Local 1426, Longshoremen

National Labor Relations Board - Board Decisions

Aug 28, 1972

198 N.L.R.B. 1076 (N.L.R.B. 1972)

1076 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Local No. 1426, International Longshoremen 's Associ-
ation, AFL-CIOand Local No. 1766, International
Longshoremen 's Association , AFL-CIO and Al-
mont Shipping Company ; Heide Company; Inter-
national Shipping Company ; International Termi-
nal Operating Company ; Stevedores, Inc.; Waters
Shipping Company ; Wilmington Shipping Compa-
ny
Local No. 1807, and Local 1847 , International
Longshoremen 's Association and Checkers and
Morehead City Shipping Company ; Heide Compa-
ny. Cases 11-CC-82, 11-CC-84, and 11-CC-86
August 28, 1972
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS JENKINS
AND KENNEDY
On March 7, 1972, Trial Examiner Samuel M.
Singer issued the attached Decision in this proceed-
ing. Thereafter, the General Counsel filed exceptions
and a supporting 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
authority in this proceeding to a three-member panel.
The Board has considered the record and the Trial
Examiner's Decision in light of the exceptions and
brief and has decided to affirm the Trial Examiner's
rulings, findings, and conclusions and to adopt his
recommended Order.
As set forth in the Trial Examiner's Decision, the
sole issue presented by this complaint is whether
Respondent Unions, all of which are locals of the
ILA respectively representing separate units of
longshore employees of shipping companies operat-
ing in the South Atlantic ports, violated Section
8(b)(4)(i) and (ii)(B) of the Act by inducing a strike
among the employees they represented in the latter
part of 1971. The alleged violation was litigated on
the theory that Respondents struck the Charging
Employers in order to aid the bargaining objectives
sought to be furthered by sister unions who struck
the shipping companies operating in the North
Atlantic ports when their negotiations failed to
produce agreement. The North Atlantic unions
struck at midnight of September 30, 1971, and the
Respondent Unions, as well as others representing
employees of other South Atlantic port shipping
companies, struck soon thereafter in the early hours
of the morning of October 1, 1971. The Trial
Examiner dismissed the complaint. Although we
have no criticism of his decision, we believe some
additional comments are in order in light of the
unusual theory of the alleged violation and the
willingness of our dissenting colleague to sustain that
theory.
The unusual aspect of the complaint, as litigated, is
that it seeks to extend to the Charging Employers the
protection afforded by Section 8(b)(4) to neutrals in
a labor dispute not of their own making, even
though: (1) the Charging Employers and the Respon-
dent Unions were primary parties to a contract
bargaining dispute which had not been resolved at
the time that Respondent Unions called the employ-
ees for whom they bargained out on strike; and (2)
Respondents neither established any picket lines nor
engaged in any other action beyond striking the
Charging Employers upon the expiration of their
bargaining contracts.
In claiming the extension of 8(b)(4)'s protections to
be appropriate, General Counsel undertook to prove
that, in inducing the strike, Respondents were
moved, not by their legitimate interests in obtaining
from the Charging Employers a settlement of their
own contract terms, but, rather, by their interests in
'strengthening the bargaining position of the New
York sister unions in the resolution of the contract
'dispute concurrently existing at the New York ports.
Like the Trial Examiner, we believe his theory was
critically affected by affirmative evidence, largely
undisputed, which established the existence of: (a) a
bona fide primary labor dispute between Respondent
Unions and the Charging Employers at the time
Respondents struck; and (b) interdependent interests
of both the Charging Employers and the Respondent
Unions in the settlement by the parties to the New
York negotiations of the contract dispute.
The existence of a bona fide primary labor dispute
between Respondent Unions and the Charging
Employers was amply documented by the Trial
Examiner. The Respondent Unions and the Charg-
ing Employers had engaged in a few meetings before
their then current contracts were terminated for
purposes of establishing agreements looking to the
settlement of wage and economic items laid open for
discussion at the bargaining table. But although
neither side had fully explored nor determined how
'far the other was willing to go to compromise
differences with respect to the contents of new
bargaining agreements, the fact remains that there
had been no settlement on the important issue of new
wage rates and similar economic matters by the date
the precedent contracts expired.
In terms of its legal effect on the issues here
198 NLRB No. 150
LOCAL 1426, LONGSHOREMEN
involved, the absence of any settlement on the
critical date afforded the Respondents a lawful
warrant to call the employees they represented out
on strike even if, as General Counsel claimed, no
impasse had yet been reached in their negotiations'
and no hourly wage and benefit package proposals
had yet been placed upon the table by any of the
parties. There was nothing to forbid the Charging
Employers from presenting proposals on those items
at any time here relevant. But the reasons they did
not do so during the bargaining meetings held
prestrike are to be found in the bargaining proce-
dures they had developed with Respondents during
the conduct of their long bargaining relations, and in
evidence of their acquiescence to the continued use
of the historical procedures for purposes of the
current negotiations.
The parties' stipulations depict the historical
procedures under which the parties had, in a sense,
permitted their interests in major wage and fringe
benefit terms to be determined by the results of the
bargaining conducted at the New York port loca-
tions. Under these procedures, the parties had, in the
past, confined their active negotiations to "local"
issues; had deferred discussion of hourly wage and
fringe benefit items until the New York port
contracts had been settled; and, almost routinely had
then agreed to the inclusion in their contracts of
identical provisions on such items.
The testimonial admissions by agents of the
Charging Employers satisfy us of their acquiescence
in the continued use of the traditional bargaining
patterns for purposes of the contract negotiations we
are concerned with here. We note particularly that,
although the employer negotiators unsuccessfully
sought a union commitment looking to the avoidance
of strike action on the contracts' expiration dates, (1)
the parties adjourned their September 21 meeting
without scheduling another; (2) the Employers
submitted counterproposals to the Unions on that
date stating, inter alia, that wages and fringe benefits
would be presented and discussed at a later (unspeci-
fied) date; (3) the Unions had earlier proposed
deferral of bargaining on such items pending the
conclusion of the New York negotiations in accord
with past bargaining practices; (4) the union propos-
als on "local" issues regarded as open for immediate
negotiation included a "guaranteed annual income"
provision-one the Employers categorically rejected;
and (5) the employer counterproposals were confined
to the matters traditionally viewed by the parties as
matters involving "local" issues.
In the context of the mutually adopted bargaining
practices, we, like the Trial Examiner, would not
I There is nothing in the provisions of the Act which requires that unions
must await an impasse in negotiations before conducting a stoke in aid of
1077
place a secondary taint upon Respondents' strike
action by reason of the statements made by union
negotiators which General Counsel and our dissent-
ing colleague would construe as proof that the
Respondents' strike action was dictated by the
concurrent strike action of the sister unions in New
York. As the Trial Examiner indicated, even assum-
ing both the correctness of the General Counsel's
reading of the ambiguous statements and of his
contention that those who uttered them spoke for
Respondents, the statements do not, in the context of
the situation depicted by this record's total facts,
provide any warrant for extending to the Charging
Employers the protections afforded by Section
8(b)(4).
We shall, accordingly, dismiss the complaint.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Trial Examiner and hereby orders
that the complaint herein be, and it hereby is,
dismissed in its entirety.
MEMBER KENNEDY, dissenting:
Unlike my colleagues, I would not adopt the Trial
Examiner's Decision herein. In my opinion, the
record amply demonstrates that Respondents violat-
ed Section 8(b)(4)(i) and (ii)(B) of the Act by striking
when their contracts expired with an object of
causing the Charging Parties to bring pressure on
North Atlantic shippers to settle their contemporane-
ous dispute with North Atlantic ILA locals.
In my view, under the circumstances here, it is
unrealistic to conclude that the strike was called
solely in support of whatever labor dispute existed
between the parties. Thus, despite the South Atlantic
employers' attempts to negotiate a complete agree-
ment without regard to bargaining at other ports, and
notwithstanding past practice, the Unions insisted on
following past practice when negotiations began on
August 9, 1971. This meant that Respondents'
representatives would only discuss "local" issues with
South Atlantic shippers while "national" issues were
being resolved in the North. And, under this practice,
the parties were in essence bound to incorporate into
their agreements any accords reached in the North
Atlantic region on such issues.
After several bargaining sessions, and the submis-
sion of proposals and counterproposals, on Septem-
ber 21 the parties amicably broke off negotiations
without reaching an impasse on any local issue. But,
despite having received assurances from union
contract demands
1078 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
committeemen that there would be no strike when
the contracts expired on September 30, at 7:30 a.m.
on October 1 Pidgeon, the head of the group
negotiating for the shippers, was called by Union
Negotiating Committee Chairman Harvey and told
that because negotiations in New York between the
New York Shipping Association and the North
Atlantic ILA locals had failed at 3 a.m., the South
Atlantic locals had gone on strike effective midnight
September 30.
During the strike a South Atlantic shipper's request
that a vessel containing deteriorating cargo be
unloaded was referred to ILA President Gleason who
directed the company to the New York strike
committee. After neither the committee nor Gleason
had acted, the Charging Party was forced to unload
the cargo elsewhere. Further proof that Respondents'
strike had an object of influencing the North Atlantic
negotiations can be found in Harvey's comment to
fellow committeeman Williams that the Union's
policy was "one port down, all ports down."
Given Respondents' refusal to alter the pattern of
bargaining, the absence of an impasse over local
issues, Harvey's October 1 comment to Pidgeon
concerning the reason for the strike, Gleason's
apparent control over the South Atlantic local's
strike activity, and Harvey's asserting that the union
policy was one port down, all ports down, I cannot
agree with my colleagues' adopting the Trial Examin-
er's conclusion that the strike was called in conformi-
ty with Respondent's "no contract, no work" policy
solely in furtherance of a primary labor dispute with
the Charging Parties.2
To me, it seems more realistic to conclude from the
record that Respondents' strike was designed at least
in part to force the South Atlantic shippers to
pressure the North Atlantic negotiators into settling
with the ILA as soon as possible. Hence, the strike
had an unlawful secondary objective, and I would so
find.
2 Cf International Organization of Masters, Mates and Pilots (Lykes Bros
Steamship Co), 197 NLRB No 68
TRIAL EXAMINER'S DECISION
SAMUEL M. SINGER, Trial Examiner: This proceeding,
tried before me in Wilmington, North Carolina, on
January 12, 1972, pursuant to charges filed on November 3
and 9 and consolidated complaint issued on November 24,
1971,1 concerns allegations that Respondents violated
Section 8(b)(4)(i) and (ii)(B) of the National Labor
Relations Act by engaging in secondary boycott activities.
General Counsel's basic theory is that an object of a work
stoppage or strike engaged in by Respondents upon
I Unless indicated, all dates are 1971
2 The transcript is corrected as follows at p 5, 1 17, insert "TRIAL
EXAMINER" prior to "Of course", and at p 105, 1 22, substitute "no
termination of their collective agreement with the Charging
Parties (employers operating at the ports of Wilmington
and Morehead City, North Carolina-i.e., "South Atlan-
tic" ports) was to bring pressure upon the Charging Parties
to in turn bring pressure upon other Employers (members
of the New York Shipping Association, operating at
"North Atlantic" ports) to settle such other employers'
dispute with sister locals of International Longshoremen's
Association.
All parties appeared and were afforded full opportunity
to be heard and to examine and cross-examine witnesses.
Briefs were received from General Counsel and Respon-
dents by February 7, 1972. Upon the entire record,2 and
my observation of the testimonial demeanor of the
witnesses, I make the following:
FINDINGS AND CONCLUSIONS
1. THE EMPLOYERS AND LABOR ORGANIZATIONS
INVOLVED
Charging Parties, North Carolina corporations with
principal offices and places of business in Wilmington and
Morehead City, North Carolina , are engaged in shipping,
stevedoring , and related services at the ports of Wilming-
ton and Morehead City. During the past representative
year , each of them received total revenues in excess of
$50,000 for services performed in connection with trans-
portation of goods in interstate and foreign commerce. I
find that at all material times, each of the Charging Parties
has been an employer engaged in commerce or industry
affecting commerce within the meaning of Section 2(6) and
(7) of the Act.
Respondent Unions are labor organizations within the
meaning of Section 2 (5) of the Act.
II. THE UNFAIR LABOR PRACTICES
A. The Facts3
1. Introduction; traditional bargaining pattern
As already noted, Charging Parties are shipping compa-
nies operating at South Atlantic ports-specifically Wil-
mington and Morehead City, North Carolina. Other
employers in the Southern region include those operating
at the ports of Charleston, Savannah, Jacksonville, and
Tampa. The North Atlantic region includes shipping
companies (including employers comprising New York
Shipping Association) which operate at Nothern ports.
Respondent Locals are members of the South Atlantic and
Gulf Coast District, affiliated with the International
Longshoremen's Association-Local 1426 representing
longshoremen, and Local 1766 clerks and checkers, of
employers in the Wilmington area ; and Locals 1807 and
1847 representing longshoremen, clerks, and checkers in
the Morehead City area. Northern ILA locals represent
employees in the North Atlantic region including those of
employers comprising New York Shipping Association.
It was stipulated that "traditionally" negotiations be-
charges" for " the charges "
3 Based almost entirely on substantially uncontradicted testimony and
stipulations entered into at the hearing
LOCAL 1426, LONGSHOREMEN
tween the Northern employers (including New York
Shipping Association ) and Northern ILA locals "set the
pattern" of agreements between South Atlantic employers
and locals on major issues or issues of "national scope"
(e.g., hourly wages, fringe benefits such as pensions, and
contract duration); that "concurrently and contemporane-
ously" with the negotiations in the North , employers and
locals in other areas (including South Atlantic ports)
conduct negotiations concerning matters .more local in
character" (seniority , pay days, gang size , etc.); that after
agreement is reached on "major matters " between New
York Shipping Association and Northern locals the parties
in other areas "would invariably incorporate those agree-
ments in the Regional [in this case , South Atlantic] port
agreements"; that this would be done "routinely"; and
"that thereafter the parties would confine themselves to
only resolve local issues." 4 The record establishes that each
employer in the South Atlantic area signs a separate
collective agreement with the local in whose jurisdiction it
operates-one for longshoremen and another for clerks
and checkers . General Counsel witness Barker , a member
of the South Atlantic employer bargaining committee,
indicated that as far as he knew never before had the South
Atlantic region consummated a collective agreement with
Respondents before the major issues , such as wages, were
settled in the North Atlantic region.5
2. The current (August-September 1971)
negotiations
The latest collective agreement between Respondents
and Charging Parties (the 3-year South Atlantic contract),
as well as the Northern Atlantic contract covering New
York Shipping Association , expired on September 30,
1971. After serving notices on the Employers in regard to
the expiration date , the parties met to negotiate a new
agreement . On or about August 9 the Union submitted its
initial proposals, indicating the changes desired as to
"local" matters covered in the prior (1968) agreement. The
parties met on August 9 and 10 , each represented by a five-
man committee , with Perry Harvey (the Tampa , Florida
Local president) acting as chairman of the union commit-
tee and C . W. Pidgeon (a Savannah employer ) as chairman
of the Employer committee . Union representative Leonard
(Wilmington Local 1426 president ) spoke for the Wilming-
ton and Morehead City longshoremen , and one of the
Company representatives , Barker , for the employers at
those two ports. Some bargaining sessions were attended
by an ILA International representative, including Burke or
Thomas Gleason , Jr. (the latter an attorney and son of ILA
International President Gleason who participated in the
Northern negotiations).
According to Company Negotiator Barker , at the outset
of the negotiations Respondents (through Harvey) took the
position that the "national issues . .. were [to be ] put
4 The stipulation was preceded by company testimony to the effect that
"Traditionally, we accept those [major ] points as part of our contract and
then we continue [bargaining ] with our local issues" At the same time, it
was stressed that management does not formally recognize the major issues
as "national issues" (although the Unions do) It was also indicated that
resolution of major issues by North Atlantic negotiators was not necessarily
"binding" on South Atlantic negotiators
5 It was stipulated that the nature of the unit (i e , a multi-or
1079
aside" for later discussions since "they had to be settled as
they had in the past in New York." The Employer
committee did not submit counterproposals until Septem-
ber 21 (the third bargaining session), some 6 weeks after
the Unions had submitted theirs. Pidgeon, the employer
committee chairman, testified that the parties nevertheless
"discussed quite a lot" of the union proposals. One such
proposal-resisted by the Employers-involved the Un-
ions' demand for a guaranteed annual income which the
North Atlantic (but not the South Atlantic) locals had
succeeded in incorporating in the prior 1968-71 agree-
ment.6 As a member of the South Atlantic negotiating
committee, Barker testified that he was fully aware
"through the media, telephone calls, contacts with our
principals in New York" that this same (guaranteed annual
income) issue was the major "hang-up" in concluding the
contemporaneous 1971 negotiations in New York. Accord-
ing to Barker, when he asked the New York employer
committee chairman (Talbott) "what they were going to do
about" this issue, Talbott said that "they were going to try
to get rid" of this 1968 contract clause "because it was too
expensive."
Employer Committee Chairman Pidgeon testified that
the parties adjourned their September 21 (third) bargaining
session without scheduling another, although the then
current contract was to expire only a week later. According
to Pidgeon, two of the five union committeemen (Williams,
president of the Jacksonville and White of the Savannah
local) had told him that there "was not going to be any
strike," because "there was a [Presidentally proclaimed]
wage freeze on." Also, according to Pidgeon, International
President Gleason was quoted in the newspapers that there
would be no' strike. However, Pidgeon and Employer
Committee Negotiator Barker also testified that the Union
had made no response to Pidgeon's formal telegraphic
request to Union Committee Chairman Harvey and to
Pidgeon's request at the last bargaining session "to
consider working right through [beyond the September 30
contract expiration date regardless of what happened in
other ports such as New York and New Orleans. Both
company spokesmen stressed that the parties had not
reached an "impasse" in the negotiations at their final
(September 21) bargaining session; according to Barker,
even the Unions' request for a guaranteed annual income
clause (which the Employers vigorously resisted) was still
on the bargaining table.
3. The strike
The uncontradicted evidence establishes that traditional-
ly ILA locals have adhered to a "no contract , no work"
rule; i .e., Respondents have never worked without a
contract except under judicial restraint as in the case of a
10(1) Taft-Hartley injunction . While admitting that "there
has been a strike" in the past in "every instance "where the
nonmulti-employer unit) was irrelevant to determination of the issues in
this case, although it was also indicated that the negotiations by groups
(employers and locals) was largely a matter of convenience
6 Under the clause involved, longshoremen were granted payment for
2,080 hours of work a year , whether or not they worked that many hours
Company Negotiators Barker testified that, although involving wages, this
clause was not regarded as a "national issue "
1080 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
parties had failed to conclude a contract "up to the time of
the deadline," Employer Representative Pidgeon neverthe-
less testified that this time he expected none because two of
the five union committeemen (Williams and White) had
said there would be none on account of the wage-price
freeze; he admitted that neither Leonard (representative of
Wilmington and Morehead locals-respondents in this
case) nor Harvey (chairman of the five-man union
committee) said so; and that he (Pidgeon) did not "really
know" if Williams and White spoke for the union
committee. Pidgeon also quoted Harvey as telling him on
the telephone at 7:30 a.m. on October 1 that "the South
Atlantic ports have gone on strike effective midnight,
September 30, because the negotiations in New York
between the New York Shipping Association and the ILA
had failed around 3 a.m."; there is no evidence, however,
that Harvey (the Tampa, Flordia, representative and
chairman of the union bargaining committee) was author-
ized to speak or spoke for the other locals (more
particularly Respondent locals) as to the object of the
strike. On the contrary, Leonard, the president of the
Wilmington longshoremen and representative on the union
bargaining committee for the Wilmington and Morehead
locals here involved, as well as Guthrie (president of the
Morehead City locals and an alternate on the union
negotiation committee), denied that Respondents' mem-
bers struck in support of the New York port, insisting that
the strike was called "for the benefit" of the South Atlantic
ports in accordance with the Unions' traditional "no
contract, no work" policy. Moreover, the record shows that
on October 1, when Leonard informed Dyer, manager of
Almont Shipping Company (one of the Charging Parties),
of the strike, he made no reference whatever to the
bargaining breakdown or work stoppage at New York or
Northern ports.
On October 11 (during the strike), Dyer asked Local
1426 President Leonard about "the possibility of obtaining
longshoremen to complete the discharge" of a vessel (the
"Grecian Temple") then in Wilmington. When Leonard
refused to supply the men, Dyer "suggested that possibly,
could we complete the discharge of this vessel using our
own supervisory personnel" and pay into the union fund
"the ordinary pension and welfare benefits." Leonard said
"no," stating that if the Company "intended to discharge
that vessel anyway, he would have to put up a picket
line." 7 The ship remained unloaded for several weeks, until
the Local issued a "back-to-work" order pursuant to a
Federal court injunctions Actually, none of Respondent
locals picketed any of the Charging Parties.
On October 12 (also during the strike), Ruffin, president
of Wilmington Shipping Company (one of the Charging
Parties) telephoned Local 1426 President Leonard and
asked him "if there was any way that [he] could obtain
labor to discharge" a cargo of fertilizer which arrived on
the vessel St. Helene "within a day or so after the strike
was called [October I]," explaining at the hearing that
although the cargo was "not perishable" it could deterio-
rate "if allowed to remain in the ship for an indefinite
period of time." Ruffin testified that he reminded Leonard
that when faced with a similar situation , involving the same
type of cargo during the 1968 strike, Leonard had asked
him to take the matter up with International President
Gleason in New York; that on asking Gleason for "special
permission" to discharge the cargo in 1968 , Gleason had
informed him that permission would be granted and
Leonard would be notified to supply the necessary labor;
and he would now like to obtain Leonard's "permission" to
"call Mr. Gleason and explain the circumstances to him
and ask if an exception could be made" this time also.
Leonard consented to Ruffin's approaching Gleason,
agreeing that "this would have to be handled" by Gleason
and stating that he (Leonard) "will not do anything" until
he heard from him. Later the same day when Ruffin
telephoned Gleason, the latter said, "we will help you if we
can," but suggested that Ruffin contact Bowers, chairman
of the New York "strike committee." The next morning
(October 13), Ruffin telegraphed Bowers , explaining the
problem and requesting his "cooperation" in unloading the
cargo. Receiving no response, the following day (October
14), he telephoned Bowers, who told him the "strike
committee was made up of rank-and-file members of our
[New York] union who were not interested in [Ruffin's]
problem," and all "would depend . . . on how strong a
position Mr. Gleason took in regard to the matter." The
next week (October 21) when in New York "on other
business," Ruffin again telephoned Bowers , complaining
that he had not yet heard from him. Bowers said that
"Gleason had not made a representation" of any kind and
"nothing had been done about the matter." Several days
later, the vessel left the Wilmington harbor and the cargo
was discharged elsewhere.
4. Continued bargaining
The parties resumed negotiations on November 1, still
during the strike. With the wage freeze still in effect, Union
Bargaining Committee Chairman Harvey stated that he
could now negotiate "on all of the points within our
contract, including wages." The Employer committee
again proposed that the longshoremen "continue working
in the South Atlantic . . . regardless of what transpired" in
other ports such as New York or New Orleans, and the
Union again gave "no response" to this suggestion. At the
November 4 bargaining session , one of the union commit-
teemen (Williams, representing Jacksonville) happened to
mention to one of the employer negotiators (Barker) that
he had unloaded two ships carrying automobiles during the
strike and was endeavoring to load a third. When Barker
"complimented" him on this, Union Committee Chairman
Harvey told Williams, "Even though it may be unfortu-
nate, the policy is `one port down, all ports down.' "
At the last (December 15) bargaining meeting held
before the hearing herein, the Union submitted new
proposals, including proposals on wages. However, no
meetings have been held since then, Company Respresen-
r Dyer admitted that he required no "union permission" to use his States District Court (E D N C ), was continued after the November 19
supervisors who were not union members, and that he made this request hearing thereon, pending decision by the Board of the issues raised in this
"voluntarily " proceeding
8 The temporary restraining order, issued on November 14 by the United
LOCAL 1426, LONGSHOREMEN 1081
tatives Pidgeon and Barker attributing this to the upcom-
ing holidays (Thanksgiving and Christmas). In the mean-
time the North Atlantic ports (including New York
Shipping Association) reached a "Memorandum Agree-
ment," subject to ratification by members of the affected
locals .9 Although the parties in this case have not met since
that agreement was executed, management on January 12
(the date of this hearing) began to "initiate[d ] contacts"
with other employer committeemen in order to schedule
further negotiation with the Union.
B. Analysis and Conclusions
As the Supreme Court recently stated in N.L.R.B. v.
Local 825, International Union of Operating Engineers
[Burns and Roe, Inc. ], 400 U.S. 297, 302-303, "Congres-
sional concern over the involvement of third parties in
labor disputes not their own prompted Section 8(b)(4)(B).
This concern was focused on `secondary boycotts,' which
was conceived of as pressure brought to bear not `upon the
employer who is a party [to a dispute ], but upon some
third party who has no concern in it' with the objective of
forcing the third party to bring pressure on the employer to
agree to the union's demands. [Footnotes omitted. ]"
"Congress did not seek by Section 8(b)(4), to interfere with
the ordinary strike ........ Labor Boardv. International Rice
Milling Co., 341 U.S. 665, 672." Local 761, International
Union of Electrical Workers [General Electric Co. ] v.
N.L.R.B. 366 U.S. 667, 672. Indeed, in its 1959 amend-
ments to the Act, Congress included a proviso specifically
stating that "nothing contained in this clause (B) shall be
construed to make unlawful, where not otherwise unlawful,
any primary strike or primary picketing." The basic issue
here is whether Respondents were only pursuing their
primary objective in obtaining a collective agreement after
their prior 1968-71 agreement with Charging Parties
expired.
As found, after serving notice of the September 30, 1971,
termination of their collective agreements, Respondents
and other Locals comprising the South Atlantic District of
ILA met to negotiate a new agreement with the South
Atlantic shipping companies, of which Charging Parties
are members. After several bargaining sessions in August
and September, the five-man union and five-man employer
committees failed to reach agreement. In accordance with
custom, the parties concentrated on "local" issues (seniori-
ty, gang size, paydays, etc.), since major issues or issues of
"national scope" (basic wages, fringe benefits, contract
duration, etc.), were first negotiated and agreed upon in
contemporaneous bargaining between the North Atlantic
employers (including New York Shipping Association) and
Northern locals. As stipulated at the hearing, agreement on
the major issues "would invariably" be incorporated in the
regional (South Atlantic) port agreements, although the
Northern agreement was not necessarily "binding." Una-
ble to reach agreement by the September 30 "deadline,",
9 As of the date of this hearing, it remained unratified
iU Sec .' 2(9) of the Act defines broadly the term "labor dispute" to
"include[s] any controversy concerning terms, tenure or conditions of
employment, or concerning the association or representation of persons in
negotiating, fixing, maintaining, changing, or seeking to arrange terms or
conditions of employment . "
ii As stated in N LR B v Erie Resistor Corp, 373 U S 221, 233-234,
235, "This repeated [Congressional] solicitude for the right to strike is
the South Atlantic locals (including Respondents) struck
the South Atlantic employers (including Charging Parties)
on October 1, in accordance with the Unions' traditional
"no contract, no work" policy. The North Atlantic locals,
likewise deadlocked in their negotiations, similarily struck
the North Atlantic employers, including New York
Shipping Association.
It is clear , contrary to General Counsel's claim,that a
bona fide labor dispute existed between Respondents and
Charging Parties on October 1 and that it was that dispute
that triggered the strike here involved. I so find.10
Moreover, contrary to General Counsel' s contention (br.,p.
8), the fact that the South Atlantic unions and employers
"had never reached an impasse on any subject" prior to the
strike does not mean that they "had nothing to strike
over." The unions had every right to use the strike as an
economic weapon to strengthen their bargaining objec-
tives.ii Furthermore, unlike General Counsel, I find
nothing significant in the circumstance that the parties
,continued to bargain during the strike since it is well
settled that existence of a strike does not relieve a party
from its obligation to negotiate. "On the contrary, the need
!for carrying out [the bargaining] obligation when a strike is
in progress is all the greater in order that a peaceful
settlement of the dispute may be reached." N.L.R.B. v.
Pecheur Lozenge Co., 209 F.2d 393, 403 (C.A. 2). The
record establishes that the focus of Respondents' interest
and pressure was on Charging Parties, the primary or
disputing employers. There is in this case a complete
absence of evidence of appeals, let alone threats and
coercive action, against secondary employers to bring
pressure on the primary employers to settle the Unions'
dispute with the primary employers-the secondary activi-
ty barred by Section 8(b)(4)(i) and (ii)(B) of the Act. See
Burns and Roe Inc., supra, 400 U.S. at 302-303; General
Electric Co., supra, 366 U.S. at 672-673.12 A union is free to
induce work stoppages among the employees of a primary
employer, irrespective of the adverse impact of such
inducement on the primary employer or even on secondary
or neutral employers. As the Supreme Court has stated in
National Woodwork Manufacturers Association v. N. L. R. B.,
386 U.S. 612, 627:
This Court [has] refused to read Section 8(b)(4)(A) to
ban traditional primary strikes and picketing having an
impact on neutral employers even though the activity
fell within its sweeping terms . [Citations.] Thus,
however severe the impact of primary activity on
neutral employers, it was not thereby transformed into
activity with a secondary objective.
Accordingly, contrary to General Counsel, the fact that
Respondents refused to extend the terms of the 1968
agreement beyond the September 30, 1971, expiration date
and that they rejected the request of primary employers to
unload cargoes during the strike (including Almont
predicated upon the conclusion that a strike when legitimately employed is
an economic weapon which in great measure implements and supports
principles of the collective- bargaining system."
12 See also Local Union No 227, Amalgamated Meat Cutters and Butcher
Workmen of North America, AFL-CIO (Iowa Beef Packers, Inc), 185 NLRB
No 12; International Brotherhood of Electrical Workers Local 134, etc
(Illinois Bell Telephone Company), 179 NLRB 202, 204-205, enfd. 433 F 2d
302 (C.A 7)
1082 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Manager Dyer 's October 11 request to unload "Grecian
Temple") is of no consequence . And when Local 1426
President Leonard "threatened" to picket one such ship if
it was unloaded , he did nothing more than threaten to
advertise the primary dispute . "Ordinarily , what you may
do without liability you may threaten to do without
liability." Justice Holmes in Silsbee v. Webber, 171 Mass.
378, 380, 50 N.E . 555, 556 . See also Illinois Bell Telephone
Company, 179 NLRB 681 , 684, enfd . 446 F .2d 815 (C.A. 7).
Although Respondents ' conduct does not present the
typical secondary boycott situation-i.e., appeals and
threats against secondary or neutral employers in order to
bring pressure on primary employers to settle a primary
dispute-General Counsel claims that the pressures exert-
ed by Respondents against the primary employers here
nevertheless were secondary and unlawful , since (accord-
ing to General Counsel ) the objective of Respondents'
work stoppage was to bring pressure on Charging Parties
(the primary employers ) in order that they, in turn, would
bring pressure on the North Atlantic employers (particular-
ly New York Shipping Association ) to yield in their dispute
with the North Atlantic locals. In addition to the incidents
already mentioned (which for reasons stated in no way
support his position), General Counsel relies primarily on:
(a) Union Committee Chairman Harvey's statement to
Employer Committee Chairman Pidgeon just prior to the
October 1 walkout that the South Atlantic ports were going
to strike "because the negotiations in New York between
the New York Shipping Association with ILA had failed";
(b) Local 1426 President Leonard 's October 12 statement
to Wilmington Shipping President Ruffin that Ruffin must
obtain permission from International President Gleason to
unload the fertilizer on the St . Helene and that he
(Leonard) "will not do anything" until he heard from
Gleason ; (c) that when Company Bargaining Representa-
tive Barker "complimented" one of the union negotiators
(Williams, representing Jacksonville ) regarding his Union's
unloading two ships during the strike , Union Committee
Chairman Harvey remarked that union policy was "one
port down , all ports down"; and (d) that an International
representative from New York had sat in on some South
Atlantic bargaining sessions.
To be sure , the conduct relied on could tend to support
the objective claimed by General Counsel (assuming such
objective is secondary and unlawful) if that conduct were
considered in isolation . However, as in all cases of this
type, the question whether the conduct is proscribed
secondary activity "cannot be made without an inquiry
into . . . all the surrounding circumstances " (National
Woodwork Manufacturers, supra, 386 U.S. at
645)-including the evidence already summarized, demon-
strating the existence of a bona fide primary dispute
concerning the consummation of a new agreement to
replace the expired 1968 agreement . In any event , I find no
significance whatever in the fact that an International
Representative had participated in the negotiations-a not
uncommon practice in bargaining at a local level; certainly
the parent International had an understandable interest in
the successful outcome of these negotiations . Nor do I view
as controlling Leonard 's' request that Ruffin obtain
"special permission" from International President Gleason
to unload a ship's cargo during the strike-a request which,
incidentially, originated with Ruffin who approached
Leonard with a request that Leonard sanction his (Ruf-
fin's) securing necessary clearance from Gleason. More
troublesome in evaluating the Unions ' strike objective is
Harvey's prestrike remark to Pidgeon that the strike would
begin because the negotiations in New York faltered and
Harvey 's November 4 remark to one of f the_ union
negotiators about a "one port down , all ports down"
Union policy . However , balancing all the factors in this
case , I do not find Harvey's statements determinative of
the issue posed . To begin with , there is no evidence that
Harvey , as chairman of the union bargaining committee
(and representative of the Tampa local), was authorized to
speak for Respondents (Wilmington and Morehead City
locals) on matters other than collective bargaining-i.e., on
the question of objective , nature , and effect of the strike. I
credit the testimony of Leonard and Guthrie (Presidents of
Respondent locals)--both of whom impressed me as
forthright and candid witnesses-that the strike at the two
ports involved was called only "for the benefit" of the
South Atlantic ports in accordance with the Unions'
traditional "no contract , no work" policy. (Cf. Riverton
Coal Company etc. v. U. M. W., 79 LRRM 2372, 2375 (C.A.
6).)
Furthermore , in evaluating General Counsel 's conten-
tions, I cannot ignore the fact that a community of interest
has existed between South Atlantic and North Atlantic
ports-as regards both employers and unions. As we have
seen (supra, sec. A, 1), five major contractual issues
(including wages and fringe benefits ) negotiated in the
North Atlantic region have been traditionally and routine-
ly incorporated into South Atlantic agreements. The South
Atlantic negotiators had a natural interest, if not substan-
tial stake, in the outcome of the North Atlantic negotia-
tions. That both sides kept themselves informed of the
positions of Northern employers and locals is a reasonable
assumption. Indeed , Company negotiator Barker admitted
that while the Northern negotiations were in progress he
was "in contact with our principals in New York" by
telephone and other means and that at least on one
occasion sought to ascertain the New York employers'
position on wages . And Pidgeon , the employer committee
chairman, testified that in formulating his belief that South
Atlantic locals would not strike on October 1, he relied, in
part , on a report that International President Gleason did
not contemplate a strike at that time. Additionally, the
record indicates that it was not until the negotiations in
New York culminated in a written memorandum (subject
to ratification by the unions ' members) that the South
Atlantic employer committee attempted to revive the
bargaining with South Atlantic locals (in January 1972). It
may equally be assumed that the South Atlantic locals
(including Respondents) had kept abreast of the New York
negotiations , that they had sought their International's
advice and counsel in dealings with South -Atlantic
employers, and that, whenever feasible, they cooperated
with the International in facilitating agreement between
Northern locals and employers. But this is a far cry from
demonstrating that an objective of the South Atlantic
unions' strike was to bring pressure on the South Atlantic
LOCAL 1426 , LONGSHOREMEN 1083
(primary) employers in order that they, in turn, would
bring pressure on Northern employers to yield to the
Northern unions' bargaining demands. In any event, if, as
General Counsel intimates, this case presents one of
alliance between South Atlantic locals, it indicates an
alliance (or at least common concern and interest) between
South and North Atlantic employers as well. Cf. Detroit
Newspaper Pubhshers Association v. N.L.R.B., 372 F.2d 569,
572 (C.A. 6).
For all the reasons stated and on the basis of the entire
record, I find and conclude that General Counsel has
failed to meet his burden of establishing by a preponder-
ance of the credible evidence that Respondent locals have
engaged in a secondary boycott in violation of Section
8(b)(4)(i) and (ii)(B) of the Act. I find that Respondents'
strike and conduct was lawful, designed to resolve their
13 In the event that no exceptions are filed as provided by Sec 102 46 of
the Rules and Regualtions of the National Labor Relations Board, the
findings , conclusions, and recommended Order herein shall, as provided in
own pnmary dispute with Charging Parties. As such, the
Unions' conduct amounted to nothing more than the
exercise by employees of their Section 7 right "to engage in
.. . concerted activities for the purpose of collective
bargaining or other mutual aid or protection... .
CONCLUSIONS OF LAW
Respondent Locals have not violated Section 8 (b)(4)(i)
and (ii)(B) of the Act, as alleged in the complaint.
RECOMMENDED ORDERi3
Upon the basis of the foregoing findings and conclusions
and upon the entire record in the case, it is ordered that the
complaint be and hereby is dismissed in its entirety.
Sec 10248 of the Rules and Regulations , be adopted by the Board and
become its findings, conclusions , and Order, and all objections thereto shall
be deemed waived for all purposes