National Maritime Union of America, AFL-CIO

National Labor Relations Board - Board Decisions

Jun 30, 1964

147 N.L.R.B. 1243 (N.L.R.B. 1964)

NATIONAL MARITIME UNION OF AMERICA, AFL-CIO 1243
might be differently grouped into appropriate units 9 Accordingly,
we find that the following employees of the Employer constitute a unit
appropriate for the purposes of collective bargaining within the mean-
ing of Section 9 (b) of the At 10
All employees engaged in composingioom work and ielated proc-
esses, at the Employer's Portland, Oregon, operation, including plate
developers, Linofilm operatoi, cameramen, and employees performing
maikup of copy, production layout, paste makeup, and maintenance of
Linofilm equipment, but excluding stereotypers, photoengraving em-
ployees, pressmen, platemakers, advertising salesmen, office clerical
employees, guards, professional employees, and supervisors,11 as de-
fined in the Act
[Text of Diieution of Election omitted from publication ]
MEMBER LEnvoM, concui ring in part and dissenting in part
I agree with the majority that the Employei's cold type employees
may appropriately be added to the composingroom unit currently be-
ing i epi esented by the Petitionei However, for the ieasons stated in
the dissent in D V Dzsplays Corp, et al, supra, I would, unlike the
majority, first direct a self determination election among these cold
type employees, to ascertain their desires as to inclusion in the estab-
lished unit
e See Ballentcne Peck,ng Company Inc 132 NLRB 923 925
10 The parties are otherwise in agreement as to the composition of the unit
n As the record discloses that the composingroom foreman has authority to hire and
discharge employees we find he is a supervisor within the meaning of the Act and we
shall exclude him from the unit
National Maritime Union of America , AFL-CIO and Houston
Maritime Association, Inc
National Maritime Union of America , AFL-CIO and Gulf At-
lantic Warehouse Company
National Maritime Union of America, AFL-CIO and Delta
Steamship Lines, Inc Cases Nos 23-CC-125, 23-CC-126, and
23-CC-127 June 30, 1964
DECISION AND ORDER
On December 23, 1963, Trial Examiner Sidney D Goldberg issued
his Decision in the above-entitled proceeding, finding that the Re-
spondent had engaged in certain unfair labor practices and recom-
mending that it cease and desist therefrom and take certain affirmative
action, as set forth in his attached Decision Thereafter, the General
147 NLRB No 142
1244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Counsel filed a brief in support of the Trial Examiner's Decision, and
Respondent filed exceptions to the Trial Examiner's Decision and a
supporting brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
'these cases to a three-member panel [Chairman McCulloch and Mem-
bers Leedom and Fanning].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and the entire record
in .these cases,, and hereby, adopts the„findings, conclusions, and rec-
ommendations of the Trial Examiner, with the modifications noted
below.
The complaint alleged that the National Maritime Union (NMU)
violated Section 8(b) (4) (i) and (ii) (B) by its activity in June 1963,'
at certain locations in the ports of Houston and Galveston, Texas.2
As set forth in detail in the Trial Examiner's Decision, the facts
show that • on 'June 17, NMU pickets appeared . outside the gates,of,
the municipal wharves operated by the Harris County-Houston Ship
Channel Navigation District and the marine terminal facilities op-
erated by the Gulf Atlantic Warehouse Company. On the same clay,
pickets were placed in Galveston at pier 35, where the SS Del Alba,
a vessel owned by Delta Steamship Lines, Inc., was moored to permit
unloading of cargo destined for the Imperial Sugar Company.. The
picketing continued until June 20, when agreement was reached on
the loading of the Maximus. During the picketing, waterfront op-
erations ceased at all three locations because longshoremen, stevedores,
and warehousemen (represented by the.-ILA and employed by marine
terminal operators, steamship agents, and stevedore contractors) re-
fused to cross or perform work behind the picket lines.3
1 Unless otherwise indicated all dates refer to 1963.
The conduct in issue was an outgrowth of the NMU's dispute with the Seafarers ' Inter-
national Union ( SIU) and the latter 's ally, the Marine Engineers Beneficial Association
(MEBA), involving ME BA's picketing of the SS Maximus in the port of Philadelphia.
The Maximus was manned by members of the NMU and its affiliate, the Brotherhood of
Marine Officers . MEBA's picketing of the Maximus prevented loading operations, and
idled the ship in Philadelphia until June 21, the day after the dispute was finally resolved.
The NMU's picketing in Houston and Galveston was part of a retaliatory effort against
MEBA's action in Philadelphia . The Board has simultaneously considered two additional
cases involving related NMU picketing in other ports . See National Maritime Union of
America ( Delta Steamship Lines, Inc.), 147 NLRB 1328 involving NMU action in
New Orleans , Louisiana ; and National Maritime Union of America ( Weyerhaeuser Lines,
a. Division of The Weyerhaeuser Company), 147 NLRB 1317 covering like action in
the port of Philadelphia.
The work stoppages caused by the picketing included stevedore functions, consisting
of the loading and unloading of cargo between the ships and the docks by stevedore con-
tractors, engaged -by either. the owner of the vessel , the steamship agent, or the consignee
of the cargo ; and warehouse operations , consisting of the loading and unloading of cargo
between the docks and rail cars ( or trucks ) by the operators of the terminals under agree-
ment with either the carrier or the consignee of the cargo.
NATIONAL MARITIME UNION OF AMERICA, AFL-CIO 1245
1. The Trial Examiner found, and we agree, that Respondent's
picketing at the facilities operated by the Harris County-Houston
Ship Channel Navigation. District and the Gulf Atlantic Warehouse
Company in Houston, and at pier 35, in Galveston, induced and en-
eoliraged individuals employed- by steamship agents, stevedore com-
panies , and marine warehouse operators to strike and 'to refuse in the
course of their employment to perform services for their employers
within the meaning of Section 8(b) (4) (i), and that said picketing
constituted coercion and restraint of the stevedoring companies, marine
terminal operators, and steamship owners and agents 4 engaged at
the picketed locations within the meaning of Section 8(b) (4) (ii) of
the Act.'
2. The Trial Examiner, in concluding that the picketing was for an
object within the ban of Section 8(b) (4) (B), noted generally that
the picket line is a well-known device used by labor organizations to
enlist the aid of other employees to,-' its cause, and then concluded "that
in setting up its picket line, Respondent must be deemed to have
known-and intended-the foreseeable consequences of its conduct:
that the stevedores, longshoremen, and other employees would stop at
the picket line and not proceed to their work."
Respondent excepts to this finding, contending that its activity was
constitutionally protected as solely informational in purpose. In sup-
port, it argues that the record is insubstantial to support a finding of
an unlawful object, and that It test such as -the • "foreseeability rule"
applied by the Trial Examiner has no place in the interpretation and
application of Section 8(b) (4) (B). 'Respondent therefore argues
that the General Counsel has failed to meet his burden of proving a
"cessation of business objective."
Thus, the sole issue before us is whether the record establishes that
the picketing had an unlawful object. For, as the Respondent im-.
plicitly concedes, if such an object is evidenced by the record, neither
4 We adopt the Trial Examiner 's findings that Harris County -Houston Ship Channel
Navigation District ; Gulf Atlantic Warehouse Company ; and Delta Steamship Lines, Inc.,
are employers or persons engaged in'copumerce .within' the meaning of. the Act . In. adopt-
ing the Trial Examiner 's finding that the Houston Maritime Association ( and its
employer-members ) are engaged in commerce , we also rely upon the evidence that said
Association engages in collective bargaining on behalf of its employer-members. We
further find that, in view of the close and intimate relationship between stevedore opera-
tions and interstate and foreign seaborne commerce , the stevedore companies engaged in.
loading and unloading ships at the picketed locations are engaged in an industry affect-
ing commerce within the meaning of the Act. Sheet Metal Workers International AsBo-
ciation, Local Union 299 , et al. (S. M. Kisser (deceased ), et at. , d/b/a S. M. Kisner and
Sons ), 131 NLRB 1196, 1197-1199.
5In adopting the Trial Examiner ' s finding that Respondent 's picketing constituted co-
ercion and restraint within the meaning of 8(b) (4) (ii), we rely upon our conclusion in
paragraph 2, infra , that the picketing was for an object of forcing or requiring a general
cessation of business between all persons engaged at the picketed locations . See, e.g.,
Plumbers and Pipefitters Local Union No. 142, AFL-CIO (Shop-Rite Foods , Inc., S/b/a
Piggly Wiggly ), •133 NLRB 307, 314.
4246 DECISIONSi OF "NATIONAL'LABOR RELATIONS BOARD
the-first amendment of the Constitution,6 nor the fact that the"picket-
ing was also informational in purpose,' may excuse its conduct.
On our view of the record, we agree with the Trial Examiner that
Respondent's picketing had an object of forcing or requiring the ces-
sation of stevedoring and warehousing activities that occurred at the
picketed sites. In so-finding, we concur in the Trial Examiner's views
as to the "signal" effect of the picket line,8 but also rely upon further
evidence which plainly establishes Respondent's intention of denying
:neutral employers the work force on which their operations depended
:all for the purpose of causing a general cessation of operations behind
the picket lines.
Thus, the record shows that the waterfront sites chosen for picketing
were exclusively occupied by employers or persons having no labor dis-
pute with Respondent.9 Leaflets, distributed from the picket lines,
were addressed "To All Union Men" and explained that MEBA was
picketing the Maximus because "they know you won't cross an honest
picket line so they figure they can tie up anything anytime even though
their picket line is phony," and further provided as follows :
We want the shipowners and the stevedoring companies to know
that if they can't stand up to outfits that try to put pressure on
them in a phony beef, then they're really going to be in trouble.
That's the only way we're going to get stability on the waterfront.
That's what we're out for today. It's your fight as well as
ours. An honest picket. line is organized labor's time-honored
and respected weapon. That is the only way any workers can
stay strong . . . This is our way of letting you know what
the situation is. Together we- can work this out and get some
stability on the waterfront.
9 See International Brotherhood of Electrical Workers, Local 501, et al. ( Samuel
Langer ) v. N.L.R.B., 341 U.S. 694, 705.'
7It is well settled that it is not necessary to find that the sole object of a union's con-
duct was to force or require a cessation of business. N.L.R.B. v. Denver Building _and
Construction Trades Council, et al. (Gould & Preisner), 341 U . S. 675 at 688 ; Inter-
national Longshoremen 's "Association, etc. (The Board of Harbor Commissioners), 137
NLRB 1178, 1184 , enfd. 331 F. 2d 712 (C.A. 3).
8 The effect of the picket line in the maritime-longshore industry as a signal that all
union members refuse to cross is borne out by the incident at pier 35 in Galveston where
neutral employees " who had, previously refused to cross the picket line , and who, were
scheduled to perform work unrelated :to the unloading of the Del Alba, reported for work
after -the NMU removed its pickets from the entrances normally used by these employees.
6 Although the, record tends to. show that Respondent 's conduct was in furtherance of
an interunion controversy, rather than a dispute with an employer , the Board has held
that the existence of a dispute with an employer is. not a precondition for application of
the Act's boycott provisions . See Local 1355, International Longshoremen's Association
(Maryland Ship Ceiling Company , Inc.), 146 NLRB 723 enforcement denied on other
grounds 332 F. 2d 992 ( C.A. 4). To the extent that the instant case relates to a dispute
between labor organizations concerning the representation of employees , an underlying
labor dispute is involved , and our decision herein presents no conflict with the views of
the Fourth Circuit in the cited case.
NATIONAL' MARITIME UNION. OFAMERICA,,, AFITCIO- 1247
Even the most cursory :examination, of the -leaflet discloses a clear
appeal that union members honor-Respondent's picket.line and refrain
from crossing it to perform their customary duties. : That the result-
ing work stoppages were intended to be. part and.parcel of Respond-
ent's campaign is further evidenced by both the handbill's reference to
"trouble" for the waterfront operators and the statement of Respond-
ent's port agent in Houston, after settlement of .the Maximus 'dispute,
that "I have just called off my ,pickets,.and as far as. I am concerned
the port can get back into operation." In these circumstances,, and on
the record as a whole, we find that an object of Respondent's picketing
was to force or require the various stevedore companies, marine ware-
house operators, and steamship'owne'rs and agents at said locations to
cease doing business between themselves' and with other persons.10
Accordingly, and in agreement with the Trial Examiner, we find
that Respondent, in picketing the facilities operated by the Harris
County-Houston Ship Channel Navigation District, and the 'Gulf
Atlantic Warehouse Company in Houston, and at pier 35 in Galveston,
engaged in conduct violative of Section 8(b) (4) (i) and (ii) (B) of
the Act.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the Board hereby adopts as its Order, the Order recom-
mended by the Trial Examiner with the following modifications, and-
orders that the Respondent, its officers, agents, and representatives,
shall abide by the terms of the Trial Examiner's Recommended Order
as modified below.
1. The Recommended Order is modified by deleting paragraph 1(a)
and substituting the following as paragraphs 1(a) and 1(b)
(a) Inducing or encouraging individuals employed in Houston
or Galveston, Texas, by Houston Maritime Association, Inc., and
its employer-members engaged in stevedoring operations by Har-
ris County-Houston Ship Channel Navigation District, by Gulf
Atlantic Warehouse Company, and by any other person engaged
in commerce or an industry affecting commerce, to engage in a
strike or. refusal in the. course of their employment to nse, manu-
facture, transport, or otherwise handle or work on any goods, ar-
ticles, materials, or commodities or to perform any services, where
an object thereof is to force or require any of the foregoing per-
sons to cease doing business with each other or with any other
person.
10 See United Marine Division, Local 333, et at. ( New York Shipping Association), 107
NLRB 686. Miami Newspaper Printing Pressmen Local No. 46 ( Knight Newspapers,
Inc.), 138 NLRB 1346, 1353, enfd . 322 F. 2d 405'(CA.D.C.).
1248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Threatening, coercing, or restraining in the ports of Hous-
ton or Galveston, Texas, said persons and Delta Steamship Lines,
Inc., and other steamship owners and agents who are members
of the Houston Maritime Association, or any other person engaged
in the commerce or an industry affecting commerce where an ob-
ject thereof is to force or require any of said persons to cease doing
business with each other or any other person.
2. The Recommended Order is further modified by substituting, for
paragraph 2 (b), the following :
('b) Mail signed copies of the notice to the Regional Director
for the Twenty-third Region, for posting by Houston Maritime
Association and its employer-members, by Harris County-Houston
Ship Channel Navigation District, Gulf Atlantic Warehouse
Company, and Delta Steamship Lines, Inc., said employers and
persons being willing, at all locations in the ports of Houston and
Galveston, Texas, where notices to their employees are custom-
arily posted.
3. The attached notice marked " Appendix'' is substituted for the no-
tice recommended by the Trial Examiner.
APPENDIX
NOTICE TO EMPLOYEES OF HOUSTON MARITIME ASSOCIATION, INC., AND
ITS EMPLOYER-MEMBERS; HARRIS COUNTY-HOUSTON SHIP CHAN-
NEL NAVIGATION DISTRICT; GULF ATLANTIC WAREHOUSE COMPANY;
DELTA STEAMSHIP LINES, INC., AND ALL OTHER PERSONS ENGAGED
IN COMMERCE OR AN INDUSTRY AFFECTING COMMERCE IN THE PORTS
OF HOUSTON AND GALVESTON, TEXAS
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify you that :
WE WILL NOT induce or encourage individuals employed in the
ports of Houston and Galveston, by any of the above-named per-
sons or any other person engaged in commerce or in an industry
affecting commerce, to engage in a strike or refusal 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 any of the aforesaid persons to cease doing busi-
ness with each other or with any other person.
WE WILL NOT threaten, coerce, or restrain in the ports of Hous-
ton and Galveston any of the above-named persons, or any other
NATIONAL MARITIME UNION OF AMERICA , AFL-CIO 1249
person engaged in commerce or in an industry affecting commerce
where an object thereof is to force or require said persons to cease
doing business with each other , or any , other person.
NATIONAL MARITIME UNION OF
AMERICA, 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 be altered , defaced , or covered by any other
material.
Employees may communicate directly with the Board 's Regional
Office, 6617 Federal Office Building, 515 Rusk Avenue , Houston,
Texas , Telephone No. Capitol 8-0611, Extension 296, if they have any
question conce'aling ' this notice or compliance' wit h its,-provisions.
TRIAL EXAMINER 'S DECISION
This , proceeding , under Section 10(b) of the National Labor Relations Act, as
amended ( 29 U.S.C. Sec. 151-168; herein called the Act ), was commenced by a
consolidated complaint I alleging that the National Maritime Union ( herein called
NMU or the Union ), by picketing and distributing handbills at the entrances to
docks and piers in Houston and Galveston , had caused work stoppages by stevedor-
ing and other employees and that this conduct, which effectively tied up these ports,
was in violation of Section 8(b) (4) (i ) and (ii ) ( B) of the Act.
The Union answered , admitting the picketing and distribution of handbills, but
claiming that its activities were protected by the 1st and 14th amendments to the
Constitution of the United States and by article 1, section 8, of the constitution of
the State of Texas.
A hearing on the , issues so raised was held before Trial Examiner Sidney D.
Goldberg, at Houston , Texas, on September 4 and 5, 1963, at which the parties were
present or represented by counsel . Briefs filed by the General Counsel and counsel
for the Union have been considered.
For the reasons set forth in detail below , I find that the Union's conduct was in
violation of Section 8(b) (4) (i ) and (ii ) ( B) of the Act and that it was not pro-
tected by the constitutional provisions cited in its behalf.
Upon the entire record in the case , and from my observation of the witnesses,
I make the following:
FINDINGS OF FACT
1. RESPONDENT LABOR ORGANIZATION
The Union admits-that it is a labor 'organization within the meaning of the Act.
II. THE EMPLOYERS INVOLVED
A. Houston Maritime Association
Ships entering the port of Houston are represented-as they are in most ports where
the owner or operator has no office-by steamship agents, whose function is the
"general husbandry" of the ship, that is, to. do on behalf of the ship everything
that the owner or operator would do if it were there. The steamship agents-and
the steamship lines which have offices of their own-in Houston are members of
Houston Maritime Association , a nonprofit corporation devoted to the promotion of
trade through that city. The stevedoring companies . operating in Houston and
some steamship agents in other Texas ports are "stevedore members" or "associate
'Issued by the General Counsel July 3, 1963, on charges filed June 18, 1963, and
amended-charges filed June 20, 1963.
756-236-65-vol. 147--80
1250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
members" having no vote The annual revenues of just 1 of the 21 regular mem-
bers of the Association, Biehl & Co, amount to more than $100,000 Delta Steam-
ship Lines, referred to below, is another regular member The Board has hereto-
fore exercised jurisdiction over the Association 2
B Gulf Atlantic Warehouse Company
Although, as will be seen, most of the port facilities in Houston are operated by
a municipal corporation, Gulf Atlantic Warehouse Company (herein called Gulf
Atlantic) operates a marine terminal consisting of eight steamship berths, with the
appurtenant cargo handling and warehouse facilities, known as the "Long Reach"
docks Its annual revenues admittedly exceed $500,000 The Board has heretofore
exercised its jurisdiction over this employer 3
C Delta Steamship Lines
Delta Steamship Lines, Inc (herein called Delta), operates 13 vessels, flying the
United States flag, engaged in commerce between the United States and foreign
countries Its annual revenues admittedly exceed $500,000
D The Port of Houston
Respondent's activities charged herein as unfair labor practices closed down opera-
tions in the port of Houston for several days According to the Department of
Commerce publication "Waterborne Foreign Trade Statistics" (FT 985) the value of
cargoes-in foreign trade only and with several categories excluded-passing through
the port of Houston in 1962 was $357 million in-bound and over $864 million
out bound
III THE UNFAIR LABOR PRACTICES
A Background
1 The physical layout at Houston
The port of Houston consists of the upper 4 miles of the Houston ship channel
which runs into Galveston Bay, about 25 miles downstream The principal wharves
and other port facilities are located on both sides of the channel on a 2 mile stretch
at its upper end and includes an enlarged area, called the Turning Basin This
stretch runs approximately from southeast to northwest
The port area is closed off from the city by a fence and by railroad tracks on the
west and northeast sides which meet at a point north of the Turning Basin The
four gates which afford entry through the fence into the port area are all at grade
crossings over the tracks on the northeastern side These gates, numbered (from
southeast to northwest) 2, 3, 7, and 8, give access to the port from Clinton Drive, a
highway running parallel with and outside the fence and tracks Gates 2, 6, and 7
lead to the wharves and other facilities on the northeast side of the channel, which
is locally referred to as the north side Gate 8, the most westerly one, is at the
intersection of the two sets of railroad tracks and through it, by means of other
roads, access is gained to the wharves and facilities on the Turning Basin and on
the south side of the channel There are additional wharves at Manchester, about
a mile downstream from the principal section of the port
Almost all of the wharves, warehouses, and other facilities of the port of Houston
are operated by Harris County-Houston Ship Channel Navigation District (herein
referred to as the Navigation District) a municipal corporation As described above,
the Long Reach docks, however, are operated by Gulf-Atlantic and these are located
on the south side of the Ship Channel
2 The work pattern
A ship entering the port of Houston is, as stated, under the general husbandry (i e
management ) of the owner , if it has an office there , otherwise , of the shipping agent
The shipping agent or owner arranges with a terminal operator for the berthing
of the ship, with a mooring company to get the ship to its berth, and with a stevedoring
company to unload it The function of a marine earner is usually complete with the
2 Houston Maritsme Association et al 121 NLRB 389
3 Gulf Atlantic Warehouse Company (Terminal Warehouse), 111 NLRB 1249, Gulf
Atlantsc Warehouse Co, 129 NLRB 42
NATIONAL MARITIME UNION OF AMERICA, AFIrCIO' 1251
deposit of the cargo on `the docks and arrangements for its -further' tiansportatioii`.
are generally made by the consignee through the terminal operator . According to
its instructions , the terminal ' operator ships the freight by rail or truck or holds it in
its warehouse pending further shipment or other disposition.
The- stevedoring companies obtain their employees , as needed , from the several
Houston locals of the International Longshoremen 's Association (herein called
ILA). The terminal operators , whose need for employees 4 also fluctuates as cargo
is deposited on their •dbcks-for movement into the warehouse or for loading on-trucks
.or rail cars, also place daily orders for help with appropriate ILA locals.
B. The picketing at Houston
The facts in this case are. practically undisputed. By its - answer, Respondent
admitted that, on June 17, 1963,5 "and for some days thereafter" its members picketed
the docks and piers in Houston and Galveston and passed out leaflets as alleged in
The complaint. The evidence shows that, shortly after 7 a.m. on June 17, pickets'
.appeared in Houston at gates 2, 6, and 8, to the port area. These are the gates
through which the ILA members employed by the stevedoring companies and the
terminal operators are required to pass in going to work on the docks and ships on
the north side. The Navigation District had ordered, from the appropriate ILA
locals, 188 men for warehouse and dock work on the north side, instructing them'
to report at 8 a.m. Customarily using gates 2 and 8, they came as far as the picket
lines there and refused to cross. A few men who had reported for work at 7 a.m. left
at 8 a.m. Although there were at least eight ships berthed at the piers on the north;
side, neither the warehousemen ordered by the Navigation District nor the stevedores'
-ordered by the stevedoring companies reported for work but stood around for a time
near the picket lines at the gates. At about noon on the 17th, the pickets moved from
gate 6 to gate 7.
On June 18 and 19, the picketing on the north side continued all day at gates 2, 7,
-and 8. Although on both days the' Navigation District ordered warehousemen from
ILA locals for work on those docks, none reported. Sometime during the day of
the 20th, the pickets were removed under circumstances to be described and work
,on the ships and docks was resumed.
At the Long Reach docks on the south side, the Gulf-Atlantic terminal employees
reported for work on June, 17 before 8 a.m. There were no pickets at the gates
at.that time but they were there at noon. After leaving for lunch, the longshoremen
did not return to work. A few Gulf-Atlantic employees who did not leave the
premises for lunch continued to work but neither Gulf-Atlantic nor stevedoring em-
ployees reported for work on the 18th, 19th, or 20th while the picketing continued.
On the morning of June 18 there were pickets at the gate to the Manchester docks
and operations there, also, were halted by the failure of employees to report for work.
The pickets wore placards reading as follows:
INFORMATION PICKETING
M.E.B.A. ENGINEERS
INTERFERE WITH
EMPLOYERS WHO
LAWFULLY RECOGNIZE N.M.U.
They also distributed handbills which were addressed "To All Union Men" and
began: "WE ARE PICKETING TO STOP DISRUPTION ON THE WATER-
FRONT". The handbills then described a situation in the port of Philadelphia involv-
ing the SS Maximus and it accused MEBA (Marine Engineers Beneficial Association)
and SIU (Seamen's International Union) of "attempting to harass companies which
have legitimate collective-bargaining agreements with the NMU." It was signed, in
the name of Respondent, by Joseph Curran, its president.
Testimony that the purpose of the picketing was "informational" was given by
Kirby McDowell, Respondent's port agent at Houston. He also testified that the
pickets were instructed not to attempt to stop anyone from crossing the picket line.
C. The picketing at Galveston
On Sunday, June 16, Delta's SS Del Alba tied up at pier 35 in Galveston carrying
a cargo of raw sugar from, Hawaii. The sugar was consigned to Imperial Sugar
4 Above a staff of permanent employees.
5 All dates herein , unless otherwise noted , are in 1963.
1252 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Company which has unloading and warehousing facilities on the pier . Early in the:
morning on the 17th there were pickets across the shore end of the pier and the
members of ILA employed by the stevedoring company to unload the sugar refused to.
cross it and go to work . At about noon on the 17th the pickets moved to one side
of the docks to permit construction - and maintenance , employees of,Imperial Sugar-
to.,go :.toi,work without crossing the picket line but the pickets remained at the side
of the dock where the 'Del `Alba' was 'moored during the 17th, -and 18th , and no; un-
loading work was done . Respondent's port agent at Galveston admitted that other
piers in Galveston were picketed for a short time.
D. Other activities
' In connection with its picketing at both Houston and Galveston ; Respondent
distributed the handbills described . According to its port agent in Galveston,.
Respondent also distributed these handbills in front of the MEBA office in Galveston
but did not picket there . He also testified that he had given instructions that the-
handbills were to be distributed anywhere along the warefront where marine per-
sonnel might receive them. In Houston , however, Respondent 's port agent testified'
that there was no picketing except at the pier entrances.
Sometime about noon on the 20th, Kirby McDowell , Respondent 's port agent' at
Houston , announced to newspaper reporters in his office that he had received a
telephone call from Respondent's main office in New York informing him that the
Secretary of, Labor had arranged a settlement of the dispute in Philadelphia, that he
(McDowell) had "pulled his pickets off" and "as far as he was concerned, the port
could get back into operations." The pickets left their posts at Houston and,
Galveston at about the same time on the 20th and work was resumed.
E. Contentions of the parties
On the foregoing facts, the General Counsel contends that Respondent 's activities
violated Section 8(b)(4)(i )( B) and ( ii)(B) of the Act in inducing the longshore
employees to engage in a strike or refusal to tranpsort or handle goods in the ports
of Houston and Galveston and in coercing persons engaged in commerce there, and
,,that Respondent conducted such activities with an object of forcing these persons
to cease transporting products in commerce or doing business with others engaged
in commerce.
Respondent , although it admits the conduct outlined above and concedes that it
resulted in work stoppages , contends that such conduct was not in violation of the
Act for two reasons . First: that there is no proof that such work stoppages were "an
object" of its conduct. Second : that on the basis of the matters which it offered to
prove involving the Seamen 's International Union, the Marine Engineers Beneficial
Association and other unions and persons, as manifested in the dispute over the load-
ing of the SS Maximus in the port of Philadelphia, the purpose of its picketing was
"to advise the rank -and-file members of the MEBA that their union was being used as
a dupe by the SIU" and that such picketing is constitutionally protected.
F. Conclusionary findings
The representatives of Respondent admitted that the picket lines were set up
and removed pursuant to instructions from Respondent 's main office in. New York
and that the wording of-both the picket - signs and the leaflets were supplied by that
office. The leaflet, athough" condemning in general the tactics of SIU and' MEBA,
bases its argument almost entirely on the situation involving the loading of the
SS Maximus in Philadelphia . It is clear , therefore , that Respondent 's activities in
Houston and Galveston were based upon the situation in Philadelphia . From the
testimony of several witnesses and the failure of Respondent to adduce any evidence
to the contrary , it appears that Respondent had V^o labor dispute with any of the
employers in Houston or Galveston affected by the picketing herein . The record
is also devoid of proof that any of the employers involved in the Philadelphia dispute
was present in the ports of Houston or Galveston during the picketing.
The circumstances in this case , therefore , are slightly different from the usual one
in which the union 's dispute with a primary employer is clear and the relationship
between that employer and those affected by the alleged unlawful activities is easily
recognizable.
NATIONAL MARITIME UNION OF AMERICA, AFL-CIO 1253
Section 8 (b)(4)(i) and ( ii)(B), however , like its predecessor Section 8 (b)(4)(A)
are not premised upon the presence of such elements. As stated by the Supreme Court
in the Sand Door case: 6 -
The section does not speak generally of secondary boycotts . It describes and
condemns specific union conduct directed to specific objectives . It forbids a
union to induce employees to strike against or refuse to handle goods for their
employer when an object is to force him or another person to cease doing business
with some third party.
The questions to be determined herein , therefore , are these three : ( 1) Did Re-
.spondent 's picketing constitute inducement of employees to refuse to handle goods;
(2) did Respondent 's picketing restrain or coerce any person engaged in commerce;
and (3 ) was it an object of such inducement and coercion to force any person to cease
handling or transporting products in interstate commerce or to cease doing business
with any other person in commerce?
1. Inducement and coercion
The Respondent argues that its picketing , although conducted . at.the gates used
,principally by stevedore and warehouse employees - to-go to ' work ° on the piers and
other parts of the port area, was "informational "-intended to disclose to MEBA
members the misdeeds of their officials-and , therefore , constitutionally protected.
This argument must fail . As. stated by Mr . Justice Douglas in his 'concurring
opinion in Bakery and Pastry Drivers etc. V. Wahl , 315 U .S. 769 at 776:
Picketing by an organized group is more than free speech , since it involves
patrol of a particular locality and since the very presence of a picket line may
induce action of one kind or another , quite irrespective of the nature of the ideas
which are being disseminated . Hence those aspects of picketing make it.the
subject of restrictive regulation.
Section 8 (b) (4) of the Act represents such restrictive regulation by the Congress.?
The constitutionality of this regulation was upheld by the Supreme Court in the
.following language in N.L.R.B. v. Denver Building and Construction Trades Council,
,el al., 341 U.S. 675 at 690:
Finally, Section 8(c) safeguarding freedom of speech has no significant applica-
tion to the picket's placard in this case . Section 8(c) does not apply to a mere
signal by a labor organization to its members, or to the members of its affiliates,
to engage in an unfair labor practice such as a strike proscribed by Section
8(b) (4) (A). That the placard was merely such a signal, tantamount to a
direction to strike , was found by the Board.
In International Brotherhood of Electrical Workers, Local 501 et al. (Samuel Langer)
v. N.L.R.B., 341 U.S. 694 at 703-705,• another of -the four cases = involving Section
.B (b) (4) (A) decided the same day , the Supreme Court stated:
To exempt peaceful picketing from the reach of Section 8(b)(4) would be
to open the door to the-customary means of enlisting the support of employees
to bring economic pressure to bear on their employer. The Board quickly
recognized that to do so would be destructive of the purpose of Section 8 (b) (4).
It said: "To find that peaceful picketing was not thereby proscribed would be
to impute to Congress an incongruous intent to .permit, through indirection, the
accomplishment of an objective which it forbade to be accomplished
directly . . . .
The prohibition of inducement or encouragement of secondary pressure by Sec-
tion 8 (b) (4) (A) carries no unconstitutional abridgement of free speech. The
inducement or encouragement in the instant case took the form of picketing
followed by a telephone call emphasizing its purpose. The constitutionality
of Section 8(b) (4) (A) is here questioned only as to its possible relation to
the freedom of speech guaranteed by the First Amendment . This provision
has been sustained by several Courts of Appeals. The substantive evil condemned
6 Local 1976 , United Brotherhood of ,Carpenters, etc. (Sand Door & Plywood Co.) V.
N.L.R.B., 357 U.S. 93, at 98.
7 See also Superior Derrick Corp . v. N.L.R . B., 273 F . 2d 891 , 894-896 ( C.A. 5).
1254 DECISIONS OF NATIONAL LABOR RELATIONS -BOARD
by Congress in Section 8(b)(4) is the secondary -boycott and we recently
have recognized the ' constitutional rights of states to proscribe picketing in
furtherance of comparably unlawful objectives. There. is - no reason why
Congress may not do likewise.
The record in this case shows that, although McDowell testified that the picket
line- was put up "strictly . .. to inform the public, to inform the labor movement"'
that MEBA was being duped by SIU and that he knew which ships had. MEBA
members aboard, it is also clear that no effort was made by Respondent to direct
its messages to the MEBA members but that, by picketing the gates to the port
area, it was Respondent's intention to shut down the work of the entire port with
discrimination. Moreover, when McDowell, who testified that he had been in the
labor movement-practically all of his life, was asked: "When you put a picket line
at the'entrance to a dock, where stevedores were scheduled to go to work, what did
you expect to happen?" he answered: "I really couldn't say. I know of times that
lines were respected and times lines were not respected." "Upon all of the evidence a
I find, as a fact, that the picketing was-and was intended to be-Respondent's sig-
nal to the employees of all employers-in the port of Houston and at the dock at
Galveston to cease work. - -
: The Board has consistently held that picketing by a union, at the 'premises of an
employer with whom it has no primary dispute, constitutes restraint and coercion
within'themeaning of Section 8(b)(4)(ii) of the Act9
2. Respondent's object
The-somewhat unusual character of Respondent's activities and the absence of the
usual type of direct evidence from which an inference can be drawn requires an
examination of the facts to determine whether its activities at Houston and Galveston
had as "an object": -
forcing or requiring any person to cease using, selling, handling, transporting,
or otherwise dealing in the products of any other producer, processor, or manu-
facturer, or to cease doing business with any other person.
Respondent's insistence that its picketing was "informational" and its effort to re-
strict assignment of its "objects" to this single function are self-serving and cannot
succeed. As shown above, Respondent's agents are persons of substantial experience
in the labor movement and must be regarded as familiar with the effect of a picket
line. In view of the language of Mr. Justice Douglas, quoted above, that "the very
presence of a picket line may induce action of one kind or another" and McDowell's
admission that be knew "of times that lines were respected" it seems to be laboring
the obvious to point out that the picket line is a well-recognized device used by
employees or their organizations to enlist the aid of other employees in their cause.
Its value lies largely in the simplicity of its appeal, namely, "don't cross our picket
line and we won't cross yours." It follows, therefore, that in setting up its picket
line, Respondent must be deemed to have known-and intended-the foreseeable
consequences of its conduct: 10 that the stevedores, longshoremen, and other em-
ployees would stop at the picket line and not proceed to their work. It is similarly
laboring the obvious to point out that, if its employees did not report for work, the
operators and other employers could not perform the services for which they were
established.
Respondent's additional argument that, because the record here shows no "primary"
dispute, its activities cannot be labeled "secondary" and, therefore, unlawful, is not
well founded either in fact or in law. Factually, although most of the presentation
was contained in its offer of proof, which is not part of the evidentiary record, a
sufficient amount of the testimony of its witnesses was accepted as "preliminary" to
put into the record an outline of the dispute Respondent had with the employers and
other labor organizations in the port of Philadelphia that gave rise to its shutting
8 Other evidence in this case supports the same conclusion. The testimony of Respond-
ent's witnesses that such was not its purpose is rejected as inconsistent with the credible
evidence.
9 General Teamsters Local No. $2 4 etc. ( Cascade Employers Association, Inc.), 144
NLRB 836, and cases cited therein.
10 The Radio Officers' Union of the Commercial Telegraphers Union (A. H. Bull Steam-
ship Company) v. N.L.R.B., 347 U.S. 17, 45.
NATIONAL MARITIME UNION OF AMERICA, AFL-CIO 1255 -. -
down, of the ports- of Houston and Galveston. Moreover the, leaflet,. which is in
evidence, describes it in detail. , Nor is-any such showing necessary as a matter of
law (see N.L.R.B. v. Washington-Oregon Shingle Weavers' District Council, etc., 211
F. 2d 1149 (C.A. 9) ). ' As stated above, the record affirmatively shows that Respond-
ent had no • dispute with any of the affected employers in the ports of Houston and
Galveston and, therefore, the cases cited by Respondent involving discussions of
either primary picketing or picketing at a common situs have no.application here.
The decision of the Second Circuit Court of Appeals in Douds V. International
Longshoremen's Association, Independent (New York Shipping Association), 224
F. 2d 455 (C.A. 2), does bear some resemblance in. its facts to the situation here in
that it also involved union activities on a scale recklessly disproportionate to the
basic dispute and which also completely immobilized a. great port. The decision it-
self, however, was issued in reviewing the conviction of union officials for criminal
contempt of an injunction and one in which the rigor of the standards applicable
were necessarily affected by that factor. Insofar, however, as the reasoning of the
court may be construed as applicable here, I am of the opinion that the decision is
outside the main stream of the law on this point and I would not give it an over-
riding effect in this case. I am convinced that the very recent statement of. the
Supreme Court that "the motives of man are too complex . . . to separate"" is
the sounder view and that it is applicable here.
In United Marine Division, Local 333, et al. (New York Shipping Association);
107 NLRB 686, the nature of the activities of the respondent labor organization also
brought the business of a great port-New York-to a standstill over a dispute in-
volving tugboats in the same harbor. The argument was made in defense that, not-
withstanding its picketing was conducted in a manner that brought all activity in the
port to a halt, the only objective that the' union would admit entertaining was one
not proscribed by Section 8(b)(4)(A). Trial Examiner Leff; whose opinion was
adopted by the Board, analyzed the facts, in many respects like-those involved in
this case, dealt with similar defensive arguments and held that the union had vio-
lated Section 8(b) (4) (A) of the Act. His language, at pages 710 and 711, is appli-
cable here and is so clear and persuasive that any effort to restate-it-much less to
improve upon it-is unlikely to succeed.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities and conduct of the Respondent National Maritime Union of America,
AFL-CIO, occurring in connection with the operations of Houston Maritime Asso-
ciation, Inc., and its member employers , of Harris County-Houston Ship Channel
Navigation District , of Gulf Atlantic Warehouse Company, of Delta . Steamship,
Lines, and of other employers or persons engaged in commerce in the ports of Hous-
ton and Galveston , described in section I, have a close , intimate ; and substantial rela-
tion to trade, traffic, and commerce among the several States, between the States and
foreign countries, and lead to labor disputes burdening and obstructing commerce
and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in unfair labor practices in viola-
tion of Section 8(b) (4) (i) and (ii) (B) of the Act, I shall recommend that it be re-
quired 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. Respondent is a labor organization within the meaning of the Act.
2. Houston Maritime Association, Inc., and its member employers, Harris.
County-Houston Ship Channel Navigation District, Gulf Atlantic Warehouse Com-
pany, Delta Steamship Lines, Inc., and the other employers or persons engaged in
commerce in the ports of Houston and Galveston are employers or persons engaged'
in commerce within the meaning of the Act.
3. By inducing and encouraging employees of Houston Maritime. Association, Inc.,
and its member employers, of Harris County-Houston Ship Channel Navigation Dis-
trict, of Gulf Atlantic Warehouse Company, of Delta Steamship Lines, Inc., and of
the other employers or persons engaged in commerce in the ports of Houston and'
n B.E.C. v. Capital Gains Research Bureau, Inc., at al., decided December 9, 1963
(32 Law Week 4029).
1256 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Galveston to engage in strikes or refusals in the course of their employment to per-
form services, with the object of forcing said employers and persons to cease doing
business with each other and with other employers and persons engaged in commerce,
the Respondent 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.
4. By threatening , coercing, and restraining said employers and persons , with an
object of requiring them to cease doing business with each other and with other em-
ployers and persons engaged in commerce , the Respondent 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.
RECOMMENDED ORDER
Upon the foregoing findings of fact and conclusions of law, and pursuant to Sec-
tion 10(c) of the Act, it is recommended that National Maritime Union of America,
AFL-CIO, its officers , agents, and representatives, shall:
1. Cease and desist from:
(a) Engaging in or inducing or, encouraging individuals employed by Houston
Maritime `Association,' Inc., and its member, employers; by Harris 'County-Houston
Ship Channel Navigation District, by Gulf Atlantic Warehouse Company, by Delta
Steamship Lines, Inc., and by other employers or persons engaged in commerce in
the ports of Houston or Galveston, 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 any of the foregoing employers or
persons engaged in commerce or any other employer or person, to cease doing
business,with each-other.
(b) Threatening, coercing, or restraining employer members of Houston Maritime
Association, Inc., Houston-Harris County Navigation District, Gulf Atlantic Ware-
house Company, Delta Steamship Lines, Inc., or any other employers or persons en-
gaged in commerce in the ports of Galveston or Houston, with an object of requiring
them, or any of them, to cease doing business with each other or with any other
employer or person engaged in commerce.
2. Take the following affirmative action, which is-hereby found necessary to effectu-
ate the policies of the Act:
(a) Post in conspicuous places in each of the Respondent's business offices, meet-
ing halls, and other places in Houston and Galveston, Texas, where notices to mem-
bers are customarily posted, copies of the notice marked "Appendix B" [Board's
Appendix substituted for Trial Examiner's Appendix].12 Copies of said notice,
to be furnished by the Regional Director for the Twenty-third Region, after being
duly,: signed by an -authorized--representative of said. Respondent;- shall 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 the Twenty-
third Region, for posting by Houston Maritime Association, Inc., and its member
employers, by Harris County-Houston Ship Channel Navigation District, by Gulf
Atlantic Warehouse Company, by Delta Steamship Lines, Inc., and by the other
employers or persons engaged in commerce in the ports of Houston and Galveston,
said employers or persons being willing, at all locations where notices to their em-
ployees 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 therewith.13
121n 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 the 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."
'" In the event that this Recommended Order he 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."