Local 1291, Int'l Longshoremen's Assoc., Etc.

National Labor Relations Board - Board Decisions

Nov 1, 1965

155 N.L.R.B. 454 (N.L.R.B. 1965)

454 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(d) Notify the Regional Director for Region 5, in writing, within 20 days from the
receipt of this Decision, what steps it has taken to comply herewith.'-
15 In the event this Recommended Order is adopted by the Board, this provision shall be
modified to read: "Notify said Regional Director, in writing, within 10 days from the
date of this Order, what steps the Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify our employees that:
WE WILL NOT discharge or otherwise discriminate against any employee for
threatening to seek aid, or actually seeking such aid, from the National Labor
Relations Board or for maintaining his right to do so.
WE WILL NOT in any like or similar manner interfere with, restrain, or coerce
our employees in the exercise of the rights of self-organization, to join or assist
or to support or oppose any labor organization, to bargain collectively through
representatives of their own choosing, and to engage in other concerted activities
for the purpose of collective bargaining or other mutual aid or protection, or to
refrain from any such activity.
WE WILL offer James C. Burkett immediate and full reinstatement to his
former or substantially equivalent position, without prejudice to his seniority or
other rights and privileges, and make him whole for any loss of pay suffered
as a result of his discharge.
WE WILL notify James C. Burkett if presently serving in the Armed Forces of
the United States of his right to full reinstatement upon application in accordance
with the Selective Service Act and the Universal Military Training and Service
Act of 1948, as amended, after discharge from the Armed Forces.
VIRGINIA-CAROLINA FREIGHT LINES, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
If employees have any question concerning this notice or compliance with its provi-
sions, they may communicate directly with the Board's Regional Office, Sixth Floor,
707 North Calvert Street, Baltimore, Maryland, Telephone No. 752-8460, Extension
2100.
Local 1291 , International Longshoremen 's Association , AFL-CIO
and Northern Contracting Company
Local 1242, International Longshoremen 's Association , AFL-CIO
and Northern Contracting Company. Cases Nos. 4-CC-324-1
and 4-CC-321-2. November 1, 1965
DECISION AND ORDER
On June 22, 1965, Trial Examiner Jerry B. Stone issued his Decision
in the above-entitled proceeding, finding that the above-named Re-
spondents had. engaged in and were en ;aging in certain unfair labor
practices and recommending that they cease and desist therefrom and
take certain affirmative action, as set forth in the attached Trial Exam-
155 NLRB No. 46.
LOCAL 1291, INT'L LONGSHOREMEN'S ASSOC., ETC. 455
iner's Decision. Thereafter, the General Counsel filed a brief in sup-
port of the Trial Examiner's Decision, each Respondent filed excep-
tions thereto and a supporting brief, and the General Counsel filed an
answering brief.
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 [Chairman McCulloch and Members Jenkins and Zagoria].
The Board has reviewed the rulings made by the Trial Examiner 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 all briefs, and the entire rec-
ord in these cases, and hereby adopts the findings,' conclusions, and
recommendations 2 of the Trial Examiner.
[The Board adopted the Trial Examiner's Recommended Order.]
'Respondent Local 1291 has excepted to certain of the Trial Examiner's credibility
findings. As the clear preponderance of the relevant evidence does not persuade us that
the Trial Examiner's resolution of credibility issues was incorrect, we find insufficient
basis for disturbing his credibility findings. Standard Dry Wall Products, Inc, 91 NLRB
544, enfd. 188 F. 2d 362 (C A. 3).
2 We do not adopt footnote 14 of the Trial Examiner's Decision.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon charges filed on November 24, 1964, by Northern Contracting Company
(herein sometimes called Northern) against Local 1291, International Longshore-
men's Association, AFL-CIO (Case No. 4-CC-324-1) (herein sometimes called
Respondent Local 1291), and against Local 1242, International Longshoremen's
Association, AFL-CIO (Case No. 4-CC-324-2) (herein sometimes called Respond-
ent Local 1242), the General Counsel issued an Order (averring in effect that he
deemed it necessary to consolidate said cases in order to effectuate the purposes of the
Act and to avoid unnecessary costs or delay) consolidating the cases and issued a
consolidated complaint dated January 28, 1965, against Respondent Local 1291 and
Respondent Local 1242 alleging violations of Section 8(b)(4)(ii)(B) of the Act.
The Respondents' answers, as amended at the hearing, admit many of the factual
allegations of the consolidated complaint but deny the commission of unfair labor
practices.
Essentially the issues herein are whether agents of Respondents made threats
(within the meaning of Section 8(b) (4) (ii)) to persons engaged in commerce or in
an industry affecting commerce, with whom Respondents had no primary dispute,
and whether, if such threats were made, the object thereof was to cause such person
to cease doing business with another person (within the meaning of Section
8 (b) (4) (ii) (B) ).
Pursuant to appropriate notice, a hearing was held before Trial Examiner Jerry B.
Stone at Philadelphia, Pennsylvania, on March 1, 1965. All parties were represented
at the hearing, participated therein, and were afforded the right to present evidence,
to examine and cross-examine witnesses, to offer oral argument, and to file briefs.
Briefs were filed by the General Counsel and by counsel for Respondent Local 1291
and have been considered.
At the hearing in this matter the parties stipulated to the receipt in the record of
transcribed testimony of witnesses in certain other proceedings concerning the events
involved in this proceeding or relevant thereto. The parties averred that such facts
were not in conflict excepting as pertaining to statements made between W. H. Burns
(general superintendent of Northern) and Respondent Local 1291 Delegates Devine
456 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and John Smith, Jr. After the hearing the General Counsel and Respondent's coun-
sel, at my request, submitted a stipulation of fact based upon the stipulated testimony
received in the record.1
Upon the entire record in this case and from my observation of the witnesses,2 I
make the following:
FINDINGS OF FACT
1. THE BUSINESS OF ONE OF THE EMPLOYERS INVOLVED HEREIN
The facts pertaining to the business of Marine Transport Lines, Inc., are based
upon the credited stipulated testimony of Eble, admissions and statements of narrow-
ing of issues by counsels, and stipulations of the parties.
Marine Transport Lines, Inc. (herein sometimes called Marine), is a Delaware
corporation located at 60 Broad Street, New York, New York. Its business is the
ownership and operation of steamships which carry bulk cargo , including coal, in
both coastwide and foreign shipping.
Marine operates the collier, SS Marine Electric, which is engaged in carrying coal
principally out of Norfolk and Newport News, Virginia, to Somerset, Massachusetts,
and Providence, Rhode Island, for two coal companies-New England Power Com-
pany and Narragansett Electric Company.
During the 12 months preecding March 19, 1965, Marine derived gross receipts
from the carrying of coal by the SS Marine Electric described in the preceding para-
graph, approximately between $1 million and $1,500,000.
From the foregoing it is concluded and found that Marine is now, and has been at
all times material herein, an employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
The facts pertaining to the status of Respondent Local 1291 and Respondent Local
1242 are based upon the pleadings , admissions thereto, statements of counsel narrow-
ing the issues, and the testimony and exhibits pertaining to the employee representa-
tive status of the two Respondents.
Local 1291, International Longshoremen 's Association , AFL-CIO, is, and has been
at all times material herein, a labor organization within the meaning of Section 2(5)
of the Act.
Local 1242, International Longshoremen 's Association , AFL-CIO, is, and has
been at all times material herein , a labor organization within the meaning of Section
2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
Setting
Except as otherwise indicated, the facts pertaining to the "setting" are based upon
the pleadings and admissions thereto, upon statements of counsel narrowing the
issues, upon stipulations of the parties or upon the credited testimony of witnesses
(stipulated or otherwise).
The Pennsylvania Railroad Company is, and has been at all times material herein,
a corporation duly organized under, and existing by virtue of, the laws of the State of
Pennsylvania. At all times material herein, it has owned pier 124 south (located in
the port of Philadelphia, Pennsylvania) and is, and has been at all times material
herein, engaged, inter alia, in the transportation of coal to pier 124 south, for shipment
by vessel to other ports.
Northern Contracting Company (herein sometimes called Northern) is, and has
been at all times material herein, a corporation duly organized under, and existing by
virtue of, the laws of the State of Delaware. At all times material herein, Northern
has been engaged in the operation of pier 124 south pursuant to a contract with the
owner of the pier (the Pennsylvania Railroad). Pier 124 south is used solely for the
loading and receiving of coal.
1I have marked the stipulation of fact of the parties as Trial Examiner's Exhibit No. 1,
and have received the same into the record Northern's counsel submitted a letter
(marked by me as Trial Examiner's Exhibit No. 2 and received into the record) indicating
in effect that he did not wish to join in the stipulation-but had no objection to the
receipt and consideration of the stipulation as being factual. In any event the stipulation
of fact-based upon the facts in the record-reveals the parties' contention of what are
the relevant facts.
a All credibility resolutions made with respect to the witnesses' testimony are based on
the composite evaluation of witness demeanor and logical consistency of the evidence.
LOCAL 1291, INT'L LONGSHOREMEN'S ASSOC., ETC. 457
Northern, in the operation of its business, employs employees who are car riders,
operators, and repairmen. Northern's employees load coal into barges or ships after
the Pennsylvania Railroad has placed coal cars (train) on a track in or next to a shed
located at the head of the pier. Their work is revealed by the following excerpts from
W. H. Burn's (Northern's general superintendent) credited testimony.
Q. And where is that shed located?
A. It's located at the head of the pier. During the winter the coal is contained
within the shed; during the spring and summer when it's not needed to be thawed,
it extends beyond the shed. It's gravity-run; a man gets up on the car and
releases the breaks; and another man gives him a little start from behind; the car
rides down the track, across a spring switch which throws it onto another track,
up onto a kickback and comes down in front-and stops-is stopped in front
of a-what is called a "mule" or a "pig" or a "barney"-then pushed up another
hill, on top of the rotary dumper. The car is then dumped upside down; the
coal falls into a hopper; it, in turn, drops down onto a conveyer. The conveyer
rides out to what we call the beam, into a telescope, and then is dropped all by
gravity into the ship.
Q. Is that operation, from the barney on up-is that all automatic or is there
any physical work done by your employees?
A. The physical work is done by a car-rider; he stops and starts the car.
Q. What, if anything, do your employees do with respect to the vessel? Do
they do any work, at all, in connection with the vessel itself?
A. Yes, they move the vessel. If you wish to switch from hatch-to-hatch,
then you'll move the vessel from one hatch to the other.
Northern's employees (referred to above) are members of Local 1698, Interna-
tional Longshoremen's Association, AFL-CIO, and Northern has a collective-
bargaining agreement with Local 1698, ILA. Northern's employees do not perform
hatch-and-beam work.
Hatch-and-beam work on coalships consists of preparing ships for loading of coal
which involves the removing of hatch covers and supporting steel beams on the
ships, if any, so that the "coal dumper" can go into the hold of the ship and load
evenly.
The ship's agents and stevedore companies who service ships in the port of Phila-
delphia, Pennsylvania, are represented by the Philadelphia Marine Trade Association
(herein called PMTA). Neither Northern nor Marine Transport Lines, Inc., is a
member of the PMTA.
Prior to November 18 or 19, 1964, and for approximately 30 years, when ships
touched at pier 124 for the purpose of receiving coal, such ships, by their owners
or operators and through ship's agents and stevedore companies (members of
PMTA), have engaged employees (longshoremen) represented by Respondent Local
1291 to do the hatch-and-beam work on such ships, and have engaged employees
represented by Respondent Local 1242 to work as ship's clerks and to perform the
clerking and checking work in connection with the loading of vessels at pier 124
south.
PMTA and International Longshoremen's Association, AFL-CIO, and certain
locals thereof have been bargaining together for over 30 years. The contract, in
effect at all times material herein, between PMTA and Respondent Local 1291
assigned hatch-and-beam work in the port of Philadelphia to employees represented
by Respondent Local 1291. The contract, in effect at all times material herein,
between PMTA and Respondent Local 1242 provided that a clerk (represented by
Respondent Local 1242) should be employed on every vessel when loading or
unloading of dry cargo in the port of Philadelphia, Pennsylvania.3
Northern, prior to November 19, 1964, had never been involved in the hiring or
working of stevedores who perform hatch-and-beam work, nor with the hiring or
working of ship's clerks who were customarily hired with hatch-and-beam gangs,
had no contractual relationship with any labor organization other than Local 1698,
International Longshoremen's Association, had no contractural relationship with
stevedoring companies or ships agents, had never hired employees who were mem-
' It is obvious that PMTA could only contract for its members and that such assignment
of hatch-and-beam work constituted an assignment of hatch-and-beam work by PMTA
and its members. Similarly an agreement to employ a clerk was an agreement by PMTA
and its members to so employ a clerk. In connection with the contractual assignment of
the hatch-and-beam work, it is noted that in 1948 after an employer of PMTA questioned
the employees' (represented by ILA) entitlement to the hatch-and-beam work, that the
matter was arbitrated by Dr. George Taylor and it was determined that the hatch-and-
beam work assignment belonged to the employees represented by ILA.
458 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
bers of or represented by Respondent Local 1291 or Respondent Local 1242, had
never arranged for or hired hatch -and-beam employees , and had no arrangement
with stevedoring companies for furnishing of hatch-and -beam employees. In sum
(prior to November 19, 1964 ), Northern had not employed hatch-and -beam employ-
ees, ship's clerks, stevedore members of Respondent Local 1291 , or clerk members
of or represented by Respondent Local 1242.4
Marine Transport , Inc., prior to November 18 or 19, 1964 , and on the occasions
that ships owned or operated by itself had touched at pier 124 south for the purpose
of loading coal, had always engaged the services of Texas Transport and Terminal
Company ( a member of PMTA ),5 and the latter had employed employees (long-
shoremen ) represented by Respondent Local 1291 to perform the hatch-and-beam
work on such ships and had employed employees (ship's clerks ) represented by
Respondent Local 1242 to perform the clerking and checking work in connection
with the loading of such vessels.
Marine owns and operates a collier, SS Marine Electric. Prior to November 18
or 19, 1964, Marine had the SS Marine Electric under a long -term consecutive voy-
age charter to the New England Power Company and Narragansett Electric Com-
pany. The long-term consecutive voyage charter granted the coal companies referred
to the right and responsibility for arranging for loading and unloading of the ships.
The credited stipulated testimony of Rubin Henley Pierce revealed that he was
employed by Marine, that he was and had been ( as of January 13, 1965 ) master of
the Marine Electric for 26 months , that when hatches on his vessel needed to be
opened or closed that they were opened or closed by deckmen of the deck depart-
ment, and that the deckmen opened or closed the hatches because it was their duty
to do so.
W. P. Stuart , general coal traffic manager of the Pennsylvania Railroad, sometime
prior to November 18, 1964, contacted a Mr. Swift representing "The New England
Electric Associates " 6 as a coal buyer and successfully solicited the business of trans-
portation of certain coal over the Pennsylvania Railroad to pier 124 south.
Prior to the time that the SS Marine Electric was to arrive at pier 124 south for
the purpose of loading coal, Northern was aware of its expected arrival and that a
decision had been made not to hire a hatch-and -beam crew in connection with the
loading of the Marine Electric. I credit Krick 's stipulated testimony to the effect
that Northern was told of the aforesaid decision , but that Northern had no part in
the making of said decision . Krick's (Northern's vice president ) credited stipulated
testimony reveals that Northern could accept or reject a ship coming into pier 124
south. The failure to reject the Marine Electric does not constitute a showing that
Northern made the decision that hatch -and-beam men would not be hired.
Northern was also aware , prior to November 18, 1964, that a ship had previously
attempted to load at another Philadelphia coal loading pier without hiring a hatch-
and-beam crew , that there had been picketing because of this, and understood that
a court injunction against such picketing had been entered.
The Events of November 18 and 19, 1964
The SS Marine Electric anchored off pier 124 south on November 18, 1964, at
5:30 a.m . At the time of anchorage or shortly thereafter the deck department deck-
men of the ship opened the hatches on the ship. Thereafter when the hatches were
closed they were also closed by the deck department deckmen of the ship. Four of
the hatches were closed prior to the ships departure from the pier and the remaining
batches was closed at the dock after departure , apparently on November 20, 1964.7
4In this case the testimony of the witnesses , the stipulations , and the parties ' positions
reveal that hatch -and-beam employees , stevedores , and members of Respondent Local 1291
were considered by the parties as one and the same . Similarly the testimony , stipulations,
and parties ' positions revealed that ship ' s clerks and members of Respondent Local 1242
were considered as one and the same.
5 The credited stipulated testimony of Eble reveals that Marine Transport , Inc , always
when necessary , utilized the stevedoring services of Texas Transport and Terminal
Company.
6 Apparently The New England Power Company and Narragansett Electric Company-
one or both are part of "The New England Electric Associates."
7 There is no specific evidence as to the time of departure but the parties indicated in
their stipulation of fact that the ship called at pier 124 on November 18 and 19, 1964.
Since the record reveals that loading of the ship was going on after 7 p in., on Novem-
ber 19 , 1964, and since the credited stipulated testimony of R. H. Pierce ( captain of
the SS Marine Electric ) was to the effect that the last hatch was closed at the dock after
leaving and during normal working hours ( between 8 a in. and 5 p m .). I deduct that the
departure was on November 20, 1964.
LOCAL 1291, INT'L LONGSHOREMEN'S ASSOC., ETC. 459
The following excerpt from R. H. Pierce' s (captain of the SS Marine Electric)
credited stipulated testimony reveals the hatchwork involved on the SS Marine
Electric on November 18 to 20, 1964.
A. It's a MacGregory type hatch. It's not hatch boards and hatch beams.
It's steel hatches and a hydraulic lift which approximately-they are automat-
ically lifted up and then they have a steam winch with their runner to pull them
back and it's the accordion type that folds up.
And to close them it's the same procedure.
It takes approximately ten minutes for anywhere from two to three people
to open them.
Q. In connection with your arrival in Philadelphia on November 19, 1964,
who opened the hatches9
A. The Deck Department of the "Marine Electric."
Q. And who closed them?
A. The Deck Department of the "Marine Electric."
Q. Which employees?
A. There was a boatswain and the day men, two day men.
The Threats 8
On November 19, 1964, around 6.30 p.m., Northern Contracting Company's Gen-
eral Superintendent Burns was at pier 125 in the car recorder shanty. Burns saw
Devine and John J. Smith, Jr. (delegates of Respondent Local 1291) start across
some tracks toward where he was and turned back. Burns left the car recorder
shanty and approached the two men. Devine introduced himself and John J. Smith,
Jr., to Burns and asked who was in charge here. Burns replied that he was. Devine
told Burns that "we're going to pull a work stoppage." Superintendent Burns asked
Devine why they were going to pull a work stoppage. Devine replied that there were
no hatch-and-beam men working. Devine said to Burns "You know we have in
our contract that all coal boats, all coal boats that come in, must have Local 1291
men on." Burns asked why Devine had not come earlier. Devine told Burns that
they (he and John Smith, Jr.), had not known about it earlier, that he had just got
a call from a "fellow," who had told him (Devine) that he was going to put a
picket sign on if he (Devine) did not come down and straighten the matter out.
Burns asked Devine who the man was that had called and Devine told Burns that
the man had not told him his name. Burns told Devine that he wished he (Devine)
had come earlier when there were other supervisors and the matter could be
thrashed out with everyone around. Burns told Devine that he would have to call
someone else and suggested that they go to the car recorder shanty.
Burns, Devine, and John J. Smith, Jr., proceeded thereupon to the car recorder
shanty, where Robert Smith was. Devine again told Burns in effect that the Union
was going to pull a work stoppage. Burns again asked Devine why there would be a
work stoppage and Devine replied that there was going to be a work stoppage
because the hatch-and-beam men had not been hired. Burns told Devine in effect
that there was nothing he could do about the problem because his Company did not
hire the hatch-and-beam men. Devine told Burns in effect that they had to "knock
this off" that "we're sick of this here stuff," that Burns had better get some hatch-
and-beam men there because there are six men up at the diner who were going
to come down "here" and picket. Burns told Devine that he could not do anything
8 Based upon a composite of the credited testimony of Burns, Robert C Smith , Devine,
and John J . Smith, Jr The demeanor of Burns and Robert C . Smith while testifying
was that of frank, candid , and forthright witnesses I am convinced that they were
attempting to truthfully set forth all of the facts Although I believe part of Devine's
and John J. Smith, Jr .'s, testimony , I was not impressed by my observation of their
demeanor while testifying that they were frankly and candidly telling the facts as they
knew them . Devine appeared to be appraising his own testimony and to be pleased at
times and concerned at other times with what he had testified to. John J . Smith, Jr.,
appeared concerned over whether he should testify to the mention of work stoppages and
"protests ." Considering all the foregoing I found the testimony of Burns and Robert C.
Smith more reliable as to points of conflict than I did that of Devine and John J . Smith,
Jr, and have so credited the testimony herein I do not credit Devine's or John J.
Smith, Jr.'s , testimony to the effect that they simply conveyed a message that an uniden-
tified caller had threatened to picket and that they were here in an attempt to straighten
the matter out and to avoid a work stoppage . Although it is suggested in Respondent
1291's brief , the evidence does not reveal that the hatch -and-beam men performed the
hatch-and -beam work. The stipulated testimony of R. H. Pierce reveals in fact that the
hatch -and-beam work was performed by the employees of SS Marine Electric.
460 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
until he saw a picket and then he would make some arrangements . Devine told
Burns that if the pickets came down that it would be a long time before the pickets
were off. Burns asked Devine if he were a picket. Devine replied that he was and
asked Burns if he wanted a picket. John J. Smith, Jr. (delegate of Respondent
Local 1291) told Burns that he had some picket signs in his car and if Burns desired,
that he (Smith) would go and stand at the gate and picket. Burns told Devine and
John J. Smith, Jr., that this would not be necessary, that he would make the necessary
arrangements to get the hatch-and-beam men down there. Devine told Burns
"never mind" that he would get the hatch-and-beam men down himself. Devine
then asked who was going to pay the men. Burns replied that he did not know who
would pay the men. Devine told Burns in effect that this did not satisfy him.
Burns then told Devine that he would guarantee the pay. Devine stated that he
would take Burns' word on this. Devine told Burns that the hatch-and-beam men
would have to be paid from 8 a.m. Burns protested that the men had not been
there at 8 a.m. Devine told Burns that this did not matter. Burns made no
further reply.
Devine proceeded thereupon to telephone men to report as hatch-and-beam
employees. These men were checked in by Robert Smith for Northern Contracting
Company. Northern Contracting Company engaged the services of a ship's agent,
John O'Connor, who paid the hatch-and-beam men apparently for the time they
would have worked had there not been the performance of the hatch-and-beam work
by the SS Marine Electric crew. Northern Contracting Company paid John O'Connor
for paying the hatch-and-beam men secured by Devine. The hatch-and-beam men
secured by Devine did not perform any actual work. The hatch-and-beam work
continued to be performed by the crew of SS Marine Electric.
On November 19, 1964, about 7:20 p.m. John Taylor, Respondent Local 1242
delegate, engaged in a telephonic conversation with D. H. Krick, vice president of
Northern Contracting Company.9 Taylor said "you know, you have had trouble
down here and you have a hatch and beam gang on. This ship will require the
services of a ship's clerk." Krick told Taylor that he did not know why "we need
one." Taylor told Krick in effect that if you do not hire a clerk that "we would
have to take the matter in hand and there possibly could be a picket." Krick told
Taylor "Well, we have been through this once today. What do you want to do?"
Taylor stated that he would get a ship's clerk and Krick told Taylor that it was all
right, to get him. Taylor asked how the clerk would be paid. Krick told Taylor
that he would go through John O'Connor and set it up so that Taylor's man would
be paid by a PMTA member, as Northern Contracting Company was not a member
of that organization and O'Connor was a member under the PMTA contract with
fringe benefits and everything. The ship's clerk was thereupon hired through
O'Connor. The clerk did not, however, perform any work.io
It is clear from all the foregoing that Respondent Local 1291 was contending
that the hatch-and-beam work to be performed on the SS Marine Electric and on all
ships should be performed by the employees represented by it, and that Respondent
Local 1242 was contending that when a hatch-and-beam crew were hired that a
ship's clerk represented by it should be hired.
Respondent Local 1291 Delegate Devine's statements to Burns reveal that the
contended claim for work was based upon the rights set forth in the PMTA contract
with Respondent Local 1291. Since Respondent Local 1291's claim for the work
was based upon the aforementioned contract, it follows that its claim must be based
upon an assumption that the employers therein legally had the work to give. Since
Texas Transport and Terminal Company was the PMTA employer or ship's agent
that performed work for Marine Transport, Inc. (the owner of the SS Marine
Electric), Respondent Local 1291's primary dispute was therefore based upon the
fact that Marine Transport, Inc., had not engaged the services of Texas Transport
and Terminal Company.ii
9 The facts pertaining to the Krick-Taylor conversation are based upon a composite of
the credited stipulated testimony of Krick and Taylor.
10Krick's credited stipulated testimony reveals that he instructed his foreman not to
utilize this man for work. There is no evidence that he in fact worked. From the
foregoing and the entire record I infer that the clerk performed no duties.
2 'Respondent Local 1291's contention that it was entitled to the hatch-and-beam work
insofar as it may relate to Northern Contracting Company is not factually supported.
The question of Respondent Local 1291's entitlement to the hatch-and-beam work herein
relates to the Employer Marine Transport Lines, Inc Local 1291, International Long-
shoremen's Association, AFL-CIO ( Northern Contracting Company ), 152 NLRB 735.
LOCAL 1291, INT'L LONGSHOREMEN'S ASSOC., ETC. 461
The facts clearly reveal that Northern Contracting Company was not the employer
by contract or otherwise of the employees who performed hatch-and-beam work
on the SS Marine Electric and therefore not the employer with whom Respondent
Local 1291 had a primary dispute.
The conduct of Respondent Local 1291's Delegates Devine and Smith in telling
Superintendent Burns in effect that there would be a work stoppage and picketing
if the hatch-and-beam men were not hired clearly reveals a threat of a work stoppage
and of picketing. It is also clear that such a threat clearly reveals that the purpose
of the threat was to cause Northern Contracting Company, the operator of the pier,
to cease allowing the SS Marine Electric owned by Marine Transport, Inc., or other
ships to do business at the pier unless they utilized the practice of securing employees
represented by Local 1291 to perform the hatch-and-beam work on such ships.
Such a threat by Respondent Local 1291 delegates clearly constitutes a threat with
an object of requiring Northern Contracting Company to cease doing business with
Marine Transport, Inc., and constitutes conduct violative of Section 8(b) (4) (ii) (B)
of the Act. I so conclude and find.12
Since employees represented by Respondent Local 1242 had consistently per-
formed the clerking and checking work in connection with the loading of vessels at
pier 124 south pursuant to its collective-bargaining agreement with PMTA, it is clear
that its contended basis for the ship's clerks' work was based upon rights set forth
in the aforesaid contract. For the same reasons set forth with reference to Respond-
ent Local 1291 it may be stated that: (1) Respondent Local 1242's primary dispute
was based upon the fact that Marine Transport, Inc. (owner of the SS Marine
Electric) had not engaged the service of Texas Transport and Terminal Company,
and (2) Respondent Local 1242 did not have a primary dispute with Northern Con-
tracting Company.
For substantially the same reasoning set forth with respect to the statements of
Respondent Local 1291's Delegates Devine and Smith, I conclude and find that
Respondent Local 1242's Delegate Taylor's statements to Northern Contracting
Company Vice President Krick constituted conduct violative of Section 8(b)
(4) (ii) (B).
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondents as set forth in section III, above, occurring in
connection with the operations of the Employer described in section I, above, have
a close, intimate, and substantial relation to trade, traffic, and commerce among the
several States, and tend to lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondents have engaged in unfair labor practices in
violation of Section 8(b)(4)(ii)(B) of the Act, it will be recommended that they
cease and desist therefrom, and that they take certain affirmative action designed
to effectuate the policies of the Act.
Upon the basis of the foregoing findings of fact and the entire record in the case,
I make the following:
CONCLUSIONS OF LAW
1. Marine Transport Lines, is an employer engaged in commerce within the mean-
ing of Section 2(6) and (7) of the Act.
2. Northern Contracting Company is a person engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
3. Respondent Local 1291 is a labor organization within the meaning of Section
2(5) of the Act.
4. Respondent Local 1242 is a labor organization within the meaning of Section
2(5) of the Act.
5. By threatening, coercing, and restraining Northern Contracting Company with
an object of forcing or requiring it to cease doing business with Marine Transport
Lines, Inc., Respondents (Locals 1291 and 1242) have engaged in and are engaging
in unfair labor practices within the meaning of Sections 8(b) (4) (ii) (B) and 2(6)
and (7) of the Act.
"Local 3, International Brotherhood of Electrical Workers , AFL-CIO (New York
Telephone Company ), 140 NLRB 729, enfd. 325 F . 2d 561 (C.A. 2).
462 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
RECOMMENDED ORDER 13
Upon the basis of the foregoing findings of fact and conclusions of law and the
entire record in this case, and pursuant to Section 10(c) of the National Labor
Relations Act, as amended, it is recommended that:
A. Respondent Local 1291, International Longshoremen's Association, AFL-CIO,
its officers, agents, and representatives, shall:
1. Cease and desist from threatening, coercing, or restraining Northern Contract-
ing Company, or any other person engaged in commerce or in an industry affecting
commerce, where, in either case, an object thereof is to force or require Northern
Contracting Company or any other person engaged in commerce or in an industry
affecting commerce to cease doing business with Marine Transport Lines, Inc.
2. Take the following affirmative action which is necessary to effectuate the policies
of the Act:
(a) Post in Respondent's (Local 1291, International Longshoremen's Association,
AFL-CIO) business offices and meeting halls, copies of the attached notice marked
"Appendix A." 14 Copies of said notice, to be furnished by the Regional Director
for Region 4, shall, after being duly signed by Respondent's (Local 1291, Interna-
tional Longshoremen's Association, AFL-CIO), authorized representative, be posted
by said Respondent immediately upon receipt thereof, and be maintained by it for
60 consecutive days thereafter, in conspicuous places, including all places where
notices to members are customarily posted. Reasonable steps shall be taken by said
Respondent to insure that said notices are not altered, defaced, or covered by any
other material.
(b) Sign and mail sufficient copies of said notice to the Regional Director for
Region 4 for posting by Marine Transport Lines, Inc., and Northern Contracting
Company, Inc., if either or both be willing, at all places where notices to their
respective employees are customarily posted.
(c) Notify the Regional Director for Region 4, in writing, within 20 days from
the date of this Recommended Order, what steps the Respondent (Local 1291, Inter-
national Longshoremen's Association, AFL-CIO), has taken to comply herewith 15
B. Respondent Local 1242, International Longshoremen's Association, AFL-CIO,
its officers, agents, and representatives, shall:
1. Cease and desist from threatening, coercing, or restraining Northern Contract-
ing Company, or any other person engaged in commerce or in an industry affecting
commerce, where, in either case, an object thereof is to force or require Northern
Contracting Company or any other person engaged in commerce or in an industry
affecting commerce to cease doing business with Marine Transport Lines, Inc.
2. Take the following affirmative action which is necessary to effectuate the
policies of the Act:
(a) Post in Respondent's (Local 1242, International Longshoremen's Association,
AFL-CIO) business offices and meeting halls, copies of the attached notice marked
"Appendix B." 16 Copies of said notice, to be furnished by the Regional Director
for Region 4, shall, after being duly signed by Respondent's (Local 1242, Interna-
13 In the event that this Recommended Order be adopted by the Board, the word "Order"
shall be deemed substituted for the words "Recommended Order." Additionally there shall
be deemed substituted for the first paragraph of the Recommended Order the following
paragraph:
Upon the entire record in these cases, and pursuant to Section 10(c) of the
National Labor Relations Act, as amended, the National Labor Relations Board hereby
orders that the complaint in this matter be dismissed in its entirety.
14 In the event that this Recommended Order be adopted by the Board, the words "a
Decision and Order" shall be substituted for the words "a Recommended Order of a Trial
Examiner" in the notice. In the further event that the Board's Order be enforced by a
decree of a United States Court of Appeals, the words "a Decree of the United States
Court of Appeals, Enforcing an Order" shall be substituted for the words "a Decision and
Order "
15 In the event that this Recommended Order be adopted by the Board, this provision
shall be modified to read: "Notify said Regional Director, in writing, within 10 days from
the date of this Order what steps the Respondent has taken to comply herewith."
16 In the event that this Recommended Order be adopted by the Board, the words "a
Decision and Order" shall be substituted for the words "a Recommended Order of a Trial
Examiner" In the notice. In the further event that the Board's Order be enforced by a
decree of a United States Court of Appeals, the words "a Decree of the United States
Court of Appeals, Enforcing an Order" shall be substituted for the words "a Decision and
Order."
LOCAL 1291, INT'L LONGSHOREMEN'S ASSOC., ETC. 463
tional Longshoremen's Association, AFL-CIO) authorized representative, be posted
by said Respondent immediately upon receipt thereof, and be maintained by it for
60 consecutive days thereafter, in conspicuous places, including all places where
notices to members are customarily posted. Reasonable steps shall be taken by
said Respondent to insure that said notices are not altered, defaced, or covered by
any other material.
(b) Sign and mail sufficient copies of said notice to the Regional Director for
Region 4, for posting by Marine Transport Lines, Inc., and Northern Contracting
Company, Inc., if either or both be willing, at all places where notices to their
respective employees are customarily posted.
(c) Notify the Regional Director for Region 4, in writing, within 20 days from
the date of this Recommended Order, what steps the Respondent (Local 1242, Inter-
national Longshoremen's Association, AFL-CIO) has taken to comply herewith.17
is In the event that this Recommended Order be adopted by the Board, this provision
shall be modified to read: "Notify said Regional Director, in writing, within 10 days from
the date of this Order, what steps the Respondent has taken to comply herewith."
APPENDIX A
NOTICE TO ALL MEMBERS OF LOCAL 1291, INTERNATIONAL LONGSHOREMEN'S ASSOCI-
ATION, AFL-CIO, AND TO ALL EMPLOYEES OF NORTHERN CONTRACTING COMPANY,
AND MARINE TRANSPORT LINES, INC.
Pursuant to a Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify you that:
WE WILL NOT threaten, coerce, or restrain Nor-them Contracting Company,
or any other person engaged in commerce or in an industry affecting commerce
where, in either case, an object thereof is to force or require Northern Con-
tracting Company or any other person engaged in commerce or in an industry
affecting commerce to cease doing business with Marine Transport Lines, Inc.
LOCAL 1291, INTERNATIONAL LONGSHOREMEN'S
ASSOCIATION , AFL-CIO,
Labor Organization.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
If members have any question concerning this notice or compliance with its pro-
visions, they may communicate directly with the Board's Regional Office, 1700 Bank-
ers Securities Building, Walnut and Juniper Streets, Philadelphia, Pennsylvania,
Telephone No. 735-2612.
APPENDIX B
NOTICE TO ALL MEMBERS OF LOCAL 1242, INTERNATIONAL LOGNSHOREMEN'S ASSOCI-
ATION, AFL-CIO, AND TO ALL EMPLOYEES OF NORTHERN CONTRACTING COMPANY,
AND MARINE TRANSPORT LINES, INC.
Pursuant to a Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify you that:
WE WILL NOT threaten, coerce, or restrain Northern Contracting Company,
or any other person engaged in commerce or in an industry affecting commerce,
where, in either case, an object thereof is to force or require Northern Contract-
ing Company or any other person engaged in commerce or in an industry affect-
ing commerce to cease doing business with Marine Transportation Lines, Inc.
LOCAL 1242, INTERNATIONAL LONGSHOREMEN'S
ASSOCIATION, AFL-CIO,
Labor Organization.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
464 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
If members have any question concerning this notice or compliance with its pro-
visions, they may communicate directly with the Board's Regional Office, 1700 Bank-
ers Securities Building, Walnut and Juniper Streets, Philadelphia, Pennsylvania,
Telephone No. 735-2612.
The Shelby Manufacturing Company and International Union,
United Automobile, Aerospace, and Agricultural Implement
Workers of America, AFL-CIO
The Shelby Manufacturing Company and International Union,
United Automobile, Aerospace, and Agricultural Implement
Workers of America, AFL-CIO, Petitioner. Cases Nos. 8-CA-
3466, 8-CA-3550, and 8-RC-549?. November 1,1965
DECISION AND ORDER
On May 14, 1965, Trial Examiner Eugene E. Dixon issued his Deci-
sion 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 cer-
tain affirmative action, as set forth in the attached Trial Examiner's
Decision. He also found that the Respondent had not engaged in cer-
tain other unfair labor practices alleged in the complaint and recom-
mending dismissal as to them. The Trial Examiner further found
merit in the objections by the Union to the election conducted on
May 12, 1964, and recommended that the election be set aside and that
a new election be held. Thereafter, the Respondent, the Charging
Party, and the General Counsel filed exceptions to the Trial Examin-
er's Decision and supporting briefs.
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 this case to a three-member
panel [Chairman McCulloch and Members Brown and Zagoria].
The Board has reviewed the rulings made by the Trial Examiner 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 these cases, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner with the following additions and
modifications.'
1. The Trial Examiner found, and we agree, that the Respondent
violated Section 8(a) (1) of the Act by promulgating and enforcing
unlawful no-solicitation and no-distribution rules; by interrogating
'We hereby correct the Trial Examiner's apparently inadvertent error by substituting
the word "suspending" for "discharging" in the section of the Trial Examiner's Decision
entitled "The Remedy," and by substituting May 12 for May 14 as the date of the election
155 NLRB No. 39.