Murphy-Cooke and Co., Norton-Lilly
and Company, Inc., Transit Freeze Corporation, and The Board
of Harbor Commissioners, or any other person, where an object
thereof is to force or require Murphy-Cooke and Co. and/or
Norton-Lilly and Company, Inc., to enter into an agreement pro-
scribed by Section 8(e) of the Act or to force or require Murphy-
Cooke and Co., or any other person, to cease doing business with
Norton-Lilly and Company, Inc., or to force or require Norton-
Lilly and Company, Inc., Transit Freeze Corporation, or any
other person, to cease doing business with The Board of Harbor
Commissioners.
INTERNATIONAL LONGSHOREMEN'S
ASSOCIATION, AFL-CIO,
Labor Organization.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
JAMES T. MoocK, ITS AGENT
Dated---------------- By-------------------------------------
(Title)
CLIFFORD CARTER, ITS AGENT
Dated---------------- By-------------------------------------
(Title)
INTERNATIONAL LONGSHOREMEN'S ASSOCIATION,
LOCAL No. 1694, AFL-CIO,
Labor Organization.
Dated---------------- By-------------------------------------
(Representative ) (Title)
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
Office, 1700 Bankers Securities Building, Walnut and Juniper Streets,
Philadelphia 7, Pennsylvania, Telephone Number, Pennypacker 5-
2612, if they have any question concerning this notice or compliance
with its provisions.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Upon a charge filed August 24 , 1960, by the The Board of Harbor Commissioners,
Wilmington , Delaware (herein called Harbor Commissioners), that International
Longshoremen 's Association , AFL-CIO ; International Longshoremen's Association,
Local No. 1694 , AFL-CIO; and James T. Moock ; and Clifford Carter (hereinafter
called Respondent ILA, Respondent Local 1694 , Respondent Moock, and Respondent
Carter, respectively ), Respondents , jointly and separately , have engaged in and are
1194 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
engaging in certain unfair labor practices affecting commerce, as set forth and de-
fined in the National Labor Relations Act, as amended, 61 Stat. 136, 73 Stat. 519
(herein called the Act), the General Counsel of the National Labor Relations
Board (herein called the Board), on behalf of the Board by the Regional Director
for the Fourth Region, Philadelphia, Pennsylvania, pursuant to the Board's Rules
and Regulations, Series 8, issued a complaint and notice of hearing, and alleged
in substance that since on or about August 22, 1960, the Respondents have de-
manded that the work of moving meat discharged from vessels at the Harbor Com-
missioners' Wilmington marine terminal, from shipside to the storage facilities op-
erated by Transit Freeze Corporation, be assigned to employees who are members
of or represented by the Respondents, ILA and Local 1694; that, in furtherance and
support of the aforesaid demands, the Respondents ordered, directed, instructed,
and appealed to their members employed by Murphy-Cooke and Co. (herein called
Murphy), and to the employees of Norton-Lilly and Company, Inc. (herein called
Norton), not to work in connection with the discharge of the cargo from the
SS Pipiriki; and that, as a result of the Respondents' aforesaid acts and conduct,
the employees of Norton and Murphy refused to work said vessel.
The complaint specifically alleged:
By the acts described, above, and by each of said acts, Respondents did engage
in, and are engaging in, and did induce and encourage, and are inducing and
encouraging, individuals employed by persons engaged in commerce or in an
industry affecting commerce to engage in, a strike or a refusal in the course
of their employment to use, manufacture, process, transport, or otherwise handle
or work on any goods, articles, materials, or commodities and to perform serv-
ices, and did threaten, coerce and restrain, and are threatening, coercing and
restraining, persons engaged in commerce or in an industry affecting commerce,
where objects are: forcing or requiring an employer to enter into an agreement
which is prohibited by Section 8(e) of the Act and forcing or requiring persons
to cease using, selling, handling, transporting, or otherwise dealing in the prod-
ucts of any other producer, processor, or manufacturer, and to cease doing
business with other persons, and thereby did engage in and are engaging in un-
fair labor practices within the meaning of Section 8(b) (4) (i) (ii) (A) and
8(b) (4) (i) (ii) (B) and Section 2(6) and (7) of the Act.
An answer was duly filed.
After the charge herein was filed the Regional Director for the Board's Fourth
Region I having concluded there was reasonable cause to believe the Respondents
had engaged in the unfair labor practices charged and that a complaint of the Board
based on the charge should issue, acting under Section 10(1) of the Act petitioned
the United States District Court for the District of Delaware for a temporary in-
junction against the continuation of the alleged unfair labor practices. After a
hearing before the Honorable Edwin D. Steel, Jr., United States district judge, a
temporary injunction was granted October 14, 1960, by Judge Steel restraining the
Respondents from engaging in any of the unfair labor practices charged pending the
final disposition of the matters involved by the Board.
Pursuant to notice, a hearing was held before Trial Examiner Louis Plost on
October 17 to 20, 1960, inclusive, at Wilmington, Delaware. At the hearing all the
parties were represented and were afforded full opportunity to be heard on the issues,
to argue orally on the record, and to file briefs and/or proposed findings and con-
clusions. The Trial Examiner granted motions to amend the complaint and answer.
A date was fixed for the filing of briefs and/proposed findings and conclusions, with
the Trial Examiner.2 The parties presented oral argument. Briefs have been received
from the General Counsel and the Respondents.
Upon the entire record in the case, and from his observation of the witnesses on
the stand, the Trial Examiner makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE CHARGING PARTY 3
The Board of Harbor Commissioners, a political subdivision of the city of Wil-
mington, Delaware, is engaged in the operation of a dock and other facilities at the
port of Wilmington, Delaware, for the docking of vessels, and loading and unloading
3 The petition was brought by Bernard Samoff, Acting Regional Director
2 The date for submission of briefs was extended by the Chief Trial Examiner to
December 8.
8 The Respondents challenge the right of the Harbor Commissioners to file a charge with
the Board . The Trial Examiner discusses this point under "Conclusions of Law" herein.
INTERNATIONAL LONGSHOREMEN'S ASSOCIATION, ETC. 1195
,of commodities shipped by means of waterborne conveyances. During the past year,
The Board of Harbor Commissioners has received revenue in excess of $100,000 for
the wharfage of vessels from the lease of space, and for other services, and for the
handling of goods discharged from vessels which had transported said goods from
foreign countries and from States other than the State of Delaware, or loaded aboard
vessels destined for foreign countries, or for points and places outside the State of
Delaware. Harbor Commissioners operates the marine terminal at Wilmington,
Delaware.
The Business of Other Employers Involved
Murphy-Cooke and Co., stevedores, is engaged at the port of Wilmington, Dela-
ware, and elsewhere in performing stevedoring services.
Norton-Lilly and Company, Inc., is engaged at the port of Wilmington, Delaware,
and elsewhere in performing services as ships' agents. During the past year, Norton-
Lilly and Company, Inc , has received revenue in excess of $50,000 for services ren-
dered as ships' agents for firms owning vessels which had transported goods from
foreign countries and from States other than the State of Delaware or from vessels
which were destined for foreign countries, or for points and places outside the State
of Delaware.
The Respondents concede that Murphy-Cooke and Co., and Norton-Lilly and
Company, Inc., are employers engaged in commerce within the meaning of the Act.
II. THE UNIONS INVOLVED
International Longshoremen's Association, AFL-CIO, and International Long-
shoremen's Association, Local No. 1694, AFL-CIO, are labor organizations within
the meaning of the Act. James T. Moock is a vice president of the International.
Clifford Carter is an officer of Local No. 1694.
III. THE UNFAIR LABOR PRACTICES
A. 8(b)(4)(i) and (ii)(A) and8(b)(4)(i) and ( ii) (B)
As herein above found the complaint is predicated on alleged violations of Sec-
tion 8(b) (4) (1) and (u) (A) and Section 8(b) (4) (1) and (ii) (B) of the Act, the
amendments to 8(b) (4) (consolidated and renumbered) by the Labor-Management
Reporting and Disclosure Act of 1959 (Landrum-Griffin). The section pertinent,
amended, was the original "secondary boycott" provision.4
One of the purposes of the 1959 amendments was clearly intended to close any
loophole by which 'a secondary boycott could be created or enforced. The evil of
the secondary boycott, which Congress intended to eliminate by the amendments was
aptly described by Judge Learned Hand of the Court of Appeals for the Second
Circuit ,when he stated:
4 As amended by the Labor-Management Report and Disclosure Act of 1959, the Act
provides in relevant part.
8(b) It shall be an unfair labor practice for a labor organization or its agents-
s x s s x r r
(4) (1) to engage in, or to induce or encourage any individual employed by any per-
son engaged in commerce or in any industry affecting commerce to engage in, a strike
or a refusal in the course of his employment to use, manufacture, process, transport,
or otherwise handle or work on any goods, articles, materials, or commodities or to
perform any services; or (ii) to threaten, coerce, or restrain any person engaged in
commerce or in an industry affecting commerce, where in either case an object
thereof is:
(A) forcing or requiring any employer . . . to enter into any agreement which is
prohibited by section 8(e) ;
(B) forcing or requiring any person to cease using, selling, handling, transporting,
or otherwise dealing in the products of any other producer, processor, or manu-
facturer, or to cease doing business with any other person,
Section 8(e) referred to reads.
(e) It shall be an unfair labor practice for any labor organization and any em-
ployer to enter into any contract or agreement, express or implied, whereby such
employer ceases or refrains or agrees to cease or refrain from handling, using, sell-
ing, transporting or otherwise dealing in any of the products of any other employer,
or to cease doing business with any other person, and any contract or agreement
entered into heretofore or hereafter containing such an agreement shall be to such
extent unenforeible and void:. . .
1196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The gravamen of a secondary boycott is that its sanctions bear, not upon the
employer who alone is a party to the dispute, but upon some third party who
has no concern in it. Its aim is to compel him to stop business with the employer
in the hope that this will induce the employer to give in to his employees'
demands .5
Section 8(b)(4)(i)(B) of the Act, which is directed against the inducement or
encouragement of any individual employed by any person, prohibits the same type
of conduct as was prohibited by the former 8(b) (4) (A).
The complaint alleges violations of 8(b) (4),(ii) (13):
(ii) to threaten, coerce, or restrain any person . . . where . . . an ob-
ject thereof is:
* * * * * * *
(B) forcing or requiring any person . to cease doing business with any
other person, .... [Emphasis supplied.]
The legislative history relating to this provision shows that it was intended to out-
law threats, coercion, and restraint of neutral employers-conduct which had not been
made unlawful by the 1947 amendments-and that a strike or other economic re-
taliation or a threat of economic retaliation made directly against an employer to
force him to cease doing business with a primary employer with whom the union
has a dispute comes within the purview of the new provision.6
It seems quite clear that the law as developed under the original "boycott clause"
[8(b)(4)(A)] applies with equal force to 8(b)(4)(i) and ( ii)(B).
The Board, with court approval, has held that strike action or the inducement
thereof to compel an employer to abide by contract provisions, where such com-
pliance would require the employer to cease doing business with another employer,
is for an object prohibited by Section 8(b) (4) (A)?
B. The illegal conduct
Joseph C. Cathcart, general manager of the marine terminal operated by Harbor
Commissioners, testified credibly that on September 21, 1959, Harbor Commissioners
entered into an agreement whereby Harbor Commissioners leased a plot of land
at its marine terminal to Transit Freeze Corporation on which Transit Freeze would
erect and operate -a refrigerating facility for the handling of frozen meats and other
frozen products. An agreement was also made by Transit Freeze and Harbor
Commissioners that all the labor needed by Transit Freeze to handle products
coming into and leaving its facility would be supplied by Harbor Commissioners on
a cost-plus basis and that any equipment necessary to handle such products would
also be supplied by Harbor Commissioners for a fixed fee as set up in Harbor
Commissioners' published tariff. Cathcart testified:
HEARING OFFICER' [sic] You were to furnish labor?
The WrrNESS: That is right.
HEARING OFFICER: What was this labor supposed to do? For what purpose
was it?
The WITNESS: The labor was to be used to load, unload, trucks and refrig-
erated cars, anything that Transit Freeze so desired that labor to be used for,
such as
5International Brotherhood of Electrical Workers, Local 501, et at. (Samuel Langer) v.
N.L R.B., 181 F 2d 34, 37 (C.A. 2), affg 341 U S. 694
9 This legislative history is set forth in International Hod Carriers, Building and Com-
mon Laborers' Union of America, Local No. 1140, AFL-CIO (Gilmore Construction Com-
pany ), 127 NLRB 541, footnote 6.
7 E g., Local 636 of the United Association of Journeymen and Apprentices of the Plumb-
ing and Pipe Flitting Industry, etc (The Detroit Edison Company, et al.), 123 NLRB 225,
enfd as mod. 278 F . 2d 858 (C.A D.C.) ; Local 294 International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, at at. (Bonded Freightways, Inc.),
121 NLRB 924, enfd. 273 F. 2d 696 (C.A. 2) ; Springfield Building and Construction
Trades Council, at at. (Leo Spear Construction Co, Inc ), 120 NLRB 600, enfd. 262 F. 2d
494 (C.A. 1) ; Chauffeurs, Teamsters & Helpers Local No 364, International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Helpers of America, at at. (The Light Co ,
Inc.), 121 NLRB 221, enfd. 274 F. 2d 19 (CA 7) ; Bangor Building Trades Council,
AFL-CIO (Davison Construction Company, Inc ), 123 NLRB 484, enfd. as mod. 278
F. 2d 287 (CA. 1) ; Mechanical Contractors Association of New York, Inc, et at. (Con-
solidated Edison Company of New York, Inc.), 124 NLRB 521.
INTERNATIONAL LONGSHOREMEN'S ASSOCIATION, ETC. 1197
HEARING OFFICER: It was all with relation to produce that was going into
their refrigeration departments-
The WITNESS: Refrigerated products, yes; stamping, marking; inspection;
anything they so desired.
Cathcart was corroborated by Ralph E. Melvin, vice president and treasurer of
Transit Freeze.
All labor used by Harbor Commissioners at its marine terminal is by members of
Local 107, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America (herein called Teamsters or Local 107), with whom it has a
collective-bargaining contract.
Vessels are loaded and unloaded at Harbor Commissioners' marine terminal by
members of the Respondents ILA and Local 1694, and other locals affiliated with
ILA, by reason of a collective-bargaining contract between ILA and the Philadelphia
Marine Trade Association (herein called Association) composed of stevedore com-
panies, shipping agents, and others in the shipping industry, who operate in the
east coast area from Trenton, New Jersey, to Artificial Island, including Wilmington.
Harbor Commissioners is not a party to this contract.
Cathcart further testified that sometime in June 1960, he was visited in his office
at the marine terminal by Messrs. James T. Moock, vice president of ILA, Clifford
Carter, vice president of the ILA Atlantic Coast District, Arthur Wilson, president
of Respondent 1694, and St. Clair Parsons, an organizer for Respondent 1694; that
Vice President Moock inquired about the operations of cold storage facilities to
be established at the Harbor Commissioners' marine terminal, what commodities
would be handled, and "who was going to perform certain phases of the operation";
that he (Cathcart) replied that the operator was Transit Freeze Corporation; that
he "did not know with whom they were going to do business"; that "the Harbor
Commissioners was going to supply the labor to do certain functions of the
operation," that:
At that meeting, Mr. Moock told me that this was a new type cargo coming
into the port, and that inasmuch as the ILA was performing the same services
in New York and Philadelphia, that they also wanted to-that they were going
to do the same thing in Wilmington.
I think he further stated that unless he got the work in Wilmington the ships
would not work. [Emphasis supplied.]
Q. (By Mr. SNYDER.) What did you say?
A. I told him that I was not concerned how they operated in New York, or
how they were working in Philadelphia; that the only thing I was concerned with
was the manner in which we operated in Wilmington. And that the Board was
responsible for getting the business into the port, and to enter into agreements,
and would operate according to the customs.
Apparently Cathcart's callers were not in complete agreement for about 2 weeks
later Wilson and Parsons (the president and an organizer of the Respondent 1694,
respectively) again called at Cathcart's office and informed him that they "did not
agree with Mr. Moock's stand" because Local 1694 had no interest in obtaining
work previously done by members of the Teamsters.
About a week later, Cathcart again was called upon to confirm the position he
had taken at Moock's first visit. The representatives of Transit Freeze brought
representatives of Erb Strapping Company to his office explaining that Erb Strapping,
a firm which did coopering of frozen cargo, desired to obtain this work in connection
with vessels unloading at the Transit Freeze. According to Cathcart:
They were brought down to my office by Mr. Scott and were introduced to
me. And they wanted to know if they could come into the port and do the
stamping and servicing of frozen meat. I told them they could not, primarily
because they were members of the Philadelphia Marine Trade Association.
And that by virtue of that, their agreement with the PMTA, that they would
have to employ ILA labor. And if I permitted them to do that, then I would be
causing a jurisdictional dispute between members of the Teamsters Local 107.
Cathcart further testified that "shortly after" the Erb incident, in late June or
early July 1960, he again met with the Respondents' representatives, Carter, Wilson,
Parsons, and others, that:
Again, the substance of the meeting was that the Local officials of the ILA
took the stand or took the position that they were not interested in obtaining any
of the work done by the Teamsters' Union. The thing they were primarily con-
1198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cerned with was obtaining the work done by the Local 1242 in Philadelphia,
clerking and checking work.
Cathcart further testified:
And we discussed the entire handling operation of the frozen cargo after
it was discharged from the vessel.
Q. Why did you discuss .that?
A. Because that was the purpose of the meeting. The purpose was to differ-
entiate between what Mr. Moock had demanded and what the local officials'
feelings on the subject were.
During the course of the meeting Cathcart left the room, to permit the Respondents'
representatives to confer privately:
And then after about five or ten minutes had elapsed, I was called back into
the office, and Mr. Wilson told me, "Forget all about, Joe, it is all ,taken care of.
There are not going to be any labor problems."
I thanked them all and we all shook hands, and they left the office.
However, it appeared that his callers were not in control of the situation for either
that day or sometime later Moock, together with Wilson and Parsons, again called
on him, and:
At that time he [Moock] took a more adamant stand on the whole situation,
and he told me then in very few words, clear cut, that they were going to have
that work or the ships would not work; that the ILA was going to get that work
or the ships were not going to work.
Q. He used the expression "that work"?
A. Yes. He was referring at that time to the handling, inspection, and stamp-
ing of frozen cargo.
A final meeting between Cathcart, Carter, Wilson, and Parsons took place before any
ship had arrived to be unloaded for Transit Freeze facilities. At this final meeting
the Respondents' representatives told Cathcart they were "under instructions from
Jimmy Moock that they were not to work cargo ships" of frozen meat. Cathcart
testified he was told by the Union's representatives:
They gave specific instructions to 1694 not to work the ships. They were
orders from Mr. Moock by telephone conversation to Mr. Carter.
If I recall Mr. Carter said regardless of his feelings he had to carry out
instructions.
Cathcart's testimony with respect to the above-related meetings (all prior to the
unloading of any vessel into the Transit Freeze facility) was not controverted and is-
credited.
Robert J. Hughes testified he is Philadelphia manager of Norton-Lilly and Com-
pany, Inc., who are steamship agents representing various steamship companies whose
vessels dock at the Wilmington marine terminal operated by Harbor Commissioners.8
Hughes testified that in ordinary business practice before the arrival of a Norton
principal's vessel in Wilmington, he would arrange with Harbor Commissioners for-
berth space and certain labor and services, the bills for such labor and services being
sent to Norton by Harbor Commissioners. He further testified that Norton con-
tracted with a stevedoring company to actually unload or load the cargo, the stevedor-
ing company generally used by Norton being Murphy-Cooke and Co. He further
testified:
Murphy-Cooke and Company are members of the Philadelphia Marine Trades
Association, and are, therefore, obligated under that contract between the Phila-
delphia Marine Trades Association and the ILA to use ILA labor for the dis-
charging and loading of ships in the Trenton to Artificial Island area.
and that the agreement to use ILA members was an agreement between Murphy and
the Respondents, not between Murphy and Norton whose contract with Murphy "does
not stipulate what type of labor is to be used."
Hughes testified that on June 8, 1960, he had a conversation with ILA Vice Presi-
dent Moock in his (Hughes) office, the conversation lasting "five or ten minutes";
that
Well, this was a very brief meeting. I would say it did not last more than five or
ten minutes. Mr. Moock asked me if I had heard about the new freezer unit
8 The parties stipulated that Norton is engaged in commerce within the meaning of'
the Act.
INTERNATIONAL LONGSHOREMEN'S ASSOCIATION, ETC. 1199
being constructed or going to be constructed at Wilmington. I told him I had.
Mr. Moock said he felt the work in connection with this operation belonged to
the ILA. And he referred to the labor used in opening and closing the cargoes
for the Federal meat inspector and the transfer of the meat back to the freezer.
And Mr. Moock said he was then going to Wilmington to discuss the matter with
Mr. Cathcart. [Emphasis supplied.]
that on August 11, he participated in a four-way telephone conversation with Alfred
Corry, secretary-treasurer of the Association, Cathcart, and Wilson (president of
Respondent 1694) "about the situation at Wilmington in connection with the [ex-
pected] arrival of the first meat ship"; that during the conversation Corry asked
Wilson "about the labor for transferring the meat back to the freezer; that
. Mr. Wilson said he wasn't interested in the warehouse work; that it only
involved four or five men; and he could not see tying up 200 men for the sake
of four or five men for that operation.
Except for the conversation with Moock on June 8, and the telephone conversation
of August 1.1, Hughes had no conversation with any representatives of the Respond-
ents until August 23, which conversation will be discussed at a later point herein.
Cathcart testified that about a month prior to the arrival of any vessel carrying
cargo to be placed in the Transit Freeze facility he conferred with Hughes "gen-
erally" regarding the intended handling of frozen meat at the Harbor Commissioners'
marine terminal and that:
. Primarily the method we proposed to handle it. I told him that it would
be discharged the same as we would any other commodity. It would be dis-
charged from the vessel by the stevedores and placed on pallets, and we would
take it away from the longshoremen after they finished with it.
At the same time, Cathcart also told Murphy "the manner in which it [the handling
of frozen meat cargo] was going to be done." He testified:
I told him it would be placed on pallets at shipside as we did any other type
of cargo. And we would take it away in the same manner that we did any
other cargo.
The Trial Examiner then asked the witness:
The normal manner is that the stevedores put the merchandise from the ship on
the dock at the side of the ship, and then you people move it to the warehouse?
The answer was: "That is right."
Ralph E. Melvin, vice president and treasurer of Transit Freeze, testified that
sometime in June 1960, the representatives of the Respondents, namely, Moock,
Carter, Parsons, and Wilson, called at his office; that Moock asked him to what
extent Transit Freeze would use labor furnished by Harbor Commissioners, and was
told that "all the labor would be obtained from them," to which Moock replied:
that if Mr. Cathcart supplied the labor, it would evidently be Teamster
labor, and it would constitute an unfair labor practice, and we would have
trouble on the port.
Moock testified that at the above meeting he was merely told that Transit Freeze
had no contract with respect to labor but that "it looked like any labor we are going
to hire will be through the Terminal." Moock testified he told Melvin:
In the Port of Philadelphia they [the Respondents] shipped it right across
the dock. They stamped it for the Department of Agriculture. Then it went
from there over into a refrigerated truck where it was taken away. And the
ILA's work ended there when the ILA put it in the truck. It then became 107's
work.
The Trial Examiner accepts Melvin's version of the conversation and is convinced
that Moock intended thereby to influence Harbor Commissioners through Transit
Freeze.
Cathcart testified that on August 22, the SS Pipiriki docked at Harbor Commis-
sioners' terminal with a cargo of frozen meat; that Norton, the ship's agent, had
employed Murphy to unload the cargo, which was to be stored in the Transit Freeze
facility. Norton apparently had also hired "checkers" for the unloading.
Cathcart further testified that on the preceding day he had learned, through a tele-
phone call, that the ILA members employed by Murphy would not go to work until
a meeting took place between the Respondents ' representatives and those of Local
1200 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
107 Teamsters; that upon his arrival at the dock he met with Moock, Wilson, and
Carter, but that:
Prior to their [Teamster officials] arrival, I had walked into the dock office
and talked to Mr. Moock. I asked him what they were going to do. He said
they were not going to do anything until they had obtained their demands.
After this, Craig and Crawford who were representatives of Local 107, Teamsters
Union, the officials of Transit Freeze, and representatives of Murphy as well as
many stevedores who were ILA members arrived; that in the presence of the group
Moock told the Teamsters representatives "there was no quarrel with the Teamsters.
They wanted-they were holding their grievances against Murphy, the stevedore."
Cathcart further testified he then suggested that the various union officials and rep-
resentatives of Murphy and Transit Freeze adjourn to Harbor Commissioners' board
room for a meeting. He testified:
To the best of my recollection, everyone gathered in the meeting room, and I
started the meeting by asking Mr. Moock what his intentions were. And he said
they were not going to work the ship.
I asked him why. And he told me that he had no quarrel or no argument
with me; that his quarrel and argument was with Murphy-Cooke Stevedoring
Company. And I asked him why he had a quarrel with them. And he had a
copy of the contract of the PMTA and the ILA, and he shook that, and he said
because Murphy-Cooke was not living up to the terms and conditions of this
contract.
According to Cathcart "it was made very clear to me" that Moock wanted the Re-
spondents' members to be assigned all the work of inspection and coopering of frozen
cargo, as well as warehouse and trucklift work which Moock called a "new operation,"
but that the work so claimed by Moock had been assigned to employees of Harbor
Commissioners who are represented by Local 107 Teamsters
As indicated the Pipiriki was not unloaded until after the temporary restraining
order was issued .9
Robert J. Hughes (Norton's manager) testified that on August 23 he received a
telephone call from his head clerk at Wilmington who told him that the Pipiriki was
not being unloaded; that he then spoke to Moock by telephone:
.. . And I ask Mr. Moock why the ship wasn't working, or what the trouble
was. And Mr. Moock said that there is the question of the labor for open-
ing and closing the packages, and the labor for taking the meat back to the
freezer. And he said there is also the question of the clerks and checkers.
But he said that is our problem.
He also mentioned something about Murphy-Cooke and Company's chisel
drivers. But I am not quite clear just what that had reference to.
Ralph E. Melvin, vice president of Transit Freeze, testified that prior to Cathcart's
arrival at the dock on August 23, he overheard a conversation on the steps of the
dock office between Moock and Crawford, "president of Local 107, Teamsters in
Wilmington," regarding "coopering and stamping and moving of the cargo beside
the freezer." He testified:
Well, Mr. Moock asked Mr. Crawford if he was going to give that work to the
ILA. And Mr. Crawford retaliated with he wouldn't sacrifice a single man.
Q. (By Mr. SNYDER.) Did Mr. Moock reply to Mr. Crawford at that point?
A. He said that he did not-he said that if his people did not get that work,
that the ship would not work. I think at that point-or just before Mr. Moock
said that, I think Mr. Wilson asked Mr. Moock, "Do we go to work or don't we
go to work?" And Mr. Moock replied, "If our people don't get that work, we
won't work the ship."
With respect to the later meeting in the Harbor Commissioners' board room,
Melvin corroborated Cathcart's account but added:
It became a very heated argument then between the persons in the room.
And Mr. Cathcart later asked Mr. Moock if he wanted him to break his con-
tract with the Teamsters' Union in order to give his people the work, to which
there wasn't any reply by Mr. Moock. He then turned to Mr. Crawford
and asked him if he wanted to relinquish that work for Mr. Moock's request.
And he [Crawford] again stated that he would not sacrifice one man for that
job.
O The U.S. district court issued a temporary restraining order on August 27, 1960.
INTERNATIONAL LONGSHOREMEN'S ASSOCIATION, ETC. 1201
Moock testified that before the arrival of Cathcart or Melvin, "right between the
office and the ship" in the presence of Carter, Parsons, and Wilson, he (Moock) spoke
to Murphy:
I asked, I said, "Well, how is the operation going to work? Is it going to op-
erate the same as in Philadelphia?"
He said, "Yes, it is."
I said, "Well, you know in Philadelphia we take the cargo away from the gang-
way. It is then taken and put on the dock where the cases are taken apart.
The Department of Agriculture man examines it, approves it, and it is then
stamped `Okay.' It is then recoopered by the ILA. And it is then taken away
from that spot and put into the trucks, the refrigerated trucks, to go into storage."
He said, "As far as I know, all Cathcart is going to permit me to do is to
drop it in the gangway."
I said, "Well, my argument is not with Cathcart. My argument is with you,
Dan. All I am asking you to do is to live up to your contract with the ILA."
Moock further testified:
Later on I told Mr. Murphy that "I am not going to permit these men to start
to work a ship unless we get the work we are entitled to."
Moock testified that on the arrival of the Teamsters' representatives on the dock they
asked him, "Are you going to get the ship started?" To which he replied:
I said, "The ship is not going to get started until we get the work we are
entitled to." I said, "I have no dispute with you." I said, "You look out for
your contract. I am trying to look out for mine."
Moock also testified that at the meeting in the Harbor Commissioners' board
room his chief paritcipation consisted of a statement to Cathcart to the effect that
he had no quarrel with any one except Murphy who he insisted "live up to the con-
tract they have with the ILA."
Conclusion
As herein mentioned 10 the Respondents challenge the right of the Board to proceed
on a charge filed by Harbor Commissioners. The Trial Examiner finds no merit
in this contention for the reason that 8(b) (4) makes it unlawful for a labor organiza-
tion's "forcing or requiring any person, etc." As pointed out in section III, A, hereof,
the law as developed in the original 8 (b) (4) (A) (prior to the present effective amend-
ment) applies with equal force to the present 8(a) (4) (i) and (ii) (B).
Thus under 8(b) (4) (A) a railroad, subject to the Railway Labor Act and not an
"employer" under the Act, was nevertheless held to be a "person." 11
A county government has been held to be a "person," although not an "employer,"
within the meaning of the Act 12
As hereinabove found and discussed in section III, A, of this report in interpreting
8(b)(4)(A), the Board, with court approval, has held that strike action or the
inducement thereof to compel an employer to abide by contract provisions, where
such compliance would require the employer to cease doing business with another
employer was violative of the Act,13 unless the contract itself makes a clear, en-
forceable assignment of work,14 is an unfair labor practice.
10 See footnote 3, supra
"Local Union No. 25 of the International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, et at v. New York, New Haven CC Hartford Railroad
Co, 350 U.S. 155
>a N L R B. v. Local 313, International Brotherhood of Electrical Workers, AFL-CIO
(Peter D. Furness Electrical Co.), 254 F. 2d 221 (C.A. 3).
13 See footnote 7, supra
11 United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting
Industry of the United States and Canada, AFL, Local Union No 177, et al . (Carrier
Corporation), 111 NLRB 940, 946; International Union of Operating Engineers, Local
825, AFL-CIO (Building Contractors Association of New Jersey), 118 NLRB 978; Local
675. International Union of Operating Engineers, AFL-CIO, et al. (Port Everglades Ter-
minal Company, Inc), 116 NLRB 28, 38; United Association of Jouineymen and Ap-
prentices of the Plumbing and Pipefitting Industry of the United States and Canada,
Local 428, AFL (Philadelphia Association), 108 NLRB 186, 200; Los Angeles Building
and Construction Trades Council, A.F.L., et at. (Westinghouse Electric Corporation),
83 NLRB 477, 481-482. See also Douds v. International Longshoremen's Association,
Ind, et al (Abraham Kaplan), 242 F. 2d 808, 810 (C.A. 2).
649856-63-vol. 137-77
1202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Respondents stated on the record:
Mr. FREEDMAN : The issues which are set up , sir, and our position is that this
is a primary dispute between ILA and Murphy -Cooke and Norton Lilly, the
people with whom ILA are in contractual relationship . We have no quarrel
with the Board of Harbor Commissioners . We did not make any claim on
them . We don 't make any claim on them today. We do have a contract with
Murphy-Cooke and with Norton Lilly. And we asked them to live up to the
contract . That is one of the issues we are pressing right now.
The Respondents amplify this argument in their brief.
The argument is based upon the following clause in the contract between the As-
sociation and the Respondent ILA, which binds Norton and Murphy by reason of
their Association membership , but to which contract Harbor Commissioners is nor
in any manner a party:
The Employer-members of the Association agree that they will not directly
perform work done on a pier or terminal or contract out such work which
historically and regularly has been and currently is performed by employees
covered by this agreement or employees covered by ILA craft agreements
unless such work of such pier or terminal is performed by employees covered
by ILA agreement . [ Emphasis supplied.]
Relying on this contract clause the Respondents argue that "historically regularly
and currently" frozen meat unloaded from a ship at Harbor Commissioners ' marine
terminal in Wilmington must be handled by labor it represents , from the ship's hold
to the door of the Transit Freeze building housing the freezing unit, because both by
actual practice and custom in the port of Philadelphia frozen meat is so handled.
There meat is taken exclusively by the Respondents ' members from the hold, pack-
ages are opened and closed (coopered ) during inspection , stamped, and taken ,to the
"final place of rest" which in Philadelphia is the door of a refrigerated railroad car
or truck. The Respondents argue that as the only freezing unit for storage actually
at any harbor facility in any port covered by its contract with the Association is
the one in Wilmington operated by Transit Freeze (not a party to the Association-
ILA contract ) the "place of rest" for frozen cargo is the Transit Freeze door which
according to the Respondent 's argument replaces the railroad car or truck at the
Philadelphia dock.
Harbor Commissioners , by testimony of Manager Cathcart , contends that frozen
meat cargo should be handled as general cargo meaning that the "final place of
rest" in shipside to which point the Respondents ' members move it and from point
cargo is then handled by Harbor Commissioners' employees, who are represented
by the Teamsters Union under a contract between Harbor Commissioners and the
Teamsters.
It is clear that no pattern has been set for the handling of frozen cargo at Harbor
Commissioners ' marine terminal . The Pipiriki was the first vessel which sought to
make use of the Transit Freeze facility , prior to this two cargos of frozen meat had
been unloaded at Harbor Commissioners ' marine terminal , one vessel being unloaded
December 16-17, 1957, and the other a year later, December 29-30-31, 1958.
Neither vessel was destined for Wilmington but made the port because it could not
be accommodated at the Philadelphia port.
Cathcart testified , credibly, that when these two vessels were unloaded , the work
other than the stevedoring was performed by Harbor Commissioners ' employees.
According to Cathcart:
I actually saw the carcasses of mutton . There is a cheesecloth cover or
stocking that is over the carcass . And I actually saw the employees of the
Board of Harbor Commissioners take knives and rip the stocking or the cover
on the carcasses for the Department of Agriculture employees to inspect it.
Cathcart further testified that Harbor Commissioners "specifically bought knives"
for their employees to use in the work . He further testified:
Q. And what happened after these carcasses were ripped and they were in-
spected? What happened to them?
A. First they were taken from shipside after they were placed on pallets by
members of the ILA and taken to the back of the building and spread out so
the proper inspection could be made. And then after inspection was made, they
were picked up again by members of the Teamsters Union , employees of the
Board of Harbor Commissioners , and then moved directly to refrigerated rail-
road cars.
They were loaded by members of the Board of Harbor Commissioners.
INTERNATIONAL LONGSHOREMEN'S ASSOCIATION, ETC. 1203
Turning now to the Respondents' contention (as repeatedly stated by International
Vice President Moock on the day the Pipiriki was to be unloaded) that the Re-
spondents' "quarrel" was with no one other than Murphy, against whom it was
taking primary action to cause Murphy to carry out the terms of the Association
contract which bound Murphy and the Respondents.
The Trial Examiner can find no merit in this contention.
There is no dispute that the Respondents first contacted Harbor Commissioners
in their effort to have all the labor used in handling frozen cargo intended for stor-
age in the Transit Freeze facility assigned to its members. The Respondents' de-
mands and statements that ships would not be unloaded unless these demands were
met, as delivered to Cathcart by Moock, clearly fall within the ambit of the pro-
scription of Section 8(b) (4) (ii) and is such conduct found violative of Section
8 (b) (1) and 8 (b) (1) (A) of the Act before the Landrum-Griffin amendment, and
applicable herein as pointed out in the discussion in section III, A, of this report.
The above finding applies with equal force to the statements made by the Re-
spondents to Norton, "The words `induce and encourage' are broad enough to in-
clude every form of influence and persuasion." 15
Clearly when Harbor Commissioners decided to reserve the handling of frozen
meat, from the time it was placed on pallets by members of the Respondents, to its
(Harbor Commissioners') own employees, in the absence of any contract with the
Respondents with respect to such labor, Harbor Commissioners was exercising its
right as the one who controlled the operation of the Wilmington marine terminal.
It seems logical that if the Respondents sought a change in the arrangement for
the use of labor, as made by Harbor Commissioners, the Respondents would turn
to Harbor Commissioners, as in fact they did, it was only after the Respondents
were unsuccessful that Moock resorted to the use of a form of words intended to
show that the ultimate pressure of a strike was not directed against any other than
Murphy who clearly had no right to assign the labor for all the work in unloading
the Pipiriki.
The Trial Examiner believes if he were to accept the Respondents' contention that
its primary, in fact its sole object, was to cause Murphy to abide by the Association
contract (as interpreted by the Respondents) and that its action totally disregarded
Harbor Commissioners and Norton, naivete is scarcely the proper term to be ap-
plied to him.
Upon all the evidence, the considered conclusion of the Trial Examiner is that
Harbor Commissioners was the Respondents' primary target and that despite ILA
Vice President Moock's repeated protestations to the contrary, Murphy and Norton
were secondary to the dispute and the Respondents' conduct.
In granting a temporary injunction in a case quite similar to the instant matter,16
the Honorable J. Skelly Wright, United States district judge for the United States
District Court, Eastern District of Louisiana, New Orleans Division (using language
more clearly and much more effectively than can the Trial Examiner), stated:
The Union's position is that its action is merely directed to compelling Balti-
more to abide by its agreement to subcontract work only to firms hiring union
labor. The NLRB maintains that even if Baltimore agreed to any such under-
taking, the "subcontractor clause," as it is commonly termed cannot be en-
forced in this way, and that the Union's conduct violates the "secondary boy-
cott" provisions of the Taft-Hartley Act, Sections 8(b) (4) (A) and (B), as
amended by the Labor Reform Act of 1959. 29 U.S.C. § 158(b) (4) (A) and
(B) (Pocket Parts). The engineers reply that their only quarrel is with Balti-
more, which has breached its contract, not Talley, toward whom it stands indif-
ferent, and that, accordingly, their action cannot properly be labeled a secondary
boycott.
If the question were to be resolved under a general statute which vaguely
prohibited "secondary" activity, this would be a close case. For, while the
Union perhaps exaggerates its indifference to organizing Talley, nevertheless,
there is strong reason to conclude that its primary dispute is with Baltimore for
refusing to abide by the so-called "subcontractor" clause, and that the main
purpose of the Union's activities is not to penalize Talley, but to compel Balti-
more to live up to its agreement.
Under the circumstances, it would ,be difficult to label Baltimore a mere "neu-
tral" or "secondary" employer being "used" by the Union to bring indirect
pressure on Talley, as the "primary" object of the dispute. But the Taft-Hartley
16 International Brotherhood of Electrical Workers, Local 501, et al. (Samuel Langer) v.
T L.R B., 341 U.S 694.
18Lebus v . International Union of Operating Engineers , Hoisting and Portable, Local
Union 406 (Baltimore Contractors , Inc ), 188 F. Supp. 392 (D C. E. La ).
1204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Act is not vague, and , right or wrong, it broadly prohibits a strike or other
coercive measure "where . . . an object thereof is . . . forcing or requiring
any person . . . to cease doing business with any other person . .." 29 U.S.C.
§ 158(b)(4). There is no room for speculation: the policy of the Act is to de-
clare such action unlawful, regardless of the cause or the motive.
Likewise, the fact that Harbor Commissioners, the primary object of the Respond-
ents' action, and Murphy and Norton , the secondary source through which the pri-
mary ,pressure was applied , were simultaneously engaged in the same general venture
at the same location , does not place the Respondents' activity outside of the second-
ary boycott category.17 Nor can the Trial Examiner accept the Respondents' con-
tention that it did not call a strike of its members in connection with the unloading of
the Pipiriki. The Trial Examiner is mindful of testimony by the Respondents that
during Moock's argument with the representatives of Murphy, Norton, and Local
107 Teamsters Union, in the dock office the morning the Pipiriki was to be unloaded,
a great many of the stevedores, all of them Respondents ' members, who were to do
the actual work, gathered around the open door and the open windows where they
could presumably easily overhear the entire conversation.
Arthur Wilson (president of the Respondent 1695) testified that:
Then, naturally the men began to question us about what was going on.
They said, "We are supposed to carry the meat to the freezer door, and we
are not carrying it to the freezer door. What is happening here?"
We told them what was going on.
They said, "If this is the case, we are not going to do a damned thing. We are
going to stand here and wait and see if we get the work."
According to Wilson, thereafter, "We just didn't do anything about it," and the
objecting stevedores did not unload .the ship, nor was it unloaded until the temporary
injunction issued.
That the membership of Local 1694 is composed of such astute shore-based "sea
lawyers" who so quickly formed an opinion as to the meaning of the disputed con-
tract clauses, is open to question.
The record is not clear as to whether or not the stevedores who allegedly refused
to unload the Pipiriki had actually been selected for hiring or hired under the "gang
system" or "shape-up" prevailing in the industry, however, actually or not assigned
to work the Pipiriki by the Respondent 1694, as provided by the Association con-
tract, it is fair to assume that as they were of the group of the Union's membership
customarily called for ,this kind of work by Local 1694, an employer-employee rela-
tionship existed between them and Murphy in contemplation of law. The "sea
lawyers" may have known this. In any event, it is the opinion of the Trial Ex-
aminer, that all of those who allegedly refused to work understood that as loyal union
members they should not unload the Pipiriki in the face of the expressed objection
of their International vice president.
The Trial Examiner is therefore convinced, from all the evidence as a whole, that
from any reahstic point of view he must conclude that the Respondents struck the
unloading operation of the Pipiriki and thereby did induce and encourage employees
of Murphy (a secondary employer) to engage in a strike or refusal to work in the
course of their employment in violation of the Act, more particularly Section 8(b)
(4) (i) thereof, one of the objects of the Respondents' conduct being to force Murphy
to cease doing business with Harbor Commissioners.
The Trial Examiner is of the opinion that insofar as the Association contract barred
Murphy and Norton from performing services at Harbor Commissioners' marine
terminal in conjunction with other labor, assigned in regular course by Harbor Com-
missioners , the matter is indistinguishable from "hot cargo" agreements whose pro-
scription is one aim of the Landrum-Grit un amendments.
In a decision, arising under the Act before the amendment, the Board found that
a "hot cargo" contract between a striking union and a secondary employer was not a
valid defense to a charge that the union involved in the dispute had violated the then
secondary boycott Section 8(b)(4)(A).18 The Board held:
It has by this time become axiomatic that the exclusive grant of authority
to the Board to prevent unfair labor practices affecting commerce was to insure
11 International Brotherhood of Electrical Workers, Local 501, et al. (Samuel Langer) v.
AT.L R B, 181 F. 2d 34, 37 (C.A 2), affd 341 U S. 694.
Is International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, General Drivers and Helpers Local No. 544, etc. (McAllister Transfer, Inc.),
110 NLRB 1769.
INTERNATIONAL LONGSHOREMEN 'S ASSOCIATION, ETC. 1205•
that the existence of some private agreements at odds with the statute does not
preclude the Board from acting in the public interest . Moreover , this principle
is completely consonant , both in spirit and letter, with the broad rule in other
areas holding private agreements invalid if found to contravene the public in-
terest. Liberty of contract is always subject to the limitation that the agreement
must not be against public policy , and if a contractual surrender or modifica-
tion of such a fundamental right as that of the individual to contract is contrary
to the public interest , it is ineffective.
That the statutory protection of the public interest cannot be waived by the
agreement of the parties is equally well established. . .
In the instant case, if any waiver occurred , it was a waiver by the secondary
employers only. The primary employer ( McAllister ) did not waive . Nor can
it be said , in the light of the established law, that the secondary employers were
able to effect a waiver on behalf of the public. The Board , in these circum-
stances, should not permit private parties to accomplish by agreement that which
is clearly deemed inimical to the public interest by congressional enactment.
[Emphasis supplied.]
Such a clear and unequivocal expression of public policy should dispose of the Re-
spondents ' contractual defense.
Concluding Findings
Upon the entire record, the evidence considered as a whole, and his observation
of the witnesses , the Trial Examiner is convinced and finds that by the conduct of the
Respondents , with respect to Harbor Commissioners , Murphy, and Norton, all as
detailed hereinabove , the allegations of the complaint that the Respondents have en-
gaged in unfair labor practices within the meaning of Section 8 (b) (4) (i) and (ii) (A)
and 8 (b) (4) (i) and ( ii) (B) of the Act, are fully sustained as alleged:
In furtherance and support of ,their demands set forth above, Respondents have
induced and encouraged individuals employed by Murphy and Norton to engage
in a strike or a refusal to discharge the cargo of the PIPIRIKI and to refuse to
perform services on behalf of Murphy at the Wilmington , Delaware terminal, and
have threatened , coerced and restrained Murphy, Norton and Harbor Com-
missioners concerning work at said terminal.
Objects of the acts and conduct of Respondents set forth . . . above , are: (1)
to force or require Murphy and Norton to enter into an agreement whereby
Murphy and Norton would cease or refrain or agree to cease or refrain from
handling, using , selling, transporting , or otherwise dealing in the products of any
other employer , or to cease doing business with any other person, which agree-
ment would be proscribed by Section 8(e) of the Act ; (2) to force or require
Murphy and Norton to cease using, selling, handling , transporting , or other-
wise dealing in the products of another or to cease doing business with any
other person or persons ; and (3 ) to force or require other persons to cease doing
business with the Harbor Commissioners.
The Trial Examiner further finds that by the acts described hereinabove, and by
each of said acts, the Respondents did engage in and are engaging in, and did
induce and encourage and are inducing and encouraging individuals employed by
persons engaged in commerce or in an industry affecting commerce , to engage in, a
strike or a refusal in the course of their employment to use, manufacture , process,
transport, or otherwise handle or work on any goods, articles, materials , or commodi-
ties and to perform services , and did threaten , coerce, and restrain , and are threat-
ening, coercing , and restraining , persons engaged in commerce or in an industry
affecting commerce , where objects are: forcing or requiring an employer to enter
into an agreement which is prohibited by Section 8(e) of the Act and forcing or
requiring persons to cease using , selling, handling , transporting , or otherwise dealing
in the products of any other producer , processor , or manufacturer, and to cease
doing business with other persons, and thereby did engage in and are engaging in
unfair labor practices within the meaning of Section 8(b)(4)(i ) and (ii) (A) and
8(b)(4)(i ) and (ii ) ( B) andSection2(6) and (7) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities and conduct of the Respondent Unions as described above, occurring
in connection with the operations of Harbor Commissioners, Murphy, and Norton
described in section I, above, have a close, intimate , and substantial relation to
trade, traffic, and commerce among the several States of the United States and
1206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
within the District of Columbia, and tend to lead to labor disputes burdening and
obstructing commerce and the free flow of commerce.
V. THE REMEDY
Having found that Respondents have engaged in certain unfair labor practices,
the Trial Examiner recommends that they cease and desist therefrom and take
certain affirmative action designed to effectuate the policies of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. The Board of Harbor Commissioners (Wilmington, Delaware), is a person
within the meaning of the Act, and is engaged in operations affecting interstate
commerce.
2. Murphy-Cooke and Co., stevedores, is engaged at the port of Wilmington,
Delaware, and elsewhere in performing stevedoring services. Murphy is engaged
in activities affecting commerce.
3. Norton-Lilly and Company, Inc., is engaged at the port of Wilmington, Dela-
ware, and elsewhere in performing services as ships' agents. Norton's activities
affect commerce.
4. (a) The Respondent ILA and the Respondent Local 1694 are labor organiza-
tions within the meaning of Section 2(5) of the Act.
(b) At all times material herein, Respondent Moock and Respondent Carter and
Arthur Wilson are, and have been agents and representatives of Respondent ILA
and Respondent Local '1694.19
5. By Moock's statement to Cathcart to the effect that frozen meat cargo would
not be unloaded unless all the labor in connection with its handling from the ship's
hold to the Transit Freeze door be performed by the Respondents' members; by
Moock's stated reasons to Hughes as to why the Pipinki was not being worked by
the Respondents' members; by Moock's statement to Melvin of Transit Freeze that
the assignment of labor by Harbor Commissioners in connection with the unloading
of frozen meat meant "trouble on the port," which statement the Trial Examiner
finds, as made to Melvin, was intended as pressure on Harbor Commissioners; and
by causing a strike of their member employees of Murphy, all of which conduct was
made for a purpose proscribed by the Act, the Respondents have engaged in conduct
violative of Section 8(b) (4) (i) and (ii) (A) and 8(b) (4) (i) and (ii) (B) of the Act.
6. The aforesaid unfair labor practices affect commerce within the meaning of
Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
19 Considering their status , the Trial Examiner finds Moock , Carter, and Wilson as hav-
ing engaged in unfair labor practices but will not recommend that they be held to the
remedy
Mrak Coal Company , Inc. and Gary A. Smart . Case No. 19-CA-
2347. July 6, 1962
DECISION AND ORDER
On April 18, 1962, Trial Examiner C. W. Whittemore issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices, and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the attached Interme-
diate Report. Thereafter, the Respondent filed exceptions to the
Intermediate Report and a supporting brief.
137 NLRB No. 127.