Intl' Longshoremen's and Warehousemen's Union

National Labor Relations Board - Board Decisions

Aug 20, 1959

124 N.L.R.B. 626 (N.L.R.B. 1959)

626 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL offer to James Richard (Dick) Boyer immediate and full reinstate-
ment to his former or substantially equivalent position without prejudice to
any seniority or other rights and privileges previously enjoyed, and will make
him whole for any loss of pay he may have suffered as a result of the dis-
crimination against him.
WE WILL NOT in any manner interfere with, restrain, or coerce our employees
in the exercise of their right to self-organization, to form labor organizations,
to join or assist any labor organization, to bargain collectively through repre-
sentatives of their own choosing, and to engage in concerted activities for the
purposes of collective bargaining or other mutual aid or protection, or to
refrain from any or all 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 Act.
WE WILL NOT discriminate in regard to the hire or tenure of employment or
any term or condition of employment of any employee because of membership
in or activities on behalf of any such organization or because he has engaged in
concerted activities for the mutual aid or protection of the employees.
GUERNSEY-MUSKINGUM ELECTRIC
COOPERATIVE, INC.,
Employer.
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.
International Longshoremen 's and Warehousemen 's Union, Local
8; International Longshoremen 's and Warehousemen's Union,
Local 92 ; and International Longshoremen 's and Warehouse-
men's Union and General Ore, Inc. Case No. 36-CD-18.
August 20, 1959
DECISION AND DETERMINATION OF DISPUTE
This proceeding arises under Section 10(k) of the Act, which pro-
vides that "Whenever it is charged that any person has engaged in an
unfair labor practice within the meaning of paragraph (4) (D) of
Section 8 (b), the Board is empowered and directed to hear and deter-
mine the dispute out of which such unfair labor practice shall have
arisen . . . ."
On October 29, 1958, Sam F. Speerstra, as secretary of General Ore,
Inc., filed with the Regional Director for the Nineteenth Region a
charge alleging that International Longshoremen's and Warehouse-
men's Union, Local 8; International Longshoremen's and Warehouse-
men's Union, Local 92; and International Longshoremen's and Ware-
housemen's Union, herein called the Longshoremen, violated Section
8(b) (4) (D) of the Act by inducing and encouraging the employees
of the Company and other employers to engage in concerted refusal
in the course of their employment to use, process, transport, or other-
wise to handle or work on any goods or perform any services with the
object of forcing or requiring the Company to assign the work of
124 NLRB No. 42.
1
INT'L LONGSHOREMEN'S & WAREHOUSEMEN'S UNION 627
handling and unloading ships to members of the Longshoremen's
International and its locals rather than to the Company's employees.'
Thereafter, the Regional Director investigated the charge filed by
the Company and, having found reasonable cause to believe that the
Longshoremen was engaging in unfair labor practices within the
meaning of Section 8(b) (4) (A) and (D), on November 21, 1958, peti-
tioned the United States District Court for the State of Oregon for
an injunction under Section 10(1) of the Act. After various post-
ponements requested by the parties, the hearing on the petition and
the Longshoremen's answer was held on February 14 through March 1;
and on March 17, 1959, the said court issued an order granting a
temporary injunction restraining the Longshoremen and each of them
from picketing at or in the vicinity of the unloading installation of
the Company or engaging in any other form of inducement of em-
ployees to cease handling goods or to perform services, where the ob-
ject thereof is (a) to force or require the Company to join Pacific
Maritime Association or any other employer organization, or (b) to
force or require the Company to assign the work of unloading the
ore-bearing vessels to longshoremen who are members of, or repre-
sented by, the Longshoremen, rather than to the employees of the
Company who are not members of the Longshoremen.
Pursuant to Section 10 (k) of the Act and Sections 102.79 and 102.80
of Board's Rules and Regulations, Series 7, the Regional Director on
February 9, 1959, served upon the parties a notice of hearing to be
held on March 17, which later at the request of the parties was re-
scheduled for March 31, 1959. The hearing was held on that date
before Charles Y. Latimer, hearing officer. All parties appeared at
the hearing and were afforded full opportunity to be heard and, except
as otherwise indicated, to examine and cross-examine witnesses, and to
adduce evidence bearing on the issues.
The hearing officer denied the motion by the Longshoremen to admit
in evidence for the limited purpose of disqualifying the hearing officer
the entire record in the Board proceeding, Case No. 36-CC-59, in.
volving the charge of a violation by the Longshoremen of Section
8(b) (4) (A) of the Act,2 and the entire record in Civil Action for
injunction No. 10086 in the United States District Court for the State
of Oregon. Upon the motion by the Company, the records in the
above proceedings, including the transcripts and the exhibits, were
' General Ore also filed on October 27 , 1958, with the Regional Director for the Nine-
teenth Region a charge alleging that the Longshoremen violated Section 8(b) (4) (A) of
the Act.
2 Case No . 36-CC-59 was heard before Trial Examiner Howard Myers on March 10, 1959.
At that bearing the parties by stipulation agreed to receive in evidence the entire record
in Civil Action No. 10086 in the United States District Court for the State of Oregon.
with full force and effect , as if the witnesses who appeared in that proceeding were all
sworn and testified in this action : and that any party could recall the same witnesses or
'any other witnesses to give testimony for any purpose.
628 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
then, over the objection of the Longshoremen, admitted in evidence
for all purposes.
At the hearing the Longshoremen moved to disqualify the hearing
officer on the ground that he is the same person who was an attorney
for the General Counsel in Case No. 36-CC-59 and one of the attorneys
for the Board in Civil Action No. 10086, both of which proceedings
arose out of the same facts as the instant case, and that the combina-
tion in one person of the prosecuting functions with his functions as
the hearing officer is inconsistent with the requirements of a fair hear-
ing and deprives the Longshoremen of due process of law. The Long-
shoremen contends that because of the hearing officer's participation
in the prior proceedings involving the same parties, he would be un-
able to make an impartial analysis of the issues and the evidence in
this case for the Board, as required by Sections 101.30 of the Board's
Statements of Procedure and 102.66 of the Board's Rules and Regula-
tions, Series 7. This motion was denied by the hearing officer, and
the issue is now before us on the Longshoremen's motion to reopen the
record and to disqualify the hearing officer, and for other relief.'
It is well established that Section 8 of the Administrative Pro-
cedure Act, which provides for the issuance of the initial decision by
the hearing officer, does not apply to a proceeding under Section
10(k). Under Section 101.30 of the Statements of Procedure and
Section 102.80 of the Board's Rules and Regulations, Series 7, the
hearing under Section 10(k) is nonadversary in character and, ac-
cording to the procedure adopted therefor, conducted in the same way
as a hearing in a representation proceeding. The Board adopted such
procedure because the decision under Section 10(k) is a preliminary
administrative determination made for the purpose of attempting to
resolve a dispute within the meaning of that section. The unfair
labor practice itself is litigated at a subsequent hearing before a Trial
Examiner if the the dispute remains unresolved. It is to the sub-
sequent adversary proceeding, which leads to a final Board determina-
tion, that Section 8 of the Administrative Procedure Act applies 4
8 At the hearing, the Longshoremen also moved that the hearing officer make himself
available as a witness in support of their motion to disqualify the hearing officer. This
motion was denied by the hearing officer on the ground that , under Section 102.95 of
Board ' s Rules and Regulations , he is precluded from appearing as a witness in this pro-
ceeding without permission of the Board . The Longshoremen then made an offer of proof
that , if the hearing officer were called as a witness to testify , he would testify that he
was the attorney for the Petitioner in Civil Action No. 10086, and that he prosecuted that
action on behalf of the Petitioner therein and against the Longshoremen ; and that he
would further testify that he was the attorney for the General Counsel in Case No.
36-CC-59 and that he prosecuted that action on behalf of the General Counsel, which
proceedings arose out of the same facts and transactions as are involved in the instant
Proceeding . This offer of proof was likewise denied by the hearing officer on the ground
that the Board would take judicial notice that he has participated in those proceedings.
The hearing officer's rulings on the above motions are hereby affirmed.
4 National Union of Marine Cooks, et at. (Irwin -Lyons Lumber Company), 83 NLRB
341 ; Local No. 27, International Typographical Union ( Heiter-Starke Printing Co., Inc.),
121 NLRB 1013.
INT'L LONGSHOREMEN'S & WAREHOUSEMEN'S UNION 629
The primary function of the hearing officer, who is acting under the
delegation of authority from the Board, in a nonadversary proceed-
ing is to insure that the record contains a full statement of pertinent
facts as may be necessary for the determination of the dispute by the
Board. The hearing officer makes no recommendations in regard to
the resolution of the dispute. While we think it better practice not
to assign a Board agent who has previously engaged in the perform-
ance of investigative and prosecuting functions for the Agency to act
as a hearing officer in the same or in a related case, we find that the
Longshoremen in the instant case was not prejudiced by such assign-
ment. The Longshoremen does not allege that it was denied the op-
portunity to present evidence in support of its contentions, or that it
was prejudiced in any other manner by the conduct of the hearing
officer .5
The Longshoremen, however, argues that because of his participa-
tion in previous adversary proceedings in related cases, the hearing
officer would not be able to make an impartial analysis of the issues
and the evidence in this case. However, a hearing officer's report in
a 10(k) proceeding, as in all representation cases, is in the nature of
an interoffice memo and is part of the Board's confidential files. As
mentioned before, a hearing officer's report contains no recommenda-
tions as to the disposition of the issues, nor is it intended to dispense
with the independent review by the Board of all the evidence admitted
at the hearing, or with the determination by the Board of all the
issues raised by the parties at the hearing and in their briefs to the
Board. Under Sections 9 (c) and 10 (k) of the Act, no such respon-
sibility is imposed upon the hearing officer, but it is laid upon the
Board. Accordingly, we find no merit in the Longshoremen's conten-
tion that the hearing officer's report could prejudice its case. For the
above reasons, we also affirm the hearing officer's refusal to make avail-
able to the parties his analysis of the record.'
The Longshoremen further contends that the Board's agents vio-
lated the Board's own Rules and Regulations providing for priority
in the processing of this case, and that the delay caused thereby was
prejudicial to the Longshoremen. We find no merit in this con-
tention. The charge in this case, alleging violations of Section
8(b) (4) (A) and (D), was filed on October 29, 1958. Following an
5Local No. 27, International Typographical Union (Reiter-Starke Printing Co., Inc.),
supra ; where the charged parties sought to disqualify the hearing officer on the ground
that he as an agent of the General Counsel had passed upon and authorized the petition
for injunction in a civil action, in which he alleged that the charge was true. Of. Radio
and Televisions Broadcast Engineers Union, etc. (Columbia Broadcasting System, Inc.),
103 NLRB 1256; Local Union No. 48, Sheet Metal Workers etc. (Acousti Engineering of
Alabama, Inc.), 119 NLRB 157; Local 450, International Union of Operating Engineers
( Sline Industrial Painters), 119 NLRB 1725.
e J. I. Case Company, 80 NLRB 217; P. R. Mallory & Co., Inc., 89 NLRB 962; Kearney
& Trecker Corporation, 101 NLRB 1577, 159'4, enforcement denied on other grounds
210 F. 2d 852 (C.A. 7).
630 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
investigation of the charge, the Regional Director, on November 21,
1958, applied to the district court for an injunction and obtained an
order to show cause returnable a few days later. Thereafter, at the
request of the parties, the trial of the injunction proceeding was from
time to time continued until February 24, 1959, thus giving the parties
an opportunity to settle out of court the numerous actions, cross-
actions, suits, and proceedings which arose out of the.same dispute.
For the same reason, the Board's agents, aware of the parties' ef-
forts to settle their dispute by a voluntary agreement, did not issue
the notice of hearing in the instant case until February 9, 1959, which
hearing was then at the request- of the Company rescheduled for
March 31, 1959. In these circumstances and inasmuch as it is im-
plicit in a proceeding under Section 10(k) that the Board shall en-
courage a voluntary settlement of jurisdictional disputes, we find that
the Longshoremen's contention that the Board was dilatory in process-
ing this case is without merit.
The rulings of the hearing officer made at the hearing are free from
prejudicial error and are hereby affirmed. The Longshoremen's mo-
t-on to reopen the record and for the permission for the Board agent
to testify and produce evidence, and to disqualify the hearing officer,
and for other relief, is hereby denied.
The Company and the Longshoremen filed briefs with the Board.
Upon the entire record in the case, the Board' makes the following:
FINDINGS OF FACT
. I. THE BUSINESS OF THE EMPLOYER
General Ore, Inc., is an Oregon corporation engaged at the Port of
Portland in the operation of a bulk unloading facility. It is an
affiliate of Harvey Aluminum, Incorporated, a California corpora-
tion engaged in the business of manufacturing aluminum and alumi-
num products. The two companies are commonly owned, controlled,
and supervised, and are parts of the same integrated enterprise.
General Ore 8 was created for the purpose of servicing the operations
of Harvey Alumiuunl by unloading vessels carrying alumina. ore
from Japan and loading the same upon railroad freight cars for trans-
shipment to the Harvey Aluminum plant at The Dalles, Oregon.
During the past year the materials shipped by Harvey Aluminum
outside the State of Oregon were valued at in excess of $1,000,000.
Since May 1, 1958, Harvey Aluminum purchased from outside the
United States alumina ore valued at in. excess of $1,000,000. Since
. 7 Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the
Board has delegated its powers in connection with this case to a three-member panel
[Members Rodgers; Bean, and Fanning].
. 8 Prior -to the -formation on or about July 30,- 1958, of General Ore, Inc.; the unloading
facility was in charge of its predecessor, General Ore & Chemical Corporation, also an
affiliate of Harvey Aluminum.
INT'L LONGSHOREMEN'S & WAREHOUSEMEN'S UNION 631
August 1, 1958, Harvey Aluminum paid to General Ore $52,000 for
services and over $100,000 for ocean freight. In view of the fore-
going facts we find that General Ore is engaged in commerce within
the meaning of the Act and that it will effectuate the policies of the
Act to assert jurisdiction.
H. THE LABOR ORGANIZATIONS INVOLVED
Local 8, International Longshoremen's and Warehousemen's Union;
Local 92; International Longshoremen's and Warehousemen's Union;
and International Longshoremen's and Warehousemen's Union are
labor organizations within the meaning of the Act.
III. THE DISPUTE
In April 1958, Harvey Aluminum, Inc., retained The Willamette
Tug and Barge Company, herein called Willamette, to conduct so-
called test runs for the purpose of determining the adequacy of the
unloading installation then being constructed by Willamette for
Harvey Aluminum and General Ore & Chemical Corporation. On
May 1 Willamette arranged a meeting with the representatives of the
Longshoremen. Among those present at this meeting were : Inter-
national representative, ILWTJ, James Fantz; secretary-treasurer of
Local 8, Anderson; chairman of industrial labor relations committee
of Local 8, Gordon Mays; representative of Willamette, Rossiter;
representatives of General Ore & Chemical Corporation, Glenn and
Linton, and others.' Rossiter informed those present that Willamette
had been retained by Harvey Aluminum to operate the unloading
facility for two or three test shipments of ore, that longshoremen
would be asked to do the unloading, and that Willamette wished to
be certain that no jurisdictional problems would arise. Fantz and
Anderson agreed to cooperate, but pointed out that the employment
of longshoremen required membership in Pacific Maritime Associa-
tion and that Willamette was not a member of that organization. It
was Fantz who then stated that Willamette should work with a steve-
doring company which, as a member of Pacific Maritime Association,
could hire longshoremen for the job. At this time Rossiter also told
those present that Willamette was in no position to make any com-
mitments with respect to the use of longshoremen after the completion
of the test runs. Fantz in turn stated that after the test runs were
over, the Longshoremen would claim complete jurisdiction over all
of the work of unloading, including the shipboard work, the barge
operation, the railcar loading operation, etc.
The parties. met next on May 2. In addition to those present at
the meeting the day before, there were also present the representa-
9Albert Hinz , director of industrial relations for Harvey Aluminum , who was to be
present at the meeting as an observer for the company , did not arrive until after the
official meeting was over, but in time to be introduced by Rossiter to Fantz and Anderson.
632 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tives of Portland Stevedoring Company, secretary of Pacific Mari-
time Association, R. 0. Hoge, and an observer for Harvey Aluminum,
Hinz. Rossiter stated that in accordance with 'Fantz' suggestion,
Willamette had retained the services of the Portland Stevedoring
Company, a member of Pacific Maritime Association, to handle the
unloading of the first test ship due to arrive soon, and that the steve-
doring company had worked out a manning scale for the first opera-
tion. After some discussion, the parties agreed to accept this man-
ning scale. Rossiter again stated that they would have to work on a
ship-to-ship basis and that Willamette could not make any commit-
ments which would bind Harvey Aluminum after the completion of
the test runs.
The first test ship SS Burnaby arrived at Portland on May 3 and
was unloaded in accordance with the arrangement reached the day
before. As the second test ship was due within a few days, another
meeting was held on May 16 to work out the manning 'scale for the
unloading of that ship. All those present at the May 2 meeting were
there. After some discussion the parties agreed'to continue the former
arrangement with respect to the unloading of the second test ship,
SS Lake Atlin. Rossiter's request that the same arrangement apply
to the unloading of the third ship was refused by the Longshoremen.
Speaking for them, Gordon Mays, chairman of the industrial labor
relations committee of Local 8, stated that, as the third ship would
bring a full load, the Longshoremen would insist on a meeting to
work out an arrangement well in advance of the arrival of the third
ship, and also that the Longshoremen would insist on jurisdiction over
all the jobs in connection with the unloading. Representative of
Local 8, Smith, added, in the presence of Fantz and Anderson, that
unless they had complete jurisdiction, the third ship would not be
unloaded. At the conclusion of the meeting it was agreed that another
meeting would be held in advance of the arrival of the third ship to
set up a permanent manning scale for future operations.
Upon the completion of the unloading of each of the two test ships,
Portland Stevedoring Company billed Willamette for its services,
and Willamette in turn billed Harvey Aluminum for money Willa-
mette paid to Portland for longshore labor. As a member of Pacific
Maritime Association, Portland Stevedoring Company was bound to
hire longshoremen only through the hiring hall maintained jointly by
the Association and Local 8, and to pay wages to the Longshoremen
so hired through the consolidated pay system; under which all steve-
doring companies, members of the Association, sent their payrolls,
with checks to cover, to the Association.10 The Association consoli-
10 There are only 10 stevedoring companies , members of Pacific Maritime Association,
who can employ longshoremen through such hiring hall and pay for longshore labor through
the consolidated pay service . Other members of the Association must avail themselves
of the services of one of these stevedoring companies whenever they need longshore labor
to be done.
INT'L LONGSHOREMEN'S & WAREHOUSEMEN'S UNION 633
dates all these payrolls each week and then issues to each individual
longshoreman one paycheck to cover his work during the week for all
employers. The moneys paid to the Association cover wages due
as well as fringe benefits such as vacations, welfare insurance, old
age benefits, etc., which are credited to individual accounts of
longshoremen."
The third ship with alumina ore was expected to arrive early in
August. With this in mind, secretary of Local 8, Anderson, wrote to
secretary of Pacific Maritime Association, Hoge, suggesting a meet-
ing of all parties concerned to reach an agreement with respect to the
unloading of that ship. Informed of this request, Lawrence Harvey
of Harvey Aluminum wrote to Hoge that, as the two test runs were
not sufficient to ascertain the adequacy of the unloading installation,
they would have to have three or four more experimental runs. A
meeting with respect to the unloading of the third ship was held on
July 25. The Longshoremen was represented at this meeting by
Fantz, Anderson, and others. Harvey Aluminum was represented by
Hinz. Also present was secretary of the Association, Hoge. Hinz
said that he was present as an observer to report back to his prin-
cipals. Fantz said that the next ship would not be unloaded unless
there was a contract with the Longshoremen covering every opera-
tion. After Hinz replied that he would report back to his principals,
Anderson suggested that another meeting be arranged with the in-
dustrial labor relations committee of Local 8 immediately, as without
a contract there would be no unloading at the docks at Portland.
Hinz inquired if his company could hire longshoremen directly.
Fantz replied "No," that it would have either to join Pacific Maritime
Association, or to hire longshoremen through a stevedoring company
that was a member of that Association. The parties then agreed that
they would meet again on July 30 together with the committee of
Local 8 to discuss a possible contract.
On July 30 representatives of Harvey Aluminum, Hinz and Elliott,
met with the committee of Local 8. Mays, chairman of the committee,
opened the discussion stating that Local 8 did not as yet have a con-
tract for unloading the third ship, and that the ship could not be
unloaded unless there was such a contract. Hinz observed that the
Steelworkers union had a better claim on the ship as the only alumina
unloading in North America was being done by that union. Mays
replied that Local 8 would not allow the Steelworkers or any other
union on the docks in Portland, that all work on the docks belonged
to the Longshoremen. Hinz also said that it would be difficult for
his company to enter into a contract with the Longshoremen as the
n Nonmember employers of Pacific Maritime Association may also use the services of
Pacific Maritime Association , provided they have contracts with the Longshoremen , deposit
such contracts with the Association , and agree to use the consolidated pay system.
Nonmembers pay certain fees for the use of the services of the Association.
634 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Longshoremen did not represent any of the company's employees-
Anderson, who at this point joined the meeting, told Hinz that they
must definitely get together to discuss the contract and that other-
wise the third ship would not be unloaded. Hinz promised to report
back to his principals.
On August 4, International Representative Fantz called Hinz at
The Dalles to inquire if he had anything new to report. Hinz re-
plied in the negative, whereupon Fantz observed that the third ship
was coming the next day, and that he ought to realize that without
using longshoremen the ship could not be unloaded. Fantz concluded
this conversation by stating that if Hinz learned anything new he
should communicate with Gordon Mays at the Longshoremen's office.
On July 31, General Ore, which was organized a few days before,
took over the unloading installation from General Ore & Chemical
Corporation, and immediately notified Willamette that it no longer
required its services for unloading the ships to arrive with aluminum
ore. On August 1, General Ore also appointed its engineer, Caldwell,
to be in charge of its unloading operations and instructed him to hire
the personnel that would be required for unloading of the third ship.
By August 5, when the third ship, SS Lake Pennast, had arrived,.
General Ore had in its employ some 35 employees available for un-
loading operations.
SS Lake Pennast arrived on August 5. The unloading of the ship
with General Ore's own employees was immediately begun and com-
pleted on August 14. On August 12, while the ship was being un-
loaded, shoreside and shipside picketing of the unloading installa-
tion began with the picket signs reading as follows: "General Ore
Unfair to ILWU Local 8" and "General Ore Unfair to ILWU
Local 92." The next ship, SS Darby, arrived on September 20 and
was likewise unloaded by General Ore's employees. Before the dis-
trict court had issued its injunction in March 1959, five more ships
with the alumina ore arrived at Portland, all of which were un-
loaded by General Ore's employees. At all times during this period,
General Ore employed not less than 12 employees on a permanent
basis. With the arrival of each new ship the number of employees
would be increased by additional hirings to about 40. All of these
men were paid by General Ore's payroll checks.
It has been stipulated by the parties that the shore picketing of the
General Ore's installation by Local 8 began in the early part of August
and continued without interruption up to the issuance of injunction
on March 17, 1959, except for 2 days, September 21 and 22, when such
picketing was conducted by Local 92. Shipside picketing of the same
installation continued until November 26, 1958, when the parties
agreed to discontinue this type of picketing pending the suit for in-
junction in Civil Action No. 10086. In the course of the picketing,
INT'L LONGSHOREMEN'S & WAREHOUSEMEN'S UNION 635
the pickets distributed circulars stating that "Harvey Aluminum and
General Ore are on the UNFAIR LIST of the AFL-CIO Building
Trades" and that "In violation of the contract, Harvey now replaced
regular local longshoremen with OUTSIDE Non-Union persons."
As a consequence of the picketing, employees of Columbia River
Paving Co., California Bag and Metal Co., J. E. Hazeltine & Co.,
Shave Transportation Co., Inland Navigation Co., Nisshum Steam-
ship Co., and Air Reduction Corporation, have refused to cross the
picket lines or perform services at or near the picketed dock, and have
refused to berth the ore-hearing vessels on arrival.
It has been testified that International Representative Fantz was
seen on several occasions near the picket line at the entrance to the
dock area, and that Gordon Mays of Local 8 was likewise seen at
various times near the picket line.
Contentions of the Parties
General Ore contends that the record establishes that the Long-
shoremen violated Section 8(b) (4) (D) of the Act.
The Longshoremen contends that the record does not show that it
has made a demand for work assignments, and that the only finding
which the record will support is that it has been seeking to compel
General Ore, as it had agreed to do, to meet and negotiate with the
Longshoremen concerning a manning scale and a wage scale to be
paid to employees who perform longshore labor on the Portland
waterfront; and that it was the rejection of this demand by General
Ore and Harvey Aluminum which caused the Longshoremen to estab-
lish and maintain the picket line until it was enjoined from so doing
by order of the district court. In support of its contention it cites
Hull v. Wire Weavers Association, 159 F. Supp. 425, holding that the
economic interest of a union in preserving wage rates and working
standards justified the picketing for recognition so that it might bar-
gain concerning these matters; and Drivers, Chauffeurs and Helpers
Local Union No. 639 etc. v. N.L.R.B. (Curtis Bros. Inc.), Novem-
ber 26, 1958, 43 LRRM 2156 (C.A., D.C.), holding that peaceful
picketing for recognition by a minority union is not prohibited by
Section 8(b) (1) (A) of the Act.
The Longshoremen's International further argues that the record
failed to establish the liability of the International for the unfair
labor practices alleged. It contends that its local unions are autono-
mous bodies and that the International may not be held liable for the
conduct of the locals merely because of the locals' affiliation with the
International ; and, in the absence of proof that Fantz has induced
and encouraged employees to engage in picketing for a prohibited
objective, and that such conduct has been authorized or ratified by
the International, it may not be imputed to the International.
636 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Applicability of the Statute
In a proceeding under Section 10 (k) of the Act, the Board is merely
required to find that there is reasonable cause to believe that Section
8(b) (4) (D ) has been violated before proceeding with the determina-
tion of the dispute out of which the alleged unfair labor practices
have arisen . For Section 10(k) to be applicable in this case, two
propositions must be established : ( 1) the responsibility of one or
more of the unions for the picketing , and (2 ) the existence of the
proscribed object behind such picketing.
1. Responsibility of the Longshoremen's International
The record clearly establishes , and no question has been raised, as
to the responsibility of Local 8 and Local 92 for the picketing.
As indicated above, however, the International contends that it is
in no way responsible for the alleged unfair labor practices of Locals
8 and 92, as well as for the activities of James A. Fantz. However,
Fantz testified without contradiction that at the times material herein
lie was employed on a full-time basis by the International as inter-
national representative in the States of Oregon and Washington. He
further testified that: It is part of his job as international representa-
tive to lend support and assistance in collective -bargaining negotia-
tions to affiliated locals; as an observer , he attends meetings of such
locals with employers held for the purpose of interpretation of their
contracts and adjustment of grievances and gives his advice under
such contracts ; in 1958 he attended the Longshoremen's negotiations
with Pacific Maritime Association for a new agreement and in con-
nection therewith made a report to the president of the International;
he discussed with the representatives of Pacific Maritime Association
various matters in controversy and grievances arising under the
International's contract with that Association; and he is in charge
of organizational activities of the International in the area and re-
ports on such activities to its first vice president . It is in his capacity
as international representative that Fantz attended various meetings
with General Ore and Harvey Aluminum representatives at which
the arrangements for the unloading of the first two test ships were
discussed and warned them that, unless there was a contract, there
would be no unloading of the third ship. At no time did he qualify
his representative status at such meetings by a statement that he was
acting merely in the capacity of an observer for the International or
at his own initiative rather than the representative of the Inter-
national . Indeed, Fantz was introduced and was described in the
minutes of the meetings held on May 2 and May 16 as international
representative of ILWTT, and although in the possession of such
minutes he made no attempt to correct this designation.
INT'L LONGSHOREMEN'S & WAREHOUSEMEN'S UNION 637
In view of the foregoing evidence, and upon the entire record, we
are satisfied that there is reasonable cause to believe that International
Representative Fant.z was a duly appointed agent of the International,
that he has engaged in the activities described herein in his representa-
tive capacity and within the scope of such authority, and that his
conduct therefore can be properly imputed to the International. We
are further satisfied that by Fantz' conduct described herein, particu-
larly his participation in the meetings with General Ore and Harvey
Aluminum representatives, his insistence upon the immediate execu-
tion of a contract as a condition for unloading of the third and sub-
sequent ships, and his failure to disavow the picketing of General
Ore's installation for a proscribed objective, the International placed
itself in the position of a cosponsor of the picketing herein. Such
cosponsorship carries with it the responsibility of a joint participant
in a common enterprise for the acts performed in furtherance of the
enterprise by the other participant of the enterprise. Therefore,
although the evidence does not show that the International directly
participated in forming and maintaining the picket line, we find that
because of its participation in a common enterprise with Locals 8 and
92, the International became responsible for the picketing by Locals 8
and 92.12
2. The proscribed object
Thus, the only issue remaining is whether the picketing established
and maintained by the Longshoremen was for the prohibited objective
of forcing or requiring General Ore to assign the work of unloading to
longshoremen, members of or represented by the Longshoremen, rather
than to its own employees. The Longshoremen takes the position
that the most the Board can find on this record is that the Long-
shoremen sought to compel General Ore to meet and negotiate with
it concerning the manning scale and wage scale to be applied to the
unloading of ships consigned to the Company ; and that it was the
rejection of this demand by General Ore which caused the Long-
shoremen to establish and maintain the picket line. The Longshore-
men's contention, however, is not borne out by the record. The record
shows that during the negotiations for the unloading of the test ships,,
the Longshoremen made it clear that the work of unloading the test
ships as well as the ships that would arrive afer the completion of the
test runs was within the jurisdiction of the Longshoremen, and that,,
unless an agreement was reached, there would be no unloading of such
ships in Portland. The Longshoremen took a similar position in their
negotiations after the completion of the test runs. At the July 25
12 Alexander-Stafford Corporation , 118 NLRB 79 ; United Brotherhood of Carpenters 6
Joiners Local Union No . 978 (Markwell & Hartz Contractors), 120 NLRB 610; Local 562,
United Association of Jonrneyunen and Apprentices of the Plumbing and Pipe Fitting
Industry etc. (Northwest Heating Company ), 107 NLRB 542.
638 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
conference relating to the unloading of the third ship scheduled to
arrive within a few days, International Representative Fantz stated
to Hinz that the third ship would not be unloaded unless there was
a contract with the Longshoremen covering every phase of unloading.
As Hinz was present at the meeting as an observer for the Company
and could not enter into any binding agreement, secretary of Local 8,
Anderson, urged him to obtain the necessary authority from his prin-
cipals, reiterating the demand for a contract as a condition of un-
loading. Without a contract, Anderson stated, there would be no
unloading at the docks of Portland.
A similar warning was also given at the conference held on July 30,
at which chairman of the industrial and labor relations committee
of Local 8, Gordon Mays, told the employer representative, Hinz, that
the Longshoremen would not permit the Steelworkers or any other
union to work at the docks of Portland, that all work on the docks
of Portland belonged to the Longshoremen, and that, unless there
was a contract, the third ship would not be unloaded. As Hinz again
stated that he was present at the meeting only as an observer to report
back to his principal, secretary of Local 8, Anderson, suggested an-
other meeting to be held soon; otherwise, the third ship would not be
unloaded. On August 4, the eve of the arrival of the third ship,
Fantz telephoned Hinz to inquire if he had anything new to report,
and upon his answer in the negative, observed that Hinz ought to
realize that without using the Longshoremen, the third ship would
not be unloaded. General Ore began unloading the third ship on
August 5 with its own employees. On August 12, and before General
Ore had completed the unloading of the third ship, the Longshoremen
began the picketing of the Company's installation. The picketing
continued until March 17, 1959, when the Longshoremen was re-
strained from further picketing by an order of the United States
District Court. In the light of these events, it is clear that the picket-
ing, which was commenced by the Longshoremen a few days after
General Ore began to unload the ship with its own employees, who
were non-members of the Longshoremen, was precipitated by General
Ore's refusal to enter into a contractual arrangement whereby the un-
loading of the third ship would be assigned to employees who are
members of, or represented by, the Longshoremen. While the Long-
shoremen's representatives did not reveal at the conferences with
General Ore the precise nature of the contract that they were demand-
ing, it would be, in the light of the previous dealings, only reasonable
to infer that the Longshoremen was seeking the same contractual
arrangement as that under which the two test ships had been unloaded,
namely, that the unloading be done through a stevedoring company
.which was a member of Pacific Maritime Association. By virtue of
such arrangement, General Ore would be obligated to hire longshore-
INT'L LONGSHOREMEN'S & WAREHOUSEMEN'S UNION 639
men through the hiring hall maintained jointly by the Longshoremen
and the Association. On the other hand, if the Longshoremen, as an
alternative arrangement, sought to compel General Ore either to enter
into a direct agreement with the Longshoremen for the use of the
longshore labor hired through the said hiring hall, or to join Pacific
Maritime Association and thereby assume an obligation to use only
longshoremen who were hired through the hiring hall, the ultimate
result would be the same. Under either contractual arrangement,
the work of unloading the third and other nontest ships would be
assigned to longshoremen who were hired through the hiring hall
and who were either members of, or represented by, the Longshoremen.
The Longshoremen contends that at no time had it asked General
Ore for the assignment of the unloading work to members of its union
or, for that matter, for any assignment of that work to anyone. It says
that it merely sought to compel General Ore to meet and negotiate
with them concerning the manning and wage scale for longshore labor
to be used in unloading the ship, and that the dispute, therefore, does
not fall within the proscription of Section 8(b) (4) (D) of the Act.
We find no merit in this contention. Where, as in the instant case,
the underlying basic dispute between the parties is over the assign-
ment of work to employees in a particular labor organization or in
a particular trade , craft, or class rather than to the employer's own
employees, the fact that the demand for the assignment of such work
is made under the guise of a contractual demand confers no immunity
for a violation of Section 8(b) (4) (D).13 To hold otherwise would
permit a labor organization to subvert the clear intent of the statute
proscribing jurisdictional strikes and picketing by the simple ex-
pedient of recasting a demand for assignment of work into a demand
for a contract or contractual provision conferring jurisdiction over
such work upon the union.
In these circumstances, and upon the entire record, we find that the
dispute in question is properly before us for determination under
Section 10(k) of the Act.14
The Merits of the Dispute
It is clear from the record that neither the Longshoremen nor any
of its constituent locals had any rights in any outstanding Board
v Local Union No. 3, Wood, Wire & Metal Lathers International Union, AFL ( Anning-
Johnson Company ), 113 NLRB 1237 ; 117 NLRB 352 ; International Union o f Operating
Engineers , Local 825 (Building Contractors Association, of New Jersey ), 118 NLRB 978;
Local 27, International Typographical Union ( Reiter-Starke Printing Co.), 121 NLRT; 1013.
14 As we have found that the object of the picketing was to force General Ore to enter
in a contractual arrangement with the Longshoremen whereby the work would be assigned
to longshoremen who are members of, or represented by, the Longshoremen , conduct ex-
pressly proscribed by Section 8(b) (4) (D) of the Act, we do not reach the other contention
of the Longshoremen that because they were allegedly engaged in peaceful picketing for
recognition , the conduct was privileged.
640 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
certification or order affecting the disputed work. These facts, includ-
ing the fact that at the time of the picketing the disputed work had
been assigned to and was being performed by General Ore's own em-
ployees, are determinative of the present dispute.15 The Board has
specifically held that Sections 8(b) (4) (D) and 10(k) do not deprive
an employer of the right to assign work to his own employees; nor
were these sections intended to interfere with an employer's freedom
to hire, subject only to the requirement against discrimination as con-
tained in Section 8(a) (3). Moreover, contrary to the Longshoremen's
contention, we find that the evidence relating to General Ore's failure
to meet and negotiate with them concerning a manning scale and wage
scale for the unloading of the third ship is immaterial, where, as here,
the Longshoremen has no bargaining or representative status.16
Accordingly, we find that Local 8 and Local 92 and the Interna-
tional Longshoremen's and Warehousemen's Union are not lawfully
entitled to force or require the Company to enter into a contract for
unloading, or otherwise to force or require the Company to assign the
work in dispute to longshoremen who are members of or represented
by those organizations, or by any one of them, or to employees in a
particular trade, craft, or class rather than to General. Ore's own
employees.
DETERMINATION OF DISPUTE
Upon the basis of the foregoing findings, and the entire record in
this case, the Board makes the following determination of dispute
pursuant to Section 10(k) of the Act:
1. International Longshoremen's and Warehousemen's Union, Local
8; International Longshoremen's and Warehousemen's Union, Local
.92; and International Longshoremen's and Warehousemen's Union,
and their agents, are not and have not been lawfully entitled to force
or to require General Ore, Inc., or any employer in the Portland area,
to enter into a contract for the assignment of the work in dispute, or
otherwise to force or require General Ore, Inc., or any other employer
in the Portland area to assign the work in dispute to longshoremen
who are members of, or represented by, the above-mentioned labor
organizations, or to employees in a particular trade, craft, or class
rather than to its own employees.
2. Within 10 days from the date of this Decision and Determination
of Dispute said Local Unions 8 and 92 and International Longshore-
men's and Warehousemen's Union shall notify the Regional Director
15 United Brotherhood of Carpenters and Joiners of America (Stroh Brewery Company),
88 NLRB 844 ; International Longshoremen's and Warehousemen's Union, Local No. 16
(Juneau Spruce Corporation), 82 NLRB 650, 660.
18 Local Union No . 9, Wood, Wire & Metal Lathers International Union, AFL (Anning-
Johnson Company ), 113 NLRB 1237; Local 16 , International Longshoremen's and Ware-
housemen's Union (Denali-McCray Construction Company ), 118 NLRB 109.
ADHESIVE PRODUCTS CORPORATION 641
for the Nineteenth Region in writing whether or not they accept the
Board's determination of this dispute and whether or not they will
refrain from forcing or requiring General Ore, Inc., by means pro-
scribed by Section 8(b) (4) (D) of the Act, to assign the work in dis-
pute to longshoremen who are members of, or represented by, the
above mentioned labor organizations, or either of them, rather than
to employees of General Ore, Inc.
Adhesive Products Corporation and District 65, Retail , Whole-
sale & Department Store Union, AFL-CIO' and Adco Em-
ployees Association 2 and Steel , Metals, Alloys and Hardware,
Fabricators and Warehousemen , Local 810, International
Brotherhood of Teamsters , Chauffeurs , Warehousemen &
Helpers of America,' Parties to the Contract. Case No. 2-CA-
4188. August 20, 1959
SUPPLEMENTAL DECISION AND ORDER
On February 4, 1957, the Board issued its Decision and Order in
this case,4 finding that the Respondent had violated Section 8(a) (5)
and (1) of the National Labor Relations Act by refusing to bargain
with District 65; had violated Section 8(a) (1) and (2) by interfer-
ing with the formation of Adco and contributing financial and other
support to it; had violated Sections 8(a) (1), (2), and (3) by its con-
duct toward Teamsters Local 810; and had violated Section 8(a) (1)
by stating, in the presence of its employees, that it would not bargain
with District 65, their majority representative, and by promising its
employees benefits if they would bargain through Adco. The Board
accordingly ordered the Respondent to cease and desist from the un-
fair labor practices found, and to take certain affirmative action, in-
cluding the refunding of dues checked off for Adco and Teamsters
Local 810.
On July 3,1958, the United States Court of Appeals for the Second
Circuit entered its decision 5 denying the Board's petition for enforce-
ment pending further consideration of the case by the Board, as
directed.
In its opinion, the court held that there was "substantial evidence
on the record considered as a whole' to support the charges and the
Herein referred to as District 65.
a Herein referred to as Adco.
a Herein referred to as Teamsters Local 810. The Board having been notified by AFL-
CIO that it deems the Teamsters ' certificate of affiliation revoked by convention action,
the identification of this Union is hereby amended.
d 117 NLRB 265.
5 258 F. 2d 403.
124 NLRB No. 81.
52554&-60-vol. 124---42