Scno Barge Lines, Inc.

National Labor Relations Board - Board Decisions

Dec 15, 1987

287 N.L.R.B. 169 (N.L.R.B. 1987)

SCNO BARGE LINES 169
SCNO Barge Lines, Inc. and National Maritime
Union of America , AFL-CIO. Case 14-CA-
12905
15 December 1987
DECISION AND ORDER
BY MEMBERS JOHANSEN, BABSON, AND
STEPHENS
On 14 April 1981 Administrative Law Judge
James M. Fitzpatrick issued the attached decision.
The Respondent filed exceptions and a supporting
brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and brief and has
decided to affirm the judge's rulings, findings, and
conclusions only to the extent consistent with this
Decision and Order.
The question presented is whether the Respond-
ent violated Section 8(a)(1) of the Act by denying
nonemployee union organizers access to its boats to
speak to employee crewmen. Applying the test set
forth in Fairmont Hotel,' we find that, while the
property right and the Section 7 right in issue here
are relatively equal in strength, the General Coun-
sel failed to show that no reasonable means of com-
municating the Union's organizational message to
employees, other than through ship access, existed.
As set forth more fully below, in concluding that
the General Counsel failed to make that showing
here, two factors are especially significant. First,
although the Respondent denied the Union's re-
quest to permit organizers access to its boats, it in-
vited the Union to make other practical suggestions
for implementing the employees' right to receive
information about organizing. When the Union
then asked for employees' names and addresses, the
Respondent provided them. Second, the Union
simply did not make sufficient efforts with the
means at hand to show that those means were un-
workable It made no attempt to visit the employ-
ees at their homes or to obtain the employees'
home telephone numbers. Nor did it demonstrate
that the mailings it sent were not received, e.g., re-
turned with "addressee unknown" notations. It
merely showed that no one responded. Unless a
union has exhausted the reasonable means at hand,
including requests to the employer for information
facilitating communication with the employees, or
has proven that such means would fail, we cannot
conclude that no alternative means for the 'Union
' 282 NLRB 139 (1986)
to communicate its organizational message to the
employees existed.
The facts, fully set forth in the judge's decision,
may be summarized as follows. The Respondent
operates towboats and barges along the Illinois,
Mississippi, Missouri, and Ohio Rivers. Having un-
successfully attempted to organize the Respond-
ent's crewmembers in 1970,2 the Union in April
19793 initiated an organizing campaign directed at
20 nonunion towboat companies, including the Re-
spondent. In late July the Union mailed a letter to
the Respondent notifying it of the Union's organiz-
ing drive and requesting access to all company
boats. The Respondent denied the Union's request
for access but indicated that it had no intention of
interfering with employees' rights under the Act
and would seriously consider any realistic and
practical suggestions on how implementation of
these rights might be carried out.4 The Union later
requested "a mailing list of all employees on your
boats excluding captains and pilots, also their home
addresses and the company address by boat." On
10 September the Respondent promised to provide
the Union with a list and on 14 September provid-
ed the names of its 75 nonsupervisory employees
and their home addresses.5
In Fairmont Hotel, supra, the Board enumerated
some of the factors to be considered in determining
the relative strength or weakness of property and
Section 7 rights.6 Applying these factors, we find
that the Respondent here has a very strong proper-
ty right. The property in question, the Respond-
ent's towboats, are constantly in motion along the
river system. The towboats never dock and rarely
2 The Union's 1970 organizational efforts are chronicled in Sioux City
& New Orleans Barge Lines, 193 NLRB 382 (1971), enf denied 472 F 2d
753 (8th Cir 1973)
3 All dates herein are in 1979 unless otherwise indicated
4 Due to delays in delivery of both parties' letters, for assorted reasons
detailed in the judge's decision, the Union thought the Respondent had
not replied to its initial access request and filed the instant charges
5 Our dissenting colleague unfairly labels the Respondent as the "em-
ployer who denied the Union's express request for employee company
addresses by boat to facilitate ship-to-shore telephone solicitation " Con-
trary to our colleague's characterization, the Union's request for employ-
ees' names and addresses gave no indication that the Union wanted this
information in order "to facilitate ship-to-shore telephone solicitation "
Moreover, the Respondent voluntarily complied with the essence of the
Union's request by supplying the employees' names and addresses, and
there is no showing that the Respondent's failure to identify the boat on
which each listed employee worked was anything more than an over-
sight Indeed, the Union apparently was satisfied with the list, as it made
no complaint that this information was lacking Additionally, contrary to
our colleague, the Union's rejection, as an organizing technique, of tele-
phoning employees on the Respondent's boats was not directly tied to
the Respondent's failure to identify the employees by vessel The Union
cited several reasons for not telephoning the employees on the boats, in-
cluding that the employees' supervisor would be present during any tele-
phone conversation, that in order to make such a call one must know the
approximate location of the boat, and that the Union would be unable to
ask for crew members by name
6 Fairmont Hotel, supra at 141
287 NLRB No. 29
170 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
tie up along the river banks. Work on the towboats
goes on around the clock. The only nonemployees
who routinely come aboard are those providing
business services essential to the Respondent's con-
tinued operation. The space on the towboats is
confined. To get to the lounge or galley area,
where crewmen spend personal time while aboard
ship, requires passing through working areas, nec-
essarily raising the risk of interference with pro-
duction. Further, because the towboats are in con-
stant motion along the river system, coordinating
the access of union organizers would impose a
burden on the Respondent's personnel.
There can be no question but that the right of
workers to organize freely for the purpose of col-
lective bargaining is a very strong Section 7 right,
one found by the Supreme Court to be "at the very
core of the purpose for which the NLRA was en-
acted."7 Here, union organizers sought access to
vessels of the Respondent, the targeted employer,
in furtherance of this paramount right of employees
to organize.8
We thus find that both the property and Section
7 rights are very strong and stand on relatively
equal footing. Accordingly, it is necessary to con-
sider whether the General Counsel has shown that
reasonable alternative means by which the Union
could have communicated its message other than
by boarding the Respondent's boats were not avail-
able. 9
In considering this question, it is instructive to
review the Supreme Court's decision in Babcock &
Wilcox, supra, the seminal case involving the ac-
commodation of property rights and Section 7
rights. In Babcock & Wilcox, union organizers
sought access to privately owned parking lots at an
industrial site so that they could organize the em-
ployees. As both rights claimed were important
' Sears, Roebuck & Co v San Diego County District Council of Carpen-
ters 436 U S 180, 206 fn 42 (1978)
8 Fairmont Hotel supra at 142 fn 18
9 Member Stephens reads NLRB v Babcock & Wilcox Co, 351 U S
105 (1956), as holding that, when nonemployee union agents seek access
to private property to organize an employer's employees, and when there
is no claim that the property owner has discriminated against unions in its
access restrictions, we can order access only if it is demonstrated that the
location of the employees' workplace and living quarters are such that
"the employees [are] beyond the reach of reasonable union efforts to
communicate with them " Id at 113 Hence, he believes that we
need not engage in any balancing of Sec 7 rights against property rights
before applying the reasonable alternative means test He agrees , howev-
er, that the balance struck in this opinion comports with the principles of
Fairmont Hotel, supra
In Member Babson's view, the analysis set forth in Fairmont Hotel is
consistent with Babcock & Wilcox, supra In Babcock & Wilcox, the prop-
erty and Sec 7 rights were each compelling As both rights were com-
pelling, the Supreme Court proceeded to examine whether there were al-
ternative means of communication available to the union that would ac-
commodate the union's Sec 7 right while maintaining the employer's
property right In Member Babson's view, the Court's analysis in Babcock
& Wilcox assumed the relative equality of the Sec 7 and property rights
in issue See Fairmont Hotel, supra at 142 fn 18
ones, the Court carefully reviewed the facts before
it to ascertain if there were some way that the Sec-
tion 7 right in issue could be effectuated without
requiring trespassory access. The Court concluded
that access to the employees could be obtained in
the adjacent town or at the employees' homes.
Therefore, access to Babcock & Wilcox's private
property was denied. The Court specifically ac-
knowledged that in rare circumstances the accom-
modation principle may require trespassory organi-
zational activities, citing NLRB v. Lake Superior
Lumber Corp.,1° a case invalidating restrictions
placed on access to employees living and working
at an isolated lumber camp. In Sears, Roebuck &
Co. v. San Diego County District Council of Carpen-
ters,l 1 the Court again acknowledged the existence
of such rare circumstances, citing Lake Superior
Lumber and also NLRB v. S & H Grossinger's,12 a
decision ordering union access to employees living
and working on the premises of a resort hotel.
Therefore, had Babcock & Wilcox involved a com-
pany town, for example, where all or a majority of
the employees in question both lived and worked,
the Court might well have struck the balance dif-
ferently. But, clearly, on the facts before it in Bab-
cock & Wilcox, the Court implicitly found the obvi-
ous additional burden or cost of organizing in the
town, on the street, and at the employees' homes
was not sufficient to overcome the private charac-
ter of the property right at stake.
On the record before us here, while the alterna-
tives available to the Union are not as favorable as
the alternatives in Babcock & Wilcox, the General
Counsel has not demonstrated the existence of
"unique obstacles to nontrespassory methods of
communication with the employees" 13 such as
were present in Lake Superior Lumber, supra, or
Grossinger's, supra.
Certain features distinguish the instant case from
Lake Superior Lumber and Grossinger's, where the
inaccessibility of the employees was found to justi-
fy entry of nonemployee organizers onto the em-
ployer's property. While SCNO's crewmen live
and work on SCNO's premises, they do so for only
30 days at a time. Afterwards, they spend an equal
period of time on leave, during which they gener-
ally return to their homes.14 By contrast, in Gros-
10 167 F 2d 147 (6th Cir 1948)
l l Supra , 436 U S at 205 fn 41
12 372 F 2d 26 (2d Cir 1967), enfg as modified 156 NLRB 233 (1965)
13 Sears, 436 U S at 205 fn 41
14 The record indicates that when arrangements are made for crew
changes, a prime consideration about where a crewman gets on or off the
boat is availability of commercial transportation between that point and
his home Also, the Respondent's office makes arrangements for replace-
ments to travel from home to the point the exchange is going to be made
We infer from these facts that crewmen generally go home for their 30-
day leave period
SCNO BARGE LINES
singer 's, 60 percent of the employees lived as well
as worked on the employer 's property and there is
no indication that they had frequent , lengthy leave
periods during which they returned to a home
away from the employer 's property. In Lake Supe-
rior Lumber, there is no indication of leave periods
at all.
These distinctions are of great importance be-
cause in this case the Respondent provided the
Union with the crewmen 's names and home ad-
dresses .15 This presented an opportunity for the
Union to mail campaign materials to the crewmen
and to telephone or visit the crewmen at home
during their lengthy leave periods . 16 Because of
the record of some prior union success in contact-
ing the Respondent 's crewmen , we find the Gener-
al Counsel has a particular obligation in this case,
as a part of establishing absence of alternative
means, either to show that the Union tried unsuc-
cessfully to reach the crewmen through telephone
calls and home visits or to demonstrate concretely
why such efforts would not have worked. Sioux
City & New Orleans Barge Lines, arose from the
Union 's earlier attempt to organize the Respond-
ent's crewmen . As reported in that case,17 the
Union, without obtaining access to the Respondent's
boats, succeeded in filing a representation petition
necessary for the holding of an election , and, there-
fore , obtained the requisite authorization card sig-
natures from at least 30 percent of the Respond-
ent's crewmen to support the petition .' a Thus, the
Union at that time apparently managed to commu-
nicate with a significant number of the crewmen
even absent ship access . More importantly, an in-
tervenor in the election, the Inland Boatman's
Union (IBU), using 10 organizers and lists of crew-
men's names and home addresses supplied by
SCNO, over a period of 35 days managed, without
is Thus , the Respondent took advantage of the suggestion made in an-
other access case , NLRB v Tamiment, Inc., 451 F .2d 794, 798-799 (3d
Cir. 1971) (footnote omitted ), where the court, discussing alternative
means of communication , stated. "While management need not provide
such a list [of employees ' names and addresses] in advance of a Labor
Board sponsored election (Excelsior Underwear, Inc., 156 NLRB 1236
(1966)), it is free to do so if it wishes , and it may be particularly willing
to yield to this request to retain the atmosphere of quiet and serenity at
its [facility]." Indeed , the court , in refusing to order the employer to
grant access to outside organizers, distinguished Grossinger 's, supra,
which concerned a similar employer , on the basis , in part , that in Gros-
singer's the Union's request for a list of employees' names and addresses
had been turned down , while in Tamiment there had been no such refus-
al.
16 Supplied with the crewmen 's names and addresses, the Union pre-
sumably could have obtained their telephone numbers from telephone di-
rectories or directory assistance As the judge notes in sec III,B,4,f of his
decision , the Union never asked the Respondent for the crewmen 's tele-
phone numbers . It is possible that the Respondent, if asked, would have
supplied these also, as it had voluntarily supplied the crewmen 's names
and addresses on request of the Union
17 193 NLRB 382 (1971)
18 See Sec . 101 18(a), Board Rules and Regulations.
171
boarding the Respondent's boats, to make "eyeball-
to-eyeball contacts" 19 with 35 of the 118 crewmen
then in the unit, including contacts at crewmen's
homes, alongside an SCNO boat , at a dock in
Kansas City, and at the Omaha terminal. Thus,
even in that relatively short period of time, the
IBU was able to make personal contact with a sig-
nificant number of the crewmen. The techniques
used by the IBU included making long-distance
telephone calls as well as home visits.
In view of the fact, then, that both the Union
and the IBU have achieved a fair measure of suc-
cess in communicating with the Respondent's
crewmen in the past , the IBU having used , in part,
the methods of telephone calls and home visits to
do so, it is particularly necessary for a showing to
be made that, in the organizing campaign at issue
here, these methods were attempted or that they
would have been futile . 20 Requiring such a show-
ing comports with the Supreme Court 's indication
in Babcock & Wilcox that the methods of communi-
cation that may serve as alternatives to entry on
private property are communication through the
"usual channels" or "usual methods of imparting
information ," such as sending literature through the
mail or talking to employees on the street, at their
homes, or over the telephone .21 No such showing
was made here. Contrary to the judge, we do not
find that the dispersion of the employees' homes
over 12 States rules out telephone calls and home
visits as possible alternative means of communica-
tion. The geographic dispersion of the crewmen's
residences presents no obstacle to the Union's tele-
phoning the crewmen. The Union did not know
when each crewman was going to be on leave, so
it might have been necessary to make several calls
to some crewmen 's homes, but this does not make
telephoning an unreasonable alternative.
The geographic dispersion of the crewmen's
homes presents a more significant obstacle to home
visits. However, over one-third of the crewmen
live within a 50-mile radius of three cities in which
the Union has patrolmen (business agents): St.
Louis (16 crewmen), Paducah (8 crewmen), and
Memphis (3 crewmen). We do not find it unreason-
able to expect the Union to at least attempt to visit
these crewmen at their homes. Telephone calls
could be made in advance to set up such visits to
avoid making unscheduled trips to the crewmen's
homes and finding them absent. Although, as the
19 193 NLRB at 385.
20 In denying enforcement to the Board 's order in the prior case, the
court of appeals relied in part on the IBU's success in contacting employ-
ees without boarding SCNO's boats. See NLRB v. Sioux City & New Or-
leans Barge Lines, 472 F 2d 753 at 756 (8th Cir 1973)
21 NLRB Y. Babcock & Wilcox Co, supra, 351 U.S. at 112, 113.
172 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
General Counsel points out, 44 percent of the
crewmen's mailing addresses lack street numbers,
many of these addresses are located in small com-
munities where inquiry in the town would be likely
to disclose the locations of the crewmen's homes.
Moreover, if visits are arranged in advance
through telephone calls, street addresses could be
ascertained during the same calls. Alternatively,
the Union could invite crewmen in a locality to
attend a meeting at the Union's office or other cen-
tral location. Regarding the crewmen who do not
live near cities where the Union has patrolmen, it is
possible that the Union could arrange through tele-
phone calls to meet some of them should they plan
to be in the vicinity of these waterfront cities.22
Even the judge, who accepted the General
Counsel's argument that no alternative means of
communication existed, acknowledged that "a con-
tinuing program of calls and home visits over an
extended period of time arguably could reach all
crewmembers."23 He concluded, however, that the
1-22 We find the testimony of organizer Guay, the only union witness,
inadequate to establish that home visits or telephone calls would not con-
stitute a reasonable means for the Union to communicate its message to
the Respondent's crewmen While indicating that the Union, in deciding
not to try to contact the Respondent's crewmen at home, relied in part
on its past experience, Guay gave no account of the prior union efforts to
reach employees at home or how methodically or diligently such efforts
were conducted Moreover, his testimony that "it would be almost im-
possible to get everybody" does not justify making no effort to reach
anyone The General Counsel's offer of proof that, in an election case in
which the Union had an Excelsior list, attempts to make face-to-face con-
tact with the employees were "fruitless" is merely conclusory, as the
offer of proof failed to set forth any specific facts concerning what ef-
forts the Union made to reach the employees
2' See sec III,B,4,f of the judge's decision Our dissenting colleague
contends that a program of telephone calls and home visits would not
offer a reasonable opportunity for face-to-face solicitation, specifically re-
jecting the notion that lists of employees' home addresses might be ade-
quate tools, in lieu of access, to organize workers We do not hold, how-
ever, that such a program necessarily would provide a reasonable means
for the Union to communicate its message to the employees, but rather
merely that the General Counsel failed to meet her burden of showing in
this case that such a program would not provide a reasonable means for
obtaining such communication Moreover, our colleague places too much
emphasis on a requirement of face-to-face contact In NLRB v Tami-
ment, Inc, 451 F 2d 794 (3d Cir 1971), which our colleague cites in sup-
port of the necessity of face-to-face contact, the court refused to order
that organizers be granted access to a summer resort, despite the fact
that, as well as working on the premises, 85 percent of the resort's em-
ployees lived on the premises in cottages without telephones The court
indicated that the union should try to write letters to the employees, post
notices, place ads in newspapers, and hold meetings for employee-, to
attend NLRB v United Aircraft Corp, 324 F 2d 128 (2d Cir 1963), also
cited by our colleague, does not concern a demand for access by outside
organizers, but rather concerns an employer's rule prohibiting employees
from distributing union literature on their own time in nonwork areas of
the plant The court found various alternative means of communication
to be less effective, but in doing so it was measuring them against in-plant
solicitation by fellow employees Communication by outside organizers
was not addressed Finally, in Hutzler Bros Co, 241 NLRB 914, 916
(1979), also cited by our colleague, the administrative law judge, whose
decision the Board adopted, stated
As to the use of mail, telephone solicitation, or home visits, I do not
understand either the General Counsel or the Union to contend that
such means of communication would not constitute reasonable alter-
native channels of communication if the Union were in possession of
the names and addresses of Respondent's employees In my judg-
cost and effort of such a program ruled it out as a
reasonable alternative. We disagree. It has not been
shown that the effort that would be required is ex-
cessive. Moreover, there is no evidence concerning
the costs of such an organizing program and it is
not on its face so expensive that we can conclude
that it would be unreasonably costly.
It may be that reasonable efforts to reach the
crewmen by these methods would not result in the
Union's achieving personal contact with all of
them. As the Union, however, neither attempted
these methods nor demonstrated that, if diligently
tried, these methods would have failed, we cannot
determine what the results would have been.24
In sum, we conclude that, while the Respond-
ent's property right and the Union's Section 7
rights are relatively equal in strength, the General
Counsel failed to show that there were no reasona-
ble alternative means through which the Union
could have communicated its organizational mes-
sage to the Respondent's crewmen.25 Accordingly,
we shall dismiss the complaint.
ment, such channels of communication are reasonable alternatives to
encroachment on Respondent's property rights However, the Union
did not know the names, even less the addresses, of Respondent's
employees As noted earlier, Respondent refused the Union's request
for the names and addresses of its employees
Thus, alternatives such as use of the mail and telephone were regarded
by the Board in Hutzler Bros as providing enough "personal contact"
with employees to constitute reasonable alternative means of communica-
tion Accordingly, our colleague's emphasis on the Union's having face-
to-face contact with the employees is misplaced In any event, a program
of telephone calls and home visits by the Union could well result in face-
to-face contact with a substantial number of the Respondent's crewmen,
and the General Counsel has not proved otherwise Thus, we are not
confronted in this case with asserted alternative means of communication
that, even at best, would provide no face-to-face contact with employees
24 As noted, following receipt of the crewmen's names and addresses,
the Union mailed literature to the crewmen on three occasions and re-
ceived no responses This does not establish, however, that the Union
was unable to communicate its message to the crewmen by use of the
postal system the lack of response may simply indicate a lack of interest
by the crewmen No evidence was presented that letters were returned
because of incorrect addresses or otherwise not received
21 We find the Board's prior decisions ordering access to vessels are
distinguishable from the present case Unlike the present case, in Interlake
Steamship Co, 174 NLRB 308 (1969), the employees spent almost all
their time aboard ship from March to December each year In Sabine
Towing Co, 205 NLRB 423 (1973), enf denied in relevant part 599 F 2d
663 (5th Cir 1979), while the ships made frequent brief stops in ports
during which employees went ashore and there is reference to employees
having vacations, there is no indication that employees had leave periods
allowing them to spend as much time at home as they did on ship, as is
the case with the Respondent's crewmen In Belcher Towing Co, 238
NLRB 446 (1978), enf denied 614 F 2d 88 (5th Cir 1980), on remand 256
NLRB 666 (1981), enf denied without opinion 683 F 2d 418 (11th Cir
1982), the employer did not provide the union with the employees' names
and home addresses and the union on its own was able to ascertain the
addresses of only half of the employees The unions involved in the rep-
resentation election in Sioux City & New Orleans Barge Lines, supra, like
the union here, had lists of employee names and addresses Additionally,
the unions in Sioux City were provided the dates the employees would be
off duty and not on board the boats and the points where they might dis-
embark or come aboard Sioux City, however, is distinguishable in that
access was sought there for the purpose of communicating the union's
messages to employees during the period between the filing of the peti-
Continued
SCNO BARGE LINES 173
ORDER
The complaint is dismissed.
MEMBER JOHANSEN , dissenting.
In the campaign to organize towboat employees
that is the backdrop to both of today's boat access
decisions, the Union asked each respondent for "a
mailing list of all employees on your boats exclud-
ing captains and pilots ; also their home addresses
and the company address by boat." In G. W. Glad-
ders Towing Co.,' issued today, the requests for
both list and access were denied . SCNO, the Re-
spondent here, provided the list but, like Gladders,
denied access. The Union used the list and other
data to mail authorization card requests and other
appeals to employees , including the Respondent's,
whose homes span a 12 -State area. It received no
response to its appeals and no authorization card
returns.
My colleagues find this case distinguishable from
Gladders and dismiss on the ground that the Union
here failed to use a method of communication-
telephone solicitation as a catalyst to home or
remote-situs meetings-which was foreclosed in
Gladders by Gladders' denial of its requests for
home and mail addresses . I cannot agree . The alter-
native my colleagues propose is one "beyond the
reach of reasonable union efforts" to communicate
with workers by the "usual channels" contemplat-
ed in NLRB v. Babcock & Wilcox, 351 U.S. 105,
112 (1956). I draw this conclusion first on the basis
of the impressive record the Union has developed
of using alternative means . Secondly, I find that
given the geographic dispersal of the boatmen's
residences and their relatively uncertain availability
at any given time, the technique proposed offers no
clear opportunity for organizers to communicate
with employees the only way truly effective-by
face-to-face contact. Specifically, I reject the con-
tion (3 September 1970) and the election ( 13 and 30 October). (The
access request was made to the employer on 29 September ) Since the
record showed that employees generally worked for 45 consecutive days
without taking leave , a number of employees may well have been effec-
tively incommunicado to the union organizers throughout the campaign
period , while remaining potentially accessible , day and night , to the em-
ployer's campaign messages throughout that same period
We also find Husky Oil NPR Operations , 245 NLRB 353 ( 1979), enfd.
669 F . 2d 643 ( 10th Cir 1982), distinguishable from the present case. In
Husky Oil, employees often spent their leave periods traveling and thus
were not reachable at home during such time In the present case, as
noted above , in the absence of evidence to the contrary, see In . 15 supra,
we have inferred that employees generally spend their leave periods at
home and thus may be contacted there . The General Counsel , who bears
the burden of showing the absence of alternative means of communica-
tion, made no contention and introduced no evidence to the contrary.
Husky Oil is further distinguishable in that in the present case, as dis-
cussed above , there is a history of prior organizing efforts in which
unions achieved some success in communicating with the Respondent's
employees despite being denied access to the Respondent 's property.
There was no similar history in Husky Oil.
1 287 NLRB 186
clusion that lists of home addresses of employees
might be adequate tools, in lieu of access, to orga-
nize workers.
If there is a viable distinction to be drawn be-
tween this case and Gladders it is that here, where
my colleagues deny access, the Union made the
more complete record of explored, tried, and failed
alternative means . In fact, in terms of diligence in
pursuing alternatives met with low return on in-
vestment , the Union's record exceeds those in each
of the litany of boat access cases cited at the con-
clusion of the majority opinion, distinguished there
by myriad other factual circumstances . Here, the
Union made the following endeavors in lieu of
access : First, with the assistance of union patrol-
men at various points along the river system , Inter-
national Representative John Guay met about 10 to
12 unionized boats promoting the Union and dis-
tributed literature and blank authorization cards for
employees to pass along to their unrepresented col-
leagues whenever they got the chance. Second, in
early June 1979 and again on 6 August organizers
stationed themselves at Lock 26 in Alton, Illinois,
and hailed crewmen on an SCNO boat only to
have their summonses drowned by roaring engines
and their requests to go aboard denied . Third, as
noted, the Union began developing mailing lists in
August, and by a 30 August letter requested a mail-
ing list from the Respondent. It put the list to use
in three separate mailings with the assistance of a
computerized mailing firm. The first mailing in
early October consisted of a letter and a campaign
pamphlet containing a business reply authorization
card; the second on 22 October contained the
above materials and a letter from the Union's river
coordinator stressing the benefits of unionization;
and a third November mailing contained campaign
pamphlet and business reply authorizations. The
letters were prepared especially for the current
campaign to organize employees of SCNO, and
they appealed specifically to those employees.
More than merely dispensing campaign literature
that would be read and thrown away, each of the
three mailings appealed to the employee to return a
business reply authorization card. Upon receiving
no responses from employees, the Union reason-
ably inferred that its mailing campaign failed ade-
quately to communicate its appeal to crewmem-
bers .2 Fourth, the Union explored and rejected
2 The majority states that the lack of response may be equally indica-
tive of a lack of interest . This merely begs the question whether such
lack of interest is one to which the crewmembers were irreversibly pre-
disposed or whether simply, in terms of capacity to communicate, "mail
is no substitute for face-to-face contact ." NLRB Y. Tamiment, Inc., 451
F 2d 794 , 798 (3d Cir . 1971), citing NLRB P United Aircraft Corp, 324
F 2d 128 , 130 (2d Cir 1963).
174 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ship-to-shore telecommunication, in part because of
the Respondent's failure to comply with its request
for information identifying the employees by
vessel.3 Finally, the Union also explored and ra-
tionally rejected, for reasons set forth by the judge,
use of mass media and contact with employees at
points of boarding and deboarding, including tav-
erns in the vicinity of the ports.
This record establishes that in this organizing
campaign, the Union made reasonable attempts and
crewmembers were "beyond reach of the Union's
reasonable attempts" to communicate with them off
the employer's property.4 As found by the Board
in Alaska Barite Co., 197 NLRB 1023 (1972), enfd.
83 LRRM 2992 (9th Cir. 1973), cert. denied 414
U.S. 1025 (1973), the issue is "whether, with due
regard for the physical circumstances, complainant
Union has really had opportunities for effectual
personal contact, not whether it has or has not
made use of some opportunities for communication
which may have been available."5 Here, where the
Union has had opportunities for effective personal
communication, it has attempted them and
achieved no discernible success; where alternatives
could be effectively ruled out as producing no such
opportunity, they have been reasonably rejected.
Both the Board and the courts have recognized
face-to-face contact as an essential element of effec-
tive union organizing.6 The alternative technique
advanced by the majority falls short of offering a
reasonable opportunity for face-to-face solicitation.
First, the obstacles to any direct home door-to-
door solicitation using the mailing list are manifest:
It is undisputed that the Union did not know when
3 The Respondent 's decision to ignore the request for a boat address
list foreclosed any communication whatsoever with crewmembers aboard
ship either by mail , sea, e g, Interlake Steamship Co, 174 NLRB 308
(1969), or by ship-to -shore telephone Asked why he anticipated the latter
avenue to be fruitless , Guay testified that in order to reach crewmembers
aboard the boats telephonically , it is necessary to identify the approxi-
mate location of the boat , and then " you would almost have to ask for an
individual crewmember by name " Undisputedly , the Union had no other
means of obtaining individual crewmember boat addresses when its re-
quest was denied Guay added that even assuming he could reach crew-
members in this manner , conversations with them over an open channel
would be subject to employer surveillance
4 Babcock & Wilcox , 351 U S at 112 (emphasis added)
5 In enforcing the Board ' s order in Alaska Barite (employees at a
remote island mining site free to go home weekly on 3 -night , 2-day week-
ends ), the Ninth Circuit Court of Appeals found the Board's conclusions
"justified by the rule announced in NLRB v Babcock & Wilcox, 351 U S
105, 112-113 ( 1956)" 83 LRRM 2992, cert denied 414 U S 1025 (1973)
6 See Husky Oil NPR Operations v NLRB, 669 F 2d 643, 646 (10th Cir
1982) ("considerable importance of face-to-face contact between union
organizers and employees , especially when other forms of communication
are ineffective or expensive "), NLRB v Tamiment, Inc, 451 F 2d 794,
798 (3d Cir 1971) ("effective effort" necessary "to communicate with
employees and generate face -to-face contact "), NLRB v United Aircraft
Corp, 324 F 2d 128 , 130 (2d Cir 1963) (alternatives to personal contact
"bear without exception the flaws of greater expense and effort and a
lower degree of effectiveness"), Hutzler Bros, 241 NLRB 914 , 916 (1979),
enf denied on other grounds 630 F 2d 1012 (4th Cir 1980) See fn 10
and accompanying text, infra
individual crewman would be on leave and thus
when they might be at home. Further, 44 percent
of the crewmen's addresses appearing on the em-
ployer-generated list contained no street addresses;
many were situated in isolated rural communities.
Thus, the preliminary telephone gauntlet that
would necessarily precede direct personal appeals
under the majority's holding would be run as fol-
lows: The Union would first request a current tele-
phone list. If refused or if the quality of the list
were unsatisfactory,7 it would then be required to
compile telephone listings from telephone directo-
ries of the areas crewmen live or directory assist-
ance to match against the street or town designa-
tions on the Employer's list. If successful, it would
then seek to persuade the crewmember to invite its
representative into his home or spend part of his
leave traveling to a union office or other central lo-
cation.
This technique of telemarketing representational
appeals is well beyond the "usual channels" of al-
ternatives the Supreme Court approved in Babcock
& Wilcox. Undeniably, the Supreme Court noted
telephone communication among the alternatives
open to the Union in Babcock & Wilcox.8 However,
it also found that union representatives had com-
municated directly with many of the employees it
was seeking to organize by talking with them on
the streets of Paris, Texas, a community of 21,000
people where 40 percent of the workers lived 1
mile from the plant. These other available channels
and the measurably greater general ease of access
by which Babcock & Wilcox employees were
reached under those geographic conditions contrast
starkly with the present facts.9 Similarly, in Hutzler
' I do not infer that the same employer who denied the Union's ex-
press request for employee company addresses by boat to facilitate ship-
to-shore telephone solicitation during nonworking time would supply
home telephone numbers on further request See fn 3, supra
8 Babcock & Wilcox, 351 U S at 113
9 Significantly, access to a remote oil drilling camp was granted in
Husky Oil NPR Operations, 245 NLRB 353, enfd 669 F 2d 643 (9th Cir
1982), where 80-85 percent of the employees, who took frequent 2-week
leave periods, had residences in the Anchorage, Alaska area See also
NLRB v S & H Grossinger's, 372 F 2d 26 (2d Cir 1967) (access to the
respondent's hotel approved notwithstanding a concentration of 90 per-
cent of all nonresident employees, composing 40 percent of the unit,
within a mile or two of the hotel), cited with approval by the Supreme
Court in Sears, Roebuck & Co v San Diego County District Council of
Carpenters, 436 US 180, 206 fn 42 (1978) See also Hutzler Bros v
NLRB, 630 F 2d 1012, 1017 (4th Cir 1980) In view of their heavy reli-
ance on the Third Circuit's decision in NLRB v Tamiment, Inc, 451 F 2d
794 (1971), 1 question why my colleagues stop short of a clear affirmation
of that and the Second Circuit's standard for justifying access, which
clearly conflicts with the views of the Ninth, Tenth, and Fourth Circuits
discussed and applied above According to the Tamiment court, "[ilt is
only after the union has made a showing that it used reasonable effort to
utilize 'other available channels of communication' that the Board should
proceed to consider the total effectiveness of these efforts and the coun-
tervailing inconvenience and injury to the employer " 451 F 2d at
799 (emphasis added) Accord NLRB v New Pines, Inc, 468 F 2d 427,
429 (2d Cir 1972)
1
SCNO BARGE LINES
Bros. Co., 241 NLRB 914 (1979), where all 550 em-
ployees of the respondent's Towson, Maryland de-
partment store lived in the Baltimore metropolitan
area, a well-orchestrated telephone campaign could
be expected to yield face-to-face contact with em-
ployees either at organizational meetings or in their
homes. 1 ° It is one thing to require the organizer to
avail himself of telephone techniques in combina-
tion with face-to-face personal communication; it is
another to condition the latter form of communica-
tion on the Union's success in mastering the tele-
phone lines. Thus, consistently with the analysis of
the Board in Alaska Barite, set forth above, en-
dorsed by the Ninth Circuit enforcing that deci-
sion, and by the Tenth Circuit Court of Appeals in
Husky Oil, 1 i I find it is possible on these facts to
judge the effectiveness of this proposed method of
communication without first requiring the Union to
try it,1 2 and I find that its effectiveness is patently
minimal.
10 Contrary to the intimation of my colleagues, nothing in the Board's
decision in Hutzler Bros suggests that the union would achieve the neces-
sary "personal contacts" simply by talking to workers over the phone
and leaving it at that When employees all live in the same metropolitan
area, a union logically uses its telephone resources to seek out opportuni-
ties to appeal to those employees in person Further, in denying enforce-
ment to the Board's order in that case, the Fourth Circuit noted that, in
contrast to that local campaign where it found the Union's effort to be
"lackadaisical,"
[a]s employees become more isolated and the task of communicating
with them becomes more difficult-less efforts may be required of
union organizers to garner evidence that alternative reasonable
means of communication are unavailable
Hutzler Bros v NLRB, 630 F 2d 1012, 1017 (4th Cir 1980)
11 "We believe that Babcock & Wilcox does not require a union to
resort to unsatisfactory means of communication and that we may assess
the channels available to the union without first requiring the union to
try them " 669 F 2d at 645
12 In contrast, the record of tried-and-failed home contacts is pivotal
to my colleagues' resolution of this case They find that the General
Counsel, precluded from adducing such evidence at hearing, has inad-
equately preserved the issue on appeal by making the following offer of
proof after an objection by the Respondent's counsel to a question re-
garding the use of a list of names and addresses of geographically dis-
persed employees in a recent organizing campaign
MR LOCKE Your honor, without burdening the record with a
question-and-answer offer of proof, I would offer to prove that in
this situation where they had the Excelsior list, their attempts to
make face-to-face contact with these employees, even having their
mailing addresses, was fruitless
The majority finds the offer of proof to be merely conclusory, and
indeed even an informal offer of proof cannot state "mere conclusions"
and must be "specific" and "detailed," Wigmore, IA Evidence § 20a
(Chadbourn rev 1970) However, Fed R Evid 103(a)(2) provides that an
offer of proof is unnecessary if "the substance of the evidence was appar-
ent from the context within which the questions were asked " This prin-
ciple should apply in light of (1) the prior question posed by the General
Counsel
MR LOCKE Has there been any occasion recently in which you
have tried to contact employees, personally, using a list of names and
addresses?
WITNESS Yes
(2) the witness' response to the next question that the list had been ob-
tained prior to a Board election, (3) the following question to which the
Respondent's objection was sustained
MR LOCKE What was the result of your attempts to contact em-
ployees whose names were on the list'[
and (4) the General Counsel's further elucidation of the testimony to be
adduced
175
Regarding the contention that the Union's suc-
cess in obtaining a showing of interest to support a
prior representation petition in 1970 relates to its
burden of justifying access in 1979, I note first the
finding by the judge, with which my colleagues
take no issue, that resolution of issues raised re-
garding the prior campaign in NLRB v. Sioux City
& New Orleans Barge Lines, 472 F.2d 753 (8th Cir.
1973) (SCNO 1) has no preclusive effect under
principles of collateral estoppel on the ground that
the 1970 campaign involved a separate and distinct
set of factual circumstances. Second, while it is
true that in SCNO I the Intervenor Inland Boat-
man's Union (IBU) was found by the court of ap-
peals to have made "eyeball-to-eyeball contact"
with 35 of the 118 employees, these observations
were based on findings by the trial examiner, who
identified "relatively few contacts" made by IBU
during home visits.13 The rest of the 35 were made
alongside company towboats and at boarding sta-
tions-both of which alternatives in the present
case have undisputedly been either tried and
proven unsuccessful or explored and rationally re-
jected.
There is irony in today's holding when viewed
in light of the rationale supporting the majority
opinion in Fairmont Hotel, 282 NLRB 139 (1986).
Fairmont, which both my colleagues apply to these
facts, at least in the alternative, required that the
Board give thorough consideration to the nature
and strength of competing property and statutory
rights, minimizing where possible the anomalous
consequences of "litmus test" deference to alterna-
tive means of communications. Id. at 141. The
Board restructured its access analysis on the
premise that relatively arbitrary factual questions
such as the scope of a union's intended audience-
broad in the case of weaker Section 7 rights such
as area standards activity-should not unduly
burden a strong property interest as they had under
a pre-Fairmont, Giant Food-type 14 analysis.15 It
should follow that when an equally arbitrary audi-
ence issue arises in a representational campaign-
MR LOCKE based on past experience the expenditure of
money involved in traveling to these diverse places would just
be a waste of money because of the very unlikely prospect of achiev-
ing results, even meeting people
Thus, to the extent that my colleagues would require a record of tried-
and-failed home contacts, it can be fairly stated that the General Counsel
has adequately noted her response to the objection and the substance of
what her witness would testify Of course, it could be argued that the
success or failure of the prior campaign such as the one to which the
witness would testify is immaterial in any event, as apparently was the
judge's view in sustaining the objection But this is clearly not my col-
leagues' view as they rely on the Union's record in its 1970 campaign
13 193 NLRB 382, 384 (1971)
14 Giant Food Markets, 241 NLRB 727 (1979), enf denied 633 F 2d 18
(6th Cir 1980)
15 Fairmont, 282 NLRB at 140-141
176 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the geographic dispersion of employees' homes-a
very strong Section 7 interest should not be unduly
burdened by this facet of the alternative means test,
i.e., the requirement of extraordinary measures for
the Union to prove its need for access to the
Board. The effort and expense exacted by the ma-
jority would have no place in a business with a
local work force; but they do here for precisely the
reason that distorted the accommodation in Giant
Food: because of the Union's wide and inaccessible
audience In both situations, a right hanging in the
balance is unduly burdened by this factor. In Giant,
it was the property interest; here it is the Section 7
interest. In my view, so long as the General Coun-
sel has met her burden of showing that employees
are beyond the reach of reasonable alternatives, and
the property right is no more compelling on bal-
ance, the core Section 7 right to extend to employ-
ees the offer of representation should be given full
latitude.
I agree with my colleagues that the Respondent's
property interest is substantial The towboats are in
constant motion along the river system. Work
aboard the boats goes on 24 hours a day, and the
boats are inaccessible to the public at large. The
property is not, however, reserved exclusively for
the use of the Respondent and its employees. Thus,
a written guest policy is in effect extending beyond
crewmembers and their immediate families, and
spouses do board the Respondent's ships at least
occasionally. On balance, under the reasonable re-
strictions to access recommended by the judge, I
do not find the property interest so strong that ex-
clusion is warranted.
The majority requires the Union to track down
75 employees whose homes are to be found in a
full quarter of the 48 contiguous States. They range
from Michigan in the north to Texas in the south
and east as far as the State of Pennsylvania. The
sheer magnitude of the task gives stark rebuttal to
its supposed reasonableness.
In conclusion, I find in agreement with the judge
that the General Counsel has met her burden of
proving that the Union had no reasonable means of
communicating its organizational message to em-
ployees. With due consideration of this significant
factor as it affects the Section 7 claim, I find that
the Section 7 interest outweighs the property inter-
est, and that the latter must therefore yield. Ac-
cordingly, I would find, contrary to my colleagues,
that the Respondent's refusal to allow organizers
aboard its towboats violated Section 8(a)(1).
Keltner W Locke, Esq, for the General Counsel.
Paul S. Kuelthau, Esq, of St Louis, Missouri, for the Re-
spondent.
Mr. John A Guay, of San Francisco, California, for the
Charging Party
DECISION
JAMES M FITZPATRICK, Administrative Law Judge
The Company here refused to allow union organizers
aboard its towboats to talk with its unorganized crew-
men. As set, out below, I find this refusal is an unfair
labor practice
This is the second of two cases arising from unfair
labor practice charges filed August 23, 1979,' by the Na-
tional Maritime Union of America, AFL-CIO (Union or
NMU) In the present matter, Case 14-CA-12905, the
charges were against Sioux City and New Orleans Barge
Lines, Inc.2 (Respondent or SCNO) In the other matter,
Case 14-CA-12904, the charges were against G. W.
Gladders Towing Company. On November 9 the cases
were administratively consolidated and a consolidated
complaint and notice of hearing issued. Both Respond-
ents moved for severance and on November 20 the cases
were administratively severed On December 5 an
amended complaint issued against SCNO reflecting the
severance.
This complaint alleges, inter alia, that SCNO commit-
ted unfair labor practices proscribed by Section 8(a)(1) of
the National Labor Relations Act (the Act), in a letter of
August 9 in which it denied the Union's request for its
nonemployee organizers to have access to SCNO tow-
boats for purposes of organizing among SCNO crewmen
On November 19 the Union had requested withdrawal of
the underlying charge against SCNO but withdrawal
was denied by the Board's Regional Director.
On December 14 SCNO answered, denying that by its
letter it had engaged in an unfair labor practice All
other allegations, including jurisdiction and identity of
the parties, are admitted. In its answer SCNO further al-
leges that following receipt of a letter from the Union on
July 26, it offered to meet and confer with the Union
concerning the method of facilitating other access by the
Union to SCNO employees; that on August 30 the Union
responded by requesting a mailing list of SCNO nonsu-
pervisory employees; that on September 10 SCNO in-
formed the Union such a list was being compiled; and
that on September 14 it forwarded the list to the Union.
The answer also alleges thi t the Union already had ade-
quate access to SCNO nonsupervisory employees with-
out boarding company boats. SCNO further alleges that
in pressing the present complaint the General Counsel is
acting arbitrarily and capriciously and is harassing
SCNO, that the Union's request to withdraw the charges
should have been approved because the Union indicated
satisfaction with the access to employees provided by the
list of employees furnished to it by SCNO; that in 1973
the United States Circuit Court of Appeals for the
Eighth Circuit determined that denial of access by the
Union's organizers to Respondent's towboats did not vio-
' All dates herein are in 1979 unless otherwise indicated
2 At the hearing herein the pleadings were amended to reflect the Re-
spondent's correct name, SCNO Barge Lines, Inc
SCNO BARGE LINES
late Section 8(a)(1) of the Act Respondent asks that the
complaint be dismissed.
The case was heard before me at St . Louis, Missouri,
on December 19.
Based on the entire record, including my observation
of the witness, arguments of counsel, and consideration
of the briefs of the General Counsel and the Respondent,
I make the following
FINDINGS OF FACT
1. THE EMPLOYER
A. Commerce and Business
SCNO transports goods, wares, and commodities be-
tween the several States of the United States by means of
towboats, tugboats, and barges During the year ending
June 30, 1979, a period representative of its operations, it
received over $50,000 for services as an instrumentality
or link in interstate commerce. It is an employer engaged
in commerce.
B. Towboat Operations
1. Size of fleet and rivers served
SCNO owns nine towboats of varying sizes that tra-
verse the rivers, and one harbor boat that remains in the
vicinity of Hartford, Illinois.3 The number of towboats
in operation varies depending on seasonal navigation
conditions in the upper rivers and on the volume of busi-
ness. When its own business does not require all nine
vessels, it may charter out unneeded ones on a bare boat
basis without using its own crews In normal business
conditions it operates from seven to nine of its towboats,
plus the harbor boat At the time of the hearing the
Company was operating only four towboats.
Only one SCNO boat operates north of Hartford, Illi-
nois. It operates north from Hartford and up the Illinois
River as far as Morris, Illinois. On the Missouri River
SCNO operates three to five towboats depending on the
volume of its business. The larger boats operate from
Hartford up the Missouri to Kansas City, Missouri From
there a smaller boat operates from Kansas City to
Omaha, Nebraska, and Sioux City, Iowa. The Company
also operates one boat on the Ohio River between Pitts-
burgh and Cairo, Illinois, and two boats on the lower
Mississippi from St. Genevieve , Missouri , south to
Luling, Louisiana, near New Orleans
A barge is 35 feet wide and 195 feet long and the tows
on the lower Mississippi River are made up of 20 to 30
barges. On the Missouri River tows are a maximum of
eight barges below Kansas City, four barges from Kansas
City to Omaha, and two barges from Omaha to Sioux
City There are no locks on the Missouri River nor are
there locks between the confluence of the Missouri and
Mississippi Rivers and New Orleans, Louisiana. The as-
sembly point for barges from the Illinois River and the
Missouri River is Hartford, Illinois, where SCNO assem-
bles tows for the lower Mississippi or, where the barges
9 The harbor boat is not involved in the present matter because it op-
erates locally with crews that work a 12-hour shift and go home to sleep
177
are rerouted, for destinations on the Missouri, Illinois, or
Ohio Rivers. The larger boats pick up tows near St
Genevieve and proceed southward They may drop off
barges destined for the Ohio River at Cairo, Illinois, and
pick up barges there destined for New Orleans They
then proceed southward In picking up or removing
barges from a tow, the towboat with the tow stands out
in midstream and a harbor tug brings out any additional
barges to be added to the tow and takes from the tow
those to be removed. The towboats are seldom, if ever,
tied up along the bank The towboats are supplied with
fuel and groceries and other supplies as they proceed
along the river and do not stop to be supplied
Towboats normally carry a crew of from 9 to 11 per-
sons In the lower Mississippi they carry five deckhands
and a mate, a cook, an assistant engineer, a chief engi-
neer, a pilot, and a captain All except the cook work
square watches, that is 6 hours on and 6 hours off The
larger boats have crew lounges. The smaller boats use
the galley as a lounge, the galley being the place where
the cooking is done and the crew eats The pilot and the
captain work alternate watches as do the chief engineer
and the assistant engineer. The deck crew, which con-
sists of the five deckhands and the mate, also split the
watches so that three are on duty at a time.
Deckhands perform manual labor, handling ratchets,
slings, wires, and ropes. Their main function is to secure
the barges together so that the tow and towboat operate
as a unit The deck crew also breaks barges out of the
tow, checks for water in the compartments of the barges
(pumping out any water they find), checks for cleanliness
on the towboat, and performs housekeeping duties such
as chipping , painting , and loading supplies The engineer
and assistant engineer working under his direction are re-
sponsible for the upkeep of the machinery on the tow-
boat.
The captain is in charge of the towboat and the tow.
He and the pilot work opposite watches and are engaged
in steering the tow and controlling its speed on their re-
spective watches. Either the captain or pilot is in touch
with the company home office three times a day by
radio at 6 a m, 10.45 a m, and 3 45 p m.
A normal tour of duty for a crewmember is 30 days
on the towboat and 30 days off. They are paid for 60
days In the Illinois area crewmembers normally get off
the boat either at Peoria or St Louis If they are work-
ing on the Missouri they get off either at St. Louis,
Kansas City, or Omaha. On the lower Mississippi they
get off at Memphis or New Orleans, and on the Ohio
River, at Paducah, Louisville, or Pittsburgh. A prime
consideration regarding where a man gets on and off the
boat is commercial transportation from and to that point
and his home. The crew is not changed all at once, the
changes being staggered
The changing of the crew is handled by the captain
and the crew dispatcher at the Respondent's main office
in St Louis At the 3-45 p.m contact with the boat, the
captain ordinarily informs the office in St. Louis of the
number of expected crew changes, the number of re-
placements, and the time and date on which he expects
to make the change The office arranges with the re-
178 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
placements to travel from home to the place where the
exchange is to be made. The captain is notified and, a
day or so prior to arrival at the place where the ex-
change is to be made, he contacts the company that per-
forms harbor services at that place, informing them of
the estimated time of arrival and the crewmember he ex-
pects to pick up. The harbor service company arranges
to transport the arriving crewmember from its facilities
to the tow on arrival at the appointed place. The crew-
member being replaced then gets off and the new crew-
member gets on. The same procedure is followed in case
repairmen, such as radar electricians, are needed on the
towboat.
II. THE UNION
The Union, a labor organization as contemplated in
the Act, represents maritime personnel including employ-
ees aboard vessels on the inland waterways of the United
States. It maintains an office in San Francisco and
branch offices in Omaha, Nebraska, St. Louis, Missouri,
Paducah, Kentucky, Memphis, Tennessee, New Orleans,
Louisiana, and Joliet, Illinois. The Union also maintains
patrolmen (business agents) at various points along the
Mississippi River system, including the union offices at
the cities mentioned.
The Union maintains collective-bargaining agreements
with certain towboat companies that operate on the river
system, whose crewmen it represents. On these vessels it
has designated delegates among the crewmembers who
fulfill functions similar to a shop steward in a plant
ashore. '
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Union Campaign
1. Initial planning
In April 1979 the Union decided to initiate an organiz-
ing campaign to extend its membership among towboat
employees working on the navigable portions of the Mis-
sissippi River watershed Henry Dooley, international or-
ganizer located in San Francisco, was put in charge as
coordinator and John Guay, also an international orga-
nizer from San Francisco, was made second in charge.
These two men set up an organizing committee consist-
ing of themselves and Raymond Zaporowski and
Thomas Blessie, both organizers working out of the
Union's Omaha office. The committee reviewed past or-
ganizing activities of the Union on the Mississippi River
system and targeted 20 nonunion towboat companies, in-
cluding SCNO, for organizing activity.
2. June activity
In the week of June 4 Guay toured the river system,
enlisting the assistance of union patrolmen in union of-
fices in Joliet, Paducah, and St. Louis, and touring as far
south as Memphis and New Orleans. During this tour he
went aboard whatever towboats he discovered that em-
ployed crews unionized with the NMU, including boats
at Paducah and Cairo and some tied up near lock 26 near
Alton, Illinois. He asked these unionized crewmen to
promote the Union with crewmen on nonunion boats on
those occasions when they might be tied up next to them
or might be exchanging barges. For this purpose he
handed out supplies of his business card and also blank
union authorization cards that could be mailed back to
the Union if they succeeded in soliciting such pledges.
He went aboard a total of 10 to 12 unionized boats
during his June tour spreading the word in this fashion.
During the first week of June, Guay and Zaporowski
also spotted an SCNO boat tied up along the bank near
lock 26 because of a traffic bottleneck at the lock. Guay
attempted to hail one or two crewmen on deck but ap-
parently communication was difficult because of noise
from the highway behind him and from several nearby
towboats with running engines. A man emerged from the
pilot house of the SCNO boat, who I infer was either the
captain or the pilot, and asked Guay and Zaporowski
what they wanted. They identified themselves as NMU
organizers , saying they would like to get on the boat.
The man at the pilot house replied, "No. It is private
property You cannot come aboard " The organizers then
left
Also during his June tour Guay spotted another
SCNO boat in the Baton Rouge-New Orleans area and
also one in the vicinity of Cairo, Illinois, but on both oc-
casions the craft was in midstream where he could not
communicate with those aboard.
3. Correspondence
By a letter dated July 25, addressed to E Thomas
Drennan as president of Respondent,4 Dooley notified
Respondent that, the Union had commenced an organiz-
ing drive on the Company's boats and requested access
on all company boats wherever they might be to meet
with the employees. In due course Respondent received
the letter and referred it to its attorneys for reply In the
meantime , on August 6, Dooley sent to Company Presi-
dent Frank Markland another letter identical to his July
25 letter addressed to Drennan.
On August 9 the Company's attorney Milton Talent
responded to Dooley's first letter. He denied the Union's
request for access, giving as his reasons the numerous
problems presented, including uncertainty as to the cate-
gory of employees involved and substantial interference
with the company production and operations should
access be granted. The letter further stated that SCNO
had no intention of interfering with its employees' rights
under the Act and would fulfill its obligations to see that
such rights were fully implemented and given free play
The letter concluded by stating that any reasonable, real-
istic, and practical suggestions as to how implementation
of such rights might be carried out would be seriously
considered, but that the Union's request for access
aboard SCNO boats was, under the circumstances, nei-
ther realistic, reasonable, nor practical.
This letter crossed Dooley's second letter, which the
Company received August 13. Although Talent's letter
was addressed to Dooley as rivers coordinator of the
NMU at the street address for the Union in Omaha, as
printed on Dooley's letter, it was returned to Talent on
4 At the time Drennan was no longer company president
SCNO BARGE LINES
August 27 with a postal notation that 'Dooley was un-
known at that address Meanwhile, Talent had received
Dooley's second letter and on August 14 responded to it
in a short letter referring Dooley to Talent's first re-
sponse of August 9 On August 23, not having heard
from the Company, Dooley filed the unfair labor prac-
tice charges that were served on Respondent the follow-
ing day
When Talent's August 9 response to Dooley was 're-
turned undelivered on August 27, he drafted another
letter to Dooley dated August 28 noting the past corre-
spondence and its misdirection and enclosing a copy of
his August 9 letter
On August 30 Dooley sent another letter to the Com-
pany, this one again erroneously addressed, as was the
first one, to Drennan as president, adding to his earlier
request for access aboard company boats the further re-
quest for "a mailing list of all employees on your boats
excluding captains and pilots, also their home addresses
and the company address by boat " Talent replied to this
by a letter dated September 10 promising to supply the
Union with a list of nonsupervisory employees. On Sep-
tember 14 he sent Dooley the promised list consisting of
75 names of nonsupervisory employees with their home
addresses
4 August activity `
During the week of August 5 through 12, Guay re-
turned to the St. Louis area for further organizing, con-
centrating his efforts along the riverbank near lock 26,
he went aboard union boats, generally following his
prior organizing technique and using the same campaign
material to which he had added an informative reprint
from the Union's newspaper and a pamphlet containing
information about the Union with a new form of pledge
card allowing for five signatures. His hope was that
members aboard union boats would succeed in passing
the material to crewmen aboard nonunion boats, thereby
generating interest in and support for the Union. Also in
August Guay went aboard a union boat at St. Louis and
talked to a working crewman who was making up a tow
then being loaded. The record does not indicate what
they talked about or whether Guay passed the man any
organizing material.
On another occasion during the week of August 6
Guay, Zaporowski, and Blessie spotted an SCNO tow-
boat at the bank near lock 26. There being no one on
deck, they hailed the pilot house, whereupon either the
captain or pilot emerged and, in answer to their request
to come aboard, denied their request
5 Mailings
During August the organizing committee began devel-
oping mailing lists for unionized riverboats During the
third and fourth weeks in September they began mailing
out to NMU delegated aboard such boats on the Missis-
sippi, Illinois, and Missouri Rivers packets of campaign
material, including reprints from the union newspaper
and the expanded pledge card pamphlet previously re-
ferred to, along with a cover letter from Dooley with
the message to pass on the material to nonunion boats
179
Following receipt from Talent on September 20 or 21
of the list of 75 nonsupervisory employees of SCNO,
several union mailings were made to those employees on
that list The first of these mailings took place in the first
week of October and included a cover letter addressed
to SCNO barge line rivermen and the aforementioned
pamphlet with the detachable pledge card. A similar
mailing directed to "riverboat people," and including the
persons on the SCNO list, was sent out during the week
of October 22 This included the aforementioned pam-
phlet with, blank pledge card and a reprint from the
union newspaper. And again in November a third similar
mailing, including the pamphlet with the pledge cards,
was sent out
The Union received no response from any of these
mailings or , so far as the record shows, from any of the
organizing material put aboard the union boats for the
purpose of being passed to nonunion boats.
6 Other methods considered
The organizing committee also considered various
other organizing methods that for one reason or another
they decided not to use. Thus, radio and television com-
mercials were rejected as inadequate for reaching the
people in which they were interested The organizers did
not hang around taverns that crewmen might patronize
because they were uninformed of the times of crew
changes and also because, until late in the campaign,
they lacked a home mailing list. They considered tele-
phoning the towboats but rejected that idea because such
calls would have had to be on an open channel, the em-
ployee involved would have had to be requested by
name, and the telephones aboard are in the pilot houses
under the surveillance of captain or pilot. They made no
home visits. According to Guay the difficulties in
making the home visits were that organizers needed a list
of the employees, which they did not have for much of
the campaign, the addresses they eventually received are
widely scattered,5 and the organizers remained unin-
formed as to whether the employees were in fact at
home or aboard a boat They also made no effort to con-
tact employees at home by telephone. I infer for the
same reasons , although this is not spelled out in the
record
Apparently no affirmative results accrued from the or-
ganizing effort insofar as Respondent's employees are
concerned, the Union being unsuccessful in achieving
direct communication with SCNO employees by any of
the methods used.
5 The residences of the 75 nonsupervisory crewmen of SCNO are scat-
tered over 12 States However, 47 are located in three States, namely 19
in Missouri, 17 in Illinois, and 11 in Arkansas The balance are located as
follows eight to Kentucky, seven in Tennessee, three to Louisiana, three
in Mississippi, two each in Texas and Iowa, and one each in Michigan,
Oklahoma, and Pennsylvania
180 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
B. The Question of Reasonable Alternatives to Access
Aboard the Towboats
1 General contentions of the parties
The General Counsel contends generally that without
access to Respondent's employees while they are aboard
the towboats union organizers lack reasonable means for
carrying on organizing among those employeess and,
therefore, access aboard the towboats should be required
Respondent generally contends to the contrary that such
compulsory access aboard its towboats is not indicated
because reasonable alternatives exist for organizing
ashore among its employees. Both agree that the Su-
preme Court set forth the basic standards for ordering
union access to an employer's premises in NLRB v. Bab-
cock & Wilcox, 351 US 105 (1956) The Court stated
(112-113):
It is our judgment, however, that an employer
may validly post his property against nonemployee
distribution of union literature if reasonable efforts
by the union through other available channels of,
communication will enable it to reach the employ-
ees with its message and if the employer's notice or
order does not discriminate against the union by al-
lowing other distribution.
The employer may not affirmatively interfere with
organization, the union may not always insist that
the employer aid organization But when the inac-
cessibility of employees makes ineffective the rea-
sonable attempts by nonemployees to communicate
with them through the usual channels, the right to
exclude from property has been required to yield to
the extent needed to permit communication of infor-
mation on the right to organize.
The right of self-organization depends in some
measure on the ability of employees to learn the ad-
vantages of self-organization from others. Conse-
quently, if the location of a plant and the living
quarters of the employees place the employees
beyond the reach of reasonable union efforts to
communicate with them, the employer must allow
the union to approach his employees on his proper-
ty.
2 Theory of the General Counsel
More particularly the General Counsel contends that
where, as here, the employees targeted by the Union live
and work aboard a marine vessel for substantial periods
of time, no substitute exists for union access to the em-
ployees while they are aboard. The General Counsel as-
serts that he had proved such facts here and has made
out a prima facie case for ordering union access aboard
SCNO towboats He relies on the Board's decision in
Sabine Towing & Transportation Co., 205 NLRB 423
6 It is undisputed that the Union does not now represent any SCNO
employees
(1973), enf denied 599 F.2d 663 (5th Cir. 1979) The
Board there noted (205 NLRB at 424):
Since this is a case where the employees essentially
are housed within the Employer's premises, i.e., the
tankers, the general proposition of law applicable to
it is that, absent legitimate business considerations,
the Employer may not deny nonemployee union repre-
sentatives direct, personal access to such premises, for
the purpose of discussing unionism with the work-
ers concerned, unless other adequate channels of com-
munication with such workers are demonstrably avail-
able. [Emphasis added ]
In Sabine the Board cited, and the General Counsel here
also relies on, Board decisions in Alaska Barite Co., 197
NLRB 1023 (1972), enfd. 83 LRRM 2992 (9th Cir. 1973),
and Sioux City & New Orleans Barge Lines, 193 NLRB
382 (1971), enf denied 472 F.2d 753 (8th Cir 1973) In
Alaska Barite, supra, the Trial Examiner with Board ap-
proval stated (at 1029)•
Nothing within the Supreme Court's Babcock &
Wilcox decision suggests that unions must be re-
quired to prove available alternatives inadequate,
where the "location of a plant and the living quar-
ters of the employees" themselves show that such
workers are "beyond the reach of reasonable union
efforts" to communicate with them To require a
labor organization's representative, nonetheless, to
seek contact with the concerned workers in some
other manner would be to dictate little more than a
futile gesture, which would serve no constructive
purpose but would, rather, require the expenditure
of considerable time, effort, and resources, merely
to confirm what should be clear from the objective
facts-that such other methods of communication
provide "no substitute for face to face contact"
within a relaxed atmosphere, and must therefore be
considered ineffective
SCNO is the same employer as in Sioux City, supra The
General Counsel also relied on the Board's decision in
Belcher Towing Co, 238 NLRB 446 (1978), enf denied in
part 614 F 2d 88 (5th Cir 1980).
3. Theory of Respondent
Counsel for SCNO contends that the General Coun-
sel's theory would shift to Respondent the burden of
proving whether alternative methods of communication
exist for the Union to adequately communicate its mes-
sage to the employees. He argues that such a theory is
erroneous, citing the Fifth Circuit's decision in NLRB v.
Sabine Towing & Transportation Co., 599 F 2d 663 (5th
Cir. 1973), and that court's reliance on the Supreme
Court's decision in Sears Roebuck & Co v. San Diego
County District Council of Carpenters, 436 U S. 180
(1978).
4. Discussion of reasonable alternatives
Considering the argument of counsel and the cases
cited, and with due respect to Fifth Circuit's opinion in
SCNO BARGE LINES 181
the Sabine case, I find and conclude that the General
Counsel 's reading of Board decisions and of Babcock &
Wilcox is correct and that his theory , stated above, is
valid . Under the doctrine of Iowa Beef Packers, 144
NLRB 615, 616 (1963), Board law is binding on me.
a. Isolation of towboat crews
It is undisputed that SCNO refuses to permit union or-
ganizers aboard its towboats . It is also undisputed that
each crewman for all intents and purposes is sequestered
aboard his towboat every other 30-day period, such peri-
ods alternating with similar periods ashore . I infer that at
any given time approximately half of Respondent 's active
boat employees are on boats and approximately half are
ashore. Thirty days aboard a boat is a substantial period
of time. And even over a more expended period, each
crewman averages half of his time in that same situation.
I find that during those periods aboard SCNO "employ-
ees essentially are housed within the Employer's prem-
ises" as contemplated by the Board 's language in Sabine,
supra. This is "inaccessibility of employees" as contem-
plated in Babcock & Wilcox (351 U.S. at 112). I further
find that, on the record here, other channels of commu-
nication with crewmen while they are aboard SCNO
boats are not demonstrably available.
b. Indirect organizing through unionized employees of
other companies
Respecting alternative means by which union organiz-
ers might reach crewmen aboard the towboats, the Gen-
eral Counsel offered evidence that shows that the Union
placed , either by mail or by hand , organizing literature in
the hands of union members and delegates on unionized
towboats of other companies with the requests that they
endeavor to pass the material to crewmen aboard non-
union towboats. The record does not reveal whether this
literature found its way onto nonunion vessels and, spe-
cifically, whether any reached SCNO vessels. Assuming,
without finding, that some of it reached the hands of
SCNO crewmen in this manner, I find that method is not
a reasonable alternative to access aboard for union orga-
nizers because the essential element of direct personal
communication is lacking . Belcher Towing Co., supra;
Sioux City & New Orleans Barge Lines, supra.
c. Mass media
The General Counsel also offered evidence that union
organizers considered , but rejected, the use of radio and
television as a means of bringing the Union 's message to
nonunion boatmen because they deemed them inadequate
for reaching the people they had targeted. I find their as-
sessment to be accurate. The evidence shows that the
SCNO vessels are constantly moving , traversing long
stretches of the river system. The geographic facts are
such that they necessarily move into and out of the lis-
tening and viewing areas of numerous radio and televi-
sion transmitters. In these circumstances there is no real-
istic way to prudently select stations with a reasonable
chance that the desired message will reach crewmen
aboard SCNO vessels. Use of such means would, at best,
be a "shotgun" approach. The Board in a number of
cases has ruled that use of mass media to reach a small
group of targeted employees is not a reasonable alterna-
tive to direct personal communication between organiz-
ers and employees. See S & H Grossinger's, Inc., 156
NLRB 223 (1965), enfd. 372 F.2d 26 (2d Cir. 1967); Scott
Hudgens, 205 NLRB 628, 631 (1973); Scott Hudgens, 230
NLRB 414, 416 (1977); Holland Ranto, Co., 234 NLRB
726 fn. 5, 733-734 (1978); and Hutzler Bros. Co., 241
NLRB 914 fn. 2, 916 (1979). I find, therefore, that use of
mass media is not a reasonable alternative means for
reaching SCNO employees whether aboard their vessels
or at home.
d. Telephone calls to towboats
Union organizers also considered attempting to reach
SCNO crewmen aboard by telephoning the vessels. They
rejected this technique because such calls, which would
be received in the vessel's pilot house, would be subject
to surveillance by the captain or the pilot. For that
reason alone such calls are not a reasonable alternative
means of communication.
e. Union mailings
The organizers did attempt to reach SCNO crewmen
by three separate mailings to their home addresses, two
in October and one in November , of campaign material
designed to interest them in the Union. These mailings
were based on the list of names and home addresses sup-
plied by SCNO following the Union's request. Although
the Union also by then had requested the addresses of
employees by boat, SCNO did not furnish that informa-
tion . However, respecting the list that was furnished,
Dooley, in talking with Talent, expressed his satisfaction.
No further effort was made to press for the boat address-
es. But even if the mailings had included boat addresses,
the technique of mailing lacks the element of personal
contact with crews on the boats that access aboard
would provide. NLRB v. Babcock & Wilcox, supra; Sioux
City & New Orleans Barge Lines, supra at 386; Belcher
Towing Co., supra. Accordingly, I find that mailings are
not a reasonable alternative to access aboard.
f. Home telephone calls and visits
Union organizers also considered , but rejected, tele-
phone calls and visits to the homes of crewmen. Of
course it would be impossible by such methods to reach
about half of the crewmembers who at the time of calls
or visits are aboard the towboats. Under the General
Counsel's theory, which I accept, such methods cannot
be a reasonable alternative to access for organizers
aboard company vessels. NLRB v. Babcock & Wilcox,
supra; Sabine Towing & Transportation Co., supra; Sioux
City & New Orleans Barge Lines, supra; Belcher Towing
Co., supra.
Telephone calls to crewmembers' homes are a method
for preliminary contact with the segment who are not
aboard at the time . And, by the same token , home visits
are a method of personal communication with that seg-
ment . A continuing program of calls and home visits
over an extended period of time arguably could reach all
crewmembers. The inevitable cost and effort of such an
182 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
extended program, especially for reaching all employees,
the residences being scattered over 12 States, rule it out
as a reasonable alternative to access aboard the vessels.
Belcher Towing Co., supra at 475 In addition, as pointed
out by the General Counsel, 33 of the 75 addresses fur-
nished by SCNO had no street addresses. This is a fur-
ther reason why home visits are not a reasonable alterna-
tive to access aboard. Sabine Towing & Transportation
Co, supra
Guay rejected telephone calls and home visits because
the residences were scattered. He also rejected them be-
cause for much of the campaign he lacked a list of names
and home addresses. But this lack cannot be laid at Re-
spondent's doorstep because Talent responded promptly
after Dooley requested names and addresses by promis-
ing a list of nonsupervisory employees and supplied such
a list within a reasonable time. Dooley never requested
telephone numbers.
Company counsel contends that 46 of the nonsupervi-
sory crewmen of SCNO reside within 50 miles of size-
able cities on the river system, as follows 16 have ad-
dresses within 50 miles of St Louis, 8 within 50 miles of
Cape Girardeau, 10 within 50 miles of Memphis, and 12
within 50 miles of Paducah I find that 16 reside within
50 miles of St. Louis, but only 5 within 50 miles of Cape
Girardeau, 3 within 50 miles of Memphis, and 8 within,
50 miles of Paducah With the exception of Cape Girar-
deau, the Union has patrolmen in each of these cities.
SCNO counsel argues that it is more convenient for the
Union to call on these employees at home than on con-
stantly moving towboats. But this is mere speculation. In
any case, counsel's argument does not take account of
the 43 residences that I find are beyond a 50-mile radius
of these cities.
In contrast to a home visit, a visit aboard a towboat
affords the opportunity of conferring with more than one
crewmember If SCNO operates a maximum of nine tow-
boats, nine such visits have the possibility of personal
contact with all employees off duty at a given time,
about, one-fourth of the Company's total complement.
g. Surveillance of taverns
According to Guay, union organizers rejected hanging
around taverns that SCNO crewmembers might patron-
ize near home, on coming ashore, or before going
aboard, because they were uninformed of the times of
crew changes, or of home addresses until late in the cam-
paign. Even assuming they had such information, surveil-
lance of taverns is not a reasonable alternative to access
aboard the vessels. Belcher Towing Co, supra at 477, 478,
Sabine Towing & Transportation Co., supra at 425 A rea-
sonable alternative requires "a relaxed atmosphere" in
which employees may exercise their Section 7 rights.
Alaska Barite, supra at 1029.
h Crew change points
The record shows that SCNO crew changes are made
at Omaha, Kansas City, St Louis, Memphis, Paducah,
and New Orleans. There is no evidence of any union or-
ganizing effort at those times and places by organizers or
patrolmen,and I infer no such effort was made Also,
there is no evidence union organizers knew the places of
crew change , let alone the times of change , although
there is the possibility they might have obtained such in-
formation had they asked for it I base this observation
on Talent's offer of cooperation , other than access
aboard, to assure fulfillment of employee Section 7
rights, and on the fact that he responded affirmatively to
Dooley's request for names and addresses . But in any
event, even with such information in union hands, the
objective circumstances do not demonstrate a reasonable
alternative to access aboard the vessels . Sabine Towing &
Transportation Co, supra, Sioux City & New Orleans
Barge Lines , supra at 386-387. The evidence regarding
crew changes warrants the inference , and I find, that
such occasions for the most part do not afford a reasona-
ble situation where organizational communication and
interchange are possible See Alaska Barite Co ., supra.
i. Conclusion respecting reasonable alternatives
The legal debate between the General Counsel and
counsel for SCNO on the question of reasonable alterna-
tives to access aboard SCNO towboats results from dif-
ferences between Board and court decisions, particularly
the Fifth Circuit's decision in NLRB v. Sabine Towing &
Transportation Co, supra, the General Counsel relying on
the Board decisions and SCNO on the court of appeals
The Fifth Circuit cited the Supreme Court's decision in
Sears Roebuck & Co. v. San Diego County District Council
of Carpenters, supra, on the issue of burden of proof. In-
ferentially SCNO looks to Sears to support its position
here I do not find such support in Sears Firstly, Sears
did not arise in a Board proceeding and the Supreme
Court was not ruling on a particular Board action. Sec-
ondly, read in its entirety, Sears reemphasizes the avail-
ability of Board jurisdiction in access cases (436 U.S at
201-202), by noting "the balance struck by the Board
and the Courts" in NLRB v. S & H Grossinger's, Inc., 372
F 2d 26 (2d Cir 1967), and NLRB v. Lake Superior
Lumber Corp, 167 F.2d 147 (6th Cir 1948) (436 U S. at
205 and fn 41), both Board proceedings in which
"unique obstacles to nontrespassory methods of commu-
nication with employees" persuaded the Board to order
union access to employer premises, and by noting the
Board's role in access cases to enunciate an accommoda-
tion of employer property rights and union Section 7
rights (436 U.S. 201, 204). The Court points to the Board
as the available and approved forum for adjudging access
cases under Section 8(a)(1) and certainly does not dis-
avow the decisional law of the Board already developed
in its application of Babcock & Wilcox, supra On the
contrary, the language in Sears is consistent with the
Board's role as the single official agency with nationwide
jurisdiction designated in the Act to administer it. Board
precedents, therefore, have special significance in evalu-
ating the allegations of unfair labor practices presented
here I conclude that the legal issue remains one of di-
vergence between Board and court of appeals precedent
Being bound by Board precedent under Iowa Beef Pack-
ers, supra, and as set out hereinabove, I find they support
the General Counsel's theory as applied to the evidence
in this record of alternatives to access aboard SCNO
SCNO BARGE LINES 183
towboats. Accordingly, for the reasons set out above, I
find reasonable alternatives to such access do not exist.
C. The Question of Union Entitlement to Special
Consideration
base them on speculation . Secondly , at this stage of liti-
gation, with all due respect for the different view of the
Eighth Circuit in Sioux City, under the rule of Iowa Beef
Packers, supra , I must follow the Board 's decision that al-
lowed access to union organizers.
In its brief SCNO makes the point that the Union is a
stranger to SCNO and its employees and is not entitled
to the same privileges it has aboard craft operated by
employers whose employees it represents . I agree. How-
ever, the only rights sought in this proceeding are those
set out by the Supreme Court in Babcock & Wilcox,
supra. Nevertheless, SCNO counsel complains that if
even these rights are "granted to the NMU in the
present case there is nothing to stop every other union
which might want to make an attempt to organize from
boarding the Respondent's boats or the boats of any
other company operating on the rivers of the United
States." I agree to the extent other labor organizations
have the same rights under the law as does NMU. As I
read Babcock & Wilcox, supra, the Supreme Court did
not intend otherwise . However, there is no evidence in
this record indicating that any union other than NMU is
currently interested in organizing among SCNO crew-
members.
SCNO counsel also asserts , without a record reference,
that at the hearing the administrative law judge ex-
pressed the opinion that in many industries union orga-
nizers have been allowed on employers' premises for
purposes of organizing . It is true, of course, and the
Board has so held in a number of cases involving differ-
ent industries , that where Babcock & Wilcox standards re-
quire, union organizers must be allowed to organize on
company property . If counsel believes the administrative
law judge holds the view that nonemployee union orga-
nizers have carte blanche to enter employer premises, he
is under a misapprehension, and if such an impression
was conveyed during the hearing, it is disavowed.
D. The Question Whether Access Aboard Imposes
Substantial Burden on SCNO
1. Other unions
Respondent 's counsel argues that if NMU is allowed
to board SCNO boats at least four other unions repre-
senting employees on the rivers will seek , and will have
a right to seek , access aboard. Counsel argues that that
would be the same situation as was before the Eighth
Circuit in NLRB v. Sioux City & New Orleans Barge
Lines,7 in which that court ruled that "permitting three
unions to have access to an employer 's property under
the circumstances . . . imposes a substantial burden on
both the employer's property rights and on his produc-
tion." For those reasons the court refused to enforce the
Board's Order granting access to Respondent 's towboats
for organizers of the three unions there involved.
As already noted, the present record reveals no cur-
rent interest in organizing SCNO employees other than
that shown by NMU. To make findings based on a pre-
diction that other unions will follow suit, would be to
7 472 F 2d 753 (1973).
2. Liability for injury
Respondent 's counsel further contends that if access
for NMU organizers is ordered in this case, SCNO risks
incurring substantial liability for injuries such visitors
might sustain as a result of the Company's failure to
maintain a safe place , citing the Supreme Court's ruling
in Kermarec v. Compagnie Generale Transatlantique, 358
U.S. 625 (1959). Counsel's point has validity to the extent
that under maritime law an enterprise carries a greater
burden of liability in the event of injury to visitors than
is the case with land -based enterprises . Moreover, as
shown by the evidence herein, there is no question but
that certain hazardous conditions exist aboard towboats,
as well as in boarding and disembarking from them,
which do not exist ashore . Of course some hazards
ashore are not present on a towboat.
Presumably because of both the liabilities imposed by
maritime law and the hazards characteristic of towboat
operations , SCNO discourages visitors aboard its tow-
boats . However, this policy is not an invariable, absolute,
ban on visitors. On infrequent occasions vessel officers
have their spouses on board the larger craft in the
Lower Mississippi.8
The Company also publishes a booklet directed to
vessel employees that provides , on the subject of guests
as follows:
XIII. Guests
When any of the Company vessels are carrying
guests, Cooks will be paid $ 10.00 extra each day
that guests are aboard. Government personnel, tech-
nical representatives on board to observe and cor-
rect equipment problems, and Company employees
and their families are not considered to be guests
for this purpose.
It is apparent from the above that SCNO already ac-
commodates visitors in addition to persons who routinely
come aboard for business reasons such as fuel , or other
supply vendors who need an invoice signed , radio and
radar repairmen , and marine surveyors.
The extent to which access aboard for NMU organiz-
ers would increase the risk of liability and accidents is
not established in this record . From the facts noted
above I find that management already has accounted for
some burden associated with visitors . Thus, the prospect
of NMU organizers aboard does not present an entirely
new type of burden . Whatever additional burden is en-
8 A recent occurrence demonstrates the flexibility of the antivisitors
policy when business or operational considerations so dictate. A shortage
of towboat pilots available for the Lower Mississippi had developed.
SCNO needed an experienced pilot for a single trip but the pilot available
to them agreed to accept the assignment only if he were permitted to
bring his wife with him. SCNO agreed and the pilot's spouse accompa-
nied him throughout the trip
184 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
tailed in allowing NMU organizers aboard can be kept to
a minimum by reasonable arrangements. Access for orga-
nizers need not go beyond what is reasonably necessary
to accomplish the communication involved in organizing.
Central Hardware Co v. NLRB, 407 U.S. 539, 544-545
(1972); NLRB v. Lake Superior Lumber Corp, 167 F.2d
147 (6th Cir. 1948)
3. Resolution regarding the burden of access
In the circumstances of this case any additional "yield-
ing" of SCNO property rights required by granting
access to union organizers would be "both temporary
and minimal " Central Hardware Co v. NLRB, supra at
545. On the other hand, without access the Section 7
rights of SCNO crewmen aboard are very limited and
those of nonemployee NMU organizers are virtually
meaningless Giving due consideration to the factual con-
text of this case in accordance with the Supreme Court's
instruction in Scott Hudgens v. NLRB, 424 U.S 507, 521-
523 (1976), I find that the least destruction of conflicting
Section 7 rights and employer property rights here will
result by an accommodation allowing organizer access to
the towboats. NLRB v. Babcock & Wilcox Co., supra at
112. In so finding I am mindful of the result reached by
the court of appeals in NLRB v Sioux City & New Orle-
ans Barge Lines, supra, but my reading of Board deci-
sions in access cases persuades me that on the record
here the Board requires some yielding of the property
rights of the employer to accommodate Section 7 rights
under the Act. See particularly (marine cases) Interlake
Steamship Co., 174 NLRB 308 (1969); Sioux City & New
Orleans Barge Lines, supra; Ingram Barge Co, 204 NLRB
63 (1973); Sabine Towing & Transportation Co., supra, and
Belcher Towing Co., and generally (nonmarine cases) S &
H Grossinger's, Inc., supra; New Pines, Inc., 191 NLRB
944 (1971); Monogram Models, Inc, 192 NLRB 705
(1971); Alaska Barite Co., supra; Scott Hudgens, 205
NLRB 628 (1973); Scott Hudgens, 230 NLRB 414 (1977),
supra, Holland Rantos Co, supra, and Hutzler Bros. Co.,
supra
E. The Question Whether the Act Requires Employer
Assistance to Unions
Citing Section 8(a)(1) and (2) of the Act for the propo-
sition that the purpose of the Act is to require employers
to leave organization of employees to the employees and
unions involved, Respondent counsel argues that SCNO
risks unfair labor charges from other unions if it allows
NMU organizers to have access aboard. Counsel sup-
ports their contention by pointing out that access, if al-
lowed, necessarily would involve some supportive effort
by SCNO, such as informing the Union of the location
of boats at particular times, arranging transportation to
and from shore, transporting organizers while vessels are
underway, and feeding them if they remain on board a
substantial amount of time He argues that SCNO em-
ployees would thereby gain the impression that the Com-
pany favors NMU and was assisting it Citing Livingston
Shirt Corp., 107 NLRB 400, 406-407 (1953), counsel con-
tends that equality of opportunity between the parties re-
garding organizing is best achieved through whatever
customary means are available to each, and that the
Board should not require an employer to make its facili-
ties available to a union for organizing its employees
The difficulty with this argument is that the Supreme
Court has already answered it in NLRB v. Babcock &
Wilcox, supra, as has the Board in the numerous cases de-
cided pursuant to the Supreme Court's ruling, and cited
hereinabove. At this point the argument is not persua-
sive
F The Question of Res Judicata
At my request the parties briefed the question wheth-
er, under the doctrine of res judicata, litigation of the
present matter is barred by the Eighth Circuit's decision
in NLRB v. Sioux City & New Orleans Barge Lines, 472
F.2d 753 (1973), denying enforcement of an order of the
Board ordering this Respondent to grant access aboard
its towboats to organizers of three unions including
NMU. Having considered the contentions of counsel and
the applicable authorities, I conclude that the present
proceeding is not barred by the prior litigation under the
doctrine of res judicata.
The General Counsel argues that because other charg-
ing parties, namely, the two additional unions, were in-
volved in the prior case, there can be no bar. I reject this
argument because in the prior case each union was a sep-
arate party with a separate cause of action.9 The rights
of each complaining party,' although similar, were not
joint The court of appeals ruled that the presence of
three unions simultaneously organizing resulted in an un-
acceptable burden on the Company, but this was a factu-
al matter not necessarily related to each union' s status as
a party. The broader aspects of res judicata, referred to
as collateral estoppel, could still apply.
Collateral estoppel is "that aspect of res judicata con-
cerned with the effect of a final judgment on subsequent
litigation of a different cause of action involving some of
the same issues determined in the initial action." Develop-
ments in the Law: Res Judicata, 65 Harv. L. Rev. 819,
840. Since the earlier case involved a different historical
event, and necessarily a different cause of action under
Section 10 of the Act than presently involved, the ques-
tion of whether the prior ruling of the Eighth Circuit is
conclusive depends on considerations of collateral estop-
pel. Commissioner v. Sunnen, 333 U.S 591, 598-599
(1948). In that case the Supreme Court stated as follows
(333 U S. at 601-602):
But if the relevant facts in the two cases are separa-
ble, even though they be similar or identical, collat-
eral estoppel does not govern the legal issues that
9 NMU had petitioned for an election, the two other unions had inter-
vened, and NMU had filed objections to company conduct affecting the
election A complaint based on unfair labor practice charges filed by the
other unions alleged the same company conduct (refusal to allow orga-
nizers aboard towboats) was consolidated with a hearing on objections
The Board found the denials of access were objectional and also unfair
labor practices under Sec 8(a)(1) of the Act It ordered the election set
aside and ordered Respondent to cease and desist from the unfair labor
practices Respondent refused to comply with the Board's cease-and-
desist order The Board then applied to the Eighth Circuit for enforce-
ment of its order and that court denied enforcement
SCNO BARGE LINES 185
recur in the second case. Thus, the second proceed-
ing may involve an instrument or transaction identi-
cal with, but in a form separable from, the one dealt
with in the first proceeding In that situation, the
Court is free in the second proceeding to make an
independent examination of the legal matters at
issue It may then reach a different result, or, if con-
sistency in decision is considered dust and desirable,
reliance may be placed on the ordinary rule of stare
decisis. Before a party can invoke the collateral es-
toppel doctrine in these circumstances , the legal
matter raised in the second proceeding must involve
the same set of events or documents and the same
bundle of legal principles that contributed to the
rendering of the first judgment [Citations omitted ]
It is clear from the Court 's ruling that collateral estoppel
does not apply where, as here, the second action in-
volves a separate set of facts, even though they be simi-
lar or identical to the facts in the earlier case
G. The Question Whether the General Counsel is
Harassing SCNO
Sometime in November , Talent returned a telephone
call from Dooley In their ensuing conversation Doley
acknowledged that SCNO had sent, and he had received,
the names and addresses earlier requested by the Union
He observed that SCNO was a pretty good company.
Talent then mentioned that in the case of another non-
union company that had sent the Union a similar list, the
Union had been satisfied . Dooley agreed , indicating some
embarrassment about having filed unfair labor practice
charges against SCNO Talent then suggested Dooley
withdraw the charges if the Union was satisfied with
what SCNO had done. Dooley stated he would do so,
and he subsequently did request the Board 's Regional
Director to withdraw the charges. The Regional Direc-
tor, however, denied his request
Although Respondent's supplying of the requested list
satisfied the Union at that point and led to the requested
withdrawal of the charges, the list was furnished prior to
any discussion of union satisfaction , or of decision to
withdraw the charges, or request to withdraw the
charges. Thus, supplying the list was not part of an
agreement to settle the charges. In any case , at the hear-
ing the Union unequivocally stated that it desired to pro-
ceed on the complaint
Respecting Respondent ' s contention that it is being
harassed by this proceeding from which the Union at
one point was willing to withdraw, I note that under the
Act the General Counsel has an independent responsibil-
ity to refuse to dismiss cases where such would not ef-
fectuate the policies of the Act. Industrial Painters, 117
NLRB 1301, 1310 (1957) As the Board stated in Alberici-
Frum-Colnon, 226 NLRB 1315, 1316 (1976).
More importantly, we note that the fact that a
charging party may not wish to pursue a complaint
further is not necessarily a valid ground for dismis-
sal Once a charge is filed, the General Counsel pro-
ceeds, not in vindication of private rights, but as the
representativae of an agency entrusted with the
power and duty of enforcing the Act in which the
public has an interest, and dismissal does not lie as a
matter of right should the charging party seek the
charge's withdrawal
I conclude that the General Counsel has not abused this
"power and duty of enforcing the Act" and is properly
proceeding with the present matter. Respondent's con-
tention of official harassment lacks merit
Pursuant to Section 10(c) of the Act and based on a
preponderance of the evidence in the record as a whole,
I find and conclude that SCNO should allow the Union's
organizers reasonable access to its towboats to permit the
accommodation between Section 7 rights and private
property rights required by the Supreme Court' s rulings
in NLRB v. Babcock & Wilcox, supra, and Hudgens v.
NLRB, supra.
IV THE EFFECT OF THE UNFAIR LABOR PRACTICES
ON COMMERCE
The activities of SCNO set forth in section I, above,
occurring in connection with its operations described
therein, have a close , intimate , and substantial relation-
ship to trade , traffic, and commerce among the several
States and tend to lead to labor disputes burdening and
obstructing commerce and the free flow of commerce.
CONCLUSIONS OF LAW
1. SCNO is an employer within the meaning of Sec-
tion 2(2) and is engaged in commerce within the meaning
of Section 2(6) and (7) of the Act
2 The Union is a labor organization within the mean-
ing of Section 2(5) of the Act
3. SCNO, by refusing to allow union organizers
aboard its towboats to engage in organizing activity
among its towboats crewmembers, engaged in, and is en-
gaging in, unfair labor practices within the meaning of
Section 8(a)(1) of the Act
4. The unfair labor practices found above affect com-
merce within the meaning of Section 2(6) and (7) of the
Act.
THE REMEDY
Having found that SCNO violated Section 8(a)(1) of
the Act, I recommend that it be ordered to cease and
desist therefrom and that it take certain affirmative
action designed to effectuate the policies of the Act.
Such order shall contemplate reasonable arrangements to
allow union access to Respondent 's boats while avoiding
needless interference with company operations
[Recommended Order omitted from publication.]