Intl. Longshoremen's Assn., AFL-CIO

National Labor Relations Board - Board Decisions

Aug 31, 1976

225 N.L.R.B. 1066 (N.L.R.B. 1976)

1066 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
International Longshoremen 's Association, AFL-CIO,
Hampton Roads District Council and The Chesa-
peake and Ohio Railway Company
International Longshoremen 's Association , AFL-CIO
and The Chesapeake and Ohio Railway Company
International Longshoremen 's Association, AFL-CIO,
Local 846 and The Chesapeake and Ohio Railway
Company
International Longshoremen 's Association , AFL-CIO,
Local 862 and The Chesapeake and Ohio Railway
Company. Cases 5-CC-800, 5-CC-801, 5-CC-802,
and 5-CC-803
August 31, 1976
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS FANNING
AND JENKINS
conclusions of the Administrative Law Judge and to
adopt his recommended Order.2
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the Respondents , International Long-
shoremen ' s Association , AFL-CIO; Hampton Roads
District Council ; International Longshoremen's As-
sociation , AFL-CIO, International Longshoremen's
Association , AFL-CIO, Local 846 ; and Internation-
al Longshoremen ' s Association , AFL-CIO, Local
862, Hampton Roads, Virginia , their officers , agents,
and representatives , shall take the action set forth in
the said recommended Order.
DECISION
On April 1, 1976, Administrative Law Judge Jo-
seph I. Nachman issued the attached Decision in this
proceeding. Thereafter, the Respondents filed excep-
tions and a supporting brief, to which the General
Counsel filed a reply brief, and the Brotherhood of
Railway, Airline and Steamship Clerks, AFL-CIO, a
party to the contract, filed 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 rulings, findings, and
1 In a motion filed with the Board on May 26, 1976, the Respondents
request that certain portions of briefs filed by the General Counsel and the
Party to the Contract be stricken or otherwise not considered by the Board
The motion is lacking in merit and it is hereby denied
2
We agree that the International Longshoremen's Association violated
Sec 8(b)(4)(B), but, unlike the Administrative Law Judge, find it unneces-
sary to determine the extent to which the longshoremen's employers con-
trolled the work sought for them by the ILA The issue is whether the ILA's
objective was primary, to preserve work traditionally performed by employ-
ees in the unit it represents, or secondary, to obtain work previously per-
formed outside the unit by employees of other employers The work-load-
ing containers on wheels in Chesapeake and Ohio's marshalling yard-has
always been performed exclusively by Chesapeake and Ohio's own employ-
ees represented by the Railway and Steamship Clerks The ILA's demands
for the work could have been satisfied only by taking it away from Chesa-
peake and Ohio's employees Therefore, Chesapeake and Ohio is the prima-
ry employer in the dispute The ILA's refusal to load containers, which had
been placed on wheels by Chesapeake and Ohio employees for on-board
loading, embroiled the employers of the employees in the unit it represents,
who are the neutrals here, in a dispute not their own in violation of Sec
8(b)(4)(B) Consolidated Express, Inc, 221 NLRB 956 (1975), 537 F 2d 706
(C A 2, 1976), U S Naval Supply Center, 195 NLRB 273 (1972)
STATEMENT OF THE CASE
JOSEPH I NACHMAN, Administrative Law Judge: This pro-
ceeding heard before me at Newport News, Virginia, on
September 11-12 and December 1-3,' with all parties rep-
resented by counsel, involves a consolidated complaint 2
pursuant to Section 10(b) of the National Labor Relations
Act, as amended (herein the Act), which, in substance, al-
leges that since on or about April 10 International
Longshoremen's Association (herein International), its
Hampton Roads District Council (herein District Council),
and its Locals 846 and 862 (herein Locals 846 and 862),
collectively called Respondents, engaged in, and induced
and encouraged individuals employed by various stevedor-
ing companies operating in the port of Hampton Roads,
who are members of Hampton Roads Maritime Associa-
tion (herein Association), to engage in a strike or refusal to
use, manufacture, process, transport or otherwise handle or
work on goods or materials, or to perform services, and
threatened, coerced, and restrained members of said Asso-
ciation and shipping companies doing business with mem-
bers of Association, with an object of forcing or requiring
the stevedoring companies to cease doing business with the
shipping companies, in order to force or require the ship-
ping companies and other persons, to cease doing business
with The Chesapeake and Ohio Railway Company (herein
C & 0), and other persons. Respondents, by duly filed
answers, admitted certain allegations of the complaint, but
denied the commission of any unfair labor practices. The
principal issue litigated is whether the conduct of Respori-
dents hereafter more specifically detailed, and which is ba-
sically not in dispute, had the proscribed secondary objec-
tive, or whether it was designed simply to preserve the
These and all dates hereafter mentioned are 1975, unless otherwise indi-
cated
2 Issued August 21, on four separate charges filed June 23
225 NLRB No. 108
INTL LONGSHOREMEN'S ASSN, AFL-CIO 1067
work jurisdiction of Respondents. For reasons hereafter
more fully detailed, I find and conclude that the conduct
involved had the proscribed secondary objective, and rec-
ommend an appropriate remedial order.
At the hearing all parties were permitted to introduce
relevant and material evidence, to examine and cross-ex-
amine witnesses , to argue orally on the record, and to sub-
mit briefs. Oral argument was waived. Briefs submitted by
the General Counsel, Respondents, the Charging Party,
and Brotherhood of Railway, Airline and Steamship
Clerks, Freight Handlers, Express and Station Employees,
AFL-CIO, (herein BRAG), respectively, have been duly
considered. Upon the pleadings, stipulations of counsel,
the evidence, including my observation of the demeanor of
the witnesses while testifying, and the entire record in the
case, I make the following:
sary stevedoring services . When such a ship is scheduled to
call at a port other than New York , the general agent pro-
cures a local agent to perform the service the ship might
require In all instances involved in the instant case Yost
was the ship 's local agent while in the port of Newport
News, and Yost in turn contracted with Tidewater on be-
half of the ship 's owner or operator to perform the required
stevedoring services.
For many years Association has contracted with Inter-
national Longshoremen ' s Association and its various Lo-
cals in Hampton Roads area, including Respondent Locals
846 and 862, concerning the employment of longshoremen
and other ILA labor. The current contract , effective from
October 1, 1974, to September 30, 1977,4 contains the fol-
lowing provisions with respect to the work to be performed
by ILA:
FINDINGS OF FACT 3
For many years C & 0 has operated a terminal at New-
port News, Virginia (a part of the port of Hampton
Roads), into which it transports goods destined for further
shipment aboard vessels operating in interstate and foreign
commerce. Initially, the terminal facility involved, and all
equipment used in connection therewith, was owned by
C & 0, but approximately 10 years ago it conveyed all of
this property to the Virginia Port Authority, a state agency
charged with the operation of the entire port of Hampton
Roads, and the latter has leased back to C & 0 the termi-
nal here involved, and much of the equipment used in its
operation, on an annual rental approximating a million
dollars, and C & 0 operates the same as a public terminal.
From time to time C & 0 publishes tariffs prescribing the
terms and conditions under which the public might use the
terminal and equipment. It is stipulated that there is noth-
ing in the lease to C & 0 which limits the authority of the
latter to prescribe any conditions it might see fit in its tar-
iffs, except that they must be nondiscriminatory in their
terms and application.
Association is composed of a number of firms operating
in the port of Hampton Roads as ship agents and as steve-
doring companies, and includes among its members the
two companies directly involved in this proceeding, name-
ly, T. Parker Yost, Inc. (herein Yost), which is an agent for
shipping companies, and Tidewater Stevedoring Company
(herein Tidewater), which, as the name implies, performs
stevedoring services. C & 0 is not, nor has it ever been, a
member of the Association The manner in which these
companies operate may be summarized as follows:
Shipping lines or ship owners, particularly those of for-
eign registry, appoint a general agent, usually located in
New York, who undertakes, as agent for the owner, to pro-
vide the ship with all services it might require while in a
United States port. This includes contracting for the neces-
3 No issue of commerce or labor organization is presented C & 0 is an
interstate carrier by rail, subject to part I of the Interstate Commerce Act
The employer members of Hampton Roads Maritime Association service
and load ships which move in interstate and foreign commerce, and are,
therefore, engaged in commerce within the meaning of Section 2(6) and (7)
of the Act The status of ILA and its constituents as labor organizations is
admitted
SECTION I
SCOPE OF WORK OF ILA
The ILA shall have, insofar as it is compatible with
the laws of the United States of America and the State
of Virginia , all work of rigging and unrigging of cargo
and passenger vessels and the loading and discharging
of their cargoes , including all carpentry and lashing
required in securing cargo while vessel is alongside
pier, including vessels loading at coal piers when re-
quired by signatory employers , including mail, bag-
gage and dunnage used in connection with the cargo
being handled, including all stuffing and stripping,
handling and movement of containers at waterfront
facilities within a 50-mile radius from the center of the
Port of Hampton Roads excluding movements of con-
tainers for repairs from point of rest and return, which
shall be performed by members of 1970, and the load-
ing and discharging of lash ships and barges of their
cargoes under the following terms and conditions:
For the purpose of preservation of the work bar-
gained for in this contract between the HRSA and the
ILA, the HRSA agrees that none of the above work
given to the ILA and covered by this contract, which
work the HRSA has the legal and contractual right to
give to the ILA, can be subcontracted out by members
of HRSA, or given to any union except the ILA and
its affiliated Locals, or to any persons except ILA
members, unless ILA men are unavailable, in which
even the HRSA member may employ such men as are
available
The Method of Handling Containers by C & 0
Beginning about 1966, a new method known as contain-
erization was put into use for handling much of the cargo
to be loaded aboard ships at Hampton Roads. In the years
which followed, the use of containers has grown considera-
Prior contracts in evidence were from October 1, 1964, to October I,
1968, October 1, 1968, to September 30, 1971, and November 14, 1971, to
September 30, 1974 It is evident that the contractual relations between the
parties goes back prior to October 1, 1964, but contracts for the earlier years
are not in evidence, and are of no particular importance here
1068 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
bly.5 The containers, which are boxes approximately 5 feet
wide, 8 feet high, and either 20 or 40 feet long, are brought
into the C & 0 terminal area by flatcar; some on wheels,6
and others ride flat on the car, after being lashed down.
When the flatcars arrive at the C & 0 terminal, they go
directly to shipside, if the ship destined to receive the con-
tainers is then in port, and they are unloaded from the
flatcars onto the vessels by members of ILA employed by
the stevedoring company that is loading the vessel. Howev-
er, in most instances, when the containers arrive at the
terminal, the vessel destined to receive them is not yet in
port and may not be in port for days, or even weeks. In the
meanwhile it is necessary that the containers be stored un-
til the vessels upon which the particular containers are to
be loaded is berthed at the pier, ready to receive cargo.
While awaiting the arrival of the vessel, the containers are
stored in an area of the C & 0 terminal known as the
marshalling yard, about a half mile away from the piers
where the vessels tie up to load or unload cargo.
When the flatcars bearing containers arrive at the
C & 0 terminal in Newport News, those on wheels are
deramped from the cars and parked in the marshalling
area. While in the marshalling area, these containers may
remain on wheels, or if the wheels are needed for other
purposes, may be removed from the wheels and stacked
with other containers that came into the area without
wheels. Those containers which arrive in the area without
wheels are removed from the flatcars and placed on the
ground in stacks two or three containers high. While stored
in the marshalling yard, the containers are at times moved
from one location to another. All such movements are
made, not in preparation for loading aboard ship, but
chiefly because the stacking area close to the rails has be-
come too crowded.
The work of deramping containers on wheels, removing
those without wheels from the flatcars, stacking the con-
tainers in the marshalling area, or moving them about the
marshalling area is performed by C & 0 employees who
are members of or represented by Brotherhood of Railway,
Airline and Steamship Clerks (herein BRAC). Also when a
shipping agent notifies C & 0 that a ship is or will be in
port to receive specified containers, employees of C & 0
remove such of the containers as are not then on wheels
from the stacks of containers in the marshalling yard, place
such containers on wheels, and all containers designated
for loading are then moved, by means of a "fifth wheel," to
shipside for loading. The movement from the marshalling
yard to shipside and from shipside aboard the vessel is
done by members of ILA, employed by the stevedoring
company; the same being performed in accordance with
the contract between Association and ILA.
To remove containers from flatcars, as well as to move
them about the marshalling yards and onto wheels in prep-
aration for movement to shipside for loading, C & 0 uses
equipment known as a "transtainer" and a "straddle car-
5 Initially, the volume of containers brought into the port of Newport
News by C & 0 was approximately 100 containers a month Today the
number is 1,200 to 1,500 a month
6 The term "wheels" denotes what is in effect a flat bed truck without a
bottom, but with a flange at each corner Placed upon this, and clamped at
each corner, the container has the mobility to be towed from place to place
rier."' This equipment when operated by C & 0 is man-
ned by C & 0 personnel who are represented by either
BRAC or by International Brotherhood of Electrical
Workers.8
The Setting of the Present Controversy
For some time ILA has made demand on members of
Association that the work performed on containers by
C & 0 in and about the marshalling yards is work belong-
ing to members of ILA, and that members of Association
were dutybound to see that such work, which ILA claimed
had been awarded to its members by the contract with
Association, was performed by members of ILA.' A num-
ber of meetings were held between representatives of ILA
and Association in the period from 1972 to 1974 (at some
of the later ones representatives of C & 0 and BRAC
were present), in an effort to resolve the problem, but no
agreements were reached. I deem it unnecessary to outline
in detail the various statements and positions voiced by the
parties at these several meetings. Suffice it to say, basically
the position of ILA was that the work it was claiming had
been awarded to it by its contract with Association, and
that it could not remain silent and permit such work to be
performed by other employees. Members of Association
agreed that the work ILA claimed was work awarded to
ILA by the contract, but that members of Association were
powerless to give that work to members of ILA because the
work was under the control of C & 0, and they were pow-
erless to give it to ILA, or to require C & 0 to do so. The
issue was brought to a head on June 18, when Billups, a
vice president of International advised Mace, executive
secretary of Association, that ILA would not handle any
containers which had been processed through the C & 0
marshalling yard by C & 0 employees represented by
BRAC.10 Following this letter certain events occurred
7 These are really very heavy duty cranes specially designed to move con-
tainers of the size handled at the port of Newport News
8 By published tariffs issued by C & 0, all of the equipment used by it at
the port of Newport News may be leased by the public on the terms and
conditions stated in the tariff Except for the amount of the charge, which
increased from time to time , the terms of the tariff have remained the same
Except in the case of the transtainer, all the equipment is leased by C & 0
without an operator In the case of the transtainer, the tariff provides that it
will be leased by C & 0 only with an operator who is an employee of
C&0
9Initially , ILA claimed that the deramping of containers from flatcars
and all movement of containers about the marshalling yard, whether such
movement was for the sole convenience of C & 0, or in preparation for
loading aboard ship, as well as the placing of containers on wheels , was all
work belonging to ILA members However , at the hearing Respondents
conceded that the deramping of containers from flatcars and the movement
of the containers about the marshalling yard solely for the convenience of
C & 0, and not for the purpose of being loaded aboard ship , was not work
which ILA claimed in view of this concession , and the admission by the
General Counsel and C & 0 that the movement of the containers from the
marshalling yard to shipside once they have been placed on wheels is work
that is now and has at all material times been performed by members of
ILA, the only work currently involved in this dispute is the movement of the
containers from the stacks and placing them on wheels , so that they might
be moved from the marshalling yard to shipside for loading
0 Actually, Billups had theretofore , on April 10, sent a virtually identical
letter to Mace The evidence shows , however, that this letter was subse-
quently withdrawn by Billups, but the date of such withdrawal , or the rea-
sons therefor , do not appear from the record Moreover , the evidence does
INTL. LONGSHOREMEN'S ASSN., AFL-CIO 1069
which the General Counsel, C & 0, BRAC, and Associa-
tion contend constituted the violations of Section 8(b)(4)(i)
and (ii)(B) alleged in the complaint. These are:
1. On June 20, the Aconcaqua, a vessel of the Chilean
Line, docked at Newport News to take on some 69 tons of
mixed cargo and 21 containers which had arrived by rail
during the period June 2-16, and which had been pro-
cessed in the marshalling yard by C & 0 employees repre-
sented by BRAC. The Aconcagua was the first vessel to call
at the piers after Billups' letter of June 18. T. Parker Yost,
Inc., a member of Association, was the ship's agent, and as
part of his duties he engaged the services of Tidewater to
perform the stevedoring work required in the loading of the
vessel. For the performance of its work, Tidewater employs
persons who are members of or represented by ILA. After
the break-bulk cargo had been placed aboard the vessel,
Yost and Tosh, his manager of the export department,
asked Taylor, a member of ILA employed by Tidewater as
delivery clerk, to have the 21 containers brought from the
C & 0 marshalling yard to shipside for loading. Without
giving any reason for his action, Taylor refused to accept
the order. Yost, Tosh, and Taylor then went to Pruitt, also
a member of ILA employed by Tidewater, Ballard, presi-
dent of Respondent Local 846, and Anspach, president of
Respondent Local 862. The order to bring the containers
shipside was given to Pruitt who passed it to Taylor. The
latter again refused to accept the order and handed it to
Anspach, who also declined to accept it, referring to Bill-
ups' letter of June 18, as the basis for his action. Of the 21
containers destined for loading on the Aconcaqua, 6 had
been placed on wheels in the marshalling yards, to be
moved to the ship, because only the 6 wheels were avail-
able. The remaining 15 containers were to have been
placed on wheels as the wheels returned from the vessel.
However, as the ILA members employed by Tidewater re-
fused to move the wheels from the marshalling yard to the
ship, none of the 21 containers were loaded aboard the
Aconcaqua, and the vessel left port without those contain-
ers.
2. On June 24, The Finn Sailor, also of the Chilean Line,
called at Newport News to take on cargo which included
35 containers. T. Parker Yost, Inc., as the ship's agent, en-
gaged the services of Tidewater to perform the necessary
stevedoring work. During the loading, Tosh went over the
cargo list with Taylor, and the latter noted that two con-
tainers were in question, suggesting that Tosh speak with
Anspach about them. When Tosh talked with Anspach, the
latter confirmed that not only were the two containers in
controversy, but stated that none of the containers in the
C & 0 yard, that had previously been handled by C & 0
equipment operated employees represented by BRAC,
would be loaded on The Finn Sailor, and none were in fact
so loaded, the vessel leaving port without that cargo.
3. Also, on June 24, the Concordia Gleam, a vessel of the
Chilean Line, called at Newport News to take on cargo
which included two containers. As in the prior cases ship's
agent T. Parker Yost, Inc., engaged Tidewater to perform
the necessary stevedoring service. Tosh gave delivery clerk
not show that ILA or any member thereof refused, pursuant to this letter, to
perform services
Connell, a Tidewater employee, the order to load the two
containers but the latter refused, basing such refusal upon
the instructions issued Billups on June 18. The two con-
tainers involved were not brought shipside, and the vessel
left port without taking on that cargo.
4. On July 17, The Lircay, also a vessel of the Chilean
Line, called at Newport News to take on general cargo and
21 containers which were in the C & 0 marshalling yard.
Ship's agent T. Parker Yost, Inc., engaged Tidewater to
perform the necessary stevedoring services. After the gen-
eral cargo had been loaded, Tosh gave delivery clerk Tay-
lor the order to load the 21 containers . Taylor refused to
accept the order, passing it to Merrit who checked the
numbers of the containers against a list in his possession
and stated that, based on the instructions issued by Union
Agent Billups, the containers scheduled for The Lircay
could not be loaded. As a result, The Lircay left the port
without taking aboard the containers.
Contentions and Conclusions
Basically, Section 8(b)(4)(B) of the Act, which the Gen-
eral Counsel contends was violated in the instant case,
makes it an unfair labor practice for a labor organization,
or its agents, to engage in, or to induce or encourage the
employees of another employer to engage in, a refusal to
perform services, where an object thereof is to force or
require another employer to cease doing business with the
employer with whom the union has what the authorities
refer to as a primary dispute. The General Counsel con-
tends that the Unions' conduct in the instant case fits pre-
cisely the area which Section 8(b)(4)(B) proscribes. Specifi-
cally, he argues that the Unions' dispute in this case was
not with the members of Association, or the shipping lines
which members of Association represent or service, but
with C & 0 and that when Respondents ordered, instruct-
ed, and directed their members employed by Association
to withhold services from the latter, as they admittedly did,
a violation of Section 8(b)(4)(B) resulted, as the evidence
leaves no room for doubt that an object of Respondents'
conduct was to force or require a cessation of business
between C & 0, members of Association, and the ship
lines. Challenging the General Counsel's analysis, Respon-
dents argue that they have made no demands on, nor do
they have any dispute with C & 0; that their dispute is
solely and only with members of Association who employ
their members, and that the pressure which Respondents
exerted against those employers was primary activity, per-
missible under Section 8(b)(4)(B), because it was exerted
upon employer of its members, and that the sole purpose of
such pressure was to protect the work jurisdiction of their
members, granted to them by their contract with Associa-
tion. The critical issue for decision, therefore, is with what
employer do Respondents have their primary dispute; is it
with C & 0, as the General Counsel contends, or is it with
the employer members of Association, as Respondents
contend.
Although the task of determining who the primary em-
ployer is may in some cases not be without difficulty, in the
instant case the task is made relatively simple by applicable
Board decisions. The Board's decisions which I find con-
1070 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
trolling here are International Longshoremen's Association,
Local 1248, AFL-CIO (U.S Naval Supply Center), 195
NLRB 273 (1972); International Longshoremen's Associa-
tion (Consolidated Express, Inc.), 221 NLRB 956 (1975);
Enterprise Association of Steam, Hot Water, Hydraulic
Sprinkler, Pneumatic Tube, Ice Machine and General Prpefit-
ters of New York and Vicinity, Local 638 (The Austin Com-
pany, Inc.), 204 NLRB 760 (1973), enforcement denied 521
F.2d 885 (C.A.D.C., 1975), cert. granted 424 U.S. 908
(1976).
In Naval Supply, supra, the U.S. Navy had a group of
employees who stuffed containers with the effects of mili-
tary personnel being transferred to foreign duty stationers.
The containers, after being stuffed by Navy personnel,
were loaded aboard vessels by ILA stevedores for shipment
to a foreign port. ILA claimed for its members the work of
stuffing the containers, contending that the same had been
awarded to it by contract with the same Association in-
volved in this case, and when its demand was refused, de-
clined to load the containers aboard the vessels. The Board
pointed out that the Navy's employees had never worked
as part of the unit covered by the agreement between Asso-
ciation and ILA, nor had the precise work ever been per-
formed by employees working under the work agreement;
that the sole function of the shipowners with respect to the
work involved had been the receiving and transshipping of
cargo destined for foreign ports, and that of the stevedor-
ing companies was the loading of cargo for that purpose.
Based on these findings the Board concluded (195 NLRB
at 274):
. .. The ILA's real dispute is thus with the U.S. Navy
Its demands can only be met if the U.S. Navy were to
replace its own employees represented by the IAM
with ILA members. The U.S. Navy is therefore the
primary employer, and the shipping and stevedoring
companies are neutrals who are embroiled by Respon-
dents in a dispute not their own in order to compel
them to cease doing business with the primary em-
ployer in the hope that this will induce the primary
employer, the U.S. Navy, to give in to the ILA's de-
mands. The fact that the restrictive provisions in the
ILA-Association collective-bargaining contract, upon
which Respondents rely may in other circumstances
have valid work preservation objectives, does not
mean that they can be used as a shield for conduct
aimed not at work preservation but at acquisition of
work historically performed by employees in another
work unit. [Footnotes omitted.]
So in the instant case ILA members have never per-
formed the work of placing containers on wheels in the
C & 0 yards, work which has always been performed by
C & 0 employees represented by BRAC. Respondents' de-
mand for this work can only be met by C & 0 replacing
its own employees represented by BRAC with ILA mem-
bers. As in Naval Supply, this makes C & 0 the primary
employer, and the shipping and stevedoring companies
neutrals who are embroiled by Respondents in a dispute
not their own in order to compel a cessation of business
with C & 0 and/or the shipping lines.
In the Consolidated Express case, supra, the Board cited
and relied on its prior decision in Naval Supply, supra, in
support of its conclusion that ILA engaged in secondary
activity when it threatened, coerced, and restrained mem-
bers of New York Shipping Association in support of its
demands that members of ILA be utilized by consolidators
at their off-pier premises to stuff or strip containers; the
Board concluding as it did in Naval Supply, that the pri-
mary labor dispute was between ILA and the consolida-
tors, notwithstanding the fact that ILA had made no de-
mands on the consolidators.
Respondents argue that all their activity here was en-
gaged in for the sole purpose of protecting the work juris-
diction of their members, which not only had been award-
ed it by contract, but which traditionally had been
performed by ILA members, and that under the Supreme
Court's holding in National Woodwork Manufacturers Asso-
ciation et al v. N L.R.B., 386 U.S. 612 (1967), such activity
must be regarded as directed only against members of As-
sociation, and therefore primary in nature. In my view the
decision in National Woodwork, supra has no application to
the facts of this case. This conclusion is, I believe, mandat-
ed by the Board's decision in Enterprise Association of
Steam, Hot Water etc, Local 638 (The Austin Company,
Inc), 204 NLRB 760 (1973).
In Enterprise Association, supra, Austin was the general
contractor and engineer for the construction of a home for
the aged. Austin had prepared the specifications which
called for the installation of climate control units manufac-
tured by Slant Finn Corporation. The specifications fur-
ther required that the main water flow and condensate as-
sembly for the climate control units was to be factory
installed. Pursuant to agreement with Slant/Finn, Austin
purchased the designated climate control units and re-
ceived them at the jobsite. Austin had contracted with Hu-
dik-Ross Co., Inc. (herein Hudik) to install the Slant/Finn
climate control units. When Hudik executed its contract, it
was aware that the units to be installed contained internal
piping that would be cut and threaded at the factory. Hu-
dik was a union contractor with a collective-bargaining
agreement with Local 638, that contained a provision
which required Hudik's employees to cut and thread inter-
nal piping in all climate control units Hudik contracted to
install. After the Slant/Finn units came to the jobsite, Lo-
cal 636 instructed its members not to install the units and
told both Austin and Hudik that the units would not be
installed because the internal piping was not to be cut and
threaded on the jobsite by Hudik's employees who were
members of Local 638. In holding that the conduct of Lo-
cal 638 violated Section 8(b)(4)(i) and (ii)(B) of the Act, the
Board said (204 NLRB at 760):
. . We note that the refusal of the Respondent to let
Hudik's employees install the climate control units
was based on a valid work preservation clause in the
agreement with Hudik, the subcontractor, and was for
the purpose of preserving work they had traditionally
performed. However, Hudik was incapable of assign-
ing its employees this work; such work was never
Hudik's to assign in the first place. Moreover, we note
that the Respondent informed Austin, who did not
employ employees represented by the Respondent and
INTL. LONGSHOREMEN'S ASSN., AFL-CIO
had no agreement with that Union, that it would not
let Hudik install the climate control units involved.
Considered together, these facts clearly indicate that
the Respondent was exerting prohibited pressure on
Hudik with an object of either forcing a change in
Austin's manner of doing business or forcing Hudik to
terminate its subcontract with Austin. Since the pres-
sure exerted by the Respondent on Hudik was under-
taken for its effect on other neutral employers, this
pressure was secondary and prohibited by Section
8(b)(4)(B)
In the instant case, as was the situation in the Local 638
case, the members of Association had no control over the
work being performed by C & 0 through its BRAC em-
ployees. Those members of Association were incapable of
assigning to ILA members the work which Respondents
demanded, for it was never theirs to assign. As heretofore
indicated the only way Respondents' demands could be
satisfied was for C & 0 to employ Respondents' members
directly, or to bring about a complete change in the meth-
od pursuant to which C & 0 and members of Association
did business. That the Court in National Woodwork did not
consider this issue, and that its decision there is not appli-
cable to the facts presented by this record, is made clear by
footnote 3 of the Supreme Court's opinion, where it specifi-
cally reserved decision on that issue presented here. See
also Board's petition for writ of certiorari in Enterprise,
supra. I I
For the reasons stated, I find that by their strike against
members of Association, and by inducing their members
employed by members of Association to refuse to perform
service, Respondents violated Section 8(b)(4)(i) and (ii)(B)
of the Act, because a clear object of the aforesaid conduct
was to bring about a cessation of business between C & 0
and members of Association, and between members of As-
sociation and the shipping companies. N.L.R.B. v. Local
825, International Union of Operating Engineers, AFL-CIO,
400 U.S. 297 (1971). I so find and conclude.
Upon the foregoing findings of fact, and the entire re-
cord in the case, I make the following:
CONCLUSIONS OF LAW
1. Members of Association, including Tidewater, and
the Chilean Lines are employers within the meaning of
Section 2(2) of the Act and are engaged in commerce with-
in the meaning of Sections 2(6) and (7) and 8(b)(4)(B) of
the Act.
2. Respondents are each a labor organization within the
meaning of Sections 2(5) and 8(b)(4) of the Act.
3. By engaging in a strike against Tidewater, and by in-
11
Although conceding that the decision of the Court of Appeals for Dis-
trict of Columbia in Enterprise Association, supra, has not, and will not,
become finally authoritative until the Supreme Court ultimately decides that
case pursuant to its grant of certiorari, Respondents urge that I follow the
views expressed by the court of appeals in that case However, as an agent
of the Board, I am duty bound to follow applicable Board decisions regard-
less of my own views as to their correctness, until such time as the Board
itself changes its position, or the Supreme Court holds to the contrary
SNC Manufacturing Co, Inc, 147 NLRB 809, 821 (1964), and the cases
there cited
1071
ducing and encouraging employees of Tidewater to engage
in a strike or refusal in the course of their employment to
perform services, and by threatening, coercing, and re-
straining Tidewater and T. Parker Yost, Inc., with an ob-
ject of forcing or requiring Chilean Lines to cease doing
business with Tidewater or T. Parker Yost, Inc., in order to
force or require Tidewater, T. Parker Yost, Inc., and other
members of Association to cease doing business with
C & 0, Respondents engaged in, and are engaging in un-
fair labor practices proscribed by Section 8(b)(4)(i) and
(ii)(B) of the Act
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondents have engaged in speci-
fied unfair labor practices, it will be recommended they be
required to cease and desist therefrom and to take certain
affirmative action found necessary and designed to effectu-
ate the policies of the Act.
On the basis of the foregoing findings of fact and con-
clusions of law, and the entire record in the case, and pur-
suant to Section 10(c) of the Act, I issue the following rec-
ommended:
ORDER 12
Respondents International Longshoremen's Association,
AFL-CIO, Hampton Roads District Council, Internation-
al Longshoremen's Association, AFL-CIO, International
Longshoremen's Association, AFL-CIO, Local 846, and
International Longshoremen's Association, AFL-CIO, Lo-
cal 862, Hampton Roads, Virginia, their respective officers,
agents, and representatives shall:
1. Cease and desist from engaging in, or inducing or
encouraging individuals employed by Tidewater Stevedor-
ing Company, or any other employer to engage in, a strike
or a refusal in the course of his employment to use, manu-
facture, process, transport, or otherwise handle or work on
goods, articles, materials or commodities, or to perform
services, or threatening, coercing, or restraining Tidewater
Stevedoring Company, T Parker Yost, Inc., or any other
person engaged in commerce or in an industry affecting
commerce, where in either case an object thereof is to force
or require Chilean Lines, or any other employer or person
to cease doing business with Tidewater Stevedoring Com-
pany, T. Parker Yost, Inc., or any other member of Hamp-
ton Roads Maritime Association, in order to force or re-
quire Tidewater Stevedoring Company, T. Parker Yost,
Inc., or any other member of Hampton Roads Maritime
Association to cease doing business with Chesapeake and
Ohio Railway Company.
12 In the event no exceptions are filed as provided by Sec 102 46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions, and recommended Order herein shall, as provided in Sec
102 48 of the Rules and Regulations , be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes
1072 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Take the following affirmative action designed and
found necessary to effectuate the policies of the Act:
(a) Post at their respective business offices and meeting
halls copies of the attached notice marked "Appendix." i3
Copies of said notice, on forms provided by the Regional
Director for Region 5 (Baltimore , Maryland), after being
signed by an authorized representative, shall be posted im-
mediately upon receipt thereof , and maintained by it for 60
consecutive days thereafter , in conspicuous places, includ-
ing all places where notices to members are customarily
posted . Reasonable steps shall be taken to insure that said
notices are not altered, defaced, or covered by any other
material.
(b) Notify the aforesaid Regional Director , in writing,
within 20 days from the date of this Order, what steps they
have taken to comply herewith.
13 In the event the Board 's Order is enforced by a Judgment of the United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board "
APPENDIX
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a full hearing at which all parties had full opportuni-
ty to present their evidence , it has been decided by the
National Labor Relations Board that we violated the Na-
tional Labor Relations Act, and we have been ordered by
said Board to post this notice . We will carry out the order
of the Board , as well as the Judgment of any court enforc-
ing the same , and we will abide by the following:
WE WILL NOT engage in , or induce or encourage indi-
viduals employed by Tidewater Stevedoring Compa-
ny, or of any other employer to engage in, a strike or
refusal in the course of his employment to use, manu-
facture , process, transport , or otherwise handle or
work on any goods, articles, materials , or commodi-
ties, or to perform services, or threaten , coerce, or re-
strain Tidewater Stevedoring Company, or any other
person engaged in commerce or in an industry affect-
ing commerce , where in either case an object thereof is
to force or require Chilean Lines, or any other em-
ployer or person to cease doing business with Tidewa-
ter Stevedoring Company, T. Parker Yost, Inc., or any
other members of Hampton Roads Maritime Associa-
tion to cease doing business with C & 0 Railway
Company.
INTERNATIONAL LONGSHOREMEN 'S ASSOCIATION,
AFL-CIO, HAMPTON ROADS DISTRICT COUNCIL
INTERNATIONAL LONGSHOREMEN 'S ASSOCIATION,
AFL-CIO
INTERNATIONAL LONGSHOREMEN'S ASSOCIATION,
AFL-CIO, LOCAL 846
INTERNATIONAL LONGSHOREMEN 'S ASSOCIATION,
AFL-CIO, LOCAL 862