Grain Elevator, Flour & Feed Mill Workers, Etc.

National Labor Relations Board - Board Decisions

Oct 29, 1965

155 N.L.R.B. 402 (N.L.R.B. 1965)

402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
All our employees are free to become or remain, or to refrain from becoming or
remaining, members of the above named or any other labor organization.
LEAS & MCVITTY, INCORPORATED,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
NOTE.-We will notify the above-named employee if presently serving in the
Armed Forces of the United States of his 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.
If employees have any question concerning this notice or compliance with its provi-
sions , they may communicate directly with the Board's Regional Office, Sixth Floor,
707 North Calvert Street, Baltimore, Maryland, Telephone No. 752-8460, Extension
2100.
Grain Elevator, Flour and Feed Mill Workers, International
Longshoremen Association , Local 418, AFL-CIO 1 and Conti-
nental Grain Company 2
Seafarers' International Union of North America' and Continen-
tal Grain Company. Cases Nos. 13-CC-350 and 13-CC-351.
October 3939, 1965
DECISION AND ORDER
On November 13, 1963, Trial Examiner David London issued his
Decision in the above-entitled proceeding, finding that Respondent
ILA, Local 418, had engaged in and was 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. Additionally, the Trial Examiner found that
Respondent SIUNA had not committed any unfair labor practices and
recommended dismissal of the complaint insofar as it, alleged viola-
tions by SIUNA. Thereafter, the General Counsel and both Respond-
ents Local 418 and SIUNA filed execptions and supporting briefs.4
The Board has reviewed the rulings made by the Trial Examiner at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Decision,
the exceptions and briefs, and the entire record.in this ease, and hereby
adopts the findings, conclusions, and recommendations of the Trial
Examiner to the extent that they are consistent with this Decision
.and Order.
Hereinafter referred to as ILA, Local 418, or Local 418.
' Hereinafter referred to as Continental.
3 Hereinafter referred to as SIUNA.
'As the record , exceptions , and briefs adequately present the issues and the positions
,of the parties, Respondents' requests for oral argument are hereby denied.
155 NLRB No. 45.
GRAIN ELEVATOR, FLOUR & FEED MILL WORKERS, ETC. 403
The complaint alleges that Respondent SIUNA was involved in a
labor dispute 5 with Upper Lakes Shipping Ltd., a Canadian corpora-
tion 6 hereinafter called Upper Lakes, and that in furtherance thereof,
during the limited period from February 15 to June 20, 1963, Respond-
ents SIUNA and Local 418 induced and encouraged employees of Con-
tinental, members of Local 418 employed at grain elevators A and B at
the port of Chicago, not to perform services or load Continental's
grain on ships operated by Upper Lakes and threatened Continental
with a strike with an object in each instance of forcing or requiring
Continental, a neutral,7 to cease doing business with Upper Lakes in
violation of Section 8(b) (4) (i) and (ii) (B).
1. The relationship between Continental and Upper Lakes
The Respondents contend initially that Continental and Upper
Lakes are operationally integrated, thereby constituting "allies," "sin-
gle employers," or "joint venturers," as those words of art are custom-
arily utilized in an 8(b) (4) context. If this contention is valid, it
would then follow that Continental would lose its status as a neutral,
disinterested party to that dispute. In such circumstances, Conti-
nental would not be entitled to the protection which Congress bestowed
upon neutral employers in enacting 8(b) (4) (B) and the direct eco-
nomic pressure brought to bear on Continental herein would accord-
ingly constitute lawful primary activity for purposes of that section
of the Act. However, as elaborated below, we are not persuaded, on
the entire record, that Respondents' contention is meritorious.
Continental is engaged in the business of buying and selling grain
in domestic and foreign markets. In connection with its multimillion-
dollar-a-year operation, Continental owns and maintains a network of
grain elevators at ports throughout the United States.8 Upper Lakes
5 The complaint contains no allegations as to the precise nature of the underlying dis-
pute between the parties.
U Respondent ILA contends that the Board cannot assert jurisdiction over the instant
complaint in view of the Supreme Court 's "foreign flag" rulings (Frank W. McCulloch v.
Sociedad Nacional de Marineros de Honduras ( United Fruit Co.), 372 U S. 10, and Incres
Steamship Co., Ltd v. International Maritime Workers Union , et at. , 372 U S. 24). We find
no merit in this contention . These cited cases are inapposite to the instant situation. For
here an American corporation , Continental , filed unfair labor practice charges against two
American labor organizations alleging that they violated the Act by engaging in certain
specific conduct which occurred on American territory and did not directly involve the
relationship of Upper Lakes , a foreign corporation , and its foreign employees. Local
1355, International Longshoremen 's Association ( Ocean Shipping Service , Ltd.), 146
NLRB 723 ; Great Lakes District , Seafai era' International Union of North America, AFL-
CIO, etc., 139 NLRB 216; and William Benz, et at. v . Companies 1 av,era Hidalgo, 353
U.S. 138, 143, at footnote 5 therein . Also, cf. Trial Examiner ' s instant decision at foot-
note 14 therein.
7 The complaint alleges that Continental is not involved in a labor dispute with Respond-
ent SIUNA or Respondent Local 418, the latter being the collective-bargaining repiesenta-
tive of Continental ' s employees at grain elevators A and B in Chicago for the past 25
years.
8 The particular conduct in question here occurred exclusively at Continental ' s Chicago
elevators . All the episodes , except that of June 20, 1963, occurred at elevator B.
212-809-66-vol. 155-27
404 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
is a Canadian corporation comprised of three companies performing
related services-Upper Lakes Shipping Ltd., (shipping bulk car-
goes), Trans-Lake Chartering Ltd. (chartering), and Three Rivers
Grain & Elevator Company Limited (elevator storage).
According to the undisputed testimony of Upper Lakes' Executive
Vice President Mayer, Upper Lakes does not either directly or indi-
rectly own any part of Continental or its wholly owned Canadian
subsidiary, Continental Grain Ltd., Winnipeg. Nor do Upper Lakes'
officers and directors occupy similar positions with Continental. Con-
versely, Continental does not own any part of Upper Lakes, nor do
Continental's officers and directors occupy similar positions with
Upper Lakes. It is thus apparent that the Continental and Upper
Lakes enterprises are not commonly owned and are not commonly
controlled, either by virtue of interlocking corporate directorates or
otherwise.
Nevertheless, these two corporate entities have been involved in
numerous business dealings through the years. By far the most signi-
ficant dealings for the purpose of this case have occurred since the
opening of the St. Lawrence Seaway in 1959. Prior to 1959 Continen-
tal shipped only small quantities of grain on the Great Lakes. When
it desired to do so, Continental utilized the services of lake carriers
owned by various companies, including Upper Lakes. These services
were ordered on an individual basis under simple common carriage
for hire arrangements. No long-term formal contractual agreements
were involved. Continental and Upper Lakes transacted business
essentially oil this basis for approximately 10 years (1949-59).
The opening of the Seaway, however, revolutionized the entire grain
exporting business. It enabled big lakers (400,000-730,000 bushel
capacity) to travel from U.S. ports via the Great Lakes to such Cana-
dian ports as Montreal, Quebec, Three Rivers, and Sorrell. This, in
turn, made it possible to use the St. Lawrence River to transship grain
to European and other foreign ports. It thus became essential from
the standpoint of business competition for Continental to acquire a
St. Lawrence Seaway port in Canada, where it could store grain and
transship it on demand to Europe and the Far East via oceangoing
liners.9
Continental had two available alternatives to meet its needs-either
make a multimillion dollar investment and build its own grain elevator
or arrange to use someone's existing facility. Continental chose the
latter course; it entered into an arrangement with Upper Lakes in
1961. A similar arrangement was in effect through the end of the 1963
shipping season, whereby Continental obtained the right to use 2.8
million of the 6 million bushel capacity at Upper Lakes' Three Rivers
D There are public grain elevators at the St. Lawrence Seaway ports, but Continental
and other companies are only permitted to store grain there for short periods of time.
GRAIN ELEVATOR, FLOUR & FEED MILL WORKERS, ETC. 405
grain elevators.10 In consideration therefor, Continental agreed to use
Upper Lakes' shipping services for all of its grain destined for these
storage elevators. When the grain arrives there, Continental also pays
Upper Lake a regular Canadian-Government-imposed tariff on a daily
basis. This is the uniform rate that any other company would pay at
Three Rivers or any other St. Lawrence port. Also, under this ar-
rangement, Trans-Lake Chartering, one of three aforementioned
companies comprising Upper Lakes, is obliged to give Continental
Canada Ltd., Winnipeg, "agency wheat" 11 to the extent of one-third
the total volume of U.S. grans that Continental puts through the
Three Rivers' elevator. Apparently, this entire agreement was subject
to Canadian Government regulations concerning how early or late in
the season American grain can be shipped through Canadian ports and
how much of it can be stored in Three Rivers.
While Continental today has arrangements with other companies to
provide shipping services on the St. Lawrence under simple common
carriage for hire agreements, only the aforementioned Upper Lakes'
arrangement entitles Continental to utilize grain storage facilities and
to obtain "agency wheat" as well. It is thus evident that the above
arrangement is not similar either to Continental's earlier arrange-
ments with Upper Lakes or to any of its current relationships with
other carriers.
Mindful of the presence of these special aspects in the Continental-
Upper Lakes business relationship, we are nevertheless of the opinion
that Respondents have failed to satisfy their burden 12 of establishing
a basis for applying the "ally," "single employer," or "joint venture"-
type concepts here. In arriving at this conclusion after scrutinizing
the instant facts, we are persuaded particularly by the absence of any
common ownership or common control and by the fact that these two
companies are operated independently.13 Accordingly, we find, in
10 The 2.8 million bushels represents the total amount of American grain that can be
stored by Three Rivers. The grain may remain in the Three Rivers elevators indefinitely,
depending upon the demand for it by various foreign countries. In practically all cases,
title to the grain remains vested in Continental while the grain is stored at Three Rivers;
title passes to the purchaser by a negotiable bill of lading when the boats are loaded at
Three Rivers.
u The "agency wheat" concept is admittedly complicated. Essentially, it works as
follows: The Canadian Wheat Board, a subdivision of the Canadian Government, owns
wheat and pays various Canadian grain merchants a commission and interest for making
the flnanciai, transportation, and storage arrangements with respect to these shipments.
In these circumstances, the wheat is described as agency wheat.
13 Chauffeurs, Teamsters, Warehousemen and Helpers Local Union No. 135, affiliated
with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, A. F. of L. (Marsh Foodliners, Inc.), 114 NLRB 639, 642
33 Cf. N.L,R.B. v. Denver Building and Construction Trades Council, et al. (Gould &
Preisner), 341 U.S. 675, National Union of Marine Cooks and Stewards and Pacific Coast
Firemen, oilers, Watertenders & Wipers Association (Irwin-Lyons •Lnmber Company), 87
NLRB 54, Local 282, International Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America (Acme Concrete & Supply Corp.), 137 NLRB 1321, and Miami
Newspaper Printing Pressmen Local No. 46, etc. (Knight Newspapers, Inc.), 138 NLR1
1346, 1347-1348, enfd. 322 F. 2d 405 (C.A.D.C.).
406 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
agreement with the Trial Examiner, that Continental is a neutral
employer in the instant case for purposes of Section 8(b) (4) (B).
2. SIUNA's liability
Respondent Searfarers' International is a parent organization com-
prised of four affiliated district organizations, including SIU, Canada.
As found by the Trial Examiner, these districts operate autonomously
of the International. Mr. Hal Banks is president of SIU, Canada,
and, in addition, an executive vice president of Seafarers' Interna-
tional. His union, SIU, Canada, was engaged in a labor dispute with
Upper Lakes. In furtherance of this dispute, Banks delivered a
speech to a Great Lakes District meeting of the ILA in Detroit on
March 1, 1963; Banks talked about his union and then asked the con-
vention comprised of 200-250 delegates to support his union again in
1963 as it had in 1962, namely, by not loading Upper Lakes' vessels.
Local 418's representatives, employees of Continental, were in attend-
ance and participated in a voice vote to support Banks' plea.
With respect to SIUNA's alleged commission of an unfair labor
practice, the complaint rests exclusively on this above-described inci-
dent and it is the basis upon which the General Counsel seeks to impose
responsibility on the Seafarers' International.14 Thus, it is the Gen-
eral Counsel's contention that Banks' speech induced Continental's
employees in attendance at the meeting and likewise constituted a
threat to Continental with an object of forcing Continental to cease
doing business with Upper Lakes in violation of 8(b) (4) (i) and
(ii) (B). We find, however, in agreement with the Trial Examiner's
finding and his rationale, as well, that the mere fact that SIU, Canada,
and SIUNA are affiliated is not itself sufficient to establish the respon-
sibility of Respondent Seafarers' International for Banks' conduct.
Accordingly, without reaching the question whether Banks' above
speech constituted lawful primary strike action or an inducement to
engage in unlawful secondary boycott activity, we find that the named
Respondent, SIUNA, is not responsible for any of the acts in question
alleged to have constituted unfair labor practices. We shall therefore
dismiss the complaint with respect to SIUNA.
3. ILA, Local 418's liability
The General Counsel alleges that Local 418, through the acts of
President Connor, Trustee Garvey, Acting Steward Novosel, and
Steward Simmons, violated Section 8(b) (4) (i) and (ii) (B) on
numerous occasions during the period February 15 to June 20, 1963,
"While the record also contains tangential reference to comments made by a \Ir Al
Tanner which may arguably have constituted unlawful inducements of Continental's
employees not to load Upper Lakes ' ships , the record does not establish that Tanner is
either a SIUNA official or an agent of the named Respondent.
GRAIN ELEVATOR, FLOUR & NEED MILL WORKERS, ETC. 407
by inducing its members, employees of Continental, not to load Upper
Lakes' vessels and by threatening Continental's officials with an object
in each instance of forcing Continental to cease doing business with
Upper Lakes.
Relying principally on the conduct of President Conner, the Trial
Examiner found that Local 418 engaged in numerous specific acts con-
stituting inducements and threats within the meaning of 8 (b) (4) (i)
and (ii) (B). The Respondent takes issue with these findings on two
general counts : (1) there was insufficient evidence to establish any
inducements or threats; and (2) even assuming the sufficiency of such
evidence, the inducements and threats did not constitute 8(b) (4) (i)
and (ii) (B) violations as a matter of law. We shall address ourselves
to these contentions seriatim.
First, we are mindful of the fact that there is little direct evidence
to establish that Conner, or indeed any other Local 418 official, induced
or encouraged Continental's employees not to load Upper Lakes' ships.
We are not persuaded, however, that the seeming lack of such evidence
is necessarily fatal to the General Counsel's case. For the circumstan-
tial evidence present ineluctably draws us to the opposite conclusion.
Thus, it is clear from the undisputed testimony of Continental's execu-
tive vice president, Julius Mayer,15 that he requested Conner's assist-
ance in getting Upper Lakes' ships loaded but that Conner informed
him time and time again during the critical period herein that : (1)
Local 418 was supporting Banks' union, SIU, Canada, in its dispute
with Upper Lakes; (2) Conner would not instruct his men to load
Upper Lakes' vessels; and (3) Continental's grain would be loaded if
Continental used vessels of another shipping company. Additionally,
Mayer testified that Conner made several references to the fact that
there was an "invisible picket line" around Upper Lakes' vessels
rocked alongside Continental's Chicago grain elevators and that Con-
tinental would have trouble at its Texas elevators and with its railroad
boxcars at Chicago and elsewhere if it persisted in attempts to get
Upper Lakes' ships loaded. Furthermore, the testimony of Trustee
Garvey,16 a union officer under the express terms of Local 418's consti-
tution and bylaws, discloses that he attended a union meeting in April
1963 together with Conner and other union officials, that the SIU-
Upper Lakes situation was discussed, and that it was agreed that the
situation would remain the same-Local 418 would continue to refuse
to load Upper Lakes' ships.17 As evidenced by the mentioned pro-
15 The Respondent Local 418 's contention to the contrary nothwithstanding, we find no
basis for reversing the Trial Examiner 's determination that Mayer was a credible witness.
16 The testimony of Continental Superintendent Goldschmidt and Assistant Superin-
tendent Borchert corroborates Garvey's above version
17 One month earlier, in March 1963 , delegates of Local 4118 attended a meeting of
Great Lakes District of ILA in which the latter body also voted to support Banks' union
in its dispute with Upper Lakes.
408 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
nouncements of its high echelon officials, Local 418's established and
unequivocal policy was thus to support SIU, Canada, in its dispute
with Upper Lakes by refusing to load Continental's grain on Upper
Lakes' ships at Continental's Chicago elevators.
The remaining evidentiary question is whether the ensuing failure
to load the SS Shaw on numerous occasions between April 21 and
June 20, 1963, was attributable in each instance solely to the individual
decisions of all of Continental's employees, as urged by Respondent
418, or rather to the fact that Local 418's above policy was disseminated
to its membership and they acted in reliance thereon. The latter ex-
planation, in our opinion, is by far the more plausible. Indeed, we
note that Conner informally called a union meeting on May 29 to
discuss the course of action to be taken after the U.S. marshall served
each member of Local 418 with a certified copy of the Federal district
court's 10(l) injunction order.18 Subsequently, Conner announced to
management's representatives at the dock that the Shaw would not be
loaded. And it was not loaded. This episode, in our view, simply
illustrates that decisions whether or not to load Upper Lakes' vessels
were, in fact, union decisions, not those of some 25 bargaining unit
members who coincidentally, although acting as individuals, all hap-
pened to be of one and the same mind. Accordingly, we find that Local
418 induced or encouraged its membership not to load Upper Lakes'
vessels with an object of forcing Continental to cease doing busi-
ness with Upper Lakes within the meaning of Section 8(b) (4)
(i) (B).19 We likewise find that Conner's mentioned comments to
Mayer constitute threats for a similar object within the meaning of
Section 8(b) (4) (ii) (B).
It is thus clear that Respondent Local 418 engaged in conduct which
falls within the literal language of Section 8(b) (4) (B). Neverthe-
less, Local 418 urges that its activity constitutes traditional primary
strike action and therefore is not violative of the Act.
We agree that primary strike action is lawful for purposes of Sec-
tion 8(b) (4) (B) even though it may fall within the literal strictures
of that section. Indeed, this very principle has found expression in
Board decisions ever since the passage of the Taft-Hartley amend-
ments. In rejecting a literal interpretation of Section 8(b) (4) (A),
the predecessor of the present Section 8(b) (4) (B), the Board fre-
quently pointed out that the legislative history of Taft-Hartley demon-
strated persuasively that the Congress only sought to ban certain
Is As pointed out in the Trial Examiner 's Decision, this injunction required that Local
418, its officers and agents, withdraw all requests and appeals to employees of Continental
not to load grain on Upper Lakes' ships and further required Local 418 , its officers and
agents, to advise the employees that they were free to perform any and all services tor
Continental in loading Upper Lakes' ships
19lnternational Brotherhood of Electrical Workers, Local 501, et al. ( Samuel Langer)
v. N.L.R.B., 341 U.S. 694.
GRAIN ELEVATOR, FLOUR & FEED MILL `YORKERS, ETC. 409
secondary activity.20 The primary-secondary dichotomy was again
endorsed by the Congress in the 1959 Landrum-Griffin amendments-
the proviso to Section 8(b) (4) (B) expressly protects primary strikes
and primary picketing. It is thus manifest that this section was in
nowise intended to interfere with labor's right to engage in traditional
primary strike action and it therefore cannot be read literally, lest
all traditional activity be prohibited.21
We are asked to hold that Local 418's inducements of Continental
employees to refuse to perform certain duties falling within the nor-
mal scope of their employment do not fall within 8 (b) (4) (B)'s ban
against secondary activity because SIU, Canada, lawfully could have
made similar inducements to those employees, had it chose to do so 22
To support this premise, Local 418 relies on Moore Dry Dock 23 as
establishing that SIU, Canada, could have established a lawful pri-
mary picket line around the SS Shaw, while that vessel was at Con-
tinental's premises, with the object of Inducing Continental's employ-
ees not to load the vessel; on such cases as Pure Oil Company 24 and
Interborough News Company 25 as establishing that SIU, Canada,
could have addressed nonpicket line appeals to Continental's employ-
ees in the form of "hot cargo letters," convention appeals, and the like,
so long as such appeals only induced action at the situs of the dispute;
and on cases such as Milwaukee Plywood Company,26 and Columbia-
Southern Chemical Corporation,27 as establishing that Local 418,
though not involved directly in a dispute with Upper Lakes, could
engage in exactly the same kind of inducement of secondary employees
as SIU, Canada, lawfully could have done.
While there is an appearance of logic to the argument as spelled out
by Local 418, all minor premises have by no means been proven. Thus,
while the Board has indicated in certain cases that a secondary union
w See, for example , Oil Workers International Union, Local Union 346 CIO (The Pure
Oil Company ), 84 NLRB 315 , 318, and International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America, Truck Drivers and Chauffeurs, Local Union
No. 807 ( Schultz Refrigerated Service, Inc .), 87 NLRB 502, 504,
21 See Local 791, International Union of Electrical , Radio and Machine Workers, AFL-
010 (General Electric Company ) v. N.L.R.B., 366 U.S. 667, subsequently cited with ap-
proval in the Supreme Court's decision in United Steelworkers of America, AFL-CIO
( Carrier Corp .) v. N.L.R.B., 376 U.S. 492.
Z' The record does not show the precise reasons why SIU, Canada , did not picket the SS
Shaw but it appears that it was enjoined from picketing Upper Lakes vessels in the
Chicago area.
zi Sailors Union of the Pacific, AFL (Moore Dry Dock Company ), 92 NLRB 547.
.% Oil Workers International Union, Local Union 346, CIO (The Pure Oil Company), 84
NLRB 315. See also Moore Dry Dock Company , supra.
25 Newspaper and Mail Deliveries ' Union of New York and Vicinity ( Interborough News
Company ), 90 NLRB 2135. See also International Organization of Masters , Mates and
Pilots of America, Inc., AFL-CIO, et al. (Chicago Calumet Stevedoring Co., Inc.), 125
NLRB 113.
28 Chauffeurs, Teamsters and Helpers "General" Local No. 200 (Milwaukee Plywood
Company ), 126 NLRB 650.
' United Association of Journeymen and Apprentices of the Plumbing and Pipefitting
Industry of the United States and Canada (AFL) Local 106, at al. (Columbia-Southern
Chemical Corporation ), 110 NLRB 206.
410 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
violates Section 8(b) (4) (B) if its inducements of secondary employ-
ees are more in support of unlawful inducements of the same employ-
ees by the primary unlon,28 no case has been cited in support of the
proposition that such inducements necessarily constitute legitimate
primary activity in the absence of such unlawful inducements by the
primary union. The Colombia Chemical case merely establishes that
secondary unions may induce primary employees to respect the pri-
mary picket line posted at their employer's place of business on a com-
mon situs, even though it has been posted by another union. Milwau-
kee Plywood establishes no more than that a secondary union may
induce secondary employees, whom it represents, to respect a primary
picket line posted by another union at a fixed primary situs. These
cases do not establish the principle that a secondary union may induce
secondary employees to respect a nonexistent or "phantom" picket line
around an ambulatory primary situs, temporarily located on their
employer's premises. Indeed, in Fairway Farms, Inc.,20 the one case
involving such activity which has been brought to our attention, the
Board found that appeals of a secondary union to secondary employ-
ees, whom it represented, asking them not to load the trucks of the pri-
mary employer, constituted violations of Section 8(b) (4) (B). Thus,
the Fairway Farms decision stands for the proposition that, in the
absence of a lawful primary picket line around the ambulatory pri-
mary situs when it is present at a neutral employer's premises, the sec-
ondary union may not induce the employees of that neutral employer
to refuse to make deliveries of their employers' products to the pri-
mary employer if such action is within the scope of their normal duties.
We see no reason to reach a different result herein; nor do we believe
a different result is required by the Pure Oil and Interborough News
decisions 30 In those cases, primary unions addressed appeals to
employees of neutral employers at their employers' premises, which, in
essence, notified the secondary employees that the primary employer
was strike bound and asked the secondary employees to refuse to per-
form services at the primary employer's premises if and when their
normal duties would bring them to such premises. In each of those
cases, the non-picket-line appeals were in implementation of permis-
sible picket line activity at the primary situs. The problem posed in
each case was the familiar, yet difficult, one of determining whether
the nonpicketing appeals were intended to induce action only at the
29 United Marine Division , Local 333 , International Longshoremen's Association (Inde-
pendent); et al., (New York Shipping Association ), 107 NLRB 686; Retail Fruit & Vege-
table Clerks Union, Local 1017, and Retail Grocery Clerks Union, Local 648, Retail Clerks
International Association , AFL-CIO ( Crystal Palace Market ), 116 NLRB 856, enfd. 249
F. 2d 591 (C.A. 9).
20 Local 584 , International Brotherhood of Teamsters , Chauffeurs, Warehousemen and
Helpers of America ; Local 182, International Brotherhood of Teamsters , etc., (Fairway
Farms, Inc.), 141 NLRB 638. Panel of Members Rodgers, Fanning, and Brown.
80 See also Moore Dry Dock Company, supra, and Chicago Calumet Stevedoring Co., Inc.,
supra.
GRAIN ELEVATOR, FLOUR & FEED MILL WORKERS, ETC. 411
primary situs and thus amounted to no more than a request not to cross
a primary picket line, or were directed towards inducing action
directed against the secondary employer in order to force it to cease
dealing with the primary employer. It is apparent in each case that
the existence of the primary picket line confronting the secondary
employees, when they came to perform services for their employer at
the primary employer's premises, was a crucial factor in the Board's
conclusion that the nonpicketing appeals of the primary union
"amounted to nothing more than a request to respect a primary picket
line at the Employer's premises." 31 Contrary to Local 418's conten-
tion, these cases do not establish the right of a secondary union to
induce employees of a secondary employer, at whose premises the
ambulatory situs is temporarily located, to refuse to perform services
for their employer in the absence of a lawful picket line. Rather, we
think these decisions comport with our conclusion that, at least in a
case such as this one, where the labor dispute is between a primary
employer with an ambulatory situs and a union other than the one
which seeks to induce secondary employees to take action because of
that dispute, there must be some clear and contemporaneous notice
given by the primary union to the employees appealed to, and to the
neutral employer at whose premises the dispute becomes active, that
the labor dispute involved is between it and the primary employer.
Unless such notice is given, the dispute takes on the appearance and
character of a dispute between the "inducing" union and the neutral
employer over the latter's dealings with the primary employer rather
than of a dispute between the primary union and the primary
employer.
In cases involving picketing of an ambulatory situs temporarily
located at a neutral's premises, the Board, in recognition of the fact
that-
... picketing which induces secondary employees to respect a
picket line is not the equivalent of picketing which has an object
of inducing those employees to engage in concerted conduct
against their own employer in order to force him to refuse to deal
with the struck employer... 32
applies the Moore Dry Dock tests 33 to determine whether the picketing
has one or the other of these objects. These tests require, in effect, that
33 Pure Oil Company, supra, cited in each of the other cases herein discussed. Although,
in Interborough News, the primary union did not picket "each and every one" of the en-
trances to the primary premises, the Trial Examiner did find that the picketing placed
the secondary employees, who were asked not to make newspaper deliveries to those
premises , on notice that the premises were strikebound.
32Local 761, Electrical Workers, IUE (General Electric Company) v. N.L.R.B., 366
U.S. 667.
33 The Moore Dry Dock tests require that picketing and accompanying appeals be limited
in time and place to the immediate vicinity of the primary situs ; that the primary
employer be engaged in his normal business at such situs ; and that the union clearly
identify that its dispute is with the primary employer.
412 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the picketing union give notice to the neutral employer's employees,
as well as to all other employees who have business with the neutral
employer, that its dispute is with the primary, not the netural employer.
Though these tests impose some limitation on the union's freedom to
picket the primary employer, they nevertheless do protect its right,
and the right of `other unions who would aid its cause, to appeal to all
employees approaching the picket line to extend the union member's
traditional gesture of support to the primary union, namely a refusal
to cross its lawful picket line in order not to contribute to the opera-
tions the picket line is endeavoring to halt, while at the same time they
protect the neutral employer, at whose premises the dispute is located,
from becoming an object of secondary pressure.
The underlying considerations that lead the Board in ambulatory
situs situations to infer an unlawful objective when picketing deviates
from Moore Dry Dock standards also dictate a like inference where
pressures are exerted against the neutral employees by a secondary
union in the absence of a picket line directed at the primary employer
while the situs of the dispute is lodged at the neutral premises. A fail-
ure to draw an inference of illegality in such circumstances would
give, it seems to us, greater freedom to secondary unions to disrupt the
business of the neutral employer whose premises temporarily house the
primary ambulatory situs, than is given under our Moore Dry Dock
tests to the primary union directly involved. Moreover, to permit such
conduct on the theory that a "phantom" or "invisible" picket line is
to be presumed even though there is no picket line in fact, would pro-
vide a ready device for evading the effects of an injunction prohibiting
picketing that might be obtained against the primary union 34 It
as It should be noted that the record reveals that a few weeks prior to the arrival of
the SS Shaw at Continental 's dock, Connor , president of Local 418 , gave Gunther Gold-
schmidt, superintendent of Continental 's grain elevator , a list of ships owned by Upper
Lakes Shipping , and informed him that there would be trouble loading those ships be-
cause they would be picketed as a result of the labor conflict between SIU, Canada, and
Upper Lakes . Shortly thereafter , the SS Erickson, one of the ships listed , appeared at
Continental 's dock. A picket line was established around the ship and it was not loaded
until after the picket line was removed pursuant to an injunction obtained by Continental.
Two weeks later , the SS Shaw docked for the purpose of receiving Continental 's grain.
Though the SS Shaw was not picketed because of the fact that Continental had obtained
the aforementioned injunction, as was pointed out to Connor by an official of Continental,
Local 418 members employed by Continental refused to load the ship.
It should also be noted that the parties to the primary dispute, Upper Lakes Shipping,
the owner of the SS Shaw , under a foreign flag, and SIU , Canada , were both beyond the
jurisdiction of the Board to prosecute or protect in matters directly relating to their
primary dispute (Incres Steamship Co. v. Maritime Workers , supra; McCulloch v. Sociedad
National de Marineros , supra ). Charges filed by the SIU against Upper Lakes and the
rival Canadian National Maritime Union and Canadian Brotherhood of Railway Workers
alleging violations of Section 8(a) (1), (2 ), and (3 ) and 8 ( b) (1) (A) and (2) of the
Act were accordingly dismissed by the General Counsel on February 19, 1963. State
action directed at such matters was, therefore , not preempted under San Diego Building
Trades Council, et at. v. J. S. Garmon, et al., 359 U.S 236 Conduct in connection with
such a dispute which is found to have a proscribed object under Section 8 ( b) (4) (B) in
relation to an employer within the Board's jurisdiction , however, is clearly cognizable
under the Act. Great Lakes District, Seafarers' International Union of North America,
AFL-CIO, et al. (Upper Lakes Shipping, Ltd.), 139 NLRB 216.
GRAIN ELEVATOR, FLOUR & FEED MILL WORKERS, ETC. 413
would also destroy the careful balance now existing between the right
of the primary union, and those unions who would take up its cause, to
appeal to employees approaching struck "ambulatory" premises to
refrain from entering those premises, and the right of the neutral
employers to remain free from pressures directed towards forcing them
to cease dealing with the primary employer.
Accordingly, as Local 418 engaged in the acts of inducement com-
plained of in response to appeals for support made by SIU, Canada,
long before the primary situs in the form of the SS Shaw was located
at Continental's premises, as Local 418's inducements were not in im-
plementation of a lawful SIU, Canada, picket line nor of any other
contemporaneous notice by SIU, Canada, that it was engaging in a pri-
mary dispute with Upper Lakes Shipping, and as Local 418 made
direct threats to Continental of trouble elsewhere if it persisted in
using Upper Lakes ships to transport its grain, we find that Local
418's inducements of Continental employees to refuse to load Conti-
nental's grain on the SS Shaw, as well as its direct threats to Conti-
nental officials, were engaged in with an object of forcing Continental
to cease dealing with Upper Lakes Shipping, and, therefore, violated
Section 8(b) (4) (i) and (ii) (B) of the Act.35
[The Board adopted the Trial Examiner's Recommended Order.]
MEMBERS BROWN and JENKINS, dissenting in part :
For the reasons set forth in the majority opinion, we concur with our
colleagues' conclusion to dismiss the instant complaint against Sea-
farers' International Union. We disagree, however, with their further
finding that ILA, Local 148, violated Section 8 (b) (4) (i) and (ii) (B)
of the Act.
As we analyze the case, Upper Lakes, a Canadian corporation, and
SIU, Canada, were involved in a primary labor dispute and Respond-
ent Local 418 engaged in sympathy action in support of the striking
union's cause. Accordingly, even though SIU, Canada, is not a party
Respondent, we initially turn our attention to the nature of its conduct
and the concomitant question whether such conduct constitutes lawful
primary strike action. For it is our understanding both from prior
Board and court decisions that the liability of a secondary or stranger
union engaged in sympathy action is linked closely with the legality of
the striking union's own conduct under Section 8 (b) (4) of the Act.36
We find no merit in Respondent 's contention that General Counsel's conduct in issuing
the instant complaint was unfair , arbitrary , or capricious.
86 See Milwaukee Plywood Company, 126 NLRB 650 , enfd. 285 F . 2d 325 (C.A. 7) ;
Truck Drivers Union Local No. 413, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen & Helpers of America, et at. v. N.L.R.B., 334 F. 2d 539 , 542-546 (C.A.D.C.),
cert. denied 379 U.S. 916 . See also, New York Shipping Association , 107 NLRB 686, and
Crystal Palace Market, 116 NLRB 856 , enfd. 249 F . 2d 591 ( C.A. 9). In New York
Shipping Association and Crystal Palace Market, for example, the striking union engaged
414 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1. Background analysis concerning SIU, Canada's conduct
In most cases involving an industrial facility, a struck employer's
plant occupies a fixed geographical location and these premises are, in
effect, coterminous with the situs of the primary dispute. There are
certain special mobile industries, however, including that involved
herein, where the primary situs is roving or ambulatory and not limited
to a fixed location. Thus, the Upper Lakes' ships are properly deemed
the "sites" of the primary dispute in which seamen represented by
SIU, Canada, are seeking recognition from Upper Lakes 37 Where a
roving primary situs is temporarily located at the premises of a neu-
tral employer, we have a so-called "common situs" situation. The gen-
eral principles pertaining to common situs situations were developed
in Moore Dry Dock (92 NLRB 547) and were designed to balance two
competing interests, namely, labor's right to engage in primary strike
action vis a vis the insulation of neutral employers from economic pres-
sures flowing from disputes not of their own making.
Provided that the striking union complies with Moore Dry Dock con-
ditions, it may engage in lawful primary picketing, albeit on the prem-
ises of a neutral employer38 In such circumstances, the Board has also
held in Moore Dry Dock, Pure Oil Company,30 and Chicago Calumet
Stevedoring Co. Inc., 40 that so-called "hot letters" written by the strik-
ing union appealing to other labor unions representing employees of
neutral employers not to cross a picket line to perform services at the
situs of the dispute constitute lawful primary activity. Direct oral
appeals by representatives of the striking union to employees of neu-
tral employers inviting action at the situs have likewise been accorded a
protected status.41 The Board's rationale was that the letters and oral
appeals invited action only at the situs of the dispute and were thus
tantamount to a striking union's resort to the traditional primary
weapon of establishing a picket line to appeal to neutral employees at
the situs not to enter the struck premises. Significantly, neither the
fact that the inducement actually took place on a neutral employer's
premises nor that it had an object falling within the statute's literal
language militated against the Board's "lawful primary action"
findings.
in 8(b ) ( 4) conduct because its picketing at a neutral employer ' s premises failed to comply
with Moore Dry Dock. In such circumstances , where a secondary union lent its support
by inducing its membership not to cross a picket line at the secondary sites, the Board
found that the unions were acting in concert or as joint venturers and the secondary
union was held jointly accountable for the 8 ( b) (4) violation.
87Sailors' Union of the Pacific, AFL ( Moore Dry Dock Company ), 92 NLRB 547, and
Seafarers' International Union of North America, Atlantic and Gulf District , AFL-CIO
(Salt Dome Production Co.) v. N.L.R.B., 265 F. 2d 585 (C A.D.C.) reversing 119
NLRB 638.
31 "The location of the picketing is an important but not decisive factor." United Steel-
workers of America (Carrier Corp.) v. N.L.R.B., 376 U.S. 492, 499.
39 84 NLRB 315.
40125 NLRB 113.
41lnterborough News Company, 90 NLRB 2135.
GRAIN ELEVATOR , FLOUR & FEED MILL WORKERS , ETC. 415
This rationale is equally relevant here. In furtherance of its pri-
mary labor dispute, SIU , Canada, could have followed Upper Lakes'
ships and engaged in lawful primary picketing at Continental 's dock,
provided that it complied with Moore Dry Dock. Additionally, prior
to the time that Continental 's employees arrived at the picket line,
SIU, Canada , could have appealed to them either directly or indirectly
through their bargaining representative , Local 418 , to refrain from
performing services at the sites.
While SIU , Canada , was not engaged in picketing during the cru-
cial period herein ,42 it did, through its president , Hal Banks, make ver-
bal overtures of like import to Continental 's employees. Banks
addressed a Great Lakes District meeting of the ILA in Detroit on
March 1, 1963 , and encouraged the delegates , who included , inter alia,
members of Local 418 employed by Continental , to support his union
in its dispute with Upper Lakes by refusing to load vessels of the
struck employer . If this conduct of SIU, Canada, were an issue, we
would have found, consistent with the Pure Oil, Interborough News,
Moore Dry Dock, and Chicago Caleumet, Stevedoring approach, that
Banks' plea constituted traditional lawful primary strike action; this
is so because such conduct only invited action at the situs by neutral
employees of Continental whose mission contributes to Upper Lakes
day-to-day operations which the strike was endeavoring to halt.43
Our colleagues , however, would apparently reach an opposite con-
clusion because of the absence of picketing which clearly designates
the primary employer and defines the geographical boundary of the
primary dispute when the situs rests on a neutral employer 's premises.
It is their view that in the absence of such picketing the possibility
exists that Continental, a neutral, will be completely enmeshed in a
labor dispute not of its own making . We agree that the Board must
vigorously enforce its Moore Dry Dock conditions , lest such possibility
becomes reality . But the simple answer to the majority 's contention is
that the record evidence refutes it here. For SIU , Canada, did not
induce Continental 's employees to engage in a general strike against
their own employer; nor did Continental 's employees refuse to load
grain on ships owned by companies other than Upper Lakes 44 In
essence, then, Continental was not enmeshed in the instant dispute to
any greater extent that if SIU, Canada , had maintained a lawful picket
around the SS Shaw which resulted in a refusal by Continental's
employees to load grain on that ship. Indeed, it can be persuasively
argued that the absence of a picket line here afforded Continental, a
"The SS Erickson had been picketed in the spring of 1962. However , that picketing.
was enjoined , apparently as a result of a State court proceeding, for reasons undisclosed
by the record.
'3 Steelworkers ( Carrier Corporation ) v. N.L R B., supra, at 498-499.
"Id. at 499.
416 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
neutral, greater protection-it removed the possibility that various
third parties arriving at the situs to do business with Continental
(unrelating to loading Upper Lakes' ships) might refrain from doing
so upon observing a picket line around the struck ship. In these cir-
cumstances , we cannot subscribe to our colleagues' willingness to attach
controlling significance to the absence of actual picketing at the situs
in distinguishing between lawful primary and -unlawful secondary
activity.45
2. ILA, Local 418's liability
Having concluded that the striking union's oral appeals to Con-
tinental's employees constituted traditional primary strike action, we
now consider whether Local 418 has committed any unfair labor prac-
tices. Initially, it should be emphasized that Local 418's actions were
at most coextensive with those of the striking union. Thus, in direct
response to SIU, Canada's, plea for support, Local 418 merely appealed
to its membership not to load Continental' s grain on Upper Lakes'
ships at elevators A and B at the port of Chicago, and Local 418, in
turn, advised Continental's officials that these particular ships would
not be loaded.46 Clearly these limited appeals only invited action at
the primary situs by those employees of Continental whose duties con-
tributed to the daily operations of Upper Lakes which the strike was
endeavoring to halt.
It therefore follows that Local 418 was not engaged in unlawful
secondary action. Nor does the fact that Local 418 is a stranger union
militate against this conclusion. The Board has long recognized the
validity of this basic tenet. Thus, in Milwaukee Plywood Company,
126 NLRB 650, the Board commented significantly :
The fact that one labor organization rather than another is engag-
ing in allegedly unlawful conduct does not afford a basis to resolve
the issue of legality [primary strike versus secondary boycott].
Here the conduct of [the secondary union] ... was not substan-
tially different from the impact of the picket line itself ....` tT
To date, in analyzing sympathetic action cases under Section 8(b) (4),
the Board has endorsed the position that the key question is not "by
' The difficulty of resting a legal conclusion on such a tenuous ground is highlighted
here by the fact that picketing was once in progress , was subsequently enjoined , and yet
was still allegedly continuing as of the date of the hearing , albeit in the form of an
"invisible picket line."
" We do not attach any significance to Moyer's partially ambiguous testimony that
Connor remarked to him on one occasion that he had a message from Scotty Opherson
of the SIU that if Continental persisted in trying to load Upper Lakes' ships it would
have difficulty in getting railroad boxcars in and out of Continental 's plants and that
Connor told him (Moyer) on another occasion that Continental would have trouble at
its Texas elevators.
47 126 NLRB 650, 651 . See also, Truckdrivers Local 413 v. N.L R B., supra, footnote 36.
GRAIN ELEVATOR, FLOUR & FEED MILL WORKERS, ETC, 41 7
whom" economic pressure is being brought to bear but whether the
pressure is brought to bear on the primary employer at a situs of the
dispute.
as we read the legislative history of the provisions of Section
8 (b) (4) (A) here involved, Congress was not concerned to protect
primary employers against pressures by disinterested unions, but
rather to protect disinterested employers against direct pressures
by any union.48 [Emphasis supplied.]
Practically speaking, this has meant that a union engaged in sympa-
thetic action takes a calculated risk that the striking union's conduct
constitutes lawful primary action rather than an unlawful secondary
boycott. And, as we have seen above, SIU, Canada's, conduct clearly
fell within the former category.
In view of all the foregoing, we would find that Respondent ILA,
Local 418, was engaged in lawful primary activity and dismiss the
entire complaint.
CHAIRMAN MCCULLOCII and MEMBERS FANNING and ZAGORIA took no
part in the consideration of the above Decision and Order.
la Columbia-Southern Chemtical Corporation, 110 NLRB 206, 209.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon the filing of a charge on April 12, 1963, and an amended charge on April 17,
1963, by Continental Grain Company, hereinafter called Continental, and a charge
filed by Continental on April 22, 1963, in Case No. 13-CC-351, the General Counsel
of the National Labor Relations Board, by the Regional Director for Region 13, on
June 20, 1963, issued his order consolidating said cases, and a complaint against
Respondent Grain Elevator, Flour and Feed Mill Workers, International Longshore-
men Association, Local 418, AFL-CIO, herein called Local 418, and Respondent
Seafarers' International Union of North America, herein called Seafarers, alleging
that both Respondents had engaged in and were engaging in conduct violative of
Section 8(b)(4)(i) and (ii)(B), and Section 2(6) and (7) of the National Labor
Relations Act, as amended, 29 U S C. Section 151 at seq., herein called the Act.
In substance, the complaint alleges that in furtherance of a dispute which Respond-
ent Seafarers had with Upper Lakes Shipping, Ltd., a Canadian corporation hereafter
referred to as Upper Lakes, both Respondents have, since on or about March 1, 1963,
ordered, requested, and appealed to employees of Continental, members of, or repre-
sented by, Respondent Local 418, to refuse to perform services or load Continental's
grain on ships operated by Upper Lakes, and that since on or about February 15, 1963,
Respondent Local 418 has threatened Continental with a strike by its employees repre-
sented by that Local if Continental attempted or persisted in doing business with
Upper Lakes. The complaint further alleges that as a result of the conduct of both
Respondents aforementioned, employees of Continental have refused, and are refus-
ing, to perform services for Continental, and that an object of all of said conduct was,
and is, to force or require Continental to cease doing business with Upper Lakes.
By their separate answers, each Respondent denied the commission of any unfair
labor practice.i
1 Respondent Seafarers also contends that the complaint against that organ,ation
should be dismissed because, it claims, no copy of the charge in Case No 13-CC-351 was
ever served upon that Respondent The contention is without merit, and the motion to
dismiss based on that ground is denied
At the hearing before me, the parties stipulated that a copy of the aforementioned
charge, attached to a petition for an injunction against both Respondents herein brought
418 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pursuant to due notice, a hearing was held before Trial Examiner David London at
Chicago, Illinois, on July 30, July 31, and August 1, 1963, in which the General
Counsel, the Respondents, and the Charging Party participated and were represented
by counsel, afforded full opportunity to present evidence, examine and cross- examine
witnesses, and to present oral argument. Motions, on which ruling was reserved, are
disposed of in accordance with the conclusions that follow. Since the close of the
hearing, briefs were received from all of the parties aforementioned and have been
duly considered.
Upon consideration of the entire record in the case,`' the briefs, and my observation
of the witnesses while testifying, I make the following:
FINDINGS AND CONCLUSIONS
1. THE PERTINENT COMMERCE FACTS
Continental is a Delaware corporation engaged in the business of buying and selling
grain in domestic and foreign markets, and exports approximately 25 percent of the
total grain exports of the United States. In the fiscal year ending May 31, 1963,
Continental shipped from its elevators located at Chicago, Illinois, more than 66
million bushels of grain having a value of approximately 100 million dollars. During
the period June 1, 1962, to February 28, 1963, Continental shipped from its Chicago
elevator facilities to States other than the State of Illinois grain valued in excess of
$50,000. On the entire record I find that Continental is, and at all times material
herein has been, an employer engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
H. THE LABOR ORGANIZATIONS INVOLVED
The complaint alleges, both Respondents admit, and I find that Respondent Local
418 and Respondent Seafarers are labor organizations within the meaning of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The background
As previously found, Continental is engaged in the business of buying and selling
grain in domestic and foreign markets, and exports approximately 25 percent of all
grains exported from the United States. To handle this business, Continental main-
tains grain elevators at Chicago, Illinois, Boston, Massachusetts, Norfolk, Virginia,
New Orleans, Louisiana, Galveston, Texas, and Portland, Oregon. At Chicago, Con-
tinental maintains five such elevators, two of which are known as elevators A and B,
and it is with activities at elevator B that we are concerned. Elevator B, having a
storage capacity of approximately 6 million bushels of grain, is located on the Calu-
met River, a tributary of Lake Michigan, where it receives grain by rail, truck, barge,
and ship, and is equipped to load grain on boxcars, barges, and boats.
In furtherance of its export business originating from elevator B, Continental con-
tracts with various shipping lines to transport its grain by large lake freighters from
that elevator, via the Great Lakes, to St. Lawrence Seaway ports from which the
grain is then transshipped by ocean liners to Europe and other foreign ports. Among
the carriers so engaged by Continental is Upper Lakes, with whom Continental has
had similar arrangements for the past 15 years.
Upper Lakes maintains a grain elevator at Three Rivers, Canada, a St. Lawrence
Seaway port, having a capacity of approximately 6 million bushels. Since grain
shipped by Continental to that port for subsequent transshipment abroad must fre-
by the Board's Regional Director pursuant to Section 10(1) of the Act, and pending in
the United States District Court for the Northern District of Illinois, Eastern Division,
as Civil No 63C804, was duly served on the Respondent Seafarers by a United States
marshal at Brooklyn, New York, in May 1963, the exact day, however, not being disclosed
by the record herein. However, Seafarers, in their brief, ask that I take "judicial
notice . . . of the proceedings in the Federal Court involving the 10(1) petition of the
General Counsel " I have clone so, and find that the petition and charge aforementioned
were served on the Seafarers in Brooklyn on May 23, 1963. See International Longshore-
men's and Warehousemen's Union, at at., CIO (Waterfront Employees Association of the
Pacific Coast), 90 NLRB 1021 ; National Union of Martine Cooks and Stewards, CIO
(Pacific American Shipowners Association), 90 NLRB 1099
2 Seafarers' unopposed request, attached to its "Memorandum of Law Submitted to Trial
Examiner," to make 37 specified changes in the transcript of testimony herein is hereby
granted.
GRAIN ELEVATOR, FLOUR & FEED MILL WORKERS, ETC. 419
quently be kept in storage at that facility for prolonged periods of time pending ship-
ment and, since any use of public elevators at St. Lawrence ports must of necessity be
for a short period of time, it is essential to Continental's maintenance of its export
business through the St. Lawrence Seaway to have a storage facility available in a
St. Lawrence Seaway port such as Three Rivers. Under the current contract between
Continental and Upper Lakes, Continental obtained the use of elevator space up to
2,800,000 bushels from Upper Lakes at its Three Rivers facility. In return for the use
of that facility, Continental pays Upper Lakes the officially published tariff rates
approved by the Canadian Government.
During all times relevant herein, Upper Lakes was engaged in a work dispute in
Canada with Seafarers' International Union of Canada, a chartered affiliate of
Respondent Seafarers herein.3 Being aware of this dispute, Julius Mayer, an executive
vice president of Continental, hereafter referred to as Mayer, shortly prior to May 15,
1962, called Jack Conner, president and business representative of Local 418, the
other Respondent herein, and which union was, and since 1938 has been, the collective-
bargaining representative of Continental's employees at elevators A and B. Mayer
told Conner that Continental expected an Upper Lakes ship to be in very shortly and
asked whether he "would be helpful in instructing his men to load it." Conner
replied • "I am not going to tell my men to load or not to load; that's up to them," but
added that they were supporting the SIU dispute and he therefore did not think his
men would unload any Upper Lakes ships.
Within a few days of this conversation, the SS Erickson, operated by Upper Lakes,
arrived at the dockside of elevator B for the purpose of taking on a load of Continental
grain. Upon its arrival, pickets took their place "both from the waterside and also
from the landside." Continental asked its employees to load the Erickson while the
pickets were theie but they declined to do so After an injunction was granted against
this picketing, the Erickson was loaded on May 18, and departed.
Shortly, before May 30, 1962, Mayer again called Conner and asked him whether
he would be helpful in trying to load the SS Shaw, another Upper Lakes vessel, which
was expected in a day or so at elevator B. Conner again replied he would not tell
the men to load or not to load. Mayer asked Conner whether, since Continental
"had the pickets removed on the Erickson," and assuming that there would be no
further picketing, would his men load the Shaw. Conner ieplied: "Even if there is
no picket line, there is an invisible picket line around these ships " He further
informed Mayer "that pickets or no pickets, injunction or no injunction, an injunction
can order men to stop picketing but they cannot order men to work." Instead,
Conner suggested to Mayer that he bring in "boats other than Upper Lakes ships and
[Mayer wouldn't] have any trouble loading those" other ships. On this occasion
Conner also stated, as he had "before, that they were committed to support the SIU
in their dispute with Upper Lakes."
The Shaw arrived at elevator B on May 30, 1962, but Continental's employees
refused to load that boat until about July 9, 1962, during a 30-day truce "arranged
between the then Secretary of Labor Goldberg and the SIU and ILA . . . during
which the Upper Lakes ships could be loaded." During this truce period, two other
ships of Upper Lakes, the Houghton and the Norris, were loaded without incident,
but the SS Leitch, which arrived after the truce period had expired, could not be
loaded and left Chicago empty.4
8 The New York Times of October 21, 1963, summarizes the genesis of that dispute, and
the events that followed, in the following dispatch from Ottawa, dated October 20, 1963:
"The trouble began in 1960 when the Canadian Labor Congress expelled the Seafarers'
International Union of Canada, a branch of the United States-based Searfarers' Inter-
national Union. Mr. [Hal C.] Banks, [president of the Canadian Seafarers' Union], had
sought to expand the influence of the Canadian Seafarers' Union by raiding the member-
ship of other Canadian maritime unions . The [Canadian] Labor Congress set up the
Canadian Maritime Union to fight Mr. Banks' union . In 1962, the new union won its
first big victory. It signed a contract with Upper Lakes Shipping, Ltd, of Toronto. One
result was that about 350 members of Mr Banks' union on Upper Lakes ships lost their
jobs. The Seafarers retaliated by picketing Upper Lakes ships in United States ports,
and longshoremen refused to unload their cargo. There was much violence and harass-
ment of Canadian crews in United States ports. The action against Upper Lakes has
continued."
* As the heading of this portion of my Decision indicates, the findings entered in section
III, A above are intended for background purposes only, to give meaning to events occur-
ring on and after February 15, 1963, the period encompassed by the complaint and the
bill of particulars herein. No findings of violation pertaining to conduct prior to Febru-
ary 15, 1963, are entered herein.
212-809-66-vol. 155-28
420 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. The locale
When grain is first received at elevator B, it is placed in temporary storage bins
where it may remain for a few hours or a few years. When grain is to be loaded on
a ship, it is removed from the storage bins through conveyors up into a scale where
it is weighed for official weight. It is then transferred to shipping bins and remains
there until the shipping bin is opened allowing the grain to pour through a spout
affixed to the elevator and projecting onto and over the hold of the vessel to be
loaded, thus conveying the grain from the shipping bin to the boat. All of the
aforedescribed work is performed by employees of Continental, all of whom are
represented by, and are members of, Respondent Local 418.
The spouts which convey the grain from the shipping bins to the vessel are affixed
to the outside of the elevator and can be raised and lowered vertically through the
operation of mechanism on a platform affixed to the outside of the elevator. It is
impossible to move the spouts horizontally, a requisite to placing them over the hold
of the ship in a loading position, by the operation of the aforesaid mechanism. In
order to obtain the necessary horizontal motion of the spouts, a rope, attached to the
spout, is thrown by one of Continental's employees working on the dock to someone
working on the ship who catches this rope and proceeds to manually pull the spout
horizontally to a position above the particular hold of the ship to be loaded.
It is customary, in the port of Chicago, that grain trimmers, members of Local 101,
International Longshoremen's Association, are the individuals on board ship who
catch the rope and pull the spout to the loading position over the ship's hold. How-
ever, this work is not necessarily done by grain trimmers and, in other ports, it is
done by members of the ship's crew. When grain trimmers are used in tht operation
of loading a lake vessel at Continental's grain elevators in the port of Chicago, these
trimmers are never employed, either directly or indirectly, by Continental. Instead,
they are in the employment of a stevedoring company hired by the operator of the
vessel to be loaded.
C. The sequence of events
On or about February 15, 1963,5 prior to the opening of the shipping season on
the Great Lakes, Mayer called Conner, the president and business representative of
Local 418, and asked him whether Continental would be "able to load Lakes ships"
during the approaching season and whether "he would be helpful in seeing that these
boats [were] loaded." Conner replied that he was "sorry, but the dispute between
Upper Lakes and SIU not [having] been settled, . [they] again were going to
support the SIU," that he did not believe the Upper Lakes ships would be loaded,
and that the situation in 1963 would be "the same as it was" in 1962. He also told
Mayer that Continental had no trouble loading "other ships" in 1962 and, if Conti-
nental used such "other ships" in 1963, Continental would have "no difficulty" getting
those other ships loaded.
Late in February, Conner called Mayer on the telephone, informed him that an
ILA meeting would be held in Detroit a few days later, and asked that permission
be granted to allow two Continental employees, Jack Garvey, a trustee of Local 418,
and George Novosel, shop steward of that local at elevator B, to attend that meetings
Conner stated he was making the request because "the question of the Upper Lakes
shipping dispute with the SIU which was stopping the loading" of the ships would
undoubtedly come up for discussion, and that it would be wise for these two men,
as officers of Local 418, "to hear or participate" in the deliberations of that meeting.
Mayer granted the request.
Early in March, Mayer asked Conner what had happened at the Detroit meeting
and whether Continental would "be able to load any ships" in 1963. Conner replied
that ships would not be loaded, that "Hal Banks, president of SJU of Canada," had
asked "the convention in session to again support them [in 19631 as they had" in
1962, and that the action taken at the meeting to grant such support was by a
unanimous vote. He also told Mayer that "Jimmy Hoff a" had attended that meeting.
Shortly before April 12, Conner informed Mayer that there would be a meeting at
a Chicago hotel at which one "Tanner and others from the union in Chicago," not
otherwise identified, would meet with various representatives of local Chicago unions.
Conner stated that he expected to be at the meeting as would Garvey and Novosel.
On or about April 15, Mayer telephoned Conner and asked what had occurred at
the meeting. Conner replied that Tanner had advised the group that "as far as
Chicago was concerned, the SIU had had the full cooperation the previous year and
asked them again to cooperate with them." Shortly after this meeting, Gunther
5 Unless otherwise indicated all reference to dates hereafter are to the year 1963
6 Garvey described the meeting as an "ILA convention of the Great Lakes District "
GRAIN ELEVATOR, FLOUR & FEED MILL WORKERS, ETC. 421
Goldschmidt , elevator superintendent at elevator B, telephoned Garvey who had
attended the meeting aforementioned , to inquire as to what had taken place at that
meeting and was informed that there was no change in the situation.
The Howard L. Shaw, an Upper Lakes ship engaged in the transportation of grain
on the Great Lakes, arrived at elevator B on April 21. Shortly before its arrival,
Mayer telephoned Conner and advised him that the Shaw was due to arrive soon and
requested that Conner assist Continental in getting the ship loaded. Conner replied
that he was sorry that he could not help Continental, that Mayer knew that Local 418
was committed to assist the SIU , and that he would not ask his men, or refrain from
loading. Mayer suggested to Conner that perhaps there would be no picket line
when the Shaw docked and asked why, in that event, there would be any difficulty
in loading the Shaw. Conner replied that there "is an invisible picket line around
those ships." He further informed Mayer that he had a message for him from
Scotty Aubusson of the SIU, not otherwise identified, that if Continental persisted
in its attempts to load Upper Lakes ships that it would have trouble getting railroad
boxcars in and out of their facilities , since the SIU had the full cooperation of the
American Brotherhood of Trainmen.
On May 21 Continental made two attempts to load the Howard L. Shaw at elevator
B. At the first attempt, approximately 10 a.m., David Borchert, assistant superin-
tendent at that elevator, gave a written order to Garvey to load the ship. Garvey
transmitted this order to other employees at the elevator who are customarily engaged
in the loading operation. All work necessary to load the ship up to and including
placing the grain in the shipping bins was done , but the employees refused to take
the further steps necessary to facilitate loading of the grain on the Shaw . Superin-
tendent Goldschmidt then ordered the employees, all of them members of Local 418,
to raise the shipping spouts, throw the ropes on board the ship, and release the grain
through the spouts but the employees refused to do so. Each employee was ordered
by Goldschmidt to perform these functions and each employee refused. When
Goldschmidt ordered Garvey to throw the ropes over board, to break the shipping
seal and load the boat, Garvey refused, stating that he had two reasons for refusing,
one was fear of physical harm, and the second that he would have to refuse on the
advice of legal counsel for Respondent Local 418.
Later on the same day, Conner told Mayer that he had a message for him-
that if Continental persisted in its attempt to load Upper Lakes ships, Continental
would have difficulty at their Texas elevators. Mayer asked Conner to identify the
origin of the message but the latter refused to do so except to advise Mayer that it
was one of the parties to the court proceedings in which Continental was then
involved. At that time, Continental was engaged in litigation involving Local 418
and SIU but not with any other parties. The Shaw was not loaded on May 21.
On May 29 Mayer arrived at elevator B about 1:20 p.m. with a copy of a tem-
porary restraining order entered that day by Judge Holland of the United States
district court. By that order, both Respondents herein were enjoined and restrained
from engaging, or inducing or encouraging any employees of Continental to engage,
in a strike or refusal in the course of their employment to handle any commodities
or to perform any service, or to threaten or coerce Continental where, in either case,
an object thereof was to force or require Continental to cease doing business with
Upper Lakes. The order further required Local 418 and its officers and agents to
withdraw all requests and appeals to employees of Continental to refrain from loading
grain of Continental upon Upper Lakes' ships, and to advise said employees that they
were free to perform any and all services for Continental in loading grain on Upper
Lakes' ships.
Mayer told Goldschmidt to call Garvey and Novosel so that they could be shown
the order of Judge Holland. The aforementioned union officials were called to
Goldscbmidt's office where each was given a copy of the order to read, and Mayer
informed them that a United States marshal would soon arrive to serve certified
copies of the order. After reading the order, Garvey said he wanted to read it
again, and then said- "I guess this is it," whereupon Borchert gave Garvey a writ-
ten order to load the Shaw.
Goldschmidt went to the dock and told the Continental employees to prepare
everything for loading He then returned to the elevator office where he asked
Borchert if the grain had been moved to the shipping bins. Borchert replied that
there was already enough grain in those bins to commence the loading operation.
Goldschmidt and Borchert returned to the dock area where they found Garvey and
Novosel and two other Continental employees Goldschmidt was surprised to see
Novosel on the dock as he had never before seen him at that part of the elevator
422 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
during a loading operation. This was so because Novosel's duties were performed
exclusively within the confines of the elevator. Goldschmidt asked Garvey why
Novosel was on the dock and Garvey replied that as steward it was his responsibility
to be there. Goldschmidt thereupon ordered Nick Toth, a Continental employee,
to load the Shaw at which time Garvey said. "I for myself would have to refuse to
load the boat." Goldschmidt thereupon again gave Toth the order to load the boat
but the latter answered that he was sorry, he was afraid.
Borchert left the group on the dock and returned to the office where he met
Lawrence Banks and Tommy O'Connor, grain trimmers and members of Local 101,
ILA, and also officers in the Chicago Grain Trimmers Association, a stevedoring
company which does grain trimming work upon ships. When Goldschmidt told
Banks and O'Connor that Continental was preparing to load the Shaw and were
waiting for the trimmers to go aboard, Banks and O'Connor stated that their men
would go aboard the Shaw and do the trimming. The Continental employees were
informed of this and were again ordered to load the Shaw After Novosel asked
Mayer if the men could have a few minutes to think it over, the employees walked a
short distance away. They returned a few minutes later at which time Novosel
informed Mayer that the men would not load the vessel.
About that time, Conner and the United States marshal arrived at elevator B.
Mayer, Borchert, Conner, and the marshal went to the dock where the marshal
served each employee with a certified copy of the temporary restraining order.
Conner, who was also served, suggested that everyone go into the Company's lunch-
room to discuss the matter. All of Continental's employees, Goldschmidt, Borchert,
Mayer, Conner, and the marshal then retired to the lunchroom where Conner read
aloud the temporary restraining order but omitted reading the last paragraph of the
order. The marshal told Conner that he should have finished reading the order in its
entirety and then proceeded, himself, to read the portion of the order which Conner
had omitted.
Conner suggested that everyone leave the lunchroom except meribeis of Local 418
whereupon Goldschmidt, Borchert, Mayer, and the marshal left and went to the
adjoining parking lot where Conner joined them a few minutes later. When Conner
informed the group as they were departing from the lunchroom that the men were
going to vote, the marshal said: "You better go in and tell them not to, it might be
violating the law." About 5 minutes later, Conner rejoined Mayer and the marshal
and announced that "they are not going to work, they are not going to load the
boat." The Shaw was not loaded on May 29.
On June 17 a United States marshal served each Continental employee at elevator
B with a copy of an injunction. After service thereof, Borchert again gave the order
to load the Shaw and, as on previous attempts, grain was moved as far as the shipping
bins but the employees refused to perform any other function to load the vessel.
On June 20, Mayer came to elevator B about 10 a.m. while the employees were
assembled in the lunchroom. Borchert again ordered the men to load the Shaw
but they again refused.
After the attempt to load the Shaw at elevator B on June 20 was unsuccessful, the
boat proceeded to Continental's elevator A where it arrived on the afternoon of
June 20. Mayer instructed the superintendent of that elevator to order the men to
load the Shaw. After this order was given, Hubert Simmons, union steward for
Local 418 at elevator A, polled the men as to their willingness to follow the order
and they indicated that they would not do so When Simmons informed Mayer that
he was doing this as an officer of the union, Mayer asked the employees if they were
willing to have Simmons speak for them in this regard. They answered that it was
their wish and continued their refusal to load the Shaw. A similar request to load the
vessel on June 21 at elevator A again met with a refusal by the employees to load
the vessel.
The findings entered above are based on the credited, undenied testimony of wit-
nesses called by the General Counsel. The only witness called in behalf of either
Respondent was Howard Schulman, General Counsel for Respondent Seafarers
International, and his testimony was restricted to the relationship between that
organization and its chartered district affiliates.
D. Concluding findings
1. The liability of Local 418
As just indicated, no factual problems are presented herein and it is only the legal
conclusions to be drawn from that uncontradicted record which remain for considera-
GRAIN ELEVATOR, FLOUR & FEED MILL WORKERS, ETC. 423
tion. Analysis of that record compels the conclusion that Respondent Local 418
must be found guilty of violations of Section 8(b) (4) (i) and (ii) (B) of the Act .7
The record abounds in undisputed testimony that Respondent Local 418 induced
or encouraged employees of Continental to cease loading grain on Upper Lakes ships,
and threatened, coerced, and restrained Continental, all in order to force and require
Continental to cease transporting its grain on Upper Lakes' ships and to cease doing
business with Upper Lakes. Among the reasons that compel that conclusion is the
undisputed evidence pertaining to the following conduct of that union's officers and
agents:
(a) Conner's statement to Mayer on or about February 15, 1963, detailed above,
that because the dispute between Upper Lakes and the SIU had not been settled,
the Upper Lakes ships would not be loaded at Continental's docks during the coming
season.
(b) Conner's statement of the same day that if Continental would use "other
ships" than those operated by Upper Lakes, it would have no difficulty in getting
those "other ships" loaded.
(c) Conner's statement to Mayer following the Detroit ILA convention that
because of the unanimous vote of that assembly, in which Conner, Garvey, and
Novosel participated, to again support the plea of "Han Banks, president of SN of
Canada," as they had in 1962, Upper Lakes ships would not be loaded at Conti-
nental's docks in 1963.
(d) Conner's statement to Mayer on or about April 21, when the Shaw was
expected at elevator B, that he could not help Continental in getting that ship loaded
because of the Local 418 commitment to assist the SIU, and because there was an
"invisible picket line" around Upper Lakes ships.
(e) Conner's threat of the same day that if Continental persisted in its attempts
to load Upper Lakes ships it would have trouble in getting railroad boxcars in and
out of its facilities.
(f) Conner's threat to Mayer on May 21 that if Continental persisted in its
attempts to load Upper Lakes ships, it would have difficulty at its Texas elevators.
(g) Garvey's inducement of Toth on May 29 not to participate in the loading
of the Shaw.
(h) Novosel's announcement on May 29 after meeting with the other members
of Local 418 that the men would not load the Shaw.
Respondent Local 418, in its brief, urges a number of considerations upon me
which, it contends, require a dismissal of the action against that organization. I find
all of them to be without merit.
It is first argued that the refusal of the members of Local 418 to load the Shaw
was the result of their individual action, in nowise induced or encouraged by their
union, and that the record contains no direct evidence that any official of Local 418
specifically induced, instructed, or encouraged any of its members not to load Upper
Lakes ships.
On the entire record I have no hesitation in finding that the refusal by members
of Respondent Local 418 to load the Sliaw "was an integral part of a program
formulated and effectuated by Respondent [Local 418] as a labor organization,
inspired and sponsored by the union officials-its admitted agents-and directed, as
has been noted, at unlawful objectives." Truck Drivers and Helpers Local Union
No. 728, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, AFL-CIO (Genuine Parts Company), 119, NLRB 399, 405.
7 That section of the Act reads as follows :
(b) It shall be an unfair labor practice for a labor organization or its agents-
( a a a a a
(4) (i) to engage in, or to induce or encourage any individual employed by any per-
son engaged in commerce or in any industry affecting commerce 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, articles, materials, or commodities or
to perform any services; or (ii) to threaten, coerce, or restrain any person engaged
in commerce or in an industry affecting commerce, where in either case an object
thereof is:.. .
a k a 4 a a a
(B) forcing or requiring any person to cease using, selling, handling, trans-
porting, or otherwise dealing in the products of any other producer, processor,
or manufacturer, or to cease doing business with any other persons, . . . Pro-
vided, That nothing contained in this clause (B) shall be construed to make
unlawful, where not otherwise unlawful, any primary strike or primary
picketing ;
424 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Thus, there is undenied proof here that on February 15, 1963, Conner, who was
not employed by Continental, told Mayer that "the dispute between Upper Lakes
and SIU had not been settled and, as far as we are concerned, we are again going
to support the SIU." Why did Conner ask Mayer for permission to allow Garvey
and Novosel, as union officials, to "participate" in the ILA meeting in Detroit, where
"the question of the Upper Lakes Shipping dispute with the SIU" would be con-
sidered, if not to impress upon Mayer that that meeting would govern the future
policy and action of Respondent Local 418 pertaining to that dispute. And, what
conclusion can be drawn, other than the one reached by me, from the refusal of
Garvey and Novosel to thereafter load Upper Lakes vessels in light of their par-
ticipation, as delegates from Respondent Local 418, in the unanimous vote of that
meeting to continue their Local's support of the SIU.
The contention that the refusal to load the Shaw was the individual and unsolicited
act of Continental's employees, not induced by Local 418, is also completely negated
by the incidents of May 29, 1963, after the temporary restraining order of the Federal
court heretofore described was served on the Continental employees and Conner.
It will be recalled it was after Conner met privately with the members of his union
to discuss that order that he announced, in their presence, that notwithstanding the
court order "they [were] not going to work, they [were] not going to load the boat."
Nor was any explanation offered for Novosel's unusual and unnecessary presence on
the dock when the employees refused to load the Shaw except that provided by
Garvey, an officer of the local, that, as shop steward, it was Novosel's responsibility
to be there. Under all the circumstances present here, no straining is required to
reach the conclusion that the action of the Continental employees in refusing to
load Upper Lakes boats was concerted union action-the means by which a collec-
tively formulated policy was given effect, and I so find.
In light of the finding just announced it would appear to be unnecessary to consider
the further contention of Local 418 that, because no official of that union specifically
or directly instructed any of its members not to load the Shaw, the complaint against
that organization must be dismissed. Assuming, arguendo, the absence of such
direct evidence, it has never been held that a complaint charging unfair labor prac-
tices must be dismissed because of the absence of such direct evidence Indeed,
"direct evidence of a purpose to violate the statute is rarely obtainable, . . . and the
Board may, [therefore], give consideration to circumstantial evidence as well as
that which is direct." Hartsell Mills Company v. N.L.R.B., 111 F. 2d 291, 293.8
All that is required in this proceeding against a labor organization, "as in the case of
employer violations falling within the ban of Section 8(a) of the Act, [is] a realistic
analysis of conduct. . . . Under both subsection (a) and (b) of Section 8, a trier
of fact is not foreclosed from finding violation because of the absence of direct
evidence." Seafarer's International Union of North America, AFL-CIO (Haninier-
mill Paper Company,), 100 NLRB 1176, 1185. To contend here, that the employees
were acting independently in the exercise of their own free will, rathei than con-
certedly in furtherance of the stated union policy as clearly and repeatedly announced
by Conner, its president and business agent, and by Garvey, its officer trustee, is, as
the General Counsel argues, "to divorce reason and reality from the scope of human
experience."
Nor is it fatal here that the record fails to disclose that, in espousing the cause of
the SIU, Respondent Local 418 imposed any threat of disciplinary action on its
members as a means of obtaining their cooperation in the enforcement of its policy
to deny Continental the transportation facilities of Upper Lakes. As the Supreme
Court said, "The words `induce and encourage' are broad enough to include in them
every form of influence and persuasion. There is no legislative history to justify an
interpretation that Congress by those terms has limited its proscription of secondary
boycotting to cases where the means of inducement or encouragement amount to a
`threat of reprisal or force or promise of benefit.' Such an interpretation would give
more significance to the means used than to the end sought. If such were the case
there would have been little need for § 8(b) (4) defining the proscribed objectives,
because the use of `restraint and coercion' for any purpose was prohibited in this
whole field by § 8(b) (1) (A)." International Brotherhood of Electrical Workers,
Local 501, et al. (Samuel Langer) v. N.L.R.B. 341 U.S. 694. In Truck Drivers and
Helpers Local Union No 728 (Genuine Parts Company), 119 NLRB 399. 407, the
Board concluded that "a union's conduct can come within the reach of the statute
where the Union sponsors, authorizes, or otherwise encourages, the unlawful activity,
even though it may not compel or require its members to engage in it."
8 See also N.L.R.B. v. Link-Belt Company, 311 U.S. 584, 602; Northern Virginia Steel
Corp . v. N.L.R .B., 300 F . 2d 168, 174 (C.A. 4).
GRAIN ELEVATOR, FLOUR & FEED MILL WORKERS, ETC. 425
Respondent Local 418 next contends that the General Counsel has failed to prove
that Garvey, Novosel, and Simmons were agents of Local 418. In this connection,
it should be remembered that the findings of violation entered above have been based
primarily on conduct engaged in by Conner, whose authority as president and busi-
ness agent of that local is unquestioned. I therefore find it unnecessary to further
consider the extent of authority, as agents of that local, vested in these three men as
trustee or shop stewards, except to note that it was undisputed that Garvey and
Novosel participated as delegates of Local 418 at the Detroit ILA convention and
contributed part of the unanimous vote which established the policy of their union
with respect to the existing dispute between Upper Lakes and the Seafarers.
Finally, Respondent Local 418 contends, in this connection, that "as a matter of
law, even if the General Counsel had proved the allegations of the complaint and
bill of particulars, they would not constitute violations of Section 8(b) (4) (i) and
(ii)(B) of the Act, [because] primary activity is not affected by the provisions of
Section 8(b) (4) of the Act and the alleged conduct of the Respondents was primary."
It will be observed that the argument is addressed to the contention that the conduct
of both Respondents was primary and therefore not violative of the Act. Whatever
merit, if any, this contention has with respect to the liability of the Respondent Sea-
farers, a subject treated in later portions of this Decision, it has no application to
the activities of Local 418 against Continental. That local had no dispute with
Continental, nor were its members engaged in a primary stake against their employer
because of any such dispute. The sole object of their activity was not primary in
connection with any dispute they had with their employer, but secondary, to render
support to the strike being waged against Upper Lakes by the latter's employees.
To establish that Continental was not the neutral or secondary employer that
Congress sought to protect by enacting Section 8(b)(4) of the Act, Local 418, in
its brief, quotes and relies on the following legislative history of that section as
"succinctly [pronounced] by the principal author of the Act, Senator Taft, when
he said:
This provision makes it unlawful to resort to a secondary boycott to injure the
business of a third person who is wholly unconcerned in the disagreement
between an employer and his employees. 93 Cong. Rec. 4323. The secondary
boycott ban is merely intended to prevent a union from injuring a third person,
who is not involved in any way, in the dispute or strike . It is not intended
to apply to a case where the third person is, in effect, in cahoots with or acting
as part of the primary employer. Cong. Rec. 8709." [Emphasis added by
Local 418.]
Relying on the portion of that history which it emphasized as indicated above,
Local 418 then argues that because Continental also availed itself of Upper Lakes'
storage facilities in Canada, their operations are so "integrated [that] they must be
deemed a single employer, or a joint venture, or an alliance of interest," and not
the neutral employer entitled to the protection of Section 8(b)(4).
I am, of course, in complete agreement with Local 418 that the statement of
Senator Taft succinctly states the congressional intent of Section 8(b)(4). I cannot,
however, conclude that the Senator's statement can be construed as implying that
Congress intended only to make it "unlawful to resort to a secondary boycott to
injure the business of a third person [whose business] is wholly unconcerned ... [or]
not involved" with the business of the struck employer, as Local 418 seems to imply
by the emphasis placed on the above quotation and upon which it apparently relies.
To so interpret the legislative history would make it impossible to ever invoke that
section. In the state of our complex industrial life, no employer engaged in the
most simple business operation or activity can ever be deemed to be "wholly uncon-
cerned" and "not involved in any way" with the affairs or business of another employer
from whom he buys, or to whom he sells, goods, materials, or services.
Instead it was made clear by Senator Taft that the protection of Section 8(b)(4)
was intended for "the third person who is wholly unconcerned in the disagreement
between [the primary] employer and his employees, . . . [and] not involved in any
way in [the] dispute or strike." Here, it was undisputed that Continental was "wholly
unconcerned" in the disagreement between Upper Lakes and its employees and not
involved in any way in the dispute or strike between those two parties.
It is next argued that "the identity or community of interest and intimate inner
relationship between Continental and Upper Lakes is [so] manifest [that] it would
be only by ignoring the realities of economic life that one could consider Continental
a neutral." Among the considerations urged in support of this argument, is the
426 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
contention that because Upper Lakes also provides storage facilities for Continental
at Three Rivers, the two corporations "must be deemed a single employer, or a joint
venture, or an alliance of interest." In support of that contention, Local 418 cites
and relies on National Union of Marine Cooks and Stewards, et al. (Irwin-Lyons
Lumber Company), 87 NLRB 54, Warehouse and Distribution Workers Union, Local
688, Teamsters (Bachman Machine Company), 121 NLRB 1229, and J. G. Roy and
Sons, Company, 118 NLRB 286. All of these are inapposite for, in all of them, the
business of the primary and secondary employers were commonly owned and con-
trolled, thereby making them, in effect, one employer. Here, however, the record
affirmatively establishes that Continental and Upper Lakes are completely independent
of each other, with no common stockholders, officers, directors, business interests,
or control. The relationship between Continental and Upper Lakes is the same as
exists between any carrier and its customers or patrons who avail themselves of that
carrier's carriage and storage facilities.
To establish that Continental was not a neutral employer within the scope of the
Act, Local 418 also likens Continental's status to that of an employer performing
"struck work" thereby destroying its status as a neutral, and therefore not entitled to
invoke the protection afforded neutral employees by Section 8(b) (4), citing N.L.R.B.
v. Business Machine and Office Appliance Mechanics Conference Board, Local 459,
International Union of Electrical, Radio & Machine Workers, CIO (Royal Type-
writer Co.), 228 F. 2d 553 (C.A. 2). To merely state that this comparison is appli-
cable here is to require its rejection. There is no evidence in the record to warrant
the conclusion that Continental, or its employees, performed, or were asked to
perform, the struck work of Upper Lakes employees 9
By reason of all the foregoing, I find and conclude that Continental was, and is, a
neutral employer entitled to the protection provided by Section 8(b) (4) of the Act.
The search in all cases of alleged secondary boycotts is to ascertain the objective
of the picketing or inducement of those involved in that activity. Here, it is con-
clusively established that what Local 418 expressly sought was to have Continental
and its employees, unconcerned in the dispute with Upper Lakes, stop using Upper
Lakes ships-stop doing business with Upper Lakes, an activity specifically. proscribed
by Section 8(b) (4) (i) and (u) (B) of the Act 10 Whatever rights the Seafarers of
Canada may have had to enlist the aid of another union, in other situations, and by
other means,11 resort may not be had here to the cooperation of Local 418 to achieve
an objective proscribed by the Act 12
There remains for consideration, with respect to the liability of Local 418, the
extent to which the decision of the Supreme Court in Local 761, International Union
of Electrical, Radio and Machine Workers, AFL-CIO v. N.L.R.B., 366 U S. 667,
generally referred to as the General Electric case, and the decision of the Board in
Local Union No. 5895, United Steelworkers of America, AFL-CIO (Carrier Cor-
poration), 132 NLRB 127, both being frequently cited by Local 418 in support of
its position, are controlling, or relevant to the problem posed here. Briefly stated,
both General Electric and Carrier were so-called common situs cases-situations
where the struck employer and the secondary employer were performing separate
tasks on the premises of the struck employer. Wheie, in such cases, the Union repre-
senting the striking employees pickets the entrance used by all employees entering
the common situs aforementioned, a balance must be struck between the striking
union's right to picket, and the interest of the neutral or secondary employer to be
free from such picketing. The Board, with subsequent court approval, struck that
0 On occasion , but not always , Continental 's dock foreman, Toth , goes aboard the ship
and, by means of an intercommunication phone plugged into the dock, gives instructions
to Continental employees controlling the flow of grain into the spouts . He engages in no
task normally performed by members of the ship 's crew.
10 International Association of Heat and Frost Insulators and Asbestos Workers ( Speed-
Line Manufacturing Co., Inc. ), 137 NLRB 1410; Local Union 825, International Union of
Operating Engineers , AFL-CIO ( Nichols Electric Company ), 138 NLRB 540 ; Local 584,
International Brotherhood of Teamsters , Chauffeurs, Warehousemen and Helpers of Amer-
ica, et at. (Fairway Farms, Inc.), 141 NLRB 638.
n E.g., the trimmers, employees of another secondary employer, a stevedoring company,
who had to board the Shaw to perform their work on that vessel, could legally be induced
to refrain from doing so.
12 See, in this connection , Truck-Drivers Union Local No. 413, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America , at at. ( The Patton
Warehouse, Inc.), 140 NLRB 1474; International Organization of Masters, Mates and
Pilots of America, Inc ., et at. (Chicago Calumet Stevedoring Co , Inc.), 125 NLRB 113,
126-127.
GRAIN ELEVATOR, FLOUR & FEED MILL WORKERS, ETC. 427
balance in the earlier Moore Dry Dock case,13 and there prescribed four standards
or conditions for picketing which, if complied with, would be presumptive of valid
primary activity.
Geneial Electric and Carrier, however, presented a factual situation not present in
Moore Dry Dock or in most common situs cases-a separate gate to the struck
employer's premises used exclusively by the employees of the secondary employer.
The issue posed by that situation was whether the mere fact that the picketing occurred
at a gate used exclusively by the employees of the secondary employer conclusively
established that the picketing was directed at the employees of the secondary employer
and therefore violative of Section 8(b) (4) of the Act.
The Supreme Court answered the problem in General Electric and, observing that
"the key to the problem is found in the type of work that is being performed by
those who use the separate gate," added another refinement of the rule promulgated
in Moore Dry Dock, to wit: "the work done by the men who use the gate must be
unrelated to the normal operations of the [secondary] employer and the work must
be of a kind that would not, if done when the plant were engaged in its regular
operations, necessitate curtailing those operations." The Board, in Carrier, applied
that formula.
The two cases, however, and indeed all Moore Dry Dock cases, have no relevance
or application here for at least two reasons. First, the picketing or inducement of
which complaint was there made was imposed by the striking union representing the
employees of the primary employer. Here, however, the inducement with which we
are presently concerned was imposed by the union representing the employees of the
secondary employer who had no dispute with their employer. In General Electric
and Moore Dry Dock cases, the employees of the secondary or neutral employer
were engaged in work on the primary or struck employer's premises, creating the
so-called common situs. Here, the Shaw, the situs of the dispute, was docked in the
Calumet River, a navigable body of water open to the public. While the Shaw is
docked alongside Continental's elevator and dock, no part of the vessel is actually
located on Continental's premises.11
2. The liability of Respondent Seafarers' International
The only evidence in the record by reason of which the General Counsel seeks to
impose liability on the Respondent Seafarers' International pertains to the speech
made by Hal Banks on or about March 1, 1963, at the convention or meeting of the
Great Lakes District of the International Longshoremen's Association (ILA). It
will be recalled that it was at this meeting that Banks sought and obtained the coopera-
tion, inter alia, of Local 418, in the dispute that his organization had with Upper
Lakes. The critical factor upon which both the General Counsel and the Charging
Party rely is that at the time the aforementioned request was made, Banks was not
only president of the Seafarers' International Union of Canada with whom Upper
Lakes had its controversy, a fact which is not disputed, but that he was also vice
president of the Respondent Seafarers' International Union of North America. Sea-
farers' International Union of Canada not having been made a party to this proceed-
ing, it is then argued "that it is not for Mr. Banks at this late date to choose which
hat he was wearing at the convention, but he must be held to have attended the
convention in whatever capacity or position he occupied with both Canadian and
American organizations."
It is undisputed that Respondent Seafarers' International is a parent organization
having four affiliated district organizations known as Seafarers' International Union
of North America, Atlanta and Gulf District. SIU, Pacific District; S1U, Great
Lakes District; and SIU of Canada. Each district has a separate charter, adopts its
own constitution, and "has complete autonomy." Each affiliate maintains its own
headquarters and branch offices, and elects its own officers. All contracts are with
the appropriate affiliates.
The problem under consideration was considered by the Board in Seafarer's Inter-
national Union of North America (Hammermill Paper Company), 100 NLRB 1176,
1183-1185, an earlier proceeding against this same Respondent. The Board there
summarized the applicable law in the following language:
In the administration of the Act, the Board has recognized that labor organiza-
tions are to be treated "as legal entities , like corporations, . . . [which] can only
>s Sailor&' Union of the Pacific, AFL (Moore Dry Dock Company), 92 NLRB 547
14 The contention that the Board is without jurisdiction to proceed herein because the
Shaw is a foreign vessel is without merit. No jurisdiction is asserted here over either the
Shaw, its crew, or Upper Lakes, Ltd.
428 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
act through their duly appointed agents." Sunset Line and Twine Company, 79
NLRB 1487 , 1507. In the case just cited , the Board summarized the "funda-
mental rules of the law of agency which ... must control ... decision of issue
of responsibility" in this case , as follows:
1. The burden of proof is on the party , asserting an agency relationship,
both as to the existence of the relationship and as to the nature and extent of
the agent 's authority . In this case , for example , it was incumbent upon the
General Counsel to prove, not only that the acts . . . alleged in the com-
plaint were committed , but also that those acts were committed by agents
of the Respondent Unions, acting in their representative capacity. The
Respondents ' failure to introduce evidence negating the imputations in the
complaint did not relieve the General Counsel of that burden.
2. Agency is a contractual relationship , deriving from the mutual consent
of principal and agent that the agent shall act for the principal . . . Authority
to act as agent in a given manner will be implied whenever the conduct of
the principal is such as to show that he actually intended to confer that
authority.
Applying the foregoing principles to the instant proceeding , it must be concluded
that the General Counsel has failed to establish that Banks' conduct may legally be
imputed to the Respondent Seafarers ' International . The constitution of neither that
organization , nor its Canadian affiliate, were introduced into evidence . The mere
fact that these two labor organizations are affiliated , without more , is not sufficient
to establish the responsibility of Respondent International Seafarers ' for the conduct
of the Canadian district. United Mine Workers v. Coronado Company, 259 U.S. 344;
Coronado Company v. United Mine Workers, 268 U.S. 295.
Not only has the General Counsel failed to sustain the burden of establishing that
Banks was acting for the Respondent International by his appeal at the Detioit con-
vention , but the only evidence in the record shedding any light on the capacity, or in
whose behalf , he was serving by his appeal at that meeting , indicates that he was
appearing and appealing in behalf of Canadian district of the Seafarers . Thus, Mayer
testified that when he asked Conner what had transpired at that meeting, be was
informed that "Hal Banks, president of SIU of Canada," had asked the convention
to again support them as they had in 1962. And Garvey testified with reference to
the same meeting that Banks "talked about his union-SIU of Canada ." In that state
of the record it must be concluded that the General Counsel has failed to establish
by the necessary preponderence of the evidence that Respondent Seafarers ' Inter-
national was guilty of the conduct alleged in the complaint . It will , therefore, be
recommended that the complaint charging that organizationw ith unfair labor prac-
tices be dismissed.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities and conduct of the Respondent Grain Elevator , Flour and Feed Mill
Workers, International Longshoremen Association , Local 418, AFL-CIO, occurring
in connection with the operations of Continental Grain Company described in sec-
tion I, above, have a close, intimate , and substantial relation to trade, traffic, and
commerce among the several States of the United States and lead to labor disputes
burdening and obstructing commerce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent Local 418 has engaged in unfair labor practices
in violation of Section 8(b) (4) (i ) and (ii ) (B) of the Act , I recommend that it be
required to cease and desist therefrom and to take certain affirmative action designed
to remedy the unfair labor practices and otherwise effectuate the policies of the Act.
CONCLUSIONS OF LAW
1. Continental Grain Company is an employer engaged in commerce within the
meaning of the Act.
2. The Respondent Local 418 is a labor organization within the meaning of the Act.
3. By inducing and encouraging employees of Continental Grain Company to
engage in strikes or refusal in the course of their employment to load grain or other
commodities on vessels operated by Upper Lakes, Ltd., or to perform other services,
with the object of forcing Continental Grain Company to cease doing business with
Upper Lakes, Ltd., the Respondent Local 418 has engaged in and is engaging in
unfair labor practices affecting commerce within the meaning of Section 8(b) (4)
(i) (B) and Section 2(6) and (7) of the Act.
GRAIN ELEVATOR, FLOUR & FEED MILL WORKERS, ETC. 429
4. By threatening, coercing, and restraining Continental Grain Company with an
object of requiring that Company to cease'doing business with Upper Lakes, Ltd.,
the Respondent Local 418 has engaged in and is engaging in unfair labor practices
affecting commerce within the meaning of Section 8(b) (4) (ii) (B) and Section 2(6)
and (7) of the Act.
5. Respondent Seafarers' International Union of North America has not engaged
in the unfair labor practices alleged in the complaint.
RECOMMENDED ORDER
Upon the foregoing findings of fact and conclusions of law, and pursuant to Section
10(c) of the Act, it is recommended that the National Labor Relations Board order
that the Respondent Grain Elevator, Flour 'and Feed Mill Workers, International
Longshoremen Association, Local 418, AFL-CIO, its officers, agents, and repre-
sentatives , shall:
1. Cease and desist from engaging in, or inducing or encouraging individuals
employed by Continental Grain Company, or any other person 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 any services,
where an object thereof is to force or require Continental Grain Company, or any
other employer or person, to cease doing business with Upper Lakes, Ltd.
2. Take the following affirmative action which is necessary, it is found, to effectuate
the policies of the Act:
(a) Post in conspicuous places in each of the Respondent Local 418 business
offices, meeting halls, and all places where notices to members are customarily
posted, copies of the attached notice marked "Appendix." 15 Copies of said notice,
to be furnished by the Regional Director for Region 13, shall, after being duly signed
by authorized representatives or an authorized representative of said Respondent, be
posted by said Respondent immediately upon receipt thereof and be maintained by
it for 60 consecutive days. Reasonable steps shall be taken by said Respondent to
insure that such notices are not altered, defaced, or covered by any other material.
(b) Mail signed copies of the notice to the Regional Director for Region 13, for
posting by Continental Grain Company, said employer being willing, at all locations
where notices to its employees are customarily posted.
(c) Notify said Regional Director, in writing, within 20 days from receipt of this
Decision and Recommended Order, what steps have been taken to comply herewith.16
It is further recommended that the allegations of the complaint charging that
Respondent Seafarers International Union of North America violated the Act be
dismissed.
15 In the event that this Recommended Order should 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."
11 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 herewith "
APPENDIX
NOTICE TO ALL MEMBERS OF GRAIN ELEVATOR, FLOUR AND FEED MILL WORKERS,
INTERNATIONAL LONGSHOREMEN ASSOCIATION, LOCAL 418, AFL-CIO
Pursuant to a 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 engage in, or induce or encourage individuals employed by
Continental Grain Company, or any other person 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, materials, articles, or commodities, or to perform any
services, where an object thereof is to force or require the aforesaid employers
or persons to cease doing business with Upper Lakes, Ltd.
430 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT threaten, coerce, or restrain Continental Grain Company, or
any other person engaged in commerce or in an industry affecting commerce,
where an object thereof is to force or require the aforesaid employers, or any
other employer or person, to cease doing business with Upper Lakes, Ltd.
GRAIN ELEVATOR, FLOUR AND FEED MILL WORKERS, INTERNATIONAL
LONGSHOREMEN ASSOCIATION, LOCAL 418, AFL-CIO,
Labor Organization.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not he altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office, Midland
Building, 176 West Adams Street, Chicago, Illinois, Telephone No. Central 6-9660,
if they have any questions concerning this notice or compliance with its provisions.
Hunter Metal Industries, Inc. and Local 810, Steel , Metals, Alloys
and Hardware Fabricators and Warehousemen , affiliated with
International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen & Helpers of America . Cases Nos. 29-CA-50 (for-
merly 2-CA-9939) and 29-CA-50-3 (formerly 2-CA-9939-3).
October 29, 1965
DECISION AND ORDER
On August 9, 1965, Trial Examiner Samuel Ross issued his Decision
in the above-entitled proceeding, finding that Respondent had engaged
in certain unfair labor practices and recommending that it cease and
desist therefrom and take certain affirmative action to remedy such
unfair labor practices. On the same date, the case was transferred to
the National Labor Relations Board. On August 24, 1965, the Trial
Examiner issued an errata thereto dated August 23, 1965.
Thereafter, on September 13, 1965, Respondent filed "Exceptions by
the Employer to the Trial Examiner's Decision." 1 The Board, in its
consideration of the matter, found that the document filed as excep-
tions by the Respondent did not conform with the requirements set
forth in Section 102.46 (b) of the Board's Rules and Regulations, Series
8, as amended, for the filing of proper exceptions. The Board there-
upon, by order dated September 23,1965, gave notice to the Respondent
that it must submit proper exceptions on or before October 4, 1965, and
that if none were received within the time provided, the Board would
reject and strike the document referred to above and would adopt as its
Order the Recommended Order of the Trial Examiner. Thereafter,
counsel for Respondent notified the Board by letter that, in his opinion,
the exceptions were proper and should have been accepted by the
Board. Counsel did not undertake to file a brief or any additional or
revised exceptions.
'At the request of the Respondent , the Board extended the time for filing exceptions to
September 13, 1965, and the time for filing briefs to September 20, 1965.
155 NLRB No. 41.