International Longshoremen's & Warehousemen's Union

National Labor Relations Board - Board Decisions

Mar 18, 1954

107 N.L.R.B. 1637 (N.L.R.B. 1954)

INTERNATIONAL LONGSHOREMEN'S & WAREHOUSEMEN'S UNION 1637
APPENDIX A
NOTICE
TO ALL MEMBERS OF LOCAL 155, NEW YORK KNITGOODS
WORKERS UNION, ILGWU, AFL AND TO ALL EMPLOYEES
OF MILO TEXTILE CORPORATION, ITS SUCCESSORS OR
ASSIGNS
Pursuant to the recommendations of a Trial Examiner of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor Relations Act, as amended,
we hereby notify you that:
WE WILL NOT cause or attempt to cause Milo Textile Corporation or any other
employer to discriminate against any employee because of failure to support actively
activities of our organization or cause or attempt to cause the said Company or any
other employer to discriminate against employees in violation of Section 8 (a) (3) of the
Act.
WE WILL NOT restrain or coerce employees in the exercise of rights guaranteed in
Section 7 of the Act, except to the extent that such rights may be affected by an agree-
ment requiring membership in a labor organization as a condition of employment, as
authorized by Section 8 (a) (3) of the Act.
WE WILL make Kamil Zrake whole for any loss of pay he may have suffered because
of the discrimination against him.
LOCAL 155, NEW YORK KNITGOODS
WORKERS UNION, ILGWU, AFL,
Labor Organization.
Dated ................ By................... ....................................
.
.... .....................
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date hereof, and must not
be altered , defaced, or covered by any other material.
INTERNATIONAL LONGSHOREMEN'S & WAREHOUSEMEN'S
UNION, LOCAL 48 and UPPER COLUMBIA RIVER TOWING
COMPANY AND RIVER TERMINALS COMPANY. Case No.
36-CD-14. March 18, 1954
DECISION AND DETERMINATION OF DISPUTE
This proceeding arises under Section 10 (k) of the Act, which
provides that " Whenever it is charged that any person has en-
gaged in an unfair labor practice within the meaning of para-
graph ( 4) (D) of section 8 (b), the Board is empowered and dir-
ected to hear and determine the dispute out of which such unfair
labor practice shall have arisen. . . "
On November 2, 1953, Upper Columbia River Towing Com-
pany, herein called Upper Columbia, and River Terminals Com-
pany, herein called River Terminals, sometimes jointly called
the Companies, filed with the Regional Director for the Nine-
teenth Region a charge alleging that International Long-
shoremen's & Warehousemen ' s Union, Local 48, herein called
107 NLRB No. 333.
1638 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Respondent , has engaged in and is engaging in certain
activities proscribed by Section 8 (b) (4) (D) of the Act.
Thereafter , pursuant to Section 10 (k) of the Act and Sections
102.71 and 102.72 of the Board's Rules and Regulations, the
Regional Director investigated the charge and provided for a
hearing upon due notice to all parties . The hearing was held
before Robert E. Tillman, hearing officer, on December 8 and
9, 1953. All parties appeared at the hearing and were afforded
full opportunity to be heard , to examine and cross - examine
witnesses , and to adduce evidence bearing on the issues.'
The rulings of the hearing officer made at the hearing are
free from prejudicial error and are hereby affirmed. All
parties were afforded an opportunity to file briefs with the
Board.
Upon the entire record in the case , the Board finds:
1. The Employer's business
Upper Columbia is a State of Washington corporation with its
principal office at Vancouver, Washington . It operates under a
permit from the Interstate Commerce Commission , and is en-
gaged principally in the transportation of petroleum and lumber
on the Columbia River in the States of Washington and Oregon.
Upper Columbia' s gross revenue during the past year was in
excess of $ 400,000.
River Terminals handles the interchange of products from
shore facilities to floating equipment and vice versa . Both Com -
panies have the same ownership and management . Employees
of the two Companies are often used interchangeably.
The I. L. W. U. contends that the impact of the particular
dispute upon commerce is so slight , the Board should not assert
jurisdiction . We find no merit in this contention . The Board
determines jurisdiction upon the basis of the overall operations
of a primary employer.2 Accordingly, we find that Upper
Columbia and River Terminals are engaged in commerce with-
in the meaning of the Act, and that it would effectuate the
policies of the Act to assert jurisdiction herein.
2. The labor organization involved
International Longshoremen ' s & Warehousemen ' s Union,
Local 48, is a labor organization within the meaning of the Act.
3. The dispute
(a) The facts
On October 15, 1953 , Upper Columbia brought a tug and barge
into Reedsport , Oregon, in order to transport a load of lumber
'Pacific Coast Boatmen's Union, herein called the P C B U., was served with notice of
hearing, but did not appear.
2 Paul W. Speer, Inc., 94 NLRB 317.
INTERNATIONAL LONGSI IOREMEN'S & WAREHOUSEMEN'S UNION 1639
for Reedsport Lumber Company from Reedsport to San Pedro,
California . At 7 a. m. the following morning, a crew of 9 men
started loading the barge . The crew included 5 employees of
Upper Columbia , 1 employee of its sister company, River Ter-
minals , 1 employee of Gardiner Lumber Co., and 2 employees of
the shipper , Reedsport Lumber Company. Robert Carns,
president of the Respondent Union, and 2 other members of/the
Respondent , one a member of its labor relations board , and the
other either a member of its labor relations board or its execu-
tive board , ' came down to the dock where the barge was being
loaded and spoke to Ray Waters , the boss of the job for Upper
Columbia, about the work being done, and about the Board's
decision in a case involving another local of the Longshoremen.4
These 3 longshoremen left the dock , but returned about a half
hour later in a group of between 20 and 40 persons ,5 of whom
8 to 12, according to the Respondent ' s own witnesses, were
members of the Respondent . Further conversations took place
between members of the Respondent , with President Carns its
principal spokesman , and employees and supervisors engaged
in loading the barge . The details of these conversations are in
dispute. Witnesses on behalf of the charging parties testified
that the Respondent ' s officers and members said that the
loading was their work , that they wouldfightfor their jobs, and
that skulls would crack if loading attempts continued . The Re-
spondent ' s witnesses denied any threats , and testified that they
were at the dock merely out of "curiosity ." About 9 : 30 a. m.,
Supervisor Ray Waters called a coffee breakbecause there was
no lumber at the site of the crane.' Loading of the barge never
resumed thereafter.
Precisely why work did not resume after the coffee break is
not clear from the evidence in the case . Ray Waters testified
that loading stopped because the forklift operator ( Pfeiffer)
was not bringing lumber to the crane. Pfeiffer testified, how-
ever, that he was told by his superintendent that "there might
be trouble" and that "it looks like we're not going to put any
more lumber on," and that he stood by waiting for work to
resume until told to leave . There is also evidence to show that
the crowd around the crane and forklift operators was so thick
as to prevent their working , but the Respondent ' s witnesses
denied this.?
3The Respondent's witnesses testified that the third man was a member of its labor
relations board; the Companies' witnesses stated that he was a member of the Respondent's
executive board.
4106 NLRB 1030.
5 The Respondent's witnesses claimed that only about 20 people were in the group; the Com-
panies ' witnesses testified that between 32 and 40 were there.
6It is not clear from the evidence why there was no lumber. There is testimony that the
forklift operator could not get through the crowd, but the Respondent ' s witnesses claimed that
they did not interfere with the work.
7In this connection , Ray Waters testified that at one point Houck, the Respondent Union's
executive board member , said, "Well, fellows , move back a little bit and make room so our
good brothers can go ahead with the loading until we can make the telephone call " Houck
neither affirmed nor denied this statement.
1640 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
About the time the coffee break ended , the chief of police of
Reedsport arrived at the dock, but he took no action . A number
of persons , some of whom were longshoremen , remained on the
dock until about 7:30 that evening.
(b) Contentions of the parties
The charging parties assert thatbytheabove conduct the Re-
spondent violated Section 8 ( b) (4) (D) of the amended Act. The
Respondent contends that it is not responsible for the conduct,
and that even if it is , the conduct proved to have occurred did
not constitute " inducement and encouragement ." No defense is
urged on the basis of any Board order or certification, or any
contract covering the disputed work.
(c) Applicability of the statute
The charge , which was duly investigated by the Regional Di-
rector, alleges a violation of Section 8 (b) (4) (D ) of the Act, and
the Regional Director was satisfied , on the basis of his investi-
gation, that a violation of the section had been committed.
In the proceeding under Section 10 (k) of the Act, the Board
is required to find only that there is reasonable cause to believe
that Section 8 (b) (4 (D ) has been violated before proceeding
with a determination of the dispute out of which the unfair labor
practice has arisen .8 As set forth above, the Respondent con-
tends that no violation of Section 8 (b)(4) (D ) occurred because
it is not responsible for the conduct of the longshoremen and
because by this conduct it did not " induce or encourage" the
employees of the Companies to engage in a strike.
The uncontradicted evidence shows that the president and
several members of the Respondent ' s labor relations and
executive boards led members of the Respondent to the Reeds-
port dock where they claimed the loading work being performed
by the Companies' employees and that such loading work ceased
after the intervention of the Respondent ' s officers and members.
The charging parties also adduced substantial evidence that the
Respondent ' s officials threatened employees performing the
loading work with violence if they continued the loading. We are
satisfied , therefore , and find, without definitively resolving the
conflicts in the testimony , that there is reasonable cause to
believe that ( 1) the officials of the Respondent induced or
encouraged employees of the Companies to engage in a work
stoppage in violation of Section 8 (b) (4) (D ),9 and (2 ) the Re-
spondent is responsible for such conduct."
8Local 26 , International Fur and Leather Workers Union of the United States and Canada
(Winslow Bros.), 90 NLRB 1379; Direct Transit Lines, 92 NLRB 1715.
9See Direct Transit Lines, supr. Cf. Ship Scaling Contractors Association, 87 NLRB 92;
Albers Milling Company, 90 NLRB 1015.
" Board precedent establishes that acts of officers of a union within the scope of their
employment are attributable to the union even though they may be unauthorized, or indeed
INTERNATIONAL LONGSHOREMEN'S & WAREHOUSEMEN' S UNION 1641
We find, accordingly , that the dispute in question is properly
before us for determination under Section 10 (k) of the Act.
(d) Merits of the dispute
At the time the Respondent appeared at the Reedsport dock
while Upper Columbia' s barge was being loaded, Upper
Columbia had assigned the loading work to employees of its
own choosing , most of whom were members of the P.C.B.U.
The dispute was therefore one over an employer's assignment
of work to employees in one labor organization rather than to
employees in another labor organization.
It is well established that an employer is free to make such
assignments free of strike pressure by a labor organization,
"unless such employer is failing to conform to an order or
certification of the Board determining the bargaining repre-
sentative for employees performing such work." " It is clear
from the record that the Respondent has no immediate or
derivative rights under any existing contract upon which it
could predicate any lawful claim to the work in dispute. Nor
does it appear that the Companies are failing to conform to
any order or certification of the Board determining the bar-
gaining representative for the employees performing the work
in dispute.
We find, accordingly, that the Respondent was not lawfully
entitled to require the Companies to assign the work of loading
their barges at Reedsport , Oregon , to members of the Re-
spondent rather than to employees assigned by the Companies
to perform such work.
DETERMINATION OF DISPUTE
On the basis of the foregoing findings , and the entire record
in this case , the Board makes the following determination of
dispute pursuant to Section 10 (k) of the Act:
1. International Longshoremen ' s & Warehousemen ' s Union,
Local 48, is not and has not been lawfully entitled to force or
require Upper Columbia River Towing Company and River
Terminals Company to assign the work of loading their barges
at Reedsport , Oregon, to members of Local 48 rather than to
employees assigned by the Companies to perform such work.
2. Within ten ( 10) days from the date of this Decision and
Determination of Dispute , the Respondent shall notify the
Regional Director for the Nineteenth Region, in writing, as to
contrary to specific instructions. Cory Corporation, 84 NLRB 972; International Long-
shoremen's and Warehousemen ' s Union , 98 NLRB 284. In this case , the president of the
Respondent , Carns , was the principal spokesman for the group.
ii Local Union No. 553 , affiliated with the United Association of Journeymen and Apprentices
of the Plumbing and Pipefitting Industry of the United States and Canada, A F . L (Alton Water
Company), 106 NLRB 186; United Brotherhood of Carpenters and Joiners of America, et
al (Stroh Brewery Co.), 88 NLRB 844.
1642 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
what steps the Respondent has taken to comply with the terms
of this Decision and Determination of Dispute.
Member Beeson took no part in the consideration of the
above Decision and Determination of Dispute.
DICHELLO, INCORPORATED and LOCAL 37, INTERNA-
TIONAL UNION OF UNITED BREWERY, FLOUR, CEREAL,
SOFT DRINK AND DISTILLERY WORKERS OF AMERICA,
CIO, Petitioner . Case No. 2-RC-6428 . March 18, 1954
DECISION AND ORDER
Upon a petition duly filed under Section 9 (c) of the National
Labor Relations Act, a hearing was held before Nathan Cohen,
hearing office r.' The hearing officer ' s rulings made at the hear-
ing are free from prejudicial error and are hereby affirmed.'
Upon the entire record in this case , the Board finds:
1. The Employer is engaged in commerce within the meaning
of the Act.
2. The labor organizations involved claim to represent cer-
tain employees of the Employer.
3. No question affecting commerce exists concerning the rep-
resentation of employees of the Employer within the meaning of
Section 9 ( c) (1) and Section 2 (6) and ( 7) of the Act, for the fol-
lowing reasons:
The Intervenor contends that its current contract with the Em-
ployer is a bar to this proceeding and moves to dismiss the
petition . Although the Employer ' s position is not entirely clear,
it appears to agree with the Intervenor that their contract is a
bar. The Petitioner asserts that the union - security provision of
the contract is illegal because of the Intervenor ' s failure to
achieve timely compliance with Section 9 of the Act and that
therefore the contract is not a bar.
On August 9, 1953, at a meeting of Local 40 of International
Union of United Brewery, Flour , Cereal, Soft Drink and Distill-
ery Workers of America , CIO, hereinafter called the Brewery
Workers , a majority of the workers present voted ( 1) to disaf-
filiate from the Brewery Workers and ( 2) to affiliate with Inter-
national Brotherhood of Teamsters , Chauffeurs , Warehouse-
'Brewery Workers, Soft Drink Workers and Liquor Drivers, Local 1040, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL,
hereinafter called the Intervenor, intervened on the basis of its current contract.
2 At the hearing, the hearing officer properly rejected the Petitioner' s offer to prove,
among other things, that an individual, now the secretary-treasurer and business repre
sentative of the Intervenor, made threats to employees during the Intervenor 's organi-
zational campaign. It is the Board's established practice to exclude from representation
hearings all evidence relating to unfair labor practices. Worden-Allen Company, 99 NLRB
410, and cases cited therein.
107 NLRB No. 325.