Licensed Tugmen's & Pilots' Protective Assn.

National Labor Relations Board - Board Decisions

Aug 22, 1962

138 N.L.R.B. 222 (N.L.R.B. 1962)

222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
established. However, questions as to the Board's legal or statutory
jurisdiction, involving as they do, the Board's reach under the Act,
have generally not been so resolved because of the complicated nature
of the legal and factual issues inherent therein and arising therefrom.
Such highly complex issues are not infrequently raised in cases, like
the present, which concern primarily the assertion of jurisdiction over
foreign flag vessels owned by foreign employers, manned by foreign
crews, and represented by foreign labor organizations. The Board's
informal Advisory Opinion procedures generally do not lend them-
selves to the development of the full and complete record essential to
enable the Board to make an informed judgment on the important
jurisdictional issues raised in foreign flag cases like the instant one.
Determination of such jurisdictional issues requires an adequate pres-
entation based upon a full and complete record, not present here.
Accordingly, IT IS HEREBY ORDERED, that the Petition for Advisory
Opinion herein be, and it hereby is, dismissed. The Board's dismissal
is not to be construed as determining the merits of the jurisdictional
issue with respect to Upper Lakes or as precluding, in appropriate
circumstances, the assertion of jurisdiction over secondary American
employers whose operations are affected by conduct of others arising
in the United States. Thus in the instant case, even assuming argu-
endo the lack of jurisdiction over Upper Lakes, the Board is not fore-
closed from invoking its jurisdiction over the picketing activities in
the port of Chicago to the extent that they affect the operations of
secondary American companies over whom the Board will assert
jurisdiction. However, we do not reach this issue because it has not
been presented to the Board upon the record herein. Under these
circumstances, the Order herein is limited to the single issue raised
with respect to the Board's jurisdiction over Upper Lakes.
Licensed Tugmen 's and Pilots' Protective Association of America,
AFL-CIO and Grain Elevator Workers Union , Local No. 418,
International Longshoremen's Association , AFL-CIO and Grain
Trimmers Union , Local No. 101, International Longshoremen's
Association, AFL-CIO and Twin City Barge and Towing Com-
pany. Cases Nos. 13-CP-35, 13-CC-271, and 13-CC-276. August
22, 1962
DECISION AND ORDER
On May 1, 1962, Trial Examiner Morton D. Friedman issued his
Intermediate Report in the above-entitled proceeding, in which he
concluded that Licensed Tugmen's and Pilots' Protective Assoeia.tion
of America, AFL-CIO, is not a labor organization within the mean-
ing of the Act, and recommended that the complaint be dismissed,
138 NLRB No. 31.
LICENSED TUGMEN'S & PILOTS' PROTECTIVE ASSN. 223
as set forth in the attached Intermediate Report. Thereafter, the
General Counsel filed exceptions to the Intermediate Report 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 [Dlembers Leedom, Fanning , and Brown].
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
this case , and hereby adopts the findings , conclusions , and recommen-
dations of the Trial Examiner.
ORDER
The Board adopts as its Order the Recommended Order of the
Trial Examiner.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
This proceeding with all parties represented was heard before the Trial Examiner,
Morton D. Friedman on January 10, 11 , and 12 , 1962, on charges filed August
29, 1961 , and October 9, 1961, and the consolidated complaint herein issued
October 23 , 1961 . The issues litigated were whether Licensed Tugmen 's and Pilots'
Protective Association of America, AFL-CIO ( herein called the Tugmen ), violated
Section 8(b) (7) (A) of the Act, and whether the Tugmen and Grain Elevator
Workers Union , Local 418, International Longshoremen 's Association , AFL-CIO
(herein called Elevator Workers ), and Grain Trimmers Union , Local No. 101,
International Longshoremen 's Association , AFL-CIO (herein called Grain Trim-
mers ), violated Section 8(b) (4) (i ) ( ii) (B) of the Act. All parties were afforded
full opportunity to examine and cross -examine witnesses , to introduce evidence, to
present oral argument , and thereafter to file briefs. The parties waived oral argu-
ment. Briefs were received from counsel for the Charging Party, Twin City Barge
and Towing Company (herein called the Company or Twin City), and from counsel
for the General Counsel.'
Upon the entire record and from my observation of the witnesses , I make the
following:
FINDINGS OF FACT
I. COMMERCE FACTS
The following commerce facts are alleged by the complaint and although denied
in the Respondent 's answers, were stipulated as true upon the record at the hearing:
(a) Twin City is, and has been at all times material herein , a Minnesota corpora-
tion with its principal place of business located at St. Paul , Minnesota . It is engaged
in the business of providing towing and switching services for vessels operating in
interstate commerce in the Minneapolis -St. Paul and Chicago harbor areas. In
the course and conduct of its business during the year immediately preceding the
issuance of the complaint herein , a representative period, Twin City received in
excess of $50,000 for the transportation of goods and materials shipped directly
from points outside the State of Illinois into the State of Illinois.
1 At the end of the General Counsel 's case-in-chief , and after the General Counsel had
rested, counsel for Respondents Elevator Workers and Grain Trimmers moved to dismiss
the complaint as against these two Respondents on the grounds that the General Counsel
had failed to make out a prune facie case In my judgment , and weighing all of the
factors presented at the hearing , I granted that motion and dismissed the complaint as
against the Respondents Elevator Workers and Grain Trimmers . It should also be noted
at this point that the Respondent Tugmen rested upon the General Counsel's case-in-chief.
224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Norris Grain Company, herein called Calumet Elevator , is, and has been
at all times material herein, an Illinois corporation with its principal place of
business located at Chicago, Illinois. It is engaged in the storage and distribution
of grain and other commodities. In the course and conduct of its business during
the year immediately preceding the issuance of the complaint herein Calumet Ele-
vator shipped goods, materials , and supplies valued in excess of $50,000, directly
to States of the United States other than the State of Illinois.
(c) Pullman Trust and Savings Bank, herein called Pullman , is, and has been at
all times material herein, an Illinois corporation with its principal place of business
located at Chicago, Illinois. It is engaged in the general commercial banking
business. In the course and conduct of its business during the calendar year
immediately preceding the issuance of the complaint herein , Pullman sent a volume
of checks for collections valued in excess of $50,000, directly to States of the United
States other than the State of Illinois.
From the foregoing I find that all of the business enterprises whose operations
have been described above are engaged in , interstate commerce and that the Board's
assertion of its jurisdiction over their operations will effectuate the purposes of the
Act.
II. THE LABOR ORGANIZATIONS INVOLVED
Grain Elevator Workers Union , Local No . 418, International Longshoremen's
Association , AFL-CIO, and Grain Trimmers Union , Local No. 101, International
Longshoremen 's Association , AFL-CIO, are concededly labor organizations admit-
ting to membership employees of Calumet Elevator.
The complaint alleges that Licensed Tugmen's and Pilots ' Protective - Association
of America , AFL-CIO, herein called the Tugmen , is a labor organization within the
meaning of Section 2(5) and 8(b) of the Act . The Tugmen denies this allegation.
These opposing contentions are hereinafter resolved.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background , issues, and contentions i
Since about 1948 or 1949 the Tugmen had represented the captains , pilots, and
engineers on board vessels owned by Chicago Towing Company, which was engaged
in providing towing and switching services on the Great Lakes and tributaries in
the Chicago , Illinois, area . The Tugmen and Chicago Towing were operating under
their most recent contract when , in July 1961 , Chicago Towing laid off its crews,
went out of active business and sold its floating equipment to Twin City, the Charg-
ing Party herein . Thereafter , Twin City , which had formerly operated mainly in
the Minneapolis -St. Paul area , began operating in the Chicago area the equipment
purchased' from Chicago Towing with crews supplied by the National Maritime
Union, herein called NMU, and by Masters, Mates, and Pilots Assocation , herein
called MMPA , with which organizations Twin City has had contracts for a number
of years, the latest contracts being in effect as of the time of the events herein.
At or shortly after the layoff of the Tugmen's members and the transfer of the
property from Chicago Towing to Twin City, there were alleged threats to Pullman,
the lending institution which financed the sale of the equipment ; a picket boat
appeared at Calumet Elevator's slip shortly after two grain barges which had been
placed there by Twin City towboats appeared in the slip; the operator of a ware-
house which permitted Twin City tugs to bring barges to its slip was allegedly
threatened with picketing ; and, finally, pickets appeared at the premises of Pullman.
The complaint alleges that all of the foregoing activity was instigated by the
Tugmen for the purpose of forcing Twin City to recognize the Tugmen as the
bargaining representative of its employees at a time when Twin City had lawfully
recognized NMU and MMPA as bargaining representatives and no question of
representation could be raised , and that thereby Section 8 ( b)(7)(A) of the Act
was violated . The complaint further alleges that the secondary activity was violative
of Section 8(b) (4) (i ) ( ii) (B) on the part of Tugmen and Elevator Workers and
Grain Trimmers . At the hearing , I dismissed for failure to prove prima facie case
at the close of the General Counsel 's case, the allegations concerning the Elevator
Workers and the Grain Trimmers.
In its answer , the Tugmen denies not only the allegations of the complaint as to
the alleged activities which, if proven , might constitute violations of the Act,2 but
also deny that the Tugmen is a labor organization within the meaning of Section
2 If the merits were reached here, there would be a serious question as to the identity of
the picket boat at Calumet Elevator and of the pickets at Pullman.
LICENSED TUGMEN'S & PILOTS' PROTECTIVE ASSN. 225
2(5) and 8(b) of the Act, contending that the Tugmen represents only supervisors
and does not represent employees within the meaning of the Act.
At the hearing, when counsel for the General Counsel rested, the Tugmen moved
to dismiss certain allegations of the complaint and rested on the General Counsel's
case. I reserved decision on the Tugmen' s motions .3
Thus the issues presented at this time are:
(a) Is the Tugmen a labor organization within the meaning of the Act? If it is,
(b) Did the Tugmen engage in the activities alleged?
(c) If so, did such activities constitute violations as alleged in the complaint?
Because the status of the Tugmen as a labor organization is a primary issue which
must be disposed of before the merits of the case can be considered, it is next
discussed.
B. The status of the Tugmen as a labor organization
1. The evidence
The constitution of the Tugmen provides that for an individual to be eligible for
membership,
He shall be regularly employed as a Master, Mate, Pilot, Engineer or Operator
of Naphtha, Gasoline, Electric, Diesel or Steam Tug or vessels classed as such.
Kenneth Hales, the president of Chicago Towing Company, credibly testified
that when his company was actively operating and had a contract with the Tugmen,
it operated a tugboat called the MV Traveller, and the engineer on that boat was
one Charles Kelly, a member of the Tugmen who had been employed upon being
referred by the Tugmen. The boat did not employ an oiler. According to Hales,
Kelly's job was to keep the mechanical equipment in good running condition and
to see that the vessel was properly fueled. Although Kelly had a license, he did
not have the authority to hire, discharge, suspend, transfer, layoff, or promote
employees nor could he effectively recommend the same. His was purely a labor
job and, at times, he would assist in making up or breaking out a tow or tying up
at a dock. At such times he was doing deckhand work.
However, Hales testified further that when Kelly did such deckhand work he did
it on an emergency basis caused by the nature of the tow or because of severe or
unusual conditions aboard the vessel. This was not a part of his regularly assigned
duties. Then Hales admitted on cross-examination that Kelly sometimes worked
on a boat with an oiler and that the oiler performed his duties both in the engine
room and on the deck and when the oiler was in the engine room he was under the
supervision of Kelly, the engineer. At such times Kelly had authority to direct
this individual as to what to do and how to do it. He further admitted that it was
a policy of the Company that if a boat was underway and the engineer would need
some help to clean a pump or take off a cover or oil an engine he could go above
deck and order a deckhand below to perform such duty. This was evidently in
cases even where there was no oiler. Ordinarily however, the deckhands and the
scow men were responsible not to Kelly but to the master of the MV Traveller.
The foregoing constitutes the total evidence with regard to any particular Tug-
men member operating aboard any particular boat.
Patrick J Cullnan, grand president of the Tugmen, was examined by the counsel
for the General Counsel as an adverse witness. Cullnan testified that the Tugmen
has as members and represents masters, mates, pilots, engineers, and operators.
It represents licensed engineers on sand boats, which are classified as tugs. The
Tugmen also represents licensed mates, engineers, conveyor engineers, and pump-
men on sand boats and cement vessels, and licensed mates, captains, chief engineers,
and assistant engineers on tankers.
The General Counsel and the Respondents stipulated that masters, or captains,
were supervisors. However, the General Counsel pursued the inquiry of Cullnan
into the other classifications, contending there were some nonsupervisory people
among them.
Upon being asked whether all of the people whom the Tugmen represents have
someone working under them Cullnan answered that to the best of his knowledge
all of them had presently but that this was not necessarily so in the past He also
explained that at certain times such as when the vessels were in drydock or being other-
wise repaired or laid up, the only personnel on the payroll are supervisory, the
captains and engineers.
Cullnan was further asked whether a dredge worker could be a member of the
8In the light of my disposition of the case, I find it unnecessary to pass upon the
Tugmen's specific motions to dismiss
226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Tugmen, to which Cullnan replied that if he qualified under the constitution he
could be a member. Asked what a dredge worker was, Cullnan explained that
he would be a man who belonged to the Dredge Workers Union, a part of the
Inland Boatmen's section of the Seafarers International Union, and who worked on
a dredge, scow, or pipeline connected with a dredge. But, he further explained,
that the Tugmen did not represent such an individual when he was employed as a
dredge worker. Moreover, the Tugmen has no provision restraining its members
from holding membership in other unions.
Upon further examination, Cullnan admitted that a person need not be a licensed
officer to be a member of the Tugmen but in such a case he would have to be
employed as a captain or engineer on a vessel. Cullnan also conceded that pilots
who brought oceangoing vessels into harbors on the Great Lakes might also be
members of the Tugmen but this employment would be supplemental to their pri-
mary employment as pilots or captains on Great Lakes vessels, because the latter
employment was not sufficient at times to afford a decent living. However, Cullnan
pointed out at the same time that while working as such harbor pilots on oceangoing
vessels, the men were not under the jurisdiction of the Tugmen. In further
explanation of this situation of Tugmen members being employed in occupations
not covered by the Tugmen's jurisdiction, Cullnan pointed out that the organiza-
tion has members who are bartenders and truckdrivers but while employed as such
bartenders or truckdrivers these members are not represented by the Tugmen acting
in its representative capacity.
In much the same manner Cullnan sought to explain certain testimony of a
Capt William E. Golden, a former business manager for the Tugmen local at
Ogdensburg, New York, who made an unsworn statement in March 1960 before
a House of Representatives subcommittee 4 to the effect that his local was made up
of dredge workers as well as pilots. Cullnan explained that while Tugmen members
might act as St. Lawrence Seaway pilots of oceangoing vesels. in that occupation
they were represented by another union. He also emphatically denied that Tug-
men had any members who were employed full time as dredge workers, that is,
dredge workers operating dredge machinery In such cases, where members of the
Tugmen were employed full time as dredge workers, they would be issued a with-
drawal card. Moreover, according to Cullnan, when the Ogdensburg local was in
existence and Captain Golden was its business agent, the members who worked on
dredges were not dredge workers as such but were members who worked under
the dredge contract of the Tugmen, and the members covered by this agreement
consisted of captains, engineers, and operators of tugboats and launches used in the
dredging operation, but this does not include people who work on the dredging
machinery, as they are not represented by the Tugmen in that capacity. Examina-
tion of the Tugmen's dredge contract shows that the classification of individuals
covered are tug captains, tug engineers, and operators, thus confirming Cullnan's
testimony.
With regard to engineers generally, in addition to the testimony of Hales, herein-
above related, Cullnan testified that the engineer is in charge of the engineroom of
a vessel fixed with the responsibility of maintenance, care, and operation of the
engine. In this capacity, the engineers have oilers and wipers, represented by other
organizations, who assist them and whom the engineers supervise. He further stated
that the engineer has sufficient authority to order the captain of the vessel to put
ashore if the engineer finds the engines not to be operating properly thereby making
the vessel unseaworthy. Cullnan also testified that engineers are watch-standing
officers and that they work on watches, or shifts, and that while on a shift a second
or third engineer has the same authority as a chief engineer, which in and of itself
embraces authority to direct individuals in their work.
To support the foregoing, the Tugmen introduced what it contended were all of
its current contracts. Most of these agreements speak in terms of supervisors when
referring to Tugmen's members such as captains, mates, engineers, and assistant engi-
neers, and pilots. However, these agreements merely set forth job classifications
such as captains, engineers, assistant engineers, and operators without defining such
terms. As a result, no description of the work actually performed by these people
aboard the vessels is afforded from the agreements.
One contract, with Erie Sand Steamship Company specifies a classification known
as a "pump engineer " This man or this classification according to Cullnan, operates
the pumps on sand vessels which reclaim sand or gravel from the bottom of the lake.
The pump lifts large quantities of sand and gravel from the bottom, distributes it in
4ITearings before the Subcommittee on Coast Guard, Coast and Geodetic Survey and
Navigation of the Committee on Merchant Mane and Fisheries, House of Representatives,
86th Cong, 2d sess, on H R 10593, March 9, 10, and 11, 1960
LICENSED TUGMEN'S & PILOTS' PROTECTIVE ASSN. 227
the holds of the vessels involved, and then pumps out the excess water from the
holds. Cullnan testified that even this engineer has one or two seamen under hint
who assist with the pumping operation and whom he directs. Another contract,
with Huron Portland Cement Company, speaks of a conveyor man or engineer.
According to Cullnan, this man is in charge of the conveying department which un-
loads bulk cement from holds of cement ships and loads the cement into silos on
the shore These conveyer men have under their supervision assistant conveyer men
and oilers according to Cullnan.
Another classification in issue is one alluded to heretofore, the so-called operator.
Cullnan testified that the term "operator" refers to a class of license whereby the
holder is authorized to operate a vessel under 65 feet or 15 tons. If a boat requires
a captain, the operator is a captain. If the requirement is for an engineer, the
operator is an engineer. As in the case of the other classifications, Cullnan testified
that operators always have men under them and whom they direct in their work.
Cullnan testified additionally, that where operators operate launches under the dredge
contract, they do so in towing dredging equipment and other marine equipment and
that launches and towboats are used interchangeably.
However, when asked about what skills an operator of a motorboat needed to
show to obtain a motorboat operator's license, Cullnan answered that all he needed
was to pass a physical examination, demonstrate that he knew the rules of the road,
and he must have been effectively recommended by three persons. Cullnan then
admitted that the Tugmen have members who hold only a motorboat operator's
license. However, he stated that even when these people operate a boat as small as
14 feet, they have crewmen under them to handle the lines. Moreover, claimed
Cullnan, such small launches would be used only in an emergency probably where
a tow has to be taken into a beach or very shallow water. Finally, Cullnan admitted
that his organization's members operated 35- to 40-foot launches for the Fitzsimmons
and Connell Division of Merritt, Chapman and Scott Corporation, but he did not
admit nor did General Counsel offer evidence to show that these launches were
handled by operators working alone.
Aside from the foregoing testimony as to the duties and authority of the members
of the Tugmen at their work, the record shows that the Tugmen is an affiliate of
the International Longshoremen's Association, AFL-CIO, and that Local 374, I.L.A.,
AFL-CIO, and the Tugmen are one and the same. Additionally, Cullnan, grand
president of the Tugmen, is also by virtue of his being president of Local 374 of the
I L.A., a vice president of the I.L.A. Thus, it is established by the record that the
Tugmen is an affiliate of a labor organization.
Additionally, there is introduced into evidence the contract between the Tugmen
and Chicago Towing Company. Hales, Chicago Towing Company's president,
testified that when this latest contract was negotiated, a business agent of the Fire-
men and Oilers Union, which represents some of the workers on board Chicago
Towing's vessels, negotiated the contract mutually for the Tugmen. the Firemen and
Oilers, and the Dredge Workers Union. Hales admitted that this was just his
impression and that the Tugmen were represented by a separate spokesman, but
insisted that Affleck, the Oilers' representative, did most of the talking. However,
Hales also admitted that all three organizations required member ratification before
any contracts could be signed. He was also nearly certain all three organizations
insisted all would sign the contract or none would sign. It was also shown that
the contracts ran for the same period of time and that a supplemental agreement to
the contract, concerning the continuation of Chicago Towing, was signed as one
single agreement by Chicago Towing and the Tugmen, Dredge Workers Union, and
Firemen and Oilers Union.
2. Concluding findings as to the status of the Tugmen as a labor organization
Counsel for the General Counsel and counsel for the Charging Party, contending
that the foregoing evidence establishes that the Tugmen is a labor organization, set
forth two main arguments. First, they contend that the evidence establishes that
the Tugmen represents employees within the meaning of the Act. Second, they
argue because the Tugmen is an affiliate of conceded labor organizations it follows
that the Tugmen is an alter ego of such labor organizations and therefore is liable
for its acts and, moreover, they reason that inasmuch as the Tugmen negotiated with
Chicago Towing Company for their last contract jointly with the Firemen and Oilers
Union and the Dredge Workers Union and because these organizations executed a
single document amending their three separate contracts they became each other's
agents: that, therefore, even if the Tugmen is not a labor organization in and of
itself. it is an agent of labor organizations and accordingly is accountable under the
Act for activity which the Act prohibits. I shall discuss these contentions seriatim
662353-63-vol 138 1G
228 DECISIONS OF NA1'1ONAL LABOR RELATIONS BOARD
It is elementary that when , as in the instant case, the complaint alleges that a
respondent is a labor organization and the respondent denies that it is, contending
that it represents only supervisors , the burden is on the General Counsel to prove by
a preponderance of the credible evidence that the respondent does, in fact , normally
represent and have as members individuals who are employees within the meaning
of the Act.
As heretofore shown , Cullnan took the position that only licensed masters, mates,
pilots, engineers , and operators are admitted to membership in the Tugmen. Yet,
later in his testimony , Cullnan admitted that unlicensed personnel working in the
foregoing classifications could be and were members of and represented by the Tug-
men. But, there is little or no significance in this apparent contradiction because,
as the Board has held, the fact that a marine officer possesses a Coast Guard license
does not, itself , determine supervisory status.5
Nor does the fact that most of the contracts introduced by the Tugmen speak
of the Tugmen's members as supervisors necessarily clothe the members with the
authority or status of supervisors . Indeed, the only way to determine whether they
are or are not supervisors is to examine what they do on board the vessels on which
they work . But, examination of the record fails to reveal , except in the case of
Kelly, the engineer aboard the Chicago Towing Company 's vessel MV Traveller,
what any individual engineer or other member of the Tugmen do aboard the vessels
which would materially assist in determining whether these individuals do or do not
possess the attributes of supervisors.
Counsel for the General Counsel also caused Cullnan to admit that pilots who
guided oceangoing ships into Great Lakes harbors might be members of the Tugmen.
Relying on Madden v. International Organization of Masters , Mates & Pilots of
America, Inc., AFL-CIO (Chicago Calumet Stevedoring Co.) 6 in which the court
of appeals affirmed a district court's finding that pilots of this type give technical
advice and assistance in this capacity and are not supervisors , counsel for the Gen-
eral Counsel argues that , therefore , the Tugmen represent nonsupervisors . But, in
this regard elements of proof are lacking even were I to accept the cited case as
binding precedent . Thus, Cullnan went on to explain that he did not know of any
pilots who were members of his organization who were currently doing pilotage for
oceangoing vessels; that if they were the Tugmen was not representing them in that
capacity and that, indeed , some other union was . This explanation by Cullnan was
not overcome in any way by any independent evidence proffered by counsel for the
General Counsel . I cannot, therefore , make the finding that the Tugmen represents
nonsupervisory pilots of oceangoing vessels.
As pointed out by the Tugmen's president and counsel , the Tugmen 's members
may be teamsters or bartenders at times, but are not represented by Tugmen in
those capacities . And even were I to discredit Cullnan's denials and his explanations,
in the absence of some independent evidence I do not feel compelled to find that the
opposite to what he testified represents the true state of facts 7
An almost parallel situation is presented with regard to the evidence introduced
by the General Counsel concerning dredge workers . Assuming for decisional pur-
poses that Captain Golden , in making an unsworn statement to a congresisonal sub-
committee was clothed with sufficient authority to render his statement binding as
an admission against the Tugmen, there is presented evidence that Golden 's local,
and therefore the Tugmen , represented at that time 8 individuals known as "dredge
workers." Cullnan was asked what a dredge worker was and he stated that dredge
workers were individuals who operated dredging machinery aboard dredges and
who belonged to the Dredge Workers Union. But, he added, the Tugmen did not
represent any dredge workers as such and that when Tugmen members became full-
time dredge workers they were given withdrawal cards from the Tugmen and that,
in any event, the Tugmen did not represent them in their capacity as dredge workers.
Moreover, Golden spoke in 1960 and since then Golden has left the Union and his
local has been dissolved . In addition , Cullnan averred that the dredge workers to
whom Golden referred were masters, mates, pilots, and other supervisory personnel
5Gralieni Transportation Company, 124 NLRB 960, 962
6 259 F 2d 312 ( C A 7), cert denied , 358 U S . 909 It should be noted that this case
began as an injunction proceeding pursuant to Section 10(1) of the Act and that the
General Counsel had only to prove reasonable cause to believe MMPA to be a labor
organization Moreover , since this court of appeals decision , the Board has decided in
the main case that Local 53 of M1IPA is not a labor organization upon facts very similar
to the facts in the instant case . See Local 2 8, International Organization of Masters,
Mates and Pilots , AFL-CIO , et al. (Ingram Barge Company), 136 NLRB 1175.
P Cf N.L R B. v . Walton Manufacturing Company it Loganville Pants Co , 369 US 404.
s March 1960, over 1 year before the events alleged as violative herein.
LICENSED TUGMEN'S & PILOTS' PROTECTIVE ASSN. 229
aboard tugs nand other boats involved in dredging operations. Thus, there is presented
against Golden's bare statement, Cullnan's positive testimony to the contrary un-
assailed in any other respect by any testimony proffered by the General Counsel.
With regard to still another category, the record presents a like situation. Counsel
for the General Counsel asserts that Cullnan admitted that since some operators
possess only motorboat licenses, surely these individuals cannot be supervisors. But
Cullnan further testified without any contradiction, that even where an operator
operated only a 14-foot motorboat, he had assistants who handled the lines and
whom he directed. He further explained that operation of so small a boat would
occur only infrequently and in an unusual case where a job had to be performed
where a larger vessel such as a tug or a large launch could not go. But, nowhere
did Cullnan admit nor the General Counsel show by affirmative evidence that opera-
tors worked alone and without assistants whom they directed.
Finally, the same situation prevailed in the category of pump engineers, of sand
vessels, and conveyor men on cement vessels. Cullnan testified that persons in
these jobs are assisted and directed either by oilers, in the case of the pump engi-
neers, or by scow men in the case of the conveyor men. In neither case was there
affirmative evidence presented that they worked alone.
Thus, category by category, the General Counsel's case rests upon the necessity
of making the inference that the only witness, Cullnan, who testified on the subject
was not truthful and that the opposite of what Cullnan testified to is the true situa-
tion. As stated before, even if I were to discredit Cullnan, the case is virtually
barren of any affirmative testimony that members of the Tugmen are not super-
visors in the capacities in which they are represented by the Tugmen. The only
exceptions are the cases of the dredge workers if accepted in the context set forth
in the congressional hearing statement of Captain Golden, and in the case of Hales'
testimony as to Kelly. And even in these two instances there is grave doubt as
heretofore set forth.
Moreover, in connection with the foregoing, there is still another hurdle which
counsel for the General Counsel has failed to leap. There was testimony, not
controverted, that the membership of the Tugmen is about 700. Kelly represents
only one out of that number and there is no testimony as to how many alleged
dredge workers were members of the Ogdensburg local. Even assuming that Kelly
and the dredge workers were employees within the meaning of the Act there is no
showing that they represent a substantial portion of the membership of the Tugmen.
It would seem that if this group consists of only a few individuals as compared to
the total membership the effect would be de minimis and, unless a substantial pro-
portion of the members of the Tugmen are employees within the meaning of the
Act, to find the Tugmen to be a labor organization on that basis would be equiva-
lent to "the tail wagging the dog." 9 There is no essential disparity between this
conclusion and the holding that whether a labor union charged with an unfair labor
practice under Section 8(b)(4) is a labor organization turns on whether employees
participate in the organization charged. Certainly, as counsel for the General
Counsel contends the entire organizations may be searched to find participating
employees. But, when, as here, the search uncovers only a relatively minute num-
ber of employees out of many supervisors, the nature of the organization is not
changed.
Additionally, counsel for the General Counsel attacks the statement by Cullnan
and counsel for the Tugmen that when its members operate in jobs not within the
scope of the Tugmen's jurisdiction Tugmen does not represent them. Counsel for the
General Counsel characterizes this argument as being without legal materiality
because an employee is an employee and if he participates in a labor organization,
even though that organization does not represent him as an employee, the organiza-
tion is a labor organization. Counsel for the General Counsel relies on National
Marine Engineers v. N L R.B.io in which the court of appeals held the National
Marine Engineers' Benevolent Association to be a labor organization when its
constitution provided that any engineer whose license is valid is eligible for member-
ship even though he engages in another occupation. The court of appeals in that
See International Organization of Masters , Mates h Pilots of America, Inc., -AFL-CIO
(Chicago Calumet Stevedoring Co.) v. N L.R B., 48 LRRM 2624 (C A D C ), remanding
125 NLRB 113, in which the court of appeals remanded to the Board for further Informa-
tion as to the proportion of employees who were members of the labor organization in-
volved, where the Board sought enforcement in a case in which the Board found M MPA
to be a labor organization See also Local 28, International Organization of Masters,
Mates and Pilots, AFL-CIO, et al (Ingram Barge Company), 136 NLRB 1175
10274 F 2d 167, 45 LRRM 2499, enforcing National rtaritinie Union (Standard Oil
Company), 121 NLRB 208.
230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
case agreed with the Board that this constitutional provision was so broad as neces-
sarily to make persons eligible for membership who are not engaged in supervisory
duties. At first blush this would seem to dispose of the Tugmen's argument on the
admission that some of the members might be engaged in other occupations. How-
ever, a closer examination of the cited case shows that (a) there was definite evi-
dence that some of the Marine Engineers involved were represented by MEBA
when working in nonsupervisory capacities, (b) at an earlier date in a representation
proceeding MEBA had petitioned the Board for a unit of nonsupervisory Marine
Engineers, and (c) in an earlier unfair labor practice case MEBA had admitted it
was a labor organization. In the case at bar there is no such background. The
only possible nonsupervisory individuals are Kelly, the engineer on the MV
Traveller, which is no longer in operation, and possible dredge workers who, as
Cullnan testified, receive withdrawal cards if they accept full-time occupation as
dredge workers.ii
Nor do I believe that although in other cases the Board 12 and the court 13 have
held other marine officers' unions to be labor organizations, such cases are dia-
positive of the issues here. Although the General Counsel's case rests somewhat
on these decisions, they are each predicated on their own set of facts which vary
from the case at bar. While these cases find that marine officers who man tug-
boats on inland waterways of the United States are often employees within the
meaning of the Act, and while ordinary experience may dictate the conclusion that
most tugs are manned and operated in somewhat similar fashion, nevertheless, each
case must eventually rest on its own facts and, since there are non among these
cited cases which involve either the individuals or the organization here involved, I
must reject them as precedents offered as a basis for a finding in this case. More-
over, the Board has very recently issued a decision,14 in which the Board held on
facts very similar to the case at bar that the local of MMPA involved was not a
labor organization.
Finally, counsel for the General Counsel contends that the record shows that
frequently the members of the Tugmen perform physical work not of a supervisory
nature (as for example engineer Kelly) and that, therefore, the mere fact that
they are officers does not make them supervisors as their authority is only sporad-
ically exercised. However, the Board's and the court's view is that officers need
not continuously exercise their authority to maintain supervisory status. Even if
the former is exercised only when a situation calls for such exercise, the officer
would still be a supervisor. Thus, in the Ohio Power Company case (176 F. 2d
385, cert. denied 335 U.S. 908) the court of appeals held that Section 2(11) of the
Act, defining supervisors, "does not require the exercise of the power [responsibility
to direct] for all or any definite part of the employee's time. It is the existence
of the power which determines the classification." I do not doubt from the record
before me that officer-members of the Tugmen possess the power to supervise and
exercise it at least some of the time and, therefore, maintain supervisory status.
Summing up, then, the record in this case affords the basis for some suspicion
that the Tugmen is a labor organization. But the evidence presented to show that
employees participate in and are represented by the Tugmen in substantial numbers
is of such a nature that I find myself unable to jump the chasm which lies between
suspicion and proof. The facts which are presented in the record do not pre-
ponderate in favor of the finding which the General Counsel requests. The burden
of proof being on him to show that the Tugmen represents employees not having
been met, his case fails in this respect.
I come now to the other main contention of the General Counsel that since the
Tugmen negotiated the last agreement with Chicago Towing Company on a joint
basis with the Marine Firemen and Oilers Union and the Dredge Workers Union,
and signed a single supplemental agreement with them the Tugmen is a labor
organization within the meaning of the Act and, moreover, since the Tugmen is
"The General Counsel also argues that Cullnan testified that chief engineers at times
worked with no employees under their direction and that therefore this constituted an
admission that chief engineers were employees Close examination of the record shows
that supervisory personnel are alone on board the vessels sometimes in caretaking capaci-
ties when the vessels are laid up. I do not find that such duties make their supervisory
duties so intermittent as to disqualify these individuals from supervisory status.
'' Standard Oil, 121 NLRB 208; Graham Transportation, 124 NLRB 960 ; American
Freezership. 135 NLRB 1113.
13 National Maritime Engineers v N L R T, , 274 F 2d 167 ; Madden v Masters , Mates,
and Pilots , 259 F. 2d 312
14 Local 28 , International Organization of Masters , Mates, and Pilots, AFL-CIO, at al.,
136 NLRB 1175
CHICAGO TYPOGRAPHICAL UNION NO. 16, AFL-CIO 231
closely affiliated with the International Longshoremen's Association, AFL-CIO, it
is an agent of labor organizations within the meaning of the Act and therefore
accountable as such for unfair labor practices within the meaning of Section 8(b) (4).
The short answer to this is that for liability to attach to an agent, as an agent, the
acts for which he is liable must be performed as such agent and in that capacity.
In this instance, the alleged acts of picketing and threats to picket the various named
employers, if committed by the Tugmen, were committed in its individual capacity
and not as an agent. There are presented here neither allegation nor proof that
the Tugmen acted in behalf of either or both the Marine Firemen, the Dredge
Workers, the I.L.A., or the AFL or any of them.
Moreover, mere affiliation with a labor organization does not in and of itself
make the affiliated organization a labor organization. Tugmen is a complete
organization standing alone. True, it derives certain benefits and support from its
affiliation with I.L.A. and through the I.L.A. with the AFL-CIO. But, unless it
can be shown that Tugmen is an agent of I.L.A. or AFL-CIO in the commission
of the alleged unfair labor practices, it cannot be held answerable for these activities
unless and until such agency has been made out or until the Tugmen can be held
to be itself a representative of employees within the meaning of the Act 15
Accordingly, as stated above, I find that the General Counsel has failed to prove
by a preponderance of the credible evidence that the Tugmen represents a sub-
stantial number of employees within the meaning of the Act. The General Counsel
having failed to prove that the Tugmen is a labor organization within the meaning
of the Act, I shall recommend that the complaint be dismissed.is
CONCLUSIONS OF LAW
1. Twin City Barge and Towing Company, Norris Grain Company, and Pullman
Trust and Savings Bank are engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. Licensed Tugmen's and Pilots' Protective Association of America, AFL-CIO,
is not a labor organization within the meaning of the Act.
RECOMMENDED ORDER
It is hereby ordered that the complaint heretofore filed in this proceeding be, and
the same hereby is, dismissed.
is I do not find Matson Navigation Co. v. Seafarers Union, 100 Fed . Supp . 730, 29 LRRM
2354, dispositive of the situation here as contended by the General Counsel. That case
involved picketing by the Brotherhood of Marine Engineers , an affiliate of the Seafarers
International Union, which in turn was affiliated with the AFL. At that time rivalry
existed between AFL and CIO and between their affiliated unions and more specifically
between the AFL's Seafarers and CIO Marine unions The picketing was retaliation by
AFL against , and Seafarers against , CIO picketing and Marine Engineers ' members were
doing the picketing . The court held that there the Marine Engineers were not immunized
because it represented only supervisors as It was an agent of Seafarers and AFL and that
the picketing was Instigated at the instance of the Seafarers . We do not have such a
situation here. Neither the I.L.A. nor the AFL-CIO were in any way involved in the
activity which the complaint alleges constitutes unfair labor practices.
iE In these circumstances I do not find it necessary to discuss the alleged unfair labor
practices
Chicago Typographical Union No. 16, AFL-CIO and Central
Typesetting and Electrotyping Co. Case No. 13-CD-76. August
23, 1962
DECISION AND ORDER
On June 30, 1961, Trial Examiner Charles W. Schneider issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the attached Inter-
138 NLRB No. 32.