National Maritime Union of America, Etc.

National Labor Relations Board - Board Decisions

Jun 11, 1965

152 N.L.R.B. 1447 (N.L.R.B. 1965)

NATIONAL MARITIME UNION OF AMERICA, ETC. 1447
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify you that:
WE WILL, upon request, bargain collectively with International Association of
Machinists (AFL-CIO) as the exclusive bargaining representative of the employ-
ees in the unit set forth below, and if an understanding is reached, WE WILL
reduce it to writing and sign it. The bargaining unit consists of all service
department employees, including mechanics, lubemen, mechanics helpers, por-
ters, service writers, and parts department employees, but excluding all other
employees, office clerical employees, new- and used-car salesmen, watchmen,
guards, and supervisors as defined in the National Labor Relations Act.
WE WILL offer to Bernard Paradis, Terry Friesner, and Allen Buell immediate
and full reinstatement each to his former or substantially equivalent position and
make each whole for any loss of earnings suffered by reason of discharge.
WE WILL NOT by refusing to bargain with the above-named Union, by threaten-
ing discharge for lawful picketing, or by saying that lawful picketing will result
in employees being blackballed, or in any other manner interfere with, restrain,
or coerce our employees in the exercise of their right to self-organization, to
form, join, or assist International Association of Machinists (AFL-CIO), or any
other labor organization, to bargain collectively through representatives of their
own choosing, to picket in a lawful manner, or to engage in other concerted
activities for the purpose of collective bargaining or other mutual aid or pro-
tection, or to refrain from any or all such activities except to the extent that such
right may be affected by an agreement requiring membership in a labor organi-
zation as a condition of employment as permitted by Section 8(a) (3) of the Act.
Upon unconditional application, WE WILL offer any of the employees who be-
gan a strike on October 14, 1963, immediate and full reinstatement to his former
or substantially equivalent position without prejudice to seniority or other em-
ployment rights and privileges, discharging, if necessary, any person hired after
the onset of the strike. WE WILL make any such applicant whole for any loss of
pay suffered by reason of our refusal to reinstate him within 5 days of such
application.
DWIGHT-EUBANK RAMBLER, INC., d/b/a AL ORTALE RAMBLER,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
NOTE.-We will notify any of the above-named employees now serving in the
Armed Forces of the United States of the right to full reinstatement upon application
in accordance with the Selective Service Act and the Universal Military Training and
Service Act of 1948, as amended, after discharge from the Armed Forces.
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, 849 South
Broadway, Los Angeles, California, Telephone Number 688-5204, if they have any
questions concerning this notice or compliance with its provisions.
National Maritime Union of America, AFL-CIO, Rick Miller, Its
National Vice-President , and Robert Collileux , Its Agent I and
Farmers Union Grain Terminal Association , a Corporation.
Case No. 18-CC-165. Jwne 1111965
DECISION AND ORDER
On March 9, 1965, Trial Examiner Leo F. Lightner issued his Deci-
sion in the above-entitled proceeding, finding that the Respondent had
1 As amended at the hearing.
152 NLRB No. 149.
1448 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
engaged in certain unfair labor practices, and recommending that it
cease and desist therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision. Thereafter, the
Respondent filed exception to the Decision with a supporting brief
and a request for oral argument. The Charging Party filed an answer-
ing brief, and also requested oral argument .2
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Members Fanning, Brown, and Jenkins].
The 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 Decision,
the exceptions, the briefs, and the entire record in this case, and hereby
adopts the findings, conclusions, and recommendations of the Trial
Examiner .3
ORDER
Pursuant to Section 10 (c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby adopts as its
Order the Order recommended by the Trial Examiner, and orders that
Respondent, National Maritime Union of America, its officers, agents,
and representatives, and Rick Miller, its national vice president, and
Robert Collileux, its agent, shall take the action set forth in the Trial
Examiner's Recommended Order.
3 As the record, exceptions , and brief adequately set forth the issues and positions of
the parties , the requests for oral argument are hereby denied.
S We consider it unnecessary for Trial Examiners to discuss the relative merits of
parties' briefs . We do not, of course , adopt footnote 2 of the Trial Examiner 's Decision.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon a charge filed on August 10, 1964, and amended on August 27, 1964, by
Farmers Union Grain Terminal Association, herein referred to as Farmers, Charging
Party herein, the General Counsel of the National Labor Relations Board issued a
complaint, dated September 3, 1964 , alleging that the Respondent, National Mari-
time Union of America, AFL-CIO, herein referred to as NMU by its agents, Rick
Miller, its national vice president,' and Robert Collileux, herein referred to as Miller
and Collileux, had engaged and were engaging in unfair labor practices within the
meaning of Section 8(b)(4),(i) and (ii) (B) of the National Labor Relations Act,
as amended (29 U.S.C. Sec. 151 et seq.), herein called the Act.
Pursuant to due notice, a hearing was held before Trial Examiner Leo F. Lightner
in Minneapolis, Minnesota, on November 5, 1964. The parties waived oral argu-
ment and briefs filed by the General Counsel, Respondent, and Charging Party have
been carefully considered.2
'Amended during the hearing to correctly reflect capacity.
a The parties are commended for the excellence of the briefs , which have been most
helpful. In view of the Board 's mounting caseload , it is most unfortunate that briefs of
equivalent quality, from General Counsel's representatives , have been the exception rather
than the rule, within the limit of my experience
NATIONAL MARITIME UNION OF AMERICA, ETC . 1449
Upon the entire record in the case and from my observation of the witnesses, I
make the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE EMPLOYERS
The following jurisdictional facts are undisputed.
Farmers is engaged at St. Paul, Minnesota, in the purchase and sale of grain and in
the operation of grain elevators and the storage and shipment of grain and related
products. In the operation of its business Farmers annually ships grain valued in
excess of $20 million from its St. Paul, Minnesota, terminal to States other than the
State of Minnesota.
Mid-America Transportation Company, herein called MAT, a Tennessee corpora-
tion, with its principal office in Memphis, Tennessee, or St. Louis, Missouri,3 and is
engaged in transportation by barge of products and commodities on inland waterways
between and through various States of the United States. During the past year MAT
derived gross revenue in excess of $100,000 for services performed in the interstate
transportation of goods between various States of the United States.
Minnesota Harbor Service, Inc., herein called Harbor, is engaged at St. Paul,
Minnesota, in the towing of barges and in the repair, cleaning, and service of barges.
During the past year, in the course and conduct of its operations, Harbor derived
gross income in excess of $50,000 from said operations which were performed pur-
suant to contracts or arrangements with Farmers and other employers engaged in
commerce, thus constituting a link in the chain of interstate commerce.
Twin City Barge & Towing Co., herein called Towing, is engaged at St. Paul,
Minnesota, in the business of providing towing and other services for barges and
vessels. During the past year in the course and conduct of its operations Towing
derived gross income in excess of $50,000 from said operations which were per-
formed pursuant to contracts or arrangements with MAT and other employers
engaged in commerce, thus constituting a link in the chain of interstate commerce.
It is alleged, and the allegations are not disputed, and I find that Farmers, MAT,
Harbor, and Towing are now, and have been at all times material herein, employers
engaged in commerce within the meaning of Section 2(6) of the Act .4
H. THE LABOR ORGANIZATION INVOLVED
National Maritime Union of America, AFL-CIO, is a labor organization as defined
in Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The issues
In general, the complaint alleges that Respondent, NMU, engaged in improper
secondary picketing, in furtherance and support of its labor dispute with MAT, by:
(a), commencing on August 1, 1964, and thereafter, picketing Farmers' St. Paul
terminal; (b), commencing on August 25, 1964, and thereafter, picketing in the
vicinity of vessels owned and operated by Towing; (c), commencing on August 11,
1964, and thereafter, picketing the St. Paul terminal of Harbor; and (d), in each
instance, said picketing, requests, appeals, orders, instructions, and other means has
induced and encouraged and is inducing and encouraging employees employed by
Farmers, Towing, and Harbor, and other persons engaged in commerce or in an
industry affecting commerce to engage in strikes or refusals in the course of their
employment to use, manufacture, process, transport, or otherwise handle or work
on any goods, articles, materials or commodities or to perform services for their
respective employer, and has threatened, coerced, and restrained Farmers, Towing,
and Harbor, and other persons engaged in commerce or in industries affecting com-
merce, and that an object of said acts and conduct has been to force or require
Farmers, Towing, Harbor, and other persons engaged in commerce or in industries
affecting commerce to cease using, selling, handling, transporting or otherwise dealing
in the products of, and to cease doing business with, MAT in violation of the provi-
sions of Section 8(b) (4) (i) and (ii) (B) of the Act. Respondent generally denied the
substantive allegations of the complaint and the commission of unfair labor practices,
and asserts that the picketing in which it engaged was primary picketing.
8 In view of pending litigation involving the precise location of the principal office, the
alternative statement used is by agreement of the parties.
4 Siemons Mailing Service, 122 NLRB 81.
1450 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1. Background '
The essential facts in this case are substantially undisputed, insofar as the main
issues are concerned.
2. The nature of the primary dispute-MAT activity
MAT is a wholly owned subsidiary of Peabody Coal Co., and MAT and Peabody
have the same dock on the Mississippi River, at East St. Louis, Illinois. MAT's
principal activity, insofar as we are herein concerned, is the towing of barges from
the East St. Louis docks to a "fleeting area" or parking place below St. Paul, Minne-
sota. The fleeting area is various distances, up to 7 miles, below the ultimate destina-
tion of the barges. The barges are parked, by MAT, and other barges, empty or
loaded with grain, are towed downriver to East St. Louis. The towboats used, in this
portion of the towing, are owned by MAT.s The barges used either belong to MAT
and are marked "MAT" or are chartered by MAT from Mid-South Towing Com-
pany and are marked "MST." Each barge is 190 feet long and 35 feet wide. The
customary tow is comprised of 15 such barges, which are lined up 5 in depth and 3 in
width, for this part of the operation.
The product towed upriver is Peabody Coal, for ultimate delivery to Northern
States Power Company. The product towed downriver, from the fleeting area to
St. Louis, is grain shipped by Farmers and others.
The NMU represents the unlicensed maritime employees of MAT. Rick Miller,
herein referred to as Miller, is national vice president and Robert Collileux, herein
referred to as Collileux, is an organizer of NMU. It is undisputed that Miller and
Collileux are, and at all times material herein were, agents of NMU within the mean-
ing of Section 2(13) of the Act. Employees of MAT, represented by NMU, work
on the Eleanor Gordon and on the barges comprising a tow, as more fully described
infra. As the result of a labor dispute between NMU and MAT, NMU employees
went on strike on August 1, 1964. The events herein are a sequel of the strike action.
The strike was still continuing at the time of the hearing herein.
3. Nature of the work of NMU member employees of MAT
Willard Gregory Bailey has been employed as a deckhand on riverboats since 1952,
has been so employed by MAT since 1957 , and for 3 years preceding August 1, 1964,
was so employed on the Eleanor Gordon. Each crew works 30 consecutive days and
then is off duty for 30 consecutive days. While on duty, crew members remain on
the boat or barges . Each deckhand works 6 hours, then is off duty for 6 hours.
Crews reporting for duty are picked up by boat on the St. Louis side of the river and
ferried across to the Eleanor Gordon Bailey related that during the shipping season
their route is from the Peabody Dock in St. Louis to the fleeting , or parking , area in
St. Paul and return
Bailey described his first duty, upon reporting at St . Louis, was to tie off the
southbound tow, which included removing the rigging from the barges and putting it
on the boat . The barges are tied to a piling, or other object, by three cables , one fore,
one aft, and one midship . They then pick up the northbound tow, placing lock lines
on the head of the tow and erecting a jackstaff ( a flag to tell which way the wind is
blowing ). They also check the hatches for water, and when necessary pump water
out of the barges .6 Deckhands also aid the mate in stopping a small hole if one is
discovered.
Tows are pushed from behind going upstream . There are 27 locks between St. Louis
and St . Paul and double locking is required . This requires splitting the tow so that
the first nine barges are raised in the lock and the last six are dropped back and tied
off. After the first nine barges are pulled through and tied off, the other six are put
through the lock and the tow is retied . Bailey estimated that about half of his time
on each watch was spent on the barges while the other half was spent on the boat.
While on the boat the deckhands did deck work and sanitary work. While on barges
the deckhands would check the rigging to see if there were any loose or broken wires.
6 The Eleanor Gordon is the principal boat so used, at the time in question However,
the Etta Kelse is another towboat so identified.
8I find no inconsistency in the testimony of Willard B Fouts, vice president of MAT,
that the motor vessel Old Abe assembles the barges for northbound tow, as the
Eleanor Gordon must be attached to it, and Fouts acknowledged that at least 8 hours
were required to put out jockey wire , head wires , electric cords for running lights, etc.
It appears that the tow is in two parts which must be combined by the Eleanor Gordon,
according to Fouts.
NATIONAL MARITIME UNION OF AMERICA, ETC. 1451
At night they checked the running latch on the head, every 2 hours. When they
went under a bridge one deckhand was at the head of the tow on one side with a mate
on the other side, and the mate would relay the amount of clearance to the pilot. On
some trips, some of the barges would be tied off at docks along the way. On other
trips the entire tow would be taken to the fleeting area at St. Paul where the entire
tow was tied off.
No MAT employees remained with the barges after they were tied off. The
Eleanor Gordon would then pick up the southbound tow, following the same proce-
dure. The Eleanor Gordon has a total complement of 13 employees, including deck-
hands, masters, mates, pilots, and cooks. The crew quarters are on the towboat
not on the barges. The making up of a tow at St. Louis may require as much as 12
hours. The Eleanor Gordon is in operation 24 hours a day, 365 days a year, and a
round trip is made approximately every 2 weeks.
4. The activity of Towing
John W. Lambert is president of Towing. He described Towing's business as
harbor-switching or harbor-service, primarily the movement of a single barge or two
barges from the fleeting area to the particular dock where Northen States Power
Company, purchasers of the coal, desire the coal unloaded, in some instances a
distance of 7 river miles. Towing also, on occasion cleans barges for a change of
cargo or does maintenance work for MAT, or switches barges to Harbor for cleaning,
or from Harbor to Farmers or Archer Daniels Midland, grain shippers, for loading,
and when loaded from the shippers' docks to the fleeting area, for southbound move-
ment. Towing also makes up the southbound tows. Towing has been doing this
work for MAT for 6 years.
The fleeting area is owned by the Port Authority of the city of St. Paul and is
leased by Towing for the purpose of utilizing it for its various barge-line customers.
MAT customarily uses only the fleeting area leased by Towing, which is located at
what is identified, by map, as river mile 834.7 Lambert explained that the movement
by a local towing company was a matter of economics. The 15 coal loads may be
destined for 3 different terminals. Frequently there is a backlog of coal already in
town awaiting unloading and dock space is not available. Lambert estimated that
it cost $100 an hour to operate a line boat such as the Eleanor Gordon while it cost
only $25 or $30 an hour to operate a harbor boat, such as those used by Towing.
Lambert was equivocal as to whether MAT towboats, and employees, ever worked
above the fleeting area 8 Based on the statements of a number of witnesses that they
had not seen the Eleanor Gordon above the fleeting area in 1964, and absent any
7 The river is numbered by miles commencing at the confluence of the Ohio River, from
Cairo, Illinois, northward, in 5-mile units.
8 Lambert testified.
Q. During the shipping season has Mid-America ever gone beyond this fleet landing
to deliver its own barges'+
A To the best of my knowledge they have not. This is not a common occurrence
It may happen in the first tow of the season or the very last tow of the season when
they happen to be waiting for barges. Normally, they turn their boat and their tow
right at the fleet landing
• a t t s x s
Later Lambert eliminated the inference raised that MAT employees worked above the
fleeting area
Q. With respect to this switching service in the harbor, this could be done by
the Eleanor Gordon itself, couldn't it.
A. It is physically possible that it could be done, yes
Q. And the only reason that it is not done by the Eleanor Gordon as far as you
know is the economic one that it is cheaper to use a small boat in the harbor area
than to tie up a line tow-boat for that work?
A. That is generally correct There are some physical problems The Eleanor
Gordon is a large tow-boat and on certain occasions they would have difficulty getting
into the docks we serve.
Q. Isn't it true that up to a few years ago the Eleanor Gordon did this work?
A No, it is not. The Eleanor Gordon could not physically get to the Power
(Northern States) dock in Minneapolis.
Q Didn't Mid-America have a boat that came up and did some of the work itself
several years ago
A Not to the best of my knowledge
1452 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
evidence to the contrary, I find that MAT did not engage in any activity, in the con-
duct of its day-to-day operations, above the fleeting area in 1964, and no MAT
employees were so engaged in that period.
Employees of Towing are paid by Towing. MAT does not in anyway supervise
Towing employees in the performance of their duties while they are working on MAT
barges. However, it appears that the unlicensed towboat employees of Towing are
also represented by NMU. Neither MAT nor Peabody have any ownership interest
in Towing. None of the officers or directors of Towing hold any position with either
MAT or Peabody. Lambert asserted that MAT is Towing's fifth largest customer,
and Towing's work for MAT approximates 8 or 10 percent of Towing's total switch-
ing volume in St. Paul.
MAT is obligated to use Towing, if Towing has a boat available, except where a
customer such as Farmers designates a different towing company. Except for the
limited exceptions, the agreement between Towing and MAT is an exclusive arrange-
ment between them and the barges are towed by Towing to the locations designated
by MAT.
The contract between MAT and Towing provides specified rates for towing, with a
provision for renegotiation, after 3 years. The agreement is based upon labor, fuel,
and miscellaneous costs. Renewal is optional with MAT.
5. The activity of Harbor
Kenneth Lewis Hutton is manager of Harbor, which is located on the river, in St.
Paul, approximately opposite Northern States Power Company. Hutton related that
Harbor's business is comprised of cleaning and repairing barges and contract harbor
towing. They do business with MAT occasionally. The first and only time Harbor
cleaned barges for MAT was in the middle of October 1964, however they have
performed other services for MAT, commencing late in 1962. Hutton maintains his
office at Harbor's dock. Hutton asserted that he had not seen the Eleanor Gordon
in 1964, and asserted that MAT towboats had not brought any barges to Harbor's
property in 1964. Harbor does clean barges under an agreement with Farmers and
Archer, for subsequent grain loading.
Hutton asserted that no MAT employee, other than management, had been on
Harbor property in 1964. MAT does not control Harbor in any way, there are no
common officers, directors, or stockholders.
6. The activity of Farmers
Royce Ramsland is assistant manager of the grain division of Farmers and super-
vises the merchandising activities of various grain merchants who are employed by
Farmers. These merchandisers merchandise grain for about 150,000 patrons in a
4-State area, North Dakota, South Dakota, Montana, and Minnesota, and make
forward sales.
Farmers owns a terminal in St. Paul, at the foot of Chestnut Street on the Missis-
sippi River. Grain is shipped from the terminal by both rail and truck, but mainly by
barge. The dollar volume of sales for the prior year was approximately $32 million.
Farmers obtains barges from four or five different companies. They have a
written agreement with MAT for the use of MAT and MST barges. The current
agreement is dated March 3, 1964. The agreement provides, inter alias (1) that
MAT agrees to charter to Farmers and Farmers agrees to charter from MAT 100
barges, or more, during the 1964 navigation season ; (2) each barge chartered to
Farmers hereunder shall be chartered on a bare boat basis (there is a provision rela-
tive to seaworthiness); (3) Farmers shall be responsible for cleaning and covering
each barge prior to loading of grain. Each barge shall be redelivered off charter
empty to MAT at Peabody coal dock at East St. Louis, Illinois, and MAT shall be
responsible for cleaning and uncovering the barges after unloading of grain and
redelivery of the barge to MAT; (4) maintenance of standard fire and marine hull
insurance, protection and indemnity insurance, is undertaken by MAT, naming
Farmers as additional assured on the policies as its interest may appear, for the
charter period of the barge, with the deductible amount of $5,000 on hull insurance
at the risk of Farmers; (5) MAT warrants that each barge, on charter to Farmers, will
be free of liens, etc.; and (6) Farmers is permitted for economy reasons to transport
grain by rail, and alternatively MAT has an option to reduce the offering of barges
where so doing would interfere with the transportation of coal. Section 2 of the
agreement provides for towing including, inter alia: (1) rates to be paid by Farmers
for the towing hereunder, including switching of barges at origin and destination,
(2) Farmers is charged with responsibility for loading and unloading cargo; (3)
cargo insurance is the responsibility for Farmers; and (4) Mid-America agrees to
move the barge in an expeditious and seamanlike manner and to deliver the same
NATIONAL MARITIME UNION OF AMERICA, ETC. 1453
with reasonable dispatch. "Mid-America shall not be bound to move the barges by
any particular towboat, or in time for any particular market, or otherwise than with
reasonable dispatch. Mid-America may move the barges by the use of other towers,
it being understood that Mid-America or other towers will only place Farmers barges
in a bulk exempt tow."
Ramsland related that Farmers also obtained barges from other identified com-
panies, but have no written agreement with these others. Ramsland asserted that
about one-third of the grain shipped in barges by Farmers is shipped in MAT (or
MST) barges and the balance in other barges. Most of these barges are shipped to
the Gulf, although MAT tows the barges only to St. Louis.
Ramsland related that commitments are made ahead of time on a 90-day period
and it was essential to have an agreement in advance for barges in order to meet
these forward commitments, otherwise sales were effected on a distressed sale basis
with a lower profit margin.
Ramsland asserted that he did not know of any officers or directors of Farmers who
held any position with MAT or Peabody. There is no evidence to the contrary.
7. The activity of Northern States Power Company
Wade W. Larkin is assistant to the vice president of personnel of Northern States
Power Company. He is familiar with the relationship and the nature of the agree-
ments between Northern States Power Company on the one hand and Peabody Coal
Company and MAT on the other hand. Northern States has a contract to purchase
coal from Peabody for the period commencing January 1962 and ending December
1985, including a supplemental agreement dated June 19, 1964. Larkin acknowledged
there was a separate contract with MAT for transportation of the coal. The latter
agreement obligates MAT to deliver the coal to the St. Paul area, to such points as
Northern States may designate. There are six such possible designations. Larkin
identified the destinations as being at the LaCrosse, Wisconsin, plant at French
Island; a Winona plant, a Red Wing plant; and three plants in the Twin City area
(Black Dog on the Minnesota River, Riverside, above the upper harbor, and High
Bridge in St. Paul).
It is undisputed that Northern States Power Traffic Department tells MAT where
to deliver the coal and it is MAT's responsibility to see that the barges get to the
assigned dock.
Larkin asserted that the transportation agreement permits Northern States Power
Company to participate in the financing of the purchase of barges by MAT and
provides that Northern States Power Company has an interest in the salvage value,
as distinguished from being a coowner, the salvage value to be determined at the end
of a 20-year depreciation period. In other words, Northern States Power is given
the right to acquire the equipment on January 1, 1983, and to notify MAT of its
intention to exercise such right. There is no right prior to that time.
The transportation contract provides for coverage of the actual cost of transporta-
tion including the cost of the barges and towboat.
Larkin asserted that no one in Northern States Power is affiliated in anyway with
either Peabody or MAT. Frank J. Gleason, vice president of Northern States Power,
corroborated this statement. Gleason asserted that Northern States Power does not
have any ownership interest in MAT or Peabody, or any contractual relationship
except for the purchase and delivery of coal, as recited.
Larkin acknowledged that the delivery contract is silent as to who physically
delivers the barges to Northern States Power docks, and the actual delivery has been
made by different towing companies, other than MAT.
B. The picketing
1. At Farmers
I have found supra that, as a result of a dispute between NMU and MAT, NMU
employees went on strike on August 1, 1964.
Milton A. Gordon is a barge loader employee at Farmers St. Paul terminal.
Gordon related that on August 1, about 9.30 or 10 a.m., Collileux, NMU agent, came
to the dock where Gordon and four other barge loaders, all employees of Farmers,
were working. At that time Collileux distributed to each employee a copy of a
pamphlet.a Collileux requested that Farmers employees "cooperate" with him.
Gordon referred Collileux to C. Lyle Stensrud.
0I find it unnecessary to detail the content of the pamphlet which is an exhibit and
which was headed, in large lettering, with the legend "NMU on Strike." The pamphlet
recited that NMU's dispute was with MAT and concluded with "Respect our Picket
Lines. Support the NMU Strike "
1454 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Stensrud related that he is a truck sampler, employed by Farmers, and a shop
steward for the American Federation of Grain Millers, Local 1. On August 1 Col-
lileux handed Stensrud a copy of the NMU pamphlet. Collileux asked Stensrud to
read the pamphlet "so that we should respect their picket." Stensrud referred Col-
lileux to the union president, Gordon Brodigan
Stensrud related that as a result of Collileux's conversation, Stensrud conferred
with Superintendent Mark Gillespie, and inferentially by telephone with President
Brodigan As a result Stensrud was permitted to advise the employees, who had
loaded an MST barge that morning, that they would start loading a MAT barge and
"when the picket was up, we would shut it down. In other words, we would respect
the picket lines." 10 Stensrud so advised the barge loader, the barge crew, and all
employees of Farmers. It is undisputed that there were no MAT employees on
Farmers' premises at that time, oi, in fact so far as this record reveals, at any time in
1964. There were no towboats at Farmers' dock on August 1. Gordon asserted
towboat employees did not remain with the barges, upon delivery at Farmers, and
did not aid in loading the barges at any time.
Stensrud described Farmers' facility as being located on the north side of the
Mississippi River. A city house or warehouse, with storage bins above one portion of
it, is connected to the dock. A four-lane highway, Sheppard Road, bisects the termi-
nal. On the far side of the highway there are elevators and storage facilities, with a
bridge for the grain to run across the highway, to be loaded into the barges.
Stensrud saw Collileux carrying a picket sign right after lunch, on August 1, 1964.
Collileux was on Sheppard Road, at the nearest public point to the location of the
barges. The picket sign read:
NATIONAL
MARITIME UNION
Of America-AFL-CIO
ON STRIKE
AGAINST
MID-AMERICA TRANSPORTATION
COMPANY-Division of
Peabody Coal Company
For Fairer Wages and
Working Conditions
We have no dispute with
any other employer
It is undisputed that Collileux continued picketing until 4 p.m. when Farmers
employees left, and no MAT barges were loaded during the period of picketing.1'
Gordon and Stensrud next saw Collileux on the morning of August 5. Collileux
came to the dock where the Farmers employees were loading a MAT barge . Collileux
inquired of Gordon why they were loading a MAT barge and Gordon responded
they had orders to load it. Gordon referred Collileux to Stensrud or Superintendent
Gillespie. Collileux then asked the same question of Stensrud , advising Stensrud
that Collileux was under the impression that they were not to load any MAT
barges. Stensrud referred him to Lawrence Swanson, International vice president of
the American Federation of Grain Millers . Gordon related that Collileux again
appeared around noon and carried the same picket sign for about 2 hours. Gordon
asserted that as a result of picketing they were stopped from loading MAT barges on
these two occasions . 12 Gordon asserted there were no MAT towboats or MAT
employees present on either occasion when the picketing was engaged in.
Gordon and Stensrud identified the towboat Tom Thumb as the boat which usually
brought the barges to Farmers ' docks. While it is obscure in the record as to who
owned the Tom Thumb, Hutton, manager of Harbor, identified Pilot Towing Com-
pany as the operator.
J. Gordon Brodigan, president of the American Federation of Grain Millers, Local
No. 1, is employed by General Mills. Inferentially on August 1, 1964, he received
two telegrams from Rick Miller, vice president of NMU. One telegram read
Please be advised that the National Maritime Union of American [sic] AFL/CIO
is presently engaged in an economic strike against Mid-America Transportation
10I find of no consequence, Gordon's contrary assertion that the MAT barge had been
loaded in the morning, and the MST barge was "the one we weren't allowed to load."
Both were MAT barges for the purposes being herein considered
111 find of no consequence Gordon's assertion that Superintendent Gillespie agreed
they did not have to load the barges during the picketing.
12I find it unimportant that Stensrud placed the second picketing event as being a week
or 10 days after August 5
NATIONAL MARITIME UNION OF AMERICA, ETC. 1455
Company. Any assistance the members of your union can render will be
appreciated. Please excuse delay in notification Further information if desired
can be obtained through our St. Louis office Mr. J. C. Hughes Area Code 314
Central 1-5944.
The other telegram read:
Copy of the follwing [sic] telegram sent Supt. Mark Gillespie Farmers Grain
Association Terminal quote The National Maritime Union AFL/CIO is presently
on strike against Mid-America Transportation Company a wholly owned sub-
sidiary of Peabody Coal we respectfully request that the Farmers Grain Associa-
tion make a managerial decision to discontinue the shipment of grain in Mid-
America barges for the duration of this dispute. If further information desired
please contact me through my New York office Area Code 212 Watkins 4-3900.
It is undisputed that Miller sent the telegrams.
Farmers Assistant Manager Ramsland related that in August 1964, when he was
notified that they were unable to load MAT barges, he was forced to go to various
merchandisers, employed by Farmers, and tell them they could not sell for delivery
at a later date until such time as this matter was resolved, because Farmers had no
agreement with anyone else and no assurance they could get barges from anyone
else, and were not in a position to make forward sales for September, October, and
November, as a result Farmers missed a considerable volume of business. Ramsland
related that he contacted Central Soya Company and obtained four barges. Farmers
barge dispatcher, Paulson, asserted that Farmers obtained about one-third of their
normal requirements of barges from MAT An additional one-third of the grain
shipped in barges, by Farmers, is shipped in customers barges. Paulson is responsible
for booking the barges in order to have them at the elevator when needed to fill a
sales contract. Paulson acknowledged that MAT offered approximately 12 barges
which were not accepted. Farmers continued obtaining barges from other companies,
identified as Aipel and American Commercial, but were not able to obtain all the
barges requested. Paulson asserted that he had been ordered by Bostran, identified as
being in charge of elevator facilities at Farmers, to stop booking MAT barges.
2. Picketing at Towing
Donald Wright is an employee of Towing. He is master over the towboats. On
August 11, 1964, he was captain of the towboat Will Lewis and was directed to go to
the property of Harbor, about I mile up stream from Farmers, to pick up two MAT
barges and deliver them to Farmers. He related this was about 5:30 p.m.13 Wright
related that he was just getting ready to pick up the barges when one of the deckhands
came up and advised him "we can't move these barges." Wright inquired why. The
deckhand responded "there is a picket standing there on the bank." Wright saw the
picket with a picket sign. Wright's description of the sign is identical to the sign
carried by Collileux at Farmers. Wright asserted that he called his dispatcher,
advised him of the picketing, and did not move the barges. I have found supra that
it is undisputed that'the deck employees of Towing are members of the NMU. Wright
asserted there were no MAT towboats in the vicinity and no MAT employees were
present on August 11, when he was engaged in the activity described.
Wright described another incident, involving the same towboat, on August 20,
1964. He went to the property of Archer Daniels Midland, a grain terminal, to
pick up a grain load in a MAT barge. While so engaged a deckhand pointed out
a picket standing on the bluff a 100 feet above and advised Wright that "they
[the deckhands] did not want to pick up the barge." Wright called his office and
was advised to leave the barge there. Wright described the picket sign as being
the same as the first sign he had seen. There were no MAT towboats or MAT
employees present on that occasion.
Wright asserted that he has worked on the river since 1948 and has been a cap-
tain for substantially all of that period. He has never seen a boatcrew load or
unload coal or grain barges. MAT employees do not accompany him on his tow
and do not accompany the barges when he is towing them. Wright acknowledged
that the work of the Towing deckhands is the same as that of the MAT deckhands.
Wright was advised by his dispatcher, on both picketing incidents, "if the men will
not put the wires on get away from there."
Dennis Schickling is a master and captain for Towing. On August 25, 1964, he
was captain of the towboat Savage. About 8 a.m. he had orders to go down to the
13 While Wright did not specify a in. or p m other witnesses testified that it was custom-
ary for the barges to be brought in in the evening, for loading the following day.
1456 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
fleeting area and pick up MAT barges for the High Bridge plant of Northern
States Power Company. Having picked up the barges, while headed up stream at a
point more than a mile above the fleeting area, Schickling was met by an aluminum
boat with a picket. Schickling identified the picket as Collileux. Collileux had a
picket sign but was not close enough for Schickling to read its content. Collileux
called and asked them to tie the barges off. Schickling responded that he would call
his dispatcher. The dispatcher advised him to tie the barges off, at a point approxi-
mately 5 miles from the intended destination. Schickling related there were no MAT
employees on the barges or on the towboat, or in fact in the fleeting area when he
picked up the barges. MAT employees do not accompany Schickling on his towboat
or on the barges when he is handling them.
Lambert, president of Towing, related that after the incident involving Captain
Schickling he called J. C. Hughes, an agent for NMU in St. Louis. Lambert iden-
tified Hughes as the individual with whom Lambert generally negotiated Towing's
contracts with NMU, and with whom he discussed grievances and differences.
Lambert asserted that he told Hughes that he objected violently to members of the
Union accosting Towing towboats in midriver and requiring them to tie barges off.
Lambert related that he advised Hughes that it was an unsafe practice for strangers
wandering around in midriver in outboard motorboats telling Towing's licensed
pilots how to run their barges and where to go with their barges. Lambert also
advised Hughes that the Union's activity, in picketing MAT barges was hurting
Towing's customer relationship with MAT seriously and that the Union should
conduct its activities in some other manner not to hurt Towing and its employees,
who were not involved. Lambert asserted that Hughes responded that he was sorry
that Towing and their employees were being hurt, that he had to proceed with his
picketing regardless of the consequences to Towing, and that he was going to enlarge
his picketing force in the St. Paul area very shortly. Hughes also related that it
would not have made any difference if Towing had gone on to the Northern States
Power Company with the barges on August 25 "inasmuch as the picket would have
preceded us in his boat to the dock and located himself between the Northern
States Power dock and our towing and forced us to turn around and go back and
tie the barges off." 14
Lambert further related that on September 5, 1964, about 1:30 a.m. he went to
Towing's dock. The pilot of the towboat Savage had called Towing's dispatcher and
notified him that the NMU crew was refusing to move MAT and MST barges.
When Lambert arrived Collileux and the two deckhands involved were present.
The two deckhands remained throughout the conversation. Lambert inquired of
Collileux the reason for the tieup and why he had stopped Towing from moving
the barges. Collileux responded that he was not picketing, that he did not have a
picket sign with him because he was abiding by the injunction issued the previous
day. However, Collileux related that he attempted to persuade the NMU crew-
men, on the Savage, that they should not handle the MAT barges because NMU
was still on strike against MAT. Collileux quoted the deckhands as having
responded that they agreed with him and refused to handle the barges.15
3. Picketing at Harbor
Hutton, manager of Harbor, related that he became acquainted with Collileux in
the early part of August 1964, and had a conversation with him on Harbor's land-
ing. Hutton saw Collileux near Harbor property four or five times, and on one
occasion Collileux was carrying a picket sign. This was in the early part of August.
Collileux was on the opposite side of the street from the entrance to Harbor prop-
erty and had the sign propped against the car. An unidentified young lady arrived
and took pictures of Collileux standing in front of Harbor property with the picket
sign. The sign bore the legend "NMU on strike." Hutton asserted that he believed
there were MAT barges on Harbor property at that time. Hutton was uncertain
if it was at that time that they were having trouble moving barges in and out.
The barges which they had trouble moving were MAT barges. Hutton related they
had some MAT barges scheduled for cleaning, but were unable to do so because
they were unable to get the barges moved into the landing. It was the Tom Thumb,
a towboat, owned by Pilot Towing Company that was interfered with. The delay in
moving-the barges lasted about 2 hours.
14 Hughes did not appear as a witness.
'- Collileux was not called as a witness.
NATIONAL MARITIME UNION OF AMERICA, ETC. 1457
Hutton asserted there was no stoppage of work at Harbor , by Harbor employees,
by reason of the picketing . Hutton acknowledged that when the Tom Thumb could
not move the barges in or out of the landing , he called Farmers and told them he
was unable to carry out the cleaning work for them Later he received a call from
MAT advising that a boat would be sent to do the work . Subsequently a boat
identified as the Wayne K came to the Harbor landing and moved the barges.
Hutton asserted the Wayne K had not been back to Harbor 's dock since that occa-
sion. Hutton was unable to identify the owner of the Wayne K, and asserted that
it does not normally operate in the St. Paul area.
4. The towboat Dottie J.
Hutton identified the Dottie J. as another towboat that was used in this period
for the movement of MAT barges. Ruben J. Jager identified himself as the owner
of the Dottie J. which he asserted was under lease to MAT commencing September 10,
1964 . Jager asserted that the Dottie J. was used for switching MAT barges in
the St. Paul Harbor area , under an agreement providing for the payment of $10
an hour, plus the cost of wages, fuel , groceries, and miscellaneous expenses. The
agreement expired at the close of the 1964 navigation season. Under the agree-
ment Jager carries the insurance , however MAT has undertaken to pay the deducti-
ble amount in the event of a loss. Jager identified Captain Prichard as master of
the boat and an employee of Jager. Jager hires the crew and has authority to fire
them. MAT has nothing to say about hiring or firing any of the crewmembers.
Prior to the September 10, 1964, agreement Jager had not done business with MAT.
MAT does not instruct Jager or his crew how to handle the barges Jager asserted
that no MAT employees are on the Dottie J. and no members of the Eleanor Gordon
crew are employed on the Dottie J., or accompanied it while it was engaged in its
activity for MAT. There is no ownership relationship between MAT or Peabody,
on the one hand, and Land of Lakes, the corporate structure of which Jager is the
sole owner , on the other hand.
5. Picketing at MAT
Vice President Fouts of MAT asserted there were NMU pickets on the East. St.
Louis, Illinois, side of the river in plain view of the Eleanor Gordon, when it came
to St. Louis on August 14, and again on August 25 or 26. They were also picketed
on both of these occasions by a small boat with a picket sign. Fouts asserted that
the pickets were present when the relief crew went on duty on the Eleanor Gordon.
Fouts related that the Eleanor Gordon normally proceeds up stream at an aver-
age speed of approximately 5 miles an hour and passes through a number of
densely populated areas such as Davenport , Rock Island, and Dubuque. It may be
inferred that no picketing was conducted at the fleeting area in St . Paul, other than
the incident involving Towing on September 5, related by Lambert.16
C. Respondent's contentions
Respondent asserts that the picketing complained of, at the premises of Farmers,
Harbor, and Towing, or during Towing 's engaging in its normal towing activities,
occurred only in connection with barges belonging to MAT and that operations
involving other barges were not affected , that the picketing was peaceful and was
not accompanied by threats or coercive conduct toward other employees . Respond-
ent asserts that the picketing was primary and within the meaning of the proviso to
subsection (B).
Respondent urges the holding of the Supreme Court in the General Electric case 17
that Section 8(b) (4) (i ) and (ii ) (B) is not to be applied literally, that it is the duty
16I find It unnecessary to detail or consider the testimony of Vice President Rick Miller,
of NMU, that It was physically impossible to conduct a picket line around a moving
towboat engaged In-commerce on the river . Miller acknowledged the NMU had not
picketed at the fleeting area at St . Paul Miller acknowledged that they had picketed
at the Peabody Coal dock in St. Louis , which Is the MAT terminal He acknowledged
that they had also used a small picket boat in the river above the fleeting area in St Paul.
Miller acknowledged that Collileux was picketing , in the St Paul area , whenever barges
belonging to MAT , or MST barges , were being moved by Towing Miller asserted that
Collileux maintained a 24-hour watch , during the picketing period.
17 Local 761 , International Union of Electrical, Radio and Machine Workers, AFL-CIO
( General Electric Company ) Y. N.L.R .B., 366 U.S. 667.
7 8 9-7 3 0-66-v of 15 2-9 3
1458 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the Board to examine the conduct in question in the light of the traditional right
of union's to seek support for their cause by "appealing to neutral employees whose
tasks aid the employer's everyday operations." Respondent asserts that so long as
the Union's conduct is so limited, it falls within the proviso and is protected pri-
mary activity. The General Electric case involved a question of a so-called "sepa-
rate gate." The case was remanded by the court, for the sole purpose of deter-
mining whether the separate gate was used exclusively by employees of independent
contractors who "were performing tasks unconnected to the normal operations of
the struck employer," or whether the gate was, in fact, used by employees of inde-
pendent contractors who performed conventional maintenance work necessary to the
normal operations of General Electric. In the latter event, the use of the gate
would have been a mingled one outside the bar of Section 8(b)(4)(A),18 The
Court approved the Board's view that where there is a separate gate marked and
set apart from other gates, and the work done by the men who used the gate is
unrelated to the normal operations of the employer, and of a kind that would not,
if done when the plant were engaged in its regular operations, necessitate curtailing
those operations, picketing of such a separate gate is proscribed. Id. at 681. In the
instant case we are concerned with picketing wholly removed both from the prem^
ises of the primary employer and from the situs of that employer's day-to-day opera-
tions, the latter being confined to the area between St. Louis and the "fleeting area"
in St. Paul.
Respondent advances the holding in the Carrier case 19 in support of its asser-
tion that "the test of whether strike conduct is primary activity or a secondary boy-
cott lies in its economic impact. If the economic impact is no greater than that
which would be achieved by a shutting down of the primary employer's operation,
then the activity in question is protected primary activity." In that case the court
held that protected primary picketing includes picketing at a gate reserved for
employees of neutral delivery men furnishing day-to-day service essential to employ-
er's regular operations. While the gate was on railroad property it was adjacent
to the situs of the dispute, the struck plant, and while on a right-of-way owned by
the railroad it was used by the railroad for deliveries to the struck plant. I find
this case inapposite.
Respondent also urges that the Court of Appeals in the Salt Doine case 20 held
that the presence or absence of employees of the primary employer on the prem-
ises is not a critical factor in the legality of a picket line. The Salt Doine case is
factually distinguishable. The picketing in that case took place at the situs of the
dispute. As the court noted, the picketing was legal when it was instituted because
at that time, and for a substantial period thereafter, employees of the primary
employer were employed at the situs. In the instant case the primary employer,
did not conduct business at the situs of the picketing and there is no showing that
MAT employees were employed above the fleeting area , at anytime.
Respondent asserts that the undertaking of MAT was the delivery of coal to
Northern States Power "and that when Mid-America employs Twin City (Towing)
to complete this delivery for Mid-America that Twin City is performing a neces-
sary function, a day-to-day function of Mid-America and an operational function
of that Company which would fall within the doctrine of the Steelworkers case,
which allows the picketing to be of operations even performed by independent
contractors if it is essential to the day-to-day operations of the primary employer."
I find no merit in this contention. Towing and Harbor were independent con-
tractors not under any vestige of control by MAT, except to the extent that MAT
relayed information as to the precise dock to which barges were to be delivered.
A parallel situation exists in the trucking business An east coast trucking com-
pany with, "rights" only as far as St Louis, may load a trailer with freight for
delivery on the west coast, and complete the delivery through an arrangement with
one or more independent truck lines Under Respondent's theory, a union having
a dispute with the initial shipper could picket its trailer while the trailer was in the
custody of the independent entrepreneur 21 Such a result would nullify the section
of the Act with which we are here concerned.
18 Now Section 8(b) (4) (B)
11 United Steelworkers of America, AFL-CIO (Carrier Corp ) v. N.L.R.B., 376 U S. 492.
20 Seafarers International Union of North America, etc. (Salt Dome Production Co.)
v. N.L.R.B., 265 F. 2d 585.
a Cf. Teamsters, Chauffeurs & Helpers Union, Local 279 (Wilson Teaming Company),
140 NLRB 164
NATIONAL MARITIME UNION OF AMERICA, ETC. 1459
The Supreme Court has stated, the congressional objective underlying the second-
ary boycott provisions of the Act was "shielding unoffending employers and others
from pressures in controversies not their own." N L.R.B v. Denier Building and
Consti uction Trades Council, et al (Gould & Preisser), 341 U S. 675, 692.
It is urged that Farmers' work of loading barges, and Harbor's work of cleaning
barges, is essential to the day-to-day operations of MAT, without which the Eleanor
Goi don would not have any cargo to tow. Thus, it is stated, the work done by
these neutral employers is analogous to the work of truckers making deliveries to a
factory. The stated difference is that instead of the neutral coming to the premises
of the primary employer, the primary employer has moved its premises to the
delivery men. Respondent overlooks the fact that Farmers, at the point in ques-
tion, has the barges under charter, to the same extent that MAT charters barges
from MST, the grain is shipped from St. Paul to New Orleans and MAT is neither
the original nor final transporter, but services only a portion of the total tow. We
are here concerned with the business of Farmers and not the business of. MAT.
It is Farmers, not MAT, who employ Harbor to do the cleaning, essential to
Farmers' activity, not to the activity of MAT. I find no merit in this contention.
During the hearing Respondent urged that Northern States Power and MAT
were allies. Since no reference to this contention is made in Respondent's brief, I
do not know if it has been abandoned General Counsel correctly notes that to
establish any ally relationship, for the purposes of Section 8(b)(4) there must be
either an integration of operations between the primary and secondary employers,
or the contracting out of struck work from a primary to secondary employers.22
Neither condition could be found from the evidence in this record. There are no
common stockholders, directors, or employees as between MAT on the one hand
and the companies picketed on the other. The work done by the others was not
the work customarily done by MAT prior to the strike 23
During the hearing the Respondent also urged that Jager was an agent of MAT,
and that the employees of Jager were in fact employees of MAT, thus the work
done by Jager, in the St. Paul harbor, was work done by MAT employees. There
is no evidence which would support a finding other than that Jager is an independ-
ent contractor, who hires and fires his own employees. MAT exercises no more
control over Land of Lakes or the Dottie J. than it does over Towing, Harbor,
Farmers, or Northern States Power Company.
CONCLUDING FINDINGS
The initial question to be resolved is whether the picketing herein was primary
or secondary. I find it was secondary.
I have found that the primary dispute was with MAT, and the situs thereof, for
the purposes of this case, was between the Peabody Dock in East St Louis, Illinois,
and the fleeting area in St. Paul, Minnesota. MAT's day-to-day activities were
confined to the situs described. Towboats owned and operated by MAT and the
employees of MAT, insofar as this record reflects, did not engage in activities in
the St Paul harbor above the fleeting area.
It is undisputed that NMU is a labor organization. It is undisputed that the
Union's agent, Collileux, induced and encouraged employees of Farmers and Towing
to engage in a strike or a refusal in the course of their employment to perform
services, for their neutral employers, on MAT and MST barges, by appeals directly
to the employees involved, and to their union representatives, to Superintendent
Gillespie, and by Miller's appeal to Brodigan, as well as by the picketing by Collileux.
The Supreme Court has held the question of the applicability of Section
8(b) (4) (i) turns upon whether the Union's appeal is to cease performing employ-
ment services, or is an appeal for the exercise of managerial discretion N.L R B. v.
Servette, Inc., 377 U.S. 46, footnote 4
I find the oral appeals to Farmers' employees, and to their representatives, that
the employees not work behind the picket line, and the subsequent picketing of
Farmers, by Collileux, were addressed to an individual within the meaning of Sec-
tion 8(b)(4)(i). I make the same finding relative to Miller's telegram to Brodigan,
and the oral appeals and picketing of Towing and Harbor, by Collileux.24
22 Citing Fein Can Corporation. 131 NLRB 59, 63
23 Local 25, International Brotherhood of Teamsters (J C Driscoll Transportation.
Inc), 148 NLRB 845, Bass & Company, Inc, 130 NLRB 943, 950, footnote 15.
24 International Brotherhood of Electrical Workers, Local 313, AFL-CIO (James Julian,
Inc.), 147 NLRB 137; Local 505, International Brotherhood of Teamsters, et al. (Caro-
lina Lumber Company), 130 , NLRB 1438, 1443
1460 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Supreme Court has held that the words "induce or encourage" are broad
enough to include in them every form of influence and persuasion . International
Brotherhood of Electrical Workers, Local 501, et al. (Samuel Langer) v. N.L.R.B.,
341 U.S. 694.
While Hutton, manager of Harbor, related there was no work stoppage by Har-
bor employees, as a result of the picketing by Collileux, in the early part of August
1964, a work stoppage is not necessary or essential to a finding that the picketing
was secondary and proscribed. The Board has held in numerous cases that to con-
stitute inducement , in the statutory sense, it is not necessary that the Union's appeal
succeed in producing a strike or concerted refusal to work; it is enough that the
appeal was made for that purpose. Local 1016, United Brotherhood of Carpenters
& Joiners of America, AFL-CIO, et al. (Booher Lumber Co., Inc.), 117 NLRB 1739,
1747.
Respondent urges that the appeal was a limited appeal and not an appeal for total
work stoppage, being an appeal only for the employees not to work on MAT barges.
Such inducement and encouragement is proscribed where an object is forcing or
requiring any person to cease using, selling, handling, transporting, or otherwise
dealing in the products of any other producer, processor, or manufacturer, or to
cease doing business with any other person. International Association of Heat
and Frost Insulators and Asbestos Workers (insul-Coustic Corporation), 139 NLRB
659.
The Supreme Court has said: "At the same time that §§ 7 and 13 safeguard col-
lective bargaining, concerted activities and strikes between the primary parties to a
labor dispute, § 8(b)(4) restricts a labor organization and its agents in the use of
economic pressure where an object of it is to force an employer or a person to boy-
cott someone else." N.L.R.B. v. Denver Building and Construction Trades Council,
et al. (Gould & Preisser), 341 U.S. 675, 687.
I turn next to the nature of the activity of Farmers' and Harbor, in view of
Respondent's references to the day-to-day activities of MAT. Farmers' is a grain
shipper, who charter barges from MAT, and others, to transport the grain to points
below St. Louis. MAT performs a portion of the total towing-i .e., from the fleet-
ing area to St. Louis. The activity of Harbor is, to the extent we are here con-
cerned, pursuant to an agreement with Farmers, not MAT, to clean and deliver
barges.
The Board has held that the picketing of a primary employer's vessel chartered
by a neutral employer was proscribed by Section 8(b) (4). Seafarer's International
Union of North America, etc. (Gulf & Carribean Towing Company, Inc), 125 NLRB
1023.25
While Towing, and subsequently Land of Lakes ( Jager ), was engaged in the ful-
fillment of MAT's undertaking with Northern States Power Company, for the
delivery of coal , both were independent contractors and neutrals in the labor dis-
pute between NMU and MAT.
Accordingly, I find the activities of Farmers, Towing, and Harbor, which were
picketed by NMU, were not day-to-day activities of MAT, and were the activities
of neutral employers engaged in commerce or in an industry affecting commerce.
Milk Drivers and Dairy Employees Local Union No. 584, 146 NLRB 509, enfd.
341 F. 2d 29 (C.A. 2)
The picketing at Towing, Farmers, and Harbor, and the resultant work stop-
pages, constituted threats, coercion, and restraint, in each instance , of a "person"
engaged in commerce, or in an industry affecting commerce, and was violative of
Section 8(b) (4) (ii). I so find. Los Angeles Building & Constructing Trades Coun-
cil, etc. (Jones and Jones, Inc.), 144 NLRB 49.
An object of the conduct of the NMU is clearly revealed as an effort to force or
require Farmers, Towing, and Harbor and other persons engaged in commerce, or
in an industry affecting commerce, to cease doing business with MAT, an object
which is proscribed by subsection (B) of Section 8(b)(4). No other result could
obtain from: (1) Collileux's requests for work stoppages, directed to the employ-
ees of Farmers and Towing; (2) the picketing of the premises of neutrals by NMU;
(3) Miller's request, of August 1, 1964, that Farmers make a managerial decision
to discontinue the shipment in Mid-America barges for the duration of the dispute;
(4) Hughes advice to Lambert that he was sorry that Towing and their employees
were badly hurt, that he had to proceed with his picketing regardless of the conse-
quences to Towing, and his threat that he was going to enlarge his picketing force
in the St. Paul area very shortly. I find accordingly.
't' Cf International Organization of Masters , Mates and Pilots, AFL-CIO, et al. (Ingram
Barge Company ) 136 NLRB 1175, 1185.
NATIONAL MARITIME UNION OF AMERICA, ETC. 1461
As the Board has recently stated: "In these circumstances , I find that Respond-
ent picketed (Farmers, Towing, and Harbor ) in an attempt to enmesh the neutral
employers and their employees in its dispute with ( MAT)." Miscellaneous Drivers
& Helpers Union , Local 610, (Robert R . Wright, Inc.), 151 NLRB 182.
Having found that: Respondents ' conduct induced and encouraged the employ-
ees of neutral employers to engage in a refusal to perform services, within the
meaning of Section 8 ( b) (4) (i); that Farmers , Towing, and Harbor were threat-
ened, restrained , and coerced by Respondent 's, within the meaning of Section
8(b) (4) (ii ); and that the object was to force or require Farmers , Towing, and
Harbor, and other persons engaged in commerce or in an industry affecting com-
merce, to cease using, selling , handling, transporting , or otherwise dealing in the
products of , and to cease doing business with, MAT ; I find the above described
conduct of Respondents violated the provisions of Section 8(b) (4) (i ) and (ii) (B)
of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in section III, above , occurring in connec-
tion with the operations of Farmer , Towing, and Harbor set forth in section I, above,
have a close , intimate , and substantial relation to trade, traffic , and commerce
among the several States, and tend to lead to labor disputes burdening and obstruct-
ing commerce and the free flow thereof.
V. THE REMEDY
Having found that Respondent National Maritime Union of America , and its
agents, engaged in certain unfair labor practices within the meaning of Section
8(b) (4) (i ) and (ii ) (B) of the Act , I will recommend that they cease and desist
therefrom and take certain affirmative action designed to effectuate the policies of
the Act.
Upon the basis of the foregoing findings of fact and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. Respondent National Maritime Union of America is a labor organization
within the meaning of Section 2 ( 5) of the Act.
2. Respondents Rick Miller and Robert Collileux are agents of the National
Maritime Union of America within the meaning of Section 2 ( 13) of the Act.
3. Farmers Union Grain Terminal Association , Twin City Barge & Towing Co.,
Minnesota Harbor Service , Inc., and Mid-America Transportation Company are
each employers engaged in commerce or in an industry affecting commerce within
the meaning of the Act.
4. By the conduct set forth in section III, supra , Respondent National Maritime
Union of America , and its agents , Rick Miller and Robert Collileux, have induced
and encouraged individuals employed by Farmers, Towing , and Harbor to engage
in a strike or a refusal in the course of their employment to perform services for
their employer and has restrained and coerced Farmers, Towing, and Harbor, with
an object of forcing or requiring Farmers, Towing , and Harbor to cease doing busi-
ness with MAT, and have thereby engaged in unfair labor practices within the
meaning of Section 8 ( b) (4) (i) and ( ii) (B) of the Act
5. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the entire record in this case , and pursuant to Section 10(c) of the Act,
as amended, it is hereby recommended , that the Respondent National Maritime
Union of America , its officers, representatives , agents, successors , and assigns,
including its National vice president , Rick Miller, and its agent, Robert Collileux
shall:
1. Cease and desist from engaging in, or inducing or encouraging the employees of
Farmers Union Grain Terminal Association , Twin City Barge & Towing Co., Min-
nesota Harbor Service, Inc., or any other employer , except Mid -America Transporta-
tion Company , to engage in a strike or a refusal in the course of their employment to
use, manufacturer , process , transport , or otherwise handle or work on any goods,
articles, materials , or commodities , or to perform any services , or threatening, coerc-
ing, or restraining said employers , or any other person engaged in commerce or in an
industry affecting commerce , where an object thereof is to force or require Farmers
1462 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union Grain Terminal Association, Twin City Barge & Towing, Minnesota Harbor
Service, Inc, or any other employer or person to cease doing business with Mid-
America Transportation Company, or with any other person.
2. Take the following affirmative action which I find will effectuate the policies
of the Act:
(a) Post at its offices, meeting halls, and at all places where Respondent National
Maritime Union of America customarily posts its notices, copies of the attached notice
marked "Appendix." 26 Copies of said notice, to be furnished by the Regional
Director for Region 18, shall, after being duly signed by this Respondent's authorized
representative, be posted by it immediately upon receipt thereof, and maintained by it
for a period of 60 consecutive days thereafter, in conspicuous places, including all
places where notices to members are customarily posted. Reasonable steps shall be
taken by Respondent to insure that said notices are not altered, defaced, or covered
by any other material.
(b) Furnish to the Regional Director for Region 18 signed copies of the attached
notice marked "Appendix," for posting by Farmers Union Grain Terminal Associa-
tion, Twin City Barge & Towing Co., and Minnesota Harbor Service, Inc., if they are
willing, at places where they customarily post notices to their employees.
(c) Notify the Regional Director for Region 18, in writing, within 20 days from
the date of the receipt of this Decision and Recommended Order, what steps the
Respondent has taken to comply therewith.27
It is further recommended that unless within 20 days from the date of the receipt
of this Trial Examiner's Decision and Recommended Order, Respondent shall notify
the said Regional Director, in writing, that it will comply with the foregoing Recom-
mendations, the National Labor Relations Board issue an Order requiring Respond-
ent to take the aforesaid action.
ao In the event this Recommended Order be adopted by the Board , the words "a Decision
and Order" shall be substituted for the words "the Recommended Order of a Trial
Examiner ," in the notice In the further event that the Board's Order be enforced by a
decree of a United States Court of Appeals, the words "a Decree of the United States
Court of Appeals, Enforcing an Order" shall be substituted for the words "a Decision
and Order "
27 In the event that this Recommended Order be adopted by the Board, this provision
shall be modified to read "Notify said Regional Director, in writing, within 10 days from
the date of this Order, what steps the Respondent has taken to comply therewith."
APPENDIX
NOTICE TO ALL MEMBERS OF NATIONAL MARITIME UNION OF AMERICA, AND TO ALL
EMPLOYEES OF FARMERS UNION GRAIN TERMINAL ASSOCIATION, TWIN CITY BARGE
& TOWING CO., AND MINNESOTA HARBOR SERVICE, INC.
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify you that
WE WILL NOT induce or encourage any individual employed by Farmers Union
Grain Terminal Association, Twin City Barge & Towing Co., Minnesota Harbor
Service , Inc., or any other person engaged in commerce or in an industry affect-
ing commerce , except Mid-America Transportation Company, to engage in a
strike or a refusal in the course of his employment to use, manufacture, process,
transport, or otherwise handle or work on any goods, materials, articles, or com-
modities , or to perform any services, or threaten, restrain, or coerce said
employers , or any other employer or person engaged in commerce or in an
industry affecting commerce, where an object thereof is to force or require any
of the aforesaid employers or persons, or any other employer or person, to cease
doing business with Mid-America Transportation Company, or with any other
person.
NATIONAL MARITIME UNION OF AMERICA AND
RICK MILLER AND ROBERT COLLILEUX,
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.
ROBBINS & ROBBINS, INC. 1463
Employees may communicate directly with the Board's Regional Office, 316 Federal
Building, 110 South Fourth Street, Minneapolis, Minnesota, Telephone No. 334-2611,
if they have any questions concerning this notice or compliance with its provisions.
Robbins & Robbins, Inc. and Hotel , Restaurant Employees and
Bartenders Union , Local 178, AFL-CIO. Case No. AO-85.
June 11,1965
ADVISORY OPINION
This is a petition filed on May 3,1965, by Hotel, Restaurant Employ-
ees and Bartenders Union, Local 178, AFL-CIO, herein called the
Petitioner, for an Advisory Opinion in conformity with Section 102.98
and 102.99 of the National Labor Relations Board's Rules and Regu-
lations, Series 8, as amended. Thereafter, on May 5, 1965, Robbins
& Robbins, herein called the Employer, filed a reply to petition for an
Advisory Opinion.
In pertinent part, the petition and reply allege as follows :
1. There is pending in the Supreme Court of the State of New York
in the County of Westchester an action bearing Index No. 1336,/1965
in which the Employer seeks a permanent injunction restraining the
Petitioner from picketing.
2. The Employer is engaged in the kosher catering industry with its
general offices, warehouse, and commissary located at 15 Mechanic
Street, New Rochelle, Westchester County, New York. It caters func-
tions at hotels, temples, and private homes in New York, New Jersey,
Connecticut, and Massachusetts for its customers and their families,
but not for resale. Its annual gross volume of business, as alleged in
the State court action, was and still is under $500,000.
3. On April 23,1962, the Employer filed with Region 2 of the Board,
a petition for certification of representatives in Case No. 2-RM-1216.
In answer to the Region's commerce questionnaire, the Employer stated
that it annually received $50,000 or more for goods sold or services
rendered directly outside the State of New York and conceded that "it
is engaged in Interstate Commerce and is subject to the jurisdiction of
the National Labor Relations Board." In these circumstances, the
Region processed the Employer's representation petition.
4. Subsequently, the petition was dismissed by the Regional Office
because the Employer, a member of an employer association whose
annual gross volume of business exceeded $500,0000, had untimely
attempted to withdraw from the multiemployer bargaining unit after
actual bargaining had begun in which the Employer had participated.
On June 29, 1962, the Board denied the Employer's request for review
from the Region's dismissal despite the fact that the Employer was
no longer a member of the employer association, having resigned there-
from in 1961, prior to the filing of the petition in Case No. 2-RM-1216.
152 NLRB No. 151.