Int'l Longhoremen's and Warehousemen's Union

National Labor Relations Board - Board Decisions

Jan 18, 1960

126 N.L.R.B. 172 (N.L.R.B. 1960)

172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
International Longshoremen 's and Warehousemen 's Union, Local
8; International Longshoremen's and Warehousemen 's Union,
Local 92; and International Longshoremen 's and Warehouse-
men's Union and General Ore, Inc. Case No. 36-CC-59. Janu-
ary 18, 1960
DECISION AND ORDER
On June 5, 1959, Trial Examiner Howard Myers issued his Inter-
mediate Report in the above-entitled proceeding, finding that the Re-
spondents has engaged in and were engaging in certain unfair labor
practices, and recommending that they cease and desist therefrom and
take certain affirmative action, as set forth in the Intermediate Re-
port attached hereto. Thereafter, the Respondents and the General
Counsel filed exceptions to the Intermediate Report. The Respond-
ents also filed a brief in support of their exceptions.
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 Inter-
mediate Report, the exceptions and brief, and the entire record in this
case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner with the following additions :
1. We agree with the Trial Examiner that by picketing the Com-
pany's unloading installation with an object of forcing or requiring
the Company to join Pacific Maritime Association, an employer or-
ganization, herein referred to as PMA, or to hire the services of a
stevedoring firm which was a member of PMA, the Respondents vio-
lated Section 8(b) (4) (A) of the Act, which proscribes picketing
where an object thereof is to force or require an employer to join an
employer organization.
In so finding, we rely primarily on two evidentiary facts : the posi-
tion the Respondents took in their negotiations with the Company for
unloading of the so-called test shipments of alumina ore, and the state-
ment made by International Representative Fantz at the July 25 con-
ference with the Company. During the negotiations with the Com-
pany for an unloading arrangement covering the test shipments, the
Respondents made it abundantly clear that the Company would be
able to use longshoremen for unloading its test shipments, only if its
agent, Willamette, who was to perform unloading operations for the
Company, joined PMA or retained the services of a stevedoring com-
pany which was a member of PMA. As the Company decided to com-
ply with this requirement and authorized Willamette to hire the
services of Portland Stevedoring Company, a member of PMA, no
issue was made of the Respondents' requirement at the time. But had
the Company refused to bow to the Respondents' demand and the Re-
126 NLRB No. 24.
INT'L LONGSHOREMEN'S & WAREHOUSEMEN'S UNION 173
spondents thereafter resorted to picketing, at that time there would
have been a clear violation of Section 8(b) (4) (A). It is true that at
the negotiations for a permanent unloading arrangement the Re-
spondents somewhat modified their position and chose to insist, as a
condition of the use of longshoremen in unloading operations , that the
Company enter into a direct contract with the Respondents.
As appears below, the Respondents, however, did not abandon their
insistence upon the Company's joining PMA as a condition for the
performance of unloading operations. At the July 25 conference
with the Company, International Representative Fantz, in response
to a query from Hinz, the company representative, as to whether the
Company could hire longshorelneis direct, informed Hinz that it
could not, that it would have to join PMA or hire the services of a
stevedoring firm that was a PMA member.
The Respondents thus, in effect, put the Company on notice that
it had available to it three courses of conduct (1) to enter into a
direct contract with the Respondents, (2) to join PMA, or (3) to
hire the services of a PMA stevedoring firm; and that the compliance
with any of these alternative requirements would be satisfactory to
the Respondents. Therefore, when the Respondents, upon the Com-
pany's failure to act, began picketing of the Company's premises, it
was for the objective, inter alia, of forcing the Company to join PMA
or hire a PMA stevedoring firm,' both of which we find are proscribed
by Section 8(b) (4) (A) 2 It does not matter that their objectives
were not formulated by the Respondents as a demand. The parties
well understood what alternative action was expected of the Company
as a condition of the cessation of the picketing, without the necessity
of formulating the specific demand.3 Nor is it of any importance that
not all the objectives of the picketing were proscribed by Section
8(b) (4) (A).4
2. Motion to reopen the record :
On March 16, 1959, the Respondents filed with the Board a motion
to reopen the record and for permission for board agent to testify
and produce evidence.
The Respondents seek to reopen the record and examine the Re-
gional Office personnel at a reopened hearing to establish that the
i Section 777 of the Restatement of Law of Torts defines an "object" of concerted
action by employees as "an act required in good faith by them of the employer as the
condition of their voluntarily ceasing their concerted action against him."
2 While the Act does not, in terms , proscribe the second of these objectives , we equate
it with the first objective in the context of this case , as it was not a genuine alternative.
Practical considerations would militate against the Company 's hiring a PMA stevedoring
firm in preference to joining the PMA and hiring its stevedoring employees directly.
3 Comment (e) to Section 777 of the Restatement states : "An object of concerted
action is generally manifested in a demand made by them . But there is no technical
requirement as to formulation of demands . The parties may understand what act is
required as a condition of the termination of the action without formulation of a specific
demand."
4 N L R B. v. Denver Building and Construction Trades Council et al., 341 U . S. 675, 689.
174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Regional Director has violated Sections 102.84 to 102.87 of the Board's
Rules and Regulations by failing to give this case the priority which
Section 10(1) of the Act requires. The record shows that following
a timely investigation of the charges of October 27 and November 6,
1958, the Regional Director on November 21, 1958, applied to a U.S.
District Court for the State of Oregon for a temporary restraining
order. Thereafter, at the request of the parties, the trial of the suit
for injunction was from time to time continued until February 24,
1959, in order to afford the parties an opportunity to settle out of
court the numerous actions, cross-actions, suits, and proceedings
which arose out of the same dispute. For the same reason also, the
complaint and the notice of heariiig were not issued until February 11,
1959. Thereafter, at the request of the Company the hearing was
rescheduled for March 10, 1959,5 and at that time heard before the
Trial Examiner. We find the request to reopen the hearing on this
ground without merit.
The Respondents seek to reopen the record also for the purpose of
showing that the Board files contain evidence which indicates that
there has been no violation of the Act, that the evidence was insuf-
ficient to substantiate the charge, and that the issuance of the com-
plaint by the General Counsel was arbitrary and capricious and in
violation of Sections 101.5 and 101.6 of the Statements of Procedure.
Specifically, the Respondents alleged at the hearing that the General
Counsel failed to afford the Respondents an opportunity to examine
the prehearing statements and affidavits of the individuals who were
not called to testify at the hearing in the instant case. As it appears
that all prehearing affidavits made by the individuals called by the
General Counsel to testify at the hearing had been shown to the
Respondents' counsel, and as the statements of the individuals who
were not called as witnesses as well as other information sought by
the Respondents constitute part of the Board's confidential files, the
Respondents' request to reopen the hearing on that ground is also
without merit.'
5 The Board found a similar contention without merit in the companion proceeding
under Section 10(k) involving the same parties and arising out of the same conduct of
the Respondents . International Longshoremen 's and Warehousemen's Union, Local 8,
et at. ( General Ore, Inc ), 124 NLRB 626.
e American Steel Building Company, Inc ., 123 NLRB 1363 ; The Great Atlantic and
Paci fic Tea Company et at, 118 NLRB 1280, as modified in Ra -Rich Manufacturing
Corporation, 121 NLRB 700. In the latter case, the Board held that, in accordance with
the Jencks case, the parties have "the right to require the production for purposes of
cross-examination of pretrial statements made by witnesses who have already testified
in such proceedings " It is to this extent only that the rule of the Great Atlantic case
was overruled by the Ra-Rich case. The Board 's holding in the Great Atlantic case that
a motion to furnish the respondents with "all affidavits, reports, documents and any
other material the Board has in its files that it secured and adduced during the investiga-
tion . . . of the charge" cannot be tolerated as "broad or blind fishing expeditions,"
remains just as much the rule of law today as before the Ra-Rich case . See Board's
Rules and Regulations , Sections 102.94 and 102.95.
INT'L LONGSHOREMEN 'S & WAREHOUSEMEN 'S UNION 175
THE REMEDY
The General Counsel excepts to the Trial Examiner's failure to
recommend an order consistent with his finding that the Respondents
picketed the Company's installation with an object of forcing or re-
quiring the Company to join Pacific Maritime Association. We find
merit in this exception and accordingly will direct the Respondents
to cease and desist from engaging in picketing for this objective.
ORDER
Upon the basis of the entire record in this case, and pursuant to
Section 10 (c) of the National Labor Relations Act, as amended, the
National Labor Relations Board hereby orders that International
Longshoremen's and Warehousemen's Union, Local 8; International
Longshoremen's and Warehousemen's Union, Local 92; and Interna-
tional Longshoremen's and Warehousemen's Union, their respective
officers, representatives, agents, successors , and assigns shall:
1. Cease and desist from engaging in, or inducing or encouraging
the employees of General Ore, Inc., or any other employer, to engage
in, a strike or a concerted refusal 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 General Ore,
Inc., or any other employer in the Portland area, to become a member
of Pacific Maritime Association, or, in the alternative, to hire a steve-
doring firm that is a member of Pacific Maritime Association.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(a) Post at their respective offices, copies of the notice attached
hereto marked "Appendix."' Copies of said notice, to be furnished
by the Regional Director for the Nineteenth Region, shall, after being
duly signed by duly authorized representatives of Respondents, be
posted immediately upon receipt thereof and maintained for a period
of 60 consecutive days thereafter in conspicuous places, including all
places where notices are customarily posted. Reasonable steps shall
be taken by Respondents to insure that such notices are not altered,
defaced, or covered by other material.
(b) Furnish to the Regional Director for the Nineteenth Region
copies of the notice attached hereto as an appendix, duly signed by
their proper and qualified officers, for posting by General Ore, Inc.,
it willing, in places where it customarily posts notices to employees.
7In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree,of the United States Court of Appeals , Enforcing an Order."
176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) Notify the Regional Director for the Nineteenth Region, in
writing, within 10 days from the date of this Decision and Order,
what steps the Respondents have taken to comply herewith.
MEMBERS BEAN and FANNING took no part in the consideration of
the above Decision and Order.
APPENDIX
NOTICE TO ALL MEMBERS OF INTERNATIONAL LONGSHOREMEN'S AND
WAREHOUSEMEN'S UNION, LOCAL 8 ; INTERNATIONAL LONGSHORE-
MIEN'S AND WVAREHOUSEMEN'S UNION, LOCAL 92 ; AND INTERNATIONAL
LONGSHOREMEN'S AND WAREHOUSEMEN'S UNION AND TO ALL E1%f-
PLOYEES OF GENERAL ORE, INC.
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, we hereby notify that :
WE WILL NOT induce or encourage employees of General Ore,
Inc., or any other employer, to engage in a strike or a concerted
refusal 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 General Ore, Inc., or
any other employer, to become a member of the Pacific Maritime
Association, or, in the alternative, to hire a stevedoring firm that
is a member of Pacific Maritime Association.
INTERNATIONAL LONGSHOREMEN'S AND
WAREHOUSEMEN'S UNION,
Labor Organization.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
LOCAL 8, ILWU,
Labor Organization.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
LOCAL 92, ILW J,
Labor Organization.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INT'L LONGSHOREMEN'S & WAREHOUSEMEN'S UNION 177
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon a charge and a supplemental charge duly and timely filed on October 27,
1958, and on November 10, 1958, respectively, by General Ore, Inc., herein called
General Ore, the General Counsel of the National Labor Relations Board, herein
respectively called the General Counsel i and the Board, by the Regional Director
for the Nineteenth Region (Seattle, Washington), issued a complaint, dated February
11, 1959, against International Longshoremen's and Warehousemen's Union, Local
8, herein called Local 8; International Longshoremen's and Warehousemen's Union,
Local 92, herein called Local 92; and International Longshoremen's and Ware-
housemen's Union, herein called the International,2 alleging that Respondents have
engaged in and are engaging in unfair labor practices affecting commerce within
the meaning of Section 8(b)(4)(A) and Section 2(6) and (7) of the National
Labor Relations Act, 61 Stat. 136, as amended, herein called the Act.
Copies of the charges and complaint, together with notice of hearing thereon,
were duly served upon each Respondent and upon General Ore.
Specifically, the complaint alleged that: (1) Respondents since on or about July
25, 1958, have demanded that General Ore join the Pacific Maritime Association,
an employer association, in conjunction with which Respondents operate a hiring
hall in Portland, Oregon; (2) Respondents since on or about August 12, 1958, in
furtherance of the aforesaid demands, have picketed the Portland, Oregon, dock and
bulk unloading facility operated there by General Ore, the pickets carrying signs
bearing the legend: "General Ore Unfair to ILWU Local 8" and "General Ore Un-
fair to ILWU Local 92"; said picketing has been conducted by picket boats in the
Willamette River and also on the shoreside of the dock and the unloading facility;
(3) as a consequence of said picketing the employees of seven named concerns as
well as employees of other employers have refused to cross said picket lines or to
perform services at or near the picketed dock and have refused to berth the ore-
bearing vessels upon their arrival in Portland, Oregon; and (4) by the aforesaid
picketing and by appeals and by other acts and conduct Respondents, since on or
about August 12, 1958, in violation of Section 8(b) (4) (A) of the Act, have induced
and encouraged employees of seven named Employers and the employees of other
concerns to engage in strikes or concerted refusals in the course of their employ-
ment to use, manufacture, process, transport, or otherwise handle or work on goods,
articles, materials, or commodities, or to perform services for their respective
employers.
Local 8 and Local 92 duly and timely filed a joint answer and the International
duly and timely filed a separate answer. Each answer denied the commission of
the unfair labor practice alleged.
Pursuant to due notice, a hearing was held on March 10, 1959, at Portland, Oregon,
before the duly designated Trial Examiner. Each party was represented by counsel
and was afforded full opportunity to be heard, to examine and cross-examine wit-
nesses, to introduce pertinent evidence, to argue orally at the conclusion of the tak-
ing of the evidence, and to file briefs and proposed findings of fact and conclusions
of law on or before April 9, 1959.3 The General Counsel and each Respondent filed
a brief which have been carefully considered.
Under date of March 31, 1959, the General Counsel wrote the Trial Examiner,
copies of said letter were sent to counsel for the other parties, requesting that the
order dated March 7, 1959, made by Hon. William G East, Judge of District Court
of the United States for the District of Oregon, and the findings of fact and con-
clusions of law attached thereto in a certain proceeding now pending before said
court in Graham v. International Longshoremen's & Warehousemen's Union, et al,
(Alaska Salmon Industry), Civil No. 10086, be received in evidence in this proceed-
ing. Under date of April 2, 1959, counsel for the International, and under date of
April 9, 1959, counsel for Local 8 and Local 92 wrote the Trial Examiner, copies
of said letters were sent the other counsel, objecting to the receipt in evidence of the
aforesaid papers. The objections are hereby overruled, and the aforesaid order, to-
gether with the papers attached thereto, and the aforementioned General Counsel's
March 31, 1959, letter, are hereby received in evidence and marked Trial Examiner's
1 This term specifically includes counsel for the General Counsel appearing at the
hearing
z Cojointly, Local 8, Local 92, and the International are referred to herein as
Respondents
3 At the request of counsel the time to file briefs was extended to April 22, 1959.
554461-60-vol. 126-13
0
178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
9
Exhibit No. 1. The aforementioned April 2, 1959, letter of counsel for Interna-
tional and the aforementioned April 9, 1959, letter of counsel for Local 8 and Local
92 are hereby received in evidence and marked Trial Examiner's Exhibit Nos. 2 and
3, respectively.
Upon the entire record in the case and from his observation of the witnesses, the
Trial Examiner makes the following:
FINDINGS OF FACT
1. THE BUSINESS OPERATIONS OF GENERAL ORE, INC., AND
HARVEY ALUMINUM, INCORPORATED
Harvey Aluminum, Incorporated, herein called Harvey, a California corporation
having its principal offices and a plant at Torrance, California, and another plant at
The Dalles, Oregon, is engaged in the manufacture of aluminum. At The Dalles
plant, Harvey operates, through General Engineering, Inc., an aluminum reduction
plant. At the Torrance, California, plant, Harvey manufactures aluminum and
titanium forgings and extrusions, and similar products. The value of Harvey's 1958
out-of-State sales of the merchandise produced at The Dalles plant exceeded $1,000,-
000 Since May 1, 1958, Harvey imported into the United States alumina ore
valued at over $1,000,000.
General Ore, Inc., an Oregon corporation and an affiliate of Harvey, is engaged
at the port of Portland, Oregon, in the operation of a bulk unloading facility for
unloading alumina ore from vessels arriving from foreign countries and loading said
ore into railroad freight cars for transshipment to the Harvey plant at The Dalles.
The two corporations are commonly owned, controlled, and supervised, and are
parts of an integrated enterprise. During the 6-month period immediately preceding
the issuance of the complaint herein, General Ore has rendered services (unloading
ore) to Harvey of a value of approximately $52,550. From November 1958 through
January 31, 1959, Harvey paid or advanced to General Ore more than $100,000 for
ocean freight.
Upon the above uncontroverted facts, the Trial Examiner finds that Harvey and
General Ore each is engaged in commerce within the meaning of Section 2(6) and
(7) of the Act and that it will effectuate the policies of the Act for the Board to as-
sert jurisdiction in this proceeding.
II. THE LABOR ORGANIZATIONS INVOLVED
International Longshoremen's and Warehousemen's Union, Local 8; International
Longshoremen's and Warehousemen's Union, Local 92; and International Long-
shoremen's and Warehousemen's Union are labor organizations admitting to mem-
bership employees of General Ore.
III. THE UNFAIR LABOR PRACTICES
A. The pertinent facts
In October 1957, the Willamette Tug and Barge Company, herein called Willam-
ette, commenced certain construction work for Harvey at the Portland, Oregon,
dock, referred to in the record as General Ore's unloading facility.
In April 1958 4 Willamette conducted a test of the unloading equipment it had
installed at the construction site and found it efficient. Willamette used its own
employees, all being members of Hoisting and Portable Engineers Union, Local 701,
affiliated with Inland Boatmen's Union, herein called Local 701, to run the test..
After the first test run had been completed, Willamette agreed to run some tests of
unloading alumina from "test ships" 5 for Harvey.
Before entering upon the ship-unloading tests, Willamette, anticipating that a
probable jurisdictional dispute might arise between Local 701 and Local 8 because
it was its intention to use engineers on the unloading equipment, some of which
equipment is located on the barge which floats between the ship and the dock
and others being located on the shore, and use longshoremen to do the unloading,
requested a meeting with representatives of said labor organization.
On May 1, officials of Willamette met in its offices with Carl Anderson, secretary
of Local 8; James Fantz, international representative of Respondent Independent;
L. E. Eagan, an official of Local 701; Gordon Mays, an official of Local 8 and
a member of its industrial relations committee, and other representatives of Re-
* Unless otherwise noted, all dates hereinafter mentioned refer to 1958.
5 That is, vessels carrying less than full loads of cargo.
INT'L LONGSHOREMEN'S & WAREHOUSEMEN'S UNION 179
spondents. After John Rossiter, Willamette's marine division manager, had out-
lined to those present that Willamette was about to undertake, as an independent
contractor, two or three ship-unloading tests, and that it was its intention to use
members of Local 701 and members of Local 8, in so doing, he requested assurances
from the unions that no jurisdictional problems would arise if he used engineers
and longshoremen on the same job. After Fantz and Eagan, Local 701's official
representatives, had stated that no jurisdictional problem or dispute would arise,
Rossiter stated that after the several contemplated ship tests had been made the
facility would be turned to and operated by someone else, whose identity he did
not know. Rossiter added that he wanted it clearly understood that he was in
no position to make any commitment which might bind Harvey in any respect.
Fantz and Anderson then demanded that, in addition to the longshoremen work-
ing on the test ships' unloading, two longshoremen be employed on the rail cars
since those jobs would not require skilled operators. Rossiter agreed. Anderson
and Fantz also stated that since the employment of longshoremen was contemplated,
that necessitated Willamette's becoming a member of Pacific Maritime Association,
herein called PMA, an employer association, which, among other things, bargains
collectively for its members with certain labor unions, but since Willamette was
not a member of PMA, it might be advisable for Willamette to contract out the
unloading of the test ship to a PMA stevedoring firm. Rossiter agreed to consult
PMA regarding the matter of the unloading through a stevedoring firm.
During the aforesaid meeting Anderson said that longshoremen had operated
equipment similar to that used by Willamette at grain terminals in the Portland
harbor and Local 8 had men who were familiar with such equipment and were
capable of operating the Willamette equipment. Whereupon Rossiter said that,
since the equipment was new and there were certain "bugs" to be eliminated, it
was more desirable, to avoid unnecessary breakdowns and the like, to hire experi-
enced machinists rather than grain-operator longshoremen who were not in a posi-
tion to fix the equipment in case of a breakdown.
Fantz also stated during the meeting that at the conclusion of the tests, Local 8
would claim jurisdiction over the entire operation; that is, jurisdiction over the barge
operation, the rail car operation, and all other unloading and all railroad-car load-
ing. Fantz also remarked that members of Local 701 would not be allowed to
operate the equipment after the tests had been completed.
After consulting with Lawrence Harvey, executive vice president of Harvey, and
apparently receiving his permission, Willamette hired Portland Stevedoring Com-
pany, a PMA member, to unload the test ship which was to dock at the facility
in question shortly.
Albert Hinz, Harvey's director of industrial relations, who was instructed by
Lawrence Harvey to attend the above-mentioned meeting as an observer and
to report to him what occurred, arrived at Willamette's office just after the meeting
had concluded. However, Anderson, Fantz, Mays, and Rossiter, among others,
were still in the meeting room and Hinz was introduced to them. Rossiter then
informed Hinz, in detail, in the presence of Anderson, Fantz, Mays, and the others,
what had occurred. Fantz and Anderson then said that they would demand, after
the two test ships had been unloaded, that a contract giving the longshoremen all
the work on the barge, on the dock, on the ship, and on the hopper unloading, be
entered into before the third ship would be unloaded.
On the afternoon of May 2, a meeting was held at the PMA offices which was
attended by a representative of PMA, Rossiter, Fantz, Anderson, Mays, Eagan,
and others, including a representative of the Supercargoes and Checkers Union and
a representative of the Portland Stevedoring Company. There, Rossiter stated
that he was in no position to make any commitment whatsoever on Harvey's behalf;
that Willamette was working on a ship-to-ship basis with the unions involved. Eagan
of Local 701 stated that his union had no intention of asserting jurisdiction over the
unloading facility job after the completion of the ship tests. Captain Bishop of
the stevedoring company discussed with those present the number of longshoremen
his company would require. After some discussion as to the probable length of the
test period, Mays said that his organization would assert, and demand, complete
jurisdiction over the unloading and loading jobs at the facility in question.
On May 3, the Lake Burnabay arrived at the unloading dock with 1,458 tons
of alumina ore 6 The stevedoring company's longshoremen, who were members
of Local 8 and/or Local 92, immediately began unloading the ore, and Willamette's
employees, who were members of Local 701, operated the equipment. The
unloading operation took approximately 5 days.
9 The vessel's capacity is 10,000 tons.
180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On May 16, another meeting was held at the offices of PMA which was attended
by, among others, a representative or two of PMA, Rossiter, two representatives
of the stevedoring company, Fantz, Anderson, Mays, and Hinz. Rossiter requested
that the unions involved grant Willamette permission to again use the same number
of longshoremen and the same number of engineers in unloading the Lake Atlin
which was scheduled to dock on May 18. Rossiter then stated that the following,
or third, boat would carry a full load of ore. Mays then stated that if there were
no contract entered into with the Longshoremen before the third ship arrived, the
ship would not be unloaded. Whereupon the representatives of the longshoremen's
unions requested that a bargaining or negotiating meeting be arranged well in
advance of the arrival of the third ship. Discussion was then had with respect to
the barge's two deckhands who were members of Inland Boatmen's Union. Mays
stated that they should be replaced by members of his union. Rossiter replied
that, because of the nature of the job, the work could not be done by longshoremen,
adding that he would abolish the jobs rather than bow to Mays' demand. Hinz
inquired whether the picketing that was going on at Harvey's plant at The Dalles
would interfere with Willamette's contract with Harvey. He was informed that the
longshoremen's industrial relations committee would give the matter immediate
consideration. Mays stated that General Ore and Chemical Company, herein
called GOC,7 would have to execute a contract with the longshoremen unions
because they claimed jurisdiction over all the jobs on the dock and if no contract
was executed no ship would be unloaded.
Under date of July 11, Anderson wrote Lawrence Harvey as follows:
At a Joint meeting, held in Portland on May 16, 1958 dealing with the sub-
ject of Aluminum Discharges at your new installation, Mr. Hinz of your com-
pany was present.
During the meeting it was jointly agreed that we would set up a meeting
well in advance of the arrival of the next vessel in order to agree on a manning
scale. Mr. Hoge of the Pacific Maritime Association arranged for such a
meeting for July 1st, which was cancelled as no one from your company would
be present.
We understand of course, that P.M.A. does not represent General Ore and
Chemical Co. They were only in a liaison position. Also, no particular
Stevedoring Co. is authorized to act on your behalf.
It is our understanding that the next vessel bringing aluminum will be here
the first part of August.
We very sincerely request a meeting with your representatives to discuss
this matter and come to an agreement. The suggested time for this meeting
would be Tuesday, July 22nd at 1:30 PM. at the P.M.A. offices at 307 Builders
Exchange Building, Portland, Oregon.
On July 25, Hinz met with Anderson, Fantz, and another person at the Longshore-
men's hall in Portland. There, Fantz told Hinz that the ship that was scheduled
to dock in Portland shortly would not be unloaded if a contract was not executed
with the Longshoremen unions giving them the exclusive right to the unloading of
the ship, including the land operation, the barge operation, and the ship operation.
Hinz asked for a copy of the wage scale and Fantz gave him a copy of the 1954
or 1955 wage scale stating that Hinz might be able to get a copy of the current
wage scale at the PMA office. Fantz also said that GOC could not hire longshore-
men direct but it would have to join PMA or hire a stevedoring company that was
a PMA member. Anderson suggested that Hinz meet with the Longshoremen's
industrial relations committee at the PMA offices on July 30, for the purpose of
negotiating a contract with the Longshoremen unions, adding that if no contract
was executed no ship would be unloaded. Anderson also said that he and Fantz
would be available if their presence was desired at the meeting.
On July 30, Hinz and one of Harvey's attorneys met at the PMA offices with
Mays and members of the Longshoremen's industrial relations committee. Mays, the
spokesman for his group, opened the meeting with the statement that the ship
scheduled to arrive soon would not be unloaded unless a contract was entered into
with the Longshoremen. Hinz stated he thought the Steelworkers Union had juris-
diction over unloading alumina ore. Mays replied that neither Steelworkers nor
I General Ore was incorporated on or about July 31 , and commenced business on or
about August 1. Prior thereto, the facility was operated for Harvey by GOC.
INT'L LONGSHOREMEN 'S & WAREHOUSEMEN 'S UNION 181
any other union, except Longshoremen's unions, would work on the docks because
that work belonged to longshoremen. When Hinz stated that he did not know
whether GOC's employees desired to be represented by Mays' union, Mays replied
that no ship would be unloaded by anyone other than by longshoremen.
Shortly after the above occurred, Anderson came into the meeting and immediately
conferred privately with the industrial relations committee, at the conclusion of
which Anderson stated that he would report to the membership of his union that
the parties could not get together. Anderson then advised Hinz to inform his
principals that no ship would be unloaded unless a contract was signed with the
longshoremen.
On August 4, Fantz telephoned Hinz, the latter being in The Dalles, and after
stating that the third ship was due to dock the next day, inquired whether Hinz
had anything to report, adding that the ship would not be unloaded unless long-
shoremen did it. When Hinz replied that he had no report to make, Fantz said
that if he had any report to make he should make it to Mays that afternoon. Hinz
did not communicate with Mays as suggested by Fantz.
By the time the third ship, Lake Penmask, arrived at the unloading facility on
August 5, General Ore had already hired about 34 persons to unload the ship.
Of that number about 14 or 15 came from General Engineering, Inc., the company
which operates the plant at The Dalles for Harvey, and the balance were either
persons who had applied for jobs with General Engineering and resided in the
vicinity of Portland, or were recommended for employment by General Ore employ-
ees. The unloading of Lake Penmask began on August 5.
On August 8,$ due to a temporary restraining order obtained by Local 8 in a
certain State court proceeding brought by said union against General Ore, the
unloading of the ship was halted. However, on August 11, the restraining order
was lifted and that night the unloading was resumed.
On August 12, pickets appeared at the short side of General Ore's facility carrying
signs bearing the legend: "General Ore unfair to Local 8, ILWU," at which time
General Ore had 38 or 39 employees unloading the ship, including the operation
of the equipment on the barge and the handling of the rail car hopper equipment .9
The actual time spent in unloading the ship was about 9 days. At the conclusion
of the unloading, the ship departed, at which time General Ore reduced its crew to
14 or 15 persons. About 20 of the released employees were put on a "recall" list
and about 6 or 7 of them were sent to Harvey's plant at The Dalles.
The Derby, the next ship to be unloaded, docked about September 20. Fourteen
employees worked for General Ore during the period from the departure of the
Lake Penmask and the docking of the Derby. These men, plus about 13 men recalled
from The Dalles' operations and about 15 other men, who had helped to unload
the Lake Penmask, were put to work unloading the Derby.
When the unloading of the Derby was completed, 15 men were retained, and 22
were placed on the recall list, and the balance returned to The Dalles operations.
The next ship, Nisshun Maru, docked on October 25 and the unloading of it was
completed on November 1. Thirty-eight men were used in unloading this ship, of
whom 13 were retained after the ship departed; approximately 12 were sent to
The Dalles operation, and the balance placed on the recall list.
The Nisshun Maru returned to the General Ore's facility on December 13, and
departed, after being unloaded, on December 19. This ship again arrived at the
facility on January 3, 1959, unloaded, and left on February 4, 1959.
In the interim the Nichizui Maru arrived at the facility on January 4, 1959,
unloaded, and left on January 10, 1959.
As the Lake Penmask was leaving the facility, after being unloaded, Local 8
had picket boats in the river, in the immediate vicinity of the facility; upon the
Derby's arrival and upon its departure, after being unloaded, Local 8 had picket
boats in the river in the immediate vicinity of the facility; and likewise Local 8 had
picket boats in the river in the immediate vicinity of the facility upon Nisshun
Maru's arrival.
Local 92 picketed the General Ore facility on only September 21 and 22. That
picketing was shoreside and the signs the pickets carried on those occasions read:
"General Ore unfair to Local 92 ILWU."
8 Erroneously stated in the stenographic transcript of the hearing as August 9.
"The average number of men used was 37.
182 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The shoreside picketing of Local 8 commenced on August 12, and the facility was
'still being picketed by said union at the time of the hearing.
During the course of the picketing the pickets distributed circulars to those ap-
proaching the picket line. The circulars , headed "Harvey Aluminum and General
Ore unfair to all organized labor " stated, among other things, that Harvey and
General Ore were on the "unfair list" of AFL-CIO, and that in violation of a
contract Harvey had replaced regular local longshoremen with outside nonunion
employees . The circulars then, in effect, called upon the public not to work for,
or assist , Harvey in any manner.
During the course of the shoreside picketing of Local 8 and of Local 92, em-
ployees of various other employers , including truckdrivers and boat employees
employed by Columbia River Paving Company, J. E. Hazeltine & Company, Shaver
Transportation Company, and Inland Navigation Company, arrived at the picketed
premises and refused to cross the picket line , and left the premises even though the
picketing was peaceful.
On two separate occasions the tugs refused to cross the picket line established by
Local 8 on shipside . One of said ships , after a short delay , was able to dock without
the aid of a tug and unload the ore. The other ship docked without the aid of a
tug after a 24-hour delay.
B. Concluding findings
Section 8(b) (4) (A ) of the Act makes it an unfair labor practice for a labor
organization or its agents "to engage in, or to induce or encourage the employees of
any employer to engage in, a strike or a concerted refusal 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: (A) forcing or requiring any employer or self-employed person
to join any labor or employer organization or any employer or other person to cease
using, selling , handling, transporting , or otherwise dealing in the products of any
other producer , processor , or manufacturer , or to cease doing business with any
other person."
The above-cited section cannot be successfully challenged on the ground that it
is vague and indefinite . The statute furnishes an adequate guide as to what conduct
is proscribed and it is as specific as the nature of the problem permits. In short, the
statute prohibits labor organizations and their agents from engaging in strikes or
inciting employees to engage in strikes or concerted refusal to perform services pro-
vided an object of such action is to force or require any employer to join an em-
ployer organization.
The credible testimony , as epitomized above, clearly establishes that at no time
material did the unions here involved represent the majority of the employees of
General Ore. In fact, the* record is devoid of any evidence that any of said em-
ployees desired to be represented by said labor organizations . Nonetheless, Re-
spondents sought to bring economic pressure directly upon the employees to force
them to join the union in order to protect their jobs . Such a finding becomes
inescapable when consideration is given to the fact that the picketing had the purpose
of (a) forcing or requiring General Ore to become a member of PMA which, in
turn, would require General Ore to be bound by the then -existing contract between
PMA and International and its affiliated California, Oregon , and Washington
unions,io or to replace its employees with members of Respondent by hiring a PMA
stevedoring firm, or (b) to force the employees to pay cash tributes to Respondents
in order to retain their jobs with General Ore if General Ore joined PMA and if the
employees did not join Respondent . Had General Ore bowed to Respondents'
demands it, in turn , would have violated the Act because it would have interfered
with, restrained , and coerced its employees in the exercise of their rights guaranteed
in Section 7 of the Act.
It thus follows that the picketing had an unlawful purpose and was thus violative
of the Act and not protected by the free speech guarantee of Section 8(c) or by the
Constitution of the United States.
The Supreme Court of the United States, within recent years , in cases involving
conduct similar to that in the instant proceeding , has condemned the unlawful use
of economic power by unions to compel employers to violate the law. For example,
10 Said agreement provides for a hiring hall maintained and operated jointly by PMA
and the International
INT'L LONGSHOREMEN'S & WAREHOUSEMEN'S UNION 183
in Giboney , et al. v . Empire Storage and Ice Company ( 336 U .S. 490 ),11 the Court
held that picketing is something more than free speech and upheld , as constitutional,
State injunctions of peaceful picketing which had been undertaken , as here, for
unlawful objectives.
In Giboney , the Court upheld a State injunction against peaceful picketing which,
as the Court had found , had as its purpose the forcing of a company to violate a
State statute . In so holding , the Court said ( at page 503 ) ". it is clear that
appellants were doing more than exercising a right of free speech or press .. .
They were exercising their economic power together with that of their allies to
compel Empire to abide by union rather than by State regulation of trade."
In the Gazzam case, the employer had been asked by the union to sign a contract.
None of the employees were members of the union . The employer answered that
it was a matter for his employees to decide and gave the union permission to visit
and solicit his employees . After meeting and polling the employees , the union was
still unsuccessful in getting a majority of adherents. The union then started to
picket the employer 's premises and the pickets carried signs "Unfair to organized
labor." A second contract was offered by the union which provided that present
employees not be required to join the union . This was refused by the employer for
similar reasons . The picketing was enjoined by the Washington State courts as a
violation of public policy against employer coercion of employees ' choice of a bar-
gaining representative as embodied in a State statute very similar in wording to
Sections 7 and 8 (a) (1) of the Act. The United States Supreme Court, relying on
Giboney, upheld the injunction , stating at p. 450:
Here, as in Giboney , the union was using its economic power with that of its
allies to compel respondent to abide by union policy rather than by the declared
policy of the State . That state policy guarantees workers free choice of rep-
resentatives for bargaining purposes If respondent had complied with peti-
tioners' demands and had signed one of the tendered contracts and lived up
to its terms, he would have thereby coerced his employees . The employees
would have had no free choice as to whether they wished to organize or what
union would be their representative . [ Emphasis supplied.]
The Court with reference to free speech said at p. 537:
But since picketing is more than speech and establishes a locus in quo that has
far more potential for inducing action or nonaction than the message the pickets
convey, this Court has not hesitated to uphold a State's restraint of acts and
conduct which are an abuse of the right to picket rather than a means of peace-
ful and truthful publicity.
In Voght, Inc. v. International Brotherhood of Teamsters etc., Local 695 (270
Wis. 321, 74 N.W. (2d) 749),12 the Court had before it a statute which forbade
unions to ( a) coerce or intimidate an employee in the enjoyment of his legal rights,
including the right to refrain from joining the union , or (b) to coerce, intimidate, or
induce an employer to interfere with any of his employees in the enjoyment of
their legal rights, including the right to refrain from joining the labor organization.
The union in the case picketed for organizational or recognition purposes, even
though the employees had previously indicated to the union that they did not desire
to join it. The Court held that the picketing was coercive and hence unlawful,
stating:
Picketing may be more than free speech . . . One would be credulous indeed
to believe under the circumstances that the Union had no thought of coercing
the employer to interfere with its employees in the right to join or refuse to
join defendant Union . We have not the slightest doubt that it was the hope
of the Union that the presence of pickets at plaintiff 's place of business would
interfere with its operations and deprive it of delivery services , thus bringing
pressure upon it to coerce its employees to join the Union.
11 See also Building Service Employees International Union v . Gazzam, 339 U S 532;
Hughes et al. v. Superior Court of California for Contra Costa County, 339 U.S. 460;
International Brotherhood of Teamsters , etc Union, Local 309 et al. v Hanke, et al,
339 U.S. 470; Local Union No. 10, United Association of Journeymen and Apprentices
Plumbers & Steam Fitters et al. v Graham et at., 345 U S. 192.
12 Affirmed sub nom. International Brotherhood of Teamsters , etc , Local 695 , AFL-CIO,
et al. v. Voght, Inc., 354 U.S. 284.
184 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In Pappas v. Stacey (151 Me. 36, 116 A. 2d 497, appeal dismissed by the Supreme
Court for lack of a substantial Federal question, 350 U.S. 870), the Court, con-
struing a Maine statute that guaranteed the right of employees to organize into
unions and bargain collectively "free from interference, restrain, or coercion by
their employers or other persons ," held that peaceful picketing for organizational
purposes was coercive. The Court said:
A coercive force is generated by the picketing to secure new members for
the union . It is apparent that this force is applied to the employer to urge
his employees to join the union to save his business , and to the employees to
join to save their livelihood.
In reaching for the employees , there is a steady and exacting pressure upon
the employer to interfere with the free choice of the employees in the matter
of organization. To say that the picketing is not designed to bring about such
action is to forget an obvious purpose of picketing-to cause economic loss
to the business during noncompliance by the employees with the requests of
the union.13
The contention of the International that it cannot be held liable for the conduct
and action of Fantz is without merit or substance. Commencing early in May
1958, and continuously thereafter, Fantz played a very important part in trying
to force General Ore, or GOC, or Harvey to join PMA or, in alternative, to secure
the Portland facility employees through the jointly operated hiring hall by retaining
a PMA stevedoring firm to do the work said employees were doing.
Upon the entire record in the case, the Trial Examiner finds that each of the
Respondents here violated Section 8(b) (4) (A) of the Act.14
W. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondents, set forth in section III, above, occurring in connec-
tion with the business operations of General Ore and of Harvey set forth in section I,
above, have a close, intimate, and substantial relation to trade, traffic, and com-
merce among the several States, and, such of them as have been found to be unfair
labor practices, tend to lead to labor disputes burdening and obstructing commerce
and the free flow of commerce.
V. THE REMEDY
Having found that Respondents have violated Section 8(b) (4) (A) of the Act,
it will be recommended that they be ordered to cease and desist therefrom and take
certain affirmative action designed to effectuate the policies of the Act.
Upon the basis of the foregoing findings of fact and upon the entire record in
the case, the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. General Ore, Inc., and Harvey Aluminum, Incorporated, are engaged in, and
during all times material were engaged in, commerce within the meaning of Section
2(6) and (7) of the Act.
2. International Longshoremen's and Warehousemen's Union, Local 8; Interna-
tional Longshoremen's and Warehousemen's Union, Local 92; and International
Longshoremen's and Warehousemen's Union are labor organizations within the
meaning of Section 2(5) of the Act.
3. By picketing the facility of General Ore, Inc., for the purpose of forcing or
requiring General Ore to join PMA or, in the alternative, to hire a PMA stevedoring
firm to do the work of its employees, Respondents have engaged in and are engaging
in unfair labor practices within the meaning of Section 8(b) (4) (A) of the Act.
4. The unfair labor practices found herein are unfair labor practices within the
meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
v Of course, under the Act coercion which derives from picketing is not proscribed
where it is employer] in the exercise of rights guaranteed in Section 7 , however, it is
proscribed where, as in the instant case, it is used in derogation or circumvention of the
employees' rights under said section.
14Jsmmy Ray Rush, et al (Casper Mfg Company, Inc ), 123 NLRB 216; Louisville
Cap Company, 123 NLRB 572.