Sailors' Union of the Pacific

National Labor Relations Board - Board Decisions

Dec 8, 1950

92 N.L.R.B. 547 (N.L.R.B. 1950)

In the Matter Of SAILORS' UNION OF THE PACIFIC, AFL and MOORE DRY
DOCK COMPANY
Case No. 20-CC-55.-Decided December 8, 1950
DECISION AND ORDER
On May 26, 1950, Trial Examiner Arthur Leff issued his Inter-
mediate Report in the above=entitled proceeding, finding that the
Respondent had not engaged in the unfair labor practices alleged
in the complaint and recommending that the complaint be dismissed
in its entirety, as set forth in the copy of the Intermediate Report
attached hereto. Thereafter; the General Counsel and Moore Dry
Dock Company, the charging party, filed exceptions to the Intor-
hiediate Report and supporting briefs:.
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed.' The Board has considered the
Intermediate Report, the exceptions and briefs, and. the entire-
record in the case, and hereby adopts the findings, conclusions, and,
recommendations of the Trial Examiner with the following clarifi-
cation.
Section 8 (b) (4) (A) is aimed at secondary boycotts and secondary
strike activities. It was not intended to proscribe primary action by:
1 At the oral argument before the Trial Examiner , the charging ' party, Moore Dry
Dock Company , moved to amend the complaint to allege a violation of Section's (b)
(4) (B). The Trial Examiner denied the motion when the General Counsel refused to
join in the move to amend . The charging party has renewed its motion before the
Board.
Section 8 (a) and ( b) of the Labor Management Relations Act create. public and not
private , rights ( Phelps Dodge Corporation v. N. L. R. B., 313 U. S. 177). The protection
of those rights is entrusted to public officials and not to private parties. The General
Counsel of the Board has "final authority , on, behalf of. the Board , in respect of the
investigation of charges and issuance of complaints under Section 10, and in respect of
the prosecution of such complaints before the Board . . . Thus, the decision whether
to issue. a complaint , the contents of the complaint , and the management of the prosecu-
tion before the Board is entrusted to the sole discretion of the General Counsel (see
Haleston Drug Stores , Inc., 86 NLRB 1166 ). It follows that only the General Counsel
may move to amend a complaint to allege an additional violation of the Act. Otherwise
the management of the cause would pro tanto be taken from the General Counsel and
entrusted to a private party, which is contrary to the scheme of the statute and the
specific provision of Section 3 (d). As the General Counsel has declined to join in the
charging party 's motion, it is . hereby denied . The similar ruling of the Trial Examiner
is also affirmed.
92 NLRB No. 93. 547
548 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a union having a legitimate labor dispute with an employer.2 Picket-
ing at the premises of a primary employer is traditionally recognized
as primary action even though it is "necessarily designed to inducer
and encourage third persons to cease doing business with the picketed
employer." 3 As we said in 1949,
[Section 8 (b) (4) (A) ] . . . was intended only to out-
law certain secondary boycotts, whereby unions sought to en-
large the economic battleground beyond the premises of the pri-
mary Employer. When picketing is wholly at the premises of
the employer with whom the union is engaged in a labor dispute,.
it cannot be called "secondary" even though, as is virtually al-
ways the case, an object of the picketing is to dissuade all persons
from entering such premises for business reasons. . . . It
follows . . . that the picketing of Bucyrus premises, which
was primary because in support of a labor dispute with Bucyrus,.
did not lose its character and become "secondary" at the so-called.
• Ryan gate because Ryan employees [employees of the secondary
employer] were the only persons regularly entering Bucyrus,
premises at that gate 4
Hence, if Samsoc, the owner of the S. S. Phopito, had had a dock of
its own in California to which the Ph,oplto had been tied up while
undergoing conversion by Moore Dry Dock employees, picketing by
the Respondent at the dock site would unquestionably have consti-
tuted primary action, even though the Respondent might have ex-
pected that the picketing would be more effective in persuading Moore
employees not to work on the ship than to persuade the seamen
aboard the Phopho to quit that vessel. The difficulty in the present
case arises therefore, not because of any difference in picketing objec-
tives,5 but from the fact that the Ph,ophwo was not tied up at its own
'International Brotherhood of Teamsters , Chauf eurs, Warehousemen and Helpers of
America, Truck Drivers and Chauffeurs, Local Union No. 807 , ( Schultz Refrigerated Service,.
Inc.,) 87 NLRB 502; United Electrical, Radio and Machine Workers of America, et al.,
(Ryan Construction Corporation ), 85 NLRB 417; Oil Workers International Union, Local
Union 346 (CIO) (The Pure Oil Company ), 84 NLRB 315; Denver Building Trades
Council v . N. L. R. B., 186 F. 2d 326 (C. A., D. C.) setting aside 82 NLRB 1195. But
see International Rice Milling Co., Inc. v. N. L., R. B., 183 F. 2d 21 (C. A. 5), setting
aside and remanding 84 NLRB 47.
3Oil Workers International Union, Local Union 346 ( CIO) (The Pure Oil Co. ), supra,
at p. 318.
4 United Electrical , Radio and Machine Workers of America, et al. (Ryan Construction
Corporation ), supra, at p . 418. International Brotherhood of Teamsters, etc. (Schultz
Refrigerated Service, Inc.), supra.
5 "Plainly , the object of all picketing at all times is to influence third persons to
withhold their business or services from the struck employer . In this respect there is no
distinction between lawful primary picketing and unlawful secondary picketing proscribed
by Section 8 (b) (4) (A)." International Brotherhood of Teamsters, etc. (Schultz
Refrigerated Service, Inc.), supra.
SAILORS' UNION OF THE PACIFIC 549
docks but at that of Moore, while the picketing was going on in front
of the Moore premises.
In the usual case, the situs of a labor dispute is the premises of the
primary employer. Picketing of the premises is also picketing of the
sites; the test of legality of picketing is that enunciated by the Board
in the Pure oil T and Ryan Construction 8 cases. But in some cases the
situs of the dispute may not be limited to a fixed location; it may be
ambulatory. Thus in the Schultz 9 case, a majority of the Board held
that the truck upon which a truck driver worked was the situs of a
labor dispute between him and the owner of the truck. Similarly,.
we hold in the present case that, as the Phopho was the place of em-
ployment of the seamen, it was the sitnls of the dispute between Samsoc
and the Respondent over working conditions aboard that vessel.
When the situs is ambulatory, it may come to rest temporarily at the
premises of another employer. The perplexing question is : Does the
right to picket follow the situs while it is stationed at the premises of
a secondary employer, when the only way to picket that sites is in front
of the secondary employer's premises? Admittedly, no easy answer
is possible. Essentially the problem is one of balancing the right of
a union to picket at the site of its dispute as against the.right of a
secondary employer to be free from picketing in a controversy in which
it is not directly involved.
When a secondary employer is harboring the sites of a dispute be-
tween a union and a primary employer, the right of neither the union
to picket nor of the secondary employer to be free from picketing can
be absolute. The enmeshing of premises and situs qualifies both
rights.10 In the kind of situation that exists in this case, we believe
that picketing of the premises of a secondary employer is primary
if it meets the following conditions : (a) The picketing is strictly lim-
ited to times when the sites of dispute is located on the secondary em-
ployer's premises;- (b) at the time of the picketing the primary em-
ployer is engaged in its normal business at the sites; 12 (c) the picket-
ting is limited to places reasonably close to the location of the situs;
and (d) the picketing discloses clearly that the dispute is with the
primary employer. All these conditions were met in the present case.
6 Samsoc did not have a dock of its own in any part of the United States.
4 Footnote 2, supra.
8 Footnote 2, supra.
B Footnote 2, supra.
11 See International Brotherhood of Electrical Workers v. N. L. R. B., 181 F. 2d 34
(C. A. 2).
11 International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, Drivers Local Union No. 807, AFL (Sterling Beverages_ Inc.), 90 NLRB 401,
emphasizes the importance of this factor.
'International Brotherhood of Teamsters, etc. (Schultz Refrigerated Service Inc,),
supra.
550 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(a) During the entire period of the picketing the Phopho was
tied up at a dock in the Moore shipyard.
(b) Under its contract with Samsoc, Moore agreed to permit the
former to put a crew on board the Phopho for training purposes dur-
ing the last 2 weeks before the vessel's delivery to Samsoc. At the
time the picketing started on February 17, 1950, 90 percent of the
conversion job had been completed, practically the entire crew had
been hired," the ship's oil bunkers had been filled, and other stores were
shortly to be put aboard. The various members of the crew commenced
work as soon as they reported aboard the Phopho. Those in the deck
department did painting and cleaning up ; those in the steward's de-
partment, cooking and cleaning up ; and those in the engine depart-
ment, oiling and cleaning up. The crew were thus getting the ship
ready for sea. They were on board to serve the purposes of Samsoc,
the Phopho's owners, and not Moore. The normal business of a ship
does not only begin with its departure on a scheduled voyage. The
multitudinous steps of preparation, including hiring and training a
crew and putting stores aboard, are as much a part of the normal busi-
ness of a ship as the voyage itself 14 We find, therefore, that during
the entire. period of the picketing, the Phopho was engaged in its
normal business.15
(c) Before placing its pickets outside the entrance to the Moore
shipyard, the Respondent Union asked, but was refused, permission
to place its pickets at the dock where the Phopho was tied up. The
Respondent therefore posted its pickets at the yard entrance which, as
the parties stipulated, was as close to the Phopho as they could get
under the circumstances.
(d) Finally, by its picketing and other conduct the Respondent
was scrupulously careful to indicate that its dispute was solely with
the primary employer, the owners of the Phopho. Thus the signs
carried by the pickets said only that the Phopho was unfair to the
Respondent. The Phopho and not Moore was declared "hot." Sin7i-
larly, in asking cooperation of other unions, the Respondent clearly
13 Unlicensed crew members were hired in New York . They reported on board ship
within 3 days of hiring.
'' Cf. 46 U. S . C. A. § 1303.
15 Compare LeBus v. Pacific Coast Maritime Assn., etc., 23 LRRM 2027 (D. C. La.),
in which a Federal district court granted an injunction against seamen's unions which
were picketing shipyards where owners against whom the seamen were on strike had
delivered ships for repair , preparatory to their return to the Maritime Commission from
which the ships had been chartered . There was no attempt to put crews aboard the
ships during their stay in the shipyards . A Trial Examiner subsequently found that the
unions had violated Section 8 ( b) (4) (A) by their picketing of the shipyards . No excep-
tions to the Intermediate Report were filed , and the Board therefore under Section 10 (c)
of the amended Act adopted the Intermediate Report without comment ( Cases Nos.
15-CC-10, etc. Board Order isued April 26, 1949).
SAILORS' UNION OF THE PACIFIC 551
revealed that its dispute was with the Phopho. Finally, Moore's own
witnesses admitted that no attempt was made to interfere with other
work in progress in the Moore yard.
We believe that our dissenting colleagues' expressions of alarm are
based on a misunderstanding of our decision. We are not holding, as
the dissenters seem to think, that a union which has a dispute with a
shipowner over working conditions of seamen aboard a ship may
lawfully picket the premises of an independent shipyard to which
the shipowner has delivered his vessel for overhaul and repair. We
are only holding that, if a shipyard permits the owner of a vessel to
use its dock for the purpose of readying the ship for its regular voy-
age by hiring and training a crew and putting stores aboard ship, a
union representing seamen may then, within the careful limitations
laid down in this decision, lawfully picket in front of the shipyard
premises to advertise its dispute with the shipowner.
It. is true, of course, that the Plzopho was delivered to the Moore
yard for conversion into a. bulk gypsum carrier. But Moore in its
contract agreed that "During the last two weeks, . . . [the Ph,oph,o's]
Owner shall have the right to put a crew on board the vessel for train-
ing purposes, provided, however, that such crew shall not interfere
in any way with the work of conversion." Samsoc (the Ph,opho's
owner) availed itself of this contract privilege. When it did, Moore
and Samsoc were simultaneously engaged in their separate businesses
in the Moore yard.
The dissent finds it "logically" difficult to believe in this duality.
We find no such difficulty. Nor did Moore, apparently, when it in-
cluded the above clause in its contract. Indeed, from a practical stand-
point, there was a strong reason why Samsoc should ready the ship
for sea while the conversion work was still going on. A laid-up ship
does not earn money. By completing training and preparation for
sea while the ship was still undergoing conversion, the lay-up time
was reduced, with a consequent money saving to owner Samsoc.
Under the circumstances of this case, we therefore find that the
picketing practice followed by the Respondent was primary and not
secondary and therefore did not violate Section 8 (b) (4) (A) of
the Act.
We agree with the Trial Examiner that the Respondent's other
activities, its "hot" letters and appeals for cooperation to Moore em-
ployees and other unions, invited action only at the sinus of dispute.
Therefore under the holding in the Pure Oil case,16 they must be con-
16 Footnote 2, supra . Newspaper and Mail Deliverers ' Union of New York and Vicinity
( Interborough News Company ), 90 NLRB 2135.
552 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sidered as primary action 17 Accordingly, we shall dismiss the com-
plaint in its entirety. %
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the complaint herein against
Sailors' Union of the Pacific, AFL, be, and it hereby is, dismissed.
MEMBERS REYNOLDS and MURDOCK, dissenting :
We cannot agree with the conclusion of our colleagues in this case
that the Respondent Union has engaged only in "primary" picketing
at the premises of the Moore Dry Dock Company.
The Board has heretofore held, and we believe justifiably so, that a
union may lawfully picket a dock owned and normally operated by
an employer with which the union has a legitimate labor dispute, de-
spite the incidental interference with the business of the secondary
employer 18 Similarly, the Board has held that picketing the premises
of a primary employer could not be called "secondary," even though
such picketing may have affected the operations of a neutral contrac-
tor, temporarily located on those premisesl9 In the recent Schultz'
case Z0 the Board was confronted, for the first time, with a. primary
employer whose business operations moved on wheels from one loca-
tion to another. The union in that case was careful to identify its
picketing in time and place with the actual functioning of the primary
employer's trucking operations by limiting such picketing to the im-
mediate vicinity of Schultz' trucks, the situs of the labor dispute.
After most careful deliberations, a majority of the Board held on the
jiarrow facts there present that the union's picketing activities were
:so closely identified with the primary employer's normal business of
transportation to warrant the conclusion that the picketing was pri-
mary. The majority reached this conclusion despite the contiguity
of Schultz' trucks to a secondary employer's premises because the
picketing occurred immediately about the trucks, which were on a pub-
lic street rather than on the secondary employer' s premises.
17 No exceptions were filed to the Trial Examiner' s rejection of the Respondent's second
defense, viz ., that Samsoc was not an "employer"' or a "person" within the meaning of
Section 8 (b) (4) (A). In view of the fact that no exceptions have been filed, we adopt
the Trial Examiner' s disposition of this argument without considering its merits.
18 Oil Workers International Union, Local Union 8¢6 ( CIO) (The Pure Oil Company),
84 NLRB 315.
19 United Electrical, Radio and Machine Workers of America , et al. (Ryan Construction
Corporation ), 85 NLRB 417.
20 International Brotherhood of Teamsters , Chauffeurs , Warehousemen and Helpers of
America, Truck Drivers and Chauffeurs, Local Union No. 807 ( Schultz Refrigerated Service,
Inc.), 87 NLRB 502.
SAILORS' UNION OF THE PACIFIC 553
To go further than the majority's decision in that case, as our col-
leagues do here, strikes us as a serious divergence from the Board's'
previous decisions interpreting Section 8 (b) (4) (A) and the legisla=
tive history upon which they are largely predicated. The Board has
elsewhere made clear that that legislative history reveals a con-
gressional intent to protect neutral employers from the effects of labor
disputes in which they are not directly involved. Obviously, as the
cases cited above indicate, a neutral employer may be subjected to a
certain amount of incidental interference during the course of a un-
ion's lawful picketing of a primary employer with which the neutral
employer does business. But we cannot stretch the applicable pro-
visions of the Act to the extent necessary to find that the interference
with Moore's drydock business in this case by the picketing of its
premises is merely an incident to the dispute between the Respondent
Union and Samsoc, the owner of the Phopho.
In the Sterling Beverages case 21 the majority, finding picketing at
a secondary employer's premises to be secondary conduct, said : "The
line must be drawn somewhere, and this is where we draw it." In that
case the union had picketed in front of a secondary employer's prem-
ises at times when the trucks of the primary employer were absent
from those premises. Moreover, and as Board Member Murdock indi-
cated in a footnote, equally important, the picket parading before
the neutral employer's business premises did so without any visible
connection between that intrinsic sign of a labor dispute and its situ's,
thus identifying the picketing not with a mobile truck of the primary
employer, which had passed through a gate and may or may not have
been located somewhere in the interior' of the secondary employer's
premises, but rather with the actual functioning of the secondary em-
ployer's business. The Schultz decision emphasized that the picketing
on Schultz' trucks was deemed primary because, among other reasons,
it was "strictly limited in time and area" to those trucks. The impor-
tance of this dual criterion of primary picketing was further em-
phasized by the finding of the majority in that case that the picketing
occurred "within the immediate vicinity" of Schultz' trucks. It was
on the basis of this emphatic language that the distinction between
primary and secondary picketing in the transportation industry was
made in the Sterling Beverages case.
We had thought that the line drawn there, limiting the picketing
of a mobile sinus to the facts of the Schultz case, represented the very
limit of interference with a secondary employer's operations law-
fully permissible under Section 8 (b) (4) (A). We do not be-
"International Brotherhood of Teamsters , Chauffeurs, Warehousemen and Helvers of
America, Drivers Local Union No. 807, AFL ( Sterling Beverages , Inc.), 90 NLRB 401.
929979-51-vol. 92-37
554 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
lieve that this Board should interpret Section 8 (b) (4) (A) so as to
make virtually ineffective in the transportation industry the prohibi-
tion contained in that Section against secondary boycotts . For it now
appears that our colleagues are drawing another line, one which goes
far beyond the moving sites theory of the Schultz decision . No longer
is it necessary that a union picket within the immrediate vicinity of
the movable sites. It is enough , say the majority here , if the picket,
ing occurs "reasonably close" to the sites of the labor dispute. But
what does that term mean on the facts in this case ? First, it clearly
means in the majority's .view that it is immaterial that the premises of
the Moore Drydock Company directly intervene between the picket
and the Phoph o, the alleged object of the ' picketing . Second, it ap-
parently does not mean a reasonably close geographical location which
one would think was its normal meaning. The pickets were "reason-
ably close" to the sites in this case because, the majority explain, the
Union was not given permission to picket the Phopho at its dock and
the pickets were therefore as close to the sites as they could get under
the circumstances . Assuming, arguendo , the Union had been given
permission to picket the Phopiwo at its dock, but nonetheless picketed
in front of Moore's premises , would that factor make its picketing
secondary rather than primary ? If it would , then the present criterion
of primary picketing- under Section 8 ( b) (4) (A) rests indeed upon
an infirm basis capable of the most loose application. For it would
mean that employers and labor organizations by juggling property or
other rights could convert the very picketing that would otherwise
be held lawful into unlawful conduct. It would mean that the defini-
tion of primary picketing had shifted from an exact analysis of the
means used and the location of the pickets to reliance upon "if and but
for" circumstances that should not rightly affect our decision. In our
view this Board would be following a far safer and wiser course by
adhering to rules of sufficient certainty so that employers , labor or-
ganizations , and employees would be aware of the boundaries of pri-
mary picketing, regardless of the attitudes and positions of the parties
involved.
Our colleagues rely in part upon the Pure Oil and R jan Construc-
tion cases , discussed above. Even a cursory examination of those
cases, however, reveals that the facts there present are totally dissimi-
lar from those in the instant case. In both of those cases the 'premises.
picketed by the union were owned and operated by the primary em-
ployer. The Board even there was faced with a difficult question of
interpreting Section 8 (b) (4) (A) because a secondary employer had
somehow become enmeshed with the business of the struck employer
and was - to be found on the latter 's premises . Nevertheless, as the
SAILORS', UNION OF THE. PACIFIC •555
Union was unquestionably picketing the premises of the employer
with which it had a legitimate labor dispute, the Board held that the
picketing was primary and that the incidental interference with the
operations of the secondary employer could not convert lawful activity
into unlawful conduct. But certainly those cases cannot be used to
support the reverse factual situation present in this case. Moore, the
secondary employer, is the owner and operator of the premises in front
of which the union picket walks. Here, unlike the Pwre Oil and
Ryan Construction cases, it is the primary employer (assuming, with-
out conceding, that the latter is *engaged in its normal business of
transportation) which by the location of its ship in drydock is tem-
porarily on the secondary employer's (Moore's) premises. Despite
the reverse factual situations, however, the majority by a curious com-
mingling of these cases and the Schultz case reaches the conclusion
that the picketing of a secondary employer's premises is lawful, pri-
mary conduct. But no amount of rationalization can becloud the
inescapable fact that Moore, the secondary employer, is being subject
to direct and immediate pressure of picketing not because it has sought
out and enmeshed itself in the operations of a struck employer, not
because its premises are geographically merged for business purposes
with an employer involved in a labor dispute, but merely because it is
engaged on its own premises in its normal business of repairing a ship
belonging to the struck employer. We should think the most flexible
imagination would be taxed to call such interference with Moore's
business "incidental."
The majority find that the Phopho was engaged in its normal busi-
ness of transportation during the entire period of the picketing. In
support of this finding they recite the facts that the conversion job
was 90 percent completed and seamen, employed by Samsoc, the
owner of the Phopho, were already on board the ship. Nevertheless,
the record is clear that the Phopho was on Moore's premises for the
sole purpose of undergoing major reconstruction work, including
certain fundamental changes in the basic design and character of the
ship. Obviously, a repair job of this nature is not the normal type of
repair to which every ship must be subjected as an incident to the
business of transportation. It is not one of the "multitudinous steps
of preparation" that ordinarily precede a voyage by sea. In our
opinion, while the Phopho was on Moore's premises for this purpose,
which, the majority concede, was not completed at the time of the
picketing, it must be considered as an integral part of Moore's drydock
business rather than an independent transportation enterprise of
Samsoc. We do not believe it can logically be said to be both. We
therefore regard as immaterial the fact that certain employees of.
5 56- DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Samsoc were on board the ship for training purposes in accordance
with the agreement between Moore and Samsoc. This provision of
the agreement does not negative the undisputed control and authority
over the ship which the contract otherwise reposed in Moore.
The majority hold, however, that Moore in granting Samsoc permis-
sion to train a crew aboard the Phopho in the last stages of that ship's
conversion thereby forfeited all right to protection under Section 8
(b) (4) (A). We think such an interpretation of that section of the
amended Act puts a severe and unreasonable restraint upon the opera-
tions of a secondary employer whenever that employer, as a gesture
of cooperation, extends the slightest contract privilege to a primary
employer with which it does business at a time when neither is en-
gaged in a labor dispute. By extending the above small courtesy to
Samsoc, Moore made unnecessary an additional loss of time in ready-
ing the ship for its voyage that would be entailed if the work were
postponed until after the Phopho left Moore's drydock. An earlier
voyage for the Phopho, made possible by Moore's action, actually
facilitated the free flow of commerce which this Act. is designed to
protect and encourage; but the effect of the decision of the majority
will be to hamper the achievement of such objectives. The insig-
nificance of the right gained by Samsoc through the permissive clause,.
insofar as its effect on the conversion project is concerned, is empha-
sized by the further provision immediately following that the presence
of the crew on the Phopho could not in any way interfere with the
work of the conversion. Thus, it is clear to us that Moore did not
relinquish a scintilla of control over the ship, as a corollary, that
Samsoc was not engaged in its normal business of transportation.
For these reasons we conclude that the picketing of Moore's premises
by the Respondent Union for the purpose of inducing or encouraging
the employees of Moore to refuse to work, with an object, among
others, to force Moore to cease doing business with Samsoc, is second-
ary conduct proscribed by Section 8 (b) (4) (A) .22
INTERMEDIATE REPORT
Mr. Clayton 0. Rost, for the General Counsel.
Roos & Jennings, of San Francisco, Calif., by Mr. John Paul Jennings, for the
Respondent.
Brobeck, Phleger & Harrison, of San Francisco, Calif., by Mr. Richard Ernst,
for the Charging Party.
STATEMENT OF THE CASE
Upon an amended charge, filed March 2, 1950, by Moore Dry Dock Company,
herein called Moore, the General Counsel of the National Labor Relations Board,
n We reserve judgment on the issue disposed of in footnote 1 of the majority opinion
concerning the power of the Board to permit amendments to the complaint on motion of
parties othgr than the General Counsel.
SAILORS' 'UNION OF THE PACIFIC 557
by the Regional Director for the Twentieth Region (San Francisco, California),
issued his complaint dated March 13, 1950, against Sailors' Union of the Pacific,
AFL, herein called the Respondent, alleging that the Respondent had engaged in
and was engaging in unfair labor practices within the meaning of Section 8 (b)
(4) (A) and Section 2 (6) and (7) of the National Labor Relations Act, as
amended June 23, 1947 (61 Stat. 136 et seq.), herein called Act.
With respect to the unfair labor practices, the complaint alleged in substance
that since on or about February 17, 1950, the Respondent induced and encouraged
employees of Moore to engage in a strike or concerted refusal in the course of
their employment to perform services for Moore in connection with the conversion
into a bulk gypsum carrier of the S. S. Phoplso, a vessel owned by Compania
Maritima Samsoc, Limitada, S. A., herein called Samsoc, an object thereof being to
force or require Moore to cease doing business with Samsoc.
Copies of the complaint accompanied by a notice of hearing thereon were duly
served upon the Respondent.
On April 3, 1950, the Respondent served and filed its answer in which it denied
all allegations of the complaint attributing to it the commission of unfair labor
practices.
After the filing of the amended charge, but before issuance of the complaint,
the Regional Director filed in the United States District Court for the Northern
District of California, Southern Division, a petition for injunction pursuant to
the provisions of Section 10 (1) of the Act' Following a hearing, the court on
March 14, 1950, issued an order enjoining and restraining the Respondent, pend-
ing the final adjudication of this matter by the Board, from engaging in the con-
duct which is alleged in the complaint to constitute an unfair labor practice.
On April 10, 1950, all parties to this proceeding entered into a written stipula-
tion for the submission of the issues to a Trial Examiner, without a hearing for
the taking of testimony. The parties agreed that competent witnesses, if called
before the Trial Examiner, would testify to certain facts and identify certain
exhibits as set out in the stipulation ; that such agreed facts and exhibits, to-
gether with the testimony of witnesses contained in the official reporter's tran-
script of the hearing before the court in the Section 10 (1) injunction proceeding,
were to constitute the entire record in this case; and that on the basis of the
record as stipulated, a duly designated Trial Examiner was to issue his Inter-
mediate Report making his findings of fact, conclusions of law, and recom-
mended order, pursuant to the provisions of Section 203.45 of the Board's Rules
and Regulations, in the same manner and with the same force and effect as if
he had heard the evidence. It was further agreed that all proceedings following
the issuance of the Trial Examiner's Intermediate Report based upon the stipu-
lated record were to be controlled by the provisions of the Board's Rules and
Regulations, Section 203.45 to 203.51, inclusive. The right to argue the relevancy,
materiality, or competency of any of the evidence agreed to in the stipulation,
either in writing or during oral argument before the Trial Examiner or the Board,
was expressly reserved by the parties.
Pursuant to notice a hearing was held at San Francisco, California, on May 4,
1950, before Arthur Leff, the undersigned Trial Examiner duly designated by the
Chief Trial Examiner, for the purpose of affording all parties an opportunity to
present oral argument before the Trial Examiner in support of their respective
positions. All parties were represented by counsel and participated at the oral
argument. During oral argument a motion made by Moore, but not joined in
i The petition was docketed in the court as Case No . 29539, and was entitled Gerald 0.
Brown, Petitioner vs. Sailors' Union of the Pacific, AFL, Respondent.
'558 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by the General Counsel to amend the complaint, by alleging that the Respondent
violated Section 8 (b) (4) (B) in addition to Section 8 (b) (4) (A) was denied.
Opportunity was afforded all parties to file briefs and/or proposed findings and
conclusions of law with the Trial Examiner. Briefs were filed by the General
Counsel, the Respondent, and the charging party, and proposed findings of fact
and conclusions were submitted by Moore.
Upon the entire record in the case, I make the following :
FINDINGS OF FACT
1. COMMERCE : THE BUSINESS OF MOORE
Moore Dry Dock Company is a California corporation with its principal office
and place of business in Oakland, California, where it is engaged in the business
of repairing, constructing, and converting ships, steel erection work, and the
manufacture and repair of industrial machinery. In the course of its business,
Moore annually uses materials shipped to it from outside the State of California,
having a value in excess of $300,000. The-value of its work in constructing ships
exceeds $1,000,000 annually. The ships repaired, converted, and constructed by
Moore are instrumentalities of commerce to, from, and between the United States
and foreign countries and among various States in the United States. It is
found that Moore is engaged in commerce, and that its operations affect com-
merce, within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
. Sailors' Union of the Pacific, affiliated with the American Federation of Labor,
is a labor organization within the meaning of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
Samsoc is a corporation organized under the laws of the Republic of Panama.
A majority of its stock is owned by Greek nationals and over a third by two
United States citizens. Samsoc is engaged in operating tramp ships in world-
wide trade. Among its vessels is the Panamanian registered S. S. Phopho, with
which we are alone concerned in this proceeding. Samsoc has no office, pier,
or other place of business in the State of California, nor, so far as the record
discloses, elsewhere in the United States, but is represented in the State of
California by an agent, Hermes Steamship Agency, Inc.
In 1949, Samsoc entered into a 6-year contract with the Kaiser Gypsum Com-
pany for the carriage of gypsum from the San Marcos Island, Mexico, to Kaiser
plants at Redwood City and Long Beach, California. The carriage of gypsum
between San Marcos Islands and California ports had traditionally been handled
by American ships employing American crews with American wage rates and
conditions. Since 1946 the gypsum run had been handled for Kaiser by the
vessel Permanente Silverbow, which was operated by Permanente Steamship
Company, a subsidiary of Henry Kaiser Enterprises. Permanente is a party to
a collective bargaining contract with the Respondent covering wages, hours,
and working conditions on that vessel. The contract between Kaiser and Samsoc
contemplated that the Permanente Silverbow would be taken off the gypsum run
and replaced on that run by the Phopho which would carry all, or substantially
all, the gypsum for Kaiser.
The S. S. Phopho was at that time an ordinary liberty cargo vessel. To make
it usable for the gypsum trade, it became necessary to convert the ship into
SAILORS' UNION OF THE PACIFIC 559
a self-unloading bulk gypsum carrier. For that purpose Samsoc entered into
a contract with Moore on November 21, 1949. The conversion contract called
for Moore to perform major reconstruction work on the ship, including certain
fundamental changes in the basic design and character of the ship within
the framework of its existing hull and propulsion equipment ; elimination of
ordinary cargo handling equipment ; and the installation of special equipment for
the discharge of gypsum . The agreement called upon Moore to turn the converted
ship back to Samsoc not later than February 15, 1950, but that time limit was
subsequently extended to February 28, 1950. The agreement also provided,
inter alia , that during the last 2 weeks before delivery, Samsoc was to have the
right to place a crew on board the vessel for training purposes.
The S. S. Phopho entered San Francisco Bay under her own power in Novem-
ber 1949, and moved to the Moore yard where it was "delivered" to Moore to
undergo the conversion described above. When the Phopho arrived at the Moore
yard, all officers and crew members left the vessel with the exception of the second
officer and steward, who remained with the vessel to represent Samsoc and pro-
tect its property , and two crew members who were obliged to remain on the ship
because of orders from the United States Immigration Service. At the Moore
yard, the Phopho was tied to a pier jutting out into the estuary. While work
progressed on the conversion contract the vessel remained afloat, with workmen
boarding the ship over gangplanks leading from the Moore premises . By Febru-
ary 17 , 1950, when picketing began, the conversion work on the Phopho was more
than 90 percent completed , less than 10 days work remaining . On that particular
date the condition of. the Phopho was such that it could not have been used
either . for carrying gypsum or for carrying other cargo . This was because the
conversion work had not been completed but had been carried on so far as to
make the ship of no use in its former capacity . Nor could the Phopho on that
particular date have moved under its own power . The reason for that was that
certain essential engine parts had been removed on February 10, 1950, to enable
Moore to perform work on them , and these parts were not actually returned to
the ship until after the granting of the court injunction . It appears , however,
that the members of the Phopho 's crew could have placed the engine in working
order if the parts had been returned.
Before picketing began on February 17, Samsoc had started preparations for
its initial journey as a gypsum carrier . Samsoc began hiring a new crew in
January 1950 , and by February 17 a substantial portion of the crew had already
been employed . ' All unlicensed crew members were hired in New York and all
were nationals of Greece with the exception of one oiler who was a national of
Columbia . The dates of hiring were as follows :
December. 6, 1949________ Master purser.
January 16 , 1950_________ Chief engineer , first assistant engineer.
January 120 , 1950_________ Third officer.
January 30, 1950_________ Second assistant engineer , one oiler , one galley-
man.
February 3, 1950_________ Boatswain.
February 10, 1950________ Third assistant engineer.
February 15, 1950_ _______ Three oilers , one fireman.
February 16, 1950_______ One fireman.
February 17, 1950__ ______ Chief engineer , one cook , one messman, seven
seamen.
February 21, 1950________ One messman.
560 DECISIONS -OF NATIONAL LABOR RELATIONS BOARD
Each of the crew members so hired reported on board the Phopho within 3
days of the date of his hiring, and thereafter remained on board that vessel.
From the time the various crew members reported , they began working on the
ship. Those in the deck department did painting and cleaning up ; .those in the
steward's department , cooking and cleaning up; and those in the engine depart-
ment, oiling and cleaning up. In further preparation for its voyage , bunkers
of oil were received aboard the Phopho on February 15, 1950.
The wage scale for crew members hired on the Phopho was substantially less
than half that provided for under the contract between the Permanente Steam-
ship Company and the Respondent covering seamen on the Permanente Silverbow.
Thus, for example , able-bodied seamen on the Silverbow were paid $261.50 a
month ; on the Phopho , $110 a month . The boatswain on the Silverbow was
paid $317.50 a month ; on the Phopho, $120 a month. Overtime rates on the
Silverbow were from $1.52 to $1.90 an hour; on the Phopho 50 cents an hour
over 44 hours a week.
B. The Respondent 's dispute with Samsoc
In the early part of 1950 , Harry E. Lundeberg , the Respondent 's secretary-
treasurer , learned of the proposed removal of the Permanente Silverbow from.
the gypsum run, and of its replacement by the Phopho . He also learned of the
6-year contract between Samsoc and Kaiser and of the manning of the Phopho
with a crew brought in from New York . On February 3, 1950, Lundeberg wrote
to John Cosmas , Samsoc's president and the president also of Hermes Steamship
Agency, Inc., Samsoc's San Francisco port representative and the operator of
all Samsoc owned ships . Lundeberg in his letter called attention to the fact
that in the past gypsum had been carried to American ports in American bottoms.
He pointed out that if the Phopho moved into this run, it would have the effect
of laying off American seamen who had depended on this work for years.
Lundeberg requested Cosmas to meet with the Respondent for the purpose of
negotiating an agreement covering the deck, engine , and steward's departments
of the Phopho.
On February 16, 1950, a meeting was held between representatives of Samsoc.
and the Respondent . Samsoc declined to accede to the Respondent's request
that it recognize and bargain with the Respondent as the exclusive representative
of the unlicensed employees on the Phopho . Thereupon , the Respondent-in the
words of Lundeberg-"proceeded by declaring the S. S. Phopho unfair to the
American seamen affiliated with the American Federation of Labor." And on
the following day, the Respondent began its picketing activities , more fully
described below.
The record does not reveal whether the Respondent had been actually desig-
nated to represent any members of the .Phopho crew on the date the bargaining
demand was made. It appears , however, that sometime during the month of
February 1950-presumably after the picketing began-a majority of the seamen
employed on the Phopho petitioned the Respondent to bargain for them collec-
tively. On February 24, 1950, the Respondent filed with the Twentieth Regional
Office of the Board a petition to be certified as the representative of the unlicensed
employees aboard the Phopho ( Case No. 20-RC-809 ). In support of its petition,
the Respondent presented designations bearing the signatures of 13 of the
unlicensed crew members of the Phopho . The petition was administratively
dismissed by the Board ' s Regional Director on April 3 , 1950. The reason
assigned was that further proceedings were not warranted " inasmuch . as" the
internal economy of a vessel of foreign registry and ownership is involved."
SAILORS' UNION OF THE PACIFIC 561
Upon appeal, the Board sustained the action of the Regional Director upon the
ground that "upon the facts presently existing in this case, it does not appear
that the Board has jurisdiction over the Employer [Samsoc]."
.C. The specific conduct of the Respondent claimed to be violative of Section 8
(b) (4) (A)
On the morning of February 17, 1950, six pickets arrived at the entrance to
the Moore shipyard and began to picket in front of the main gate. They carried
placards reading, "S. S. Phopho unfair to the Sailors' Union of the Pacific,
A. F. L." The selection. of that site for the purposes of picketing was not a
matter of the Respondent's 'choice. It is conceded that the Respondent requested
Moore both orally and in writing for permission to place its pickets at the
particular dock in the Moore yard where the Plcopho was being converted.
Moore, however, refused access to its premises for the requested purpose. And
the picketing before the gate at the Moore yard was as close to the Phopho as
the Respondent's pickets could approach under the circumstances. The picketing,
which was admittedly instituted, directed, and authorized by the Respondent,
continued from February 17 to March 14, 1950. On the latter date, it was
discontinued in compliance with the court injunction order adverted to above.
According to the testimony of Lundeberg,
The purpose of the picket line [was] to get an agreement with the
operators of the Phopho to establish American wages and conditions on that
particular ship when she goes on that run between Marcos and here, due
to the fact that it is an exclusive American run, and we can't afford, as an
American trade union, to allow people to use other flags on a run to beat
the conditions that we took so many years to gain, and it not only puts our
people, out of work, it cuts wages about two-thirds of what we have.
The Respondent did not confine its appeal to picketing. The employees of
Moore are represented for the purposes of collective bargaining by East Bay
Union of Machinists, CIO, Local 1304, and by Bay Cities Metal Trades Council,
A. F. of L., an organization of various local ship repair and construction craft
unions, including, among others, local unions of pipe fitters, welders, boiler-
makers, stage riggers, shipwrights, and shipfitters. On February 16, when the
Respondent determined to declare the. Phopho unfair, it addressed letters
identical in substance to the secretary of the Metal Trades Council, the secretary
of the local Boilermakers Union affiliated with the Council, and the secretary of
the East Bay Machinists Union. The letters read :
DEAR SIR' AND BROTHER :
This is to advise you that as of 8 a. in. Friday, February 17, 1950 the
.Sailors' Union of the Pacific declares the S. S. Phopho, which is now in
Moore's shipyard and being converted to carry gypsum between San Marcos
Island and Long Beach, California, hot for the following reasons :
This particular trade has been taken care of, ever since it has been devel-
oped, in American-Bottom vessels which were under contract to the Sailors
Union of the Pacific. At the present time, the Permanente Steamship Com-
pany, which is a subsidiary of Henry Kaiser Enterprises, is carrying on this
trade. This company has a contract with the Sailors Union.
About 6 months ago, they chartered the S. S. Santa Cruz Cement, which
is also under contract to this organization, to take care of the cement trade
between San Francisco and Honolulu, and the Permanente Silverbow was in
the Gypsum run between San Marcos Island and Long Beach.
562 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Now that this S. S. Phopho is practically ready to leave the shipyard and
enter this trade, the Permanente people have turned the S. S. Santa Cruz
Cement back to that company and they intend to put on the S. S. Phopho
which is owned by a Greek who is a naturalized American citizen, whose
name is John Cosmas, and he has his vessel registered under the Panamanian
flag and a Greek crew aboard.
Wages and conditions are far below the American standard and we have
tried several times to persuade Mr. Cosmas to make a contract with us for this
vessel. He has refused to do so, giving us a lot of double talk, stating that
in due time he expects to get some American ships and only then will he deal
with us in American contracts. This is a lot of baloney as it is our opinion
that he has no intention whatsoever of ever dealing with us and that he
intends to operate this vessel with whoever he can pick up and operate as a
non-union vessel.
This vessel has been at Moore's for the past 2 months or more, being con-
verted for this particular trade, and she is about 1 eady now to leave the
yard, so you can understand our position in this situation. Under the cir-
cumstances, we have no other alternative than to. declare this vessel hot,
Your cooperation in this matter will, therefore, be greatly appreciated.
Fraternally yours,
HARRY JOHNSON,
Assistant Secretary.
On February 17, 1950, Harry Johnson and Ed Turner, representing the Re-
spondent , visited the Moore yard, and advised the business agents of the union
locals representing shipfitters, welders, boilermakers, and shipwrights that the
Phopho had been declared "hot" by the Respondent because of its dispute with
the operator. The cooperation of these locals was requested. Their efforts met
with some success. There is evidence that on February 17, 1950, the business
agent of the Welders' local advised members of his union to remove their gear
from the Phopho and to perform no work on the "hot" ship. There is evidence
that a group of welders who had been sent to the Phopho left the yard soon after
the whistle blew on the first day of the picketing. When asked why, they said,
"Well, our business agent told us we couldn't work on the ship." And there is
also evidence that on February 20, the same business agent "pulled" from their
jobs members of his local who were 'still willing to work aboard the vessel.
Between February 17 and February •20, there was a partial cessation of work
by Moore employees assigned to work tasks on the Phopho. Some employees,
however, continued with their work.
On February 20, representatives of the Respondent appeared at a meeting of
the Bay Cities Metal Trades Council. Describing the dispute between the Re-
spondent and the operator of the Phopho, they requested the Council's cooperation.
By unanimous vote, the Council went on record as supporting the Respondent in
its dispute with the Ph.opho. The action of the Council was reported in the
February 22 issue of a publication called the "Labor Review." At various times
after its issuance , while the picketing was in progress, copies of this publication
were distributed by the Respondent's representatives to employees of Moore who
were entering the yard for the purpose of performing their work.
On February 21, all work by Moore employees ceased on board the Phopho.
On a number of occasions thereafter, Moore requested the local unions to furnish
men to work on the Phopho. The requests were not complied with. However,
the local unions continued to supply men to work on Moore's other yard opera-
SAILORS' UNION OF THE PACIFIC 563
tions. Except for the work on the Phopho, Moore employees continued at work
in their regular manner throughout the course of the picketing.
While the picketing was in progress the seamen on the Phopho remained aboard
the vessel. Under their shipping articles, the seamen were prohibited from
taking action of.any kind against the master of the ship. The shipping articles
provide for the resolution of all disputes relating to wages or working conditions
on the vessel by competent authorities of the Republic of Panama under Panama
law. Lundeberg testified that the seamen were unable to leave the vessel, because
the captain of the ship held their passports and because under Panamanian law
they would have been subject to criminal penalties for quitting the vessel.
Picketing by the Respondent ceased on March 14, 1950, with the service upon
the Respondent of a copy of the court injunction order. On March 15, employees
of Moore assigned to the Phopho job resumed their work on that ship. During
the following week, food supplies and machine stores necessary for its voyage
were delivered on board the Phopho. On March 24, the conversion work having
been completed, the Phopho was redelivered to Samsoc, and on the following day,
it sailed from San Francisco Bay.
D. Conclusions
This case is concerned only with an alleged violation of Section 8 (b) (4) (A)
by the Sailors' Union of the Pacific, alone named a party respondent. The unions
representing Moore's employees, whose interest in the dispute was clearly sec-
ondary, have not been charged with a violation, and it is therefore unnecessary
to consider whether their activities, as distinguished from those of the Respond-
ent, fell within the statutory proscription. The General Counsel concedes, as
I think he must, that at the times material herein, the Respondent was engaged
in a direct labor dispute with Samsoc with regard to recognition, a contract, and
wages and other conditions of employment for seamen aboard the Phopho.2
But while not questioning in this proceeding the legality of the Respondent's
primary demands upon Samsoc, the General Counsel contends that the methods
the Respondent chose to press them•were such as to reach outside the area of
economic conflict that the law allows into a field of activity forbidden by Section
8 (b) (4) (A). More specifically, the General Counsel complains that the Re-
spondent ran afoul of that section by picketing the Moore yard where work on
the Phopho was being performed, by advising the collective bargaining represent-
atives of Moore's employees that the Phopho was "hot" and requesting their
cooperation, and by distributing to Moore's employees copies of the "Labor
Review" reporting the Bay Cities Metal Trades Council's resolution in support
of the Respondent. These activities, assert the General Counsel and Moore,
constituted illegal inducement and encouragement of Moore's employees within
the meaning of Section 8 (b) (4) (A).
The Respondent, on the other hand, defends its conduct on three fronts. It
contends, first, that in picketing the Phopho at the situs of the primary labor
dispute and in appealing to Moore's employees and others not to enter or work
upon the picketed Phopho, it was doing no more than engaging in primary action
against Samsoc with which it had its direct dispute. It asserts, secondly, that
assuming, arguendo, that its activities were in the nature of a secondary boycott,
2 Moore's position, that the primary labor dispute was between the Respondent and
Kaiser Enterprises and that the Respondent's dispute with Samsoc was merely a secondary
aspect thereof, is found to be based upon strained reasoning not supported by the record
facts.
564 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
they would nevertheless be beyond the reach of Section 8 (b) (4) (A ), because
Samsoc may not in the posture of this particular case be considered another
"employer" or a "person" within the meaning of the section of the Act claimed
to have been violated . It argues , finally, that its peaceful picketing and other
activities were in any event immunized from the thrust of -Section 8 (b) (4) (A),
because they constituted an exercise of the right of free speech protected by
Section 8 ( c) as well as the First Amendment to the Constitution.
The Respondent 's final argument need not detain us now. The Board has
already taken a position adverse to the Respondent on that precise contention
in the Wadsworth Building Company, Inc. case, 81 NLRB 802, a decision to
which I am constrained to adhere. The issues of law in this case principally
revolve about the Respondent 's other two defenses . They will be considered
below in the order mentioned.
1. Did the Respondent engage in permissive primary action by its picketing
and other activities?
It must by now be regarded as well settled that Section 8 (b) (4) (A) is
not to be read as applying to every situation that may appear to fall within
the scope of a broad literal construction of its terms . To give effect to Congress'
intent, the section must be viewed limited to secondary union action and as
excepting from its sweep "the primary means which unions traditionally use to
press their demands upon employees ." The Pure Oil Company, 84 NLRB 315.
So long as a union confines its activities to the area of primary conduct it may
lawfully persuade all persons , including employees of third persons , to withhold
their business or services from the struck or picketed employer . Simply because
picketing has the effect , or is even designed , to induce others to sympathetic
action is not alone decisive on the question of whether it is primary or secondary ;
for that is a characteristic of all picketing , both primary and secondary. As
the Board observed in the Pure Oil case, "any . . . picketing of the employer's
premises is necessarily designed to induce and encourage third persons to cease
doing business with the picketed employer . It does not follow, however, that
such picketing is therefore prescribed by Section 8 (b) (4) (A ) of the Act."
-See also, Ryan Construction Corporation, 85 NLRB 417 ; Schultz Refrigerated
Service , Inc., 87 NLRB 502; Douds v. Metropolitan Federation of Architects,
75 F. Stipp. 672.
With the interpretations already placed by the Board on Section 8 (b) (4) (A),
the General Counsel and the charging party do not quarrel, at least not at
this stage of the proceeding . Where they and the Respondent differ sharply
is on the question of whether the Respondent ' s particular activities here com-
plained of fall beyond or within the borders of the area of permissible primary
conduct that is unaffected by Section 8 (b) (4) (A).
Just where such borders are to be drawn has not to date been marked out by
the Board by any rule of universal application . The Board has properly pre-
ferred to decide each case as it arose on the basis of its own relevant facts.
But in doing so, it has laid down certain guideposts which I believe sufficiently
clear to point the path to decision here. Thus in the Pure Oil case , the Board
held it to be permissible primary action for a union not only to picket in the
immediate vicinity of the premises of the employer principally involved in the
labor dispute , but to implement its picketing by directly appealing to employees
of unconcerned employers who did business with the disputant employer not
to perform services at the picketed premises . In the Ryan Construction Company
case, the Board held it to be primary action for a union to picket an entrance
to a primary employer 's premises that was built and used exclusively for a
SAILORS' UNION OF THE PACIFIC 565
construction project a general contractor was performing for the primary em-
ployer. The Board found the picketing primary because of its nexus with the
primary employer's premises, even though the picketed entrance was not used
by the primary employer's employees and the picketing at that particular point
had the clearly calculated effect of dissuading the general contractor's em-
ployees from performing their usual services on the premises. The Board ap-
parently considered it immaterial that the services being performed by the
general contractor's employees were unrelated to the primary employer's normal
business operations. In the Schultz case, involving an employer in the trans-
portation industry, the Board made clear that the "employer's premises" test
was not an inflexible determinant of primary picketing. What was important,
the Board noted, was that the picketing be "local in point of contact" to the
primary employer's operations directly involved in the labor dispute. In the
case of a "paripatetic employer," whose business has no fixed geographical loca-
tion, the decision indicates, picketing meets the test of primary action if it is
identified "with the actual functioning of the primary employer's business at the
situs of the labor dispute," and is "limited strictly in time and area" to the
vicinity of the vehicles or other necessary instruments of the primary employer's
roving operations.
. The cases adverted to, and others noted in the margin,3 establish by synthesis
the principle that picketing and related appeals for aid will be deemed primary
action, despite their effect, whether anticipated or not, upon employees of un-
concerned employers, where the following elements combine : (a) The action is by
the union directly interested in the dispute; (b) it is directed against the em-
ployer primarily involved, publicizing the primary dispute with that employer ;
and (c) it occurs (or appeals for aid at the location of) the physical premises
of the primary employer, except where the primary employer's business has no
fixed geographical location, in which event the picketing or other appeals.for
aid must be identified in time and place with the actual functioning of the primary
employer's operations at the situs of the labor dispute. Analysis of the cases
in which the Board has predicated a finding of illegal secondary action on the
basis of picketing or related activities will show that in each of them one or more
of the elements noted above was lacking.'
On the basis of the principles already declared by the Board, I am persuaded'
that the Respondent's picketing must be viewed as traditionally primary in char-
acter. The Respondent was engaged in a direct labor dispute with Samsoc
3International Rice Milling Company, 84 NLRB 360 ; Santa Ana Lumber Co., 87
NLRB 937.
4 No attempt will be made here to analyze all such cases . The cases relied upon by
the General Counsel and Moore to support the proposition that the Board at times has
found action at the primary employer ' s premises illegally secondary in character are not
in conflict . Thus, in Langer, 82 NLRB 1028 , the picketing was directed at a general
contractor advertising the general contractor ' s job as unfair , though the dispute was
with a subcontractor . In Watson Company, 80 NLRB 533 , the union engaged in a direct
strike against a neutral employer away from the premises of the primary employer where
the situs of the dispute lay. In Gould & Preisner ( Denver ), 82 NLRB 1195, a building
trades council which included unions not directly involved in the dispute picketed a
general contractor' s job, advertising the entire job as unfair , although the primary dispute
was solely between one of its constituent locals and a subcontractor. In Roanc-Anderson
Co., 82 NLRB G96 , direct strike action was undertaken against a contractor because he
had subcontracted work to a nonunion subcontractor , while no action by picketing or
otherwise was undertaken against the subcontractor . In Montgomery Fair Co. , 82 NLRB:
211, picketing was conducted against a department store advertising the store as unfair,
although the union ' s primary dispute . was with another employer who was engaged iie
•• ntracting work at the store.
566 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
concerning recognition, a contract, and substandard employment conditions
aboard the Phopho. It had a legitimate economic interest in publicizing the facts
of that dispute. Its picketing was in form directed toward that end. The
picketing was at the entrance to Moore's grounds, true, but there was noth-
ing in the pickets' placards or in the accompanying appeals to indicate that the
Respondent was calling on others to cease doing business or performing services
on Moore's property, save to the extent that such business or services might
require the boarding of the picketed Phopho. Bearing in mind that the picketing
of a vessel afloat on navigable waters necessarily must, and traditionally has been,
conducted on the land side; that Moore had denied the Respondent access-to
its property for purposes of placing a picket line immediately adjacent to the
vessel ; and that the picketing was as close to the vessel as the circumstances
permitted-the picketing here must, in fact and in law, be regarded as "local
in point of contact" with the Phopho.
The Phopho was the physical instrumentality utilized by Samsoc to conduct
its business operations, in much the same sense that a plant is the instrumentality
of a manufacturing concern or a truck that of a transport company. For the
seamen on the Phopho it was what an employer's plant or place of business is
to those who work in or out of it; it was the focal point of their employ-
ment relationship, their headquarters, the place where they worked, received
their instructions, and were paid.' It was on the Phopho, moreover, that the
situs of the labor dispute was to be found. There were employed the men whom
the Respondent was seeking to represent, there existed the "unfair" conditions
which the Respondent was protesting, and it was with respect to the wages, hours,
,and working conditions on her that the Respondent was demanding bargaining
and a contract. More than the only effective place where picketing could be
conducted-a factor emphasized in the Schultz decision-picketing at the loca-
tion of the Phopho was the only place where the Respondent could by such means
publicize its dispute; for Samsoc had no office, pier, or other place of business
that could have been reached by the Respondent for that purpose. Contrary
to the contention that has been made, I am unable to find that picketing at that
time and place could have served no purpose whatever other than to appeal to
Moore's employees to cease their conversion work on the vessel. The picketing
served also as a plea for support from Samsoc's employees who were already on
the vessel performing Samsoc's work, as well as an appeal to suppliers of the
Phopho, which had already commenced taking on provisions for its voyage, to
withhold their business and services from the picketed ship. The Respondent's
activities, to be sure, were aimed at preventing the Phopho from sailing. But,
as has been observed, a stoppage or interruption of operations of a struck or
picketed employer is a characteristic design of all picketing, and does not serve
to convert otherwise lawful primary conduct into unlawful secondary action.
The real question here is whether the Respondent's picketing has met the
third element of the test of primary picketing indicated above. I think it has.
If, as I believe reasonable in the particular circumstances of this case, the Phopho
is viewed as the "plant" or "premises" of Samsoc, picketing at the ship's loca-
tion fulfilled the "employer's premises" standard of primary picketing applied
in the Pure-Oil and Ryan cases. But even if a different view be taken, and the
Schultz standard applied, the result reached would be the same. Under the
Schultz test, it is true, more need be shown than that the picketing occurred
5 Cf. Northland Greyhound Lines, Inc., 80 NLRB 288, relied on in the dissenting opinion
in the Schultz case.
SAILORS' UNION OF THE PACIFIC 567
at the "situs of the labor dispute" ; it must also appear that the picketing was
"identified with the actual. functioning of the primary employer' s business" at
that situs. I have weighed carefully the fact, principally stressed by the General
Counsel and Moore, that at the time the picketing began, the Phopho was not
yet in a condition to sail. But I find offsetting considerations, Samsoc was
at the time actually engaged in preparations for the Phopho's voyage ; it had
already hired part of its crew and was in active process of hiring the balance ;
crew members were already at work aboard the ship, fitting it out for its sailing;
and Samsoc had already begun to store on the ship fuel and supplies necessary
for its sailing , which then appeared to be but a week or 10 days in the offing.
I am unable to agree that the business of operating a ship is confined solely
to the carriage of cargo along its trade route. In my view, the fitting out of
a vessel for sailing-including painting, oiling, and cleaning up-the storing of
supplies , and the training of a crew, are as essential, though perhaps not as
profitable , to the operation of the ship and to the actual functioning of its busi-
ness. My conclusion that the Respondent's picketing was identified with the
actual functioning of Samsoc's business is mainly influenced by the fact that
Samsoc's employees were then on board the vessel performing Samsoc's work.
A different situation would have been presented, and a different conclusion
reached, had the record here merely shown picketing of Samsoc's property at
Moore's yard while only Moore's employees were at work on it e
Other arguments advanced by the General Counsel and by Moore are not
found compelling. It is urged that when picketing began, the main operations
being conducted on the Phopho was Moore's conversion work and not Samsoc's
sailing preparations. But merely because another and perhaps more important
business may be functioning at the situs of a labor dispute does not deprive a
union of its right to engage in otherwise appropriate primary activity. The test,
as has been noted, is not whether others may be affected by the picketing, but
whether it is confined to the situs of the primary economic battleground. To hold
otherwise would mean that a ship could seldom if ever be picketed, for a ship -in
port almost always has some other business operation being conducted on or in
conjunction with it. It is argued that the picketing of the Phopho at Moore's yard
was different from other picketing, because the services being provided by Moore
had nothing to do with the normal operation of the Phopho. The answer to that
is to be found in the Ryan Construction case where the Board held that picketing
at the gate of a primary employer did not lose its primary character because the
gate was being used exclusively by construction workers engaged in a project
unconnected with the normal operations of the primary employer's business. It
is contended that the principles established by the Pure Oil, Ryan, and Schultz
cases apply only to strikes or lockout situations, and have no application to labor
disputes where, as here, the employees of the primary employer remain at work.
I do not, however, construe these decisions so narrowly. Picketing for organiza-
tional purposes or to call attention to unfair conditions-where all other at-
tributes of primary action are present-has never been considered to attain a
secondary character, simply because no strike, strikebreakers, or replacements
are to be found on the picketed premises?
Having concluded that the Respondent's picketing was primary, there remains
to be considered whether the Respondent's other activities complained of-its
C. Climax Machinery Company, 86 NLRB 1243.
7 International Rice Milling Co., 84 NLRB 816. And see , A. F. L. v. Swing , 312 U. S.
321; Cafeteria Employees Union v. Angelos , 320 U. S. 293 ; I. Teller, Labor Disputes and
Collective Bargaining , 456 (1940).
'568 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
direct appeals to Moore's employees and their unions by letters and otherwise,
declaring the Phopho "hot" and requesting their cooperation-fell within the
proscription of 8 (b ) ( 4) (A). This aspect of the case is clearly governed by
the Board ' s Pure Oil decision .. In that case , the Board held that a "hot cargo"
letter addressed by a striking union to another union which represented em-
ployees of an unconcerned employer , successfully appealing to the other,union
to respect the striking union's picket lines at the picketed premises, was not
violative of 8 (b ) ( 4) (A). The Board emphasized that "the appeals contained
in the letters, no less than the appeals inherent in the [primary ] picketing-
amounted to nothing more than a request to respect a primary picket line at the
employer 's premises ," and concluded that this was traditional primary action
outside the purview of 8 (b) (4) (A). On principle , I am unable to distinguish
the oral and written appeals in the instant case from the appeal in Pure Oil.
For here, as in Pure Oil , the employees of the other employer ( Moore) were
urged to do no more than to refuse to perform services only at the location
involved in the primary dispute which , as has been found, was being legally
picketed . I find that the Respondent 's oral and written appeals , like its picketing,
were not violative of the Act.
2. What of the Respondent's defense that Samsoc is not an "employer" and
therefore not a "person" within the meaning of Section 8 ( b) (4) (A) P
The finding made above that the Respondent 's activities were primary in
character is, of course , dispositive of the case . But though determination of
the Respondent 's added defense is no longer strictly essential , the issue has been
carefully briefed and argued, and warrants I believe at least some consideration.
This defense is predicated upon the administrative dismissal of the Re-
spondent 's petition for certification, filed about a week after the picketing began
and supported by an apparent majority of the unlicensed seamen on the Phopho.
In sustaining the Regional Director ' s dismissal upon the ground that the Board
had no "jurisdiction over the Employer ," the Board left somewhat obscure the
precise legal basis of its ruling. The Respondent argues that since Samsoc
is clearly engaged in commerce , the basis for the Board's ruling must have been
that the Board did not consider Samsoc an "employer " within the meaning of
the Act. If it is not an "employer" subject to the Act's restrictions-asserts the
Respondent-it may not be deemed a "person" as that term is used in Section
8 (b) (4) (A ). And since secondary pressure is unlawful only where an object
is to force an employer to cease doing business with another "person," the
Respondent would have the Board conclude that the Respondent ' s activities,
although viewed as secondary in character , are beyond the reach of 8 (b) (4)
(A). Cf. Al J. Schneider, Inc., 87 NLRB 99, 89 NLRB 221. Taking issue with
the Respondent 's contention the General Counsel stresses that Samsoc , although
a foreign corporation , is both an "employer" within the literal meaning of that
term and a corporate . "person" within the definition of Section 2 (1) of the Act.
In the absence of any express statutory exception , he argues, there is no warrant
under the law for holding Samsoc not to be a "person" under 8 (b) (4) (A).
There is much to commend the Respondent 's position , though perhaps not pre -
cisely for the reasons assigned by it. The record makes clear that the Respond-
ent's ultimate goal was to force or require Samsoc to recognize and bargain with
it. In determining the lawfulness of a boycott having as an object "forcing or
requiring any other employer to recognize or bargain with a labor organization,"
Section 8 ( b) (4) (A), if it is to be read correctly, is not to be read alone, but
as specifically qualified by Section 8 (b) (4) (B ). Unless that is done subsection
(A) would destroy subsection ( B) and render it meaningless in any proceeding
SAILORS ' UNION OF THE PACIFIC 569,
in which, as here, the complaint confines itself to an alleged 8 (b) (4) (A ) viola-
tion. It would also fly in the teeth of the clear congressional intent, reflected
not only by the legislative history, ' but by the physical structure of Section 8 (b)
(4) and the relationship , physical and logical , between subsections ( A) and (B)
thereof. Construing subsection ( B) as a qualification upon subsection (A)
means in practical effect that where the object is recognition by another employer,
the validity of boycott action is to be tested by the provisions , of subsection (B)
rather than ( A), even where ( A) alone is expressly alleged to have been vio-
lated.' The difference is an important one, because under 8 ( b) (4) (B), unlike
8 (b) (4) (A ), secondary boycott activities are not illegal under all circum-
stances, but are expressly permitted where the labor organization on whose behalf
they are conducted is a certified representative . Moreover, in referring to. the
one at whom the pressure is ultimately aimed, 8 ( b) (4) (B) speaks of "any other
employer" rather than "any other person."
The thinking underlying 8 (b) (4) (B ) seems to be that Congress considered
it indefensible for a union with the democratic election machinery of the Act
available to it to resort to secondary pressure to force recognition , but at the
same time considered entirely justifiable the utilization of such an economic
weapon against an employer who himself refused to abide by the results of the
Board's processes , regardless of the injurious effect it might have on the business
of a neutral." But what of an employer , such as Samsoc , against whom the peace-
ful representation processes of the Board are not available and no certification can
be obtained ? Is he to be regarded as an "employer" within the intent of Section
8 (b) (4) (B ) ? Compelling reasons appear for answering the last question in the
negative . If one is not an "employer " against whom a labor organization may
proceed in a. representation or an unfair labor practice proceeding , it seems un-
reasonable to hold him an "employer " when it is the labor organization that is
being proceeded against. Moreover , it seems inequitable to enjoin to a more
rigorous standard of conduct a union denied the opportunity to come within the
area of immunity permitted by 8 (b) (4) (B) than is required of other labor
organizations . In the instant case, the effect of saying that Samsoc is not an
"employer" when the proceeding is against it, but is an "employer" when the
proceeding is aimed at least in part to protect its interest ; is to accord Samsoc,
because it is a foreign shipping concern , greater rights than are given to American
companies.
Were it not for the Board 's decision in the Di Giorgio Wine Company case, 87
NLRB 720, I would have been inclined to view with favor the Respondent 's posi-
tion. But the Board in that case found that two labor unions had committed a
violation of Section 8 (b) (4) (A ), although their activities were engaged in to
support recognition claims of two other unions that had been denied an oppor-
tunity to achieve Board certification . It is true that in the Di Giorgio case, the
unions held responsible were not the unions that were unable to secure certifica-
tion , but that does not to me appear to be a distinguishing factor, because the
8 H. Rep. No . 510, 80th Cong . 1st Sess ., p. 43; Sen . Rep. No. 510 , 80th Cong. 1st Sess.,
p. 22.
0 That is not to suggest that the complaint would fail because of the absence of an 8 (b)
(4) (B) allegation ; for a violation of 8 (b ) ( 4) (B) would also establish an 8 (b ) ( 4) (A)
violation . It is to suggest , however , that if 8 ( b) (4) (B) is found not to have been
breached , no violation of 8 (b ) ( 4) (A) can be found either.
11 The reason for that is, of course , obvious . Only an employer could be a person from
whom recognition or bargaining is sought.
11 See, e. g., Senator Morse 's remarks , 93 Cong . Rec. 1910 ; see also colloquy between
Senator Pepper and Senator Taft at 93 Cong . Rec. 1107.
929979-51-vol. 92-38
570 DECISIONS - OF NATIONAL LABOR RELATIONS BOARD
`immunity to engage in secondary activities allowed by 8 (b) (4) (B ) under the
.:special circumstances there indicated is not restricted to the unions that are
directly seeking recognition . It is true , too, that in the Di Giorgio case, the
-Board did not expressly consider whether Di Giorgio was an "employer" or a
"person" within the meaning of Section 8 (b) (4), but arrived at its conclusion
principally on the basis of considerations other than those which have been indi-
cated above . Yet on the facts that were before it, the Board 's ruling in Di Giorgio
stands as a subsilentio holding inconsistent with the hypothesis suggested above
for finding Samsoc not to be an "employer " or a "person" within the contempla-
tion of Section 8 (b) (4) (A ). Since I regard the Di Giorgio case as a precedent
binding upon me, I am constrained to overrule the Respondent 's contention just
discussed.
Having found , however, that the Respondent 's activities which are the subject
of this complaint were primary in character , I. conclude upon the record as a
-whole that the Respondent has not violated Section 8 ( b) (4) (A) of the Act. It
-will accordingly be recommended that the complaint herein be dismissed in its
-entirety.
Upon the basis of the foregoing findings of fact and upon the entire record in
the case, I make the following :
CONCLUSIONS OF LAW
1. Sailors Union of the Pacific, affiliated with the American Federation of
Labor, is a labor organization within the meaning of Section 2 ( 5) of the Act.
2. Moore Drydock Company is engaged in commerce within the meaning of
: Section 2 ( 6) and ( 7) of the Act.
3. Sailors' Union of the Pacific , AFL, the Respondent herein, has not engaged
_in unfair labor practices within the meaning of Section 8 ( b) (4) (A) of the Act.
[Recommended Order omitted from publication in this volume.]