National Maritime Union of America

National Labor Relations Board - Board Decisions

Sep 21, 1979

245 N.L.R.B. 149 (N.L.R.B. 1979)

NATIONAL MARITIME UNION OF AMERICA
National Maritime Union of America and Shippers
Stevedoring Company and Baltic Shipping Com-
pany. Cases 23-CC-728 and 23-CC-729
September 21, 1979
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS PENELLO
AND TRUESDALE
On January 25, 1979, Administrative Law Judge
Jerry B. Stone issued the attached Decision in this
proceeding. Thereafter, the General Counsel filed ex-
ceptions and a supporting brief, Respondent filed
cross-exceptions and a supporting brief, and the Gen-
eral Counsel filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings,' findings,2 and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge and hereby or-
ders that the complaint herein be, and it hereby is,
dismissed in its entirety.
I In its cross-exceptions, Respondent renews a motion at the hearing, and
denied by the Administrative Law Judge, to dismiss the complaint on the
ground that a foreign government may not invoke the processes of the board.
We affirm the ruling by the Administrative Law Judge and deny the motion.
In this regard, we note that the charge filed on behalf of Baltic Shipping
Company, an instrumentality of the Soviet Union. was filed in fact by its
American attorney, clearly a "person" under Sec. 102.9 of the Board's Rules
and Regulations, which provides that "A charge that any person has en-
gaged in or is engaging in any unfair labor practice affecting commerce may
be made by any person." Sec. 102.1 of the Rules and Regulations defines
"person" as having the same meaning as that set forth in Sec. 2 of the Act,
which defines the term "person" as including, inter alia, legal representatives.
Furthermore, the charge filed by Shippers Stevedoring Company, and
American Corporation, clearly encompassed the conduct alleged in the
charge filed on behalf of Baltic.
2 The General Counsel and Respondent have excepted to certain credibil-
ity findings made by the Administrative Law Judge. It is the Board's estab-
lished policy not to overrule an administrative law judge's resolutions with
respect to credibility unless the clear preponderance of all of the relevant
evidence convinces us that the resolutions are incorrect. Standard Dry Wall
Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We
have carefully examined the record and find no basis for reversing his find-
ings.
DECISION
SATEMIN I TtHE CASI
JERRY B. STONE, Administrative Law Judge: This pro-
ceeding, under Section 10(b) of the National Labor Rela-
tions Act, as amended, was heard pursuant to due notice on
May 15 and 16, 1978, at Houston. Texas.
The charge in Case 23 CC-728 was filed on March 24,
1978. The charge in Case 23-CC-729 was filed on March
24, 1978. Both such charges were served on the Respondent
on March 27, 1978. The consolidated complaint in this mat-
ter was issued on or about March 29. 1978. The issues con-
cern whether the Respondent has violated Section 8(b)(4)(i)
and (ii)(B) of the Act by statements, threats to picket, and
picketing conduct. Included in such issues are questions re-
lating to whether the Labor Management Relations Act is
applicable to picketing conduct directed toward the ship
Skulptor Golubkina.
All parties were afforded full opportunity to participate
in the proceeding. Briefs and arguments of the parties have
been considered.
Upon the entire record in the case and from my observa-
tion of witnesses, I hereby make the following:'
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER
The facts herein are based upon the stipulations, plead-
ings, and admissions therein.2
Shippers Stevedoring Company is a Texas corporation
with its principal office and place of business located in
Houston, Texas, where it is engaged in the business of con-
tracting for the loading and unloading of oceangoing ves-
sels. Shippers Stevedoring Company, during a representa-
tive 12-month period, in the performance of business
I By letter, dated December 19, 1978. with attachments, the Respondent
requests judicial notice of such attachments. Such December 19. 1978. letter
and attachments are marked as AU Exh. I. On January 2. 1979. the General
Counsel filed a motion entitled "General Counsel's Opposition to Respon-
dent's Request to Take Judicial Notice." Such General Counsel's motion is
marked as AU Exh. 3. By letter, dated December 29, 1978. and attach-
ments. Respondent requested judicial notice of certain acts, including certain
newspaper articles, and/or that the case be reopened for receipt of additional
evidence of similar vein. Such letter and attachments are marked as AU
Exh. 2. On January 3, 1979, the General Counsel filed another motion enti-
tled "General Counsel's Opposition to Respondent's Request to Take Judi-
cial Nctice and/or Reopen the Record." By leter, dated January 5, 1979.
counsel for Shippers joined in opposition to the Respondent's motions. Such
letter is marked as AU Exh. 5. Upon consideration of the same and the
record in this case, Respondent's requests are hereby rejected and AU Exhs.
1, 2, 3, 4, and 5 are rejected and placed in the rejected exhibit file.
2 The General Counsel alleged certain commerce type facts about "Mor-
float of America." Thus, the General Counsel alleged that "Morfloat of
Amenca is a corporation existing by virtue of the laws of the State of Texas
maintaining an office and place of business in Houston. Texas, where it is
engaged in the business of acting as a shipping agent for vanous oceangoing
vessels including the vessel Skulptor Golubkina." and that "Morfloat of
America in the operations of businesses described in paragraph 2(c), above.
derived revenues in excess of $50,000 in providing services for various ocean-
going vessels including the vessel Skulptor Golubkina." The Respondent's
answer denied such allegations. and no evidentiary proof was submitted to
establish the same.
245 NLRB No. 29
149
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
operations as described beforehand herein, has derived in
excess of $50,000 of revenues from operations in interstate
commerce, with such revenues derived from vessels en-
gaged in foreign voyages.
Goodpasture Terminal, Inc., is a terminal facility in the
Port of Houston, Texas, where oceangoing vessels are
docked, berthed, loaded and/or unloaded. Goodpasture
Terminal, Inc., during a representative 12-month period,
has derived in excess of $50,000 from operations relating to
its terminal facilities described above herein and with such
revenues being from operations in interstate commerce of
providing services to oceangoing vessels for the loading and
unloading of said vessels.
Baltic Shipping Company is an instrumentality of the
Union of Soviet Socialist Republics and is the owner of an
oceangoing vessel known as the Skulptor Golubkina. Baltic
Shipping Company, during a representative 12-month pe-
riod, received in excess of $50,000 fbr transportation of car-
goes aboard its vessels.
The above commerce facts make it clear that Shippers
Stevedoring Company and Goodpasture Terminal in their
normal operations are employers within the meaning of
Section 2(6) and (7) of the Act. and that Baltic Shipping
Company is a person engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.3
11. THE LABOR ORGANIZATION INVOI.VED4
National Maritime Union of America, the Respondent,
is, and has been at all times material herein, a labor organi-
zation within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
The Facts s
The relevant facts may be summarized as follows:
i. At all times relevant to this proceeding, Respondent
has represented employees and/or members, some of whom
are employed on oceangoing vessels. Respondent has an
interest in protecting and enlarging job opportunities for
the employees and members represented by it and has op-
posed and is opposing the transportation of what it consid-
ers to be "American" cargo on vessels other than vessels
known as American flag vessels.
In connection with its interest and policy discussed
above, the Respondent believes that certain laws of the
United States of America require that 50 percent of all car-
goes founded by any agency of the government of the
United States of America must be transported on American
flag vessels.
Around the time of commencement of the critical events
involved in this proceeding, Respondent believed that cer-
3 The issue of whether the picketing involved in this proceeding involved
an instrusion into the affairs of foreign ships which makes the LMRA inap-
plicable is disposed of by later findings herein.
'The facts are based upon the pleadings and admissions therein.
The facts are largely undisputed and based upon a composite of admis-
sions revealed by the pleadings, stipulations, credited aspects of the testi-
mony of witnesses, including stipulated testimony from a related court pro-
ceeding, and exhibits in the record.
tain cargo of Volkswagen buses, built in West Germany,
were to be transported in late March. 1978, to the Port of
Houston. Texas, on a vessel owned by an instrumentality of
the Union of Soviet Socialist Republics, that the funding
for such buses and the transportation thereof came from a
grant from an agency of the government of the United
States of America, and that the 50 percent cargo preference
laws were not being adhered to.
2. On or about March 22, 1978, Respondent. by its
Houston branch agent, Kirby-Smith McDowell. decided to
have a demonstration and picketing of the vessel, owned by
an instrumentality of the Union of Soviet Socialist Repub-
lics, when it arrived in late March, 1978, at the Port of
Houston.'
3. On March 23. 1978, McDowell commenced attempts
to make arrangements for such demonstration and picket-
ing. Thus, McDowell sought to obtain understanding and
agreements concerning picketing at the pier where the
above referred to vessel was to dock. Ultimately he ascer-
tained that the unloading of the vessel Skulptor Golubkina
would be at the Goodpasture Terminal.
4. On March 23, 1978, McDowell attempted to place a
telephone call to McManus. President of Shippers Steve-
doring Company.' Although McDowell was unable to
reach McManus when he placed the telephone call, Mc-
Manus returned the telephone call around 2 p.m. At such
time McDowell asked if McManus had a ship named Go-
lubkina coming in. McManus checked his schedule and
then told McDowell that the Skulptor Golubkina was due
in. McManus asked McDowell why he was requesting the
information. McDowell told McManus that he was in-
volved in planning picketing and a mass demonstration
against the vessel, that such was to protest the shipping of
buses in Russian vessels when the same was under funding
from the U.S. Department of Transportation.
McDowell told McManus that he wanted to picket and
have a demonstration at the gangway to the vessel Skulptor
Golubkina when it docked. McManus asked how large the
demonstration would be and how long the demonstration
would last. McDowell indicated that he didn't know how
long the demonstration would last. McManus then asked if
the demonstration would last 4 or 5 hours. McDowell indi-
cated that probably the demonstration would last an hour
or two.8
'Although McDowell did not physically testify in this proceeding. his
testimony in a related U.S. Distnct Court 10() proceeding was presented by
stipulation into the record of this proceeding. Considenng the logical consis-
tency of all of the facts, I find the facts as set forth. I do not credit Mc-
Dowell's testimony suggestive that his decision on March 22 was not firm as
regards the planned demonstration and picketing and that his final decision
to picket was made on March 26 or 27 after talking to an NLRB agent about
unfair labor practice charges in this case. Nor do I credit his testimony to the
effect that the picketing on March 27 and 28 was in protest of such charges.
7 McDowell had been told that the vessel Skulptor Golubkina would be
handled at the Goodpasture Terminal and that he should contact McManus.
Apparently McDowell thought McManus was connected with the Goodpas-
ture Terminal, and only after the charges were filed on March 24, 1978, in
this case, did McDowell become aware that McManus was the President of
Shippers Stevedoring Company.
s The facts are based upon a composite of the credited aspects of the
testimony of McManus and McDowell. Testimony of either inconsistent
with the facts found is discredited, based upon a consideration of the logical
consistency of facts and probabilities thereto.
150
NATIONAL MARITIME UNION OF AMERICA
McDowell told McManus that there would be between
50 and 100 persons involved in the demonstration, that
there would be people from certain named unions, from
other named organizations, and press and media (radio and
television) coverage. McManus told McDowell that he
would have to consult with the Goodpasture people to see if
they would give permission for the group to be on Good-
pasture property at the vessel's side.
McManus checked with Goodpasture's personnel and
telephoned McDowell of the results. McManus told Mc-
Dowell that the Goodpasture people woold not allow such
a large group of people to go down within the terminal, that
there could be an accident and liability involved, that
Goodpasture had agreed to let two pickets go down to the
vesselside and preferred that they be from the NMU.
McDowell told McManus that the limit of two pickets
was unacceptable, that he was concerned over the safety of
two pickets picketing a Russian ship. McDowell argued
that he should be allowed to have 6 to 12 pickets. McMan-
us told McDowell that he would check with Goodpasture
again about his request.
On March 24, 1978, after filing charges involved in this
case, McManus telephoned McDowell and told him that
Goodpasture would permit only two pickets to be at dock-
side of the vessel Skulptor Golubkina when it arrived. Mc-
Manus asked McDowell if he had considered accepting
such offer." McManus told McDowell that the problem was
getting serious, that if McDowell intended to picket the
main gates of the terminal that it would effectively shut
down the whole facility. McDowell told McManus that he
did not want to hurt the Goodpasture facility and had no
dispute with Shippers Stevedoring Company. McManus
told McDowell that McDowell knew that if there were a
picket line, the ILA people would not cross the picket line.
McManus and McDowell discussed the question of 6 to 12
or 2 pickets and the problem of security for the pickets.
McDowell indicated then that he was satisfied to have the
demonstration occur outside the Goodpasture Terminal for
an hour or two, until around 8:30 p.m. when the vessel
Skulptor Golubkina was expected to arrive around 8:30
p.m., and that then he would take two pickets down to the
vessel side. McDowell indicated, however, that he would
have to contract his people in New York City. No other
contact occurred between McManus and McDowell prior
to the picketing events on March 27, 1978.'0
5. Between March 22 and March 27, 1978, McDowell
spoke to members of the press on approximately 100 differ-
Considering the total facts, including McDowell's reference to Shippers
in this conversation, I am persuaded that the telephone call to McDowvell
occurred after McDowell became aware of the unfair labor practice charges
filed by McManus for Shippers.
10 Although there may have been some misunderstanding as to whether
there would be picketing outside the terminal, I am persuaded that there was
an arrangement reached between McManus and McDowell. I discredit Mc-
Manus' testimony to the effect that no agreement was reached. Testimony of
any witness inconsistent with the facts found is discredited. The above credi-
bility resolutions are based in part upon a consideration of the credited
testimony of Jackson that Saccamanno, an attorney for Goodpasture, stated
onMarch 27, 1978. after the picketing, that he understood that an arrange-
ment had been made but that the picketing outside the terminal was affect-
ing whether two pickets would be permitted to go dockside of the vessel
Skulptor Golubkina.
ent occasions. McDowell told the press in effect that there
would be a mass demonstration and picketing at the Good-
pasture Terminal when the Skulptor Golubkina arrived,
that the demonstration would last an hour or two. and that
pickets would then go down to shipside to picket. McDow-
eli told the press that the protest was over U.S. tax dollars
being put into the Russian economy and not in the Ameri-
can economy, that President Carter had said that tax dol-
lars would be going back into industry to stimulate employ-
ment and that this was not being done, that the funding for
the buses and for transportation was United States Federal
grant money, that he was interested in protecting the jobs of
American seamen, that he was interested in protecting work
to be done domestically rather than abroad as regards the
buses, and that he wanted the Merchant Marine Act's law
of cargo preference as related to funding by a governmental
agency to be abided by.
As indicated later, picketing commenced around 6:15
p.m. on March 27, 1978, and lasted until around 10 a.m. on
March 28, 1978. Around the time of cessation of picketing,
McDowell spoke to the press about meetings having been
scheduled with Adams of the department of transportation
and that understandings were reached concerning govern-
mental abidance with the law as regards the 50 percent
cargo preference to American shipping in connection with
governmental funded cargo and shipping. McDowell also
discussed whether there were misunderstandings as regards
scheduling of meetings with the department of transporta-
tion and understandings. In effect McDowell indicated that
picketing had ceased because of understandings reached
with the government."
6. On March 24, 1975, Shippers Stevedoring Company
and Baltic Shipping Company filed unfair labor practice
charges which averred in part a belief that there would be
picketing by the Respondent and others in violation of Sec-
tion 8(bX4)(i) and (iiXB) of the Act.
After the filing of such charges and prior to the com-
mencement of picketing on March 27, 1978, McDowell had
discussions with agents of the NLRB Regional Office about
the charges. Afterwards, McDowell spoke to the press com-
plaining about an instrumentality of the Union of Soviet
Socialist Republics filing charges and using the United
States Goverment to prevent his freedom of speech under
the first amendment.
7. The facts reveal that the statements made by McDow-
ell to the press appeared in newspapers during the period of
time March 25 through March 29, 1978. Thus, newspaper
" McDowell denied telling the press that if he had known that there was a
misunderstanding, he would not have pulled the pickets down. No evidence
was presented to reveal that McDowell had made statements to the effect
that if he had known there were misunderstandings that he would not have
pulled the pickets down. Some newspaper articles published on or after
March 28, 1978, indicated that McDowell had made statements to the effect
that if he had known there had been a misunderstanding as to meetings or
agreement with the Department of Transportation. he would not have taken
the pickets down. Such newspaper articles were not received as proof of the
truth of the matter. Further, although some of the matter asserted in the
newspaper articles is not in dispute and is consistent with other evidence,
some of the matter asserted in the articles is disputed. Since the events re-
ferred to in the articles are of recent time, there appears no need to ignore the
normal rules of hearsay. Accordingly. I give no weight as an evidentiary
matter to the newspaper articles as regards facts in dispute and not sup-
ported by evidence otherwise.
151
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
articles reflected prior to March 27, 1978, that Respondent
intended to have informational pickets on the dock in front
of the Skulptor Golubkina and that the picketing was to be
in protest of the use of a Russian ship to transport cargo
paid for with Federal tax dollars. After the picketing had
ceased, newspaper articles reflected statements by McDow-
ell to the effect that the picketing had been in protest of
U.S. tax dollars being used to pay for the transportation of
the buses by a Russian ship and for payment for buses not
built by American companies. Such articles indicated in
effect that the dispute that Respondent had was with the
United States Department of Transportation and that the
picketing was a message to the President and Congress.
8. On Sunday, March 26, 1978, a rally was held at the
offices of the NMU in Houston, Texas, for the purpose of
organizing the demonstration and picketing, which is the
subject of the litigation in this proceeding. Approximately
75 percent of the persons present were NMU members
and/or families of NMU members. 2 Approximately 25 per-
cent of those present were persons unaffiliated with the
NMU, including William H. Dalton, Commander, Second
Division, American Legion Department of Texas, Joseph
Christie, candidate for the office of United States Senator
from the State of Texas, and Anthony Hall and Wynn Nor-
ris, candidates for Congress from the Democratic and Re-
publican parties respectively, among others.
9. On March 27, 1978, the Skulptor Golubkina was
scheduled to arrive at the Goodpasture Terminal for un-
loading services provided by Shippers Stevedoring Com-
pany. Prior events indicated that the Respondent would
have a demonstration and picketing related to such vessel
for the reasons previously set forth. At no time relevant to
these proceedings did the Respondent have a labor dispute
with Goodpasture Terminal, Shippers Stevedoring Com-
pany, or Baltic Shipping Company (the owner of the Skulp-
tor Golubkina).
10. The approximate scheduled time of arrival of the
Skulptor Golubkina was between 7 and 8 p.m. Respondent
had attempted to gain information as to the time of arrival
and had received varying stated times. The Respondent
also had a lookout to convey information when the Skulp-
tor passed a certain point on the way to docking. Further,
the Respondent ascertained the excepted time that long-
shoremen would arrive at the Goodpasture Terminal."
Around 6:15 p.m. on March 27, 1978, the Respondent
commenced a demonstration and picketing at a gate en-
trance to the Goodpasture Terminal located at Clinton
Drive. The picket demonstration on Clinton Drive con-
sisted of demonstration and picketing by approximately 60
persons, 75 percent of whom were NMU affiliated persons
and 25 percent who are nonmembers of the NMU. There
also occurred at that time picketing at two gates to the
Goodpasture Terminal on Main Street. One of these gates
2 The actual number of persons at such rally is not revealed by the evi-
dence.
1S Picketing commenced at 6:15 p.m. The facts reveal that the shapeup of
longshoremen for work on the Skulptor was scheduled for 6 p.m. It could
reasonably be anticipated that the longshoremen, if they reported to work,
would arrive at the Goodpasture Terminal between 6 p.m. and the time that
they were ordered to report to work at 7 p.m.
was placed where railway tracks entered the Goodpasture
Terminal. The other gate is simply referred to as a back
gate. Picketing at all gates continued until March 28. 1978,
at 10 a.m. There was no picketing or demonstration at any
time at the docking site of the Skulptor Golubkina which
was inside the Goodpasture Terminal property. None of the
gates to the Goodpasture Terminal were marked as re-
served for the use of any specific employees.'4
There is no evidence or contention that any' of the pickets
attempted to orally induce any employees to refuse to cross
the picket lines. The evidence as to most of the picket signs
used by the pickets reveals that they were in effect as fol-
lows.
One sign was as follows:
INFORMATIONAL PICKET
NOT INTENDED TO ORGANIZE
OR OBTAIN RECOGNITION
United Seamen and Allied Workers
International
PROTEST
* * * # *
THE RUSSIAN MERCHANT FLEET
IS PART OF THE
RUSSIAN MILIATARY-WHY
DO U.S.A. TAX-DOLLARS SUPPORT
THAT SYSTEM?
Other signs were similar in language to the top half por-
tion of the above referred to sign and different in language
as to the bottom part of such sign. Thus, one sign had lan-
guage on the bottom to the effect that the protest was about
"Sending U.S.A. Tax Dollars to Support the Russian Mer-
chant Fleet." Another sign had language on the bottom as
follows: "Put American Interest First." Another sign had
on the bottom half thereof words to the effect "Russki Go
Home." Another sign had on the bottom half thereof, "Is
This How Carter Protects American Workers?" And an-
other sign had on the bottom half thereof, "Sending U.S.A.
Tax Dollars to Support the U.S.S.R. Merchant Fleet."
One sign did not have the language on the top thereof
indicating that the picketing was informational. This sign
merely had language thereon as follows: "Communist Ship
For Conquest" and was apparently carried by a member of
the American Legion."
II. About the time the picketing and demonstration
commenced at the gates to the Goodpasture Terminal, Co-
vert, of the NMU, requested a meeting with officials of
Goodpasture. Following this, around 6:15 p.m., a meeting
occurred at which representative for Shippers Goodpasture,
and the NMU were present. Present for the NMU was Co-
vert, for Shippers was McManus, and for Goodpasture
" The evidence does not reveal how long the demonstration lasted. In
view of the conversations that NMU officials had with officials of Goodpas-
ture and Shippers, it appears that the demonstration was expected to last an
hour or two.
Is McDowell in his testimony set forth that in his protests and statements
to the press that he argued the comparative freedom in the U.S.A. as com-
pared to Russia. It is also noted that many of the demonstrators carried
American flags. McDowell also testified in effect that the "Communist Ship
For Conquest" was a sign that he had indicated disapproval of but which
was used anyway.
152
NATIONAL MARITIME LINION OF AMERICA
were attorney' Saccomanno, Ivy. and Jackson. What oc-
curred is revealed by the following credited excerpts from
Jackson's testimony.
Q. Do you know how Mr. Covert came to be on the
scene, in Mr. McManus's office, on this occasion?
A. He sent word in by one of our security people
that he would like to talk to someone with Goodpas-
ture.
* *
A. Mr. Covert introduced himself as being with the
NMU and informed us that he had put up informa-
tional pickets and told us that in no way did he want to
hurt Goodpasture, that this was just to inform the pub-
lic.
I asked him, if he did not intend to hurt Goodpas-
ture why did he put up pickets at the back gate?
Q. Did he respond to you? Did he answer?
A. He said he heard that this was the gate that was
set up for the longshoremen to use. that our ploy did
not work-checkmate.
Q. Anything else said that you can recall at this
time?
A. Mr. Saccomanno asked him what time the ship
was due in.
Q. Did Mr. Covert or anyone else respond to that
question?
A. He said that the pilots boarded at 14:40. so the
ship should be in around 8:30.
* * *
A. We were notified that theN wanted to meet with
us again.
Q. As best you can recall. starting at the beginning
of this particular time and going to the end. please tell
us what was said and who said it.
A. Mr. McDowell wanted to put two pickets on the
dock, and he said that if we could put two pickets on
the dock after they had the demonstration out front.
the rest of the pickets would go home.
Q. Was there any response made alter Mr. Mc[)ow-
ell made his wishes known?
A. Mr. McDowell said he had made this agreement
earlier with Mr. McManus.
Mr. Saccomanno told him that he understood that
arrangements had been made previously. but belore
the pickets were put up in the front, because we knew
that would keep our group from crossing the picket
line, our employees of l ocal 1910 and the longshore-
men.
*
Q. (By Mr. Levy) Please continue. What else, if any-
thing, was said?
A. Well, Mr. McDowell said again that he had
made the arrangements earlier with Mr. McManus to
put two pickets on the dock. And we told him that
since they had the demonstration out front, we would
have to contact Mr. Kennedy or Mr. Muldrow to get
verification.
* * .
A. Mr. Saccomanno asked him, if the ship wasn't
due in until 8:30. why were they putting the pickets up
so early.
Q. Did Mr. Covert reply to that?
A. He said he wanted to catch the longshoremen.
He knew that we had gangs ordered at 7:00.
Later, around 6:45 or 7 p.m., there was another meeting.
What occurred is revealed by the following credited ex-
cerpts from Jackson's testimony:
Q. Approximately what time that evening was the
second conversation?
A. I don't remember the exact time-6:45 or 7:00.
Q. Who was present on the second occasion when a
conversation took place?
A. Mr. Saccomanno. Mr. Covert, Mr. McDowell.
and one other gentleman I don't remember.
Q. Was Mr. McManus there?
A. No.
Q. Where did the conversation take place?
A. In my office.
Q. How did it come to pass that Mr. McDowell and
Mr. Covert were in your office on this second occa-
sion?
Q. (By Mr. Levy) Was anything else said that ou
can recall on this second occasion?
A. We told him as soon as we heard from Mr. Ken-
nedy or Mr. Muldrow. we would let him know their
decision.
12. The evidence reveals that normally, during the time
period around March 27, 1978, the following employers
had employees engaged in work of one type or another at
the premises of the Goodpasture Terminal. Goodpasture.
Shippers Stevedoring Company. Brown and Root Con-
struction Company. Morton Construction Company. Cox
Construction Company. Campbell Electric Company. Buf-
falo Engineering Company, and Powell and Stevenson (an
electrical company). In addition, there was a railway en-
trance to the Goodpasture Terminal which was used by
Southern Pacific Railroad and its employees.
The evidence as to the employees of Shippers Stevedor-
ing Company indicated that such employer had some em-
ployees who were represented by the International Long-
shoremen's Association, AFL-CIO. and had 25 employees
who were not represented by any union. Exactly what the
25 employees who were not represented by a union were
employed to do is not revealed by the record. Further, there
is no evidence that any of such 25 employees were sched-
uled to work on March 27 or 28. 1978. or if so, whether
such work was related to the unloading or servicing of the
Skulptor Golubkina.
The only evidence of employees of Shippers Stevedoring
C'onpans scheduled to work or expected to work at the
153
r
)DECISIONS OF NATIONAL ILABOR RELATIONS BOARD
Goodpasture Terminal on March 27, 1978, at 6:15 p.m. or
thereafter and until March 28, 1978. at 10 a.m., concerned
longshore employees who were requested for the unloading
of the Skulptor Golubkina. and certain checkers who were
scheduled to handle receiving work related to the unloading
of the Skulptor Golubkina.
It is clear that Shippers had requested from the Il.A that
16 longshore employees be referred for work of unloading
of the Skulptor Golubkina with a reporting time of 7 p.m.
on March 27, 1978. Shippers had also scheduled four or five
checkers from the ILA for work related to the unloading of
the Skulptor Golubkina. The 16 longshore employees did
not report to work on March 27, 1978, and Shippers was
able to get such employees only after picketing had ceased
on March 28, 1978. Most of the four or five checkers were
on the premises prior to the March 27. 1978, commence-
ment of picketing but left without working and did not re-
turn until the picketing had ceased on March 28, 1978.'"
McManus testified to the general effect that checkers, as
part of their duties, had to sign in and out certain cargo for
import or export, that such work was unrelated to the work
performed with respect to the Skulptor Golubkina, and that
the absence of the checkers on March 27 and 28, 1978.
meant that such activities could not be performed. It is
noted, however, that the Skulptor Golubkina was the only
vessel at the terminal during the critical events in this case.
Conceivably, some cargo might have been received at the
terminal prior to March 27, 1978, and not picked up by the
intended receiver before March 27, 1978, at 6:15 p.m. Con-
ceivably, some person might desire to bring cargo to the
terminal on March 27 or 28, 1978. for later shipment. How-
ever, no evidence was presented to reveal that anyone at-
tempted to receive such cargo or to deliver such cargo on
March 27 or 28, 1978. Considering the questions directed to
McManus and his answers, I am persuaded that his testi-
mony should be considered as being to a general effect and
not supportive of precise detailed facts. Thus, I am per-
suaded that McManus' testimony reveals that it is specula-
tive as to whether there was work for the checkers on
March 27, 1978, and March 28, 1978. relating to work other
than with respect to the Skulptor Golubkina.
There is no evidence to reveal that any employee of
Goodpasture Terminal was scheduled to work on March
27. 1978. As has been indicated, however, some officials and
'l ILA Local 872 selected the vessel Skulptor Golubkina as one of its
referral opportunities for March 27. 1978. posted the job for a 6 p.m.
shapeup. and did not secure a gang of 16 employees for referral or assign-
ment to work. Considenng the newspaper articles concerning the planned
protest about the Skulptor Golubkina and the well known practice of ILA
members not to cross picket lines, I am persuaded that McClain, the business
agent for ILA Local 872, went through the formal motions of attempting to
supply the 16 member gang without realistic belief that members would be
available for the job because of the expected picket line. Considering the
foregoing and the evidence which reveals that under normal circumstances
the Skulptor Golubkina job would be a desirable job and the fact that all
other gangs requested on March 27, 1978, were finished. I am persuaded that
the preponderance of the evidence reveals that the members of the I.A did
not shape up a crew for the Skulptor Golubkina because of awareness of the
planned protest. In making such determinations I have considered the fact
that some of the evidence reveals that the ILA on other occasions has been
unable to furnish requests for employees. In my opinion, the eidence relat-
ing to employees furnished on the night of March 27, 1978. weighs heavily
for the findings made.
representatives of Goodpasture were at the Goodpasture
Terminal at and around the commencement time of' the
picketing involved in this case. On March 28. 1978, ap-
proximately 30 employees, represented by ILA Local 1910,
were scheduled to work at the (ioodpasture Terminal.
Some of these employees were scheduled to perform work
functions related to the unloading of the Skulptor Ciolub-
kina. Some of these employees were scheduled to engage in
construction work which was unrelated to the work of' un-
loading the Skulptor (ioluhkina.
None of the above referred to employees crossed the
picket line and worked on March 28. 1978. until after the
picketing had ceased around 10 a.m. Shortly thereafter
most of the referred to Goodpasture employees reported to)
work. Such employees had been scheduled to report to
work at 8 a.m. Around that time. Jackson,. who was at the
Goodpasture office, observed a number of' persons known
to him as Goodpasture employees. Such persons were at the
I LA office which was located about one-half block from the
Goodpasture office. After picketing ceased. Jackson ob-
served some of the same persons at work for Gioodpasture.
Excepting for evidence presented by the parties in a stipula-
tion, there is no evidence that any picket spoke to any em-
ployees. The evidence received by stipulation was as tol-
lows:
5. It is stipulated and agreed that if called to testif).
Felix Ruiz would testify,, without being controverted,
as follows:
Mr. Ruiz is the acting president of' the Operation
and Maintenance Employees of Goodpasture Grain
Elevator and Fertilizer Co. Local 1910. affiliated with
International Longshoremen's Association (I LA).
AFL-CIO. There are approximately 25 members of
this local, most of whom are employees of Goodpas-
ture, Inc. No information was received by ocal 1910
with regard to the establishment of a picket line at the
Goodpasture terminal on March 27. 1978 and March
28. 1978.
All employees, members of Local 1910. performed
their regular duties on March 27, 1978. which com-
menced and ended prior to the establishment of a
picket line on this date.
At approximately 8:00 AM, on the 28th of March.
as Mr. Ruiz and other employee members of Local
1910 proceeded to work, two pickets carrying signs
were observed at the gate. No attempt was made by
Mr. Ruiz or any other members of Local 1910 to cross
the picket line to go to work consistent with the estab-
lished policy of the ILA not to cross picket lines. The
pickets did not approach Mr. Ruiz or any other mem-
ber of Local 1910.
At the request of his members, Mr. Ruiz asked the
pickets what was happening. The picket informed Mr.
Ruiz that they could cross the picket line and go to
work. Mr. Ruiz informed his men that they could go to)
work. The men decided unanimously not to cross the
picket line. They remained in the area. At approxi-
mately 10:00 AM. the pickets were removed. After
being contacted by (ioodpasture personnel. most of
!54
NAT'IONAI. MARITIME UNION OF AMERICA
the II.A Local 1910 members came in to go to work
within 45 minutes or so after the picketing was re-
moved.
I note the wording of the stipulation "It is stipulated anid
agreed that if called to testify Felix Ruiz would testif.,
without being controverted, as ftllows:' Although no for-
mal request was made that the stipulation he deemed to he
as if Ruiz had testified. I construe the parties' actions in
presenting such stipulation as such request. Further, al-
though the terminology of stipulation may be deficient. his-
torically such stipulations have been received in lieu of tes-
timony. And, in any event, consideration of and accordance
of weight to such stipulation as evidence is a matter within
the discretion of the trier of fact.
As to the other employers or employees who normally
used or worked at the Goodpasture Terminal, the following
is noted. There is no evidence to reveal that the Southern
Pacific Railroad or its employees were at or scheduled to he
at the premises or entrance to the Goopasture Terminal on
March 27 or 28, 1978, during the time of the picketing that
occurred. Similarly, there is no evidence that any Goodpas-
ture employees were at or scheduled to be at the premises
or entrance to the Goodpasture Terminal involved in duties
relating to railway cars on March 27 or 28. 1978, during the
time of picketing that occurred. Further, there is no evi-
dence that Brown and Root Construction Company, Mor-
ton Construction Company. Cox Construction Company.
Campbell Electrical Company. or Buffalo Engineering
Company, or their employees were at or scheduled to be at
the Goodpasture Terminal premises on March 27 and 28.
1978, during the time that picketing occurred.
The General Counsel attempted to establish that some of
the employees of Powell and Stevenson, an electrical con-
tractor, did not cross the picket line on the morning of
March 28, 1978, because of the picketing. Jackson's initial
testimony suggested that he was testifying to facts known
by him and observed by him. The General Counsel indi-
cated that his questions directed to Jackson were with re-
gard to direct evidence and not to hearsay. Cross-examina-
tion reveals that Jackson's testimony should be construed as
knowledge that the employees of Powell & Stevenson were
scheduled employees of Powell & Stevenson were scheduled
to arrive at work around 7 a.m. or 8 a.m. and that such
employees, four or five, did not arrive at work at such time.
Jackson's testimony as to why the employees did not arrive
at that time, because of picketing, is hearsay and consider-
ing the issues in this case, not entitled to weight.
13. The facts are clear and undisputed that the Respon-
dent, National Maritime Union of America. during the
time of the critical events in this proceeding, did not have
and was not seeking a bargaining relationship with any em-
ployer, including Baltic, located or doing business at the
Goodpasture Terminal, did not represent and was not seek-
ing to represent any employee of any employer located at
or doing business at the Goodpasture Terminal, and was
not seeking to affect the employer-employee relationship of
any employer-employee located at or doing business at the
Goodpasture Terminal as regards wages or any term or
condition of employment.
Conclusions
The Picketing
The G;eneral Counsel's basic complaint appeared to at-
tack Respondent's conduct as being unlawflk because the
picketing was directed at labor which had been ordered to
unload the vessel Skulptor Golubkina. However. the com-
plaint included general allegations suflicient to lease in is-
sue picketing as regards other employers and employees. Al
the trial some of the evidence revealed that there w ere other
employees who normally worked at the (ioodpasture Ter-
minal and whose work was unrelated to the unloading of
the Skulptor Golubkina.
The General Counsel's brief and argument in maior ef-
fect appears to he that the picketing by Respondent. een if
only directed to employers or employees engaged in the
unloading of the Skulptor Goluhkina. was .iolative of Sec-
tion 8(h)(41 of the Act. However, the General Counsel ar-
gues the meaning oft the picketing as regards employees
who w'ere not engaged in work of unloading the Skulptor
Goluhkina, and argues that this reveals an unlawful object
of such picketing. The General Counsel's argument of vio-
lative conduct is thus of a broad nature.
Respondent's brief and argument in major effect appears
to argue that the picketing by Respondent is not violative of
the Act in that it did not relate to commerce which was "in
commerce" and that therefore the National Labor Rela-
tions Board lacks jurisdiction within the meaning of the
decisions in Anlerican Radio Assotiation,. I F l. (10 v. Mo-
hile Steamship 4Association,. Inc.. 419 .S. 215 (1974). and
Windward Shipping (.ondotin) l.id v. .4 nerican Radio .svoci-
alion, A FL CIO, 415 U.S. 104 (1974). The Respondent also
argues that the picketing was not for an unlawful object
within the meaning of the Act.
Both the Windward and Mlobile cases concerned picket-
ing by an American union designed to publicize the adverse
impact on American seamen of the operations of foreign
flag carriers which employed foreign crewmen at wages
substantially below those paid to American seamen.
In the Windward case, the Supreme Court of the United
States discussed the principles established by it in the appli-
cation of the Labor Management Relations Act in situ-
ations which might be broadly described as disputes be-
tween unions representing workers in the United States and
owners of foreign flag vessels operating in international
maritime commerce. The Court set forth that Ben: v. Corn-
pania Naviera Hidalgo, S.A.. 353 U.S. 138 (1957), was the
leading case on the subject. The Court pointed out that the
Court had set forth that "Studying the legislative histor of
the Act, it had found no indication that it was intended to
govern disputes between foreign ship owners and foreign
crews, that on the contrary the legislative history strongly
suggested that the Act was a bill of rights for American
workmen and their employers." The Court also pointed out
that it had stated that this history "inescapabl describes
the boundaries of the Act as including only the workingmen
of our own country and its possessions." Ihe Court further
pointed out that it had made clear its reluctance to intrude
domestic labor law willynilly into the complex of consider-
1I5
DECISIONS OF NATIONAl. LABOR RELATIONS BOARI)
ations affecting foreign trade, absent a clear congressional
mandate to do so.
Following Benz and to Windward the Court continued to
construe the LMRA in accordance with the dictates of
Benz. Further, the Court pointed out that the reasoning of
Benz was reaffirmed by it in McCulloch, Chairman. National
Labor Relations Board v. Sociedad Nacional de Marincros de
Honduras, 372 U.S. 10 (1963), and Incres Steamship Co. v.
International Maritime Workers Union, 372 U.S. 24. The
Court indicated in Windward that it had applied, in Benz
and the above referred to cases, the principle that maritime
operations of foreign flag ships employing alien seamen
were not in commerce within the meaning of Section 2(6) of
the Act.
The Court pointed out that it had not read Benz and its
successor cases to exempt all organizational activities from
the Act's protections merely because those activities were
directed at an employer who was the owner of a foreign
vessel docked in an American port. The Court set forth in
effect that in International Longshoremen's Local 1416 v.
Ariadne Shipping Co., 397 U.S. 195, it had held that the
picketing of foreign ships to protest substandard wages paid
by their owners to nonunion American longshoremen was
"in commerce" within the meaning of Section 2(6), and
thus might have been subject to the regulatory power of the
National Labor Relations Board.
In Windward, the Court set forth as revealed by the lbl-
lowing excerpts of the opinion of such case that: '
Ill. The picketing activities in this case do not in-
volve the inescapable intrusion into the affairs of for-
eign ships that was present in Benz and Incres, respon-
dents seek neither to organize the foreign crews for
purpose of representation nor to support foreign crews
in their own wage dispute with a foreign shipowner.
But those cases do not purport to fully delineate the
threshold of interference with the maritime operations
of foreign vessels which makes the LMRA inapplica-
ble.
The picket signs utilized at the docks where the
Northwind and Theomana were tied up protested the
wages paid to foreign seamen who were employed by
foreign shipowners under contracts made outside the
United States. At the very least, the picketers must
have hoped to exert sufficient pressure so that foreign
vessels would be forced to raise their operating costs to
levels comparable to those of American shippers, ei-
ther because of lost cargo resulting from the longshore-
men's refusal to load or unload the vessels, or because
of wage increases awarded as virtual self-imposed tariff
to regain entry to American ports. Such a large scale
increase in operating costs would have more than a
negligible impact on the "maritime operations" of
these foreign ships, and the effect would be by no
means limited to costs incurred while in American
ports. Unlike Ariadne, the protest here could not be
accomodated by a wage decision on the part of the
shipowners which would affect only wages paid within
this country.
" Footnotes deleted.
In this situation, the foreign vessels' lot is not a hap-
py one. A decision by the foreign owners to raise for-
eign seamen's wages to a level mollifySing the American
pickets would have the most significant and far reach-
ing effect on the maritime operations of these ships
throughout the world. A decision to boycott American
ports in order to avoid the difficulties induced by the
picketing would be detrimental not only to the private
balance sheets of the foreign shipowners but to citi-
zenry of' a country as dependent on goods carried in
foreign bottoms as is ours. Retaliatory action against
American vessels in foreign ports might likewise be
considered. but the employment of such tactics would
probably exacerbate and broaden the present dispute.
Virtually none of the predictable responses of a foreign
shipowner to picketing of this type. therefore, would be
limited to the sort of wage-cost decision benefitting
American workingmen which the L.MRA was designed
to regulate. This case therefore, falls under Benz rather
than under Ariadne.
The Court then proceeded to hold that the Windward
picketing was not "in commerce" as defined by the Act.
In the Mobile case, the Court was presented with virtu-
ally the same factual situation of picketing of a foreign flag
vessel as involved in Windward. In Mobile, the Court set
forth as revealed by the following excerpts from the opinion
of such case that:'
Petitioners, having failed to persuade this Court in
Windward that their Houston picketing was protected
under §7 of the National Labor Relations Act, now
contend that their Mobile picketing was at least argu-
ably a secondary boycott prohibited by §8(b)(4) of the
Act. Thev would have us hold not only that there is an
independent controversy between petitioner unions.
representing American seamen, and the contracting
stevedores represented by respondent, but also that
this independent dispute is subject to the jurisdiction of
the Board.
Acceptance of petitioners' argument would result in
a rule whereby a State court had jurisdiction over a
complaint for injunction filed by a foreign shipowner
claiming that picketing activities of a union were inter-
fering with his business relationships with a contract
stevedore, but the same court would have nojurisdic-
tion where the contract stevedore sought an injunction
where the contract stevedore sought an injunction on
precisely the same grounds. The anomaly of such a
result is reason enough to question it, but we believe
that there is a more fundamental flaw in petitioners'
claim.
131 Even if there is a dispute between petitioners and
respondents which is, in some semantic sense, indepen-
dent of petitioners' dispute with foreign-flag ships, that
dispute is subject to State court disposition unless it
satisfies the jurisdictional requirements of the NLRA.
In this regard, we note that a necessary predicate for a
finding by the Board of an unfair labor practice under
§8(b)(4)(i) is that the individual induced or encouraged
must be employed by a "person engaged in commerce
156
8 F:ooltnoles delelcd
NATIONAL MARITIME UNION OF AMERICA
or in an industry affecting commerce." Similarly, a
necessary predicate for finding an unfair labor practice
under §8(b)(4)(ii) is that the person threatened, co-
erced, or restrained must have been engaged in "com-
merce or in an industry affecting commerce," and a
necessary predicate for Board jurisdiction of unfair la-
bor practices under §10(a) of the Act is that they be
practices "affecting commerce."
* *
[4] We do not believe, however, that the line of cases
commencing with Benz and culminating in Windward
permit such a bifurcated view of the effects of a single
group of pickets at a single site.
* *
While we thus spoke in Windward of the effect of the
Houston pickets on the maritime operations of foreign
ships, the quoted passage shows that we fully recog-
nized that this effect would not be produced solely by
the pickets and the messages carried by their signs. It
would be produced in large part by the refusal of
American workmen employed by domestic stevedoring
companies to cross the picket line in order to load and
unload cargo coming to or from the foreign ships.
Since Windward held that the Houston picketing was
not "in" or "affecting commerce," it would be wholly
inconsistent to now hold, insofar as concerns Board
jurisdiction over a complaint by respondents, that the
employer of the longshoremen who honored the picket
line, or the shipper whose goods they did not handle,
were "in" or "affecting commerce."
That we found it unnecessary to expressly state this
conclusion in Windward suggests not the point is an
undecided one, but that such a conclusion inevitably
flows from the fact that the response of the employees
of the American stevedores was a crucial part of the
mechanism by which the maritime operations of the
foreign ships were to be affected. The exaction of the
"self-imposed tariff to regain entry to American ports"
does not depend upon American shippers heeding the
message on the picket signs and declining to ship their
cargoes in foreign bottoms. The same pressure upon
the foreign flag owners will result if longshoremen re-
fuse to load or unload their ships. The effect of the
picketing on the operations of the stevedores and ship-
pers, and thence on these maritime operations, is pre-
cisely the same whether it be complained of by the
foreign shipowners or by persons seeking to service
and deal with the ships. The fact that the jurisdiction
of the State courts in this case in invoked by stevedores
and shippers does not convert into "commerce" activi-
ties which plainly were not such in Windward.
The Court also pointed out in Mobile as revealed by the
following excerpts from the opinion of such case that:
Here, neither the farmer seeking to ship his soy-
beans, the stevedores who contracted to unload the
cargo of the foreign flag vessel, nor the longshoremen
whom the stevedores employed to carry out this under-
taking, were for these purposes engaged in or affecting
commerce within the purview of the National Labor
Relations Act. Therefore the petitioners' picketing did
not even "arguably" violate §8(b)(4) of that Act. Since
Congress did not intend to strain through the filament
of the NLRA picketing activities which so directly af-
fect the maritime operations of foreign vessels, we hold
that the Alabama courts were competent to apply their
own law in resolving the dispute between petitioners
and respondents unless, as petitioners claim, such a
resolution violated petitioners' rights under the First
and Fourteenth Amendments.
Both the General Counsel and Respondent in their argu-
ments and briefs pursue many points and refer to many
cases. In my opinion, the decision in this case is controlled
by the Mobile and Windward cases. I do not find it neces-
sary to discuss points raised by the parties other than as
revealed in the foregoing and following discussion.
The General Counsel argues that since the picketing in
the instant case was not directed at the employer-employee
relationship of the Skulptor Golubkina, the Supreme
Court's opinions in Windward and Mobile are not disposi-
tive of the issues in this case. I disagree.
The court in Windward set forth in effect that virtually
none of the predictable responses of a foreign shipowner to
picketing of the Windward type would be limited to the sort
of wage-cost decision benefiting American workingmen
which the LMRA was designed to regulate. The facts in the
instant case warrant, in my opinion, even more so such a
conclusion and, similar to the Court's opinions in the Wind-
ward and Mobile cases, that the picketing of the Skulptor
Golubkina was not "in commerce" as defined by the Act.
Thus, I find it clear that the picketing activities of the
Union directed to the foreign flag ship, Skulptor Golub-
kina, was not picketing "in commerce" within the meaning
of the LMRA. The Mobile case reveals that a bifurcated
view of such "commerce" was not permitted as regards em-
ployers, employees, or persons loading or unloading such
commerce, and that such picketing activities as regards
such employers, employees, or persons was not covered by
the Act.
Considering the foregoing, I find it clear that the picket-
ing on March 27 and 28, 1978, as regards employers or
employees assigned to or engaged in the unloading of the
Skulptor Golubkina, was not violative of Section 8(bX4)(i)
and (ii)(B) of the Act within the meaning of the Mobile and
Windward cases.
As the facts reveal in this case, at least some employees
who could reasonably be expected to normally enter the
Goodpasture Terminal premises, where picketing occurred,
were assigned to do construction work unrelated to the un-
loading of the Skulptor Golubkina.
The General Counsel argues in effect that the object of
the picketing was to cause such employes to cease working
for their employers to cause their employers to cease doing
business with other employers. In support of this, the Gen-
eral Counsel argues that various statements to Respondent
made it clear that Respondent would know, and therefore
intended, that the picketing that occurred would close the
whole terminal down, that failure of Respondent Union to
accept an offer of two pickets along dockside and to picket
only at dockside, reveals that the object of the picketing was
157
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
not limited to its effect on the Skulptor Golubkina. Respon-
dent in effect argues the other side of the coin, that its ac-
tions and picketing reveals that it tried to minimize the ef-
fect of picketing to the Skulptor Golubkina.
Considering all of the facts, I find merit in the Respon-
dent's contentions. I note that Respondent's expressed posi-
tion, in statements and signs, clearly reveals the nature of its
dispute and why there was picketing. Repeated statements
were made to reveal that Respondent wanted only to picket
and to protest the unloading of the Skulptor Golubkina.
Most important, at the time of the demonstration and pick-
eting on March 27, 1978, there is no indication that any
employees other than the ones working on the Skulptor Go-
lubkina could possibly be affected by the picketing. At such
time, the Respondent attempted to secure agreement to
move the picketing, limited to two pickets to dockside and
was unable to do so. I note also that there were no reserve
gates set up so as to permit the picketing to clearly have
effect only upon the Skulptor Golubkina. Under such cir-
cumstances, I am persuaded that Respondent's only objec-
tive in its picketing was to cause employers or employees
who were involved in or were assigned to or were unloading
the Skulptor Golubkina to cease doing so. Further, the evi-
dence reveals that the representative of the employees who
were assigned to do work unrelated to the Skulptor Golub-
kina were clearly advised that they could cross the picket
lines.
Considering the foregoing, I am persuaded that the facts
are insufficient to reveal that Respondent, by its March 27
and 28 picketing, has violated Section 8(b)(4)(i) and (ii)(B)
of the Act because some employers, employees, and per-
sons, not engaged in work related to or dealing with the
Skulptor Golubkina, were confronted by the picketing or
pickets. Thus, assuming that the Act covers such picketing
as regards such referred to employers, employees, or per-
sons, the necessary unlawful object needed for a predicate
for a violation has not been established.
In view of the foregoing, it is unnecessary to determine
the applicability of the Court's pronouncement in Mobile
that the line of cases commencing with Benz and culminat-
ing in Windward did not permit a bifurcated view of the
effects of a single group of pickets at a single site. In Mobile,
the question of the effect was whether the effect upon
American employers and employees and persons engaged
in the unloading or loading of or dealing with the foreign
ship were in such activities "in commerce" within the
meaning of the Act. Were it necessary, I am of the opinion
that the proper construction of the Court's pronouncement
would be that it was a limited pronouncement and limited
to situations of sites wherein the picketing reasonably ap-
peared to be directed toward the foreign vessel.' 9 I do not
"1Thus, if necessary, I would construe that the Court's pronouncement
was intended to cover the situation of the picketing involved in this case.
believe that the Court's pronouncement would be intended
to apply to picketing directed toward employers, employ-
ees, or persons, not engaged in work or dealings with the
foreign ship if provisions had been made so that such em-
ployers', employees', or persons' entrance into the premises
was isolated from those working on or dealing with the
foreign vessel, as an example by usage of "reserved gates."
In sum, the facts do not reveal that the Respondent, by
picketing on March 27 and 28. violated Section 8(b)(4)(i)
and (ii)(B) of the Act.
Alleged Threat To Picket
Press Statements
The General Counsel alleged and contends that Mc-
Dowell's statements to McManus on March 23, 1978, con-
stituted unlawful threats to picket within the meaning of
Section 8(b)(4Xi) and (ii)(B) of the Act. Considering the
record and arguments of counsel, I am persuaded that such
contention is without merit. It is clear that McDowell's
statements were to the effect that there would be picketing
of the Skulptor Golubkina. In the total context of all the
facts, it is clear that the evidence fails to reveal a threat to
picket for an unlawful object within the meaning of the Act.
Not all picketing is unlawful. Nor does a threat to picket
constitute an unlawful act per se. To establish that a threat
to picket is unlawful in this case, it would be necessary to
establish that the threatened picketing was unlawful. Such
has not been established in this case.
Considering the complaint allegations and arguments of
counsel, I similarly find for the same reasons without merit
any contentions that the Act was violated by Respondent's
press statements of intentions to picket.
Upon the basis of the above findings of fact and upon the
entire record in the case, I make the following:
CONCLUSIONS OF LAW
The facts of this case do not establish, as alleged, that
Respondent has violated Section 8(b)(4)(i) and (ii)(B) of the
Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER20
The complaint in this matter is dismissed in its entirety.
:o In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec. 102.48
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.
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