Local 1355, Int'l Longshoremen's Association

National Labor Relations Board - Board Decisions

Apr 9, 1964

146 N.L.R.B. 723 (N.L.R.B. 1964)

LOCAL 1355, INT'L LONGSHOREMEN'S ASSOCIATION 723
Company, was not with delivery at the dock per se or with irregular dock pickups
by small retail concerns, b_ t by regular daily dock pickups by people who were
not on any Sealtest employee wholesale route. The Union was concerned that if this
regudar_daily-practice were permitted to continue, this fact, coupled with the cheaper
price at the dock, would attract and invite more and more dock purchases and that
ultimately Sealtest would or might discontinue wholesale deliveries just as in 1959 it
had discontinued retail deliveries. In that event Sealtest's employees who were in
the bargaining unit, the wholesale deliverers, would be out of jobs, or, at the least,
might be given an opportunity to purchase the wholesale routes and compete with
the Company's sales at the dock. Carney's testimony indicated the Union believed
that ir0959 the Company forced its retail deliverers to buy their routes or lose their
jobs. (Regardless of the truth of that belief clearly the Union took the action it did
in the hope of avoiding a repetition of that episode with respect to the wholesale
routemen.
The Union had a legitimate interest in acting to preserve and maintain Sealtest's
historic wholesale delivery system under which deliveries to Sealtest's customers were
made by Sealtest employees who were a part of the bargaining unit .2 Preserving
this delivery system under its contract which was based in part upon this system
was the Union's only dispute and its primary concern. (Me dispute with Sealtest
and the Union's statements and actions with respect to Sealtest and Ogden and
Rom's were primary statements and actions, not secondary, and therefore fell into
the proviso to Section 8(b)(4)(B) of the amended Act, which permitted primary
activity. On the entire record it is so found.)
Under these circumstances it is of no legal consequence that an incidental effect,
as contrasted with an object, of the Union's statements and actions, was to force
Sealtest to modify its method of doing business with Ogden and Rom's, and to
induce and encourage Sealtest employees to cease serving them. Cf. International
Union of Operating Engineers, Local 545 (Syracuse Supply Company), 139 NLRB
778.
Upon the above considerations and upon the entire record considered as a whole
I recommend that the complaint be dismissed.
2 Cf. Retail Clerks Union Local 770 v. N.L.R . B., 296 F. 2d 368, 373 (C.A.D.C.).
Local 1355, International Longshoremen 's Association and Ocean
Shipping Service, Ltd.
International Longshoremen 's Association and Ocean Shipping
Service , Ltd. Cases Nos. 5-CC-254 and 5-CC-9255. April 9, 1961
DECISION AND ORDER
Unfair labor practice charges were filed on behalf of Ocean Ship-
ping Service, Ltd., also referred to as Ocean, on January 27, 1964,1
against Respondents Local 1355, International Longshoremen's As-
sociation,.and the International Longshoremen's Association, referred
to as ILA. Thereafter, on February 19, the General Counsel of the
National Labor Relations Board, by the Regional Director for the
Fifth Region, issued a complaint and notice of hearing, alleging that
the Respondents had engaged in and were engaging in unfair labor
practices affecting commerce within the meaning of Section 8(b) (4)
(ii) (B) and Section 2(6) and (7) of the Act.
On March 20, all parties to this proceeding filed a stipulation of
facts and a motion to transfer this proceeding directly to the Board
' Unless otherwise indicated all dates refer to 1964.
146 NLRB No. 100.
724 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for issuance of a Decision and Order after the filing of briefs and
without further hearing. The stipulation states in substance that the
parties waived their rights to a hearing before a Trial Examiner and
the issuance of Trial Examiner's Decision, and that the entire record
in this case should consist of the charges, complaint, answer, various
exhibits, and the transcript and exhibits received in evidence at a
hearing before the United States District Court, District of Mary-
land in the case of John A. Penello, Beg. Dir. v. International Long-
shoremen's Association and Local 1355, etc., 227 F. Supp. 164. There-
after, the General Counsel and Respondents filed briefs. On
March 24, the Board approved the stipulation, and ordered transferral
of the proceedings to the Board.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the National Labor Relations Board has delegated its
powers in connection with this case to a three-member panel [Chair-
man McCulloch and Members Leedom and Fanning].
Upon the basis of the aforesaid stipulation and the entire record 2
in the case, and having considered the briefs of the parties, the Board
makes the following :
FINDNGS OF FACT
1. THE BUSINESS OF THE COMPANIES
Ocean is a Bermuda corporation, engaged in the business of trans-
porting cargo in foreign commerce, inter alia, between points in the
United States and points in foreign countries. It owns two vessels,
the 2JIuswell Hill and the Tulse Hill. The Tulse Hill is of British
registry and is manned by foreign nationals.
Maryland Ship Ceiling Company, Inc., herein called Maryland
Ship, is engaged at Baltimore, Maryland, in the business of fitting ves-
sels, which operate in interstate and foreign commerce, to receive
cargo. Its revenues from providing such services to vessels of both
foreign and American registry are about $200,000 annually.
On these facts, we find that, at all times material herein, Maryland
Ship was engaged in commerce within the meaning of Section 2(6)
and (7) of the Act 3
2 Respondents' request for oral argument is hereby denied because the record and briefs
adequately present the positions of the parties.
8 Respondents argue that the Board should dismiss this case for lack of iurisdictinn.
They first contend that the Board is precluded from asserting jurisdiction in this case
because the Tulse Htil is a foreign-flag vessel manned by an alien crew. As the instant
proceeding involves. no issue bearing upon labor relations aboard the Tulse Hill, its
registry and the composition of the vessel's crew are immaterial in determining the
Board's power to entertain Ocean's unfair labor practice charges against Respondents.
See Ineres Steamship Co., Ltd. v. International Maritime Workers Union, 372 U.S. 24,
27-28; Local Union 25, International Brotherhood of Teamsters V. New Fork, New Haven
& Hartford Railroad Co., 350 U.S. 155; Great Lakes District, Seafarers' International
Union, etc., et at. (Upper Lakes Shipping, Ltd ), 139 NLRB 216.
We find no merit in Respondents' further contention that the complaint should be dis-
missed because the General Counsel failed to prove commerce facts satisfying the Board's
LOCAL 1355, INT'L LONGSHOREMEN'S ASSOCIATION 725
II. THE LABOR ORGANIZATIONS INVOLVED
We find that Respondent Local 1355 and Respondent ILA are,
and. at all times material herein have been, labor organizations within
the meaning of Section 2 (5) of the Act. -
M. THE UNFAIR LABOR PRACTICES
On October 8, 1962, the ILA issued a press release outlining the
steps it was taking'to eliminate all trade with Cuba. This press release
provided, inter alia, that "The International Longshoremen's As-
sociation will not load or unload U.S. Government, commercial or
cargoes of any nature in ships of any owner whose vessels are used in
trade with Cuba."
In December 1963 the ILA issued to all International representa-
tives and to the president of each ILA local a document called the
"I.L.A. Fact Sheet," containing instructions that "If any of the ships
listed below arrive at any ILA port, our membership is forbidden to
handle them. Any ship on the list that enters an ILA port should
be reported immediately to John Bowers, International Executive
Vice President, at International Headquarters, in New York City."
The fact sheet appended a list of vessels used in Cuban trade, which
was based upon a list prepared by the Department of Commerce,
Maritime Administration,4 and included the Tulse Hill. In bold type
at the bottom of the blacklist appeared the further instruction : "Re-
port any of these ships that enter your port . . . . By no means work
them." At the time of the events herein, however, the Tulsse Hill was
not on the Commerce Department's blacklist, as its eligibility for
Government-financed cargo had been restored on December 20, 1963.
Sometime in January it was determined that the Tulse Hill would
sail to Baltimore to be fitted for a cargo of grain, to be loaded there,
and then shipped to Liverpool, England. This "fitting out" was to be
done by Maryland Ship, under its contract with Ocean Shipping en-
tered into for the latter through its agent.
On January 17 Respondent ILA, by telegram under signature of
International Vice President Bowers, instructed and directed rep-
resentatives and affiliated local unions in Baltimore, Maryland, not to
jurisdictional standards . As the owners and operators of the foreign-flag vessels for
which Maryland Ship performs services are engaged in operations of the magnitude neces-
sary for assertion of jurisdiction over comparable nonexempt organizations , the value of
Maryland Ship services to foreign -flag vessels may be treated as indirect outflow in accord-
ance with established Board policy . G. C. McBride Company, 110 NLRB 1255; Siemon8
Mailing Service . 122 NLRB 81 , at 85, footnote 12. Accordingly , we are satisfied that
Maryland Ship's annual gross volume at the Baltimore location meets our indirect outflow
standard for nonretal enterprises.
'The Department of Commerce was responsible for circulation of this list to various
governmental agencies in accordance with the policy established by National Security
Action Memorandum No. 220 which provided that designated vessels weze ineligible to
carry O.S. Government -finances' cargoes.
726 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
work the Tulse Hill because it had engaged in Cuban trade. On
January 20, Maryland Ship was informed that the Tulse Hill would
arrive in Baltimore the following day. Accordingly, Maryland Ship,
as party to a hiring-hall agreement 5 with Local 1355, on January 20,
ordered five gangs from Local 1355 to begin fitting the Tulse Hill on
January 21. However, pursuant to instruction from an ILA vice
president, Local 1355 refused to refer any employees represented by
Respondents for that purpose. The instructions against working the
Tulse Hill were then communicated to the membership by Local 1355's
business agent. On each succeeding day, up to and including Janu-
ary 24, Maryland Ship ordered five gangs for work on the Tulse Hill.
Local 1355 posted each "order" but still refused to refer any employees
for work on the Tulse Hill.' On January 25, the vessel moved from its
berth to an anchorage in Baltimore Harbor to await further
developments.
Pursuant to a proceeding under Section 10(1) of the Act, the
District Court for the District of Maryland on March 18 granted a
temporary injunction against Respondents. On March 19 the district
court granted a temporary stay of the injunction, which was ex-
tended, on March 30, to April 13 by Chief Judge Sobeloff of the U.S.
Court of Appeals, Fourth Circuit.
The complaint alleges that Respondents violated Section
8(b) (4) (ii) (B) of the Act by threatening, coercing, and restraining
Maryland Ship Ceiling Company, Inc., with an object of forcing or
requiring it to cease doing business with Ocean.
The Respondents contend that the complaint should be dismissed
on grounds (1) that Section 8(b) (4) (ii) (B) does not apply absent
-a labor dispute with a primary employer, and (2) that the General
Counsel failed to establish by a preponderance of the evidence that
the conduct complained of fell within the proscriptions of Section
8(b) (4) (ii) (B).
Considering the evidentiary matters first, we are satisfied and find
that the General Counsel has established that Respondent Local 1355,
on instructions from Respondent ILA, informed its members not to
work the Tulse Hill, and refused, contrary to past practice under the
governing hiring-hall arrangement, to furnish to Maryland Ship
work gangs for this purpose. Such action constituted threats, re-
6 The agreement provides that employees shall be hired through the Union 's ball in ac-
cordance with specified procedures Maryland Ship, like the other ship ceiling companies
covered by the agreement , places orders with Local 1355 the day before the work is to be
done. Maryland Ship has its preferred or regular gangs. The contract permits the com-
panies to obtain workers from other sources when Local 1355 does not have sufficient
men available . However, Maryland Ship has done so only three times in 10 years. (See
footnote 8, infra.) The gangs referred by Local 1355 regularly include winchmen, an
experienced leader ( gang carrier ), and members who have special qualifications for, and
experience in, ship ceiling work.
6 Local 1355 has continued throughout to supply men to Maryland Ship for work on
other vessels.
LOCAL 1355, INT'L LONGSHOREMEN'S ASSOCIATION 727
straints, and coercion within the meaning of Section 8 (b) (4) (ii)
of the Act? The evidence also reveals that this conduct had an
object falling within the plain terms of Section 8 (b) (4) (B), i.e.,
"forcing or requiring any person ... to cease doing business with
any other person . . . ." The refusal to refer work gangs had the
effect -of denying Maryland Ship its customary work force, and
those employees on which it depended, to perform the services re-
quired by its agreement with'Ocean's agent.8 Moreover, this action
was an implementation of Respondent ILA's clearly defined policy
calculated to eliminate trade with Cuba by withholding the labor of
its members from ships that had engaged in such trade. Obviously
this course of action could only prove effective if the blacklisted
vessels were not worked. In these circumstances, whatever its ul-
timate object, at least "an object" of Respondents' conduct was to
force or require the cessation of business between Maryland Ship
and Ocean.' And as Respondent Local 1355, in engaging in the
above conduct, was merely implementing the instructions and pol-
icies of Respondent ILA, as evidenced in the press release, fact sheet,
and_ telegram, we find that both are responsible for the conduct.
There is no merit in Respondents' contention that Section
8(b) (4) (B) may not be applied in the absence of a labor dispute
with a primary employer. Neither the legislative history nor the
Act itself suggests that the existence of such a dispute is a precondi-
tion for regulation of conduct, not involving traditional primary
activity," falling within the literal ban of that section and tending
7Local 756 International Brotherhood of Electrical Workers, etc ., et al. ( The Martin
Company ), 131 NLRB 1010, 1011. Local 825 International Union of Operating Engineers,
AFL-CIO (R. G. Maupai Co., Inc ), 135 NLRB 578 , 579, enfd. 315 F. 2d 695 (C.A 3). See
also Local No. 5, United Association of Journeymen and Apprentices of the Plumbing and
Pipe Fitting Industry of the United States and Canada, AFL-CIO (Arthur Venneri Co.) v.
N.L R.B., 321 F . 2d 366 (C A.D C.).
8 We find no merit in Respondents ' argument that Maryland Ship could draw labor from
other available sources to work the Pulse Hill. The evidence shows that Maryland Ship
in the last 10 years has , with the exception of three occasions , relied exclusively on
Local 1355 for its work force . Although, on rare occasions, it had used carpenters repre-
sented by Local 101 of the United Brotherhood of Carpenters and Joiners of America,
these workers merely supplemented incomplete gangs furnished by Local 1355. It also
appears that when Maryland Ship attempted to order carpenters from Local 101 for work
on the Tulse Hill, it was advised that Local 101 carpenters would only be supplied to
vessels on which Local 1355 ship ceilers were engaged. In any event , we agree with
Judge Thomsen ' s general findings in the 10( 1) proceeding, John A. Penello , Beg Dir. V.
International Longshoremen 's Association and Local 1355, 227 F. Supp. 164 (D C. Md ),
that it would not be feasible for Maryland Ship to seek labor from sources other than the
pool maintained by Local 1355.
9 According to settled principle it is not necessary to find that the sole object of a
union's conduct was to force or require a cessation of business . N L R B. v Denver
Building and Construction Trades Council , et al., 341 U.S. 675 at 686 ; International
Longshoremen's Association, etc. (The Board of Harbor Commissioners ), 137 NLRB
1178, 1184.
10 By virtue of a proviso to Section 8(b) (4) (B ) of the amended Act, Congress extended
specific protection to the union's right to engage in "any primary strike or primary
picketing."
728 DECISIONS OF NATIONAL LABOR RELATIONS -BOARD
to burden and obstruct commerce. It being clear that the present
controversy does not involve the right of a labor organization to
engage in "traditional primary activity," 11 we reject Respondents'
contention that a labor dispute with a primary employer must exist
before Section 8(b) (4) (B) of the Act may be invoked 12
For the above reasons, we find that Respondent Local 1355 and Re-
spondent ILA violated Section 8(b) (4) (ii) (B) of the Act by threat-
ening, coercing, and restraining Maryland Ship with an object of
forcing or requiring Maryland Ship to cease doing business with
Ocean.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICE UPON COMMERCE
The activities of the Respondents set forth above, occurring in con-
nection with the operations of Maryland Ship Ceiling Company, Inc.,
a person engaged in commerce in the port of Baltimore, have a close,
intimate, and substantial relation to trade, traffic, and commerce among
and between the several States and foreign countries and tend to lead
to industrial strife burdening and obstructing commerce and the free
flow of commerce.
V. THE REMEDY
Having found that the Respondents have engaged in unfair labor
practices in violation of Section 8(b) (4) (ii) (B) of the Act, we shall
order that Respondents cease and desist therefrom and take certain
affirmative action designed to remedy the unfair labor practices and
otherwise effectuate the policies of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire
record in the case, we make the following :
CONCLUSIONS OF LAW
1. Maryland Ship Ceiling Company, Inc., is a person engaged in
commerce and an industry affecting commerce within the meaning
of the Act.
2. Ocean Shipping Service, Ltd., is ,a person within the meaning of
the Act.
u See United Marine Division, Local 333 et al. (New York Shipping Association), 107
NLRB 686, 710-711.
' Our view, that the existence of a labor dispute with a primary employer is immaterial,
is supported by the language of the Ninth Circuit in N.L.R.B. v. Washington- Oregon
Shingle Weavers' District Council at ai ., 211 F. 2d 149, where , at page 152, the court
stated :
The Union 's argument that there was no evidence if a dispute between it and the
Canadian plants is without merit. If that were true it would not make the Union's
conduct any more excusable ... .
LOCAL 1355, INT'L LONGSHOREMEN'S ASSOCIATION 729
3. Respondent International Longshoremen's Association and Re-
spondent Local 1355, International Longshoremen's Association are
labor orgaizations within the meaning of the Act.
4. By threatening, coercing, and restraining Maryland Ship Ceil-
ing Company, Inc., with an object of forcing or requiring it to cease
doing business with Ocean Shipping Service, Ltd., Respondents have
engaged in and are engaging in unfair labor practices affecting com-
merce within the meaning of Section 8(b) (4) (ii) (B) and Section
2(6) and (7) of the Act.
ORDER
Upon the entire record in this case, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board orders that the Respondent International Long-
shoremen's Association and Respondent Local 1355, International
Longshoremen's Association, their officers, agents, representatives, suc-
cessors, and assigns, shall : .
1. Cease and desist from threatening, restraining, or coercing-Mary=
land Ship Ceiling Company, Inc., where an object thereof is to force
or require Maryland Ship Ceiling Company, Inc., to cease doing busi-
ness with Ocean Shipping Service, Ltd., under circumstances prohib-
ited by Section 8(b) (4) (ii) (B) of the Act.
2. Take the following affirmative action designed to effectuate the
policies of the Act:
(a) Post at their business offices and meeting halls, in Baltimore,
Maryland, copies of the attached notice marked "Appendix." 13 Copies
of said notice, to be furnished by the Regional Director for the Fifth
Region, shall, after being duly signed by authorized representatives
of the Respondents, be posted by Respondents immediately upon
receipt thereof, and be maintained by them for 60 consecutive days
thereafter, in conspicuous places, including all places where notices
to members are customarily posted. Reasonable steps shall be taken
by Respondents to insure that said notices are not altered, defaced,
or covered by any other material.
(b) Sign and mail to the Regional Director for the Fifth Region
sufficient copies of said notice, to be furnished by him, for posting by
Maryland Ship Ceiling Company, Inc., if willing.
(c) Notify the said Regional Director, in writing, within 10 days
from the date of this Order, what steps Respondents have taken to
comply herewith.
"In the event that this Order is enforced by a decree of a United States Court of
Appeals, this notice shall be amended by substituting for the words "A Decision and
Order" the words "A Decree of the United States Court of Appeals, Enforcing an Order."
730 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO ALL MEMBERS OF INTERNATIONAL LONGSHOREMEN'S Asso-
CIATION AND LOCAL 1355, INTERNATIONAL LONGSHOREMEN'S ASSOCIA-
TION, EMPLOYED IN THE PORT OF BALTIMORE , MARYLAND
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify you that :
WE WILL NOT threaten, restrain, or coerce Maryland Ship
Ceiling Company, Inc., where an object thereof is to force or re-
quire Maryland Ship Ceiling Company, Inc., to cease doing busi-
ness with Ocean Shipping Service, Ltd., under circumstances pro-
hibited by Section8(b) (4) (ii) (B) of the Act.
INTERNATIONAL LONGSHOREMEN 'S ASSOCIATION,
Labor Organization.
Dated--------- ------- By-------------------------------------
(Representative ) (Title)
LOCAL 1355, INTERNATIONAL LONGSIIORE-
MEN'S ASSOCIATION,
Labor Organization.
Dated---------------- By--------------------------------------
(Representative ) (Title)
This notice must remain posted for 60 consecutive days from the
date of posting, and must not be altered, defaced, or covered by any
other material.
Employees may communicate directly with the Board's Regional
Office, Sixth Floor, 707 North Calvert Street, Baltimore, Maryland,
Telephone No. 752-8460, Extension 2100, if they have any question
concerning this notice or compliance with its provisions.
W. C. Ford , d/b/a General Tire and Tread Company and Chauf-
feurs, Teamsters and Helpers , Local Union No. 175, affiliated
with The International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America . Case No. 9-CA-9925.
April 9, 1964
DECISION AND ORDER
On January 31, 1964, Trial Examiner Thomas F. Maher issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent had engaged in and was engaging in -certain unfair labor prac-
tices and recommending that it cease and desist therefrom and take
certain affirmative action, as set forth in the attached Trial Exam-
146 NLRB No. 90.