Seafarers' International Union of North America

National Labor Relations Board - Board Decisions

Feb 14, 1958

119 N.L.R.B. 1638 (N.L.R.B. 1958)

1638 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT cause, or attempt to cause, Mark R Kunkel, individually or-
doing business as Mark R Kunkel Plumbing , or any other employer, except
in accordance with Section 8 (a) (3) of the National Labor Relations Act, to•
discharge employees or in any other manner discriminate against them in regard
to their hire, tenure of employment, or any term or condition of employment
WE WILL NOT in any other manner restrain or coerce employees of Mark R.
Kunkel , individually or doing business as Mark R Kunkel Plumbing, or of
any other employer, in the exercise of the right to self-organization, to form,
join, or assist labor organizations, to bargain collectively through represen-
tatives of their own choosing , to engage in concerted activities for the purpose
of collective bargaining or other mutual aid or protection, and to refrain from,
any or all of such activities , except to the extent that such right may be
affected by an agreement requiring membership in a labor organization as a
condition of employment, as authorized in Section 8 (a) (3) of the National
Labor Relations Act
WE WILL jointly and severally with Mark R Kunkel, individually and doing
business as Mark R Kunkel Plumbing, make Demesio V Medina whole for
any loss of pay he suffered as a result of discrimination against him
WE HAVE no objection to the employment by Mark R Kunkel , individually
or doing business as Mark R Kunkel Plumbing, of the said Demesio V Medina,
and request Mark R Kunkel, individually and doing business as Mark R.
Kunkel Plumbing , to offer Demesio V Medina immediate and full reinstate-
ment to his former, or a substantially equivalent, position, without prejudice-
to his seniority and other rights and privileges
LOCAL UNION #761 OF THE UNITED ASSOCIATION
OF JOURNEYMEN AND APPRENTICES OF THE
PLUMBING AND PIPEFITTING INDUSTRY OF THE
UNITED STATES AND CANADA, AFL-CIO,
Labor Organization.
Dated-------------------- -------------------------------------------
(Representative ) (Title)
This notice must remain posted for 60 days from the date hereof , and must not
be altered, defaced, or covered by any other material.
Seafarers' International Union of North America, Atlantic and
Gulf District, AFL-CIO and Salt Dome Production Company-
Seafarers' International Union of North America, Atlantic and
Gulf District, AFL-CIO and Gulf Oil Corporation'
Seafarers' International Union of North America, Atlantic and
Gulf District, AFL-CIO and Todd Shipyards Corporation..
Cases Nos. 15-CC-59, 15-CC-60, and 15-CC-61. February 14,,
1958
DECISION AND ORDER
On April 3, 1957, Trial Examiner David London issued his Inter-
mediate Report in the above-entitled proceedings, finding that the
Respondent had not engaged in any unfair labor practices alleged in
the complaint and recommending that the complaint be dismissed, as
set forth in the copy of the Intermediate Report attached hereto.
Thereafter, the General Counsel and the Charging Parties, Salt Dome
Production Company and Gulf Oil Corporation, filed exceptions to the
Intermediate Report and supporting briefs.
1 The name of this Charging Party appears as amended at the hearing
119 NLRB No. 198.
SEAFARERS' INTERNATIONAL UNION OF NORTH AMERICA 1639'
The Board 2 has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Internee-
diate Report, the exceptions and briefs, and the entire record in the
case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner only to the extent consistent with our-
Decision and Order herein.'
The Trial Examiner found that the Respondent did not violate,
Section 8 (b) (4) (A) and (B) of the Act by picketing in front of'
the premises of Todd Shipyards on and after December 7, 1956, while
a vessel, the M/V Pelican, owned by Gulf and chartered to and oper-
ated by Salt Dome, was in the shipyards undergoing repairs and.
overhauling. In reaching this conclusion, the Trial Examiner found
that the picketing was permissible under Moore Dry Dock 4 principles..
We do not agree.
As fully discussed in the Intermediate Report, the Respondent, in
furtherance of its labor dispute with Salt Dome, began picketing at
Todd's shipyards when the M/V Pelican was in drydock undergoing
repairs. Although Salt Dome removed its nonsupervisory employees
from the vessel and Todd's premises on December 7, and notified the
Respondent and the pickets of this fact, the Respondent, nevertheless,.
continued to picket. As a consequence, Todd's employees refused to
work on the vessel or its equipment, returning only after a United
States District Court issued a temporary restraining order enjoining
the picketing.
It is clear to us that, by picketing at Todd's shipyards after Salt
Dome's nonsupervisory employees were no longer aboard the M/Vr
Pelican or on Todd's premises, the Respondent intended to induce-
Todd's employees to support its strike by refusing to perform services
on the vessel, which Todd had undertaken to perform. Although the
picket signs and pamphlets ostensibly were directed as appeals to Salt
Dome's employees, the fact that the Respondent was aware that no
nonsupervisory employees of Salt Dome were present is convincing
proof that the picketing was aimed at reaching Todd's employees..
Indeed, Todd's employees responded, as was intended and reasonably-
anticipated, by refusing to work behind the picket line on the Pelican
or on its equipment. Moreover, it appears from the testimony of
Moody, one of the Respondent's representatives, that the Respondent
"hoped" for such a work stoppage.
2 Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its
powers in connection with this case to a three-member panel [Chairman Leedom and Mem-
bers Rodgers and Jenkins].
a Section III of the Intermediate Report erroneously indicates that Gulf, instead of"
Salt Dome, contracts for steward service on the M/V Pelican . This section also erro-
neously states that four members of the Pelican crew left the vessel on October 5 instead.
of December 5.
'Sailors ' Union of the Pacific, AFL (Moore Dry Dock Company ), 92 NLRB 547.
1640 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
That an object of the Respondent's conduct was to force Todd to
discontinue doing business with Salt Dome and Gulf, and to force
Gulf to discontinue its business relationship with Salt Dome because
the latter's dispute with the Respondent was immobilizing Gulf's
vessel, is implicit in the inducement of Todd's employees. In fact, the
Respondent's representative, Moody, testified that "we hoped ... that
everybody would stop doing business with" Salt Dome. In addition,
the evidence establishes that another object of the Respondent's activi-
ties was to force Salt Dome to recognize and bargain with it as the
exclusive representative of Salt Dome's unlicensed crewmen, even
though it was not certified by the Board. Thus, the Respondent
previously filed a representation petition with the Board seeking to
be certified as the exclusive representative of Salt Dome's unlicensed
crew aboard the M/V Pelican and other vessels. Although it later
withdrew its, petition, the Respondent nevertheless patrolled in front
of the Todd shipyards with picket signs and distributed leaflets,
stating that it was in dispute with Salt Dome whom it characterized
as "unfair."
We must therefore find that, by thus seeking to involve Todd and
Gulf, who concededly were neutrals to Salt Dome's dispute with the
Respondent, through the inducement of Todd employees, the Re-
spondent engaged in conduct prohibited by Section 8 (b) (4) (A)
and (B), unless the Board's decision in Moore Dry Dock 5 sanctioned
this conduct.
In Moore Dry Dock, where a union also picketed a ship under-
going repairs in the shipyard of a neutral employer, the Board was
confronted with the problem of determining under what circum-
stances Section 8 (b) (4) permitted a union to picket at the premises
of a secondary employer, which "harbored" the site of a union's dis-
pute with another employer. In resolving this problem, the Board
found it necessary to accommodate the right of the union to picket at
the site of its dispute to the right of a secondary employer to be free
from picketing in a controversy in which it was not directly con-
cerned. A majority of the Board concluded that picketing at the
secondary premises was permissible if four conditions were met. One
.of them, which is here in issue, is that at the time of the picketing, the
primary employer must be engaged in its normal business at the "situs
•of the dispute." The majority made it very clear as to the meaning of
this condition when it found that the primary employer in Moore
Dry Dock was engaged in normal business in the shipyards prin-
'cipally because the repair job was almost completed and practically
the entire crew was hired and aboard the ship getting it ready for
s Sailors' Union of the Panific, AFL (Moore Dry Dock Company ), supra.
SEAFARERS' INTERNATIONAL UNION OF NORTH AMERICA 1641.
sea. To dispel any doubt that the decision was not designed to pro-
tect picketing at the neutral shipyard where all that appeared was,
that the vessel was undergoing repairs, the majority stated (92 NLRB-
at p. 551) :
We believe that our dissenting colleagues' expressions of alarm
are based on a misunderstanding of our decision. We are not
holding, as the dissenters seem to think, that a union which has.
a dispute with a shipowner over working conditions of seamen
aboard a ship may lawfully picket the premises of an independent
shipyard to which the shipowner has delivered his vessel for over-
haul and repair. We are only holding that, if a shipyard permits.
the owner of a vessel to use its dock for the purpose of readying-
the ship for its regular voyage by hiring and training a crew
and putting stores aboard ship, a union representing seamen may
then, within the careful limitations laid down in this decision,,
lawfully picket in front of the shipyard premises to advertise its.
dispute with the shipowner.
It is true, of course, that the Phopho was delivered to the Moore.
yard for conversion into a bulk gypsum carrier. But Moore in
its contract agreed that "During the last two weeks, . . . [the
Phopho's] owner shall have the right to put a crew on board
the vessel for training purposes, provided, however, that such -
crew shall not interfere in any way with the work of conversion."
Samsoc (the Phopho's owner) availed itself of this contract
privilege. When it did, Moore and Samsoc were simultaneously
engaged in their separate businesses in the Moore yard.
The dissent finds it "logically" difficult to believe in this-
duality. We find no such difficulty. Nor did Moore, apparently,-
when it included the above clause in its contract. Indeed, from
a practical standpoint, there was a strong reason why Samsoc
should ready the ship for sea while the conversion work was still
going on. A laid-up ship does not earn money. By completing-
training and preparation for sea while the ship was still under-
going conversion, the lay-up time was reduced, with a consequent
money saving to owner Samsoc. [Emphasis supplied.]
In the present case, it is obvious that, unlike the situation in
Moore Dry Dock, the M/V Pelican was a "dead" ship and no non-
supervisory employees of Salt Dome were aboard the vessel preparing-
it for sailing. In these circumstances, we find, contrary to the Trial
Examiner, that Salt Dome was not engaged in its normal business
in the Todd shipyards after December 7, within the meaning of-
Moore Dry Dock conditions, and therefore the picketing after that.
date was not protected.
:1642 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Respondent also contends that a so-called "hot cargo" clause 6
in a contract between Todd and Local 29 of the Industrial Union
of Marine and Shipbuilding Workers of America, AFL-CIO, which
represents Todd's employees, protected its inducement of the work
:stoppage by Todd's employees. Whatever rights the Todd employees
or their union enjoyed by reason of this clause, and whatever the
circumstances under which they would be relevant to this case gen-
erally, such rights were not available to the Respondent because it
was not party to the contract.
In view of the foregoing, we find that the Respondent violated
Section 8 (b) (4) (A) and (B) of the Act after December 7, 1956,
by inducing and encouraging the employees of Todd to engage in
a concerted refusal in the course of their employment to work on the
M/V Pelican with the objects of forcing and requiring Todd to
,cease doing business with Salt Dome and Gulf; forcing and requiring
Gulf to cease doing business with Salt Dome; and forcing and re-
quiring Salt Dome to recognize and bargain with the Respondent as
the collective-bargaining representative of its unlicensed personnel
aboard the M/V Pelican and other vessels, although the Respondent
was not the representative certified by the Board under Section 9 of
the Act.
THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent, as set forth above, which have
been found to constitute unfair labor practices, occurring in connec-
tion with the operations of the Companies involved herein, have a
close, intimate, and substantial relation to trade, traffic, and com-
merce among the several States and tend to lead to labor disputes
burdening and obstructing commerce and the free flow of commerce.
THE REMEDY
Having found that the Respondent has engaged in unfair labor
practices, we shall require it to cease and desist therefrom and to take
certain affirmative action designed to effectuate the policies of the Act.
ORDER
Upon the entire record in this case and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent Seafarers ' Inter-
national Union of North America, Atlantic and Gulf District,
AFL-CIO, its officers, representatives , agents, successors , and assigns,
shall :
G This clause provides that "The Company shall not require any employee to work or
enter any shop or yard where a labor dispute is in progress , or work on any vessel moved
-from a shipyard which is on strike."
SEAFARERS' INTERNATIONAL UNION OF NORTH AMERICA 1643
1. Cease and desist from engaging in, or inducing or encouraging
the employees of any employer other than Salt Dome Production
Company to engage in, a strike or a concerted refusal in the course
.of their employment to use, manufacture , process, transport, or other-
wise handle or work on any goods, articles, materials, or commodities,
or to perform any services where an object thereof is to force or
require any employer or other person to cease doing business with
Salt Dome Production Company or Gulf Oil Corporation, or to
force or require Salt Dome Production Company to recognize or
bargain with the Respondent Seafarers ' International Union of North
America, Atlantic and Gulf District, AFL-CIO, as the representa-
tive of any of Salt Dome's employees, unless the Respondent has been
certified as the representative of such employees under the provisions
of Section 9 of the Act.
2. Take the following affirmative action, which the Board finds
will effectuate the policies of the Act :
(a) Post at its offices and meeting halls in New Orleans, Louisiana,
copies of the notice attached hereto marked "Appendix." 7 Copies
of said notice, to be furnished by the Regional Director for the
Fifteenth Region, shall, after being duly signed by an authorized
representative of the Respondent, be posted by the said Respondent,
immediately upon receipt thereof, and be maintained by it for a
period of sixty (60) consecutive days thereafter in conspicuous places,
including all places where notices to members are customarily posted.
Reasonable steps shall be taken by the Respondent to insure that the
notices are not altered, defaced, or covered by any other material.
(b) Mail to the Regional Director for the Fifteenth Region signed
copies of the notice attached hereto as an appendix for posting at
the premises of Todd Shipyards Corporation, New Orleans, Louisiana,
in places where notices to its employees are customarily posted, if
Todd Shipyards Corporation is willing to do so.
(c) Notify the Regional Director for the Fifteenth Region in writ-
ing, within ten (10) days from the date of this Order, as to what
steps the Respondent has taken to comply herewith.
MEMBER JENKiNS, dissenting :
I am unable to subscribe to the majority's finding that the Respond-
ent violated Section 8 (b) (4) (A) and (B) of the Act by picketing
the M/V Pelican, a vessel owned by Gulf Oil and chartered by Salt
Dome, while the vessel was undergoing repairs at the Todd Ship-
yards. In my opinion, the Moore Dry Dock doctrine 8 protected this
conduct.
*In the event that this Order is enforced by a decree of a United States Court of Ap-
peals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order."
8 Sailors' Union of the Pacific, AFL (Moore Dry Dock Company ), supra.
1644 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
To put this case in proper perspective, I must briefly outline the
facts, which are substantially undisputed :
Salt Dome is engaged in oil drilling in the Gulf of Mexico about
45 miles off shore. It uses the M/V Pelican, which is stationed in
these waters, as a warehouse and factory for its drilling operations
and living quarters for the men. On December 2, 1956, after a year
of such offshore activity, Salt Dome brought the Pelican to Todd's
shipyards for repairs and overhauling as required by United .States
Coast Guard regulations. The next day the vessel was placed in
drydock and the Pelican crew and Todd employees started work on it.
For some time before the Pelican went into drydock, the Respondent
was trying to represent and bargain with Salt Dome for its unlicensed
crewman aboard this vessel, but without success. Therefore, when
the Pelican arrived at the Todd shipyards for repairs, it gave the
Respondent its first opportunity to implement its demands by picket-
ing the vessel there. Accordingly, on December 5, several crewmen
went out on strike and began picketing close to the vessel until Todd
ordered them off its premises. The strikers thereupon resumed their
picketing on public property at the entrance to the shipyards. There
is no question that the signs carried by the pickets and the leaflets
distributed by them were directed to Salt Dome's employees; that
they scrupulously identified the strike as against Salt Dome; and
that they specifically stated that neither Todd nor any other employer
was involved in the dispute.
It is not, nor could it be, contended that the Respondent's initial
picketing was prohibited by Section 8 (a) (4) (A) and (B), even
though Todd's employees refused to work behind the picket line on the
Pelican or its equipment. Plainly, the picketing met all Moore Dry
Dock requirements, as the majority will undoubtedly concede. Thus,
the picketing was limited to the times when the situs of the dispute-
which the Pelican obviously was-remained on Todd's premises; at
the time of picketing, Salt Dome was engaged in its normal business
at the situs; the picketing was restricted to places reasonably close to
the location of the situs; and the picketing clearly disclosed that the
dispute was with the primary employer.
However, because Salt Dome thereafter, on December 7, tem-
porarily removed its nonsupervisory employees from the Pelican and
Todd's premises, leaving only the Pelican's captain and chief engineer
aboard, and notified the Respondent and the pickets of this fact, the
majority finds that the continued picketing after that date thereby
became unlawful. The majority reasons that, as a result of the re-
moval of the vessel's nonsupervisory personnel, Salt Dome ceased to
be engaged any longer in its normal business at the situs of the
dispute within the intendment of the Moore Dry Dock doctrine.
SEAFARERS' INTERNATIONAL UNION OF NORTH AMERICA 1645
I have great difficulty finding any factual or legal justification for
this conclusion.
In Moore Dry Dock,' the majority expressly observed that the
"normal business of a ship does not only begin with its departure on
a scheduled voyage. The multitudinous steps of preparation, includ-
ing hiring and training and putting stores aboard, are as much a part
of the normal business of a ship as the voyage itself." In the present
case, putting the Pelican in proper working condition was unques-
tionably one of the "multitudinous steps" Salt Dome was required to
take if it desired to continue in its business of oil drilling. Indeed, it
is particularly significant that the Pelican at all times was under the
:supervision and control of Salt Dome through its captain and chief
engineer who remained aboard the vessel. In these circumstances, the
fact that Salt Dome temporarily removed its nonsupervisory em-
ployees from the Pelican may not reasonably be viewed as a cessation
of normal business as to convert the picketing which was permissible
into unlawful conduct.
Nor am I persuaded that the excerpt from Moore Dry Dock quoted
in the majority's opinion compels a contrary conclusion. For one
thing, if the majority in Moore Dry Dock intended to give controlling
significance to the presence of nonsupervisory employees on the ship,
clearly, it could have enumerated it as one of the conditions for sanc-
tioning the picketing. But it did not do it-and rightly so. For, if
it did, it would have meant that picketing at the shipyards would be-
come illegal the moment it succeeded in inducing all the primary em-
ployer's nonsupervisory employees to join the strike. I doubt very
much whether the majority in the instant case would subscribe to such
a doctrine.
Secondly, to interpret the -quoted excerpts as imposing the re-
quirement that nonsupervisory employees must at all times during the
picketing be present on board the ship would be to defeat the purpose
the Moore Dry Dock doctrine was designed to serve. This doctrine,
as clarified in later decisions 10 was developed in recognition of a
union's traditional right to publicize the facts of a labor dispute it
might have with an employer who has no permanent place of business
which could be picketed, despite the fact that the neutral employer may
be subject to some incidental interference with his business. In deter-
mining under what circumstances Section 8 (b). (4) permitted a
union to picket at the premises of a secondary employer which
"harbored" the site of a labor dispute, the Board in Moore Dry Dock
found it necessary to reconcile "the dual Congressional objectives of
1 92 NLRB at 550.
10 Washington Coca Cola Bottling Works, Inc., 107 NLRB 299, enfd. 220 F. 2d 380 (C. A.
D. C.) ; Southwestern Motor Transport, Inc., 115 NLRB 981 ; W. H. Arthur Company,
115 NLRB 1137; Barry Controls, Inc., 110 NLRB 1470, enfd. 250 F. 2d 184 (C. A. 1).
1646 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
preserving the right of labor organizations to bring pressure to bear
on offending employers in primary labor disputes and of shielding
unoffending employers and others from pressures in controversies not
their own." '
Mindful of the underlying reasons for the Moore Dry Dock doc-
trine, I am reluctant to import into it any qualification which tends
to subvert its basic purpose of enabling the picketing union to publi-
cize its labor dispute where the primary employer has no fixed place
of business at which it could do so adequately. Concededly, this was
precisely the situation confronting the Respondent in the present
case. Indeed, here, it was necessary, as subsequent events proved, that
the Respondent be permitted to continue his picketing, in order to
protect the strikers' jobs and to appeal to any prospective replace-
ments. The record shows that after picketing was enjoined by a
temporary restraining order of a United States District Court and
Todd completed the repairs on the Pelican, the vessel was towed into
the Mississippi River at night where the crew, including replacements,
and other employees were put aboard, without the Respondent's knowl-
edge. I fear that the majority's decision in this case lends itself to
such a technique for defeating a union's legitimate right to engage in
primary picketing.
Finally, as I read the quoted excerpt from Moore Dry Dock, in the
light of the entire decision and the necessary implications of the ma-
jority's interpretation, I am convinced that all the excerpt was in-
tended to convey was that the Board was not there presented with
the situation where employees were not on board the ship.
In view of the foregoing, I would affirm the Intermediate Report
and dismiss the complaint herein.
'1 N. L. R. B. v. Denver Building and Construction Trades Council , 341 U. S. 675, 692._
APPENDIX
NOTICE TO ALL MEMBERS OF SEAFARERS' INTERNATIONAL UNION OF
NORTH AMERICA, ATLANTIC AND GIILF DISTRICT, AFL-CIO, AND TO-
ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor RelaMons:
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify you that
WE WILL NOT engage in, or induce or encourage the employees
of any employer, other than Salt Dome Production Company, to
engage in, a strike or a concerted refusal in the course of their
employment to use, manufacture, process, transport, or other-
wise handle or work on any goods, articles, materials, or com
modities, or to perform any services, where an object thereof, is;
SEAFARERS' INTERNATIONAL UNION OF NORTH AMERICA 1647
to force or require any employer or other person to cease doing
business with Salt Dome Production Company or Gulf Oil Corpo-
ration or to force or require Salt Dome Production Company to
recognize or bargain with Seafarers' International Union of
North America, Atlantic and Gulf District, AFL-CIO, as the
collective-bargaining representative of any of Salt Dome's em-
ployees, unless we are certified as such representative under the
provisions of Section 9 of the Act.
SEAFARERS' INTERNATIONAL UNION OF NORTH
AMERICA, ATLANTIC AND GULF DISTRICT,
AFL-CIO,
Labor Organization.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered , defaced, or covered . by any other material..
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Upon separate charges filed by Salt Dome Production Company, Gulf Oil'
Corporation,' and Todd Shipyards Corporation, hereafter respectively called Salt
Dome, Gulf, and Todd, the Regional Director for the Fifteenth Region issued.
an order consolidating the above-entitled cases , and a consolidated complaint against.
the above-captioned labor organization , hereafter called the Union, or Respondent,
alleging that the latter had engaged in unfair labor practices within the meaning
of Section 8 (b) (4) (A) and (B ) and Section 2 (6) and (7) of the National
Labor Relations Act, 61 Stat. 136, herein called the Act. The complaint alleged
that: At all times material herein, Salt Dome has been engaged in drilling oil
and gas wells for Gulf in the Gulf of Mexico, and in connection therewith has,
manned and operated various motor vessels, including the Motor Vessel Pelican
which Salt Dome obtained by bare boat charter from its owner, Gulf; during
the same times, the Union was engaged in a campaign to have Salt Dome recognize
it as collective -bargaining representative of Salt Dome's employees; that the Pelican
was, on or about December 2, 1956, berthed at the premises of Todd for the
performance of repairs ; from on or about December 7, 1956, in furtherance of
its demand for recognition , "and notwithstanding that it was advised that none
of Salt Dome 's employees were working at said premises since said December 7,
1956, Respondent picketed at the entrance to Todd's shipyard at the Port of'
New Orleans"; and as a result of said picketing last described , employees of Todd,
refused to work aboard the Pelican or on equipment removed from the Pelican.
The complaint further alleged that the objective of said picketing was (1) to,
force or require Gulf to cease doing business with Todd; (2) to force or require.
Gulf, Todd, and other employers and persons to cease doing business with . Salt.
Dome; and ( 3) to force or require Salt Dome to recognize or bargain with the
Union as the representative of Salt Dome 's employees on its vessels, including.
the Pelican , although the Union has not been certified as the representative of such
employees in accordance with the provisions of Section 9 of the Act. By its answer,,
the Union denied the commission of any unfair labor practice.
Pursuant to notice , a hearing was held in New Orleans , Louisiana, on January 11,.
1957, before the duly designated Trial Examiner . The General Counsel, the
Union , and the Charging Parties all appeared by counsel and were afforded
full opportunity to be heard, to present testimony , and to examine and cross -examine;
witnesses . Since the close of the hearing , briefs have been received from the:
1 The name of this Charging Party appears as amended at the hearing.
1648 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
General Counsel, the Union, Salt Dome, and Gulf, all of which have been duly
.considered.
Upon the entire record in the case, I make the following:
FINDINGS OF FACT
1. COMMERCE : THE BUSINESS OF THE COMPANIES
Salt Dome is a Texas corporation and has its main office at Houston, Texas.
It is engaged in the production of oil and gas, and in contract drilling for oil and
gas, in the tidelands off the coast of Louisiana in the Gulf of Mexico. During the
12-month period ending July 31, 1956, Salt Dome received in excess of $1,000,000
for drilling and other services performed for Gulf and other major oil companies.
Gulf, a Delaware corporation with main offices at Pittsburgh, Pennsylvania, is
engaged in various of the States of the United States, including the State of
Louisiana, in the production of oil and gas. During the year immediately preceding
the issuance of the complaint herein, Gulf shipped oil having a value in excess
of $1,000,000 directly from its wells located in the State of Louisiana to points
outside that State. Todd, a New York corporation with main offices in New York
City, is engaged in operating shipyards and performing repairs and related work
upon vessels engaged in interstate and foreign commerce in various ports throughout
the United States, including the port of New Orleans. On the entire record I
.find that the Board is vested with jurisdiction herein.
II. THE LABOR ORGANIZATION INVOLVED
Seafarers ' International Union of North America, Atlantic and Gulf District,
AFL-CIO, is a labor organization within the meaning of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
In connection with its operations as described above, Salt Dome, in May 1955,
leased the Motor Vessel Pelican from Gulf under a bare boat charter and there-
after utilized that vessel to engage in drilling operations for Gulf in the Gulf of
Mexico. The Pelican is a twin-screw vessel, approximately 270 feet long and 60
,feet wide, and has two 500-horsepower diesel engines for propulsion. The vessel
also serves as a warehouse for the supplies used in the drilling operations, and as
quarters for all the men aboard. Salt Dome mans the Pelican with its own com-
plement of six licensed officers, marine crews, and drilling crews. Steward service
.is provided by an independent contractor under agreement with Gulf.
After acquiring possession and for a period of more than a year, Salt Dome
.continuously maintained the Pelican at various drilling operations in the Gulf of
Mexico without returning to land until December 2, 1956. On that day, the vessel
was brought to Todd's shipyards at New Orleans under circumstances hereafter
.detailed. While it was engaged in drilling operations, its nonsupervisory personnel
consisted of a marine crew of 18 unlicensed men, a drilling crew of 12, 2 welders,
a mechanic, and tool pushers. The marine and drilling crews on board are divided
into 2 shifts, each working 12 hours a day, with changes being made at noon and
.at midnight. Each of these shifts maintains that schedule for 10 days at the expi-
ration of which the men are given 5 days' shore leave and are replaced by. a third
:shift. Transportation to and from the Pelican for the various shifts is provided,
weather permitting, by helicopter service from a heliport on property of Gulf at
Leeville, Louisiana.
On Sunday, December 2, 1956, the Pelican was moved into Todd's shipyards at
New Orleans for overhauling and repairs as required by United States Coast Guard
Regulations. The vessel was placed in drydock on December 3, and the work of
overhauling commenced by both the Pelican crews and employees of Todd. By
December 5 the tail shafts had been removed, the paint sandblasted off, and several
openings , in addition to those caused by the removal of the tail shafts, appeared in
the, hull making the vessel unseaworthy. While most of this work was performed by
Todd's employees, the Pelican's marine and drilling crews, except those on their
.5-day shore leave, remained aboard where their services were utilized, as Salt 'Ddme
summarized in its brief, "in preparation for and supplemental to the work of the
shipyard employees." (Emphasis supplied.)
Prior to the arrival of the Pelican at the Todd shipyards, the Union had un-
successfully sought to achieve recognition by Salt Dome as bargaining representa-
SEAFARERS' INTERNATIONAL UNION OF NORTH AMERICA 1649
tive for its unlicensed personnel aboard the Pelican and other vessels operated by
Salt Dome.2
On the morning of October 5, four members of the Pelican's crew, together with
their belongings , left the vessel and began picketing on the wharf immediately adja-
cent to the Pelican. W. J. McCaffrey, personnel manager for Todd, was notified
of this picketing and directed a guard-lieutenant to instruct the pickets either to
(return to the Pelican or to get off the Todd property. Pursuant to that instruction,
the pickets left their posts on the wharf alongside the Pelican and immediately took
up new positions on public property adjacent, to the entrance to the Todd yards.
On the same day, L. J. Williams, the Union's port agent, addressed a letter to
Jack Smith, Todd's New Orleans manager, requesting permission to picket "directly
adjacent to the Pelican, . the side of the dispute" with Salt Dome. Smith
replied on December 5 and advised Williams that "as a matter of policy, [Todd]
does not permit the use of its privately owned premises for purposes other than its
business."
The legends on the picket signs during the entire course of picketing, which con-
tinued until it was restrained by a district court order on December 15, 1956, read
as follows:
Read Our Leaflet
Organizational Picket
Employees of
Salt Dome Production Co.
Aboard
M/V Pelican
Join Our Union
for Better Wages, Hours and Conditions
Seafarers' International Union, AFL-CIO
Read our Leaflet
No Dispute with Todd Shipyard
Read Our Leaflet
PICKET
SATL DOME PRODUCTION CO.
UNFAIR
Employees on
M/V PELICAN
ON STRIKE
Seafarers International Union-AFL-CIO
READ OUR LEAFLET
No Dispute With Todd Shipyard
While the picketing was going on at "shipside," the pickets distributed a leaflet
to Todd's employees reading as follows:
Notice
This picket sign is directed at the employees of Salt Dome Production Com-
pany aboard the motor vessel Pelican.
Our dispute is with Salt Dome Production Company and we do not have a
dispute with Todd Shipyards Corporation or any other employer in these
premises or area.
After the pickets were moved on public property outside Todd's premises, they
passed out notices informing the recipients thereof that the pickets had been ordered
away from their positions adjacent to the Pelican , and that their picket line should
be considered "as if it were only adjacent to the motor vessel Pelican aboard which
Salt Dome Production Company is engaged ." The notice further specifically ad-
2 On June 4, 1956, the Union filed a petition (15-RC-1435) with the Board seeking to
be certified as bargaining representative for all unlicensed personnel aboard the Pelican.
The petition was amended on July 5, 1956 , to include all unlicensed personnel aboard
three other vessels. After an election had been ordered, the Board, on motion of the
Union, granted the latter's request to withdraw the petition.
476321-58-vol. 119-105
1650 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
vised that the Union 's dispute was with Salt Dome "and not with Todd Shipyards
Corporation or any other employer within the premise (sic) or area."
Shortly after the 4 pickets took up their posts at the shipside on the morning
of December 5, approximately 6 other members of the Pelican's crew abandoned
their work on that vessel and went on strike. Early during the morning of the
same day, Glen Freeman and John Van Hees, shop stewards for Local 29 of the
Industrial Union of Marine and Ship-building Workers of America, AFL-CIO,
the Union representing Todd's production and maintenance employees, informed
McCaffrey that "they would work other jobs in the yard but would not work the
Pelican [because ] it was a hot ship." McCaffrey at about the same time had
similar conversations with the president and executive secretary of Local 29 afore-
mentioned , and also with a group of 40 employees of Todd, in an endeavor to
have the Todd employees continue their work on the Pelican, but all declined to do
so. As a result, from the morning of December 5 until the issuance' of a district
court restraining order on December 15, Todd's employees refused to work on the
Pelican or upon any of its parts which had been removed to the Todd shops.
All of the Salt Dome's drilling and marine crews did not join the strike on the
morning of December 5. Those that did not remained on board and continued
their repair or overhauling work until December 7 when they, together with other
nonsupervisory personnel and the stewards, were removed from the vessel on orders
from Salt Dome. On the same day, December 7, Salt Dome caused a letter to be
delivered to the Union reading as follows:
It is our understanding that the picketing of the Todd Shipyards and the
M/V Pelican is being conducted under your direction. Please be advised that
as of the writing of this letter no nonsupervisory personnel in the employ
of Salt Dome Production Company or Gulf Refining Company are at work or
quartered aboard the M/V Pelican. All such personnel have been relieved of
duties aboard the motor vessel Pelican or within the premises of Todd Ship-
yards. This condition will continue for the duration of the Pelican stay in
the Todd's shipyards.
The Salt Dome employees removed from the Pelican on December 7 either were
assigned to work on other rigs of Salt Dome in the Gulf of Mexico , or were fur-
loughed. The Todd employees , who on December 5 declined work on the Pelican
or its removed equipment, transferred to and worked on other jobs in the Todd
yards or shops until December 15 when the pickets were removed. At that time,
they returned to their work on the Pelican and completed its overhauling and re-
pairs on December 18. About 8:30 p. m. of that day, the vessel was towed from
the Todd yards and placed at anchorage in the Mississippi River. In the mean-
time , its marine and drilling crews, consisting partly of the former crew members and
partly of new employees, and its stewards, were assembled in the Harvey Canal
and the Industrial Canal from which points they were carried to the Pelican by boats.
The vessel then returned to the same location in the Gulf of Mexico formerly oc-
cupied by it, approximately 80 miles from shore, and resumed the operations inter-
rupted by the move to the Todd yards on December 2.
Concluding Findings
The basic problem posed by the record herein is to reconcile and give effect to
"the dual Congressional objectives of preserving the right of labor organizations to
bring pressure to bear on offending employers in primary labor disputes ," a right
guaranteed by Sections 7 and 13 of the Act,3 "and of shielding unoffending em-
ployers and others from pressures and controversies not their own," a practice
proscribed by Section 8 (b) (4) (A) and (B) of the Act .4 N. L. R. B. v. Denver
Building and Construction Trades Council, et al., 341 U. S. 675, 692.
8 SEC. 7. "Employees shall have the right to self-organization , to . assist labor
organizations, . . and to engage in other concerted activities for the purpose of collective
bargaining or other mutual aid or protection. . . .
SEC. 13. "Nothing in this Act, except as specifically provided for herein, shall be 'con-
strued so as either to interfere with or impede or diminish in any way the right to strike,
or to affect the limitations'or qualifications on that right."
* SEC. S. (b) "It shall be an unfair labor practice for a labor organization or its
agents- . . ( 4) to engage in, or to induce or encourage the employees of any employer
to engage in, a strike or a concerted refusal in the course of their employment to use,
manufacture, process, transport, or otherwise handle or work on any goods, articles,
materials, or commodities or to perform any services, where an object thereof is : (A) fore-
SEAFARERS' INTERNATIONAL UNION OF NORTH AMERICA 1651
The achievement of both objectives presents no problem where the picketed
premises are occupied exclusively by either the primary employer or the secondary
imployer, but not by both. Where the picketing occurs at premises occupied ex-
elusively by the primary employer with whom the union is engaged in a con-
troversy , its purpose is to bring economic pressure on that employer and is
traditionally recognized as a protected primary activity even though it is "neces-
sarily designed to induce and encourage third persons to cease doing business with
the picketed employer." 5 On the other hand, where the union pickets at the
premises occupied exclusively by a secondary or neutral employer with whom it has
no dispute , its purpose is not to bring pressure on the employer with whom the
union has a dispute . There, obviously , its purpose is to bring pressure only on the
neutral employer, and constitutes the traditional secondary boycott clearly pro-
scribed by Section 8 (b) (4) of the Act. Where, however, as here, the picketed
premises are occupied by both the primary and neutral secondary employer creat-
ing what is commonly called a common or mixed situs , the problem of reconciling
the respective rights of the labor organization and the neutral employer is presented
for solution.
Interesting as it is, I find it unnecessary at this stage in the administration of
the Act to review the case history established by the Board and the courts in
the consideration of our problem . It is sufficient to say that , in situations such
as confronts us here, it is now firmly recognized that the necessary reconciliation of
the dual congressional objectives aforementioned was achieved by the Board's
decision and pronouncements in Sailors ' Union of the Pacific, AFL (Moore Dry
Dock Company ), 92 NLRB 547. In that case, the Board concluded that where
"a secondary employer is harboring the situs of a dispute between a union and a
primary employer , the right of neither the union to picket nor of the secondary
employer to be free from picketing can be absolute . The enmeshing of premises
and situs qualifies both rights. In [that] situation , . picketing of the premises
of a secondary employer is primary if it meets the following conditions: (a)
The picketing is strictly limited to times when the situs of dispute is located on
the secondary employer's premises ; ( b) at the time of the picketing the primary
employer is engaged in its normal business at the situs ; (c) the picketing is limited
,to places reasonably close to the location of the situs ; and (d ) the picketing discloses
clearly that the dispute is with the primary employer ." [Emphasis in original.]
The General Counsel and the Union are in agreement , a conclusion in which
I concur, that decision herein must rest on a determination of whether or not
the picketing at the entrance to the Todd yards met the conditions imposed by
the Board in the Moore Dry Dock case and those which have followed that
decision.6 The General Counsel, in his brief , does not contend that the Union
failed to comply with conditions ( a), (c), or (d) imposed by Moore Dry Dock,7
nor could he successfully do so. On the entire record I have no hesitation in
.finding that the Union scrupulously complied with those three conditions.
With respect to condition ( a), because "the [Pelican ] was the place of employment
of the [marine and drilling crews] it was the situs of the dispute between [Salt
Dome] and the Respondent over working conditions aboard that vessel . . . [Here],
during the entire period of the picketing the [Pelican ] was tied up at a dock in
the [Todd ] shipyard." 8
Concerning condition (c), "[b]efore placing its pickets outside the entrance to
the [Todd] shipyard , the Respondent Union asked, but was refused, permission
ing or requiring . . . any employer or other person to cease using , selling, handling,
transporting, or otherwise dealing in the products of any other producer , processor, or
manufacturer , or to cease doing business with any other person ; (B) forcing or requiring
any other employer to recognize or bargain with a labor organization as the representative
of his employees unless such labor organization has been certified as .the : representative of
such employees under the provisions of section 9."
e Oil Workers International Union ( Pure Oil Company ), 84 NLRB 315, 318.
6 These conditions have met with uniform judicial approval . See N. L. It . B. v. Service
Trade Chauffeurs , etc., 191 F. 2d 65, 68 (C. A. 2) ; Piezonki etc. v. N. L. It. B ., 219 F. 2d
879, 883 (C. A. 4) ; N. L. R. B. v. Chauffeurs , Teamsters , etc., 212 F. 2d 216, 219 (C. A. 7) ;
N. L. R. B. v. Local Union No. 55 , etc., 218 F. 2d 226, 231 (C. A. 10) ; N. L. R. B. v.
Associated Musicians, Local 802, AFL, 226 F. 2d 900 (C. A. 2).
7In his brief , the General Counsel states that "all parties recognized at the hear-
ing . . . [that] the picketing at Todd shipyards differed from the picketing in the Moore
Dry Dock case, supra, in that there was no nonsupervisory employees aboard the
M/V Pelican subsequent to the afternoon of December 7." [Emphasis in original.]
8 Moore Dry Dock Co., supra.
1652 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to place its pickets at the dock where the [Pelican ] was tied up . The Respondent
therefore posted its pickets at the yard entrance which . . . was as close to the
[Pelican] as they could get under the circumstances." 9
With respect to condition ( d), "by picketing and other conduct the Respondent
was scrupulously careful to indicate that its dispute was solely with the primary
employer, the owners of the [Pelican ]. Thus the signs carried by the pickets
said only that the [Pelican ] was unfair to the Respondent . The [Pelican] and
not [Todd] was declared `hot.' . . . [The General Counsel 's] own witnesses ad-
mitted that no attempt was made to interfere with other work in progress in the
[Todd] yard ," 10 and that a leaflet was handed to Todd employees specifically
advising them that there was no dispute with Todd or any other employer on the
premises , other than Salt Dome.
It is however , the contention of the General Counsel that because "there were
no nonsupervisory employees aboard the Pelican subsequent to the afternoon of
December 7, . Respondent's picketing at Todd failed to comply with the second
condition established in Moore Dry Dock." I find no authority , or reason, for
imposing the test suggested by the General Counsel as the controlling factor to
determine whether or not an employer is engaged in his normal business. Let it
be assumed , arguendo , that on December 5 all nonsupervisory personnel aboard the
Pelican had gone on strike leaving the vessel without any such employees to finish
the work the strikers had abandoned . The Pelican being the situs of the dispute,
and all other conditions being satisfied , the pickets would have an unquestioned
right to publicize the dispute with Salt Dome to any prospective replacements
for the strikers that might approach the Pelican seeking, or entering , employment
thereon . Yet, if the rationale of the General Counsel were sustained , the right
of the strikers or their Union to publicize their dispute with Salt Dome would
be denied them because there , as here, no nonsupervisory employees would be left
aboard the Pelican. Such a contention demands its own prompt rejection.tl
The fallacy of the General Counsel 's contention is that the second condition
imposed by Moore Dry Dock is not whether employees of the primary employer
are actually aboard at the time of the picketing , or whether they have been
deliberately directed by the employer to absent themselves as was the case here.
Test (b) of that case concerns itself only with a determination of whether or
not "at the time of the picketing the primary employer is engaged in its normal
business at the situs" of the dispute . The resolution of that question cannot be
reached by the simple inquiry made here by the General Counsel which concerns
itself only with the presence or absence of employees , regardless of how or why
their absence was brought about.
The Pelican was the physical instrumentality utilized by Salt Dome to conduct
its business operation , in much the same sense that a factory , plant , or shop, is
the instrumentality of a manufacturing concern or a merchant . For the seamen
on the Pelican it was what an employer's plant or place of business is to those
who work in or out of it; it was the focal point of their employment relationship,
their headquarters , the place where they worked , received their instructions, where
they ate and where they slept. It was on the Pelican, moreover , that the situs
of the labor dispute was to be found . There were employed the men whom the
Respondent was seeking to represent , and it was with respect to the wages, hours,
and working conditions on that vessel that Respondent was demanding bargaining
and a contract.
Here, while the Pelican was in drydock for repair , Salt Dome was engaged in
its normal business to the same extent as while it served in drilling operations in the
Gulf of Mexico; to the same extent that any manufacturer is still engaged in his
normal business when he overhauls or repairs his machinery or equipment so that
he may resume manufacturing operations . Indeed , here, the task of overhauling
and the making of repairs was imposed upon, and made a part of, Salt Dome's
normal business operations by Coast Guard regulations . Unless it complied with
Ibid.
30 Ibid.
n The General Counsel's contention is fraught with grave implications. Whereas here
we are concerned only with picketing as a mixed or common situs, if the General
Counsel's reasoning were adhered to, picketing during every primary strike in which all
the employees of an employer engaged, thus leaving the primary employer' s premises
completely unstaffed, would be violative of the Act. Surely, no such conclusion could
be sustained.
SEAFARERS' INTERNATIONAL UNION OF NORTH AMERICA 1653
those regulations , it could no longer continue the operations in the Gulf for which
purpose the Pelican had been chartered and to which it expected to, and did , return.
Furthermore , it is undisputed that during the entire period from December 5 until
the Pelican was returned to the Gulf of Mexico on December 18, its captain and
engineer remained on board in charge of the vessel.
In sum, just as the Board found in Moore Dry Dock, here also, "the crews were
thus getting the ship ready to serve the purposes of [Salt Dome], . . . and not
[Todd]. The normal business does not only begin with its departure on a scheduled
voyage. The multitudinous steps of preparation . are as much part of the
normal business of a ship as the voyage itself . [I] find, therefore , that during the
entire period of the picketing , the [Pelican ] was engaged in its normal business."
Great reliance is placed by the General Counsel and the Charging Parties on the
recent case of Local 618 , Automotive , Petroleum and Allied Industries Employees
Union, etc . ( Incorporated Oil Company ), 116 NLRB 1844. The facts in that case
were summarized by the Board as follows : The union there had for many years
represented the employees of the Site Oil Company which, through its subsidiaries,
operates a number of retail gasoline stations in St. Louis. The last collective-bar-
gaining agreement expired in September . 1952, and, because the parties could not
agree on a new contract during negotiations which followed , the union called a
strike of the station attendants on March 2 , 1953. The strike did not succeed, for
Site hired other attendants and continued operations at all its 14 locations . In time,
the picketing became intermittent , and, finally, individual stations were picketed
only from time to time.
In March 1955 , Site decided to rebuild completely 1 of its stations , located at
Manchester Street, a point more than 2 miles distant from any of its other establish-
ments . For this purpose it engaged the Drury Company, an independent building
contractor who employed union labor. Work started on March 14 , the old building
was demolished , and a temporary wooden structure erected in its place. Two weeks
later, the union 's pickets appeared at Manchester Street and all of Drury 's employees
quit work , refusing to cross the picket line . Site nevertheless continued to operate
the Manchester station, using emergency accommodations until July 20, 1955, when
it closed the station completely and removed its signs . All picketing at that location
then ceased.
On August 8, 1955, Drury's employees returned to resume their construction
work. Three hours later, the union established its picket line in front of the
premises anew, and all the construction workers quit . The picketing continued
since that day and Drury's employees never returned to work. It is this picketing
activity , "timed with the arrival of the employees of the independent contractor,
which the complaint alleged [and the Board found] to have been unlawful secondary
pressure upon Site to yield to the Respondent Union's demands."
A mere recital of the facts in that case demonstrates that the conclusions there
announced can have no application here. There , the Board 's conclusion that the
picketing on and after August 8, 1955 , was violative of the Act rested, in the main,
on two factors neither of which is present here. First , the timing of the picketing.
As the Board points out, there , "picketing [on August 8] was provoked by the
arrival . . . of employees of the Drury Company , with which the Union had no
labor dispute ." And secondly, "there were not then , nor had there been for some
time, any other employees on the premises ." [ Emphasis supplied.]
Here, the picketing was not so timed or provoked . The Union began picketing
on December 5 promptly after it was apprised of the first docking of the Pelican
in more than a year, and at a time when the crews which the Union sought to reach
by its picketing were still on board, as they had been for more than 12 months.
As I read the pleadings and the record , the General Counsel makes no claim that
the picketing was unlawful at its inception on December 5, on December 6, or
during the morning of December 7. Thus, paragraphs 11 and 8 of the complaint,
the crux of that pleading , in charging that the Union had imposed a secondary
boycott against Todd , alleges that that boycott was created by the Union 's picketing
"at the entrance to Todd's shipyard . . . notwithstanding that it was advised that
none of Salt Dome's employees were working at said premises since December 7,
1956." 12 [Emphasis supplied.] A reasonable construction of that pleading is,
therefore , that it is only the picketing since December 7 of which complaint is
12 On December 5, until the pickets were ordered off Todd 's premises , the picketing took
place inside Todd 's premises , immediately adjacent to the Pelican.
1654 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
made. In any event, at the hearing, during a colloquy between attorneys for the
General Counsel and the Union, when the latter asked whether there was any
contention by the General Counsel that the picketing from December 5 to 7 was
violative of the Act, the General Counsel announced that he was "only contending
that . . . the violation dates from [December] 7th to the 15th." And the general
import of his brief is that the picketing was transformed into an unlawful activity
only on December 7, when the remainder of the Pelican's nonsupervisory employees
were taken off the vessel.13
But even without regard to these statements of position, the record establishes
that the picketing from its inception on December 5 met the conditions of Moore
Dry Dock and related cases and was, therefore, protected primary activity. Accord-
ingly, I cannot find, as the Board did in Incorporated Oil Company, that "all that
took place" on the critical date, here December 7, "was the provocation of a strike
by the employees of [the neutral employer] with which this Union had no quarrel
whatsoever." Nor can I say here, as it was said there concerning the employees of
Site, that "unlike the entire line of common situs cases , there was no inducement
of the employees of [Salt Dome], the struck employer, when the Union established
its picket line at the [shipyard] location." [Emphasis supplied.] And, finally,
that the Board was aware of the implications involved and that it had no intention
of broadly holding that the mere absence of employees of the primary employer
was sufficient to convert a common situs into one only harboring the secondary
employer, is provided by the Board's explicit caveat in Incorporated Oil that its
decision therein was "defined and confined by the limitations that are necessarily
infused into it by the facts and the record of [that] case."
Though the issues discussed above were those upon which the General Counsel
and the Charging Parties focused their attention at the hearing and in their briefs,
other matters discussed in the briefs require consideration. Thus, the General
Counsel suggests that "it must not be forgotten that Respondent made no attempt
to picket either in the Tidelands or at the Leeville installation," undoubtedly a
reference to the condition imposed by Washington Coca Cola Bottling Works, 107
NLRB 299. Because of his oblique approach to this subject, and because he has
not challenged the Union's right to picket in and at the Todd yards from December 5
to 7, it seems reasonable to assume that the alleged availability of the Tidelands
and the Leeville installation as places to picket is not, in the view of the General
Counsel, sufficient, per se, to declare the picketing at Todd illegal, as it was in
Washington Coca Cola, supra. If that were his contention, I am at a loss to
understand his renunciation of any claim that the picketing from December 5 to 7
was violative of the Act.
In any event, as I view that decision and the now so-called per se doctrine
attributed to that case, it has no application here. The doctrine had its genesis in,
and its subsequent application has been limited to, situations altogether different
from the one that confronts us here. In Washington Coca Cola, while constantly
maintaining a picket line at the Company's plant, union pickets also followed
the Company's trucks while they were engaged in making deliveries of Coca-Cola
to customers in the metropolitan Washington area. The record there established
that while the retail stores received most of their regular deliveries during the time
that they were being picketed, a significant number of drivers for suppliers other
than Coca-Cola failed to make deliveries, or delayed deliveries until they checked
on the picket line with their employer or their union representative. The Board
found that these delayed or skipped deliveries resulted from the failure of the
union to see that its instructions concerning the picketing were disseminated among
the drivers of neutral employers, or from a disinclination of union members to
cross a picket line regardless of the legend on the picket sign.
Faced with those facts, the Board was confronted with the difficult task of
trying to draw a practical compromise between "the dual congressional objectives
of preserving the right of labor organizations to bring pressure to bear on offending
employers in primary labor disputes and of shielding unoffending employers and
's See footnote 7, supra. Though counsel for Salt Dome sought to broaden the issues,
under Section 3 (d) of the Act, the General Counsel is given final authority, on behalf of
the Board, in respect to the issuance of complaints and the prosecution of the complaints
before the Board. Additional issues are, therefore, not properly before me. Brewery and
Beverage Drivers, etc. (Washington Coca Cola Bottling Works), 107 NLRB 299, foot-
note 10.
SEAFARERS' INTERNATIONAL UNION OF NORTH AMERICA 1655
others from pressures in controversies not their own." And . because the Union
was able to maintain aconstant picket line at the Company's plant during all
business hours of every day, and to which plant the drivers returned at least four
tunes a day , the Board concluded that picketing of the trucks at the separate estab-
lishments of neutral employers constituted , per se, a violation of Section 8 (b) (4)
(A) of the Act. By that decision , both congressional objectives aforementioned
were achieved . The Union , by picketing the Coca-Cola plant, had adequate oppor-
tunity to publicize its dispute to the employees and to the public. It asked for
nothing additional, nor does the law permit it to have more. The neutral employer,
on the other hand, was, by the Board's decision , shielded from engaging in an
economic conflict not his own.
Here, however, the situation is altogether different . In Washington Coca Cola,
the picketing complained of was of an ambulatory nature and occurred at scores
of premises occupied by neutral employers at each of which the Coca-Cola drivers
spent only a few minutes a day. Here, the picketing occurred at the permanent
situs of the primary employer where its employees spent 24 hours of every day of
their employment . Indeed, it has not been challenged here that the Pelican,
being the place of employment of its crews , is, of necessity , the situs of any
dispute between Salt Dome and its employees over working conditions aboard
that vessel . In any event , in Washington Coca Cola, in referring to the Moore
Dry Dock case, the Board specifically recognized that the ship which was there
being picketed was "the situs of the picketing union's dispute with the ship owners."
Having that status, it is an appropriate place at which the striking employees
may publicize their dispute even though another employer may then be engaged
thereon. United Electrical, Radio and Machine Workers, etc. (Ryan Construction
Corporation ), 85 NLRB 417; Oil Workers International Union, etc. (Pure Oil
Company), 84 NLRB 315. I find no significant factor to' distinguish this case
from Moore Dry Dock, and rest my decision thereon.
To hold here, because Salt Dome maintained a post at Leeville , that its employees
should be deprived of the exercise of one of their fundamental and guaranteed
rights, to picket at the situs of its dispute , would be to completely and violently throw
out of balance the adjustment so delicately determined , of the rights of all the parties.
By the manner in which picketing was conducted herein, by the notices contained
on the picket signs and those distributed to the employees of Todd by hand
making it crystal clear that there was no dispute with Todd or any employer
other than Salt Dome, the rights of neutral employers were protected as much
as human ingenuity could devise and compels me to reject the contention that
the picketing could have served no purpose whatever other than to appeal to
Todd's employees to cease their repair work on the Pelican . On the other hand,
as will hereafter appear, a decision requiring the Union to limit its picketing to
the Leeville installation would, for all practical purposes , nullify a right guaranteed
employees by the Act.
Notwithstanding the General Counsel's contention that "Respondent made no
attempt to picket either in the Tidelands or at the Leeville installation ," I conclude
that the Union 's failure to avail itself of those opportunities is of no consequence
here. If the General Counsel is serious in his suggestion or contention that an
available place to picket the Pelican is "in the Tidelands ," the comment of the
Union, in its brief, is an appropriate answer thereto . That location , says the Union,
is "where only the crabs can criticize , the porpoises picket, and the gulls publicize
their dispute." The contention does, however, constitute an admission that the
Pelican is the situs of the dispute, and that its location is the place to picket.
Turning to the alleged availability of the Leeville installation as a place to picket,
I conclude that the failure to so utilize that location does not convert the picketing
at the Todd yards into an illegal activity . The Leeville installation consists of a
tract of land owned by Gulf, surrounded by "inaccessible marsh land," and bordering
on Bayou Lafourche . Access to the property is provided by only one entrance from
a public highway . Located on the installation is the heliport which serves the heli-
copter used by Salt Dome in transporting its employees to and from the Pelican.
Salt Dome has a small office on the location where it steadily employs two daytime
dispatchers or field clerks , and a night radio operator . Five or six other drilling or
oil companies , including Gulf, also have offices and employees on the installation.
At no time are members of the Pelican crews at the Leeville installation more than
a total of I to 3 hours during any 5-day period. Their presence during such periods
is limited to the elapsed time between their arrival on the installation and the time
1656 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that they board the helicopter for the 'trip to the Pelican. When, after 10 days in
the Gulf of Mexico, they are returned to Leeville, the men depart immediately for
their homes in Texas, Mississippi, and Louisiana. They render no service to their
employer at Leeville. They do not work at the helicopter port any more than a
shoreside employee works at the bus station while awaiting the arrival of the bus
that transports him to his place of employment. At any moment, as in fact here
it did as next appears, the transportation point may change, but the situs of employ-
ment remains always on, and travels with, the Pelican.
Commencing 5 days before December 2, 1956, until at least December 28, a period
of 1 month, none of the Pelican employees that the Union was entitled to contact by
a picket line had occasion to appear at that installation. During that period, there
was no change of crews, other than the one that was made after the repairs on
the Pelican were completed. And, significantly, after the repairs were completed by
the Todd employees on December 18, the crews were not placed aboard there or at
Leeville. Instead, about 8:30 p. m., the vessel was towed from the Todd yard into
the Mississippi River by tugboats and placed in anchorage there. Its crews, consist-
ing partly of replacements for the strikers, were not assembled at Leeville, or at
the wharf in the Todd yards. Instead, they were gathered at undisclosed places
,and, at midnight, transported by boat to the Pelican, and there placed aboard.
That maneuver, so far as the record discloses, had no other purpose or objective
on the part of Salt Dome than deliberately to deprive the Union of an opportunity
to publicize the dispute to the striker replacements that were placed aboard the
Pelican at a time when that picketing could have no effect on the Todd employees
who had already completed their work. Though there is no duty resting on an
employer to provide a union with a place to picket, the Act does guarantee em-
ployees the right to strike and to engage in picketing at the situs of their dispute with
their employer. Whether Salt Dome, by deliberately removing the situs of the labor
dispute beyond the reach of pickets, without showing any valid reason therefor,
thereby restrained its employees in the exercise of their guaranteed rights, need
not be decided or discussed here. That conduct does, however, reflect on the good
faith and soundness of Salt Dome's contention, concurred in by the General Counsel,
but rejected by me, that "it was [at Leevillel that Respondent could have effectively
notified these employees of any dispute it had with Salt Dome."
On the entire record I find that Respondent's activities which are the subject of
this complaint were primary in character, and conclude that Respondent has not
violated Section 8 (b) (4) (A) of the Act. Moore Dry Dock, supra; Ryan Con-
struction Company, supra; Pure Oil Company, supra; Baltimore Building and Con-
struction Trades Council et al. (Stover Steel Service), 108 NLRB 1575.14 It will,
therefore, be recommended that the complaint be dismissed in its entirety.15
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, I make the following:
CONCLUSIONS OF LAW
1. Seafarers ' International Union of North America, Atlantic and Gulf District,
AFL-CIO, is a labor organization within the meaning of Section 2 (5) of the Act.
2. Salt Dome Production Company, Gulf Oil Corporation , and Todd Shipyards
Corporation are engaged in commerce within the meaning of Section 2 (6) and (7)
of the Act.
3. Seafarers ' International Union of North America, Atlantic and Gulf District,
AFL-CIO, the Respondent herein, has not engaged in unfair labor practices within
the meaning of Section 8 (b) (4) (A) or (B) of the Act.
[Recommendations omitted from publication.]
12 Though the Board ' s order of dismissal in the Stover case was reversed by the court
of appeals , 219 F. 2d 879 (C. A_4), the court sanctioned the conditions imposed by Moore
Dry Dock and concluded that if those conditions are complied with, picketing of a common
situs is permissible . Its reversal of the Board was occasioned by the court 's conclusion
that condition ( d) of Moore Dry Dock "was clearly violated [ t]here , as the picketing did
not disclose clearly that the dispute was with the primary employer ." Here, it un-
questionably did.
' By reason of the foregoing findings, it is unnecessary to consider the effect of the
so-called "hot cargo" clause contained in the collective -bargaining agreement between
Todd and the union representing its production and maintenance employees.