Seafarers International Union

National Labor Relations Board - Board Decisions

Nov 18, 1980

253 N.L.R.B. 337 (N.L.R.B. 1980)

SEAFARERS INTERNATIONAL UNION
Seafarers International Union of North America, At-
lantic, Gulf, Lakes and Inland Water District
and American Commercial Barge Line Compa-
ny. Case 15-CC-728 15-CC-728
November 18, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND PENEII.O
On June 23, 1980, Administrative Law Judge
Leonard M. Wagman issued the attached Decision
in this proceeding. Thereafter, Respondent filed ex-
ceptions and a supporting brief, and the General
Counsel filed a brief in support of the Administra-
tive Law Judge's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided toaffirm the rulings, and
findings,' and conclusions of the Administrative
Law Judge and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the Respondent, Seafarers Inter-
national Union of North America, Atlantic, Gulf,
Lakes and Inland Water District, New Orleans,
Louisiana, its officers, agents, and representatives,
shall take the action set forth in the said recom-
mended Order.
i Respondent has excepted to certain credibility findings made by the
Administrative Law Judge It is the Board's established policy not to
overrule an administrative lav. judge's resolutions with respect to credi-
hility unless the clear preponderance of all o the relevant eidence con-
vinces us that the resolutions are incorrect Standard Dry Wall Products.
Inc. 91 NLRB 544 (1950), enfd. 188 F2d 362 (3d Cir. 1951). We have
carefully examined the record and find no hasis for reversing hi, findings.
DECISION
STATEMENr OF THE CASI
LEONARD M. WAGMAN, Administrative Law Judge:
This case was heard at New Orleans, Louisiana, on
March 3 and 4, 1980, upon a complaint issued on Janu-
ary 17, 1980, by the Acting Regional Director for
Region 15 of the National Labor Relations Board, upon
a charge filed by the Charging Party, American Com-
mercial Barge Line Company. referred to herein as
I The name of the Charging Ptarty appears as correcled upon the G(en-
eral Counsel's motilon
ACBI., on January 2, 1980. alleging that Seafarers Inter-
national Union of North America, Atlantic, Gulf, Lakes
and Inland Waters District. referred to herein as the
Union, violated Section 8(b)(4)(i) and (ii)(B) of the Na-
tional Labor Relations Act, as amended (29 U.S.C. Sec.
151, et seq.), herein called the Act, by picketing the facil-
ities of Cooper Stevedoring Company, Inc., referred to
below as Cooper. and Gulf Elevator and Transfer Com-
pany, referred to below as GETCO, at Darrow, Louisi-
ana, during a labor dispute with ACBL, and its affiliates,
American Barge Line Company, referred to as ABL,
Southern Ohio Towing Company, Inc.. referred to
below as Southern, and Inland Tugs Co., referred to
below as Inland. The Union filed an answer denying the
commission of any unfair labor practices. Following the
close of the hearing, the General Counsel, the Union,
and the Charging party filed briefs.
Upon the entire record in this case, from my observa-
tion of the witnesses' demeanor, and upon careful consid-
eration of the briefs, I make the following:
FINDINGS AND CONCLUSIONS
I. THE BUSINESS OF THE EMPI.OYERS
ACBL, ABL, Southern, and Inland are each Delaware
corporations with principal offices and places of business,
respectively, at Jeffersonville, Indiana. Each is a wholly
owned subsidiary of American Commercial Line, Inc.
(ACL). Each of these corporations is engaged in the in-
terstate transportation of goods and commodities by
river barge throughout the United States. During the 12
months preceding the issuance of the complaint herein,
which period is representative of all times material to
this case, each of these employers received gross rev-
enues exceeding $50,000 from its respective operations
and purchased and received goods and materials valued
in excess of $50,000, directly from points located outside
the State of Louisiana.
GETCO is a Delaware corporation and Cooper is an
Alabama corporation. Each engages in the unloading and
loading of goods and commodities from river barges to
ships and has its principal offices and places of business
at Darrow, Louisiana. Both GETCO and Cooper annual-
ly receive gross revenues exceeding $50,000 from their
business operations. Each purchases and receives goods
and materials valued in excess of $50,000 directly from
points located outside the State of Louisiana. I find from
the foregoing that ACBL, American, Southern, Inland.
GETCO, and Cooper are and have been, respectively, at
all times material herein, employers engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act.
II. THE I ABOR ORGANIZATION INVOI VED
Seafarers International Union of North America, At-
lantic, Gulf, Lakes and Inland Water District is, and at
all times material to this case has been, a labor organiza-
tion as defined in Section 2(5) of the Act.
253 NLRB No. 33
337
DEFCISIONS OF NATIONAI. ILABOR RELATIONS BO()ARD
il. IHI. Al.I (i.1l) UNFAIR I ABOR P'RACIICIS
A. The Issues
Essentially. the complaint alleges that beginning on or
about December 29, 1979, and continuing until January
15, 1980, the Union engaged in unlawful secondary pick-
eting in furtherance of its labor dispute with ACBL,
ABL, Southern, and Inland, by picketing the Darrow,
Louisiana, facilities of GETCO and Cooper at times
when there were no employees of ACBL, American,
Southern, or Inland present at those facilities. The com-
plaint also alleges that, by such picketing, the Union has
attempted to persuade or encourage employees of
GETCO and Cooper to stop working for their respec-
tive employers and has threatened, coerced, and re-
strained the same employers and has succeeded in per-
suading employees of GETCO and Cooper to engage in
work stoppages, all with an object to force or require
GETCO and Cooper to cease handling, transporting, or
otherwise dealing in the products of, or to cease doing
business with, ACBL, ABL, Southern, and Inland, and
thereby violated Section 8(b)(4)(i) and (ii)(B) of the Act.
The Union, by its answer, denied that it has committed
the alleged unfair labor practices and claims that it en-
gaged in lawful primary picketing at the Darrow site.
B. The Facts
1. The Operations of ACBL., ABL, Southern, and
Inland and the Union's dispute with these
ACBL, ABL, Southern, and Inland together with
ANCOM, Inc., Commercial Barge Line Company
(CBL), Commercial Transport Corporation (CTC),
Northern Towing Company (Northern), The Southland
Towing Incorporated (Southland), and MAC Towing
Inc. (MAC), are wholly owned subsidiaries of ACL.
ACBL and six of these affiliates engage in the barging of
freight on the Mississippi River, its tributaries, and the
Gulf coast. CTC, Northern, and Southland are not pres-
ently active. Together, the 7 firms, known as the Barging
Group, operate 59 towboats and 1,400 barges. ACL
owns 49 of the towboats. The remaining 10 are owned
by Southland, Inland, and MAC. ACL owns all the
barges.
CBL leases towboats and barges from ACL and sub-
leases that equipment to ACBL. ACBL is the leading
company in the barging operation. It advertises and se-
cures contracts for the barging operation and deploys
and controls the towboats and barges owned by ACL
and the other affiliates to perform the barging transporta-
tion business. ACBL provides all the necessary adminis-
tration and services for the transportation of its custom-
ers' goods. ACBL employs personnel to handle the barg-
ing operations, including the operation and deployment
of barges and towboats and supporting accounting, finan-
cial, and other administrative activities. ACBL headquar-
ters is at Jeffersonville, Indiana, where it maintains radio
station WFN, its central line of communication for con-
trolling and deploying its towboats and barges along its
14,000 miles of service route.
ABL, Inland, Southern, and MAC operate the tow-
boats. ACBL employs towboat captains, relief captains,
pilots, and pilot house employees. Either ABL, Inland,
Southern, or MAC employ the towboats' deck person-
nel, engineers, and cooks. All towboats and barges oper-
ated by the barging operation carry the ACBL logo.
ACBL dispatchers deploy boats, barges, and crews.
All towboats and barges are interchanged. The dispatch-
ers station towboats in designated segments of the barg-
ing operation and direct their movements and runs. Fur-
ther, the dispatchers direct and coordinate the towboats
in respect to the picking up and dropping off of barges
along the system. They also assign crewmembets to tow-
boats and designate the point at which the crewmember
may rendezvous with his assigned towboat at the end of
his leave time. Dispatchers hire and assign employees to
tow boats and direct them to rendezvous points where
they board their assigned vessels.
ACBL operates the towboats and barges as a fleet
without regard to their ownership or the operating com-
pany. All of the towboats and barges operate in all parts
of the ACBL system. ACBL directs all barge transporta-
tion matters arising north of Baton Rouge, Louisiana,
from its office at Jeffersonville, Indiana. ACBL's office
at New Orleans, Louisiana, administers all transportation
matters arising south of Baton Rouge.
ANCOM owns and operates a radio transmitting facili-
ty which provides communication service for ACBLI
barging operations on the Mississippi, its tributaries, and
along the Gulf. All of ACBL's towboat dispatchers, port
captains, and port engineers2 and the respective offices,
receive and send messages on this radio system. These
messages pertain to assignments, reports, pickups, drops,
deliveries, and other activities of the barge operation.
ACBL's system is divided up geographically into the
Ohio River system, the upper Mississippi system, the
lower Mississippi system, Intercoastal Canal West, and
Intercoastal Canal East. ACBL's publication, "Inland
Waterways Mileage Guide," shows several hundred
stopping points along the major rivers and tributaries and
the intercoastal canal system, all served by ACBL and its
related companies. From the testimony of Norman Stan-
ley Ivey, general manager of ACBL's Gulf Coast area, I
find that from Head of the Passes, i.e., the mouth of the
Mississippi, up to Baton Rouge, ACBL towboats visit
about 100 different delivery and pickup points. I also
find from Ivey's testimony that from St. Paul, Minnesota,
to Baton Rouge ACBL has approximately 150 stops. I
find from Ivey's testimony that the entire system has 400
to 500 stops or service points.
The service points listed in ACBL's "Inland Water-
ways Mileage Guide" are designated by mile markers.
Zero is the designation for Head of Passes, the mouth of
the Mississippi. Cairo, Illinois, is marked "980" indicating
980 miles from Head of Passes.
Darrow, Louisiana, the location of the alleged viola-
tion, is on the east bank of the Mississippi River, at mile
175. However, Darrow's designation is absent from the
ACBL's mileage guide which was printed prior to the
AC (ls shoreside port captains and port engileers are assigned o
areas f ACI.'31 barge system to assist toboalts traversing their areas
with rpcl to opcralional, persollltl, ailtlelllalce, and repair problems.
338x
SEAFARERS INTERNATIONAL UNI()N
establishment of the I)arrow. Louisiana, river port acili-
ties.
The towboats involved in AC13L's operation range in
horsepower from 1,8(X) to 8,4(X00. ACBI3 operates two
towboats in the lower Mississippi system, the MV Crl
Shelton, and the MV C. ,.: Peters. The barges which they
push are 195 feet long. 35 feet wide, and 12 feet in depth.
Barges are towed individually or in groups called tiers.
A towboat may push as man as 48 of these barges at
one time. The barges carry grain, coal, liquid, dry bulk,
and other commodities. Typically, a towboat pushes its
tow, a group of barges, up or down river, until it arrives
at a point on ACBL's system, where the dispatcher has
instructed the towboat captain to pick up or drop off one
or more barges. A switch boat provided by a fleeting
company, or some other independent firm, meets the tow
at the designated point. The switch boat removes desig-
nated barges from the tow or transfers barges to the ex-
isting tow. The towboat's deck crew, under the captain's
direction, secures the additional barges to the tow or re-
leases the barges from the tow to the switch boat for
transfer to a barge staging area, also called a fleeting
area, where empty and loaded barges are assembled,
waiting to be loaded unloaded, or transferred to a pass-
ing towboat. The transfer of loaded barges from the tow
to the transfer boat and the release of empty barges re-
quires varying amounts of time from 2 to 12 hours, de-
pending on the number of barges.
The fleeting area involved here is known as Darrow
Fleeting and is located in the vicinity of mile marker
175, on the left or east bank of the Mississippi River. The
stevedoring companies, Cooper and GETCO, maintain
separate mobile offices at mile 175, between the river
and the levee, on the east bank of the Mississippi. in the
vicinity of the Darrow Fleeting area. ACBL also main-
tains an office in a small building alongside a road run-
ning behind the levee, across from GETCO's and Coo-
per's offices.
Only one ACBL employee, a clerical, is stationed at
ACBL's Darrow Fleeting area office. This clerk per-
forms filing and recordkeeping relating to ACIL barge
traffic into and out of Darrow Fleeting. In addition.
ACBL's Darrow clerk keeps records of communications
between Darrow and New Orleans and Darrow and
Baton Rouge. She obtains traffic information from
ACBL's New Orleans office by telephone. She also re-
ceives instructions to check on designated towboats. The
clerk has a radio with which to contact towboats on the
river and pass on messages from New Orleans to a tow-
boat or to Baton Rouge, or from a towboat to New Or-
leans or to Baton Rouge. A sign bearing "ACBL" is out-
side the ACBL Darrow office.
The Union is, and has been at all times material to this
case, the collective-bargaining representative of all engi-
neers, assistant engineers, cooks, head deckhands, and
deckhands employed by the barging group employers
headed by ACBL. The most recent collective-bargaining
agreement expired on December 30, 1979. On December
14, 1979, the Union filed an unfair labor practice charge
against ACL and its subsidiaries ACBL, ABL, Southern,
Northern, Inland, and MAC, in Case 9-CA-14657.
Thereafter, the Union filed an amended charge on Feb-
ruary 2, 1980, and a second amended charge on Febru-
ary 11, 1980. On February 20, 1980, the Regional Direc-
tor for Region 9 issued a complaint alleging that the re-
spondents in Case 9-CA-14657 had committed a number
of violations of Section 8(a)(I), (2), (3). and (5) of the
Act. A hearing on this complaint has been scheduled for
August 18. 1980.
2. The operations of GETCO and Cooper at
Darrow, Louisiana
GETCO and Cooper are affiliated stevedoring firms,
with offices on the east bank of the Mississippi River, at
Darrow, Louisiana. GETC() and Cooper maintain mer-
chant ship mooring buoys on the Mississippi River in the
vicinity of Darrow. GETCO's sites are at mile markers
171 and 172. Cooper's sites are at markers 175, 180, and
182. Cooper operates floating cranes equipped to handle
grain, cattle feed, soybean meal, ore, and other bulk ma-
terials. Cooper owns some of the cranes it operates.
Cooper also leases cranes from GETCO and other
sources. GETCO also owns and operates cranes by
which it loads and unloads merchant ships. The floating
cranes are equipped to load or unload barges by suction
devices or clam shells, or revolving buckets. As many as
four crane barges service a single ship.
GETCO and Cooper act as stevedores from various
customers. Under the usual loading contract, the custom-
er notifies GETCO or Cooper that a specified merchant
ship will arrive at the GETCO or Cooper berthing area
on a specified day to take on a specified cargo or car-
goes. If more than one type cargo will be loaded,
instructions for each product specify which type of
cargo is to be loaded in which batch on the ship. Also
included in the communication is a designation of the
barge by its source and number, such as "ACBL01."
Neither GETCO nor Cooper is responsible for moving
the barges from the fleeting area to the side of the ship
to be loaded. Darrow Fleeting Service, a separate firm
with no ties to ACBL, performs that function: When
GETCO or Cooper is ready to unload a barge into a
moored merchant ship, they radio Darrow Fleeting and
designate the barge or barges to be delivered by Darrow
Fleeting to a designated merchant ship. The transferral
of barges by Darrow Fleeting from its fleeting area to
the ship is accomplished by a Darrow tugboat. Nor do
the stevedores arrange for the berthing and mooring of
the merchant ship. That function is performed by the
ship's agent. In sum, GETCO and Cooper are responsi-
ble only for the transferral of cargo between the barges
and the merchant ships assembled in their operating
areas.
ACBL towboats stop on the west bank of the Missis-
sippi, across from the Darrow facilities of GETCO and
Cooper, approximately five times per week. Southbound
ACBL towboats usually stop at mile marker 175. Their
practice is to hold their tows close to the west bank and
remain there until a switch boat from Darrow Fleeting
comes across the river either to pick up a barge or
barges from the tow, or bring barges for addition to the
tow. The switch boat moves barges taken from the tow
to the Darrow Fleeting area on the east bank. Darrow
33.19
DECISIONS OF NAFIONAL L.ABOR RE.ATIONS BOARD
Fleeting leases one switch boat from GETCO and seven
others from other firms. ACBL crewmen remain on their
towboats during barge transfer operations. Southbound
ACBL towboats usually drop off loaded barges. North-
bound ACBL towboats usually receive empty barges
from Darrow Fleeting. On the northward trip, the
ACBL towboats will rest near markers 172, 175, or 180
on the west bank, while waiting for the switch boat.
Cooper and GETCO each use their own employees to
load and unload ships. GETCO's and Cooper's employ-
ees are covered by collective-bargaining agreements with
International Longshoremen Association Locals 1830
and 1833 (referred to below as the ILA Locals) and with
International Union of Operating Engineers Local 406
(referred to as Operating Engineers Local 406). Employ-
ees represented by Operating Engineers Local 406 oper-
ate the cranes. Employees represented by Local 1830 or
by Local 1833 perform the remaining loading and un-
loading operations aboard the merchant ships and on the
barges. No employees of ACBL or its affiliated barging
operation employers participate in the loading or unload-
ing of the merchant ships. Nor do any employees of
ACBL or its affiliates ever work in the fleeting area, or
in the immediate vicinity of GETCO's or Cooper's steve-
doring activity. ACBL employees rarely enter the
Darrow stevedoring areas.
Darrow Fleeting assumes responsibility for the secu-
rity and safety of ACBL barges and their contents while
they are under Darrow's control, in the fleeting area,
and during transfer. The stevedoring companies are simi-
larly responsible for ACBL barges and their cargoes
while the barges are being loaded or unloaded alongside
a merchant vessel.
3. The picketing
On Friday morning, December 28, 1979, Cooper and
GETCO received the following telegraphic message
from the Union:
This organization has a labor dispute with Ameri-
can Commercial Barge Lines "ACBL" and its affili-
ated companies. We are picketing their tugs and
barge equipment by reason of such dispute. Some of
such equipment appears at your dock site. To mini-
mize if not avoid any involvement of your company
in this dispute we request your permission to picket
at your dock site as and when ACBL equipment ap-
pears. When such equipment is not present at your
dock site our pickets will withdraw. In the event
our requested permission is denied we shall have no
alternative but to picket in front of your premises at
such time as the ACBL equipment appears at your
dock site. Please advise relative to your permission
to picket the dock site. Failure to hear from you
within 24 hours relative to our request we will un-
derstand your silence to be a denial of our request.
On the following day, the Union broadcast the following
message over ACBL's radio station, WFN, to ACBL's
towboats:
To S.I.U. Special Boat Delegate and crew mem-
bers:
Your S.I.U. contract with A.C.B.L. may run out
at midnight December 30, 1979.
As of right now A.C.B.L. is installing the con-
tract talks but, your Union is standing firm on your
demands.
If the contract runs out it is very important for
every S.I.U. Engineer. Cook, Lead Deckhand, and
Deckhand to stay on board your boat and keep
working.
Wait to hear from your Union. We will keep you
advised by talking to you over the radio and send-
ing you leaflets. For now tell all the S.l.U. Brothers
and Sisters on your boat to stay on board. Let
A.C.B.L. see that the S.I.U. members are united and
are on their boats to stay.
Remember, do not take any other action until
you here [sic] from your Union.
If you or any of your Brothers and Sisters have
any problems or questions call your Union day or
night toll free at 1-800-325-9570.
Fraternaly [sic]
Seafarers International Union
Upon receipt of the Union's telegram, Cooper's and
GETCO's general manager, Newell W. Wright, contact-
ed President Durnin of ILA Local 1833, President
Young of Local 1830, and Business Agent Hernandez of
Operating Engineers Local 406. Business Agent Hernan-
dez said that he was not aware of the Union's dispute but
that, if a union picket line appeared, his members would
honor it. The presidents of Local 1833 and 1830, respec-
tively, stated that their members would honor such
picket line as the Union might set up.
About 9:15 or 9:30 p.m. on Friday evening, December
28, at the request of Cooper, an ACBL barge was placed
near a Cooper crane in preparation for loading the con-
tents of the barge into the merchant ship, Maria Jose 7T
After the ACBL barge was in place, a 14-foot aluminum
skiff propelled by an outboard engine, carrying two men
each of whom held up a picket sign, appeared about 20
yards from the Cooper crane barge. The skiff came
alongside Cooper's crane barge and the two men gave
handbills to the Cooper employees on the barge. The
handbills carried the following message:
WHY WE PROTEST AND PICKET
The non-supervisory tug boat employees of the
integrated affiliated barging operation of American
Barge Lines, Southern Ohio, Inland Tugs and
American Commercial Barge Lines, have been rep-
resented by the SIU for many years.
The above affiliated and integrated companies in
conjunction with other affiliated companies have,
over the past several months and continuing to date,
been and still are engaged in unfair labor practices
against our members, their employees and against
our union. This conduct, among other things, is de-
priving the employees of rights guaranteed in the
labor act; unlawfully discriminating against employ-
ees and dismissal of others; unlawfully assisting an-
other union; and refused to bargain in good faith
340
S-AI:AR[IRS INI-lKRNAVINA)NI. UNIO)N
with our union. It is apparent to us that the aboe
affiliated and integrated companies are engaged in
massive activities to undermine our unlion.
We have filed unfair labor practice charges ,kith
the National Labor Relations Board and thev are
being processed. Our picketing is to protest the
above unlawful conduct.
We have no dispute with any other cornpan .
Seafarers International Union of North America
AGLIWD, AFI.CI()
Cooper's superintendent, Pearson, warned the two
men in the kiff who were distributing handbills that
the were on Cooper's jobsite and asked them to remain
away from the barges. Pearson also told the pickets that
Cooper would be held liable if they were injured while
in the stevedoring area. Pearson returned to the riv er-
bank, where he informed General Manager Wright about
the two men in the skiff and their picket sign.
Wright instructed Pearson to tell the pickets to remain
away from Cooper's crane barge because of the tugboat's
propeller wash, and to obtain a copy of the handbill.
Pearson complied with those instructions aid received
four or five copies of the handbill from the men in the
skiff.
After receiving the handbill, Pearson went to the
Maria Jose 7t, he instructed the foreman of Cooper's
longshoremen, Larry Carter, on the sequence of cranes
and barges involved in loading the merchant ship. Fore-
man Carter asked Pearson what was going on and who
was picketing. Pearson told him that the pickets were
members of the Union arid that they were "out here
striking against ACBL and it doesn't concern Cooper, so
just keep on working." Pearson told Carter that, after
the employees finished unloading the ACBL barge
which was then alongside the Maria Jose T., that he
wanted to bring another barge alongside to be unloaded.
Pearson went back to his office, telephoned a repre-
sentative of the ILA Locals, Lawrence Cutno, and re-
quested that he refer two employees and that they be
present at Cooper's jobsite at I a.m. that same night.
Cutno agreed. At this point it was approximately I p.m.
Ten minutes later, Cutno appeared at Pearson's office
and inquired about the presence of some pickets out on
the river. Pearson explained that they were picketing
ACBL and not Cooper.
Shortly after midnight, the Operating Engineers Local
460's steward, Wayne Turner, and the ILA Locals' rep-
resentative, Cutno, came to Pearson's office and, using
the radio that Cooper used to communicate with its
crane barges, sought to inform their respective members
of the pickets and to instruct them to leave their work
area. Following these announcements, all of Cooper's
employees who were loading the aria Jose 17 ceased
working and came to the riverbank. The men remained
off the job for little more than an hour.
During this stoppage, Pearson, Turner, and Cutno
went to the pickets' campsite along the riverbank, about
150 yards south of Cooper's trailer office. Pearson com-
plained to the pickets that all of his men had ceased
work on the loading of the Maria Jose T He asked the
pickets if they would wilhhold their picket signs if the
ACBL barge were removed from Cooper's worksite.
One of the pickets agreed that, if the ACBL barge were
removed, the pickting would stop.
Pearson returned to his office. He called Darrow
Flecting and requested a tugboat to remove the ACBL
barge. With the removal of the ACBL barge, the long-
shoremen and the operating engineers returned to work
Cooper did not unload any ACBI. barges during the re-
mainder of that night. However, as each barge arrived
for unloading, the pickets inspected it but did not resurne
picketing.
On Monda, December 31, General Manager Wright
visited the two pickets in their camp arid photographed
one of their picket signs. The sign read:
UNFAIR
Wt PIROIIt i ilt
UNIAIR LAHOR PR \( ICI.S 01
AMERICAN COMMERCIAL
BARGE LINES
and the integrated Affiliated Companies
AMERICAN BARGE LINES
SOUTHERN OHIO TOWING
and
INLAND TUGS
We have no dispute with any other Company
SEAFARERS INTERNATIONAL
UNION OF NORTH AMERICA
AGLIWD AFL-CIO
Wright learned from the pickets that their purpose was
as stated on their picket signs.
Another work stoppage occurred on Friday afternoon,
January 3 1980. when pickets appeared in a boat, cir-
cling the Pollycrusader at mile 172, as 50 of GETCO's
employees, half represented by the ILA Locals and half
by Operating Engineers Local 406, were loading the ship
from an ACBL barge, tied alongside. General Manager
Wright came to the riverbank, where the GETCO em-
ployees were coming ashore, and announced his inten-
tion to remove the ACBL barge from the Pollvcrusader.
The ACBLI barge was removed and, after a 1-1/2-hour
work stoppage, the employees returned to loading the
Pollycrusader.
On January 4, employees of GETCO and Cooper, on
instructions from General Manager Wright, altered the
ACBL logo on several GETCO-unloaded barges to read
"OBL." On January 5, GETCO unloaded the "OBL"
barges into the Pollycrusader. The pickets scrutinized the
"OBL" barges, but did not picket.
On January 5, several other ACBL barges were relet-
tered "OBL" ad then brought to mile marker 172,
where GETC() employees began unloading them into
the Pollycrusader. However, there was no work stoppage
on those barges. The following day, picketing at the Pol-
lycrusader resumed for approximately 1-1/2 hours as
341
I)ltt'ISIO)NS ()F NAIO()NAI I.A()R RIA I .AIO()NS O()ARI)
GETCO employees were unloading a relettered AC3I.
barge. The picket signs used on this last incident of pick-
eting were similar to those seen by Wright at the pickets'
camp on December 31, 197'). ''here was no further pick-
eting of GETC() or Cooper after January 6. During the
period covered by the incidents recited above, picketing
at Cooper or GE''ICO's operations occurred only wher
their employees were unloading barges marked "AC11l"
or ACI. barges relettered to show "()031.."
C. .nlysis and Conrclusions
Section 8(b)(4) of the Act makes it an unfaiir labor
practice for a union:
(i) to engage ill, or to induce ally individual enm-
ployed by any person . . . to engage in, a strike or
a refusal in the course of his cmployment . . . to
perform any services; or (ii) to threaten,
coerce, or restrain any person engaged in commerce
or in an industry affecting commerce, where in
either case an object thereof is:
(13) forcing or requiring any perso .... to
cease doing business with any other person . . .
provided, That nothing conltained in this clause
(B) shall be construed to make unlawful, where
not otherwise unlawful, any primary strike or pri-
mary picketing .
These provisions implement "the dual congressional
objectives of preserving the right of labor organizations
to bring pressure to bear on offending employers in pri-
mary labor disputes and of shielding unoffending em-
ployers and others from pressures and controversies not
their own." N.L.R.B. v. Denver Building & Construction
Trades Council [Gould & Preisner], 341 U.S. 675, 692
(1951): see National Woodwork Manufacturers Association
v. N.L.R.B., 386 U.S. 612, 620-627 (1967). As explained
in N.L.R.B. v. Local 825, International Union of Operat-
ing Engineers, AFL-CIO [Burns & Roe, Inc.], 400 U.S.
297, 302-303 (1971):
Congressional concern over the involvement of
third parties in labor disputes not their own prompt-
ed Section 8(b)(4)(B). This concern was focused on
pressure brought to bear, not "upon the em-
ployer who alone is a party [to a dispute], but upon
some third party who has no concern in it" with
the objective of forcing the third party to bring
pressure on the employer who agreed to the union's
demand.
Section 8(b)(4)(B) is, however, the product of
legislative compromise and also reflects a concern
with protecting labor organizations' right to exert
legitimate pressure aimed at the employer with
whom there is a primary dispute.
Section 8(b)(4)(B) requires that disputed union
conduct be classified either as legitimate "primary"
activity directed against the offending employer or
as unlawful "secondary" activity directed against
the neutral employer with whom the union has no
dispute. See N.L.R.B. v. Local 825, Operating Engi-
neers, 4(X) U.S. at 303; Local 761 International Union
eoj I:lectrical, Radio & Machine Workers, AlFL-CIO
[General Electric Corporation] v. .L.R.B., 366 U.S.
667, 672-673 (1961). In short, the overriding object
of Section X(b)(4)(13) is "to confine labor conflicts to
the employer in whose labor relations the conflict
has arisenl... " merican Federation of elev'ision
and Radio .Artists. etc. [Baltimore News American Di-
vlsion] v. N.L.R.B.. 462 F.2d 887, 890 (D.C. Cir.
1972), quoting Miami Newspaper Pre.ssmens Local
No. 46 [K'night Newspupers Inc.] v. .L.R.B.. 322
F.2d 405, 410 (D.C. Cir. 1963).
Thus, whert the evidence shows that a union is direct-
ing its attention toward a neutral employer with whom it
has no dispute, it is settled law that the union's peaceful
picketing, without more, provides the basis fr finding
violations of subsections (i) and (ii). Otherwise, the sec-
ondary boycott provision would be a virtual nullity,
since the "customary means of enlisting the support of
employees to bring economic pressure to bear on their
employer" would be exempted from its coverage. Inter-
national Brotherhood of Electrical Workers [Giorgi Con-
struction Company]v. N.L.R.B., 341 U.S. 694, 703 705
(1951). See also N.L.R.B. v. Dallas General Drivers Ware-
housemen and elpers, etc., Local No. 745 [Associated
Wholesale Grocery of Dallas], 264 F.2d 642. 648 (5th Cir.
1959), cert. denied 361 U.S. 814.
Applying the fioreg)ing principles to the instant case, I
find, contrary to the Union's contention and in agree-
ment with the General Counsel and the Charginq Party,
that the picketing in the instant case was secondary for
the following reasons:
The Union's primary dispute was with ACBL, South-
ern Ohio Towing, and Inland Tugs. This was made plain
by the Union's picket signs, its handbills, its telegrams to
Cooper and GFITC0, and by its radio message to its del-
egates and members.
However, the Union brought pressure on neutrals; i.e.,
Cooper and GETCO. The Union picketed near Cooper's
and GETCO's crane barges when there were no employ-
ees of the primary employers working on or near the
crane barges, on or near the ACBL barges, or on or near
the merchant ships which were being loaded only by em-
ployees of the neutrals.:' Further, the Union could easily
have learned that no ACBL employees were expected to
be at or near Cooper's or GETCO's worksites.
Nor did the Union show any interest in putting direct
pressure upon AC13L and its affiliates. Thus, the Union
refrained from picketing the plainly marked ACBL office
located near the Darrow Fleet area, Nor did the Union
' I fild that situs ofr the picketing IIn each instance was limited it the
illlediatc sicririty o the neutral' (Cooper and CiGF CO) crane barges as
they were loading either he M1aria Jore 1 or the Pollycrusader I further
find hal as the primary (AC131) employees were nt employed at tholse
sitcs arid neser worked at such sites, a (irmlmil situs did not exist where
the Coolper or (ETCO) eployees ere engaged ill loading these two
merch ant ships. I have tr herelore rejected coltentlions that the Board's
Vinure IDry Dk standards fior commlon sirus pickering, as expressed in
Sui/err Unlion of the Pureii.. L. -('10 (.n4r Dry Dock (rnpunvy). 92
NI.RIt 547. 54' (95()), should be applied to this case
342
SEAl:ARtIRS INTERNA I I)NAL Nl()N
attempt to picket the ACBL towboats as they stood off
the Mississippi's west bank across from Darrow during
the period of the dispute.
I find no merit in the Unio'is assertiion that it could
not safely picket the AC1IL touwboals and barges while
the tow als underway or while the tow was standing off
the west bank heclause of inaccessibility front the ri er-
bank and the perilous conditions created by the tow-
boats' propellers and movements. The record shows.
however, that the peril urged by the Union is limited in
radius, and tliat the riverbank is accessible to fishermen
and other pedestrians. Further, the ACBL towboats
remain near the west bank of the Mississippi for at least 2
hours, while receiving or releasing barges. Thus, it ap-
pears that the Union was not deprived of any opportuni-
ty to engage in primary picketing. More important, the
Union was not interested in such primary activity. On
the contrary, it broadcast a message to ACBL's employ-
ees urging them to remain at work despite the expiration
of the current collective-bargaining agreement and
ACBL's "stalling." The Union was not interested in
picketing either ACBL's Darrow office, or any other
ACBL installation along its 15,(X)-mile system. Instead.
the Union directed its picketing activity only at the neu-
tral worksites of Cooper and GETCO, where no em-
ployees of ACBL nor of any of its affiliates ever work.
The presence of ACBL's barges did not convert the
Union's picketing of Cooper's or GETCO's loading op-
erations into primary picketing. Drivers. Salesmen. Harc-
housemen. Milk Processors. Cannery Dairy Employees and
Hfelpers lion Local 695, IBI (ony Plc/litler Trucking
Service. Inc.), 174 NLRIB 753, 759 (1969); National Mari-
time Union of Americu, .41-L-CIO (armers nion Grain
Terminal A.ssociation), 152 NRI3 1447, 1458 (1965). Nor
can it be argued that because they transferred commod-
ities from ACHL's barges to oceangoing steamships,
GETCO and Cooper performed an operational function
of the primary employer, and thus were lawfully picket-
ed by the Union. For neither AC1L nor any of its affili-
ates involved in the dispute load or unload barges as part
of their service. Their only function is to tow barges
from a shipping point to a destination along the Missis-
sippi, its tributaries, and the Gulf intracoastal canal
system. In sum, GETCO and Cooper were independents
of ACBL and its related firms and were not engaged in
any activity normally engaged in by ACBL. Southern
Ohio, or Inland Instead, I find that Cooper and GETCO
were neutral employers engaged in their own usual day-
to-day activity.
In sum, I find that the Union, by picketing Cooper and
GETCO as described above, attempted to involve these
two neutral employers and their employees in its dispute
with ACBL, Southern Ohio Towing, and Inland. I also
find that the purpose of the picketing was to persuade
GETCO's and Cooper's employees to refuse to unload
the ACBL barges and thus engage in a refusal to per-
form services within the meaning of Section 8(b)(4)(i)
and that by this same picketing GEJCO and Cooper
were threatened, restrained, and coerced within the
meaning of Section 8(b)(4)(ii); and that the object of this
same picketing was to force or to require (ETC() and
Cooper and their customers to cease using the primary
employer's barges or to otherwise cease doing business
with those primary employers. I therefore find that by
this picketing the Union violated Section 8(b)(4)(i) and
(ii)(13) of the Act. l'armnr Union (rain li'rminal .lssoci-
ation, 152 NLRB at 146hl.
CO( I USIONS o( L w
1. The Union, Seafarers International Union of North
America, Atlantic. Gulf. Lakes and Inland Water Dis-
trict, is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
2. American Commercial Barge l ine Conlpany. South-
ern Ohio Towing Company, Inc., Inland Tugs Company,
Gulf' Elevator and Transfer Company, and Cooper Ste-
vedorinig Company, Inc.. and American Barge Line
Company, are each employers engaged in commerce or
in an industry affecting commerce within the meaning of
the Act.
3. The Union, by picketing the worksites of Cooper
Stevedoring Company, Inc. (Cooper) and Gulf Elevator
and Transfer Company (GETCO), has induced and en-
couraged individuals employed by Cooper and GETCO
to engage in strike oi refusal in the course of their em-
ployment to perform services for their respective em-
ployers, and has restrained and coerced Cooper and
GETCO with an object, in each instance, of forcing or
requiring Cooper and GETCO to cease handling the
barges of American Commercial Barge Line Company
and its affiliates or otherwise doing business with those
firms and has thereby engaged in unfair labor practices
within the meaning of Section 8(b)(4)(i) and (ii)(B) of the
Act.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
THIi RINtlI)Ym
Having found that the Union engaged in unfair labor
practices within the meaning of Section 8(b)(4)(i) and
(ii)(B) of the Act, I shall recommend that the Union
cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act. I
shall also recommend posting of the usual notice.
Upon the basis of the foregoing findings of fact, con-
clusions of law, and the entire record in this proceeding,
and pursuant to Section iO(c) of the Act, I hereby issue
the following recommended:
ORDER 4
The Respondent. Seafarers International Union of
North America, Atlantic, Gulf, akes and Inland Water
District, its officers. agents, and representatives. shall:
1. Cease and desist from:
(a) Inducing or encouraging any individual employed
by Gulf Elevator and Transfer Company or Cooper Ste-
4 In he ci.cn1 nlo cxncplilons are filed as pro idel hy Sc 10(12 46 f he
Rules, ian Regulai on, of the Nalional I ahor Rcltior t Ios ard the find-
rlgs , ColItl1iuon., tld recillnm rdll.l Order h}rcin shall, as pro ided in
Sec 102 4 of the ults rin R'gutla whon., e Patpt'td hb the toard and
heL inc its il il gS, cmnciltlo 11 tiltd ()rder ialrd all objections thereto
shall hbe decmed 'vaised Fo r al purpses
141
DECISIONS OF NATIONAL .AIO()R RATIONS I()ARI)
vedoring Company, Inc., or any other person engaged in
commerce or in an industry affecting commerce with
whom it has no primary dispute, to engage in a strike or
refusal in the course of his or her employment to per-
form any services, where an object thereof is to force or
require the above-named persons to cease doing business
with American Commercial Barge Line Company,
Southern Ohio Towing Company, Inc., Inland Tugs Co.,
or any other affiliate of American Commercial Barge
Line Company.
(b) Restraining Gulf Elevator and Transfer Company,
Cooper Stevedoring Company, Inc., or any other person
engaged in commerce or in an industry affecting com-
merce, with whom it has no primary dispute, where an
object thereof is to force or to require the above-named
persons to cease doing business with American Commer-
cial Barge Line Company, Southern Ohio Towing Com-
pany, Inc., Inland Tugs Co., or any other affiliate of
American Commercial Barge Line Company.
2. Take the following affirmative action which is
deemed necessary to effectuate the policies of the Act:
(a) Post at its business offices, meeting halls, and at all
places where Respondent, Seafarers International Union
of North America, Atlantic, Gulf, Lakes and Inland
Water District, customarily posts its notices copies of the
attached notice marked "Appendix." 5 Copies of said no-
tices on forms provided by the Regional Director for
Region 15, after being duly signed by Respondent's au-
thorized representative, shall be posted by it immediately
upon receipt thereof, and be maintained by it for 60 con-
secutive days thereafter, in conspicuous places, inlcuding
all places where notices to members are customarily
posted. Reasonable steps shall be taken by Respondent to
insure that said notices are not altered, defaced. or cov-
ered by any other material.
(b) Furnish the Regional Director for Region 15
signed copies of aforesaid notice to be posted by the
above-named companies, if they are willing, at places
where they customarily post notices to their employees.
s In the eent that this Order is enforced by a Judgment of a United
States Court of Appeals, the words ill the notice reading "Posted y
Order of the National Labor Relations Hoard" shall read "'oslted P'ursu-
ant to a Judgment of the United States Court of Appeals Fnfircing an
Order of the Natiotnal Labhor Re lat iions Ioard."
(c) Notify the Regional Director for Region 15, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
APPEN DIX
No itci. To En'It OYI.L..s
PosTli ) tH ORIE)R OF: I lit
NA I IONAl LABOR Ri I IIONS BOARD
An Agency of the United States Government
After a hearing at which all parties were represented by
their attorneys and afforded the opportunity to present
evidence in support of their respective positions, it has
been found that we have violated the National Labor
Relations Act in certain respects and we have been or-
dered to post this notice to you and to carry out its
terms.
WlI WILL. NOT induce or encourage any individ-
ual employed by Cooper Stevedoring Company,
Inc., or by Gulf Elevator and Transfer Company,
or by any person engaged in commerce, or in an in-
dustry affecting commerce. with whom we have no
primary dispute, to engage in a strike or refusal in
the course of his or her employment to perform any
services where an object thereof is to force or re-
quire the above-named persons to cease doing busi-
ness with American Commercial Barge Line Com-
pany, Southern Ohio Towing Company, Inc.,
Inland Tugs Co., or any other affiliate of American
Barge Line Company
WI. Wvi I NOT coerce or restrain Gulf Elevator
and Transfer Company. Cooper Stevedoring Com-
pany, Inc.. or any other person engaged in com-
merce or in an industry affecting commerce, with
whom it has no primary dispute. where an object
therof is to force or require the above-named per-
sons to cease doing business with American Com-
mercial Barge Line Company. Southern Ohio
Towing Company, Inc., Inland Tugs Co., or any
other affiliate of American Commercial Barge Line
Company.
SIAARIRS IN'FR NA I IONAI UNION O1
NOR I it ANi ERICA, A II.AN I IC, GUI F,
LAKiS ANt) INI.AND W I IR DISTRIC I
344