Sioux City and New Orleans Barge Lines, Inc.

National Labor Relations Board - Board Decisions

Sep 28, 1971

193 N.L.R.B. 382 (N.L.R.B. 1971)

382 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Sioux City and New Orleans Barge Lines, Inc. and
Marine Officers Association, Local 54, affiliated
with International Brotherhood of Teamsters,
Chauffeurs , Warehousemen and Helpers of Ameri-
ca and Inland Boatmen 's Union of the Seafarers
International Union, Atlantic, Gulf, Lakes and
Inland Waters District , AFL-CIO
(IBU-AFL-CIO)
Sioux City and New Orleans Barge Lines, Inc. and
National Maritime Union of America , AFL-CIO
(NMU), Petitioner . Cases 14-CA-5943,
14-CA-5943-2, and 14-RC-6549
September 28, 1971
DECISION AND ORDER AND
DIRECTION OF SECOND ELECTION
between October 13 and October 30, 1970, in Case
14-RC-6549 be, and it hereby is, set aside.
[Direction of Second Election' omitted
from publication.]
In order to assure that all eligible voters may have the opportunity to
be informed of the issues in the exercise of their statutory right to vote, all
parties to the election should have access to a list of voters and their
addresses which may be used to communicate with them Excelsior
Underwear Inc, 156 NLRB 1236, N L R B v Wyman -Gordon Co, 394 U.S
759 Accordingly, it is hereby directed that an election ehgiblity list,
containing the names and addresses of all the eligible voters, must be filed
by the Employer with the Regional Director for Region 14 within 7 days
after the date of issuance of the Notice of Second Election by the
Regional Director The Regional Director shall make the list available to
all parties to the election No extension of time to file this list shall be
granted by the Regional Director except in extraordinary circumstances.
Failure to comply with this requirement shall be grounds for setting aside
the election whenever proper objections are filed.
TRIAL EXAMINER'S DECISION
BY CHAIRMAN MILLER AND MEMBERS JENKINS
AND KENNEDY
On May 6, 1971, Trial Examiner Samuel Ross
issued his Decision in the above-entitled proceeding,
finding that Respondent had engaged in and were
engaging 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, and ordered that
a previous election be set aside and a new election be
ordered. Thereafter, Respondent filed exceptions to
the Trial Examiner's Decision and a supporting brief.
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 proceeding to a three-
member panel.
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 Trial
Examiner 's Decision , the exceptions , and brief, and
the entire record in this proceeding, and hereby
adopts the findings , conclusions , and recommenda-
tions of the Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Trial Examiner and hereby orders that
Respondent , Sioux City and New Orleans Barge
Lines, Inc., St. Louis, Missouri , its officers, agents,
successors , and assigns shall take the action set forth
in the Trial Examiner's recommended Order.
IT IS ALSO FURTHER ORDERED that the election held
STATEMENT OF THE CASE
SAMUEL Ross, Trial Examiner : Upon charges filed on
November 13, 1970, by Marine Officers Association, Local
54, affiliated with International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America
(herein called MOA), and on December 28, 1970, by Inland
Boatmen 's Union of the Seafarers International Union,
Atlantic, Gulf, Lakes and Inland Waters District,
AFL-CIO (herein called IBU), the General Counsel of the
National Labor Relations Board issued a consolidated
complaint on December 29, 1970, which alleges that Sioux
City and New Orleans Barge Lines , Inc. (herein called the
Respondent or the Company) had engaged in and is
engaging in unfair labor practices within the meaning of
Sections 8(a)(1) and 2(6) and (7) of the Act. More
specifically, the consolidated complaint alleges that the
Respondent interfered with , restrained , and coerced its
employees in the exercise of rights guaranteed in Section 7
of the Act , by refusing to permit representatives of IBU and
MOA, during the period preceding a Board election, to
have access on board the Company's towboats to the off
duty employees who work and live thereon for extended
periods of time . The Respondent filed an answer to the
complaint which denies the commission of unfair labor
practices.
In Case 14-RC-6549, an election was conducted between
October 13 and 30 , 1970,1 pursuant to a stipulation for
certification upon consent election , which resulted in I I
votes for NMU, 17 for IBU, 17 for MOA, 56 against the
participating labor organizations , and 5 challenged ballots.
On November 5, 1970, IBU filed timely objections to
conduct affecting the results of the election . On December
30, 1970, the Regional Director determined that a hearing
on objections was necessary, and ordered that the hearing
thereon be consolidated with the hearing in Cases
14-CA-5943 and 14-CA-5943-2.
Pursuant to due notice a hearing on these consolidated
I As indicated by the heading above, the representation case is based on
the petition of National Maritime Union of America, AFL-CIO (NMU),
herein called NMU IBU and MOA are intervenors therein
193 NLRB No. 55
SIOUX CITY & NEW ORLEANS BARGE LINES 383
cases was conducted before me at St. Louis, Missouri, on
February 9, 1971. Upon the entire record, and my
observation of the witnesses and their demeanor, and after
due consideration of the briefs filed on behalf of the
General Counsel and the Company, I make the following:
FINDINGS OF FACT
1. COMMERCE
The Respondent Company is an Iowa corporation whose
principal office and place of business is located in St. Louis,
Missouri. At all times material herein, the Company has
been engaged in the business of operating towboats and
transporting commodities by barge on the inland water-
ways of the United States between various of the States.
During the year ending November 30, 1970, a representa-
tive period, the Company received revenues in excess of
$50,000 for furnishing such interstate transportation
services. On these admitted facts, I find that the Respon-
dent is engaged in commerce and in operations affecting
commerce within the meaning of Section 2(6) and (7) of the
Act.
II. THE LABOR ORGANIZATIONS INVOLVED
It is not disputed , and I find , that at all times material
herein MOA , IBU, and NMU have been labor organiza-
tions within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Issues Presented
The issue presented by the consolidated complaint is
whether the Respondent, by refusing to permit representa-
tives of IBU and MOA to board its towboats during the
period preceding the Board election, and by thus prevent-
ing access by such union representatives to the employees
who work and live on the towboats for extended periods of
time, engaged in unfair labor practices within the meaning
of Section 8(a)(I).
The issue presented in the representation case is whether
the denial to the Unions of access to the employees on the
Company's towboats requires the setting aside of the results
of the election and the ordering of a rerun election.
B. Background Findings2
The Respondent Company operates a fleet of 14
towboats which push barges, generally loaded with
commodities but sometimes empty, on the Mississippi, the
Missouri, the Tennessee, the Illinois, and the Ohio Rivers.
The Company's principal operations are between New
Orleans and points along the Missouri River, but at times
the Company has extensive operations along the other
named inland waterways. Under normal operating condi-
tions, the Company's towboats are in continuous motion
and stop only for the short time periods required to go
through a lock, to refuel on the Missouri River,3 or because
of mechanical failure or weather conditions. The employees
who operate the Company's towboats live aboard the boats
while the voyages are in progress, and normally get off the
boats only at the termination of their work cycles of from
30 to 45 days as described hereinafter.4
On September 3, 1970,5 NMU filed a petition for
certification as the collective-bargaining representative of
certain of the Company's employees who work on its
towboats, and thereafter MOA and IBU intervened in the
said proceeding. On September 17, the three unions and the
Company executed a stipulation for certification upon
consent election, approved by the Regional Director on
September 18, which provided that an election would be
conducted among the Company's employees in the
following appropriate collective-bargaining unit:
All mates, relief mates, deckhands, oilers and cooks
employed on all towboats owned, operated or chartered
bareboats by the Employer, EXCLUDING employees
employed by the Employer on dredges, tenders,
shuttleboats and other small vessels used by the
Employer for the performance of harbor work; shore-
based employees, captains, relief captains, pilots, chief
engineers , relief engineers , assistant engineers ; office
clerical and professional employees, guards and super-
visors as defined in the Act.
According to the eligibility list furnished by the Company
prior to the Board election, there were 118 employees in the
appropriate collective-bargaining unit whose places of
residence when not on the Company's boats, are scattered
through 15 of the States of the United States .6 However, not
all of these employees work on the Company's towboats at
the same time. Thus, since under the Company's employ-
ment policy, its towboat employees accumulate one full day
of leave with pay for each full day of work,7 at any given
time some are on paid leave status. The established
procedure is for employees to work for a period of 45
consecutive days without taking leave.8 Thus, during the
period between the filing of NMU's representation petition
on September 3, and the election in October, 76 of the
Company's 118 eligible employees "were actually working"
on its boats.9
2 The findings in this and subsequent sections of this decision are
largely based on undisputed testimony and/or documentary evidence
3 Refueling on other rivers generally is done while the towboat is
proceeding with its voyage
4 At stops for fuel or to go through locks, the captain may permit
employees to go off the boats for short periods
5 All dates hereafter refer to 1970 unless otherwise noted.
6 According to the Company 's eligibility list (G C . Exh 8), 22 of the
employees lived in Illinois, 20 in Missouri , 19 in Kentucky, 18 in
Arkansas , II in Tennessee , 7 each in Louisiana and Mississippi, 5 in
Oklahoma , 2 each in Iowa and Nebraska , and I each in Alabama , Florida,
Kansas, Ohio , and Texas
7 A full day consists of working two "watches" of 6 hours each with
nonwork intervals of 6 hours between the work periods The captain's
watches are from 6 a in to 12 noon, and from 6 p.m to 12 midnight The
"after" watches are from 12 midnight to 6 a m and from 12 noon to 6 p.m.
Employees work one or the other of these schedules.
9 In some cases the employees work fewer consecutive days but
generally in excess of 30 days They also are permitted to woik for longer
consecutive periods than 45 days if they so desire, and many do so to build
up paid leave time for the winter months when the Company operates
fewer towboats
9 The quotes are from the credited testimony of Company President E.
Thomas Drennon
384 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
C. The Request of IBU for Permission To Board
the Company's Towboats
Under the terms of the stipulation for certification upon
consent election, the election was scheduled to be
conducted on each of the Company's towboats at various
ports during the period from October 13 through 19, and
thereafter by mail, with all ballots to be opened and
counted in the Regional Office on October 30. The
stipulation contained the usual printed provision requiring
the Company to furnish the Regional Office with a list of
the eligible voters, and it also specifically required the
Company to furnish a further list on October 3 of the
employees in the unit who would be off duty and not on
board any of the Company's towboats during the period
between October 13 through 19, and to specify who would
be on board each of the Company's towboats.
On September 18, following the execution of the
aforedescribed stipulation, Barry J. Levine, IBU's counsel,
requested the Company by letter to grant permission for
IBU's representatives to board the Company's towboats
"for the purpose of having access to the crew members
aboard such vessels." 10 On September 22, Respondent's
counsel, Milton 0 Talent, replied that although "it [the
Company] recognizes that under certain circumstances
unions are entitled to reasonable access to employees to
conduct an organizational campaign," the Company could
not understand how IBU's request was appropriate "at the
present time and under the present circumstances." 11 On
September 23, Levine replied to Talent and cited Interlake
Steamship Co., a Division of Pickands Mather & Co., 174
NLRB No. 55, as the authority for his request to board the
boats so that IBU might "have access to the crew members
thereon." The letter warned that a denial of the request
would "be utilized by our client as grounds for objecting to
the forthcoming NLRB election." 12
Talent in turn replied on September 24 that the Interlake
case was "distinguishable" and inapposite to the Compa-
ny's operations in that "our boats do not put into port at
any particular points," that they picked up and dropped off
"barges in midstream via servicing tugs," or at the most "at
private docks inaccessible to members of the public," where
they remained "only long enough to pick up or drop the
barges," and that therefore arrangements for boarding the
boats "could not be made without undue and an
unreasonable interference with our operations." The letter
further stated that "our employees are aboard our boats
only a short period of time and they are accessible
elsewhere." Finally, Talent offered to supply IBU with the
names and home addresses of the Company's employees,
with the dates when they would be on and off the boats,
and where "they might disembark or come aboard." Talent
further suggested that IBU "coordinate" its request with
NMU which had asked for "equal" privileges, and with
MOA.13
Levine replied on September 25 that IBU was familiar
10 G C Exh 2
11 G C. Exh 3
12 G C Exh 4
13 G C Exh 5
11 G C Exh 6
15 The list so mailed is Exh 3 attached to G C Exh l-G
with the nature of the Company's operations, that IBU
"services many boats in transit on the inland waterways
and had at its disposal boats which enable its representa-
tives to board said boats in midstream," that IBU
accomplishes such "servicing" without disturbing the
operations of the employer involved, that the boarding
privileges which IBU sought were not intended to and
would not interfere with the operations of the Company's
boats, and that it had no means to contact the employees it
sought to represent other than by access to them on the
boats. Levine declined Talent's suggestion that IBU
"coordinate" its request for boarding privileges with NMU
and MOA, and he requested Talent to supply the offered
further information regarding the home addresses of the
Company's employees, and when and where they were
expected to "disembark or come aboard." 14 On October 6,
Talent mailed the further list containing such information
to Levine.15
D. The Request of MOA for Permission To Board
the Company's Vessel
About September 29, John R. Harruff, secretary-treasur-
er of MOA Local 45, telephoned Company President
Drennan and requested permission for MOA's representa-
tives to board the Company's vessels for personal contacts
with employees at locks, fuel docks, or during harbor
operations. Harruff told Drennon that his representative
wanted to contact only employees "who were off watch,"
that MOA would supply its "own transportation," and that
it would not interfere with the Company's operations "in
any way." Harruff also told Drennan that he would furnish
the Company with liability insurance to hold it harmless
against any possible injury that might happen to any of
MOA's representatives, and would "not hold the Company
liable in any way." Drennon replied that since he had
denied the right to IBU and NMU, he could not grant
permission to MOA to board the vessels without subjecting
the Respondent to charges of unfair labor practices.
Drennan further stated that if he allowed MOA to do this, it
would not be long before women and children also would
be boarding the boats, and he wanted no part of that.16
E. IBU's Efforts To Contact Respondent's Employees
IBU assigned a staff of 10 organizers to the campaign of
organizing support for it at the election. These organizers
met at the union's St. Louis office, and upon receipt of the
Company's eligibility list in the late afternoon of Friday,
September 25, about five of IBU's organizers commenced
attempts to reach the employees by long distance telephone
calls to their places of residence.17 These telephonic efforts
to determine whether the employees were at home or at
work aboard the Company's boats continued throughout
that weekend, but succeeded in reaching only the homes of
20 of the 118 listed employees. Moreover, some of these
contacts were not with the employees personally, but with
16 The findings above are based on Harruff 's uncontroverted and
credited testimony.
17 The remainder worked at cutting up area maps and making up index
cards containing the names and addresses of Respondent 's employees in
the appropriate unit
SIOUX CITY & NEW ORLEANS BARGE LINES 385
their wives or other relatives. The organizers then decided
that further telephonic campaigning would not be fruitful,
and accordingly some of the organizers boarded a speed
boat on Sunday night (September 27), and for the next few
days they sought to contact the Respondent's boats on the
rivers in the St. Louis area. By this method, they succeeded
in approaching three of the Company's towboats, and in
each instance, without attempting to board the boat, they
threw union literature aboard into the arms of whoever was
on the deck. They also tried to carry on conversations with
such crewmembers, but "almost to the man," the latter
"disappeared" from view when they learned that the
speakers were union representatives.
The IBU organizers then decided to attempt to contact
the Company's employees at their home addresses, and to
that end, they divided up the names on the eligibility list
according to geographical area, and each organizer was
assigned to cover all employees located in a specific area.
However, the ensuing visits to the employees' homes
resulted in relatively few contacts with employees because
the latter were not home and assertedly were working on
the river.18
On October 5, in accordance with its stipulation in the
representation case, the Respondent furnished a further list
containing the names of 34 employees who were expected
to be off duty between October 13 and 19. In addition, on
October 6, the Respondent's counsel Talent mailed to
IBU's counsel Levine the previously noted list of employees
which disclosed their home addresses, the names of the
vessels on which they worked, the dates when they would
go on or get off said vessels, and the places where they were
expected to disembark or go aboard. Upon receipt of these
lists, IBU's organizers again visited homes of employees
who were listed to be off duty. According to Peter W.
Drewes, an IBU business agent, his renewed efforts at
home contacts resulted in four reports from wives or other
relatives at the employees' homes that the employees listed
as off duty were still on the boats.
All in all, notwithstanding its extensive campaign to
contact employees in person,19 IBU was successful in
making "eyeball to eyeball contacts" with only 35 of the
118 employees in the unit. These physical contacts included
some made at home, some made alongside a company boat,
and some at a dock in Kansas City and at the Omaha
terminal.20
F. The Preelection Campaigns of NMU and MOA
The record does not disclose that NMU made any efforts
to personally contact the Company's employees either at
their homes or elsewhere. However, NMU mailed union
literature both to the homes of the Company's employees
and to their boats.
As previously noted, about September 29, MOA's
is Whether this was true or not, the organizers were so told at the places
of residence by the employees ' wives or other relatives
19 IBU also sent two "mailings" to the homes of employees, and as
previously noted , it also threw union literature aboard some of
Respondent 's boats
20 The findings above are based on the credited and uncontroverted
testimony of Peter W Drewes
21 Before that request was made and rejected, MOA's representatives
had boarded some of the Company's boats at Kansas City during fueling
business agent, Harruff, requested the Respondent to
permit MOA's representatives to board the Company's
boats to speak to its off-duty employees, but his request was
denied by Company President Drennan.21 The record does
not disclose what efforts, if any, MOA made thereafter to
contact the Company's employees in person. However, it
does disclose that MOA mailed union literature to the
Company's boats.22
G. Conclusions in Respect to the Respondent's
Denial of Union Access to its Employees Aboard its
Boats
1. The Respondent's contentions
As noted at the outset, the issue presented in this case is
whether the Respondent violated Section 8(a)(1) of the Act
by denying access to its boats by IBU and MOA for the
purpose of communicating with off-duty resident employ-
ees concerning organizational matters, and/or whether the
results of the previous election which the unions lost should
be set aside and a new election ordered because of the
denial of such access to the Company's employees. The
Respondent contends that it "had no duty" to make its
boats accessible to nonemployee organizers for solicitation
and union discussion because: (a) the unions had other
adequate means of communicating with its employees; (b)
permitting such access would subject the Company to
liability for injuries that the organizers might sustain while
getting on or off its moving towboats, and "would
undoubtedly result in interference with operations"; and (c)
it was not required by the terms of the stipulation for
certification upon consent election.
2. The applicable principles
The principles applicable to whether an employer is
required to permit nonemployee union organizers to enter
onto his property to speak to his employees are by now well
established. The Supreme Court has long recognized that
the "opportunity to organize" without "employer interfer-
ence" is a fundamental statutory objective.23 However, the
right to pursue organizational activity on company
property is not absolute, and requires the "working out of
an adjustment" between the right of an employer to control
his property, and that of the employees to engage in self-
organization.24 As a general rule, an employer cannot
prohibit his employees from engaging in union discussion
and solicitation on company property during nonworking
time, absent a clear showing by the employer that "unusual
circumstances" makes some limitation on that right
necessary for the maintenance of production or
discipline.25 However, the same considerations do not
operations, but that practice apparently ended after Drennan , on about
September 8 or 9 , notified Harruff that it was contrary to company policy
to permit people to board its boats
22 On one occasion in Memphis , Tennessee , Harruff observed union
literature being thrown overboard by either a captain or a mate of the
Respondent
23 Republic Aviation Corporation v N L R. B, 324 U S 793, 798.
24 Id at 797-798
25 Id at 804.
386 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
apply to nonemployee organizers. Thus, in N.L.R B. v.
Bacock & Wilcox Company,26 the Supreme Court said in
this regard:
But no such obligation is owed to non-employee
organizers . Their access to company property is
governed by a different consideration. The right of self-
organization depends in some measure on the ability of
employees to learn the advantages of self-organization
from others. Consequently, if the location of a plant and
the living quarters of the employees places the
employees beyond the reach of reasonable union efforts
to communicate with them, the employer must allow the
union to approach his employees on his property.
The importance of affording union organizers opportuni-
ty to contact employees on company property if reasonable
access to them is otherwise difficult or impracticable is self-
evident. As the Board has noted, experience demonstrates
that "self-organization can be and is severely hampered by
lack of assistance from trained , full-time organizers."27
And, in Thomas v. Collins,28 the Supreme Court said in this
regard:
The guarantees [of the Act] include the workers' right to
organize freely for collective bargaining. . . . It
include[s] their right fully and freely to discuss and be
informed concerning [their] choice [of representatives].
... Necessarily correlative was the right of the union,
its members and officials . . . to discuss with and
inform the employees concerning matters involved in
their choice.
In accordance with the foregoing general principles, it
has long been recognized by the Board, with court
approval, that notwithstanding the right of an owner to
control access to his property, a denial of access by
nonemployee organizers to employees on company owned
property violates Section 8(a)(1) of the Act, and/or is
grounds for setting aside the results of an election, when
alternative effective means of direct communication with
employees are not available, and no detriment to the
employer by such access is shown.29
We look then to the record to determine whether or not,
in the light of the foregoing principles, the company "had a
duty" to permit nonemployee organizers to have access to
its employees on its towboats.
3. The inadequacy of other means of
communication with the employees
The Respondent's 118 employees in the unit involved in
this case resided in a scattered 15 state area when not
working on the Company's boats. For a substantial part of
26 351 U S 105, 112.
27 Marshall Field & Company, 98 NLRB 88, 97, In 21
28 323 U 5.516.
29 See , e.g., Weyerhaeuser Timber Company, 31 NLRB 258; W T. Carter
and Brother, 90 NLRB 2020, Marshall Field & Company, 98 NLRB 88;
N.L R B v Stowe Spinning Co, 336 U S 226, N L R B v Lake Superior
Lumber Corp, 167 F.2d 147 (C A 7); Joseph Bancroft & Sons Co, 140
NLRB 1288, S & H Grossinger 's, 156 NLRB 233, enfd as modified 372
F.2d 26 (C.A. 2), Interlake Steamship Co, a Division of Pickands Mather &
Co, 174 NLRB No. 55
30 In this regard the Respondent urges that since its boats also were
widely scattered on the various inland waterways , and since relatively few
employees in the unit work on each boat , it would he just as difficult for
the unions to contact employees on its boats as at their homes This
the preelection period between the execution of the
stipulation for certification upon consent election and the
balloting, 76 of the 118 lived and worked on the boats. In
combination, these factors rendered it virtually impossible,
and obviously impractical, for the unions here involved to
personally communicate with these employees via union
meetings. Other than the Company's boats, the only other
means of direct "eyeball to eyeball" communication with
these employees was by visits to the homes of employees
who were off duty, or at the docks where employees who
were going on or off duty were expected to embark or
disembark. But as noted above, although both of these
methods were pursued by a staff of 10 IBU organizers, they
succeeded in achieving actual face to face contacts with
only 35 of Respondent's 118 employees. Thus, the denial of
access to the employees on the boats relegated the unions to
the use of the mails and the tossing aboard of union
literature, as their principal method of contact with the bulk
of the Respondent's employees.
The Respondent contends that the unions had "adequate
opportunity" to "proselyte" its employees via the mails,
through their "advocates" who worked for the Respondent
on its towboats, and by visits to the employees' homes. I
regard this contention as devoid of any merit. As noted
above, the well-organized and extensive efforts of IBU to
contact off duty employees at their homes were able to
produce relatively few "eyeball to eyeball" contacts.30 The
Respondent's employees were entitled under the Act to
have the advice and counsel of "trained, full-time [union]
organizers.131 In my view, neither the mails , nor the
arguments of amateur employee advocates, are adequate
substitutes for the advice and counsel of professionals.32
The Respondent finally urges that since it also supplied
the unions with lists which showed the names of the boats
on which each of the employees worked, and the dates
when, and the places where, they were expected to get on or
off, "the unions had ample opportunity ... to contact the
employees . . . when they got off [or on] the boats."
Contrary to this contention, the record discloses that one of
IBU's objections to conduct affecting the results of the
election was that the information thus furnished "was
incorrect." This objection was overruled by the Regional
Director, not because the information supplied by Respon-
dent was correct, but only because the investigation failed
to disclose that the " inaccuracies in the information
submitted by the Employer were deliberate."33
I conclude under all the circumstances that, aside from
the Company's boats, none of the sources of communica-
tion which were available to the unions, either singly or in
argument is patently without merit During the preelection period,
practically all of the Respondent 's employees worked and lived at least
part of the time on one or the other of its 14 boats . It obviously was a lot
easier to contact the employees on 14 boats, even though widely scattered
geographically , than to catch them when off duty at 118 different
residences in 15 scattered states.
31 Marshall Field & Company, supra; N L R B v Babcock & Wilcox,
supra
32 The Respondent 's contention assumes, moreover , that all of the
unions in this case had "advocates " on all of the Respondent's towboats.
However, that fact is neither disclosed by the record, nor likely in view of
the relatively few employees who worked on each boat
33 G.C Exh I(g), p.4
SIOUX CITY & NEW ORLEANS BARGE LINES 387
combination, constituted effective or practical substitutes
for the personal and direct contact with "trained, full time
organizers" to which the Respondent's employees were
entitled under the Act.
4. The alleged necessity for the exclusion of the
organizers
As previously noted, the Respondent contends that its
exclusion of the Unions' organizers from its vessels was
necessary to prevent interference with its operations, and to
avoid liability for injuries that might be sustained while
getting on or off its moving towboats. In these regards the
Respondent argues (brief, p. 5) that "allowing representa-
tives of each union on a towboat at the same time would
undoubtedly lead to disruptions and, perhaps, even to
violence." In addition, it contends that neither insurance
nor indemnity agreements from the unions would ade-
quately protect it against liability for injuries which the
organizers might sustain on its boats. As noted hereinafter,
I am unimpressed with these reasons for the denial to the
organizers of permission to board the vessels.
According to the Respondent's president, Drennan, a
towboat is a potentially "hazardous machine," and the
Company's towboats generally are in continuous motion.
The Respondent therefore has "a rule of no visitors aboard
the boats," by "people without business there." The
dangers, according to Drennan, result from the presence on
the towboats of "face wires and cables that could break and
cause injury," and "moving machinery in the form of deck
winches," and "heavy ratchets." Notwithstanding the
asserted dangers, however, the Respondent permits a
number of exceptions to its no visitors rule. Thus, "a
customer guest," or "a shipper and his wife," are sometimes
permitted on board "for a boat ride," and the captain, and
the chief engineer, on occasion are allowed to take their
wives on the voyage with them.
Moreover, despite the continuous motion of the tow-
boats, it is a fairly common occurrence for persons to board
and get off the Respondent's towboats, and this occurs even
on the Missouri River when the tow is proceeding at speeds
as high as 17 miles an hour. Among the categories of
persons who get on and off the Respondent's boats while in
motion are "electronics people, radio repairmen," "a
representative from an engine manufacturer," or "an
engine company technician," who come aboard by way of
tugboats to make necessary repairs and get off whenever
their work aboard is completed. Crewmembers, including
women cooks, when commencing a tour of duty, and the
employees whom they are replacing, board and disembark
from the Company's towboats, for the most part while the
latter are in motion. Such boarding and disembarking
generally is accomplished via the fuel and supply barges
which, as described infra, regularly visit and service the
towboats while enroute. Admittedly, such boarding and
getting off of the Respondent's towboats is accomplished
on the starboard (right) side of the vessels, away from the
34 I note in this regard that President Drennan conceded that during his
prior association with General Dynamics Corporation, Material Service
Division, his company was provided with and accepted liability insurance
furnished by MOA to cover possible injury to its representatives when they
potentially dangerous wires and machinery located on the
port (left) side of the boat.
Refueling at points other than on the Missouri River
generally also is done while the towboats proceed with their
voyages. On such occasions, the fuel barge comes out to
moving towboat, "hooks up" to it, and the fuel hoses and
water lines are then attached to the appropriate tanks on
the towboat. During the pumping operations by which the
fuel and water are transferred from barge to towboat, the
two vessels "continue side by side hooked together until the
fueling operation is completed." In addition to fuel and
water, the towboats also take on stores (groceries) about
once a week while in motion in midstream. As in the case of
refueling, the supply boat comes alongside and ties up to
the towboat, the groceries are handed across to crewmem-
bers on duty, and the latter carry the stores to the galley.
IBU's organizer Drewes has boarded vessels while in
motion on the inland waterways 150 times during a period
of a year and a half to process grievances for crewmembers.
On such occasions, he comes out to the moving vessel in a
speed launch , ties up to the towboat or the first barge, and
goes aboard to the mess room.
In the light of all the foregoing, including the numerous
exceptions to the no visitors rule when it suits the
Respondent's convenience, and the admission that board-
ing the towboats from the starboard side reduces the risk of
injury to a minimum, I regard both the asserted dangers in
boarding or disembarking from the towboats in midstream
while in motion, and the alleged potential hazards of the
towboat, as exaggerated. In any event, since the unions
admittedly offered to provide Respondent with insurance
and/or indemnity agreements to hold it harmless from
liability for injuries to its organizers, I am unpersuaded that
it was necessary for Respondent to refuse to allow the
organizers to board its towboats in order to avoid liability
for possible injuries.34
This brings us to the Respondent's contention that visits
to its vessels by the unions' organizers would interfere with
its operations, and if conducted by all the unions at the
same time, might even "lead to violence." In respect to the
latter of these arguments, there was no request by the
unions to conduct their visits to the Respondent's boats at
the same time, and obviously, without discriminating, the
Company could have limited such visits to one union at a
time, thus eliminating any possible disruption by multiple
visits.
In respect to the possible disruptive effects of visits by
one organizer at a time, the record discloses that each of the
Respondent's towboats is equipped with bedrooms, and
with a galley and dining area. Some of the boats also have a
lounge area in addition to the galley and dining area. These
dining lounge areas or mess rooms are utilized by
crewmembers for coffee and relaxation during off duty
periods when they are not in their bedrooms sleeping.
President Drennan admitted that there is thus a place on
each of the Respondent's towboats where organizers could
confer with off-duty employees without interfering with the
were on that company's vessels. I therefore also regard the Respondent's
contention that such insurance or indemnity agreements cannot adequately
protect it as without merit
388 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
operation of the vessel. Accordingly, I regard the conten-
tion that the exclusion of the organizers from the vessels
was necessary to prevent interference with the operations of
the Respondent as clearly unworthy of merit
5. The Respondent's waiver contention
The Respondent's only remaining contention is that since
it has complied with all the terms of the stipulation for
certification upon consent election, and since there was no
provision therein requiring Respondent to allow the Unions
access to its employees on its boats, the election should not
be set aside, and its results should be certified. Without so
designating it, the Respondent in effect is thus urging that
the Unions waived any rights to board its vessels to speak to
its employees by their failure to request such permission
prior to the execution of the stipulation, and by their failure
to include a provision therein requiring the Respondent to
grant such access. I regard this contention as without merit
for the following reasons.
As previously noted, the right of access by employees to
nonemployee union organizers is one which derives from
their right of self-organization guaranteed by Section 7 of
the Act.35 Since this was a statutory right, its waiver or
relinquishment must be clear and unmistakable. The failure
by the unions to assert that right during the conference
preceding the execution of the stipulation, and the absence
of an express provision therefor in the stipulation, did not,
in my view, constitute a waiver of the right.36 I therefore
reject this contention.
6. Conclusion
I have found above that except for the Respondent's
boats which were both the working and living quarters of
most of the Company's employees for a substantial portion
of the preelection period, no adequate means existed for
direct communication between the Respondent's employ-
ees and the Unions' organizers. Moreover, for the reasons
previously stated, I do not believe that an additional
exception to the Company's "no visitor rule," to accommo-
date the rights of employees to learn the advantages of self-
organization, would result in any substantial interference
with or detriment to the Respondent's shipping operations.
I therefore find and conclude that by denying reasonable
methods of access to its employees by the representatives of
IBU and MOA, the Respondent interfered with, restrained,
and coerced employees in the exercise of rights guaranteed
by Section 7 of the Act, and thereby engaged in unfair labor
practices within the meaning of Section 8(a)(1) of the Act.37
I further find that by such denial of reasonable access to
the employees by the unions' representatives, the Respon-
dent interfered with the exercise of free and untrammeled
choice in the election held between October 13 and 30,
1970. Accordingly, I recommend that said election be set
aside and that a new election be conducted at a time and
date to be determined by the Regional Director.
35 Thomas v Collins, supra, N L R B v Babcock & Wilcox, supra,
Marshall Field & Company, supra
36 The Timken Roller Bearing Company v N L R B, 325 F 2d 746
(C A 6), cert denied 376 U S 971
31 See cases cited in In 29, supra
3s In the event no exceptions are filed as provided by Sec 102 46 of the
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in connection with the operations of the
Respondent described 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 obstructing commerce and
the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in
certain unfair labor practices, I will recommend that it
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. Sioux City and New Orleans Barge Lines, Inc., is an
employer engaged in commerce and in operations affecting
commerce within the meaning of Section 2(6) and (7) of the
Act.
2. National Maritime Union of America, AFL-CIO
(NMU), Marine Officers Association, Local 54, affiliated
with International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, and Inland
Boatmen's Union of the Seafarers International Union,
Atlantic, Gulf, Lakes and Inland Waters District,
AFL-CIO, are labor organizations within the meaning of
Section 2(5) of the Act.
3. By denying nonemployee organizers of IBU and
MOA access to its towboats for the purpose of soliciting
employees on behalf of said unions, and for the purpose of
otherwise communicating with said employees concerning
organizational matters, the Respondent has interfered with,
restrained, and coerced employees in the exercise of rights
guaranteed by Section 7 of the Act, and thereby has
engaged in and is engaging in unfair labor practices within
the meaning of Section 8(a)(1) of the Act.
4. By its conduct set forth above, the Respondent also
has interfered with the exercise of a free and untrammeled
choice in the election held between October 13 and 30,
1970.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
Upon the basis of the foregoing findings of fact and
conclusions of law, and upon the entire record in this case, I
hereby issue the following recommended: 38
Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, recommendations , and recommended Order herein
shall, as provided in Sec 102 .48 of the Rules and Regulations,
automatically become the findings, conclusions , decision and order of the
Board, and all objections thereto shall be deemed waived for all purposes.
SIOUX CITY & NEW ORLEANS BARGE LINES 389
ORDER
Respondent, Sioux City and New Orleans Barge Lines,
Inc., its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Continuing or giving effect to its policy or rule barring
nonemployee union organizers from access to employees
on its vessels for the purpose of soliciting them during their
free time on behalf of any labor organization, or for
consulting, advising, meeting, or assisting said employees in
regard to their rights to self-organization, provided,
however, that nothing herein contained shall be construed
to prohibit the Respondent from making and enforcing
reasonable regulations in respect to visits to its vessels by
such nonemployee union organizers.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of their
rights to self-organization, to form labor organizations, to
join or assist National Maritime Union of America,
AFL-CIO (NMU), Marine Officers Association, Local 54,
affiliated with International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, and
Inland Boatmen's Union of the Seafarers International
Union, Atlantic, Gulf, Lakes and Inland Waters District,
AFL-CIO, or any other labor organization, to bargain
collectively through representatives of their own choosing,
and to engage in other concerted activities for the purpose
of collective bargaining or other mutual aid or protection,
or to refrain from engaging in such activities.
2. Take the following affirmative action to effectuate
the policies of the Act:
(a) Post on each of its 14 towboats which operate on the
inland waterways, copies of the notice marked
"Appendix."39 Copies of said notice, on forms provided by
the Regional Director for Region 14, after being duly
signed by Respondent, shall be posted by it for a period of
60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees 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) Notify the Regional Director for Region 14, in
writing, within 20 days from the date of the receipt of this
Decision, what steps have been taken to comply herewith.40
IT IS FURTHER RECOMMENDED that the election held in
Case 14-RC-6549 between October 13 and 30, 1970, be set
aside and that a new election be conducted at such time,
date, places, and manner as the Regional Director for
Region 14 deems appropriate.
ae In the event that the Board 's Order is enforced by a judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall be changed to read
"Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board "
40 In the event that this recommended Order is adopted by the Board,
after exceptions have been filed, this provision shall be modified to read.
"Notify said Regional Director for Region 14, in writing , within 20 days
from the date of this Order, what steps the Respondent has taken to
comply herewith."
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a trial at which all sides had the opportunity to
present their evidence, a Trial Examiner of the National
Labor Relations Board has found that we violated the
National Labor Relations Act, and has ordered us to post
this notice and we intend to carry out the Order of the
Board.
The Act gives all employees these rights:
To engage in self-organization
To form, join, or help unions
To bargain collectively through a representative
of their own choosing
To act together for collective bargaining or other
mutual aid or protection
To refrain from any and all these things.
WE WILL NOT do anything that interferes with these
rights. More specifically,
WE WILL, subject to reasonable rules and regulations,
allow nonemployee union organizers to have access on
our vessels to our employees during their free time for
the purpose of soliciting them on behalf of any labor
organization, or for consulting, advising, meeting, or
assisting our employees in regard to their rights to self-
organization.
WE WILL NOT in any other manner interfere with
your right to make a free and untrammeled choice in
any election conducted by the National Labor Rela-
tions Board.
SIOUX CITY AND NEW
ORLEANS BARGE LINES,
INC.
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
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.
Any questions concerning this notice or compliance with
its provisions may be directed to the Board's Office, 210
North 12th Boulevard, Room 448, St. Louis, Missouri,
63101, Telephone 314-622-4174.