Int'l Longshoremen's and Warehousemen's Local 8

National Labor Relations Board - Board Decisions

Jul 28, 1960

128 N.L.R.B. 351 (N.L.R.B. 1960)

INT'L LONGSHOREMEN'S & WAREHOUSEMEN'S LOCAL 8 351
bargain collectively with the. Union as the exclusive representative of, the employees
in the appropriate units described herein. It will therefore be.recommended that
the Respondent bargain collectively , upon request , with the Union as the exclusive
representative of the employees in the appropriate units, and , if understandings are
reached , embody such understandings in signed agreements . It has also been found
that the Respondent has refused and still refuses to furnish information to the
Union concerning the salaries paid to the employees in the appropriate units. It
will therefore also be recommended that the Respondent , upon request , be ordered
to furnish the Union the requested salary information.
Upon the basis of the foregoing findings of fact , and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. Swift and Company d/b/a New England Processing Unit is an employer
within the meaning . of Section 2(2) of the Act, and is engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
2. United Packinghouse Workers of America, Local 165, AFL-CIO, is a labor
organization within . the meaning of Section 2(5) of the Act.
3. The following units of the Respondent's employees at its Somerville, Massa-
chusetts , plant are appropriate for the purposes of collective bargaining within the
meaning of Section 9(b) of the Act:
(a) All plant clerical employees including the clerk in the sliced bacon depart-
ment, the shipping department clerk, the part-time standard checker, the standard
checkers, the standards clerk, and the clerk in the table-ready- meat department,. but
excluding the assistant foreman of the curing department , all other employees,
guards, professional employees , and supervisors as defined in the Act.
(b) All office clerical employees including the stenographer , the payroll clerk, the
office assistant-voucher clerk, the office assistants , the comptometer operators, the
order writer, the manager 's clerk , and the relief office assistant, exclusive of the
secretary to the plant manager, all other employees , guards, professional employees,
and supervisors as defined in the Act.
4. On September 30, 1959, and at all times thereafter, the Union was and now is
the representative of a majority of the Respondent 's employees in the appropriate
units described above for the purposes of collective bargaining within the meaning
of Section 9'(a) of the Act.
5. By refusing on December 15, 1959, and thereafter to bargain collectively with
the Union as the exclusive representative of all its employees in the above-described
appropriate units, the Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8^ (a) (5) and (1) of the Act.
6. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
International Longshoremen's and Warehousemen 's Union Local
8; International Longshoremen 's and Warehousemen 's Union
Local 92; and International Longshoremen 's and Warehouse-
men's Union and General Ore, Inc . Case No. 36-CD-18. July -8,
1960
DECISION AND ORDER
On March 25,1960, Trial Examiner Eugene K. Kennedy issued his
Intermediate 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 there-
from and take certain affirmative action, as set forth in the copy of
128 NLRB No. 43.
352 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Intermediate Report attached hereto. Thereafter, the Respond-
ends filed exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Members Rodgers, Jenkins, and Fanning].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and brief, and the entire record in the
case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner, with the additions noted below.'
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 and Warehousemen's Union Local 8; International Long-
shoremen's and Warehousemen's Union Local 92; and International
Longshoremen's and Warehousemen's Union, their agents, officers,
representatives, successors, and assigns, shall :
1. Cease and desist from engaging in or inducing or encouraging
the employees of Columbia River Paving Co., California Bag and
Metal Co., J. E. Hazeltine & Co., Shave Transportation Co., Inland
Navigation Co., Nisshum Steamship Co., and Air Reduction Cor-
poration, or any employer, to engage in a strike or concerted refusal
in the course of their employment to use, manufacture, process, trans-
port, or otherwise handle or work on any goods, articles, materials,
or commodities, or to perform any services where an object thereof
is to force or require General Ore, Inc., to assign work to members
of the Respondents rather than to any other group or class of em-
ployees, except insofar as any such action is permitted under Section
8(b) (4) (D) of the Act.
2. Take the following affirmative action which the Board finds
will effectuate the policies of the Act :
1 Like the Trial Examiner, we find no merit in the Respondents' contention that the
Board's failure to make an affirmative award of the work in dispute in its Decision and
Determination of Dispute in this case (124 NLRB 626) makes the Decision and Order
herein invalid and unenforceable . Such an affirmative assignment is not a prerequisite
to a finding in a subsequent unfair labor practice proceeding that the Union violated
Section 8(b) (4) (D) of the Act. To the extent that our decision herein may conflict with
certain court decisions , we respectfully disagree with the said courts. Local 173, Wood,
Wire and Metal Lathers' International Union, AFL-CIO, et al. ( Newark & Essex Plaster-
ing Co. ), 121 NLRB 1094, 1108; N.L.R B. v. Local 450, International Union of Operating
Engineers ( Hinote Electric Co.), 275 F 2d 408 (C A. 5).
We do not adopt the Trial Examiner ' s paraphrase in his footnote 8 of Section
8(b) (4) (D ) of the Act, The statute speaks for itself.
INT'L LONGSHOREMEN'S & WAREHOUSEMEN'S LOCAL 8 353
(a) Post a copy of the notice attached hereto marked "Appendix"'
in conspicuous places at each of Respondents' meeting halls and busi-
ness offices in the area of Portland, Oregon, where notices and com-
munications to members of the Respondents are customarily posted,
and, the Company willing, in conspicuous places on the premises
of the Company on bulletin boards where notices to employees are
customarily posted. Copies of said notice, to be furnished by the
Regional Director for the Nineteenth Region, shall, after being duly
signed by a duly authorized officer of the respective Respondent
Unions, be immediately posted and maintained for a period of 60
consecutive days thereafter. Reasonable steps shall be taken by each
of the Respondents to insure that said notices are not altered, defaced,
or covered by any other material.
(b) Notify the Regional Director for the Nineteenth Region, in
writing, within 10 days from the date of this Order, what steps each
of the Respondents has taken to comply herewith.
' 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."
APPENDIX
NOTICE TO ALL MEMBERS OF THE INTERNATIONAL LONGSHOREMEN'S
AND WAREHOUSEMEN'S UNION LOCAL 8; INTERNATIONAL LONG-
SHOREMEN'S AND WAREHOUSEMEN'S UNION LOCAL 92; AND INTERNA-
TIONAL LONGSHOREMEN'S AND WAREHOUSEMEN'S UNION AND TO
ALL EMPLOYEES OF GENERAL ORE, INC.
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify you that :
WE WILL NOT engage in.or induce or encourage the employees
of Columbia River Paving Co., California Bag and Metal Co.,
J. E. Hazeltine & Co., Shave Transportation Co., Inland Naviga-
tion Co., Nisshum Steamship Co., and Air Reduction Corpora-
tion, or of any other employer, to engage in a strike or a concerted
refusal in the course of their employment to use, manufacture,
process, transport, or otherwise handle or work on any goods,
articles, materials, or commodities, or to perform any services,
where an object thereof is to force or require General Ore, Inc.,
to assign work to members of International Longshoremen's and
Warehousemen's Union Local 8; International Longshoremen's
and Warehousemen's Union Local 92; and International Long-
shoremen's and Warehousemen's Union rather than to employees
354 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of a class designated by General Ore, Inc., except insofar as any
such action is permitted under Section 8 (b) (4) (D ) of the Act.
INTERNATIONAL LONGSHOREMEN'S AND
WAREIIOUSEMEN'S UNION LOCAL 8,
Labor Organization.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
INTERNATIONAL LONGSHOREMEN'S AND
WAREHOUSEMEN'S UNION LOCAL 92,
Labor Organization.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
INTERNATIONAL LONGSHOREMEN'S AND
WVAREHOUSEMEN'S UNION,
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.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
This proceeding was heard on December 8, 1959 , in Portland , Oregon . The pri-
mary question presented is whether Respondent Unions have violated Section
8(b) (4) (D) of the Act along with some subsidiary issues which will be discussed
below, including the question of whether Respondent International Union shares in
responsibility for the picketing on which the alleged violation is based.
In addition to the Decision and Determination of Dispute by the Board,' the
record in this case also includes the record of a proceeding between the same parties
before the National Labor Relations Board in a case docketed as Case No. 36-CC-59
litigated on Tuesday, March 10, 1959, in Portland, Oregon.' Also included in the
record of a proceeding held pursuant to Section 10(k) of the Act between the same
parties in the matter designated 36-CD-18 which in turn incorporates not only the
hearing involving the violation of Section 8(b)(4)(A) but the record in the pro-
ceeding in the U.S. District Court of Oregon (Civil No. 10086) which was made in
connection with the application of the General Counsel to have the U.S. district court
issue a preliminary injunction against the Respondent Unions enjoining conduct
allegedly violative of Section 8(b)(4)(A) and (D) of the Act. The proceeding in
the district court was held between February 24 and March 6, 1959.
The specific question presented is whether the Employer, General Ore, in assigning
its own employees to do certain work followed by picketing of General Ore by
Respondents gives rise to a violation of Section 8(b) (4) (D ) of the Act on the part
of Respondents.
Upon the entire record in the case, and upon consideration of the brief of the
International Longshoremen 's and Warehousemen 's Union, I make the following:
'International Longshoremen's and Warehousemen's Union Local 8, et al. (General
Ore, Inc), 124 NLRB 626.
2 The Board in this matter has determined that the named Respondents have violated
Section 8(b) (4) (A) of the Act. This finding was made in connection with same events
here involved.
INT'L LONGSHOREMEN'S, & WAREHOUSEMEN'S LOCAL 8 355
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
General Ore, Inc., herein sometimes called the Company, is an Oregon corporation
engaged at the port of Portland in unloading bulk aluminum ore. Harvey Aluminum,
Incorporated, a California corporation, is engaged in the business of manufacturing
aluminum products. The Company is wholly controlled and supervised by Harvey
Aluminum. After the inception of the facts giving rise to this present dispute,
General Ore was organized as a corporation apparently solely for the purpose
of conducting the unloading facilities in Portland on behalf of Harvey Aluminum.
The recent annual value of the material shipped by Harvey Aluminum outside the
State of Oregon was valued in excess of $1,000,000,000. Harvey Aluminum pur-
chased from outside of the United States, aluminum ore exceeding in value $1,000,-
000,000 since May 1, 1958. Since August 1, 1958, Harvey Aluminum paid to
General Ore $52,000 for services and over $100,00 for shipping costs incurred by
General Ore. It is found that General Ore, Inc., is engaged in commerce within
the meaning of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
International Longshoremen 's and Warehousemen's Union Local 8; International
Longshoremen 's and Warehousmen 's Union Local 92; and International Longshore-
men's and Warehousemen 's Union are labor organizations within the meaning of the
Act.3
III. THE UNFAIR LABOR PRACTICES
A. Background and events
Some of the procedural steps involved will be noted inasmuch as Respondents
contend that in connection with the processing of this matter they were denied due
process by the Board's failure to follow its own rules and the statutory requirement
with respect to the expeditious conduct in making a resolution of this dispute as well
as the denial of due process in connection with the holding of the hearing providing
the record on which the Board's decision and determination of dispute was based.
The charge in this matter was filed on October 29, 1958. Service by mail of this
charge was initiated on October 29, 1958.
The initiation of the notice of hearing by mail was made on Respondents on
February 11, 1959; setting a date for hearing on March 17, 1959, which was con-
tinued to March 31, 1959.
The application by the General Counsel for an injunction against the purported
violations of Section 8(b) (4) (A) and (D) was heard in the U.S. district court com-
mencing on February 24, 1959. The statements of the U.S. district court judge indi-
cated that he had been in conference with counsel for the parties looking toward a
resolution of the dispute without litigation prior to this date on several occasions.
The record of U.S. district court reflects the presence as counsel of the General
Counsel of a Mr. Charles Latimer during the course of the proceedings leading to
the issuance of a preliminary injunction.
Subsequently, Charles Latimer was the hearing officer in the proceeding wherein
the record was made in which the Board based its decision and determination of
dispute in this matter. This decision and determination held that Respondents had
engaged in activities which provided reasonable cause to believe they had violated
Section 8(b)(4)(D) in that they were picketing and inducing employees of other
employers to engage in concerted refusal in their employment to transport goods or
perform services with an object of forcing the Company to assign work to the mem-
bers of Respondents rather than to its own employees.
In the instant proceeding, the General Counsel offered the record made in the
Section 10(k) proceeding. This was received with the reservation that the position
of the Respondents taken in the prior proceedings would be preserved and the prior
records incorporated in the instant matter would be used as probative evidence and
not be vulnerable as constituting objectionable hearsay evidence.
In April 1958, Harvey Aluminum made an arrangement with the Willamette's
Tug and Barge Company whereby Willamette agreed to deliver a limited number of
cargoes of alumina ore to the new unloading facilities of the Company at Portland,
Oregon.
3 The complaint alleges and the answer admits the status of the Respondent Unions as
labor organizations.
356 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Including those present at a meeting on May 1, 1958, initiated by Willamette,
were representatives of Respondents including James Fantz, International repre-
sentative of the ILWU, Anderson and Mays, officers of Respondent Local 8, and
Rossiter, a representative of Willamette, as well as representatives of General Ore.
Rossiter had initiated this meeting in order to avoid jurisdictional questions as to
who should perform certain work and he also stated that he was not in any position
to make any arrangement with Respondents in connection with the use of their
member longshoremen except for the limited test unloading that Willamette was
engaged to perform. At this meeting Fantz stated that after the test runs were over,
the Longshoremen, i.e., the Respondents, would claim complete jurisdiction over all
the unloading work including the ship unloading work, barge operations, and the
rail car loading operations.
There was another meeting on May 2, 1958, including the individuals named at
the May 1 meeting as well as representatives of the Portland Stevedoring Company;
the secretary of the Pacific Maritime Association, R. O. Hoge; and the industrial
relations director for Harvey Aluminum, Albert Hinz. At this meeting an arrange-
ment was made with respect to the unloading of the next ship in connection with how
many member of Respondents would be employed. As a result of this meeting it
was agreed that Willamette would use Portland Stevedoring Co., a member of Pacific
Maritime Association, to secure personnel for unloading the initial cargoes. The
Portland Stevedoring Company was obligated by contract to hire only members of
Local 8 and to pay the wage scale set forth in the collective-bargaining contract
made on behalf of Local 8 and the Pacific Maritime Association .4
Another meeting transpired on May 16, 1958, involving the parties above named
and an arrangement was made with respect to the use of members of Respondents in
connection with the loading of the second ship. At this meeting, the chairman of
the industrial relations committee of Local 8, Gordon Mays, stated that the arrange-
ments for unloading the first two ships would not be acceptable in connection with the
unloading of the anticipated third ship. The comments of Mays and the other
representative of Respondents makes it clear that it was their position commencing
with the third ship that the longshoremen should be the only class of employees en-
gaged in unloading the ships.
Anderson, the secretary of Respondent Local 8, requested Hoge, the secretary
of the Pacific Martime Association, to have a meeting of all parties concerned with
respect to the unloading of the third ship which was due in August. This meeting
was held on July 25, 1958, at the offices of the Pacific Maritime Association. Hinz,
the industrial relations director for Harvey Aluminum, Fantz, Anderson, and Hoge
were included among those present. At this meeting Fantz stated that the next ship
would not be unloaded unless members of Respondents were permitted to perform
the work.5 At this meeting, Fantz, in response to an inquiry by Hinz, stated that
the Company could not employ longshoremen directly and it would either have to
join the Maritime Association or secure employees who were members of Re-
spondents through a stevedoring company that was a member of that Association.
The next meeting occurred on July 30, 1958, which included Hinz and Mays,
the chairman of the industrial relations committee of Respondent Local 8.6 At this
meeting Mays and Anderson, representatives of Respondent Local 8, again made
it clear that the third ship would not be unloaded unless a contract acceptable to
Local 8 was executed.
On August 4, 1958, Fantz called Hinz by telephone to ascertain the position of the
Company with which Hinz was connected in the capacity of industrial relations
director?
4 The Pacific Maritime Association includes in its functions a system whereby the mem-
bers of that Association and others who file collective-bargaining contracts with it and
pay a fee for such services have their employees paid by the Association which by this
method is able to more accurately make deductions with respect to insurance , old age
benefits, and to compute vacation rights. The benefits of this system to the individual
employees who are members of Respondents is clear as the nature of their work occasions
them to work for various employers in the course of their employment.
6 Members of Respondents are used in the context as individuals who are "displatched
through the Respondents' hiring hall" and this phrase does not necessarily contemplate a
formal membership in the Respondents' organization.
O The record reflects a communication from Fantz to the International office in San
Francisco indicating that he was going on vacation for 2 weeks commencing July 27, 1958.
7 General Ore, which was formally organized shortly before July 31, 1958, for the pur-
poses of this proceeding, is found to be an integral part of Harvey Aluminum. It is
found that Hinz was the industrial relations director of General Ore in fact, if not
in name
INT'L LONGSHOREMEN ' S & WAREHOUSEMEN 'S LOCAL 8 357
The third ship arrived on August 5, 1958 , and its unloading commenced with
employees of General Ore. Pickets from Respondent Local 92 picketed the third
ship in boats and Respondent Local 8 picketed on the shoreside of the ship. The
picket signs read as follows:
General Ore unfair to ILWU Local 8.
General Ore unfair to ILWU Local 92.
The U.S. district court issued an injunction against picketing in March 1959.
Prior to this time, six ships in all had been unloaded by General Ore employees.
During this period it had approximately 12 employees on a permanent basis and
when a ship would arrive for unloading approximately 25 additional employees
would be utilized.
It is found Respondents have failed to comply with the decision in the Board's
decision and determination of dispute . Their failure to express assent to the deci-
sion as requested by the Board 's Regional Director and their position in this
proceeding that the Board does not have power to issue an enforceable order
provides the basis for this finding.
B. The issues
The issues to be resolved are as follows:
(1) Is there an existence of a jurisdictional dispute and has the Board followed
the statute in making its decision and determination of dispute in finding that the
members of Respondents were not entitled to the work assigned by the Company
to its employees?
(2) Is there any procedural defect in connection with the prior litigation and
hearing in this matter which would deprive the Board of jurisdiction to enforce an
order against Respondents?
(3) Does the record establish that the picketing had for its object a purpose
violative of Section 8(b)(4)(D)?
(4) Does the record establish responsibility of Respondent International for the
picketing, and assuming the Respondent International was responsible for the pick-
eting when the picketing placards did not reflect Respondent International's par-
ticipation in the picketing, does the record justify a finding that Respondent Inter-
national participated in any inducement of employees of other employers?
1. The existence of a jurisdictional dispute within the meaning of Section 10(k)
The meetings previously noted and the interchanges made provide a clear indica-
tion that an object of the picketing was to require the Company to assign work to
members of Respondents rather than to its employees.8
The Board has recently reaffirmed its interpretation as to its function in connec-
tion with Section 8(b) (4) (D). It is the Board's view that a determination that a
certain class of employees is not entitled to the claimed work fulfills its function
under Section 10(k) of the Act .9
Respondents contend that there is no jurisdictional dispute here and further that
the statutory prerequisite to an unfair labor practice proceeding is not present in
that the Board has not assigned the work which they contend the Board is com-
pelled to do by the terms of the statute to one of the classes of employees com-
peting for the same work.
With respect to the necessity of the Board assigning the work to one of the classes
in order to fulfill its statutory obligation under Section 10(k) of the Act, it is evi-
dent that the Board's decisional precedents stand for the proposition that making a
determination that a particular class is not entitled to perform the work in question
is a determination of the dispute within the meaning of Section 10(k).10
8 The statute proscribes inducing employees of other employers to withhold their services
or make deliveries where the object is to force any employer (here General Ore) to assign
particular work to employees in a particular labor organization or in a particular trade,
craft, or class rather than to employees in another labor organization or in another trade,
craft , or class.
0 International Typographical Union, at at . ( Worcester Telegram Publishing Company,
Inc.), 125 NLRB 759; see International Longshoremen's and Warehousemen's Union
at at. v. Juneau Spruce Corporation, 342 U.S. 237.
io Respondent cites three U.S. circuit court decisions at variance with the interpretation
of the Board • N.L.R.B. v. United Association of Journeymen and Apprentices, etc, 242
F. 2d 722 (C.A. 3) ; N.L R.B. v. United Brotherhood of Carpenters , etc, Local 60, at at.,
577684-61-vol. 128-24
358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Procedural questions raised by Respondents
The procedural defects alleged by Respondents which deprive the Board of juris-
diction consist in what Respondents contend was a failure by the Board to follow
the statute and its rules in having an expeditious hearing. Respondent points to the
section of the Act which requires expeditious handling of cases seeking interim
relief as well as Section 10285 of the Board's Rules and Regulations then in effect
which provide for the issuance of the complaint within 5 days of the date when such
injunctive relief is first sought. The argument seems inapposite here since the statute
contemplates by its wording the Regional Director shall seek a voluntary adjustment
of the dispute and the initial procedure following the filing of the charge in a
situation such as the one here does not involve a complaint but a hearing conducted
pursuant to Section 10(k) of the Act. As previously noted, the application for
injunction was filed on November 21, 1958. Because of the settlement negotiations,
the trial in the injunction proceeding was not commenced until February 24, 1959.
In view of this, the initial notice of hearing issued on February 9, 1959, the Section
10(k) hearing cannot be found to have been unreasonably delayed.
Respondents' claim that the fact that Charles Latimer who was one of the counsel
for the General Counsel at the injunction proceeding in the U S. district court, and
also was the hearing officer in the Section 10(k) proceeding, was a violation of due
process. Respondent emphasized the denial to them of the analysis prepared by
Mr. Latimer with respect to the Section 10(k) proceedings deprives them of evidence
to which they are entitled. The authorities cited in Respondent International Unions'
able brief have been carefully examined. The generalized comment that suggests
itself in connection with the contention of Respondents on this point is that Re-
spondents were afforded an opportunity to litigate the questions involved here
without restraint. The decision and determination of dispute was made by the
Board pursuant to the Act and not by Mr. Latimer. Although it may be argued
the analysis of Mr. Latimer might have some effect upon the ultimate decision of
the Board, this would entail a presumption that the Board was not carrying out its
statutory duty which the Trial Examiner is not prepared to find. Further, since
the same question was available for litigation in an unfair labor practice proceeding
in the instant case, it seems evident that the Respondents have not here been de-
prived of any substantial procedural right in the Section 10(k) hearing. Although
the Trial Examiner followed the Board's Rules and Regulations in quashing a
subpena duces tecum addressed to Charles Latimer calling for his testimony and the
production of his analysis in the Section 10(k) proceeding, it is found that the
Respondents have not demonstrated how any evidence adduced from Mr. Latimer
would be material in this matter. National Union of Marine Cooks et al. (Irwin-
261 F 2d 166 (CA. 7) ; N L.R B v. Radio f Television Broadcast Engineers Union,
Local 1212, et al. (Columbia Broadcasting System), 272 F. 2d 713 (C.A. 2).
These three circuit court decisions differ from the Board's interpretation in that the
circuit courts are of the opinion that the determination of a dispute means that the
Board must make an affirmative assignment of work to one of the unions or classes of
individuals claiming the work involved
It is observed that an affirmative assignment of work to a particular group or class as
here, which would be the employees of General Ore, would have the potential of having
the Board's determination in effect be a discriminatory one within the meaning of
Section 8(a) (3) of the Act. Although this assignment would not be an enforceable order,
it seems apparent that it would create problems with respect to nondiscriminatory em-
ployment and would have a potential of creating a situation where the Board would be
forced to take an inconsistent position in connection with subsequent unfair labor practice
proceedings involving alleged discrimination in connection with employees assigned work
Where there is only one union claiming the work and there is picketing being carried
on to attain the assignment of work to members of that union, it is conceded that there
is an apparent overlapping between this situation and the decisional precedents of the
Board interpreting Section 8(b) (1) (A), where a minority union is picketing for recogni-
tion Whether or not this apparent overlapping of activities proscribed by Section
8(b) (1) (A) and (D) support Respondents' contentions that a jurisdictional dispute re-
quires affirmative assignment of work claimed has not been answered with judicial finality.
It is not believed that any useful purpose could be served by here reviewing the legislative
history of Section 10(k) and its relationship with other sections of the Act, which have
been considered by the Board and courts in decisions cited herein. It is merely noted that
if an affirmative assignment of work is repugnant to the other sections and purposes of
the Act, a determination that one class of employees is not entitled to the claimed work
is arguably the correct application of Section 10(k), despite some legislative history to
the contrary.
INT'L LONGSHOREMEN'S & WAREHOUSEMEN'S LOCAL 8 359
Lyons Lumber Co.), 83 NLRB 341; Local No. 27, International Typographical
Union et al. (Heater-Starke Printing Co., Inc. et al.), 121 NLRB 1013. Since the
Board by statute alone has power to render the decision and determination of dis-
pute and since the hearing officer in this case , Mr. Latimer , is precluded from making
any recommendation findings or conclusions , the cases cited by Respondent as
authority for their entitlement to see the analysis of the Section 10(k) hearing by
Mr. Latimer must be rejected.
3. The purpose of the picketing
Respondents contend that their object in picketing was merely to have a discussion
with the Company. Respondents announced during the course of the injunction
proceeding in the U.S. district court that the pickets would be withdrawn immedi-
ately if Respondents would merely meet with them . The recital of events herein
makes it clear that it was the intent of Respondents to have their members employed
through the hiring hall then in existence . This was stated as a condition without
qualification . The record reflects that the Company refused to meet with Respond-
ents because by so doing they contended they were exposing themselves to an
unfair labor practice charge under the Act. In view of the fact that there is no
showing in the record that Respondents represented any, let alone a majority of
the employees of the Company, this position seems meritorious with respect to
the probable application of the Act. As indicated herein both the International
representative and the local representatives stated to the Company that the third
ship would not be unloaded unless the members of Respondents performed all the
work in connection with unloading of this ship. Hence, in view of this, it seems
unrealistic to regard the picketing as merely a request for discussion rather than for
an actual work assignment and it is found that the picketing was conducted for the
purpose of securing assignment of work to the members of Respondent unions
rather than to the employees of the Company.
4. The responsibility of the International for picketing , and the inducement of
employees of other employers by the International
Respondent International strenuously contends in its brief that the evidence does
not support a finding that the Respondent International was a party to the picketing.
It further contends that the record is barren of any evidence that the International
was responsible for inducing employees of other employers not to perform services
or transport goods on behalf of the Company for the object proscribed in Section
8(b) (4) (D).
The record reflects that the responsibility of the International hinges on the
activities of James Fantz , an International representative . His duties as a member
of the International includes the counseling and assistance of various constituent
locals of the International, including the Respondent Locals named herein. In the
case at bar, Fantz participated in the meetings and made statements which indicated
that the International 's position was identical with that of the Respondent Locals
involved , i e., that their member longshoremen were entitled to the unloading work
on the Portland docks including the work in connection with the unloading opera-
tion of the Company. At these meetings , Fantz appeared as a representative of
the International and introduced himself as such. Hence, there seems little ques-
tion that as far as the Company is involved Fantz held himself out to be a repre-
sentative of the International . In this connection , Section 2 ( 13) of the Act
assumed some significance.
In determining whether any person is acting as "an agent " of another person
so as to make such other person responsible for his acts , the question of whether
specific acts performed were actually authorized or subsequently ratified shall
not be controlling.
It can scarcely be questioned that Respondent International and Respondent
Locals had an identity of interest in obtaining additional work for the longshoremen
in the Portland area. In fact, as far as this record reflects, the International
although perhaps a separate legal entity includes the same people who have member-
ship in Respondent Locals. At the picket site on about May 19, Fantz informed
Hinz that "All our boys are going to observe the picket line." Merely because the
record does not provide any direction to Fantz from the International to participate
in the controversy with General Ore is not regarded as having any significance
by the Trial Examiner . The statements of Fantz acting as an International repre-
sentative demonstrates that the International and the Locals were here acting in
concert.
360 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It is further argued that the International has not been shown in any event to
have violated Section 8(b) (4) (D ) because the necessary requisite to provide a
violation of that section must include proof that the violator induced employees of
other employers not to perform services, etc., with the object of accomplishing a
proscribed purpose. The presence of Fantz on one occasion near the sight near the
picketing does not, standing alone, establish proof that the International by his pres-
ence induced and encouraged employees of other employers not to perform services,
etc., for the Company.il That there was an inducement to concerted activity in
refusing services to the Company is clearly established by this record.12 However,
the question remains as to whether the International as well as the Locals is
responsible for the inducement which is present here.
The constitution of the International Longshoremen and Warehousemen's Union
reflects that in section 2 it is provided that "It shall be the duty of all locals: to
observe and comply . . . with all decisions of the International officials made in
keeping with and pursuant to the authority contained in this constitution; ...."
Because the picketing placards did not indicate that the International was a par-
ticipant in the picketing does not in itself preclude the International from having
responsibility for the picketing. The statements of Fantz noted above demonstrate
that as far as the employers were concerned the International and the Locals were
acting in concert with respect to attempting to get the work assigned to its members.
Having found that International and the Locals were acting in concert in con-
nection with the institution of a picketing , it is not essential that the third parties
involved, i.e., the employees of other employers must know that the International
was responsible for the picketing in order for the inducement to be effected if in
fact the International was acting in concert with the Local in having the picketing
instituted.13 Many analogies suggest themselves in connection with this situation
one of which would be that the officers of the Locals involved would be responsible
for the picketing even though their names were not on the picketing placards and
the employees of other employers would not know that these individuals had been
the cause of the picketing. Similarly because the International by its participation
in the negotiation and in expressions of views has demonstrated that it was acting
in concert with the Locals it need not be named on the picketing sign in order to
have responsibility for the picketing and in turn inducement of employees of
employers servicing or delivering goods to the Company.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondents set forth in section III, above, occurring in
connection with the operations of the Company set forth in section I, above, have a
substantial relation to commerce among the States and foreign countries and tend
to lead to labor disputes burdening and obstructing commerce and the free flow
of commerce.
CONCLUSIONS OF LAW
1. International Longshoremen 's and Warehousemen's Union Local 8; Interna-
tional Longshoremen's and Warehousemen 's Union Local 92; and International
Longshoremen 's and Warehousemen's Union are each labor organizations within
the meaning of the Act.
2. By engaging in picketing to induce the employees of other employers including
Columbia River Paving Co., California Bag and Metal Co., J. E. Hazeltine & Co.,
Shave Transportation Co., Inland Navigation Co., Nisshum Steamship Co., and
"The Decision and Determination of the Board in 124 NLRB 42, involving the same
parties, contains a finding that International Representative Fantz was seen on several
occasions near the picket line at the entrance of the dock area Although the Trial
Examiner could find an indication in the record that Fantz had been seen only on one
occasion near the dock area , and picketing sites, it is not regarded as significant whether
the record indicates he was present more than once in connection with the findings made
herein with respect to the Respondent International ' s responsibility for the picketing
"As found in the decision and determination of dispute the record establishes the
picketing of the area in the vicinity of the Company 's unloading facilities induced em-
ployees of several other employers to withhold services affecting the Company, Including
employees of Columbia River Paving Co., California Bag and Metal Co , J E. Hazeltine &
Co., Shave Transportation Co, Inland Navigation Co., Nisshum Steamship 'Co., and Air
Reduction Corporation.
19 United Brotherhood of Carpenters & Joiners of America, Local Union No. 978, et ai.
(Kenneth Markwell and William Hartz, partners d/b/a Markwell & Hartz Contractors),
120 NLRB 610 ; Alexander-Stafford Corporation, 118 NLRB 79.
H & M KNITTING MILLS, INC. 361
Air Reduction Corporation to engage in a concerted refusal in their course of their
employment to perform services affecting the Company with an object of forcing or
requiring the Company to assign work to members of Respondent organizations
rather than to its own employees , Respondents have engaged in and are engaging
in unfair labor practices within the meaning of Section 8(b)(4)(D ) of the Act.
3. The Respondents have not complied with the decision and determination of
dispute previously issued by the Board in this controversy.
4. The implementation of the procedural steps and the chronology thereof taken
with respect to this controversy does not provide a basis for depriving the Board of
its power of jurisdiction to issue an order in this proceeding.
5. Respondent International is responsible for the picketing which formed a part
of the unfair labor practices act violative of Section 8(b)(4)(D) of the Act.
6. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of the Act.
[Recommendations omitted from publication.]
H & M Knitting Mills, Inc., Petitioner and International Ladies
Garment Workers ' Union , AFL-CIO. Case No. 2-RM-1049d.
July 29, 1960
SUPPLEMENTAL DECISION AND DIRECTION
Pursuant to a Decision and Direction of Election issued by the
Board on November 19, 1959, an election by secret ballot was con-
ducted on December 11, 1959, under the direction and supervision of
the Regional Director for the Second Region, among the employees
in the appropriate unit. After the election, the parties were furnished
with a tally of ballots which showed that of 111 ballots cast, 33 valid
ballots were cast against the Union and 78 ballots were challenged.
The Regional Director investigated the challenges and on January
29, 1960, issued his report on challenged ballots, in which he recom-
mended that the challenges to the ballots of Laura Brighton and Vera
Clark be sustained, that the challenges to the ballots of Robert
Edwards and Verna Brown be overruled, and as to the remaining 74
challenged ballots involving the eligibility of economic strikers and
their replacements, he made findings of fact but no recommendations.
Thereafter, the Employer filed timely exceptions to the report.
The Board has considered the Regional Director's report on chal-
lenged ballots and the Employer's exceptions thereto, and upon the
entire record in this case, makes the following findings :
The Regional Director found that on March 4, 1959, employees of
the Employer instituted a strike against the Employer to compel it
to recognize the Union. It also appears that the strike was in prog-
ress at the time of the election on December 11, 1959. Of the 78 bal-
lots challenged at the election, 46 were cast by alleged strikers, 30 by
alleged replacements, and 2 by alleged supervisors.'
' The Regional Director recommended that the challenges to the ballots of Laura
Brighton and Vera Clark be sustained on the ground that they were replacements hired
128 NLRB No. 49