Ingram Barge Co.

National Labor Relations Board - Board DecisionsJun 12, 1973

204 N.L.R.B. 63 (N.L.R.B. 1973)

INGRAM BARGE CO. Ingram Barge Co. and Marine Officers Association, Local 54, a/w International Brotherhood of Team- sters, Chauffeurs , Warehousemen & Helpers of America, Ind. Cases 15-CA-4534 and 15-RC-4683 June 12, 1973 DECISION, ORDER, AND CERTIFICATION OF RESULTS BY CHAIRMAN MILLER AND MEMBERS KENNEDY AND PENELLO On November 14, 1972, Administrative Law Judge George J. Bott issued the attached Decision in these proceedings. Thereafter, Respondent filed exceptions and a supporting brief, and the General Counsel re- submitted its brief to the Administrative Law Judge as a brief in support of the Administrative 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 to affirm the Administrative Law Judge's rulings, findings, and conclusions only to the extent consistent herewith. The Administrative Law Judge found that Respon- dent violated Section 8(a)(1) of the Act and interfered with the second mail ballot election in Case 15- RC-4683 by denying the Union reasonable access to its employees during the election period.' We dis- agree. The essential facts as found by the Administrative Law Judge are not in dispute and can be summarized as follows: On January 17, 1972, the Regional Direc- tor for Region 15 issued a Supplemental Decision and Direction of Second Election which inter alia sus- tained the Union's objections to a mail ballot election conducted in 1971, on the ground that the Employer, Respondent herein, had denied the Union reasonable means of access to its employees who were on its boats during the election period. Thereafter, the Em- ployer filed a request for review of the Regional Director's decision, which was denied as lacking merit by the Board on January 26. On February 9 the Re- gional Director issued a Notice of Election and there- 1 The Administrative Law Judge found it unnecessary to decide whether the Union's Objection 2, not alleged to be a violation of the Act, constituted an additional ground for setting aside the election In the absence of excep- tions to this disposition by the Administrative Law Judge we find, pursuant to Sec 102.46 of the Board's Rules and Regulations , that Objection 2 has been waived Accordingly, we shall overrule that objection 63 after advised the parties that a second mail ballot election would be conducted between March 1 and May 2. On February 13 the Employer delivered a new Excelsior list to the Regional Director. Not until Feb- ruary 25 did the Union request access to Respondent's boats for the purpose of discussing the election issues with the eligible voters on board. Re- spondent received the Union's request on February 28 and on February 29 replied that it was constrained to deny the Union's request for access. On March 1 the Regional Director mailed the ballots to the em- ployees and they were subsequently tallied by him on May 2. The tally of ballots showed that of 74 ballots cast, 51 votes were against the petitioning Union. Thereafter, the Union filed timely objections to con- duct affecting the election, and the charge in Case 15-CA-4534, which were duly consolidated for hear- ing before the Administrative Law Judge. Accepting the conclusion of the Administrative Law Judge that the eligible voters on Respondent's boats were beyond the reach of reasonable union ef- forts to reach them and that normally, therefore, a reasonable request by the Union for access should have been granted, we do not find that the request made under one of the facts of this case was a reason- able one. This matter was not, in our view, given proper weight by the Administrative Law Judge be- cause in assessing whether Respondent violated the Act when it denied the Union's request, the Adminis- trative Law Judge failed to consider the timing of that request as it relates to the overall sequence of events herein. We note that the Union knew on January 26, the date of the Board's denial of Respondent's request for review and a full month prior to the mailing of the ballots for the second election, that the Regional Di- rector, with the sanction of this Board, had held that a union representative was legally entitled access to Respondent's boats to discuss the election issues with the eligible voters. Nonetheless, the Union did not make its request for access during this instant election campaign, which had begun at least several weeks earlier, until February 25, which was only 2 working days prior to the date set for mailing of the ballots. Yet the Union must also have known that for Respon- dent to have granted its request at that late date would have inevitably invited a considerable risk of viola- tions of the Board's instructions to voters 2 not to discuss the election with anyone prior to mailing the ballots back to the Board. See, e.g. Chotin Transporta- tion Inc., 203 NLRB No. 73, and Oregon Washington 2 The instructions provide in pertinent part FROM THE TIME YOU OPEN THE ENVELOPE CONTAINING THE BALLOT. YOU SHOULD CONSIDER YOUR. SELF IN THE SAME POSITION AS THOUGH IN A VOTING BOOTH IN A MANUALLY CONDUCTED ELECTION YOU SHOULD THEREFORE FOLLOW THE INSTRUCTIONS BELOW AND DROP YOUR BALLOT IN THE UNITED STATES MAIL BEFORE DISCUSSING IT WITH ANYONE 204 NLRB No. 17 64 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Telephone Company, 123 NLRB 339. Thus, in view of the Union's substantial delay in requesting access on February 29 and the risks of violation of our rules attendant upon granting such a tardy request, we have concluded that the timing of the Union's request for access was fatal to its reasonableness. Accordingly, upon the special facts of this record, we do not believe that Respondent's refusal to grant the request was a violation of Section 8(a)(1), nor that we ought to set aside the election because of such refusal. For the above reasons we conclude that the com- plaint should be dismissed in its entirety and that the objections to conduct affecting the election should be overruled. As a majority of the eligible voters have not cast ballots in favor of the Union, we shall certify the results of the election. ORDER It is hereby ordered that the complaint in Case 15-CA-4534 be , and it hereby is, dismissed in its en- tirety. CERTIFICATION OF RESULTS OF ELECTION It is hereby certified that a majority of the valid ballots have not been cast for Marine Officers Associ- ation, Local 54, a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, Ind., and that said labor organization is not the exclusive representative of all the employees, in the unit herein involved, within the meaning of Sec- tion 9(a) of the National Labor Relations Act, as amended. DECISION STATEMENT OF THE CASE GEORGE J. BOTT, Administrative Law Judge: The hearing in these consolidated cases was held before me at New Orleans, Louisiana, on August 22, 1972. The unfair labor practice case began with a charge filed by Marine Officers Association, Local 54, a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of Amer- ica, Ind. (herein Union), on June 6, 1972, on which the Regional Director issued a complaint against Ingram Barge Co. (herein Respondent or Company) on July 10, 1972, alleging that it had violated Section 8(a)(1) of the National Labor Relations Act, as amended, herein called the Act, by denying the Union access to its boats during the period preceding a Board representation election.' Case 15--RC-4683 began with a petition for certification 1 The complaint also alleged a violation of Sec 8(a)(l) in refusing to supply the Union with certain information to assist it in communicating with em- ployees eligible to vote in the election, but , as I understand General Counsel's present position as stated in his brief, this allegation has been abandoned. of representatives filed by the Union on June 24, 1971, seeking to represent certain of Respondent's employees. On August 2, 1971, the Regional Director issued his Decision and Direction of Election in which he ordered an election in a unit of Respondent's "deckhands, oilers, tankermen, steersmen and cooks ." The initial election in this case was conducted by mail and the ballots were opened on Novem- ber 2, 1971. The Union lost the election and the Regional Director set it aside on the ground that the Company had denied the Union's request for access to its boats during the election period. Having set the election aside on the basis of the Union's timely objections, the Regional Director or- dered a second election. Respondent's exceptions to the Regional Director's Supplemental Decision and Direction of Second Election were overruled by the Board on January 26, 1972. The second election was also conducted by mail ballot and the ballots were counted on May 2, 1972. The Union lost the election and filed timely objections to its conduct. Since one of the Union's objections, that is denial of access, paralleled the allegations in the complaint issued on July 10, 1972, the Regional Director on July 10, 1972, consolidated the objections and the unfair labor practice proceeding for hearing and decision. All parties were represented at the consolidated hearing. Subsequent to the hearing, all parties filed briefs which have been carefully considered. Upon the entire record in the case and from my observa- tion of the witnesses, I make the following: FINDINGS OF FACT L RESPONDENT'S BUSINESS Respondent, a Delaware corporation, with its principal office and place of business in New Orleans, Louisiana, is engaged in the business of transporting goods by water- home vessels between several States along the inland water- ways of the United States. During the 12-month period prior to the issuance of the complaint, Respondent, in the course and conduct of its business operations, received reve- nues from them in excess of $500,000. I find that Respon- dent is engaged in commerce within the meaning of the Act. 11 THE LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of the Act. III THE ALLEGED UNFAIR LABOR PRACTICES A. The Facts 1. The setting The Company operates nine towboats on the inland wa- terways , principally along the Mississippi and its tributaries. The size of the crews vary, ranging from four to nine em- ployees in the voting unit z There were 88 employees in the 2 The appropriate unit is all deckhands , oilers, tankermen , steersmen, and cooks employed aboard the Employer's vessels, excluding all other employ- ees, office clericals employees , guards, and supervisors as defined in the Act. INGRAM BARGE CO. 65 voting unit during the election period and they resided in 12 different States and 62 cities or towns.3 The second election was also conducted by mail , the bal- lots being mailed to the employees at their homes on March 1 and counted on May 2, 1972. Seventy-four ballots were returned and 51 votes were against the Union -Petitioner. On February 13, the Company delivered to the Regional Office a list of unit employees and their addresses for the use of all parties to the election .' On February 25, the Union requested, as it had prior to the first election, that it be allowed to board the Company's boats "for the purpose of discussing the election issues with the eligible voters aboard," and it assured the Company that its agents would conduct themselves in a way that would not interfere with the operations of the vessels. The Union also advised the Company that it would provide insurance coverage to pro- tect the Company from liability for injury to the Union's agents while on company property as it had other compa- nies under contract with the Union. In a letter dated February 29, 1972, the Company advised the Union that it was "constrained to deny your request that agents of your union be permitted to board vessels of In- gram Barge Company." The Company's towboats normally operate continuously with stores and fuel generally taken on in operation in mid- stream. The employees who operate the boats live aboard while working, and they too normally join the crew or leave it while the vessel is in operation. Employees "normally" or "generally" spend 30 days working on the boats and 30 days off, but it is evident from exhibits in evidence and from President Donnelly's testimony that there are a number of exceptions to this policy, for employees may depart from the 30-day-on and 30-day-off pattern for a number of reasons. Since the employees would be at work on the towboats for a substantial portion of the 60-day voting period and be- cause only the Company or the employee would have infor- mation regarding crew changes , the Union in its letter of February 25 requesting access also asked the Company to provide it with a schedule of crew changes indicating the name of the individuals, the scheduled location of the change , and the estimated time of the change. In its reply on February 29, the Company enclosed a list of all employ- ees in the unit , showing which employees were on the boats and which were off as of that date. The Company also promised to advise the Union daily by certified mail during the election period of all changes in crew. The original list supplied on February 29 and the daily changes which the Company sent the Union are in evidence and are referred to as the "On-Off" lists . There were 42 employees listed as "Off" the boats on the February 29 list, residing in 32 differ- ent cities and towns in 9 different States. 7 Alabama, Arkansas , Iowa, Florida, Pennsylvania, Missouri, Kentucky, Tennessee , Texas, Louisiana , Mississippi, and Illinois. It appears from an exhibit in evidence (R.3) that relatively few unit employees reside in Iowa, Alabama, Florida, Texas, and Illinois and that the rest are scattered about many locations in the other States listed 4 Known as the Excelsior list from the name of the case in which the Board established this requirement . Excelsior Underwear Inc, 156 NLRB 1236 2. The Union's efforts to reach the employees during the election period The Union assigned two representatives to contact em- ployees during the election period .5 Arthur King, a field organizer, sought to reach employees between February 25 and March 7 and again between March 27 and April 8. The Union's secretary-treasurer, John Harruff, tried to reach employees between March 27 and April 6 and between April 13 and April 18. The officials divided the list of eligi- ble employees and drove through the geographical area in which the voters lived. King testified credibly that on his first trip he covered the states of Illinois, Missouri , Kentucky, Tennessee, Arkansas, Louisiana, and Mississippi. He did not have the "On-Off" list in his possession during the first tour, but he did have the Excelsior list of employee names and addresses. On his second time around, King visited the same States, with the exception of Illinois , and this time he had with him the "On-Off" list and also had access by telephone to the infor- mation about crew changes which the Company was pro- viding the Union daily. In his testimony, King described in detail his efforts to see employees face to face. Although he did see and talk with a number of employees, most of his efforts were fruitless for a variety of reasons. When King attempted to reach a particular employee by telephone to arrange a meeting, he frequently found himself talking with a relative of the employee who either informed him that the employee was on one of Respondent's boats or was otherwise unavailable. In some cases, King learned that the employee was no longer in the voting unit, and in others it was apparent to him that the employee did not wish to meet him. Other examples of the attempts he made to make contact and their results follow: In Dover, Tennessee, he was told by employee Boone's neighbor that he was on a boat, and he was unable to get any information about em- ployee Boren despite numerous efforts; in Paducah, Ken- tucky, Browning's daughter told him that he was working as a repairman on a boat, but she did not know how to reach him; Burnham was unavailable during King's first trip, and he had already cast his ballot by mail when he reached him the second time around; in Wynne, Arkansas, a ship's offi- cer told King that he had put employee Cooper, of Mc- Crory, Arkansas, on a train to return to work on a boat; King could not reach employee Cope of Marvell, Arkansas, on his first trip, and he learned on his second visit to the community that Cope had quit his job; other employees living in various communities in various States were tempo- rarily located in other parts of the State on business or pleasure; Mrs. Heise told King when he telephoned her husband from Cape Giradeau, Missouri, that her husband had been promoted to engineer; on King's second attempt to reach McCarty in Owensboro, Kentucky, his mother told him that he was a student and was going back to school; in Greenville, Mississippi, the postmaster was unable to help King find employee Roberts; on King's second trip to Big Rock, Tennessee, he learned that Frank Schwarzmeir, Jr., had quit his job with the Company and was now running 5 Captain Carlton , the Union's president , made no field tnps, but he appar- ently made or attempted to make certain telephonic contacts with some employees or other persons who might assist the Union in reaching them. 66 DECISIONS OF NATIONAL LABOR RELATIONS BOARD for sheriff; and one employee told King he was "afraid" to see him. Secretary-Treasurer Harruff's experiences were essential- ly like King's on the two trips he made to attempt to see approximately 25 eligible voters in Kentucky, Tennessee, Mississippi, and Arkansas. During these trips, he had been receiving "On and Off" notices from the Company, but he pointed out that the information supplied did not show how long an employee would be on or off a vessel. He said that on several occasions after he had passed the location where a particular employee resided he learned that the employee was now off the boat, but to reach him would require back- tracking many hundreds of miles. King's and Harruff's efforts during their two trips result- ed in actual face-to-face contact with only 20 employees.6 3. Respondent's officials visit employees at their homes during the election period From mid-February to shortly before the election ended on May 1, President Donnelly and Vice President Verner spent a "substantial amount" of their time, according to Donnelly, touring the area in which the employees live in an effort to see and talk with them. Donnelly said that he had the same information to assist him that the Union had, but he conceded that, in addition to the "On-Off" lists, he had telephone numbers from employee files and, in some cases, telephone numbers of neighbors to aid in making the initial contact. Donnelly and Verner flew to various points and then rented automobiles to complete their journeys. Don- nelly estimated that each of them drove 3,000 or 4,000 miles, and he said that they were each able to see 25 employees. B. Analysis, Additional Findings, and Conclusions The result in this case in controlled by the principles announced by the Supreme Court in N. L.R.B. v. The Bab- cock & Wilcox Company, 351 U.S. 105 (1956), as recently applied by the Board in Sioux City and New Orleans Barge Lines, Inc., 193 NLRB 382. In Babcock & Wilcox, the Court drew a distinction between the respective rights of employ- ees and nonemployees to conduct organizational activities on an employer 's premises . The Court held that an employ- er may refuse to grant access to nonemployee union organ- izers to distribute union literature or otherwise disseminate union information to its employees on its property if "rea- sonable efforts by the union through other available chan- nels of communication will enable it to reach the employees with its message ...." 7 But if, as the Court said at another point, "the location of a plant and the living quarters of the employees place the employees beyond the reach of reason- able union efforts to communicate with them , the employer must allow the union to approach his employees on his property." 8 Applying the Babcock & Wilcox principles in Sioux City, the Board held that the employer violated Section 8(a)(1) of the Act by denying access to its towboats to nonemployee organizers for the purpose of communicating with employ- ees during an election period. Although there are factual differences between the instant case and Sioux City and other cases in which the Board and courts have permitted access to an employer's premises by nonemployee organiz- ers, as Respondent points out in its brief, I find that those differences are not legally significant and that Respondent violated the Act by denying the Union's request to board the Company's vessels under reasonable rules for the pur- pose of discussing the election issues with the eligible voters during the election period. In Sioux City, the respondent operated 14 towboats and here the Company operates 9. Both companies maintain a continuous operation and crew members live aboard the boats for substantial periods of time. In Sioux City, 118 eligible voters were scattered throughout 15 States and in this case 88 voters lived in 12 States. The election in Sioux City was based upon a Stipulation for Certification Upon Consent Election which was signed on September 17, and the election was conducted between October 13 and 30. In Sioux City, therefore, the election period consisted of 43 days .9 In this case, the Union was notified by the Board of the details of the election on or about February 17 and the mailed ballots were mailed on March 1 and counted on May 2, an election period of 72 days.10 In this case, 73 of the 88 eligible voters were aboard the Company's boats for sub- stantial periods of time between February 29 and April 27, and all were off the boats for 30 days during the election period. In Sioux City, 76 of the 118 voters were on the boats during the election period, but it also appeared, and this is the major difference, that since employees normally worked 45 days without leave, many of them would not have left the boats at all during the election period. The Board did not, however, hold in Sioux City that the respondent violated the Act in denying access to its boats on the sole ground that a large number of employees lived and worked on the boats during the election period, but because that factor, in combination with others, including primarily the fact that the employees in the unit resided in a 15-state area when not working on the Company's boats, made it "virtually impossible, and obviously impractica- ble" 11 for the unions involved to engage in face-to-face contact with them. This is so because the question is not whether it is relatively easier for a union to reach employees in one case than it is in another, but whether the location of the worksite and the residences of the employees place them beyond the use of "reasonable" union efforts to come in contact with them, for as Court said in Babcock & Wilcox at still another point and reaffirmed it in Central Hardware Co.12 Organization rights are granted to workers by the same v The Sioux City election took place aboard the towboats between October6 In his brief , counsel for Respondent lists 22 face- to-face contacts , but the 13 and 19, and thereafter by mail. confusion is caused by King's testimony that Harruff saw Burt and Hill , 10 The election was ordered on January 7, 1972, but the Company appealed which according to Harruff 's credited testimony is not the fact the Direction , and its appeal was denied by the Board on January 26. r 351 U. S 105, 112 11 Sioux City, supra. s Id at 113. i2 351 U.S. at 112, Central Hardware Co v. N L R B, 407 U S 539 (1972) INGRAM BARGE CO. authority, the National Government, that preserves property rights. Accommodation between the two must be obtained with as little destruction of one as is consis- tent with the maintenance of the other. The employer may not affirmatively interfere with organization; the union may not always insist that the employer aid orga- nization. But when the inaccessibility of employees makes ineffective the reasonable attempts by nonem- ployees to communicate with them through the usual channels, the right to exclude from property has been required to yield to the extent needed to permit com- munication of information on the right to organize. In Babcock & Wilcox, the Court found that the employers involved had not violated the Act in denying the unions access to their premises because the employees did not live on the employers' premises but in nearby "small well-settled communities" within "reasonable reach" of the unions and the "usual methods of imparting information are available" as well as "the various instruments of publicity ...." 13 The Court mentioned sending literature to employees though the mails, talking with them on the streets and at their homes and on the telephone as "other available chan- nels of communication." 14 It would seem from the Supreme Court's decision that the overriding consideration in cases of this land is the "availa- bility" of "other . . . channels" for "effective" communica- tion with the employees. If employees live and work in an isolated lumber camp, for example, as they did in N.L.R.B. v. Lake Superior Lumber Corporation, " then obviously, as the Court noted in Babcock & Wilcox, other channels for effective communication would not be available to the union. But because all employees do not spend all their time living and working on a particular employer's premises does not make unnecessary a determination in each case as to whether the total situation brings the case within the Bab- cock & Wilcox rule.16 Applying the principles of that case to the facts in this, I conclude that the Company's employees are virtually denied personal contact with the Union's or- ganizers unless they can come aboard the towboats and talk to them while they are off duty in nonworking areas of the vessels.11 Since the Company's vessels are in continuous operation and employees usually board and leave in midstream at times and locations unknown to the Union, there is, of course, no contention that they could be reached on their way to and from their jobs, as there is when this issue arises in the case of a store or a factory where contact is allegedly impossible for various reasons." For the same reasons and because employees scatter throughout 12 States when their tours of duty end, union meetings of any size are practically 1 3 351 U S at 113-114 14 351 U.S. at 107, In 1, 111, 113. is 167 F.2d 147, 148, 151-152 (C.A. 6, 1948). 16 In S & H Grossinger's Inc., 156 NLRB 233, enfd 372 F 2d 26 (C A. 2, 1967), 60 percent of the employees lived on the premises and left occasionally and for brief periods. 17 Employee staterooms are not in the working area and each vessel has a recreation lounge where employees read and watch television while off watch. 18 Cf. The Falk Corporation, 192 NLRB 716; Dexter Thread Mills, 199 NLRB No. 113 67 impossible, and I do not understand Respondent to contend that the Union should have held them. Mail sent to employ- ees on the boats is unreliable because pickups are missed for a variety of reasons, according to the Company, and here again , although the Union did send literature to employees at their homes during the campaign, it had no way of know- ing whether a particular piece of mail would find the em- ployee at home or not, and an employee may have voted before the campaign literature reached him. Moreover, mail is no effective substitute for face-to-face contact.19 Despite the fact that as a "general rule" employees are on and off the boats for 30 days and even though Respondent, on February 29, supplied the Union with a list of employees, designating them as either "On" or "Off" the boats, and continued to supply information on crew changes during the election period, I find that the employees were beyond the reach of reasonable union efforts to reach them. First of all, I agree with General Counsel's contention that where, as here, the employees spend a substantial amount of time actually living aboard the Company's boats and could be reached aboard the vessels, the fact that they are widely scattered about 12 different States and 62 cities or towns when they are not working would support such a finding. Second, the record shows that employees do not always stay on or remain off the boats for 30 days for a variety of reasons 20 Since the Union could not be sure how long an employee would be in one place, it could not, it seems to me, intelligently, efficiently, and economically plan a drive through 12 States in an attempt to contact the maximum number of eligible voters. In some cases the organizer would have left an area only to discover a day or two later and 1,000 miles away that another employee had theoretically returned to that area.21 Third, the testimony of both union and company witness- es reveals that attempting to contact employees at their homes is not an effective alternative method of communica- tion. As found above, the Union devoted 37 man-days trav- eling throughout the States and communities where the employees live attempting to reach them by telephone and to see them face to face, but only 20 unit employees were actually seen . Company representatives spent the same kind of effort, but they saw only 50 employees out of 88, even though they had telephone numbers from employee files to assist them in contacting employees, and in that sense had somewhat better information than the Union.22 The Company argues that the Union's efforts to reach the employees at their homes were "minimal" and that it does not qualify for the right of access under the cases, but I 19 N L R B v Tamiment, Inc, 451 F 2d 794 (C A 3, 1971) The court so observed in this case, but it held that the union had not made reasonable efforts to communicate with employees through alternative means and ar- rangements See also N L R B v United Aircraft Corp and Whitney Aircraft Div, 324 F.2d 128, 130 (C. A 2, 1963) 20 Resp Exh 3 shows who was on and who was off the boats on February 29 and R 4 through 45 show changes in status As indicated, the lists do not show when the employee first got off or on, and analysis of the exhibits shows that approximately 15 employees did not remain off the boats for 30 days at a time but returned in from 10 to 26 days 21 "Theoretically" because , as seen above from King's testimony, the "Off" employees are just as mobile as the rest of our society 2 It would also be naive not to believe that the fact that the president and vice president of Respondent were making telephone calls to their employees and requesting an audience gave Respondent a bit of an edge 68 DECISIONS OF NATIONAL LABOR RELATIONS BOARD disagree 23 First of all, the Union 's efforts to organize the employees in this case can hardly be described as "mini- mal," for this is the second election the Union has partici- pated in-the first having been set aside-and it had to secure the signatures of 30 percent of employees in the unit before the first election could have been directed . Actually, what Respondent is contending is not that the Union 's orga- nizational efforts were "minimal," as the court of appeals in Kutsher 's Hotel,' thought the union 's were , but that its ef- forts to contact employees during the election period cannot be characterized as "reasonable " under Babcock & Wilcox, for the question is whether the Union made "reasonable attempts" at using means of communication that were "readily available" (351 U.S. at 112), not whether it exhaust- ed every conceivable technique and made every effort with- in the limitation of its manpower and financial resources to reach the employees. Apart from direct access to the employees on board the boats , the only other seemingly effective alternative means of communication available to the Union here were the telephone or home visits . I have described the Union's ef- forts to reach employees on the telephone or at home in some detail , but, as in Sioux City, little was accomplished. In Sioux City, the principal union involved used 10 organiz- ers, but even with the use of more complete information than the Union had in this case , they were only able to contact 35 of 118 unit employees . 25 Aside from the fact that the Union has other business to take care of and other employees to organize , I do not believe that if it had en- larged its staff it would have accomplished significantly more than it did , but in any case , as the Board has said, "The question is, however, not whether the Union could have done more , but whether it reasonably did enough, under all the circumstances of the case ." 26 In my opinion, the Union has met that test. The Company recognizes that the court decisions in this area "require the Board in each case to balance the necessi- ties of the Union for direct access to employees against the employer's right to control over his own property and any detriment which might result from the admission to that property of union organizers ." 27 It contends, however, that the potential disruption of its barge operations by admission of "outsiders to (its) towboats is awesome ." 28 Although the writer's familiarity with seafaring and its dangers is scanty and most indirect , being based on a combination of fact and fancy , it is my judgment that Joseph Conrad , Richard H. Dana , Jack London , John Masefield , Mark Twain, and even Andrew Furuseth would agree with me , especially if 23 In N.L.R.B. v. Kutsher's Hotel and Country Club, Inc, 427 F.2d 200, 201 (C. A. 2, 1970), relied upon by Respondent , the court, in refusing to enforce a Board Order finding that denial of access was a violation of the Act, described the union 's organizational efforts as "minimal " It also appeared, however, that the employees , wearing distinctive uniforms , had to cross a public road going to and from work , thus affording organizers an opportunity to speak with them daily outside the employer 's premises . This is obviously not so in this case 241bid 25 In that case the union was given the dates when the employees would go on and off the boats and the expected crew change points 26 S & H Grossmger's Inc, supra, fn. 16 at 259 27 S & H Grossinger 's Inc, 372 F 2d at 30 28 Respondent 's brief. they could return to watch TV in one of the lounges on the boats, that Respondent's description of the potential haz- ards involved is much overdrawn. John Donnelly, Respondent's president, testified that "no authorized people are allowed to come aboard the boats," but, in addition to officials of the Coast Guard and the Corps of Engineers, Respondent permits "other people who have a business reason to be aboard" to come aboard, ac- cording to Donnelly, and these persons include suppliers, repairmen, and mechanics. I agree with General Counsel's contention that the law recognizes union access as a legiti- mate "business reason," even if Respondent does not. For well over 30 years, the Board, with court approval, has been requiring shipowners to permit union agents to board their vessels under certain circumstances despite con- tentions that their presence would create a hazardous condi- tion on the boats. 9 In Cities Service Oil,30 the court noted that passes had been issued to union representatives in the past without detriment and that the practice was very gener- al. Although the court observed that the employer's objec- tion about risks was not entirely unfounded, it noted that safeguards against interference with operations had been worked out in other cases and it indicated that it felt that they could readily be arranged in the case under consider- ation. As in Cities Service Oil, any difficulties which might arise because of the presence of organizers aboard the Company's vessels can be met by "reasonable regulations" which the Board provides for in its Orders in these cases.3i There may be some inconvenience to the Company, but it is the Board's task to balance any risk or inconvenience against the Union's inability to reach the employees by the use of conventional methods. I do not think, and the record does not show, that Respondent's operations are unique or so different from any other employer in this industry as to require a tipping of the scales in the direction of no access to the Union on that ground alone. I find and conclude that Respondent violated Section 8(a)(I) of the Act by denying reasonable methods of access to its emp3loyees during the election period in Case 15- RC-4683. 2 C. The Representation Case Having found that the Respondent denied nonemployee 29 Seas Shipping Company, 4 NLRB 757, 759; Isthmian Steamship Company, 19 NLRB 16, Cities Service Oil Company, 25 NLRB 36, 44-50, 50-55 enfd 122 F 2d 149 (C A 2, 1941), Richfield Oil Corporation, 143 F.2d 860, 862 (C.A 9, 1944), Mid-America Transportation Company v N L R B, 325 F 2d 87 (C A 7, 1963) 3 Supra, fn. 29 at 150-151. 3i Not only is the practice of permitting union agents on board ship to process grievances where it represents the employees prevalent in the ship- ping industry, but collective-bargaining contracts frequently provide that the union provide insurance to protect the employer against liability for injury to its agents , as the Union offered to do in this case . Moreover, as indicated earlier, not all areas on the towboats are work areas and employees are not always on watch, which would appear to make it relatively easy to agree on a time and place to speak with employees or make literature available to them, if they are so inclined 32 My findings and conclusions with respect to the unfair labor practice Respondent committed are based upon the Company's refusal to permit access upon request during an election period , for, as I read the pleadings and the record , that is all that was before me and litigated in this case INGRAM BARGE CO. organizers of the Union access to its towboats during the election period in violation of the Act, I shall recommend that the Union's objection to the election on that ground be sustained and that the election be set aside 33 The Union also objected to the election on the ground that representatives of the Company visited employee homes and conducted individual interviews with employees during the election period in order to influence the results of the election. Respondent's president, John Donnelly, and Walter Verner, another of Respondent's officials, conced- edly visited the homes of approximately 50 employees dur- ing the election period to discuss the election and to attempt to persuade the employees to vote against the Union, but although certain Board decisions indicate that this has been a valid basis for setting an election aside ,311 find it unneces- sary to reach that issue or to consider the interesting and troublesome arguments made by Respondent in its brief, because I have found that the election should be voided on another ground. 73 The Interlake Steamship Co., a Division of Pickands Mather & Co, 174 NLRB 308, Sioux City and New Orleans Barge Lines, Inc, 193 NLRB 382; Dal-Tex Optical Company, Inc, 137 NLRB 1782, 1786 34 Peoria Plastic Company, 117 NLRB 545, 547, Mrs Baird's Bakeries, Inc, 114 NLRB 444; F N Calderwood, Inc, 124 NLRB 1211; The Hurley Compa- ny, Inc, 130 NLRB 282 THE REMEDY 69 Having found that Respondent has engaged in certain unfair labor practices, I will recommend that it cease and desist therefrom and take certain affirmative action de- signed to effectuate the policies of the Act. 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. Respondent is an employer engaged in commerce within the meaning of the Act. 2. The Union is a labor organization within the meaning of the Act. 3. By denying nonemployee organizers of the Union ac- cess to its towboats for the purpose of soliciting employees on behalf of said Union, and for the purpose of otherwise communicating with said employees concerning organiza- tional matters during an election period, the Respondent has interfered with, restrained, and coerced employees in the exercise of rights guaranteed by Section 7 of the Act, and thereby has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. [Recommended Order omitted from publication.]