Longshoremen ILWU Local 62-B (Alaska Timber)

National Labor Relations Board - Board Decisions

Aug 30, 1984

271 N.L.R.B. 1291 (N.L.R.B. 1984)

LONGSHOREMEN ILWU LOCAL 62-8B (ALASKA TIMBER)
International Longshoremen's and Warehousemen's
Union Local 62-B and Alaska Timber Corpora-
tion. Cases 19-CC-1319 and 19-CD-385
30 August 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND HUNTER
On 23 September 1983 Administrative Law
Judge Richard J. Boyce issued the attached deci-
sion. The Respondent filed exceptions and a sup-
porting brief, the Charging Party filed cross-excep-
tions and a brief in support thereof, and the Re-
spondent filed a brief in opposition to the Charging
Party's cross-exceptions.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, and
conclusions2 only to the extent consistent with this
Decision and Order.
The judge found that Longshoremen ILWU
Local 62-B (the Respondent or the Union) violated
Section 8(b)(4)(i) and (ii)(D) of the Act by picket-
ing the Charging Party, Alaska Timber Corpora-
tion (ATC). On this issue we agree with his find-
ings, analysis,3 and conclusion, and adopt those
portions of his decision.
I The Respondent excepts to the judge's finding that its official
Browne testified in the 10(k) proceeding that he remembered talking to
the Charging Party's president, Head, about bringing crews to Klawock
from other parts of Alaska We dismiss this exception in light of the Re-
spondent's stipulated waiver herein of the right to file exceptions to the
judge's findings of fact. In any event, we also affirm the judge's finding
as clearly supported by the record. The Respondent also excepts to the
judge's conclusion that Head's testimony was "of a believability" satisfy-
ing the burden of proof herein. Again, in light of the Respondent's stipu-
lated waiver we dismiss this exception insofar as it challenges the judge's
finding of fact as to Head's credibility Even absent the waiver we find
no basis for reversing the finding of fact. Standard Dry Wall Products, 91
NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). This second excep-
tion may also be construed as challenging the judge's conclusion of law
that Head's testimony satisfies the General Counsel's evidentiary burden
as to the alleged 8(b)4)(i) and (ii)(D) violation. We have considered the
exception construed in this manner in light of the briefs and record and
we affirm the judge's conclusion
2 The Respondent excepts to the judge's failure to consider its work
preservation defense to the 8(b)X4i) and (ii)(D) violation found herein. It
is well settled that issues raised and fully litigated in a 10(k) proceeding
cannot, absent new and previously unavailable evidence, be relitigated in
the subsequent 8(b)(4)(D) proceeding. Iron Workers Local 433 (Plaza
Glass), 218 NLRB 848, 849 (1975), enfd. 549 F.2d 634 (9th Cir 1977).
The Respondent has made no showing herein of any new and previously
unavailable evidence. It is clear from the underlying 10(k) determination,
Longshoremen ILWU Local 62-B (Alaska Timber), 261 NLRB 1076
(1982), that the work preservation defense was vigorously litigated there-
in. Accordingly, we find that the Respondent is precluded from relitigat-
ing its work preservation defense in the instant proceeding and we dis-
miss the exception.
3 The judge's findings, analysis, and conclusion are sufficient to estab-
lish a violation of Sec. 8(b)(4)(D) In our view, however, the record con-
271 NLRB No. 181
The judge also found, relying on Oil Workers
(Anchortank, Inc.), 238 NLRB 290 (1978), enfd. 601
F.2d 233 (5th Cir. 1979), that the Respondent's
picketing did not violate Section 8(b)(4)(B) of the
Act, and dismissed that portion of the complaint.
The Charging Party has excepted to the judge's
conclusion that Anchortank, above, is not signifi-
cantly distinguishable from the present case. We
agree with the Charging Party and hold that the
Respondent's picketing violated Section 8(b)(4)(B)
of the Act.
The employer in Anchortank operated a chemical
storage facility on the Gulf of Mexico. Abutting
the facility was a public dock used by the employ-
er to load chemical cargo for oceangoing vessels.
The respondent union in Anchortank had participat-
ed in a representation campaign at the employer's
storage facility and was awaiting 4 Board certifica-
tion of the election results. Prior to the issuance of
any certification, the union struck the facility alleg-
ing unfair labor practices. The union placed pickets
on land around the dock and the storage facility.
The union also picketed the dock from the water in
a small boat. The General Counsel alleged that by
these pickets the union sought to enmesh neutral
parties5 servicing the employer in the union's pri-
mary unfair labor practice dispute with the em-
ployer. The Board held, relying on Electrical Work-
ers IUE Local 761 (General Electric) v. NLRB, 366
U.S. 667 (1961), and Steelworkers (Carrier Corp.) v.
NLRB, 376 U.S. 492 (1964), that the union was en-
titled to enmesh the vessels and pilots in connec-
tion with its primary picketing of the employer.
The facts herein are set out more fully in the un-
derlying 10(k) determinations and in the attached
judge's decision. ATC processes and sells heavy
timber to its customers. The timber is picked up at
ATC's private dock by boats owned or chartered
by the customers. Before January 1981 ATC sold
the lumber on an F.A.S. basis. 7 Under that ar-
tains an additional basis for finding that the Respondent violated Sec.
8(b)(4)(D). The parties stipulated and wse find that on 2 June 1982 the
compliance officer for Region 19 requested notification from the Re-
spondent of compliance with the Board's underlying 10(k) determination
The parties further stipulated and, in agreement with the judge, we find
that the Respondent did not respond to this request. The Board has held
with court approval that failing and refusing to notify the Regional Di-
rector of intent to comply with a 10(k) determination, standing alone,
violates Sec. 8(b)4XD) of the Act. Plumbers Local 195 (Texas Oil), 231
NLRB 525 (1977), enfd. 574 F.2d 1215 (5th Cir. 1978); Operating Engi-
neers Local 571 (J.E.D. Construction), 241 NLRB 1066 (1979), enfd. 624
F.2d 846 (8th Cir. 1980). Accordingly, se find that the Respondent's fail-
ure to reply to the Region's compliance request herein constitutes an ad-
ditional and independent ground for the judge's conclusion that the Re-
spondent violated the Act.
4 Objections to preelection conduct were pending before the Board
E.g., shipowners, shipping agents, and pilots.
6 Longshoremen IL WU Local 62-B R (laska Timber), above.
' Under an F.A.S. (free alongside) arrangement ATC is responsible for
delivering the timber to the dock The customer is then responsible for
Continued
1291
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
rangement ATC's customers usually engaged
Southeast Stevedoring Company (SES) to handle
loading the lumber from the dock into the ships. In
turn, SES engaged longshoremen represented by
the Respondent to actually load the lumber into
the ships' holds.
In January 1981 ATC changed its sales proce-
dures and began offering its lumber on an F.O.B.
basis.8 ATC chose to fulfill its delivery obligation
under the F.O.B. basis by using its own production
employees to load the lumber into the ships. Ac-
cordingly, the first customer to negotiate a lumber
purchase in 1981, Yuasa Trading Corp., did not
engage SES to handle the loading. When the Re-
spondent discovered that ATC's unrepresented em-
ployees and not its longshoremen members would
be loading the customer's lumber, the Respondent
commenced the picketing that later became the
basis for the unfair labor practice complaint. This
picketing took place at two land entrances to
ATC's facility and around the boat chartered by
Yuasa Trading Corp.
When considering an 8(b)(4)(B) allegation, the
Board is mindful of "the dual congressional objec-
tives of preserving the right of labor organizations
to bring pressure to bear on offending employers in
primary labor disputes and of shielding unoffending
employers and others from pressures in controver-
sies not their own." NLRB v. Denver Building
Trades Council, 341 U.S. 675, 692 (1951). The issue
in 8(b)(4)(B) cases is whether the union's conduct
was primary or secondary activity. It is well settled
that "this issue turns on whether the boycott was
'addressed to the labor relations of the contracting
employer vis-a-vis his own employees,' National
Woodwork [386 U.S. 612 at 645 (1967)], and is
therefore primary conduct, or whether the boycott
was 'tactically calculated to satisfy union objectives
elsewhere' [id. at 644], in which event the boycott
would be prohibited secondary activity." NLRB v.
Pipefitters Local 638 (Enterprise Assn.), 429 U.S.
507, 511 (1977).
It is also well settled that a union engaged in pri-
mary activity against an employer is entitled to
picket "a gate reserved for employees of neutral
delivery men furnishing day-to-day service essen-
tial to the [employer's] regular operations," Steel-
workers (Carrier Corp.) v. NL-RB, above at 499,
without violating Section 8(b)(4)(B). Relying on
this rule, as applied in Oil Workers (Anchortank,
Inc.), above, the judge herein found that the Re-
actually loading the timber into the boat. See 16 Words & Phrases 446
(perm. ed. 1959).
a Under an F.O.B. (free on board) arrangement ATC is obligated to
deliver the timber into the boats' holds. See 17 Words & Phrases 288
(perm. ed. 1958).
spondent was entitled to enmesh Yuasa Trading
Corp. in its dispute with ATC and accordingly dis-
missed that portion of the complaint. In dismissing
the 8(b)(4)(B) allegation in reliance on Anchortank,
above, the judge necessarily and implicitly found
that the Respondent's picketing, like the Anchor-
tank picketing, was primary activity. Absent such a
preliminary finding the Respondent would not be
entitled to ensnarl Yuasa Trading Corp. in its pick-
eting action. In our view Carrier Corp., above, only
protects primary activity.
We hold that, on these facts, the judge erred in
finding that the Respondent's picketing against
ATC was primary activity. After considering the
totality of the circumstances and the legislative
intent behind Section 8(b)(4)(B), we find that the
Respondent's picketing from 11 January to 22 Jan-
uary 1981 cannot be viewed as primary activity di-
rected at ATC.
It is undisputed that the Respondent was certi-
fied by the Board to represent SES's longshore-
men. The Respondent was not, however, recog-
nized by the Board to represent any of ATC's em-
ployees. Furthermore, the Respondent does not
contend that its picketing against ATC was intend-
ed to further any recognitional objective. Nor does
the Respondent contend that SES is an ally of
ATC or that SES has any contractual relationship
with ATC. Indeed, SES loaded the ships at the
behest of ATC's customers. Lacking any sort9 of
representational, contractual, or other relationship
with ATC's employees, we find that the Respond-
ent's picketing was not addressed to ATC's labor
relations vis-a-vis its own employees.
As noted above, we have found that the Re-
spondent's picketing violated Section 8(b)(4)(D).
That picketing, unlike1 0 the actions in Carrier
Corp. and Anchortank was intended to further an il-
legal jurisdictional purpose. The record further re-
veals that the Respondent's official Browne offered
to bring union members from other parts of Alaska
to load ATC's timber. In light of the work assign-
ment" objective and the desire to secure employ-
9 The parties stipulated that the Respondent's picket signs read "Picket
Informational/ATC Unfair Substandard/ILWU 62-B." The Respondent
does not contend, however, that it engaged in publicity picketing, unfair
labor practice picketing, or area wage standards picketing. Although the
Respondent does contend that it engaged in work preservation picketing,
we have dismissed that defense. See fn. 2.
'0 The union in Carrier Corp. picketed pursuant to an economic strike.
Although the facts are not completely clear, the picketing in Anchorrank
appeared to be related to recognitional goals or to an unfair labor prac-
tice strike.
"I We emphasize that we are not holding that all jurisdictional strikes
necessarily constitute secondary activity. We hold only that the Respond-
ent's utter lack of any legal or contractual relationship with ATC, cou-
pled with the Respondent's objectives elsewhere, compel a finding that
the picketing herein was not primary conduct.
1292
LONGSHOREMEN ILWU LOCAL 62-B (ALASKA TIMBER)
ment for union members located elsewhere, we
find that the Respondent's action was tactically cal-
culated to satisfy union objectives elsewhere.
In our view the Act does not permit a union to
assume that any picketing against any employer
will be found to constitute protected primary
action under the proviso to Section 8(b)(4)(B). As
an abstract proposition we cannot delineate the
precise contours of primary action. At best, we
apply the Enterprise Assn. standard on a case-by-
case basis. On these facts we conclude that the Re-
spondent's action was not addressed to the labor
relations of ATC vis-a-vis its own employees but
rather that the Respondent's picketing was calcu-
lated to satisfy union objectives elsewhere. NLRB
v. Pipefitters Local 638 (Enterprise Assn.), above.
Accordingly, we hold that the Respondent's pick-
eting against ATC was not primary activity within
the meaning of the Act. Therefore, the Respondent
cannot employ the doctrine of Carrier Corp.,
above, to shield the picketing's secondary effects as
to Yuasa Trading Corp. In conclusion, we find
that, by coercing ATC to cease doing business
with Yuasa Trading Corp., the Respondent's pick-
eting against ATC violated Section 8(b)(4)(B) of
the Act.
CONCLUSIONS OF LAW
1. Alaska Timber Corporation is an employer en-
gaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. Yuasa Trading Corp. is a person engaged in
commerce within the meaning of Section 2(1) and
Section 8(b)(4)(i) and (ii)(B) of the Act.
3. The Respondent, International Longshore-
men's and Warehousemen's Union Local 62-B, is a
labor organization within the meaning of Section
2(5) of the Act.
4. By picketing the facility and dock of Alaska
Timber Corporation with an object of forcing
Alaska Timber Corporation to assign work to the
Respondent's members, the Respondent has en-
gaged in an unfair labor practice within the mean-
ing of Section 8(b)(4)(i) and (ii)(D) of the Act.
5. By picketing the facility and dock of Alaska
Timber Corporation with an object of forcing
Alaska Timber Corporation to cease doing business
with Yuasa Trading Corp., the Respondent has en-
gaged in an unfair labor practice within the mean-
ing of Section 8(b)(4)(i) and (ii)(B) of the Act.
6. The aforesaid unfair labor practices affect
commerce within the meaning of Section 2(6) and
(7) of the Act.
REMEDY
Having found that the Respondent has engaged
in certain unfair labor practices, we shall order it
to cease and desist and to take certain affirmative
action designed to effectuate the policies of the
Act.
ORDER
The National Labor Relations Board orders that
the Respondent, International Longshoremen's and
Warehousemen's Union Local 62-B, its officers,
agents, and representatives, shall
1. Cease and desist from
(a) Refusing to comply with the Board's Deci-
sion and Determination of Dispute and from threat-
ening, coercing, or restraining Alaska Timber Cor-
poration, where an object thereof is to force or re-
quire Alaska Timber Corporation to assign the
work of loading products for shipment at its dock-
ing facility in Klawock, Alaska, to employees rep-
resented by the Respondent rather than to employ-
ees of Alaska Timber Corporation.
(b) Threatening, coercing, or restraining Alaska
Timber Corporation, where an object thereof is to
force or require Alaska Timber Corporation to
cease doing business with Yuasa Trading Corp.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) Post at the Respondent's business offices,
meeting halls, and all other places where notices to
members are customarily posted, copies of the at-
tached notice marked "Appendix." 2 Copies of the
notice, on forms provided by the Regional Direc-
tor for Region 19, after being signed by the Re-
spondent's authorized representative, shall be
posted by the Respondent immediately upon re-
ceipt and maintained for 60 consecutive days in
conspicuous places including all places where no-
tices to members are customarily posted. Reasona-
ble steps shall be taken by the Respondent to
ensure that the notices are not altered, defaced, or
covered by any other material.
(b) Furnish the Regional Director with signed
copies of the notice for posting by Alaska Timber
Corporation and Yuasa Trading Corp., if willing,
in places where notices to employees are customar-
ily posted.
(c) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
12 If this Order is enforced by a Judgment of a United States Court of
Appeals, the words in the notice reading "Posted by Order of the Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board."
1293
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE To EMPLOYEES AND MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT refuse to comply with the Board's
Decision and Determination of Dispute and threat-
en, coerce, or restrain Alaska Timber Corporation,
where an object thereof is to force or require
Alaska Timber Corporation to assign the work of
loading products for shipment at its docking facili-
ty in Klawock, Alaska, to employees represented
by us rather than to employees of Alaska Timber
Corporation.
WE WILL NOT threaten, coerce, or restrain
Alaska Timber Corporation, where an object there-
of is to force or require Alaska Timber Corpora-
tion to cease doing business with Yuasa Trading
Corp.
INTERNATIONAL LONGSHOREMEN'S
AND WAREHOUSEMEN'S UNION
LOCAL 62-B
DECISION
STATEMENT OF THE CASE
RICHARD J. BOYCE, Administrative Law Judge. On
June 18, 1982, the Regional Director for Region 19
issued a consolidated complaint alleging that Internation-
al Longshore Workers Union, Local 62-B (Respondent)
had violated Section 8(b)(4)(i) and (ii)(B) and (D) of the
National Labor Relations Act (the Act) by certain pick-
eting activities in January 1981 during a dispute with
Alaska Timber Corporation (ATC) over the assignment
of ship-loading tasks at ATC's dock in Klawock,
Alaska. '
On December 9, 1982, the General Counsel, Respond-
ent, and ATC submitted a joint motion to accept stipula-
tion and stipulation of facts stating their agreement to
dispense with oral testimony; that the stipulation of facts
and certain incorporated exhibits, including the decision
and determination of dispute, the transcript of testimony,
the exhibits, and the formal papers in the prior proceed-
ing under Section 10(k) of the Act, 2 along with other
I The charges in Cases 19-CD-385 and 19-CC-1319 were filed by
ATC May 29, 1981.
2 The Board's Decision and Determination of Dispute issued May 27,
1982, finding that "reasonable cause exists to believe that Sec. 8(b)(4)(D)
. . . has been violated" by Respondent, and concluding that "the unrep-
resented employees of [ATC] are entitled to perform the work in dis-
pute," rather than employees represented by Respondent. Longshoremen
ILA Local 62-B (Alaska Timber), 261 NLRB 1076 at 1077 and 1079
(1982).
documents, would "constitute the entire record in the
case"; and that they "waive[d] the right to file with the
Board exceptions to the findings of fact made by the Ad-
ministrative Law Judge" in the decision on the merits
based upon that record.
On December 17, 1982, pursuant to Section 102.35(i)
of the Board's Rules and Regulations and Section
101.10(b)(4) of its Statements of Procedure, I issued an
Order Approving Stipulation and Granting Motion.
Each of the parties thereafter submitted a brief.3
I. JURISDICTION
ATC is an Alaska corporation located in Klawock,
where it harvests and processes timber, and sells the re-
sulting lumber. Its annual revenues exceed $500,000, of
which over $50,000 derives from the sale and shipment
of product directly to customers outside Alaska.
ATC is a person within Sections 2(1) and 8(b)(4)(B) of
the Act and an employer within Sections 2(2) and
8(b)(4)(D), engaged in and affecting commerce within
Section 2(6) and (7).
1. LABOR ORGANIZATION
Respondent is a labor organization within Section 2(5)
of the Act.
III. THE AI.LEGED MISCONDUCT
A. Evidence
On January 9, 1981, a ship known as the Eastern Hope,
chartered by an ATC customer, Yuasa Trading Corp.,
arrived at ATC's Klawock dock to obtain a load of
lumber. Loading, performed by ATC mill employees
working from 7 a.m. to 6 p.m., began January 11 and
was completed January 19, after which the ship departed
the dock January 22. The ATC employees are not repre-
sented by any labor organization. They were recalled
from layoff to load the ship, ATC having shut down its
mill the preceding October because of a depressed
market. 4
This was the first time ATC had acted in implementa-
tion of a newly established free-on-board (FOB) arrange-
ment, whereby loading was its responsibility. Under the
previous arrangement, free alongside (FAS), its custom-
ers bore responsibility for loading, generally engaging
South East Stevedoring Co. (SES) whose employees are
represented by Respondent. 5
On January 10, the day before loading began, two offi-
cials of Respondent, Jay Browne and Larry Cotter, vis-
ited ATC's president, Edward Head, at ATC's offices.
Aware that ATC intended to load the Eastern Hope with
its own employees, Browne and Cotter asked Head, per
the stipulation of facts, "if there was anything they could
3 Respondent's motion to strike portions of the Charging Party's brief
is granted. The subject portions of that brief were not considered in the
preparation of this decision.
4 The mill was shut down for about 6 months. It operates the year
around in normal times.
5 On October 9, 1973, Local 62, the parent local of Respondent, was
certified to represent a bargaining unit comprised of SES's longshore em-
ployees "at its Klawock, Alaska, stevedoring operation."
1294
LONGSHOREMEN ILWU LOCAL 62-B (ALASKA TIMBER)
do to convince ATC to load the ship . . . with union
longshoremen"; and Head resisted, explaining that ATC
was using its own employees because a lack of long-
shoremen in the area had prevented the timely loading of
ships in the past.
Head testified in the 10(k) proceeding that, during the
same exchange, the union officials asked if ATC would
consider hiring members of Respondent directly, bypass-
ing SES; that, responding to his comment about past
crew shortages, they "assured" him that Respondent
"could bring crews in from other cities," such as Wran-
gell and Ketchikan, so he "would be able to load [the
ship] without local people"; and that they said there
would be picketing if ATC adhered to its plan. Head as-
sertedly rejected the idea of bringing in longshoremen
from elsewhere on the ground of excessive cost.
Browne, testifying in the same proceeding, initially
averred that, while he could recall promising Head
"enough men to load two ships," he could not remember
saying he "would arrange for longshoremen from other
ports to perform Alaska Timber's work." He later testi-
fied that he "rememberled] talking about" bringing in
crews from other parts of Alaska, only to qualify:
I don't think that we said-we didn't say we'd get
them from Ketchikan or Wrangell. I could be mis-
taken, but I was after the people from right there in
the community, getting them.
Browne conceded in his 10(k) testimony that he or
Cotter raised with Head the possibility of "trouble."
Asked what that was in reference to, he testified: "I
don't know."
Cotter did not testify in the 10(k) proceeding.
At 7 a.m., January 11, picketers appeared at the two
land entrances to the ATC premises, displaying signs
saying: "Picket Informational/ATC Unfair Substand-
ard/l.L.W.U. 62-B." The entrances are about 100 feet
apart. One is perhaps 425 feet from the dock,6 and visi-
ble from it. The other, more remote, cannot be seen from
the dock. Picketing at the two entrances continued daily,
generally from 7 a.m. to 6 p.m., until the January 22 de-
parture of the Eastern Hope.7 In addition, from January
18 until the ship's departure, around-the-clock picketing
was conducted from a small boat situated on the out-
board side of the Eastern Hope. The boat, displaying a
sign identical to that used by the land picketers, patroled
to-and-fro along the ship's 500-foot length during the
day, anchoring in that area at night.
From completion of the loading process until the
ship's departure, the only ATC personnel on the prem-
ises were the normal office staff and a security patrol.
On January 20 and again on January 21, encountering
picketers at one of the land entrances, the pilot assigned
to steer the Eastern Hope out of the harbor refused to
enter the premises and thus was unable to board the ship.
He had been engaged by SES, acting as agent for the
ship. On January 22, ATC having cut the ship adrift, the
pilot entered, despite the picketers, and was taken by
8 Judging from a scale map in evidence.
Picketing at the entrances went on through the night of January 21-
22.
tugboat to the ship whereupon he boarded and did his
duty. The picketers withdrew more or less coincident
with his going aboard. The tugboat, operated by Seakist
Towing, was procured by SES at the instance of the
Eastern Hope.
Respondent did not inquire of ATC before the onset
of picketing how the wage and benefit levels paid its em-
ployees for loading the ship compared with union levels.
In fact, ATC's minimum wage was slightly greater than
the minimum under Respondent's bargaining agreement.
The record is inconclusive concerning relative benefit
levels.
In its Decision and Determination of Dispute, having
concluded that ATC employees are entitled to perform
the work in question, the Board ordered Respondent,
within 10 days from its date, to
. . . notify the Regional Director for Region 19, in
writing, whether or not it will refrain from forcing
or requiring the Employer, by means proscribed by
Section 8(b)(4)(D) of the Act, to assign the disputed
work in a manner inconsistent with the above deter-
mination. 8
Respondent failed to provide such notification.
B. Conclusions
Section 8(b)(4)(D). Respondent having failed to notify
the Regional Director of its intentions with regard to the
work in question as ordered by the Board in its Decision
and Determination of Dispute, it is appropriate that the
alleged violation of Section 8(b)(4)(i) and (ii)(D) be con-
sidered on the merits.9
In finding "reasonable cause" to exist that Respond-
ent's picketing violated Section 8(b)(4)(D), the Board
relied on Head's testimony in the 10(k) proceeding that
the union officials suggested in advance of the picketing
that ATC hire union members directly, bypassing SES,
and that they offered to bring in crews from other cities
to enable loading "without local people." This, the
Board reasoned, satisfied the reasonable-cause standard
that an object of the picketing "was to force or require
the assignment of the disputed work to employees repre-
sented by" Respondent, overcoming Respondent's con-
tention that it had the valid work-preservation objective
of merely compelling ATC to return to its previous
mode of operation. '
It is concluded that Head's testimony, beyond meeting
the reasonable-cause standard applicable to 10(k) matters,
was of a believability satisfying the preponderance-of-
evidence burden that obtains in this proceeding on the
merits." Not only was it rendered cleanly and without
g 261 NLRB at 1079.
E.g., Iron Workers Local 568 (Dickerson Concrete), 204 NLRB 59, 60
(1973).
10 261 NLRB at 1077.
'' Regarding the differing standards of proof as between a 10(k) pro-
ceeding and a trial on the merits, see, e.g., ITT Corp. v. Electrical Workers
Local 134, 419 U.S. 428, 445-446 (1974), and NLRB v. Plasterers Local 79,
404 U.S. 116, 122 fn. 10 (1971).
1295
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
equivocation, as shown by the 10(k) transcript, but that
same transcript contains no denial by Respondent's
Browne that he suggested ATC's hiring around SES,
and it reveals Browne's acknowledgement that, in prom-
ising Head "enough men to load two ships," he
"remember[ed] talking about" bringing in crews from
other parts of Alaska. Given this state of the 10(k) tran-
script, and the weak and equivocal character of
Browne's purported denials of certain remarks attributed
to him by Head as further reflected therein, ample bases
exist for crediting Head without need to observe the two
witnesses' testimonial demeanor.
Therefore, the picketing, having been revealed for an
object proscribed by Section 8(b)(4)(i) and (ii)(D), was in
violation of that section.
Section 8(b)(4)(B). The General Counsel, citing Moore
Dry Dock'2 and certain of its offspring, contends that
continuation of the picketing after completion of the
loading was "at times other than those when the primary
[ATC] was engaged in its normal business," warranting
the inference that such picketing was for a secondary
object, violating Section 8(b)(4)(i) and (ii)(B). The Gen-
eral Counsel also contends that the waterborne picketing,
from its inception, occurring on that side of the Eastern
Hope away from the loading activities, was "directed at
those employees [of] the vessel" rather than employees
of ATC, again revealing a secondary object in violation
of Section 8(b)(4)(i) and (ii)(B). The Charging Party
argues in much the same vein.
In Moore Dry Dock, the Board set forth standards to
be applied in common-situs picketing situations to deter-
mine whether picketing is for a primary rather than sec-
ondary object-that it be "strictly limited to times when
the situs of the dispute is located on the secondary em-
ployer's premises," that the primary employer be en-
gaged "in its normal business at the situs" during the
picketing, that the picketing "be limited to places reason-
ably close to the location of the situs," and that the pick-
eting "discloses clearly that the dispute is with the pri-
mary employer."13 The Board since has extended these
standards to instances in which "the picketed premises
are owned by the primary employer."' 4
Respondent, on the other hand, grounds its no-viola-
tion argument on Oil Workers (Anchortank), 15 which it
characterizes as "strikingly similar" to the present case as
concerns the 8(b)(4)(B) issue.
In that case, the primary employer, Anchortank, oper-
ated a petrochemical storage facility. The stored sub-
12 Sailor Union (Moore Dry Dock), 92 NL RB 547 (1950).
13 Id. at 549.
14 Retail Clerks Local 1017 (Crystal Palace) 116 NLRB 856, 859
(1956).
I' 238 Nl.RB 290 (1978).
stances, title to which never passed to Anchortank, were
delivered to and from the facility by ship, using a dock
adjacent to the Anchortank premises. The ships were
neither owned nor operated by Anchortank, and the
dock was leased to it, for its exclusive use, when there
was loading or unloading to be done.' 6 Pilots licensed
by the state and procured by agents for the shipping
companies steered the ships between open water and the
dock.
The respondent union, in furtherance of its dispute
with Anchortank, picketed at the main land entrance to
the premises, and, when a ship was at the dock, also
picketed at the ramp leading to the dock and from a
small motorized boat which patroled alongside the ship.
The administrative law judge, relying on two Supreme
Court decisions, Steelworkers v. NLRB, 7 and Electrical
Workers Local 761 v. NLRB,1 8 determined that this was
not a common-situs situation with regard to the activities
of Anchortank, the ships, and the pilots inasmuch as all
"contributed, in the language of the General Electric
case, 'to operations which the strike [against Anchor-
tank] is endeavoring to halt."" 9 There being no common
situs, the administrative law judge concluded that the
Moore Dry Dock standards were inapplicable and that
there otherwise was insufficient basis to infer a second-
ary object. 20 The Board adopted the administrative law
judge's reasoning without modifying comment, and its
decision later was affirmed by a court of appeals. 21
It is concluded, in agreement with Respondent, that
Anchortank is not significantly distinguishable from the
present case regarding the 8(b)(4)(B) issue, and that Re-
spondent consequently did not violate that section as al-
leged. 2 2
CONCLUSIONS OF LAW
Respondent's picketing activities as described herein
violated Section 8(b)(4)(i) and (ii)(D) of the Act, but did
not violate Section 8(b)(4)(B).
[Recommended Order omitted from publication.]
is Other lessees also used the dock from time to time.
'7 376 U.S. 492 (1964).
18 366 U.S. 667 (1961).
19 238 NLRB at 293.
20 Ibid.
2i Anchortank, Inc. v. NLRB, 601 F.2d 233 (5th Cir. 1979). The court,
rejecting Anchortank's common-situs argument, observed: "[T]o be a
common situs the area must not be the primary situs of the struck em-
ployer and neutral employers must be present at the time of the picket-
ing." 601 F.2d at 238.
22 That the dock in Anchortank was not owned by Anchortank, and
that it never had title to the product with which it dealt, whereas the
opposite is so in the present case, are not seen as distinctions requiring
different results.
1296