Local 1066, Intl. Longshoremen's Assn.

National Labor Relations Board - Board Decisions

Mar 21, 1969

175 N.L.R.B. 14 (N.L.R.B. 1969)

14 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Local 1066 , International Longshoremen's
Association ( Bay State Stevedoring Co., Inc., a
Subsidiary of Furness, Withy & Company Ltd.)
and Massachusetts Port Authority
International Longshoremen 's Association (Bay State
Stevedoring Co., Inc., a Subsidiary of Furness,
Withy & Company, Ltd.) and Massachusetts Port
Authority . Cases 1-CC-693 and 1-CC-694
March 21, 1969
DECISION AND ORDER
BY MEMBERS FANNING, BROWN, AND JENKINS
On September 23, 1968, Trial Examiner Robert
E. Mullin issued his Decision in the above-entitled
proceeding, finding that the Respondent Unions had
engaged in and were engaging in certain unfair labor
practices within the meaning of the National Labor
Relations Act, as amended, and recommending that
they cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial
Examiner's Decision. Thereafter, the Respondent
Unions filed exceptions to the Decision and
supporting briefs. The General Counsel filed a brief
in support of the Trial Examiner's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with these cases to a
three-member panel.
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 Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in this proceeding, and hereby
adopts the finding, conclusions, and
recommendations of the Trial Examiner only to the
extent consistent with this Decision and Order.
The Trial Examiner held that the Respondent
Unions violated Section 8(b)(4)(i)(B) of the Act by
inducing their members who are employees of Bay
State Stevedoring Co., Inc., to refuse to effect a
transfer of cargo to the Massachusetts Port
Authority, as directed by Bay State, because an
object of the Union's conduct was to compel Bay
State and other neutral employees to cease doing
business with the Port Authority, with whom the
Unions have a primary dispute. We do not agree.
The relationships of the various parties involved
are summarized below.
The Massachusetts Port Authority, an
instrumentality of the State of Massachusetts, is the
operator of Mystic Pier No. 1, one of several
terminals in the Port of Boston and the only one
involved in this proceeding. The Port Authority is a
member of the Port of Boston Marine Terminal
Association, an association of terminal operators,
which, among other things, publishes tariffs, subject
to the approval of the Federal Maritime
Commission, setting forth the rates, rules, terms,
and conditions governing the use of terminal
facilities in the port. The Terminal Association is
not involved in the operation of terminal facilities,
however, and does not engage in collective
bargaining.
The Boston Shipping Association is an
organization composed of various steamship owners,
agents, and stevedores operating in the Port of
Boston. Bay State, a wholly-owned subsidiary of
Furness, Withy & Company, Ltd., is a member of
the Shipping Association. The Shipping Association,
on behalf of its members, bargains collectively with
the Respondent, Local 1066, regarding the terms
and conditions of employment of employees
represented by the Local.
The events giving rise to this proceeding are as
follows.
In April 1968, the Port Authority decided to
enforce "Regulation 9" of the tariff applicable to
terminal users in the Port of Boston. "Regulation
9" states, in material part-
The terminal reserves the right at its option to
require the vessel to store in public warehouse or
move to another location on the pier, at the entire
risk and expense of the vessel or owner, all cargo
which is not removed at the expiration of free
time' (emphasis supplied).
Pursuant to this decision, the Port Authority, by
letter dated May 16, 1968, informed Furness, Withy
that it should be prepared on May 20 to deliver all
cargo from the M. V. Newfoundland then remaining
on the Mystic Pier for storage in a public
warehouse. Furness, Withy in turn requested Bay
State, its subsidiary, to take the action necessary to
effect delivery. However, the employees of Bay
State, who work as clerk crewmen and remain with
the cargo as long as it stays on the dock, refused to
check out and deliver over the cargo, on instructions
from their Union, Local 1066, and its International,
the Respondents herein. Insofar as the record shows,
the cargo was never warehoused as directed by the
Port Authority, and a clerk crew was continuously
employed performing duties with respect to this
cargo until all of it was delivered directly to
consignees.
It is clear that the enforcement of "Regulation 9"
results in a diminution of work opportunities for
clerks represented by the Respondent Local2 and
that the Respondents' conduct was precipitated by
the enforcement of this Regulation. Nevertheless,
the Trial Examiner found that, as the Port
Authority alone had the power to determine whether
'Free time, as defined in the tariff , is the specified time dunng which
cargo may occupy space assigned to it on terminal property free of wharf
demurrage charges immediately prior to the loading or subsequent to the
discharge of such cargo on or off a vessel
'In the past, cargo often remained dockside substantially beyond the
expiration of free time , sometimes as much as 20 to 30 days beyond that
5-day period
175 NLRB No. 5
LOCAL 1066, INTL. LONGSHOREMEN'S ASSN.
"Regulation 9" would be enforced, Bay State was
powerless to resolve the underlying dispute.
Accordingly, he found that the Respondents' dispute
was with the Port Authority, that Bay State was a
"neutral or, at most, a secondary employer", and
therefore that the Respondents' conduct vis-a-vis
Bay State was for an object proscribed by Section
8(b)(4)(B) of the Act.' We hold that, in the
circumstances of this case, the Trial Examiner's
reliance upon right-to-control is misplaced.
Thomas T. Soules, Port Director of the
Massachusetts Port Authority, testified at the
hearing herein that in determining whether or not to
exercise the option reserved to terminal operators
under "Regulation 9", he, on behalf of the Port
Authority, acts in the "best interests of the terminal
and the seaport". Those best interests are
ascertained by using the following criteria: "The
needs of the steamship lines that are serving the
pier, future vessel calls, the need for space, the
arrangements with the ships that have come to the
Port" (emphasis supplied). Further elaborating, Mr.
Soules stated in his affidavit attached to a Motion
For Temporary Restraining Order against the
Respondents herein:'
The enforcement of this regulation has been
undertaken pursuant to an agreement with the
various steamship lines which serve these piers.
The steamship lines are directly the beneficiaries
of this enforcement since they are thus enabled to
ascertain their costs with precision and to
maintain a proper relationship with their own
customers.
The full significance of the above statement is
revealed upon examination of the cost factors to
which Mr. Soules refers, insofar as they relate to
this proceeding. Costs connected with the
movement, handling, and storage of cargo which
accrue during free time are included in the freight
charges paid by a shipper or a consignee. Costs for
providing these services beyond free time, however,
are more difficult to recover. For example, the cost
of maintaining a clerk crew, such as is here
involved, remains constant, notwithstanding the fact
that a given quantity of cargo is substantially
reduced with the passage of time as the various
consignees claim and remove their portions. In this
respect, Wilfred Nash, President of Bay State,
testified to the effect that, with the passage of time,
unit costs rise to a point where it is infeasible, if not
impossible, for the shipping lines, agents, and
stevedores who employ clerks, and specifically Bay
'See International Longshoremen 's Association , AFL-CIO ( The Board
of Harbor Commissioners ), 137 NLRB 1178, enfd 331 F 2d 712 (C A 3),
Local 5, United Association of Journeymen and Apprentices of the
Plumbing and Pipefitting Industry of the United States and Canada,
AFL-CIO (Arthur Venneri Company ), 137 NLRB 828, enfd 321 F 2d 366
(C A DC)
'Filed by the Regional Director for Region 3 before the United States
District Court for the District of Massachusetts on June 3, 1968 (Civil No
68-448-F)
15
State, to recover the cost of their employment from
those responsible for the payment of freight charges.
It is uncontroverted that removal of cargo from the
pier to a public warehouse eliminates the need for
continued clerk crew assignments and the costs
incidental thereto. Clearly, with respect to the
controversy here involved, the enforcement of
"Regulation 9" has a direct bearing upon the costs
which must be absorbed by Bay State, and we so
find.
Although the enforcement of Regulation 9 was
announced by the Port Authority, it is clear from
the record that such enforcement was not a
unilateral decision. The steamship lines, the direct
beneficiaries of this action, were a party to the Port
Authority's decision. Their Association, which
includes Bay State, the employer of these
employees, bargains with the Respondent Union on
behalf of its members. Accordingly, we cannot
conclude, as did the Trial Examiner, that Bay State
was "a neutral or, at most, a secondary employer."
Rather, we are persuaded that the Respondent had a
lawful work preservation object in attempting to
retain for its members clerical work theretofore
performed by them and of which they were
summarily deprived by their employer, acting in
concert with the Port Authority and others.
National Woodwork Manufacturers Association v.
N.L.R.B., 386 U.S. 612. We shall therefore dismiss
the complaint in its entirety.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the complaint
against the Respondents Local 1066, International
Longshoremen's Association, and International
Longshoremen's Association, Boston,
Massachusetts, be, and it hereby is, dismissed.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
ROBERT E. MULLIN, Trial Examiner: This case was
heard in Boston, Massachusetts, on June 20, 1968,
pursuant to charges duly filed and served,' and a
consolidated complaint issued on June 7, 1968. The
complaint presents questions as to whether the
Respondent Unions violated Section 8(b)(4)(i)(B) of the
National Labor Relations Act, as amended. In their
respective answers, duly filed, both Respondents denied all
allegations that they had committed any unfair labor
practices.
All parties appeared at the hearing and were given full
opportunity to be heard, to examine and cross-examine
witnesses, to introduce relevant evidence, and to argue
orally. Oral argument was waived. Motions to dismiss the
'In Case 1-CC-693 , the onginal charge was filed on May 21, 1968, and a
first amended charge on May 24, 1968 In Case 1-CC-694, the original
charge was filed on May 21, 1968, and a first amended charge on May 24,
1968
16 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
complaint, made at the close of the heanng, were taken
under advisement. These motions are disposed of as
appears hereinafter in this Decision. A brief was
submitted by the General Counsel on July 17, by the
Respondent ILA on July 22, and by Local 1066 on July
24, 1968.
Upon the entire record in the case, and from his
observation of the witnesses, the Trial Examiner makes
the following:
FINDINGS OF FACT
I THE EMPLOYERS INVOLVED
Massachusetts Port Authority (herein called MPA) is a
public instrumentality created pursuant to an act of the
legislature of the Commonwealth of Massachusetts to take
possession of, and to maintain and operate, the port
properties in Boston harbor, as well as Logan
International Airport, the Mystic River Bridge and
various other facilities in the Boston area. MPA owns six
of the seven general cargo terminals in the port. These are
the Commonwealth Terminal in South Boston, the
Hoosac and Mystic Terminals in Charlestown, East
Boston Terminal in East Boston, and the Boston Army
Base and Castle Island Terminals in South Boston., MPA
actually operates only three of the foregoing These are
the Commonwealth, Hoosac and Mystic Terminals. The
other three are operated for MPA in accordance with
contracts which it has with several pnvate terminal
corporations Thus, the East Boston Terminal is operated
by the Penn Central System, the Boston Army Base
Terminal by Port Terminals, Inc., and Castle Island by
Wiggin Terminals, Inc.
Insofar as MPA itself acts as a terminal operator, it
functions in the same manner as do the private terminal
companies named above. In this connection it has
employees on the Commonwealth, Hoosac, and Mystic
piers engaged in checking and handling cargo, loading
railway cars and truck trailers, taking care of the
documentation, the levying of charges, and performing
general maintenance functions. These employees belong to
Local 809, International Longshoremen's Association,
with which organization the MPA has a
collective-bargaining agreement
Furness, Withy & Company, Ltd. (herein called
Furness, Withy), are steamship owners and agents. Bay
State Stevedoring Co , Inc. (herein called Bay State), is a
wholly owned subsidiary of Furness, Withy and is engaged
in the business of providing stevedoring services in the
port. Wilfrid A. Nash president of Bay State, testified,
credibly and without contradiction, that for its stevedoring
services Bay State annually receives in excess of $50,000
from Furness, Withy, and that the annual revenues of
Furness, Withy, in the operation of its cargo vessels in
foreign and interstate commerce, exceed $50,000 Upon
the foregoing facts, it is obvious, and the Trial Examiner
finds, that Bay State and Furness, Withy are engaged in
commerce within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Longshoremen's Association, hereinafter known as ILA,
are labor organizations within the meaning of the Act.
III THE ALLEGED UNFAIR LABOR PRACTICES
A. Background and Sequence of Events
The four terminal operators in the Port of Boston, viz,
MPA, Penn Central, Port Terminals, Inc., and Wiggin,
have joined together in what is known as the Port of
Boston Marine Terminal Association (herein called
Terminal Association). From time to time, the latter has
published tariffs which the members apply to the vessels
using their facilities. These tariffs, duly filed with the
Federal Maritime Commission, set forth the rates, rules,
terms, and conditions that are applicable to all shipping
lines and others who use the terminals in the port The
tariff in effect at all times material herein provides, inter
alia, that cargo' may remain on the dock for 5 days after
being unloaded and that for this period, known in practice
as "free time," no wharf demurrage fees will be charged
Regulation 9 of the same tariff provides that in the event
any cargo remains on the pier after the expiration of the
"free time," the terminal operator may require that the
vessel owner move the cargo to a public warehouse or
another location. When this is done, the steamship
company, or stevedoring firm, is relieved of any further
charges connected with maintaining a clerical crew, at the
site, and any storage charges connected with keeping the
shipment in a public warehouse are assessed against the
consignee, or owner Regulation 9 specifically provides
that the enforcement of this provision is at the option of
the operator of the terminal The dispute in question arose
over the attempt by MPA to enforce this rule at the
Mystic Terminal.
For many years it has been the practice in the port of
Boston that a crew of clerks remain with a specific cargo
until all of it is removed from the pier by the consignee,
or his agent. These crews, known on the waterfront as
"setups," characteristically, consist of a chief clerk, a
book clerk, a runner, and one or more delivery clerks.' At
a minimum, a setup consisting of at least three men,'
stays with the cargo until all of it has been removed from
the wharf. Not infrequently, some portion of cargo may
remain on the pier for a considerable period beyond the
expiration of the 5 days of "free time." President Nash, of
Bay State, testified that in some instances as much as 30
days elapse before the last bit of a particular cargo leaves
the wharf. Since the three clerks who remain with the
cargo are paid approximately $3.62 an hour it is readily
apparent that the practice of retaining such a clerical staff
substantially increases the labor costs levied on the cargo.
These costs are paid, at least initially, by Bay State, as a
stevedoring company. In some instances Bay State is able
to pass this additional expense on to the consignee of the
freight which remained on the pier after the expiration of
the free time Nash testified, however, that, in fact, this is
not done very often and that in most cases, Bay State
must shoulder the entire cost of maintaining the setup of
longshoremen until the consignee arrives to remove the
last of the cargo.'
Local 1066, International Longshoremen's Association,
hereinafter known as Local 1066, and International
'A seventh general cargo terminal, known as the Wiggin Terminal, is
located in Charlestown but this is owned and operated by Wiggin
Terminals, Inc
'With the exception of woodpulp cargo
'The number of delivery clerks used is dependent on the size of the cargo
and varies from a minimum of one to as many as 15
'This is known as a permanent setup and is made up of a chief clerk, a
book clerk , and a runner
'Of course, after the expiration of the 5 days of "free time" the terminal
operator is permitted to, and does, charge the consignee a wharf
LOCAL 1066, INTL. LONGSHOREMEN'S ASSN 17
Thomas T. Soules, port director of the MPA, testified
that the matter of labor costs connected with the use of
facilities in the Port of Boston has become critical in
recent years. According to Soules, for some time the
number of ships using the harbor has been declining at the
rate of 100 a year and that in the past 18 months almost
200 vessels that formerly came to Boston regularly no
longer do so Soules testified that in the meantime these
vessels are going to competitor ports such as those at New
York, Baltimore, Philadelphia, and Hampton Roads. He
attributed the drastic decline in the number of vessels
coming to Boston to the high cost of using the port and
stated that the principal reason for this was the labor
charges connected with handling cargo.
Soules testified that in conformity with a decision made
in April 1968 to cut clerical costs on the pier, the MPA
decided to enforce Regulation 9 at the Mystic Terminal.
To the facts in connection with the attempt to effectuate
that decision we will now turn.
B The Facts in Issue
In mid-May 1968, the MV Newfoundland arrived at
Mystic Pier' and Bay State began the discharge of the
cargo. In a letter dated May 16,8 MPA wrote to Furness,
Withy that upon the expiration of the free time for the
MV Newfoundland, and in accordance with Regulation 9
of the tariff then in effect, Furness, Withy, should be
prepared, at 8 a.m. on May 20 to deliver all cargoes then
remaining on the Mystic Pier, for storage in a public
warehouse.
On May 20, in a letter to MPA, Furness, Withy
acknowledged the request set forth in the letter of May
16, and stated that it would accede to the request that the
cargo in question be moved to a storage warehouse.
Thereafter the same day, Furness, Withy requested that
Bay State turn over to MPA, for delivery to a public
warehouse, all cargo from the MV Newfoundland that
was still on the pier.
On the morning of May 20, President Nash of Bay
State, handed Thomas Kelly, chief clerk for the
stevedoring company, the correspondence between MPA
and Furness, Withy which had been forwarded to Bay
State. Nash testified that in so doing he instructed Kelly
that he was to turn over to MPA all the cargo remaining
on the pier from the Newfoundland and that he was to do
so as soon as an MPA truck arrived. Present on the scene
during the period in question, in addition to Kelly, was
Patrick Hurley, the delivery clerk for Bay State. Both
were members of Local 1066 and, in addition, Hurley was
the secretary-treasurer of Local 1066. At this time,
Edward Dalton, who was not present at the scene but who
figures in some of the testimony, was a business agent and
delegate for Local 1066.'
Joseph J Connolly, superintendent of piers for MPA,
testified that he went to the Mystic Terminal, sometime
before the arrival of the trucks which MPA had ordered
According to Connolly, he immediately informed Kelly
and Hurley that he and his associate, Pier Foreman
Crowley,10 were there to take the cargo in accordance with
demurrage fee for such time as the shipment remains on the pier in excess
of the 5 days
'Whether Furness, Withy was the owner of, or the agent for, this vessel
does not clearly appear from the record
'All dates that appear hereinafter are for 1968 unless otherwise
specifically noted
'The foregoing findings are based on the credible and uncontradicted
testimony of Joseph J Connolly
the instructions which MPA had already sent to Furness,
Withy. Connolly testified that Hurley told him "that he
could not make the delivery . . . that he had instructions
from the International and Mr Dalton not to make the
delivery to the Massachusetts Port Authority." Thereafter,
and at Hurley's suggestion, Connolly telephoned Dalton,
an individual whom he had known in his official capacity
for many years. According to Connolly, when he asked
Dalton's assistance in getting the cargo moved, the
business agent declined and told him "I have instructed
Pat Hurley and them not to move the cargo or effect the
delivery."
After concluding his telephone conversation with
Dalton, Connolly returned to the pier to await the arrival
of the trucks. The latter appeared at about noon and
immediately thereafter Connolly renewed MPA's demand
on Bay State's President Nash for delivery of the freight.
Nash then repeated his order to Kelly and Hurley. It was
undenied that both again refused to comply and that
Hurley told both Nash and Connolly, "I told you we
cannot make that delivery" and thereupon repeated the
statement made to Connolly earlier that morning that he
"was under instructions from the International and from
Mr. Dalton not to make a delivery "
Later that afternoon, Connolly endeavored, but without
success, to get the employees of MPA to remove the
cargo in question from the pier Connolly arranged to
have a forklift service, an independent contractor, perform
the actual loading of the cargo on to the trucks.
Thereafter he sought to have the work of checking the
cargo, performed by employees of MPA This, of course,
was the same work which Kelly and Hurley, as employees
of Bay State and members of Local 1066, had refused to
perform. The MPA employees on the Mystic Pier were
represented by Local 809, of the ILA, and a sister local to
1066. According to Connolly, when he instructed the
MPA pier clerk, one Moynahan, who was also president
of Local 809, to do the clerical work, Moynahan likewise
refused and told Connolly that as a result of instructions
from John F. Moran he would be unable to assist in
transferring the cargo.
According to Connolly, at Moynahan's suggestion he
then telephoned Moran, an individual whom he had
known personally for over 30 years and one whom he
knew at that time as an international vice president of the
ILA. Connolly testified that he initiated the conversation
by telling Moran about what he described as a "hassle" at
Mystic Pier and that Moran interrupted to tell him that
he knew all about the matter and that he had instructed
Moynahan that neither Moynahan nor any of his men
were to touch the cargo in question According to
Connolly, notwithstanding his explanation to Moran that
all he wanted either Moynahan, or the members of Local
1066 employed by Bay State, to do was check the cargo
as MPA effected delivery, Moran concluded the
conversation by telling him that "at that particular time
he was not going to rescind his orders, and the whole
affair was going to be discussed further the following day
with counsel.""
Cargo of the MV Newfoundland that figured in the
events of May 20 was never removed to a warehouse.
Connolly testified that it eventually left the pier in the
normal process of delivery when it was turned over to the
'"Crowley was an employee of MPA
The findings, as well as the direct quotations from the record which
appear above with reference to the events of May 20, are from the credible
and uncontradicted testimony of Joseph Connolly
18 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
consignees or to their agents.
Soules, port director for MPA, testified that the
decision to enforce Regulation 9 on the matter of free
time was vested by the marine tariff in the terminal
operator and, as the responsible officer for MPA, it was
he who made the decision to enforce the regulation which
led up to the events of May 20. According to Soules, the
decision was based on the needs of the steamship lines
serving the pier, the schedule of future vessel calls, the
need for space and arrangements which had been made
with ships that have come to the port. He further testified
that the decision to enforce the regulation at the Mystic
Pier was one which only MPA could make and that the
steamship owner, or owners, had no part in that decision.
This testimony was confirmed by President Nash of Bay
State who testified ,that Bay State, as a stevedoring
company, has no power to decide whether Regulation 9 is
to be enforced and that, in fact, Bay State had not
participated in any way in the decision to apply the
regulation in question. Nash further testified that, whereas
he had frequent contact with Business Agent Dalton and
other officials of Local 1066, in their capacity as
bargaining representative for the employees of Bay State,
none of them had come to him or other officers of Bay
State to complain about the enforcement of Regulation 9.
Local 1066 called one witness, William McNamara, to
testify on its behalf. It did not call either Kelly, Hurley, or
Dalton, and no explanation was offered for their
nonappearance at the hearing.
At the conclusion of the General Counsel's case, the
ILA requested a continuance on the ground that John F.
Moran, a prospective witness, was engaged in contract
negotiations in New York and unavailable to testify. This
request was opposed by the General Counsel and the
MPA. Counsel for the MPA pointed out that Moran had
been named in the original charge, as well as the bill of
particulars, so that the Respondent ILA could not assert
surprise when testimony was developed at the hearing with
reference to Moran, and that, in any event, if Moran
elected to attend contract negotiations rather than be
present at the hearing, the other parties should not be
compelled to await his arrival at some indefinite date in
the future. At the same time, Respondent Local 1066
asked that the hearing be continued due to the fact that
the services of its counsel were required by another client
that afternoon. When, however, the Trial Examiner
proposed that, to accommodate both the ILA and Local
1066, the hearing be recessed until the following morning,
counsel for both unions asserted that such a recess would
be inadequate. At the same time, counsel for the ILA did
not volunteer a date on which Moran would be available
to testify, and counsel for Local 1066 did not offer to fix a
time when the pressure of handling matters for the other
client would make it practicable for him to continue with
the instant hearing. In view of these circumstances, the
Trial Examiner concluded that there was no merit to the
various motions to continue the case. The aforesaid
motions were thereupon denied. Counsel for the
Respondents then stated that they had nothing further to
present. The hearing was then closed. Cf., Cello-Foil
Products, Inc., 171 NLRB No. 154.
C. The Alleged Violation of Section 8(b)(4) of the
Act; Contentions of the Parties; Findings and
Conclusions with Respect Thereto
It is the contention of the General Counsel that the
Respondents' primary dispute is with the MPA over the
attempt of the latter to enforce Regulation 9 since this
policy tends to decrease the employment available for
members of Local 1066 and the ILA. The General
Counsel further contends that in connection with this
dispute the Respondents induced employees of Bay State
to refuse to perform services for their employer, that an
object of this conduct was to compel Bay State and
Furness, Withy to cease doing business with MPA, and
that, in so doing, the Respondents violated Section
8(b)(4)(i)(B) of the Act. This allegation is denied in its
entirety by both Local 1066 and the ILA.
It is apparent on this record that the application of
Regulation 9 in any particular situation is left to the
discretion of the terminal owner, or operator, which, in
this instance was MPA. This is clear from the terms of
the tariff provision in question, from the testimony of Port
Director Soules who testified that the decision as to
whether to apply the regulation after the expiration of
"free time" was his alone to make as to those piers over
which MPA had control, and from the testimony of
President Nash of Bay State, according to whom, Bay
State had no power to decide whether Regulation 9 would
be enforced at the Mystic Terminal and that, in fact, Bay
State had not participated in any way, in the decision to
enforce the regulation in question.
Apart from the fact that it was the action of MPA in
enforcing Regulation 9 which precipitated the dispute,
there is other evidence in the record that the primary
controversy here involved was between the Respondents
and MPA. Thus, as found above, after the Bay State
employees refused to check the cargo and permit MPA's
trucks to load it, MPA sought to have its own employees
perform the checking procedures. When Pier
Superintendent Connolly endeavored to accomplish this,
however, Moynahan, the pier clerk for MPA and
president of Local 809, a sister local of 1066, refused and
declared that he was doing so on instructions from John
Moran, an international vice president of ILA. Thereafter,
when, at Moynahan's suggestion, Connolly telephoned
Moran, the latter declared that he knew all about the
matter, that he had given instructions that neither
Moynahan nor any of his men were to touch the cargo
and that, for the time being he had no intention of
rescinding these orders. On the basis of the facts set forth
above, the Trial Examiner concludes and finds that the
primary dispute here involved was between the
Respondents and MPA and that it was centered on the
attempt by MPA to enforce Regulation 9 at the Mystic
Pier.'
As to the dispute between the Respondents and MPA
over the application of Regulation 9, Bay State was a
neutral or, at most, a secondary employer. On the facts,
as found earlier, it appears that Dalton, business agent for
Local 1066, told Superintendent Connolly that he had
instructed Hurley and Kelly, the clerks for Bay State, not
to move the cargo in question. Earlier, when Connolly
talked with Hurley and Kelly, the former had stated that
they could not touch the cargo, because, according to
Hurley, he had "instructions from the International and
[Business Agent] Dalton not to make delivery to the
Massachusetts Port Authority."
In its brief the ILA avers that there was no proof that
the ILA authorized or ratified the acts of Local 1066
"In his brief the General Counsel concedes that the complaint does not
allege that any violation of the Act arose out of the incident which
involved Moynahan and his coworkers, on the afternoon of May 20, since
all of them were employed by MPA.
LOCAL 1066, INTL. LONGSHOREMEN'S ASSN.
which figure in this case it is likewise argued that Moran,
described by Connolly as a vice president of the ILA, is
also an official of Local 809 and of the District Council of
the ILA Thus, the ILA now contends that because of his
numerous titles, it cannot be presumed that, insofar as
Moran had anything to do with the events here in
question, he was acting as an official of the ILA. There is,
of course, the uncontradicted testimony of Connolly, that
Hurley, an official of Local 1066, told him that in refusing
to perform any work on the Newfoundland cargo he was
acting on "instructions from the International" as well as
from Business Agent Dalton. And later in the day, when
Connolly telephoned Moran, the latter told him that he
knew about the incidents on the Mystic Pier and "at that
particular time he was not going to rescind his orders .. "
Whereas there may have been some ambiguity as to the
capacity in which Moran was acting, Moran himself did
not choose to appear at the hearing to dispel that
ambiguity. Nor did the Respondent ILA produce any
evidence to refute the uncontradicted testimony which
appears in the record and which tends to establish that
Moran, a vice president of ILA, was well aware of what
was in progress on the Mystic Pier, that Hurley and his
coworkers had instructions from the International that
they were not to handle the cargo for MPA, and that
Moran, upon an appeal from Connolly, announced on the
afternoon of May 20 that he did not intend to "rescind his
orders .." In view of this state of the record, the Trial
Examiner concludes and finds that the ILA must accept
responsibility, along with Local 1066, for the conduct of
Hurley and Kelly, the Bay State clerks here involved
Section 8(b)(4)(i)(B) provides, in relevant part, that:
It shall be an unfair labor practice for a labor
organization or its agents . to engage in, or to induce
or encourage any individual employed by any person
engaged in commerce . to engage in, a strike or a
refusal in the course of his employment to transport or
otherwise handle or work on any goods, articles,
19
materials or commodities or to perform any service
where . an object thereof is
(b) forcing or requiring any person . to cease
doing business with any other person .
On the basis of the facts found above, it is the
conclusion of the Trial Examiner that at least an object of
the Respondents' conduct here in question was to force
Bay State and Furness, Withy to cease doing business
with MPA. In so doing, they violated Section 8(b)(4)(i)(B)
of the Act, as alleged. National Maritime Union of
America, AFL-CIO, 147 NLRB 1328, 1331, enfd 346
F.2d 411 (C.A D.C.), cert. denied 382 U S. 835. Local
1066, International Longshoremen's Association, 137
NLRB 45.
CONCLUSIONS OF LAW
1. Bay State Stevedoring Co , Inc., and Furness, Withy
& Company, Ltd, are, and at all times material have
been, engaged in commerce within the meaning of Section
2(6) and (7) of the Act
2. Respondents, Local 1066 and ILA, are labor
organizations within the meaning of the Act.
3. By inducing and encouraging individuals employed
by persons engaged in commerce to engage in a strike or
a refusal to perform services, with an object of forcing or
requiring Bay State Stevedoring Co., Inc , to cease doing
business with Furness, Withy and with Massachusetts Port
Authonty, the Respondents have engaged in, and are
engaging in, unfair labor practices within the meaning of
Section 8(b)(4)(i)(B) of the Act.
4 The above-described unfair labor practices tend to
lead to labor disputes burdening and obstructing
commerce and the free flow of commerce, and constitute
unfair labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
[Recommended order omitted from publication.]