Local 16, Longshoremen

National Labor Relations Board - Board Decisions

Jun 20, 1969

176 N.L.R.B. 889 (N.L.R.B. 1969)

LOCAL 16, LONGSHOREMEN 889
Local No. 16, International Longshoremen and
Warehousemen 's Union and City of Juneau. Case
19-CC-389
June 20, 1969
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND BROWN
provisions of the Act."2 Thus it is apparent, as
Congress intended , that Section 8(b)(4)(B) can apply
to a particular dispute even though Sections 8(a) or
9 are inapplicable to the underlying controversy
between an exempt person and its employees. ^ For
these reasons , and because the operations of the
City of Juneau and the State of Alaska have an
impact on commerce, we agree with the Trial
Examiner that it effectuates the purposes of the Act
to assert jurisdiction herein.
On December 18, 1968 , Trial Examiner George
H. O'Brien issued his Decision in the above-entitled
proceeding , finding that the Respondent had not
engaged in unfair labor practices as alleged in the
complaint and recommending that the complaint be
dismissed in its entirety, as set forth in the attached
Trial Examiner' s Decision . Thereafter, the General
Counsel filed exceptions to the Trial Examiner's
Decision and a supporting brief, and the Respondent
filed cross-exceptions and a supporting brief.
The National Labor Relations Board has
reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was
committed. The rulings are hereby affirmed. The
Board has considered the Trial Examiner 's Decision,
the exceptions and briefs, and the entire record in
the case, and hereby adopts the findings,
conclusions, and recommendations of the Trial
Examiner.
We agree with the Trial Examiner' s conclusion
that Respondent ' s conduct constituted lawful
primary activity and we therefore adopt his
recommendation that the instant complaint be
dismissed in its entirety. We also agree, essentially
for the reasons stated by the Trial Examiner, that
the Board has jurisdiction over the instant
proceeding . Further comment is necessary , however,
in view of the dissent 's contention that Section
8(bx4)(B) may not be invoked where , as here, the
primary and secondary employers are political
subdivisions which do not meet the statutory
definition of "employer" as set forth in Section 2(2)
of the Act.
Section 8(b)(4)(B), unlike Sections 8(a) and 9 of
the Act, contains no language limiting its scope to
disputes involving those who meet the statutory
definition of "employer." Instead, Section 8(b)(4)(B)
applies to alleged secondary activity affecting
"persons ." The definition of the term "persons"
appearing in Section 2(l) of the Act plainly includes
political subdivisions . Thus, the instant dispute falls
within the literal terms of Section 8(b)(4XB).'
Furthermore, the legislative history, in our opinion,
reveals an intention on the part of Congress that the
terms of Section 8(bx4)(B ) be given full effect in
protecting municipal and State governments from
secondary pressures . In 1959, that Section was
amended so as "to extend the protection of the Act
to public employers, railroads , or agricultural
enterprises without subjecting them to other
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner, and
hereby orders that the complaint herein be, and it
hereby is, dismissed.
MEMBER JENKINS , dissenting:
I cannot accept the majority's assertion of
jurisdiction over the instant picketing. The
underlying dispute is between the City of Juneau,
Alaska, and its employees. The alleged secondary
employer is the Alaska State Marine Highway
System , a Division of the Department of Public
Works of the State of Alaska. There is no other
employer party.
Section 2(2) and (3), respectively, of the Act we
administer specifically excludes any employer who is
a State or political subdivision thereof, and
individuals employed by them. The majority
apparently concedes , as it must , that neither of the
employer parties nor the employees involved herein
are "employers" and "employees ," as defined in
Section 2(2) and (3) of our Act. Though the
legislative history of Section 8(b)(4) indicates that
Congress intended to relieve exempt employers of
secondary pressures by unions who were subject to
the Act, nothing in that history shows any intention
to apply the prohibition of the Section in cases
where not only the boycotted employer is exempt
but the employees taking the action are also
employed by an exempt employer and thus are not
amenable to any other provisions of the Act. I am
unwilling to project the reach of the Act so far, in
the absence of a clear congressional mandate.
Assuming, however , as the majority apparently
does, that the foregoing explicit statutory exclusions
are not applicable for 8 (b)(4) purposes, and that the
Board somehow has discretion in the matter, the
assertion of jurisdiction in the circumstances here
present would not effectuate the policies of the Act.
Rather, the application of 8(b )(4), to the exclusion
of all other provisions of the Act with which the
'Respondent , on the basis of its representation of nongovernment
employees, is concededly a 'labor organization " within the meaning of
Section 2(5) of the Act. International Brotherhood of Electrical Workers,
etc. (B. B. McCormick and Sons, Inc.), 150 NLRB 363, 370-371.
'Remarks of Senator Goldwater, II Legislative History of the
Labor-Management Reporting and Disclosure Act of 1959, p. 1079, col. 3.
176 NLRB No. 121
890 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Board is entrusted, constitutes a clearly disparate
application because the Board does not and cannot
apply 8(a) provisions where the employer involved
falls within the exclusions defined in 2(2) of the Act.
More specifically, the statutory scheme defined in
Section 1(b) of our Act is to provide orderly
procedures for the purpose of preventing
interference by either employers or employees with
the prescribed legitimate rights of the other, and a
labor dispute between an exempt employer and its
employees cannot be resolved by the Board within
the statutory framework, for the Board is powerless
to afford and protect rights of employees which
would otherwise be guaranteed them by Section 7 of
our Act.
For the foregoing reasons, I would not assert
jurisdiction.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
GEORGE H. 0 BRIEN, Trial Examiner: Upon a charge
and an amended charge filed by the City of Juneau,
Alaska, on July 3 and August 14, 1968,' respectively, the
General Counsel of the National Labor Relations Board,
acting through the Acting Regional Director for Region
19 (Seattle, Washington) issued a Complaint and Notice
of Hearing on August 21 and an Amended Complaint and
Notice of Hearing on September 17. The Complaint as
amended alleges , in substance , that Local No. 16,
International Longshoremen and Warehousemen ' s Union,
herein called Respondent, threatened to picket ferry boats
owned and operated by Alaska State Marine Highway
System, a Division of the Department of Public Works of
the State of Alaska, threatened to appeal to ferry boat
crews to refuse to berth the vessels or to perform services
at the Juneau City Dock, did appeal to ferry boat crews
and their union (Inland Boatmen's Union of the Pacific,
herein called IBU) to refuse to perform services at the
Juneau City Dock, and did picket a ferry boat on July 2,
1968 from a small boat in open water about half a mile
from the Juneau City Dock. The Amended Complaint
concludes with the allegation that Respondent induced
individuals employed by the State of Alaska to refuse to
perform services for the State, and threatened, coerced,
and restrained the State and the City with the object of
forcing or requiring the State of Alaska to cease doing
business with the City of Juneau, and thereby violated
Section 8(bx4)(i)(iiXB ) of the Act. Respondent's answer
denies any violation of the Act and avers, as affirmative
defenses, that the National Labor Relations Board is
without jurisdiction, and that the Respondent's conduct
was in all respects primary and protected by Sections 7, 8,
and 13 of the Act and the Eirst Amendment to the
Constitution of the United States.'
Pursuant to due notice, a hearing was held before me in
the United States Court House in Juneau, Alaska, on
October 8 and 9. All parties appeared at the hearing and
were given full opportunity to participate, to adduce
relevant evidence, to examine and cross-examine
witnesses, to argue orally, and to file briefs. Briefs were
filed by the General Counsel and by counsel for
Respondent and have been carefully considered by me in
arriving at my decision.
Upon the entire record, including the briefs, and from
my observation of the demeanor of the witnesses while
testifying under oath, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE STATE OF ALASKA AND THE
CITY OF JUNEAU
Alaska State Marine Highway System, a division of the
Department of Public Works of the State of Alaska, is a
political subdivision of the State of Alaska, which owns
and operates ferry boats operating between ports in the
States of Washington and Alaska. The City of Juneau is a
political subdivision of the State of Alaska. It owns and
operates the Municipal Airport at Juneau, Alaska, and in
the course of said operations sells landing and terminal
facilities to interstate air carriers , such as Western
Airlines, of a value exceeding $50,000 per annum.
II. THE LABOR ORGANIZATIONS INVOLVED
Respondent and IBU are labor organizations within the
meaning of Section 2 (5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issues
1. Whether the Board has, or may assert jurisdiction
over a labor organization, the acts of which did not affect
any "employer" or any "employee" in a proceeding to
which no "employer" is a party, and by which no
"employer" is affected.
2. Whether Respondent induced or encouraged any
individual employed by a person engaged in commerce or
in an industry affecting commerce to refuse to perform
services.
3. Whether Respondent threatened, coerced, or
restrained any person engaged in commerce or in an
industry affecting commerce.
4. Whether Respondent, by picketing in a motorboat,
at a distance from the site of its dispute with the primary
"person" evidenced an object of enmeshing the secondary
"person" in a dispute not its own.
5. Whether picketing by Respondent on July 2, 1968, at
the shoreside of City Dock, and from a motorboat, was
primary activity protected by the proviso to Section
8(b)(4)(B) of the Act.
'Dates are 1968 , unless otherwise specified
'As subsidiary grounds for dismissal Respondent avers that the State of
Alaska and City of Juneau constitute one person under the principles of
Municial Corporation Law, that the State of Alaska is an ally of the City
of Juneau , hence is nit statutorily shielded as a neutral , that the facts of
this case present no more than an ordinary jurisdictional dispute, that
Section 8(bX4XD) is not applicable because it incorporates the word
"employer" and that if 8(bx4)(D ) were applicable Respondent is entitled to
the work My disposition of the primary issues removes these subsidiary
matters from issue.
B. The Testimony
In 1963 the State of Alaska instituted a ferry system to
operate between ports on the Inland Passage. When
officials of the City of Juneau learned that the State did
not plan to have the ferries dock at the Juneau waterfront,
but proposed to serve the City by a dock at Auke Bay, 15
LOCAL 16, LONGSHOREMEN
protest . Following negotiations between the City and the
State a "Use Agreement" was signed on May 1 , 1963, by
the Governor of the State and by the acting Mayor of the
City. The City agreed to construct and maintain terminal
facilities and specifically agreed to bear the "tie up and
cast off costs" of the ferries at the terminal. The State
agreed that for 20 years it would pay an annual rental of
one-twentieth of the cost of construction to the City for
the use of the terminal . The State was guaranteed the use
of the premises during the ferries' calls, and the City was
left free to permit its use by others where it would not
interfere with the operation of the ferries.
Juneau is a seaport and normal dockside work is
performed by members of Respondent under collective
bargaining agreements . These agreements required that
for "tie up and cast off" there be employed a minimum
crew of five men for a minimum of four hours to each. As
a result of negotiations between the Respondent and the
City a memorandum was signed on March 27, 1963. The
memorandum was entitled : "THIS IS NOT A
CONTRACT BUT ' A MUTUAL
UNDERSTANDING." It incorporated by reference all
terms of the local Longshore agreements except for those
relating to tie up and cast off time and pay. It specifically
provided that , for the ferries only, the minimum should be
two men for two hours pay each. A bond issue was
authorized by general election, the ferry terminal was
constructed , called by the name of the City Dock, and the
State ferries called regularly at the City Dock from
Autumn 1963 at least through 1967. At each call two
longshoremen were dispatched by Respondent and each
received from the City, pay for 2 hours' time.
Under date of April 30, 1968, the City Manager,
Herbert W. Lehfeldt , sent a letter to Respondent , reciting:
A review of City records reveals that the City of
Juneau does not at this time have a contract for the
tie-up of the State of Alaska Ferry Boats.
Inasmuch as the State Ferries are not using the City
Dock at this time and the City will not be required to
provide tie-up services until after the reconstruction of
the dock is completed , the City will not be needing
I.L.W.U. members to tie up the ferries.
In the future all ferry tie-ups will be performed by
City of Juneau personnel.
Should you have any questions regarding this matter
please feel free to contact me.
Pursuant to this invitation , Respondent ' s secretary,
Tom Scott , and a member of its labor relations
committee, Mr. Vollenweeder, met with City Manager
Lehfeldt and City Attorney, Joseph Henri, at the City
Hall. Lehfeldt testified that the union representatives
"indicated" that if the City persisted in its refusal to
employ longshoremen , Respondent would picket the
ferries . Henri testified that there was no mention of
picketing by either of Respondent's representatives at this
first City Hall meeting. Neither Scott nor Vollenweeder
was called as a witness.
On May 24, Respondent placed two pickets at the City
Hall carrying signs , the legend on which read:
CITY OF JUNEAU
REFUSE TO HONOR
ILWU LOCAL 16.
891
Pickets carried these signs at the City Hall from 11:30
a.m. to 1:30 p.m . 5 days a week until September 11.
There was no picketing on Saturday or Sunday and there
was no picketing on primary election day.
There was a second meeting at the City Hall on the
morning of June 17 which was attended by City Manager
Lehfeldt , City Attorney Henri, Respondent's president,
Guy, and by Ferral Campbell , District Representative of
the International Union of Operating Engineers.
Campbell , who had represented the Engineers in Alaska
for 21 years , and who had also been a special
representative of the Inland Boatmen's Union from 1963
to 1965 , arranged the meeting in an attempt to mediate
the dispute between the Respondent and the City.
Campbell did not then represent , nor had he at any time
prior thereto represented , Respondent . Henri testified that
Campbell stated, that if the ferries came in at City Dock,
Respondent would picket there and would use boats to get
right next to the ferry boat , Henri further testified that
Guy was in the conversation , and agreed that that was
what Respondent would do , and that Guy did not
repudiate Campbell's statement that Respondent would
use boats with which to picket.
Campbell denied making the statement attributed to
him by Henri. Guy, though not questioned specifically
about the June 17 meeting in City Hall did testify that he
told both the City and the State Ferry service that there
would be picketing at the City Dock if an attempt was
made to bring in a ferry without longshoremen to handle
the mooring lines . Lehfeldt, when questioned about the
second meeting at City Hall testified that Guy and Scott
"indicated" that if the City failed to meet Respondent's
demands for employment "they would picket the City
Dock and the ferries". When asked on cross -examination
whether it was Campbell, and not Scott who attended the
second meeting he reaffirmed his testimony and stated
that it was some later meeting which Campbell attended.
Lehfeldt was not asked to state his recollection of
anything that Campbell said at any meeting.
On the afternoon of June 17 the same four conferees
met in the office of the Commissioner of Public Works
for the State of Alaska with Commissioner Harold
Strandberg , Deputy Commissioner Linn Forest, and
Gregory O'Claray, Alaska Representative for Inland
Boatmen's Union of the Pacific . Henri testified that
O'Claray stated that Respondent had asked for the help
of the IBU in its dispute with the City and that IBU was
going to give Respondent that help, and that Guy sat
mute when the statement was made by O'Claray.
O'Claray denied that he made the statement attributed to
him by Henri . Guy freely admitted that he had talked to
O'Claray five or six times about the problem raised by the
City's April 30 letter but denied that he ever asked
O'Claray or any member of the IBU for help in
Respondent's dispute with the City. Lehfeldt testified that
he did not recall any statement by any representative of
the Respondent about picketing the ferries if they were to
use the City Dock . Neither Strandberg nor Campbell was
questioned regarding any statement by O'Claray, and
Forrest did not testify.
A second meeting was held in Commissioner
Strandberg 's office on June 28 . The meeting was arranged
by Representative Bill Ray, a member of the State
Legistature. Those in attendance were : Commissioner
Strandberg , Walter Cublay , assistant to the Governor,
George Benesch , Assistant Attorney General , Captain
Merle Adlum, head of the Inland Boatmen ' s Union in
892 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Seattle , Gregory O'Claray, Joe Guy, and Bill Ray. Ray
called the meeting because the State wanted to know what
would happen if they brought a ferry into the downtown
dock and he brought the parties together to try to work
ouf some agreement so Juneau could have regular
downtown tie-up service. Ray put a direct question to
Captain Adlum : "Would the sailors respect a
Longshoremen's picket line?" Adlum replied according to
the credited testimony of Commissioner Strandberg,
corroborated by the testimony of Guy, that each
individual sailor would make his own decision as to
whether or not to respect the picket line, that the Inland
Boatmen ' s Union would not take any position and would
not give any instructions to its members . Commissioner
Strandberg further testified:
There was no doubt in my mind what Mr. Guy was
going to do but I can't remember whether Mr. Guy
came out and said flatly, "If you bring a vessel into the
port we are going to picket it" I couldn't testify to that,
but I most assuredly had the impression that the union
was going to picket the dock if we brought the vessel in.
Henri testified that Captain Adlum stated : "Local 16 had
requested the help of his union and his union was going to
give them the help." This testimony is not corroborated
by any other participant . Captain Adlum did not testify.
At various times City Manager Lehfeldt urged
Commissioner Strandberg by telephone and by letter to
send a ferry in to the City Dock and assured Strandberg
that the City was willing and able to provide tie-up
service. Strandberg, though he believed this would be an
exercise in futility, pursuant to advice from an Assistant
Attorney General ordered Captain Herbert J. Lockert,
Director of the Division of Marine Transportation for the
State of Alaska, to bring a ferry in to City Dock as soon
as possible. Captain Lockert directed the master of the
ferry, Matanuska, to call at City Dock on the morning of
July 2, after it made its regular stop at Auke Bay.
On July 1, late in the afternoon, Mr. Lehfeldt
instructed Grant K. Ritter, public works foreman for the
City of Juneau, to install ropes on the land side of the
City Dock about 50 feet back from its water edge. The
work was completed about 4:30 p.m. "No trespassing"
signs were hung on the ropes. Lehfeldt testified that the
ropes were put up to keep Longshoremen pickets and
other unauthorized personnel off the dock. Guy, when he
observed the ropes, instructed the men who had been
picketing City Hall to be at the Dock the next day, and to
picket as close as they could to the ropes when the
Matanuska came in . Guy also arranged with a neighbor to
have the use of his small motor boat which was moored in
Douglas harbor, across the Gastineau Channel from
Juneau. On the morning of July 2 Guy and his neighbor
drove across the bridge to Douglas , entered the neighbor's
boat and motored back to the Juneau side. They selected
a vantage point where they would be able to observe
whether the Matanuska rounded the end of Douglas
Island and came up the channel to Juneau , or whether it
would continue on its regular route south to Ketchikan.
Guy had a picket sign in the boat, identical with the signs
carried at City Hall.
As the Matanuska rounded the end of Douglas Island
and proceeded north in Gastineau Channel the small boat
left the shore. At about the point where the Matanuska
entered the Juneau City limits, one half mile from the
Dock and 200 yards from the ferry, Guy raised his picket
sign and accompanied the ferry as it made its approach.
As the two vessels sailed up to the dock together, the
small boat at all times maintained a safe distance. When
the Ferry approached the dock, Lehfeldt, standing by a
bollard on the water's edge, wearing a business suit, called
to the seaman in the bow to throw him the heaving lines.
Lehfeldt heard the Captain on the bridge call to the
seaman to throw the heaving line. The bos'n came up to
the seaman and spoke to him. The bos'n then went on the
Bridge and spoke to the ferry' s master , Captain Johnson.
The bos'n then returned to the bow (where the seaman
was still standing) and threw one heaving line to Lehfeldt.
Lehfeldt pulled in the mooring hawser, and placed the
loop over a bollard. The seaman then threw the second
heaving line, Lehfeldt pulled in the second bow hawser
and placed the loop over a bollard. The stern line was
thrown to City Attorney Henri who attached the stern
hawser to a bollard and the ferry was moored. As the
boat approached, the two pickets remaining outside the
ropes, raised their signs , and Guy, in his boat, holding on
to a piling at the end of the dock held his sign aloft.
Captain Lockert was standing on the dock inside the
roped off area watching the operation and talking to
James Doss, manager of Universal Services which
supplied provisions to the ferries. When the Matanuska
took on provisions at Auke Bay the chief steward had
phoned Doss that he was short of butter and asked to
have forty pounds delivered to him at City Dock. Doss'
warehouseman handed the butter over the rope in the
presence of the pickets as the ferry was tying up. Lockert
told Doss that he should not put the butter on board, and
Doss took it back to his store. After the ferry was moored
the automobile ramp was lowered and Lockers walked on
board. Captain Lockert and Captain Johnson entered the
Captain's room where Assistant Attorney General
Benesch was waiting . Lockert testified:
Q. (by Mr. Nielson) Can you tell us as best you can
recall what you said and what the captain said and
what Mr. Benesch said?
A. The substance was what our purpose was in
bringing the vessel in. Obviously we had taken care of
normal business at Auke Bay, so this was a test to see
what would happen. And in our opinion, jointly
expressed, we didn't believe that anything particularly
had been proved. So at the suggestion of Mr. Benesch,
he asked the captain to order the baggage cart taken
ashore. No particular purpose, but to see if our crew
would or would not go across the picket line.
Lockert then went below and spoke to the bos'n. The
bos'n told Lockert that he had received the order and had
refused to obey. Lockert testified: "Well, the bos'n seemed
a little nervous. I assured him that he and I had no
quarrel having refused an order, we had to find out what
was going to happen. He understood this, and I had a few
words'of conversation with the crew members and I left."
The ferry remained at City Dock from 30 to 40
minutes. There is no evidence that the waiting room was
opened or that the ticket booth was manned. It did not
take on or discharge either passengers or cargo. It was not
scheduled to do any business at City Dock. Picketing took
place only while individuals, Henri and Lehfeldt,
employed by the City were performing the services
required of longshoremen by the City. These are, to be on
the dock when the vessel arrives, to receive the heaving
lines, to pull the mooring hawsers ashore and throw the
hawser loops over bollards, to detach the heaving lines
and carry them back on shipboard, to stand by until the
vessel is ready to sail, and to throw off the hawsers when
they are slacked by the boat's crew preparatory to sailing.
LOCAL 16, LONGSHOREMEN 893
C. Conclusions
1. Jurisdiction
The language of Section 8(b)(4)(i) and (ii)(B ) was first
proposed by Senator Dirkson on April 21, 1959 as an
amendment to the Kennedy - Ervin Bill then under
consideration . Senator Goldwater , speaking in support of
the Dirkson amendment , stated:
The word "person" is used in the proposed amendment
to the secondary boycott provision rather than
"employer" in order to extend the protection of the
secondary boycott provisions of the act to public
employers, railroads , or agricultural enterprises without
subjecting them to other provisions of the act.
The language proposed by Mr. Dirkson was adopted and
incorporated in the first draft of the Landrum -Griffin Bill
introduced to the House on July 27 , 1959. The language
of the Dirkson proposal became law on September 14,
1959 when the final draft of the Landrum -Griffin Bill was
signed by President Eisenhower.
There is no ambiguity in the statute , and the comment
of Senator Goldwater demonstrates that its purpose was
to extend to political subdivisions, such as the City of
Juneau , protection from the secondary boycott activities
of labor organizations.
Respondent seeks to evade this clear language and
express intent by one principal and one subsidiary
argument . His principal argument is based on the holding
in N. L. R. B. v. International Longshoremen's
Association , 332 F . 2d 992 (C.A. 4, 1964 ), that a "labor
dispute" is an indispensable prerequisite to exercise of
Board jurisdiction . There the Court, denying enforcement
to Local 1355 International Longshoremen 's Association
(Maryland Ship Ceiling Company , Inc.), 146 NLRB 723,
held that a union ' s refusal to refer men to ships trading
with Cuba was in consequence of a political controversy
and was not part of a "labor dispute."
Respondent , after citing and discussing the definitions
of "employer ," "employee," and "labor dispute ," states in
his brief:
These pertinent statutory definitions, when read
together make it plain that no "labor dispute" exists in
the present case over which the Board may assert
jurisdiction . For a "labor dispute" to exist , there must
be a controversy over the "terms and conditions of
employment ." Section 2(13) In order to have such a
controversy , an absolute prerequisite is an "employer"
and "employees". In the present case , there is no
"employer," and there are no "employees " within the
meaning of Sections 2(2) and 2(3) of the Act.
Therefore , since there is no employer subject to Board
regulation and no employees subject to Board
jurisdiction , it is impossible, under the Act, to have a
"labor dispute ." There being no labor dispute , no basis
exists for the Board to assert jurisdiction.
This argument has two fatal flaws : ( I) The Board
specifically held in National Maritime Union of America,
147 NLRB 1243, 1246, fn. 9 (June 31, 1964): "the
existence of a dispute with an employer is not a
precondition for application of the Act' s boycott
provisions," and (2 ) the controversy between the City of
Juneau and Respondent is a "labor dispute" as defined in
Section 2(9) of the Act , which reads in full:
The term "labor dispute" includes any controversy
concerning terms, tenure or conditions of employment,
or concerning the association or representation of
persons in negotiating , fixing , maintaining , changing, or
seeking to arrange terms or conditions of employment,
regardless of whether the disputants stand in the
proximate relation of employer and employee.
The City of Juneau and Respondent are "persons"
engaged in a "controversy" over "tenure" of
"employment." National Maritime Union of America v.
N.L.R.B., 342 F.2d 538 (C.A. 2, 1965), enfg . National
Maritime Union of America, supra.
Respondent as a second and subsidiary ground for
dismissal states:
The Board has regularly maintained a series of tests by
which it decides whether to exercise jurisdiction in a
given case. These standards have always been based
upon the effect on commerce an employer 's operation
will have.
However the Board has never issued standards for
asserting jurisdiction over political subdivisions. The
reason is clear - the language and intent of the Act
exclude governmental units from coverage. In short,
whether the Board will assert jurisdiction is determined
by applying certain standards to the particular employer
involved. In the present case , none of the Board's tests
are applicable because there is no employer. Hence, the
Board is without jurisdiction and the Complaint should
be dismissed.
The argument ignores the fact that the Act does not
preclude the Board from broadening the scope of its
discretionary jurisdiction , and it has done so in several
cases following the enactment of Section 14(c)(l) of the
Act, September 14, 1959. Among these cases are: Carol
Management Corporation, 133 NLRB 1126; Lansing
Automakers Federal Credit Union, 150 NLRB 1542; El
Dorado Inc., 151 NLRB 579; Parkview Gardens, 166
NLRB No. 80; and Butte Medical Properties , 168 NLRB
No. 52.
The record establishes that the business of Juneau at its
Municipal Airport alone, would satisfy published
standards for asserting jurisdiction over Respondent, were
Juneau an "employer." In Local 456 Teamsters (Strauss
Paper Co.), 149 NLRB 49, fn. 1, (1964), the Board held
that jurisdiction should be asserted where the primary
employer is engaged in commerce and that there was no
requirement that the secondary employer be engaged in
commerce or in an industry affecting commerce. In
H.P.O. Service, Inc., 122 NLRB 394, the Board
announced that it would thenceforward assert jurisdiction
over any "enterprise" which functioned as an essential
link in the transportation of passengers or commodities in
interstate commerce, and which derived at least $50,000 in
gross revenues per annum from such operations. The
Juneau Municipal Airport is an "essential link" which
meets the dollar requirement of the H.P.O. standard.
Finally, Juneau, the Capital City of Alaska has no
highway or rail connection with any other part of the
State. It is dependent for its very existence upon air and
waterborne transportation . The importance to the
community of regular convenient ferry service is self
evident . Congress in outlawing the secondary boycott in
1947 sought to protect the public interest by prohibiting
unions from enmeshing neutral "employers" in disputes,
over the resolution if which they had no control . In 1957
Congress sought further protection of the public interest
894 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by prohibiting unions from enmeshing "persons" such as
the State of Alaska in such disputes. The Board, in the
exercise of its discretion should assert the full extent of its
statutory power to ensure that the operations of the State
Ferries are not impeded by any secondary boycott.
I find that the City of Juneau and the State of Alaska
are persons engaged in commerce and in an industry
affecting commerce and that it would effectuate the
purposes of the Act to assert jurisdiction herein.
2. The first meeting in City Hall
The Respondent through its representatives Scott and
Vollenweeder , at the first meeting in City Hall did not
threaten "to picket the ferries." I base this finding on the
vagueness of Lehfeldt' s recollection , his use of the word,
"indicated ," and on the fact that his City Attorney,
Henri , testified that there was no mention of picketing at
this meeting.
3. The second meeting in City Hall
Campbell did not represent Respondent at the June 17
meeting in City Hall. Campbell did not state at that
meeting that the Respondent would use boats with which
to picket. I base this finding in part upon Campbell's
denial and in part on the failure of Lehfeldt to
corroborate Henri in this particular. The General Counsel
argues that since a picket boat was used on July 2, the
threat must have been made, and that Guy's failure to
disavow the threat makes Respondent liable. I cannot
accept this argument. Guy testified, and I credit his
testimony that the decision to use a picket boat was made
only after Lehfeldt had erected ropes to keep
Respondent's pickets off the dock. I find that Guy did
state that Respondent would picket at City Dock if an
attempt was made to bring in a ferry without
longshoremen to handle mooring lines. I find that this
statement by Guy was a statement of intent to engage in
protected primary picketing.
4. The first meeting in the commissioner's office
O'Claray did not represent Respondent at the June 17
meeting in Commissioner Strandberg's office. O'Claray
did not state that Respondent had requested help from the
Inland Boatmen and that the Inland Boatmen had
promised to help Respondent. I base this finding on the
denials of Guy and O'Claray and on the failure of any of
the parties present to corroborate Henri.
5. The second meeting in the commissioner 's office
Captain Adlum did not represent Respondent at the
June 28 meeting in Commissioner Strandberg's office.
Captain Adlum did not state at that meeting that
Respondent had requested help of the Inland Boatmen
and that the Inland Boatmen were going to give
Respondent the help requested. I base this finding on the
failure of any other participant to corroborate Henri on
this point, and on the straightforward and wholly credible
testimony of Commissioner Strandberg, a completely
disinterested witness, as to what Captain Adlum did state.
6. The picketing on July 2
The Respondent's primary object is to regain for its
members the work of tying up and casting off the ferries.
Part of this work was to receive a heaving line when
thrown to the dock by a member of the ferry's crew. Since
the City was required by its contract with the State to tie
up and cast off the ferries, this same work constituted part
of "doing business" within the meaning of the Act.
Picketing in these circumstances constituted inducement of
an individual to refuse to perform services and constituted
coercion of persons engaged in commerce or in an
industry affecting commerce with an object of forcing or
requiring one person to cease doing business with another
person . The General Counsel has proved all the elements
of Section 8(b)(4)(i)(ii)(B); i.e., jurisdiction, means, and
object. It does not follow, however that he has proved any
violation of the Act.
The Supreme Court in Local 761, International Union
of Electrical. Radio & Machine Workers AFL-CIO v.
N.L.R.B, 366 U.S. (the General Eectric case), states at
681:
The 1959 amendments to the National Labor Relations
Act, which removed the word "concerted" from the
boycott provisions, included a proviso that "nothing
contained in this clause (B) shall be construed to make
unlawful, where not otherwise unlawful, any primary
strike or primary picketing." 29 U.S.C. (Supp. I, 1959)
Sec. 158 (b)(4)(B). The proviso was directed against the
fear that the removal of "concerted" from the statute
might be interpreted so that "the picketing at the
factory violates Section 8(b)(4)(A) because the pickets
induce truck drivers employed by the trucker not to
perform their usual services where an object is to
compel the trucking firm not to do business with the
manufacturer during the strike."
In United Steelworkers of America (Carrier
Corporation) v. N.L.R.B, 37h U.S. 492, the Supreme
Court held, at 499:
The primary strike, which is protected by the proviso is
aimed at applying economic pressure by halting the
day-to-day operations of the struck employer. But
Congress not only protected the right to strike; it also
saved "primary picketing" from the secondary ban.
Picketing has traditionally been a major weapon to
implement the goals of a strike and has
characteristically been aimed at all those approaching
the situs whose mission is selling, delivering or
otherwise contributing to the operations which the strike
is endeavoring to halt. [Emphasis supplied.]
"Important as is the distinction between legitimate
`primary activity' and banned `secondary activity', it does
not present a glaringly bright line. The objectives of any
picketing include a desire to influence others from
withholding from the employer their services or trade."
(General Electric Case, supra, at 673) And, "However
difficult the drawing of lines more nice than obvious, the
statute compels the task. Accordingly, the Board and the
Courts have attempted to devise reasonable criteria
drawing heavily upon the means to which a union resorts
in promoting its cause. . 'in the absence of admissions by
the union of an illegal intent, the nature of acts performed
shows the intent.' " (General Electric Case, supra at 674.)
The first "means" resorted to by the Respondent was
picketing at the dock, as close as possible to the point at
which persons employed by the City were actively engaged
in performing longshore tasks, and the signs used
LOCAL 16, LONGSHOREMEN 895
identified the primary "person ." The second "means" was
the picketing of the Matanuska from a small boat in
Gastineau Channel . The City had erected ropes which
prevented the Union from stationing pickets at the precise
situs of the dispute , i.e., the waterline of City Dock. The
General Counsel points out that this did not prevent
Respondent from picketing by boat at the waterline. He
argues that the fact that the picket sign was raised at a
point half a mile from the dock, while the Matanuska was
in open water , evidenced an unlawful object and deprived
Respondent of the protection of proviso . This argument is
without validity . The Board held in Newspaper and Mail
Deliverers ' Union of New York ( Interborough News), 90
NLRB 2135, that it was not unlawful for a union to
address appeals to employees of secondary employers at
points remote from a primary picket line so long as such
appeals " invited action only at the premises of the
primary employer ." The General Counsel seeks to
distinguish Interborough News and related cases, stating:
These cases deal only with situations where the
inducement was for refusals of pickups or deliveries at a
single situs , the natural incidents of a primary
picketline , and not with inducements which involve
work refusals at a common situs which do not involve
business with the primary person alone , as such pickups
and deliveries do. In other words, if all the Ferry
System was doing when it made a call at the City Dock
was making a pickup or delivery as customer or
supplier for the City, these cases might operate as
defense . Since it is clear that the Ferry System was
doing more than that , or at least trying to more than
that , these cases are inapposite.
That this is a distinction without a difference is made
evident by the holding of the Supreme Court in
Steelworkers v. N.L.R .B. (supra ), that primary picketing,
protected by the proviso is "aimed at all those
approaching the situs whose mission is selling , delivering
or otherwise contributing to the operations which the
strike is endeavoring to halt."
The picketing by boat was conducted only while
persons employed by the City were performing longshore
tasks on the dock , and the picket sign identified the City
as the primary person. The normal course of the
Matanuska from Auke Bay to Juneau took it around the
west and south shores of Douglas Island thence northerly
up Gastineau Channel to City Dock . Ferries which do not
call at City Dock , after clearing the southern end of
Douglas Island proceed in a southerly direction through
Stephens Passage , and do not enter Gastineau Channel.
Respondent did not attempt to divert the Matanuska from
its course. Guy stationed himself at a point where he
could observe whether the ferry turned north toward
Juneau, or continued on a southerly course. Only after the
ferry was committed in a Juneau landing and at the
approximate point where it crossed the Juneau City limits,
did he raise his picket sign , and then he took care not to
interfere with the operation of the ferry.
At all times, while the picketing continued it was within
the power of the City to,stop the picketing and put an end
to the dispute. The City Manager, who was on the dock,
could have called to Guy, in the boat, to tell the
longshoremen pickets to drop their signs and man the
mooring lines . The pressure of the picketing was direct
and primary.
I find that the Respondent's picketing at the dock and
on the water was protected and made lawful by the final
sentence of Section 8(b)(4xi)(ii)(B) of the Act: "Provided,
that nothing contained in this clause (B) shall be construed
to make unlawful, where not otherwise unlawful, any
primary strike or primary picketing:" In connection with
this finding, I specifically find that but for the City's
action in roping off the dock, there would have been no
picketing by boat.
CONCLUSIONS OF LAW
1. The State of Alaska and the City of Juneau are each
a person engaged in commerce and in operations affecting
commerce within the meaning of Section 2(6) and (7) of
the Act.
2. The State of Alaska and the City of Juneau are each
a person engaged in commerce and in an industry
affecting commerce within the meaning of Section
8(b)(4xi) and (ii)(B) of the Act.
3. International Longshoremen and Warehousemen's
Union Local No. 16 is a labor organization within the
meaning of Section 2(5) of the Act.
4. The allegations of the Amended Complaint that
International Longshoremen and Warehousemen ' s Union
Local No. 16 has engaged in unfair labor practices within
the meaning of Section 8(b)(4)(i) and (ii)(B) of the Act
have not been sustained.
RECOMMENDED ORDER
It is recommended that the complaint be dismissed in
its entirety.