Int'l Brotherhood of Electrical Workers, Etc.

National Labor Relations Board - Board Decisions

Dec 16, 1964

150 N.L.R.B. 363 (N.L.R.B. 1964)

INT'L BROTHERHOOD OF ELECTRICAL WORKERS, ETC . 363
WE WILL NOT, either expressly or by intimation , threaten employees that
their jobs will be less secure with us as a result of their affiliating with or sup-
porting the above or any other union than it would be if they refrained from
doing so.
WE WILL in all other respects honor the rights of our employees to self-
organization , as guaranteed by Section 7 of the Act.
WE WILL make Paul Harlan and Larry Bolton whole for the loss of pay sus-
tained by them as a result of having been laid off on April 19, 1963 , with interest.
All our employees are free to join or not to join , or to support or not io support,
Local 512, Retail, Wholesale and Department Store Union , AFL-CIO, or any other
labor organization , without fear of reprisal or other discrimination by reason of
their choice either way.
THE WM . H. BLOCK COMPANY,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced , or covered by any other material.
Any employees having a question concerning the meaning of the above notice or
concerning compliance with its requirements may inquire by mail , telephone, or in
person at the Board's Regional Office, 614 ISTA Center, 150 West Market Street,
Indianapolis , Indiana, Telephone No. Melrose 3-8921.
International Brotherhood of Electrical Workers, AFL-CIO;
International Association of Machinists , AFL-CIO; Sheet
Metal Workers International Association , AFL-CIO; Inter-
national Brotherhood of Boilermakers, Iron Shipbuilders,
Blacksmiths, Forgers and Helpers, AFL-CIO; and their
agents, System Division No. 87, The Order of Railroad Teleg-
raphers and Brotherhood of Maintenance of Way Employees
and B. B. McCormick and Sons, Inc . and Houdaille-Duval
Company and Blount Brothers Corporation , Charging Parties.
Cases Nos. 129-CC-284, 12-CC-286, and 12-CC-287. December 16,
1964
DECISION AND ORDER
Upon charges filed on September 12 and 13, 1963, by B. B. Mc-
Cormick and Sons, Inc., Houdaille-Duval Company, and Blount
Brothers Corporation, herein collectively referred to as the Charging
Parties, the General Counsel for the National Labor Relations Board,
herein called the General Counsel, by the Regional Director for
Region 12, issued a complaint dated April 28, 1964, and amended on
May 11 and June 29, 1964, against International Brotherhood of
Electrical Workers, AFL-CIO; International Association of Ma-
chinists, AFL-CIO; Sheet Metal Workers International Association,
AFL-CIO; International Brotherhood of Boilermakers, Iron Ship-
builders, Blacksmiths, Forgers and Helpers, AFL-CIO; and their
agents, System Division No. 87, The Order of Railroad Telegraphers
and Brotherhood of Maintenance of Way Employees, herein collec-
150 NLRB No. 37.
364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tively called the Respondents, alleging that the Respondents had
engaged in and were engaging in unfair labor practices affecting
commerce within the meaning of Sections 8(b) (4) (i) and (ii) (B)
and 2(6) and (7) of the National Labor Relations Act. Copies of
the complaint and the charges were duly served upon the Respondents
and the Charging Parties.
The complaint alleged, in substance, that from on or about Sep-
tember 11, 1963, Respondents engaged in or induced or encouraged
individuals employed by the Charging Parties and other 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
goods, articles, materials, or commodities, or to perform services, and
had threatened, coerced, and restrained the Charging Parties, Na-
tional Aeronautics & Space Administration (herein called NASA),
U.S. Army Corps of Engineers (herein called Corps of Engineers),
U.S. Air Force, and other persons engaged in commerce or in an
industry affecting commerce with an object of forcing or requiring
NASA, the Corps of Engineers, the U.S. Air Force, the Charging
Parties, and other persons engaged in commerce or in an industry
affecting commerce, to cease doing business with Florida East Coast
Railway Company (herein called FEC).
Thereafter, on June 8, 1964, General Counsel, Respondents, and
one of the Charging Parties, Blount Brothers Corporation, entered
into a stipulation with an addendum dated July 17, 1964, setting
forth an agreed statement of facts. The other two Charging Parties
subsequently indicated their willingness to have the cases decided
upon the basis of the stipulation. The stipulation provides that the
parties waive their right to a hearing, to the issuance of a Trial
Examiner's Decision, and to the filing of exceptions. The stipulation
also provides that the entire record of the proceedings shall consist
of the stipulation, the charge, the complaint, the amended complaint,
affidavits of service of the charges and complaints, and Respondents'
answer to the complaint as amended. It further provides that upon
such stipulation and the record herein provided and on the receipt
of briefs from the parties, the Board may make findings of fact and
conclusions of law, and may issue its Decision and Order. The
parties requested oral argument before the Board.'
By an order issued June 15, 1964, the Board approved the afore-
said stipulation, made it a part of the record herein, and transferred
the case to the Board.
1 The request for oral argument is hereby denied as the stipulation and briefs
of the parties fully present the issues and the positions of the parties.
INT'L BROTHERHOOD OF ELECTRICAL WORKERS, ETC. 365
Upon the basis of the aforesaid stipulation, and the entire record
in the case, including the briefs filed by the parties, the Board makes
the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANIES INVOLVED
a. B. B. McCormick and Sons, Inc., is engaged at the Merritt
Island Launch Area at Merritt Island, Florida (herein called
MILA), in the building and construction of various facilities pur-
suant to contracts with the Corps of Engineers. In the operation of
its business at MILA, B. B. McCormick and Sons, Inc., annually
receives goods and materials from outside the State of Florida valued
at more than $50,000 for use at the MILA construction projects.
b. Houdaille-Duval Company is engaged at MILA in the building
and construction of various facilities pursuant to contracts with the
Corps of Engineers. In the operation of its business at MILA,
Houdaille-Duval Company annually receives goods and materials
from outside the State of Florida valued at more than $50,000 for
use at the MILA construction projects.
c. Blount Brothers Corporation is engaged at MILA in the build-
ing and construction of various facilities pursuant to contracts with
the Corps of Engineers. In the operation of its business at MILA,
Blount Brothers Corporation annually receives goods and materials
from outside the State of Florida valued at more than $50,000 for
use at the MILA construction projects.
We find that B. B. McCormick and Sons, Inc., Houdaille-Duval
Company, and Blount Brothers Corporation are, and at all times
material herein have been, engaged in commerce within the meaning
of Section 2(6) and (7) of the Act, and that it will effectuate the
policies of the Act to assert jurisdiction in this case.
II. THE LABOR ORGANIZATIONS INVOLVED
The complaint alleges that Respondents International Brotherhood
of Electrical Workers, AFL-CIO (herein called IBEW) ; Interna-
tional Association of Machinists, AFL-CIO (herein called IAM) ;
Sheet Metal Workers International Association, AFL-CIO (herein
called Sheet Metal Workers) ; and International Brotherhood of
Boilermakers, Iron Shipbuilders, Blacksmiths, Forgers and Helpers,
AFL-CIO (herein called Boilermakers), are each labor organizations
within the meaning of Section 2(5) of the Act. The answer denies
these allegations. This is one of the major contested issues of the
case.
366 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The complaint also alleges that Respondents System Division No.
87, The Order of Railroad Telegraphers (herein called Telegra-
phers), and Brotherhood of Maintenance of Way Employees (herein
called Maintenance of Way Employees) have acted as agents of
Respondents IBEW, IAM, Boilermakers, and Sheet Metal Workers
within the meaning of Sections 2(13) and 8(b) of the Act. In their
answer Respondents deny that Telegraphers and Maintenance of
Way Employees are, or have acted as, agents of the other named
Respondents. Thus the agency status of these two organizations is
also a contested issue in this proceeding.
III. THE UNFAIR LABOR PRACTICES
A. The picketing incidents
Eleven nonoperating unions 2 represent the nonoperating employees
of the FEC. In connection with the 1961 contract reopening, these
11 unions, which included all the Respondents, formed a single orga-
nization, herein called the Cooperating Organizations, for the purpose
of presenting a united front in their collective-bargaining effort with
the FEC and other railroads. Under the sponsorship of the Coop-
erating Organizations members served identical reopening demands
upon these railroads, including the FEC. By June 5, 1962, the Coop-
erating Organizations had agreed on terms of a new national con-
tract with all class I railroads other than the FEC. The FEC, which
had not participated in the national negotiations, refused to be bound
by the terms of this agreement. Separate negotiations were fruitless.
On January 23, 1963, the Cooperating Organizations called a strike
against the FEC which resulted in the placement of pickets along the
FEC main line. The picketing was extended to the Cape Kennedy-
MILA area on September 11 to 12,1963. The present dispute involves
only the picketing of the Cape Kennedy-MILA area.
The Cape Kennedy-MILA area is really two peninsulas running
south and separated from the mainland by the Indian River. MILA
and Cape Kennedy are separated by the Banana River which is
shaped like a bay. Florida Route 402 runs from Titusville on the
mainland to the Atlantic and, except where it crosses the Indian
2 These unions are: Brotherhood of Maintenance of Way Employees ; Brotherhood of
Railway and Steamship Clerks, Freight Handlers, Express and Station Employees ; Broth-
erhood of Railroad Signalmen ; The Order of Railroad Telegraphers ; Hotel and Restaurant
Employees ' and Bartenders' International Union ; International Association of Machinists ;
International Brotherhood of Boilermakers, Iron Shipbuilders, Blacksmiths , Forgers and
Helpers ; Sheet Metal Workers International Association ; Brotherhood Railway Carmen
of America ; International Brotherhood of Electrical Workers ; and International Brother-
hood of Firemen , Oilers, Helpers, Roundhouse and Railway Shop Laborers.
INT'L BROTHERHOOD OF ELECTRICAL WORKERS, ETC . 367
River, runs due east and west. The main spur of the FEC runs
parallel to Route 402 ending at Wilson which is about halfway across
the peninsula. At Wilson two spurs run off the main spur, the west
spur to MILA and the east spur to Cape Kennedy. Running parallel
to the east spur is Florida Route 401 which ends at the north gate
of Cape Kennedy. Also at Wilson, Florida Route AlA running
south bisects Route 402, goes through MILA and then crosses the
Banana River south of Cape Kennedy at Cocoa Beach. About 6
miles north of where Route AlA crosses the Banana River, Florida
Route 528 runs east from the mainland to the south gate of Cape
Kennedy.
The September 11 to 12 picketing occurred at two points in the
MILA area, one south of Wilson where a siding spur leaves the west
spur, and the other about 9 miles further south on Route AlA. These
two points are indicated, respectively, as I and II on the map at-
tached to this Decision marked "Appendix A."
The pickets carried signs which read as follows:
NOTICE TO THE PUBLIC
F.E.C.R.R. WHOSE
FACILITIES ARE TRANSPORTING
TO THIS PROJECT REFUSES TO
BARGAIN IN GOOD FAITH.
SYSTEM DIVISION NO. 87,
ORDER OF RAILROAD TELEGRAPHERS.
WE HAVE NO QUARREL WITH ANY
OTHER EMPLOYER.
On February 9, 1964, NASA issued a press release which said that
FEC had been invested with authority to operate the newly con-
structed west spur, such operation to begin on the morning of Feb-
ruary 10, 1964. On February 10 and 11, 1964, picketing was resumed
with the same picket signs at location II and at five additional loca-
tions marked IIA, III, IV, V, and VI on Appendix A. The picket-
ing continued until the morning of February 12, 1964, when it was
halted by reason of a temporary restraining order issued by a United
States District Court.
Point IIA is 2 miles south of point II and is opposite a, dirt road
leading to a construction project where employees of a secondary
employer were engaged in work for the Corps of Engineers. A
picket at IIA cannot be seen from the FEC tracks or the spur line.
Point III is located at the intersection of highway AIA and U.S.
775-692-65-vol. 15 0-25
368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Route 1 and is near the north gate leading to Merritt Island and
Cape Kennedy. A picket at point III cannot be seen from the FEC
tracks or-the spur line. Point 1V is where the FEC main spur to
Cape Kennedy and MILA leaves the FEC mainline. A picket at
this point can be seen by trainmen from both the main FEC track
and the FEC spur line at the point where it joins the main track.
Point V is on highway 402 just over the causeway across the Indian
River leading to MILA and Cape Kennedy. A picket at this point
cannot be seen from the main track, but may be seen from the spur
track looking down the Indian River. Point VI is on the highway
near the south gate to Cape Kennedy. A picket at VI cannot be
seen from the FEC main tracks or the spur. In sum, pickets were
visible from FEC property only at point IV. FEC•employees did
not work at or in the vicinity of the pickets located at points II, IIA,
III, V, and VI.
On June 8 to 10, 1964, picketing was resumed at points II, IIA,
III, V, and VI until again enjoined by the United States District
Court. The signs read : 3
NOTICE TO PUBLIC
F.E.C.R.R. WHOSE
FACILITIES ARE TRANSPORTING
TO THIS PROJECT REFUSES TO
BARGAIN IN GOOD FAITH BRO'D
MAINTENANCE OF WAY EMPL.
LOCALS 2020 717. WE HAVE NO
QUARREL WITH ANY OTHER EMPLOYERS.
All persons entering Cape Kennedy and MILA during these
periods had to pass a picket. As a result of the picketing, employees
working for neutral contractors doing construction work or oper-
ating facilities at MILA and Cape Kennedy, among them employees
of the Charging Parties, refused to cross the picket lines to perform
services for their respective employers.
B. The issues
The complaint alleges that by. authorizing, establishing, and main-
taining the aforesaid pickets Respondents have induced individuals
employed by neutral employers to engage in a strike or a refusal to
perform services with an object of forcing such neutral persons to
cease 'doing, business- with NASA, the Corps of Engineers, and the
U.S. Air Force, and to force NASA, the Corps of Engineers, the U.S.
Air Force, and other neutral persons to cease doing business with
FEC, in violation of Section 8(b) (4) (i) and (ii) (B) of the Act.
3 On June 8 , 1964 , the earlier picket sign was used at point II.
INT'L BROTHERHOOD OF ELECTRICAL WORKERS ETC. 369
Respondents defend on two theories: (1) When representing individ-
uals employed by companies subject to the Railway Labor, Act, they
are not labor organizations as defined in Section 2(5) of the National
-Labor Relations Act and so are not subject to any of the subsections
of Section 8 (b) of that Act; and (2) even if they are "labor orga-
nizations," the picketing engaged in was primary and therefore legal.
C. The character of the picketing
We defer for the moment consideration of the status of Respondents
as "labor organizations" to determine whether the picketing was
otherwise illegal. Respondents contend that the picketing conformed
with the criteria enunciated by the Board in Moore Dry Dock 4 and
was therefore lawful. In Moore Dry Dock, the Board said that in a
mixed situs situation picketing of the premises of the; secondary
employer harboring the situs of the dispute is lawful where: (a) The
picketing is strictly limited to times when the situs of dispute is
located on the secondary employer's premises; (b) at the' time of
picketing the primary employer is engaged in its normal business
at the situs; (c) the picketing is limited 'to place's reasonably close
to the location of the situs; and (d) the picket signs disclose clearly
that the dispute is with the primary employer. ,-
Respondents' labor dispute was solely with FEC, which is the pri-
mary employer. The situs of that dispute was the FEC property
and tracks, owned or operated by FEC. But Respondents' picketing
was not limited to such locations, the situs of the primary dispute.
Instead, most of the picketing occurred at points on public highways
removed and not visible from EEC tracks and not utilized by FEC
personnel. The picketing appeal at such locations could only have
been directed at employees of neutral employers unconnected with
the FEC dispute or FEC operations, which employers are employers
within the meaning of the Act. In fact this was the sole effect of
the picketing: employees of neutral employers refused to-cross the
picket lines set up on public highways and operations of these
employers were shut down or hampered. It is not determinative,
therefore, that the picket signs advertised that the dispute was solely
with the FEC. We hold that the picketing away from the FEC
property was secondary and unlawful. .
D. The applicability of the Act to Respondents
Having found that the character of picketing was not such as
to constitute lawful primary picketing immunized from the scope
of Section 8(b) (4) (B), we shall not consider the status of Respond-
Sailors' Union of the Pacific, AFL (Moore Dry Dock Company ), 92 NLRB 547, 549.
370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ents and their agents under the Act . We take up first the question
of whether the Respondents are labor organizations within the mean-
ing of Section 2(5) of the Acts
1. The status of Respondents IAM, IBEW , Boilermakers,'
and Sheet Metal Workers
Respondents Boilermakers , IAM, IBEW, and Sheet Metal Work-
ers are predominantly nonrailway labor unions. Each has, however,
a substantial number of members working for railroads , varying
from 4,000 for the Boilermakers to 48,000 for the IAM. The propor-
tion of railroad workers to total membership of these Unions varies
from 21/2 to 8 percent . Railway employees are organized by these
Respondents into separate locals and , except for the Boilermakers,
are supervised by an International vice president whose jurisdiction
is basically limited to railway employees and matters . The railway
employees who are members of these Unions vote on all union mat-
ters in the same manner as other members of each of the Unions.
In International Organization of Masters , Mates and Pilots of
America, etc . (Chicago Calumet Stevedoring Company, Inc.),6 the
respondent International union, ' whose membership was composed
predominantly of supervisors , and the respondent local, whose mem-
bership comprising pilots was entirely supervisory , engaged in sec-
ondary picketing activities against foreign shipowners to compel
them to use the services of pilot members of the local . The Board
there held that both the International union and its local had unlaw-
fully engaged in secondary boycott activities , notwithstanding that
such activities were in support of individuals who were not statutory
employees and of a labor union-the local-which was not a statu-
tory labor organization . The Board found that the International
was a "labor organization" because a small number of its total mem-
bership , about 2 percent , who, however , were not involved in the dis-
pute, were statutory "employees ." The Board also found the local,
although not a statutory "labor organization" because its member-
5 Section 2(5) defines a "labor organization" as:
... any organization of any kind . . . In which employees participate and which
exists for the purpose , in whole or in part, of dealing with employers concerning
grievances , labor disputes , wages, rates of pay , hours of employment , or conditions of
work.
Section 2(3) defines an "employee" as:
... any employee ... but shall not include . . . any individual employed by an
employer subject to the Railway Labor Act ... .
Section 2 ( 2) states:
The term "employer" includes any person acting as an agent of an employer,
directly or indirectly, but shall not include ... any person subject to the Railway
Labor Act ... .
125 NLRB 113, remanded to the Board and modified at 144 NLRB 1172 and 146
NLRB 116.
INT'L BROTHERHOOD OF ELECTRICAL WORKERS, ETC. 371
ship was entirely supervisory, jointly responsible for the illegal sec-
ondary activity as an agent of the International. The Board re-
garded as immaterial the fact that the individuals immediately in-
volved in the dispute were not "employees." This conclusion is sup-
ported by the opinion of the Court of Appeals in National Marine
Engineers, etc. (S d L Towing Co.) v. N.L.R.B.,7 where the court
said :
We do not believe the question of whether MEBA and MMP
are "labor organizations" that may be guilty of unfair labor
practices should be decided by looking only at the workers of
S & S. We think that the determination whether a labor union
charged with an unfair labor practice under Section 8(b) is a
"labor organization" turns on whether "employees participate"
in the organization charged and that, if they do, the union is a
"labor organization" although all the workers of the particular
employer whom it is seeking to represent are "supervisors" and
therefore not "employees."
There is no inconsistency in looking to the identity of the
workers of the particular employer when the issue is whether an
election must be held or who may vote in it ... but to the entire
composition of the union being charged, local or national, when
the issue is whether it is a "labor organization" and therefore
guilty of an unfair labor practice. The questions arise under
different sections of the statute, with different wording and
purpose.
The membership of Respondents IAM, IBEW, Boilermakers, and
Sheet Metal Workers is comprised overwhelmingly of nonrailroad
employees. They are unquestionably, therefore, in their overall
capacity "labor organizations" and the Board has so held in numer-
ous cases.
There is no legislative history to support Respondents' contention
that, an International union which represents railroad and nonrail-
road employees is exempt from the provisions of Section 8 (b) (4)
when it engages in otherwise prohibited secondary activity against
"any person engaged in commerce" within the meaning of the Act,
in support of a strike against a railroad. As we have-indicated above,
both the Board and the courts have by clear implication decided to
the contrary. It is true that in Paper Makers,8 the Board said that
if a railroad union engaged in secondary boycott activity :in support
7274 F. 2d 167, 173 (C.A. 2). Cf. Marine Engineers Beneficial Association v.,Inter-
lake Steamship Co. et al. , 370 U.S. 173, 179-180.
S Local 833 , International Union, United Automobile, etc. (Paper Makers Importing
Co., Inc., et al.), 116 NLRB 267.
372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of a strike against a railroad it would not be in contravention of Sec-
tion 8(b) (4) because a railroad labor union is not a "labor organiza-
tion." But in so saying, the Board was considering only a railway
labor union whose membership was made up entirely of railroad
workers and not one which, as here, includes both railroad and non-
railroad workers.
It is also true that in Di Giorgio,9 the Board and the Court of
Appeals for the District of Columbia dismissed secondary boycott
allegations against a local union whose membership consisted only of
"agricultural laborers" on the ground that the local union was not a
"labor organization" despite the fact that the national union with
which it was affiliated was a "labor organization" whose members
included workers other than "agricultural laborers." However, in
Di Giorgio, unlike here, both the Board and the court found that the
local union was not an agent of the national union, which was not
named a party respondent. In the present case, on the contrary, the
national unions which are named respondents are clearly "labor
organizations," and it is these national unions which acted through
their agents, the respondent railroad labor unions, to picket the sec-
ondary employers..
Accordingly, we find that Respondents IAM, IBEW, Boilermakers,
and Sheet Metal Workers are "labor organizations" subject to the
provisions of Section 8(b) (4) (B) with respect to their conduct di-
rected against secondary employers engaged in commerce within the
meaning of the Act. This is so although Respondents' primary dis-
pute was with an employer subject to the Railway Labor Act and
whose employees are not "employees" under the National Labor Rela-
tions Act.1o
2. Responsibility for the picketing and the status of Respondents
Telegraphers and Maintenance of Way Employees
Respondents IBEW, IAM, Boilermakers, and Sheet Metal Work-
ers contend that they are not principals for whom the picketing
Unions, Telegraphers and Maintenance of Way Employees were act-
ing as agents. We disagree.
As noted above, the Cooperating Organizations, which included
in its membership all Respondents, as a group decided to strike the
FEC. As part- of such strike action Cooperating Organizations set
up a subcommittee, designated the master strike team, to direct and
coordinate all strike action. Each member of the Cooperating Orga-
nizations furnished personnel to carry on the picketing. The master
strike team in turn set up local strike teams at various geographic
0 Di Giorgio Fruit Corporation , et al. V. N.L R .B., 191 F. 2d 642 , 647 (.C.A D C.).
10 Cf. N.L.R.B . v. Washington -Oregon Shingle Weavers' District Council, AFL (Sound
Shingle Co .), 211 F. 2d 149, 152 (C.A. 9).
INT'L BROTHERHOOD OF ELECTRICAL WORKERS, ETC . 373
points on the FEC lines to arrange for picketing and other strike
action in these local areas., The master strike team included repre-
sentatives of Telegraphers and Maintenance of Way Employers. The,
local strike teams at Fort Pierce and New Smyrna Beach, Florida,
those-directly involved in the picketing which is the, subject of this
proceeding, included International representatives of the Sheet Metal
Workers and the Boilermakers.
Prior to September 11, 1963, the signs carried by pickets indicated
merely that nonoperating employees were on strike. Thereafter the
picket signs contained the name of either Telegraphers or Mainte-
nance of Way Employees as the sponsoring organization. The pick=
ets at MILA and Cape Kennedy who carried the Telegraphers signs
were placed by the local strike teams; the pickets who carried the
Maintenance of Way Employees signs were placed by one of that
Union's officials who was a member of the local strike team. The
master strike team at all material times had final authority and con-
trol over and was kept fully advised of all the picketing. The chair-
man of Cooperating Organizations was aware of the Telegraphers
and Maintenance of Way Employees picketing prior to and during,
its occurrence.
Where two or more unions engage, in a strike as a joint venture,
each is responsible for the conduct of other members of the joint
venture and of agents of each other in pursuit of the common aim.11
In this case, all Respondents were members of Cooperating Orga-
nizations which called and managed the strike against FEC in their
common behalf. That organization, through its master and local
strike teams, had final control of and authority over all the picket-
ing. Pickets were actually placed and supervised by members of the
local, strike teams. Although picket signs used after September 11,
1963, carried the names of either Telegraphers or Maintenance of
Way Employees as sponsor of the picketing, it is apparent, and we
find, that these pickets were acting in behalf of all the striking
Unions and in furtherance of their common objective to win the
strike against the FEC. We further find that the pickets were the
agents not only of Telegraphers and Maintenance of ' Way Employ-
ees, but of the other Respondents, who were members of Cooperating
Organizations.
Section 8(b) proscribes conduct by a "labor organization or its
agents." Respondents IAM, IBEW, Boilermakers, and Sheet Metal
Workers are, as found above, "labor organizations" and as such re-
sponsible for the conduct of the pickets. Telegraphers and,Mainte-
nance of Way Employees are not, however, "labor organizations" be-
'International Brotherhood of Pulp, Sulphite and Paper Mill Workers , etc. (Solo Cup
Company), 144 NLRB 421 ; International Organization of Masters, Mates, & Pilots etc.
( Chicago Calumet Stevedoring ), supra.
374 DECISIONS OFNATIONAL LABOR RELATIONS BOARD
cause their membership includes only individuals employed by em-
ployers who are subject to the Railway Labor Act and who therefore
are not "employees." Although not "labor organizations," these two
unions were "agents" of "labor organizations" in their picketing inas-
much as such picketing was in pursuance of the joint venture 12 We
find, therefore,' that as "agents" of "labor- organizations,", Respond-
ents Telegraphers and Maintenance of Way Employees are jointly
responsible with the 'other Respondents under the Act for the illegal
picketing activity. . "
We further find that the picketing of the MILA and Cape Kennedy
sites away from tracks either owned or operated` by FEC had as an
object to induce work stoppages by employees of neutral persons to
force NASA, Corps of Engineers, U.S. Air Force, and other neutral
persons to cease doing business with FEC, thereby violating Section
8(b) (4) (i) and (ii) (B).
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES ON COMMERCE
The activities of Respondents set forth in section III, above, occur-
ring in connection with the operations of the Employers set forth in
section I, above, have a close, intimate, and substantial relation to
trade, traffic, and commerce among the several States, and tend to
lead to labor disputes burdening commerce and the free • flow of
commerce.
V. THE REMEDY
Having found that Respondent Unions have violated Section 8(b)
(4) (i) and (ii) (B) of the Act, as set forth above, we shall order
them to cease and desist from such conduct and take certain affirma-
tive action designed to effectuate the policies of the Act. Telegra-
phers and the Maintenance of Way Employees will be bound by such
an order to the extent that they may act as agents of the other
Respondents.
CONCLUSIONS OF LAW
1: • International Brotherhood of Electrical Workers, AFL-CIO ;
International Association of Machinists, AFL-CIO ; Sheet Metal
Workers International Association, AFL-CIO; and International
Brotherhood of Boilermakers, Iron Shipbuilders,-Blacksmiths, Forg-
ers and Helpers, AFL-CIO, are labor organizations within the mean-
ing of Section 2(5) of the Act.
'!International Organization of Masters, Mates and Pilots, etc . ( Chicago Calumet
Stevedoring ), supra; National Marine Engineers v. N L.R.B., supra.
INT'L BROTHERHOOD OF ELECTRICAL WORKERS, ETC. 375
'2. System Division No. 87, The Order of Railroad Telegraphers
and Brotherhood of Maintenance of Way Employees are agents of
the above-named labor organizations within the meaning of Section
8 (b) of the Act.
3. The above-named labor organizations and the above-named
agents have engaged in unfair labor practices within the meaning of
Section 8(b) (4) (i) and (ii) (B) by inducing and encouraging in-
dividuals employed by B. B. McCormick and Sons, Inc., Houdaille-
Duval Company, Blount Brothers Corporation, and other persons
engaged in commerce or in an industry. affecting commerce within
the meaning of the Act to engage in a strike or a refusal in the
course of their employment to perform services, and by threatening,
coercing, or restraining persons engaged in commerce or in an indus-
try affecting commerce with an object of forcing or requiring B. B.
McCormick and Sons, Inc., Houdaille-Duval Company, Blount
Brothers Corporation, and other persons to cease doing business with
NASA, Corps of Engineers, and U.S. Air Force, and to force NASA,
Corps of Engineers, U.S. Air Force, and other persons to cease doing
business with Florida East Coast Railway Company.
4. The aforesaid unfair labor practices are unfair labor practices
within the meaning of Section, 2(6) and (7) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act,
the Board hereby orders that Respondents International Brotherhood
of Electrical Workers, AFL-CIO; International Association of Ma-
chinists, AFL-CIO; Sheet Metal Workers International Association,
AFL-CIO ; International Brotherhood of Boilermakers, Iron Ship-
builders, Blacksmiths, Forgers and Helpers, AFL-CIO; their officers,
agents, and representatives, including their agents System Division
No. 87, The Order of Railroad Telegraphers, and Brotherhood of
Maintenance of Way Employees, shall:
1. Cease and desist from inducing or encouraging any individual
employed by B. B. McCormick and Sons, Inc., Houdaille-Duval
Company, Blount Brothers Corporation, or by any other person
engaged in commerce or in an industry affecting commerce, other
than Florida East Coast Railway Company, 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 threatening,
coercing, or restraining B. B. McCormick and Sons, Inc., Houdaille-
Duval Company, Blount Brothers Corporation, or any other person
376 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
engaged in commerce or in an industry affecting commerce where in
either case an object thereof is to force or require the aforesaid per-
sons to cease doing business with National Aeronautics & Space Ad-
ministration, U.S. Corps of Engineers, and U.S. Air Force, and
thereby to force National Aeronautics & Space Administration, U.S.
Corps of Engineers, U.S. Air Force, and other persons to cease doing
- business with Florida East' Coast Railway Company in violation of
Section 8(b) (4) (i) and (ii) (B) of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Each Respondent shall post, in conspicuous places in the busi-
ness offices and meeting halls of those of its locals which have mem-
bers who work for Florida East Coast Railway Company and at all
other places where notices to such members are customarily posted,
copies of the attached notice marked "Appendix B." 13 Copies of
said notice to be furnished by the Regional Director for Region 12,
shall, after being duly signed by Respondents' authorized representa-
tives, be posted by Respondents immediately upon receipt thereof
and be maintained by them for 60 consecutive days. Reasonable steps
shall be taken by Respondents to insure that such notices are not
altered, defaced, or covered by any other material.
(b) Furnish said Regional Director for Region 12 signed copies
of the aforesaid notice for posting by B. B. McCormick and Sons,
Inc., Houdaille-Duval Company, and Blount Brothers Corporation,
if willing, at. places where they customarily post notices to their
employees.
(c) Notify the Regional Director for Region 12, in writing, within
10-days from the date of this Order, what steps Respondents have
taken to comply herewith.
MEMBER JENKINS , dissenting:
I cannot accept the conclusion' of the majority that this Board has
jurisdiction over a labor dispute (specifically the picketing attendant
thereto) between a railway'and its employees.
First, the fundamental fact is that the dispute involved herein is
simply a strike (and picketing) against the Florida East Coast Rail-
way by various unions representing nonoperating railway employees
who are subject to, the Railway Labor Act. It is incongruous, at the
least, to acknowledge that strikers, labor disputes, and the gamut of
-labor relations activities that occur between railway employees and
2 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, "a Decision and Order" the words "a
Decree of the United States Court of Appeals, Enforcing an Order."
INT'L BROTHERHOOD OF ELECTRICAL WORKERS, ETC. 377
railroads are within the exclusive province of the Railway Labor Act
and the detailed and extensive procedures set up under the National
Mediation Board, but nevertheless,to assert that the picketing herein
falls within the jurisdiction of this Board.14 The statute we admin-
ister explicitly excludes employees "subject to the Railway Labor Act"
and "individuals employed by an employer subject to the Railway
Labor Act," and to avoid any incongruity, it is necessary only that
the Board apply this exclusion here and decline jurisdiction.15
Second, the application of the 8(b) (4) provisions to the Respond-
ents constitutes a clearly disparate application because this Board
does not and cannot apply the 8(a) provisions against employers sub-
ject to the Railway Labor Act.
In Di Giorgio Fruit Corporation et al. v. N.L.R.B., 191 F. 2d 642
(C.A.D.C.), cert. denied 342 U.S. 869, the court discussed whether
a farm union constituted a labor organization within the meaning ;of
the Act and concluded that because the' Kern County Local was
composed of agricultural laborers, they were excluded from- coverage
of the Act even though the National Farm Labor Union of which it
was a part had in it commercial packinghouse employees and others
who were not directly involved in the dispute and who were employ-
ees within the meaning of the Act. In discussing agricultural labor-
ers the court discussed railroad workers as an analogous situation
stating :
The Board also supports its view by an analogy to the exclusion
of railroad workers from the, definition of "employees". Section
2(3) of the Act [defining employee] . . -. was inserted in 1947;
and the Senate Report upon that bill stated : "The exemption of
employees of employers subject to the Railway Labor Act is to
make it perfectly clear that in providing remedies for unfair
labor practices of unions and their agents it was not intended to
include such employees." 13
za S. Rept., 105, 80th Cong.; 1st sess. 19 (1947 ) [ 191 F. 2d 632 , at 646.1
The court likewise concluded that the term "labor organization"
in Section 8(a) and (b) must be uniformly interpreted, pointing out
that :
The incongruity and conflict resulting from giving the term
"employees" its statutory defined meaning, excluding agricultural
14 Cf. Local 833, International Union, United , Automobile, Aircraft and Agricultural
Implement Workers (UAW-AFL-CIO) ( Paper Makers Importing . Co, Inc), 116
NLRB 267
us The majority apparently concedes , as it must , that the Florida East Coast Railway
and its employees are not "employers" or "employees " as defined in Section 2(2) and
(3) of our Act.
378 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees, but at the same time giving the term "labor organiza-
tion"' a non-statutory meaning so as to include agricultural la-
' borers throughout Section 8(b), is emphasized by the Board.
Moreover, the Board points out that Section 8(a), which makes
illegal an unfair practice by employers, and thus bestows rights
and benefits on employees, uses the term "labor organization"
throughout. We think that the section' conferring benefits, Sec-
tion 8(a), and the section imposing restrictions, Section 8(b),
which are subdivisions of the same section of the Act, must be
construed in harmony ; and that, if they be construed to apply
to organizations of agricultural laborers, they would nullify the
exclusion of such laborers from the statutory definition of "em-
ployees". [191 F. 2d 642, at 647.]
Such rationale is directly applicable to the railway employees here.
Third, I cannot base jurisdiction, as my colleagues do, on the fact
that Respondent Unions IBEW, IAM, Boilermakers, and Sheet
Metal Workers also have locals (not here involved) that contain
"employees," employed by "employers" subject to our Act, who thus
fall within the definition of our Act. The individuals involved in
the dispute here are clearly employees of a railway, their dispute is
with the railway, and they are therefore subject to the Railway Labor
Act. To regard the separately employed, nondisputing, and non-
participating locals, connected with the disputants only through the
International union, as somehow' converting the railway locals and
employees into a "labor organization" under this Act is to engage
in a fiction. Presumably, under the rationale of the majority, this
Board'will henceforth intervene in railway and airline labor disputes
whenever anyone can show that the International union involved also
has members employed by employers subject to our Act; indeed, the
International union could control the application of the statute by
acquiring or severing such members.,
Consequently, the extension of jurisdiction here is not only unwise
but sets a risky precedent for the future. This risk is more than
speculative, for the majority has rested jurisdiction partly on the
ground that-the secondary employers picketed are subject to our Act.
Such result amounts to a roving commission for the Board to "set
aright all types of misconduct condemned by our Act,'without regard
to the limits on the Board's jurisdiction.
In view of the explicit statutory exclusion of railroad employers
and their employees from our Act and the fact that application of
the 8(b) provisions would result in a disparate application of only a
part of the major provisions of our Act, I find no basis for the
assertion of jurisdiction here.
INT'L BROTHERHOOD OF ELECTRICAL WORKERS, ETC.
APPENDIX A
0- r
379
APPENDIX B
NortcE
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify you that :
WE wn L NOT induce or encourage individuals employed by
B. B. McCormick and Sons, Inc., Houdaille-Duval Company,
380 DECISIONS OF NATIONAL LABOR RELATIONS 'BOARD
Blount Brothers Corporation, or any other persons engaged in
commerce or in an industry affecting commerce, to engage in a
strike or a refusal in the course of his employment to use, manu-
facture, process, transport, or otherwise handle, or work on any
goods, articles, materials, or commodities or perform services,
or threaten, restrain, or coerce said employers or any other per-
son engaged in commerce or in an industry affecting commerce,
where in either case an object thereof is to force or require the
aforesaid persons to cease doing business with National Aero-
nautics & Space Administration, U.S. Corps of Engineers, and
U.S. Air' Force, and thereby to force National Aeronautics &
Space Administration, U.S. Corps of Engineers, U.S. Air Force,
and other persons to cease.doing business with Florida East
Coast Railway Company in violation of Section 8 (b) (4) (i) and
(ii) (B) of the Act.
INTERNATIONAL BROTHERHOOD OF ELECTRICAL
WORKERS, AFL-CIO,
Labor Organization.
Dated---------------- By=------------------------------------
(Representative ) ( Title)
INTERNATIONAL ASSOCIATION OF MACHINISTS , AFL-CIO
Labor Organization.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
SHEET METAL WORKERS INTERNATIONAL
ASSOCIATION, AFL-CIO,
Labor Organization.
Dated---------------- By----------------------------------'---
(Representative ) ( Title)
INTERNATIONAL BROTHERHOOD OF BOILERMAKERS,
IRON SHIPBUILDERS , BLACKSMITHS , FORGERS,
AND HELPERS , AFL-CIO,
Labor Organization.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
SYSTEM DIVISION No. 87, THE ORDER OF
RAILROAD TELEGRAPHERS,
Labor Organization.
Dated---------------- By-------------------------------------
(Representative) (Title)
BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYEES,
Labor Organization.
Dated---------------- By-------------=-----------------------
!, (Representative ) ( Title)
SECURITY TOWING COMPANY 381
This notice must remain posted for 60 consecutive days from the
date of posting and must not be altered, defaced, or covered by any
other material.
Employees may communicate directly with the Board's Regional
Office, 706 Federal Office Building, 500 Zack Street, Tampa, Florida,
Telephone No. 228-7711.
Security Towing Company and National Maritime Union of
America, AFL-CIO. Case No. 14-CA-3139. December 16, 1961
DECISION AND ORDER
On March 31,1964, Trial Examiner Stanley Gilbert issued his Deci-
sion in the above-entitled proceeding, finding that the Respondent had
not engaged in the unfair labor practices alleged in the complaint,
and recommending that the complaint be dismissed in its entirety, as
set forth in the attached Trial Examiner's Decision. Thereafter, the
General Counsel and the Charging Party filed exceptions, with sup-
porting briefs, to the Decision; and the Respondent filed exceptions
to the Trial Examiner's failure to make certain findings of fact and
conclusions of law, together with a brief in support of the exceptions
and the Decision. The Charging Party filed a brief in answer to the
Respondent's exceptions.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the Board has delegated its powers in
connection with this case to a three-member panel [Chairman McCul-
loch and Members Leedom and Jenkins].
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 Decision
and the entire record in the case, including the exceptions and briefs,
and hereby adopts the findings, conclusions, and recommendations of
the Trial Examiner.'
[The Board dismissed the compaint.]
1 As the record , exceptions , and briefs adequately present the issues and the positions
of the parties , the request of the Charging Party for oral argument is hereby denied.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon a charge filed August 14, 1963 , by National Maritime Union of America,
AFL-CIO (hereinafter referred to as NMU), the complaint was issued October 21,
1963 . The complaint , as amended ,1 alleges that Security Towing Company (herein-
1 The complaint was amended by adding the names George H. Courtney , Robert Lee
Fowler, Wayne E. Cox, and Bill Lawrence to each of the subparagraphs in paragraph VI
of the complaint. At the conclusion of the General Counsel 's case, General Counsel was
given leave to withdraw the allegation in subparagraph ( b) of paragraph V of the com-
plaint , there being no evidence in support of said allegation.
1'50 NLRB No. 23.