Local 28, Int'l Organization of Masters, Etc.

National Labor Relations Board - Board Decisions

Apr 18, 1962

136 N.L.R.B. 1175 (N.L.R.B. 1962)

LOCAL 28, INT'L ORGANIZATION OF MASTERS, ETC. 1175
membership in labor organizations , and interfering with , restraining , and coercing
employees in their rights guaranteed by the Act, the Respondent has engaged in un-
fair labor practices affecting commerce within the meaning of Section 8 ( a)(3),
(5), and ( 1) and Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication.]
Local 28, International Organization of Masters , Mates and
Pilots, AFL-CIO; and its agents, E. A. Adams and Harry
Rutan and Ingram Barge Company
Local 28, International Organization of Masters , Mates and
Pilots , Inc., AFL-CIO; Associated Maritime Workers, Local
No. 3, International Organization of Masters , Mates and Pilots,
Inc., AFL-CIO; and Harry Rutan, their agent and The Texas
Company
Local 28, International Organization of Masters, Mates and
Pilots, Inc., AFL-CIO ; Associated Maritime Workers, Local
No. 3, International Organization of Masters , Mates and Pilots,
Inc., AFL-CIO; and Harry Rutan , their agent and Ingram
Barge Company
Local 28, International Organization of Masters , Mates and
Pilots, Inc., AFL-CIO; Associated Maritime Workers, Local
No. 3, International Organization of Masters , Mates and Pilots,
Inc., AFL-CIO; and Harry Rutan , their agent and Ingram
Barge Company. Cases A708-14-CC-125,14-CO-126,14-CC-127,
13-CC-182, 13-CC-184, and 13-013-679. A peril 18, 1962
DECISION AND ORDER
On December 30, 1960, Trial Examiner Thomas N. Kessel issued
his Intermediate Report in the above-entitled proceeding, finding that
the Respondents had 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
Report attached hereto. The Trial Examiner also found that the
Respondents had not engaged in certain other unfair labor practices
as alleged in the complaints and recommended that these allegations
of the complaints be dismissed. Thereafter, the Respondents, the
Charging Party, and the General Counsel filed exceptions to the
Intermediate Report and supporting briefs.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Leedom and Brown].
The Board has considered the Intermediate Report, the exceptions
and briefs, and the entire record. The Board hereby affirms the Trial
136 NLRB No. 112.
1176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Examiner's rulings made at the hearing and adopts his findings and
conclusions.
ORDER
The Board adopts the Recommended Order of the Trial Examiner
as its Order with the following changes:
1. The initial paragraph of the Recommended Order shall be modi-
fied to read : "Associated Maritime Workers, Local 3, International
Organization of Master, Mates and Pilots, Inc., AFL-CIO, its officers,
representatives, and agents, including Local 28, International Organi-
zation of Masters, Mates and Pilots, Inc., AFL-CIO,' and Harry
Rutan, and its successors and assigns, shall :".
2. Paragraph 2(c) of the Recommended Order shall be modified
to read "Notify said Regional Director, in writing, within 10 days
from the date of this Order, what steps the Respondents have taken
to comply herewith."
3. The notice shall be modified so that the words "a Decision and
Order" shall be substituted for the words "the recommendations of a
Trial Examiner." 2
4. The notice shall be further modified so that the signature on said
notice shall read: "Associated Maritime Workers Local 3, Interna-
tional Organization of Masters, Mates and Pilots, Inc., AFL-CIO,
and its Agents, Local 28, International Organization of Masters,
Mates and Pilots, Inc., AFL-CIO, and Harry Rutan."
5. The following is to be inserted in the notice below the paragraph
beginning : "This notice must remain posted ..." :
"Employees may communicate directly with the Board's Regional
Office, 176 West Adams Street, Chicago 3, Illinois, Telephone Number,
Central 6-9660, if they have any question concerning this notice or
compliance with its provisions."
'In view of our finding that Local 28, International Organization of Masters, Mates
and Pilots , AFL-CIO, is liable for the unfair labor practices found herein only in its
capacity as agent of Associated Maritime Workers , Local 3 , International Organization
of Masters, Mates and Pilots, Inc, AFL-CIO, we modify the Trial Examiner's Recom-
mended Order by making its provisions apply to Local 28 only in its capacity as agent of
Local 3 See Chicago Calumet Stevedoring Co , Inc., 125 NLRB 113, 114.
In 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 "
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon the filing of charges by the Charging Parties named in the above -captioned
cases, complaints were issued by the Regional Directors for the Thirteenth and Four-
teenth Regions of the National Labor Relations Board in behalf of the General
Counsel of the Board. Thereafter the General Counsel issued his order, dated
January 21 , 1959, consolidating these complaints for hearing. A hearing was held
before the duly designated Trial Examiner in several cities on various dates between
February 24 and October 26 , 1959. Briefs were received on June 21, 1960.
Upon the entire record in this case and from my observation of the witnesses, I
make the following:
LOCAL 28, INT'L ORGANIZATION OF MASTERS, ETC. 1177
FINDINGS OF FACT
I. COMMERCE FACTS
The following commerce facts are alleged by the complaint and admitted by the
Respondents' answer:
The Texas Company, herein called Texas, is a Delaware corporation engaged in
the production, refining, and distribution of petroleum products throughout the
United States and foreign countries. In the year preceding issuance of the complaint
Texas sold petroleum products valued in excess of $100,000,000 of which at least
$1,000,000 worth was shipped from its refinery at Lockport, Illinois, to points outside
the State of Illinois.
Ingram Barge Company, herein called Ingram, is a business enterprise which
engages in the waterborne transportation of goods along the inland waterways of
the United States, and in the course of its operations transports such goods between
several States. During the year preceding issuance of the complaint Ingram derived
revenue from these operations in excess of $500,000.
Commercial Barge Line is also a business enterprise which engages in the water-
borne transportation of goods on the Mississippi River, and in the course thereof
transports these goods between States. Its revenues from such operations in the year
before issuance of the complaint exceeded $100,000.
Globe Fuel Products, Inc., is a business enterprise which stores, sells, and distributes
petroleum products in the Chicago, Illinois, area. In the year preceding issuance
of the complaint it purchased petroleum products valued in excess of $1,000,000
which were shipped to its Chicago premises from points outside the State of Illinois.
From the foregoing I find that all the business enterprises whose operations have
been described are engaged in interstate commerce and that the Board's assertion of
its jurisdiction over their operations will effectuate the purposes of the Act.
II. THE ALLEGED LABOR ORGANIZATIONS INVOLVED
Associated Maritime Workers, Local No. 3, International Organization of Masters,
Mates, and Pilots, Inc., AFL-CIO, herein called Local 3, is concededly a labor
organization admitting to membership employees of Ingram and other employers.
Local 28, International Organization of Masters, Mates and Pilots, Inc., AFL-CIO,
herein called Local 28, is alleged by the complaint to be a labor organization within
the meaning of Sections 2(5) and (8) (b) of the Act. The Respondents deny this
allegation. These opposing views are resolved infra.
III. THE UNFAIR LABOR PRACTICES
General Contentions
All the alleged unlawful conduct ascribed to the Respondents stems from a dispute
concerning wages and other employment terms by Ingram with Locals 3 and 28.
In the course of this dispute Local 3 resorted to a strike which began on July 5,
1958, and officially terminated on August 7, 1958. The General Counsel contends
that during this strike and thereafter until August 13, 1960, Local 3 and Local 28
and their agent, Harry Rutan, committed various acts of violence to person and
property in violation of Section 8 (b) (1) (A) of the Act, and also engaged in sec-
ondary boycott action in violation of Section 8(b) (4) (A) of the Act. This conduct
is encompassed by the allegations of that portion of the consolidated complaint
referred to herein as the Thirteenth Region complaint and designated by Cases Nos.
13-CC-l82, 13-CC-184, and 13-CB-679. That part of the consolidated complaint
referred to as the Fourteenth Region complaint and designated by Cases Nos.
14-CC-125, 14-CC-126, and 14-CC-127 alleges that as an outgrowth of the July
5, 1960, strike against Ingram, Local 28 and its agents, E. A. Adams and Harry
Rutan, engaged during November 1960 in various acts of secondary boycott in viola-
tion of Section 8(b) (4) (A) of the Act.
The Respondents deny generally all the complaint allegations against them. More-
over, the Respondents defend as to Local 28 on the ground that it is not a labor
organization within the Act's meaning and consequently that no finding that it had
violated the Section 8(b) provisions of the Act is permissible. The General Counsel
maintains throughout that Local 28 is a labor organization. The General Counsel
further asserts that whether Local 28 is a labor organization is immaterial to a
finding that it was a statutory violator with respect to the conduct alleged in the
Thirteenth Region complaint for, as to such conduct, the General Counsel maintains
that Local 28 by joint or concerted action with Local 3, which concededly is a labor
organization, became statutory liable as Local 3's agent. The General Counsel con-
ceded that the Fourteenth Region complaint must fall if it is not established that
1178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Local 28 is a labor organization . The Respondents deny that Local 28 ever engaged
in any joint or concerted action with Local 3 for which it should be held responsible
as an agent.
The Economic Dispute Between Ingram and Locals 3 and 28
In the operation of its waterborne transportation business Ingram maintains a
fleet of towboats and barges. Generally, these boats are manned by crews consist-
ing of a master, pilot, mates, tankermen, deckhands, cooks, and engineroom person-
nel. Local 3 has had contractual relations with Ingram as the exclusive representative
of all its tankermen, deckhands, cooks, and cook helpers. The last signed contract
between Ingram and Local 3 ran from May 1, 1957, to May 1, 1958. Local 28
represented Ingram's masters, pilots, and mates. Its last signed contract with Ingram
was for the term of 1 year from March 16, 1956. Engineroom personnel on Ingram's
boats have been represented by Marine Engineers Beneficial Association (MEBA).
Just before the March 16, 1957, expiration of the Local 28 contract with Ingram,
the parties met to negotiate a new contract. Among the various changes then agreed
upon was a provision to grant the covered masters, mates, and pilots 1 day off with
pay for each day worked. The expiring contract granted three-quarters of a day off
for each day worked. The new provision was to be applied 6 months after the new
contract became effective. Although the agreements negotiated by Local 28 and
Ingram were never signed by the parties, Ingram instituted the wage and other
changes which had been negotiated, including the day off for each day worked
provision which became effective on September 16, 1957. The Local 3 contract with
Ingram effective from May 1, 1957, to May 1, 1958, also provided that beginning
November 1, 1957, the covered employees should receive I day off with pay for
each day worked.
Negotiations by Local 3 with Ingram looking toward a new contract started in
April 1958. In May 1958 Ingram proposed to Local 3 various changes in the
expiring contract including a reduction in the day off with pay to three-quarters of
a day off with pay for each day worked. This was in lieu of a cut in the wage
scale. At the same time Ingram forwarded an identical proposal to Local 28 and to
MEBA, proposing further that representatives of Locals 3 and 28 and MEBA meet
with Ingram concerning this matter. Ingram's efforts to secure acceptance by these
parties of the three-quarter day proposal were unavailing. On June 26, 1958, Ingram
notified its boat personnel of its decision to make the three-quarter day cutback,
and on July 1, 1958, made this cutback effective.
The Strike Against Ingram
In June 1958, before Ingram instituted the three-quarter day cutback, Local 3
pulled its Ingram members who voted to strike rather than to accept the proposed
cutback. On July 5, following ingram's July 1 action, Local 3 called a strike against
Ingram and notified its members employed by Ingram of this action. Its members
who were at the time aboard Ingram boats en route on the rivers received radio
messages and either on their own initiative or at the behest of Ingram officials
who had learned of the strike got off the boats. In these circumstances the masters
of three boats, the Arthur J. Dyer, the Hortense B. Ingram, and the Nelson Board-
foot, tied up at the nearest convenient locations on the rivers where they were then
situated. The masters, mates, pilots, and engineer personnel aboard these boats
were advised by Ingram to remain aboard and did so as security crews. Meanwhile
Ingram secured replacements for the striking Local 3 members and brought them
to the tied-up boats. Upon refusal by the masters, mates, pilots, and engineers to op-
erate the boats with "scab" replacements for the strikers, Ingram secured replace-
ments for them also and proceeded to operate its boats with entirely new crews
composed of persons without Local 3 or Local 28 affiliations.
From the start of the strike until its termination Local 3 established picket lines
at various locations and engaged in various strike actions which are hereinafter
described.
Local 3 maintained its strike against Ingram until August 7, 1958, when by letter
of that date it notified Ingram that the strike had been terminated and the pickets
established during the strike had been withdrawn. In the same letter request was
made for reinstatement of strikers who had not been permanently replaced with
further request for employment of the remaining strikers on a seniority basis as
job openings occur. By letter to its striking members dated August 8, 1958, Local 3
reported the substance of the August 7, 1958, letter to Ingram ending the strike.
Upon learning of the termination by Local 3 of its strike, Local 28 requested
Ingram to notify it of the time and place where it desired its members, the masters,
LOCAL 28, INT'L ORGANIZATION OF MASTERS, ETC. 1179
mates, and pilots, to return to work. Ingram responded by telegram dated August
8 that it regarded the Local 28 communication as a termination of its strike and
an unconditional offer to return to work. It added, however, that it would place on
a preferential hiring list only those masters, mates, and pilots who had been replaced
except those who had misconducted themselves during the strike.
Local 28 treated Ingram 's August 8 telegram as a lockout of its members and
decided to take economic action to force Ingram to restore them to employment.
On various dates and places thereafter Local 28 by picketing and other acts brought
pressure against Ingram to secure that object . This conduct will be referred to
hereinafter.
Incidents Occurring Between the Start of the Local 3 Strike on July 5 and
Its Termination on August 7, 1958
a. The assault on the "Arthur J. Dyer"
Following receipt of a radio message announcing the Local 3 strike, the master
of the Arthur J. Dyer tied up his boat on July 6, 1958, on the bank of the Ohio
River near Henderson, Kentucky, where the striking Local 3 crew members got off.
The officers (the term "officers" is here used as a convenient collective reference
to the master, pilot, mate, and engineers) remained on board to maintain security.
While the Dyer was tied up from July 6 to 10 a group picketed on shore. Identified
among these picketers were Ingram employees Horace A. Spees, Larry Griffin, and
Dexter Howell. Spees and Griffin were respectively employed as cook's helper and
deckhand and were members of Local 3. Howell was a mate and a member of
Local 28. Signs displayed by the pickets declared that Local 3 was striking Ingram.
On July 10 Ingram's port captain, Rubin N. Cioll, arrived with replacements for
the entire crew. As the replacements boarded the boat the officers who had remained
on board for security debarked and headed for shore. Thereupon the Dyer was
barraged by marbles fired from slingshots by some of the pickets who shouted to
the replacements "get off there you scabby bastard." To avoid injury to the crew
from the marble missiles Cioll ordered that the Dyer be backed from shore without
first untying the mooring roopes and in the process caused them to be broken. The
Dyer and its four-barge tow then moved downstream. R. C. Dean, a replacement
deckhand on the Dyer, credibly testified that after the boat pulled away, he noticed
two men on the barge who were not part of the crew. Dean had just stepped from
the boat to one of the barges when he noticed these men running toward him from
the opposite end of the barge, each with a stick in his hand. They pursued him with
their sticks, cursing and calling out "you scab on me you son-of-a-bitch." Dean
ran to the engineroom for safety. Joseph F. Cobb, the master of the replacement
crew, credibly testified that after the Dyer had sailed about 2 miles two men got
out from a motorboat and boarded the barges. One of them, with a 3-foot-long
piece of driftwood in hand, approached the pilothouse where Cobb was on duty.
As he mounted the steps leading to the pilothouse Cobb urged him to leave before
there was more trouble. The invader called Cobb a "non-union son-of-a-bitch,"
whereupon Cobb ordered him off the boat. Instead he started into the pilothouse but
was beaten off by Cobb who used the metal steering lever as a weapon. Although
testimony by Cobb and Cioll indicates that the former's assailant was the afore-
mentioned Dexter Howell, their testimony does not suffice to establish such fact
because Cioll's knowledge as to Howell's identity is based upon hearsay information
derived by him from certain unnamed persons, and Cobb admittedly could not from
his own knowledge identify Howell. I am, however, satisfied, from the testimony
of Respondent's witnesses Mummel and McReynolds, whose ability to identify Howell
is not challenged, that Howell and another person, Joe Wheeler, were the two invaders
of the barges.
During time relevant to these proceedings Harry Rutan was officially the secretary-
treasurer and business agent of Local 3. He was also employed during these times
as assistant to E. A. Adams, the secretary and business agent of Local 28. There
is no direct evidence to prove Rutan's presence when the Dyer was assailed by
marbles and when Dexter Howell and his companion boarded the Dyer and its
barges. Alex Mummel, the cook on the Dyer, who had remained on board with the
officers for security and who got off with them on July 10, testified that during the
marble-shooting incident Rutan was not present. Mate George E. McReynolds testi-
fied that as he left the Dyer on July 10, Rutan was not in sight. Cook's helper
Horace A. Spees, who admittedly was one of the sling-shooting pickets, also testified
that Rutan was not present when the Dyer departed on July 10. These witnesses,
1180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
however, acknowledged that Rutan had been present at the scene of the picketing
before July 10, and that he was at a hotel in Henderson, Kentucky, that night. It
should be noted from Spees' testimony concerning the dispersal of the pickets during
the marble-shooting episode that some were in the open where they could have been
seen by him, and others were in the heavy brush nearby where they could not be
seen . His failure and that of others to see Rutan at the time, assuming the truth of
their testimony, therefore does not necessarily mean that Rutan was not present.
Conceivably he was present but obscured by brush. This, however, may only be
surmised. Charles R. Hutchinson, an Ingram master on the vessel E. B. Ingram
which had been idled on July 6 by the strike at Paducah, Kentucky, testified that
while he had remained on the E. B. Ingram as part of the security crew until re-
lieved, Rutan, whom he had not previously known, was pointed out and named by
the crew members while he circled the E. B. Ingram in a motorboat and while he
was with the pickets on shore. After he had been relieved Hutchinson went to his
home and from there, on an unspecified day in July, traveled by automobile with
two other Ingram masters to "see the boys on the Dyer." There he saw the person
who had been pointed out to him as Rutan distribute slingshots and marbles to the
pickets including Dexter Howell. I do not rely on Hutchinson's testimony as proof
that the person who had been pointed out to him as Rutan by unnamed informants
was in fact Rutan. Without other foundation to establish Hutchinson's ability to
identify Rutan, I reject his identification of Rutan as the distributor of the slingshots
and marbles as based entirely on incompetent hearsay.
b. The stoning of the "E. B. Ingram"
On about July 16, 1958, the vessel E. B. Ingram was proceeding on the Chicgao
Sanitary Canal with its three-barge tow toward Chicago. During the early part of
the afternoon it came to a location referred to as the Romeo Bridge. According to
the credited testimony of George D. Hutcherson, the Ingram personnel manager
and purchasing agent who had been on board, as the E. B. Ingram came near the
bridge a group of men on each bank barraged the vessel with rocks, some as large
as grapefruit. One rock smashed the window of the pilothouse Others knocked
paint from the vessel. Hutcherson, who knew Rutan from a previous meeting with
him, identified him as one of the rock throwers. When the E B. Ingram later ar-
rived at Lemont, Illinois, arrangements were made to transfer the barges to another
shipping company. Hutcherson conferred with Rutan and the owner of this other
company who stated to Rutan that he was in trouble because of the rock throwing.
Rutan did not comment. The master of the E. B. Ingram at the time of the Romeo
Bridge incident was Perry H. Scott who had observed a person jump from behind
the bushes on shore during the stoning of the vessel This man was later identified
for him as Rutan by Hutcherson at the injunction proceeding preliminary to this
hearing at the Federal district court in Chicago where Rutan was present.
c. The "Hortense B. Ingram" episode
Upon learning of the Local 3 strike, the master of the Hortense B. Ingram on
July 6 tied up the vessel at Clarksville, Missouri, on the Mississippi River. The
vessel was moored there until July 21, 1958, with only a security crew of officers
on board including the master, James W. Coats, First Mate Wayne Johnson. the
second mate, and the two engineers. On July 21 Cioll arrived with a full replace-
ment crew and the security officers thereupon debarked As the replacement crew
was being transported to the Hortense B. Ingram in another boat, the afore-
mentioned Wayne Johnson and three other persons, of whom one was the George
E. McReynolds previously mentioned in connection with the incidents involving the
vessel Arthur J. Dyer, approached in a fast-moving motor launch. The launch
was maneuvered about the boat carrying the replacement crew and at one point
sped dangerously between the boat and the Hortense B. Ingram. When the replace-
ment crew finally boarded the Hortense B. Ingram, Johnson exclaimed, "You son-of-
a-bitches won't live to take that boat down the river, and if you do, we'll have a
picket line at Lockport ( Illinois ) waiting for you." The foregoing account is based
on the credited testimony of Cioll and Cobb.
d. The stoning of the barges and picketing at Lockport
At 5 a.m., July 20, 1958, Capt. Perry Scott brought the E. B. Ingram and its tow
of three empty barges to the Texas dock on the Chicago Sanitary Canal at Lockport,
Illinois. These barges were to be loaded from the dock with Texas petroleum prod-
ucts for transportation by Ingram to another destination . After the barges were
LOCAL 28, INT'L ORGANIZATION OF MASTERS, ETC. 1181
docked and tied up the E. B. Ingram with its entire crew on board moved upstream
about 300 feet from the barges and was tied up there. On July 24, 1958, the
E. B. Ingram, still with its entire crew on board, was moved to the other side of the
canal about 300 to 400 feet downstream from the Texas dock. At this point the
canal is about 300 feet wide.' Except for one or more occasions when the
E. B. Ingram recrossed the canal briefly to put out some lights on the Texas dock
and to renew the batteries for these lights, the vessel remained tied to the wall of
the canal opposite the Texas dock. It remained there until August 7 or 8 when
the barges were loaded and removed. As noted previously the Local 3 strike
officially ended on August 7, 1958.
Kenneth E. Cochran, Ingram's traffic manager, credibly testified that he was at
the Texas dock from the early morning of July 20 to July 30, 1958, and that he saw
Rutan at the Texas dock on practically each day of this period. In the morning of
July 20, Cochran directed two deckhands from the crew of the E. B. Ingram to go
on the barges and to hook up certain hoses for pumping operations. Rutan and
three persons who were with him thereupon threw stones at the deckhands. Cochran
and the aforementioned Ingram personnel manager, George D. Hutcherson, there-
upon sent the deckhands back to the E. B. Ingram and themselves hooked up the
hoses to pump off ballast from the barges. Rutan and his three companions con-
tinued to throw stones. Most of the stones were thrown over the barges. None
hit any person on the barges. Some landed on the barges.
Starting on July 20, and continuing to August 6, 1958, a picket line was main-
tained each day as close to the Ingram barges at the Texas dock as they were per-
mitted to be. Rutan was with the pickets at various times during the picketing and
was in charge of their activities. The number of pickets present at various times
fluctuated from 2 to 10. Picket signs displayed by the pickets declared that Local 3
was on strike against Ingram. The signs had been obtained by Local 3 from Local 28
and had originally been printed for use by Local 28 which had kept them in reserve
for use in some future possible strike. The "Local 28" designation printed on these
signs had been lined out or otherwise obliterated, and the designation "Local 3" had
been printed or written in its stead. This was true as to all but one sign which was
observed by Attorney George A. Bender who had been sent by Texas for whom he
worked to the Lockport premises to deal with the problem presented by the strike.
On his arrival at the dock on July 21, he noted that "Local 3" had not been sub-
stituted for "Local 28" on one sign. He asked the picket carrying this sign why
his was different from the others. This picket failed to explain but another who
was nearby volunteered that the failure to substitute "Local 3" for "Local 28" on
the sign was a mistake. Thereafter all the picket signs observed by Bender desig-
nated Local 3 as the striking organization.
On July 21, three Texas employees, Ray F. Jackson, Leslie Gilbert, and Edward
H. Rodegheghro, were ordered by their superiors to load the Ingram barges with
petroleum. This operation necessitated hooking hoses from the dock to valves on
the barges and during the pumping operations to go aboard the barges to check
gauges and to open and shut valves. Jackson and Gilbert told their foreman, Ed
Rowley, from whom they received their orders, that they would not hook the hoses
to the barges because they feared bodily harm. Jackson expressed fear that a rock
might be thrown against a barge which could spark an explosion of the volatile gas
fumes which it contained. He even feared that someone would shoot at him from
the other side of the canal. Before the arrival of the barges on July 21, the city
police had come to the dock and had inquired whether he had heard anything about11rock throwing." This inquiry by the police "in a way" had something to do with
his fear about working on the barges. Gilbert had heard one picket say to another
that "somebody might get hurt during the day while they were there." The remark
was not made to him. He declared fear for his safety while the pickets were pres-
ent. Rodegheghro also told his foreman he was afraid to load the barges. His fear
was induced by the presence of five or six sign-carrying pickets on the dock. He
feared that in the dispute between Local 3 and Ingram some act of violence by
either side, such as the throwing of a rock or rifle fire, would cause an explosion on
the barges which would injure him. Neither Jackson nor Rodegheghro ascribed
any acts or words to the pickets directed to them.
' Frederick D Davis, the superintendent of the Texas refinery at Lockport, testified
that there was a bridge in the vicinity crossing the canal, and a road from the bridge
over which he had seen automobiles travel to the "general vicinity" where the E B Ingram
was moored Texas owned no property on the side of the canal opposite its docks. Fore-
man David Blish also testified that there is a road leading to the point where the
E. B. Ingram was tied up He did not know whether this was a public road.
1182 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
David Blish, the Texas foreman in charge of its Lockport receiving, docking, and
storage facilities, testified that he had assigned the aforementioned Texas employees
to the Ingram barge-loading operations on July 21. He related that in loading
Ingram barges with petroleum, as distinguished from barges of other shippers, all
the loading operations were not customarily performed by Texas employees. These
operations required the performance of functions both on the dock and on the
barges. As to functions on the barges, Ingram ordinarily supplied persons classified
as tankermen for their performance. Texas personnel, including tankermen, con-
nected the hoses from the dock to the barges and then signaled the Texas pumping
station to start the machines which pumped the petroleum into the barges. As the
petroleum flowed into the barges, Ingram tankermen on board performed the neces-
sary function of adjusting valves regulating the amount of petroleum entering the
several compartments to keep the barge level in the water as it was loaded. During
loading the Texas tankermen boarded the Ingram barges hourly to make brief
observations. Blish had been informed by the Texas Industrial Relations Depart-
ment in advance of the arrival of the Ingram barges that no Ingram tankermen
would be aboard them for loading operations. This was the first time he had ever
received loading instructions from this department, and he was not told why the
Ingram tankermen would not arrive with the barges. The duties assigned to the
Texas employees which they refused to perform on July 21 included the performance
of the operations customarily carried out by the Ingram tankermen
Relevant to the identity of the principal for whom Rutan during the Lockport
picketing was acting as agent the General Counsel adduced the following evidence-
During the afternoon of July 21, Attorney Bender advised Rutan that Texas had
decided upon a course of action which might affect continuation of the picketing at
the dock. Accordingly, Benter asked him whether he could decide whether the
picketing should stop. Rutan replied he had no power to call off the picketing, and
told Bender he must for this purpose contact Adams, the aforementioned secretary
and business agent of Local 28. Bender asked Rutan to identify Adams and Rutan
showed him a card bearing Adams' name. Rutan informed Bender that Adams' office
was in St. Louis, but that he could not then be reached there as he was in Washington
or elsewhere on the east coast
Robert L. Stoneham, the Texas superintendent of industrial relations at its Mount
Vernon, Indiana, and Lawrenceville, Illinois, terminals, testified that in July 1958
he had met Rutan at the Mount Vernon premises. Testimony by E F. Boyle, the
Mount Vernon superintendent, established that the date of Stoneham's meeting with
Rutan was July 12, 1958 Stoneham recalled that Rutan had presented his business
card on which he is described as "Asst. Sec'y-Business Agent" of Local 28 as well
as "Sec'y-Business Agent" of Local 3. Rutan spoke to him of the troubles both
Locals were having with Ingram and stated he represented both organizations.
e. The attack upon Capt. Perry H. Scott
As related, Captain Scott was master of the E. B. Ingram when the vessel and its
barges were berthed at or near the Texas dock at Lockport from July 20 to August 7,
1958. On July 24 Scott took a deckhand from the vessel to the bus station in the
town of Lockport. As he was backing his automobile out of a service station another
automobile pulled up with passengers whom he recognized as persons who in the
preceding 4 days had picketed at the Texas dock. One of these persons was Charles
W Bonds, an Ingram deckhand who was a member of Local 3. These persons,
including Bonds, cursed him and called him "scab son-of-a-bitch." When Scott
returned to the dock the road entering the Texas premises was blocked by an auto-
mobile driven by a woman whom he had several times before seen at the dock with
Rutan and once carrying a picket sign in a speedboat which went up and down the
canal at the time when the E. B. Ingram was attacked at the Romeo Bridge. As this
woman's automobile stopped Scott's forward progress his automobile was blocked
from the rear by the automobile from which he had been cursed in Lockport. Four
or five persons were in this automobile. One big-sized person in this group, who did
most of the talking, conferred with the woman. Then he told Scott to discharge the
men on the E. B. Ingram and that he himself should quit. Next Bonds told Scott
to quit and warned that the "river was narrow going out and anything might happen
to him." The big man and Bonds threatened to "beat the hell" out of Scott if he
did not quit. The big one challenged Scott to a 3-minute fight and declared his
assurance he would not need longer to accomplish his purpose. Bonds offered to
substitute for the challenger because he was more nearly Scott's size, adding a
plea for permission to "beat the hell" out of him. After more discussion and threats
to Scott if he did not quit, his assailants finally decided to throw him into the canal.
They methodically permitted him to remove his hat, coat, watch, and billfold and to
LOCAL 28, INT'L ORGANIZATION OF MASTERS, ETC. 1183
place them into his automobile. Then, despite Scott's protests that he could not
swim, they dragged him to the edge of the canal and threw him into its filth (Chicago
sewage). Scott swam to a so-called "butterfly dam" where 30 minutes later he was
rescued by the E. B. Ingram.
After Scott boarded the E. B. Ingram, he pointed out to Personnel Manager Hutch-
erson who was on board with him certain persons on the dock. Among those who
were identified by Hutcherson were the aforementioned Bonds, Wayne Johnson,
Robert Honeycutt, and George McReynolds. Neither Scott's nor Hutcherson's
testimony indicates that any of these persons, except Bonds, though observed with
the pickets after the attack upon Scott, had participated in that action. I credit testi-
mony by McReynolds that he arrived at the dock with Johnson and Honeycutt after
Scott had been thrown into the canal. Testimony by Selby A. Murray, one of the
Local 3 pickets, supports McReynolds' testimony.
Other Acts Alleged as Unlawful in the Thirteenth Region Complaint Committed
After Termination by Local 3 on August 7, 1958, of Its Strike Against Ingram
As explained above, the General Counsel argues that whether Local 28 is a labor
organization is immaterial to a finding that it violated the Act by engaging in all
the conduct alleged in the Thirteenth Region complaint. This argument is premised
on the assertion that Local 28 acted in concert with Local 3 and would therefore
be statutorily liable for all unlawful conduct committed by Local 3 as its agent. It
has been noted that Local 3 terminated its strike against Ingram on August 7, 1958,
by notification to Ingram and by the withdrawal of its pickets. The record fails to
show that despite these actions Local 3 continued its strike against Ingram after
August 7. There is, consequently, no support for a finding that Local 28 thereafter
acted in concert with Local 3 in a common dispute with Ingram. A finding that Local
28 violated the Act by engaging in the post-August 7 conduct alleged in the Thir-
teenth Region complaint must depend, as it does with respect to all allegations against
Local 28 in the Fourteenth Region complaint, upon preliminary findings and a con-
clusion of law that it is a labor organization within the meaning of the Act and sub-
ject to the sanctions of the Act for its conduct as a labor organization. For this
reason I have separated the post-August 7 conduct alleged in the Thirteenth Region
complaint from the conduct, already described, alleged by this same complaint to
have been committed before then. Because of my findings and conclusions, detailed
below, that Local 28 is not a labor organization within the meaning of the Act, it
is unnecessary to burden this report with an elaborate recital of the post-August 7
conduct alleged in the Thirteenth Region complaint. In brief, these allegations in-
volve picketing of the Texas dock at its Mount Vernon, Indiana, terminal and the
Texas dock at Lockport, Illinois, and other acts of inducement of employees on
August 13, 1958, allegedly in violation of Section 8(b) (4) (A) of the Act, and acts
of violence incident to the Lockport picketing allegedly violative of Section
8(b)(1)(A) of the Act.
Unlawful Conduct Ascribed to Local 28 by the Fourteenth Region Complaint
The allegations of this complaint involve activities by Local 28 to compel Ingram
to restore to employment those masters, mates, and pilots who Local 28 claimed were
"locked out" by Ingram's refusal to permit their return to work following the termina-
tion of the Local 3 strike. The premises of other employers where Ingram vessels
and barges arrived in the course of Ingram's business operations with these employ-
ers were picketed by Local 28 on three separate occasions. These activities occurred
on November 4 and 5, and again between November 10 and 14, 1958, at Globe
Fuel Products, Inc., in Chicago, on November 19, and 20, 1958, at the Texas terminal
in St. Paul, Minnesota, and on November 18, 1958, at the Commercial Barge Line
dock in St. Louis, Missouri. Because of the findings and conclusions hereinafter
stated that Local 28 is not a labor organization within the meaning of the Act, I
find it unnecessary in this report to detail the aforementioned conduct by Local 28
alleged by the General Counsel to have violated Section 8(b)(4)(A) of the Act.
Findings Concerning the Thirteenth Region Complaint
a. Section 8(b) (1) (A) violations by Local 3
I have found that on July 16, 1958, Rutan and other unidentified persons under
his direction hurled rocks at the E. B. Ingram as it neared the Romeo Bridge on
the Chicago Sanitary Canal and that some of these rocks found their mark with
resultant damage to their target . I have also found that on July 20, 1958, Local 3
1184 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Business Agent Rutan personally participated with pickets in the stoning of Ingram
barges and employees as well as Ingram 's officials at the Texas dock at Lockport,
Illinois. Such conduct was reasonably calculated to restrain and coerce Ingram
employees in the exercise of their right not to join the strike by Local 3 against
Ingram. These proven acts of violence are by themselves sufficient to charge Rutan
and Local 3 on whose behalf he committed this conduct with statutory responsibility
as violators of Section 8(b)(1)(A) of the Act and to support the order I shall rec-
ommend to require them to cease and desist from engaging in these or similar acts
of employee restraint and coercion.
The record does not permit a finding that Rutan or any other official or agent in
charge of picketing was present during the marble-shooting attack on the Arthur I.
Dyer, or the boarding of this vessel and its barges by Dexter Howell and Joe
Wheeler. The same is true concerning the maneuvering by Wayne Johnson of his
speed launch to impede the boarding of the Hortense B. Ingram by the replacement
crew, and the threat of violence by Johnson to the crew after it had boarded the
vessel. Nor does the record reveal the presence of Rutan or any other agent in
charge of picketing at the Texas dock in Lockport, Illinois, when Capt. Perry Scott
was violently thrown into the Chicago Sanitary Canal. The Respondents argue
that none of these acts may be charged to Local 3 absent a showing that they were
committed in the presence of an agent who was himself a participant therein or
who authorized or ratified them. The General Counsel on the other hand main-
tains that Local 3's responsibility does not necessarily depend upon proof of the
presence of Rutan or some other agent during the commission of the conduct in
question; that a finding that Local 3 had violated Section 8(b)(1)(A) is warranted
by regarding all the above-related coercive acts as a "pattern of conduct established,
sponsored, and initiated by Rutan, the joint agent of Locals 3 and 28."
I am persuaded that the shooting of the marbles at the Arthur J. Dyer and the
throwing of Captain Scott into the canal by Local 3 pickets is the responsibility of
Rutan and his principal, Local 3. Even though it is not directly or circumstantially
proved that Rutan was on the bank of the river when the Arthur J. Dyer was
attacked, the record shows that he had been at the scene of picketing before the
incident, and that he appeared that every night in Henderson and had conversations
with persons who had witnessed the attack. It is extremely unlikely that Rutan had
not by then learned of the violence of that afternoon committed by the Local 3
pickets, and I infer that he did know about it. The fact that within 6 days Rutan
himself participated with his pickets in a rock barrage of the E. B. Ingram, and
the absence of any showing that Rutan had repudiated the marble attack on the
Arthur J. Dyer, convinces me that not only was there no repudiation but instead
approval. The actions of Rutan himself as a rock thrower within the same week
may reasonably be regarded as approval of the marble shooting by his pickets. The
stoning of the Ingram barges and personnel at Lockport by Rutan and his pickets 4
days after the attack on the E. B. Ingram at the Romeo Bridge made doubly clear
his approval of and adoption of the earlier marble shooting by his pickets. By
July 24, 1958, the Local 3 pickets at Lockport had been sufficiently indoctrinated
by Rutan's examples so that when they threatened Scott with violence if he did not
discharge his crew and himself quit, and then threw him into a veritable cesspool
while ignoring his professed inability to swim, they were merely carrying out the
violent precepts in which they had been tutored by their leader and mentor. Of
course, in these circumstances Rutan and his principal, Local 3, cannot disclaim re-
sponsibility for the actions of their pickets merely because Rutan's presence during
their commission has not been established. See Tungsten Mining Corporation, 106
NLRB 903.
I find that the marble shooting by the pickets at the Arthur J. Dyer on July 10,
the violent threats to Captain Scott and the throwing of him in the canal on July 24,
1958, also constitute restraint and coercion of employees in violation of Section
8(b) (1) (A). In finding that the conduct involving Captain Scott was unlawful I
am mindful that he was a supervisor within the meaning of the Act, and that no
nonstriking employees may have witnessed the violence against him at the dock.
These circumstances, however, do not mitigate against a finding that employees
were restrained or coerced in violation of Section 8(b)(1)(A). I am satisfied that
the attack upon Scott at the dock was of such nature that employees were bound
to learn about it. See W. T. Smith Lumber Company, 116 NLRB 507; enfd. sub.
nom. N.L.R.B. v. International Woodworkers of America et al., 243 F. 2d 745
(C.A. 5).
I do not impute responsibility to Local 3 for the violent acts of Dexter Howell
and Joe Wheeler in boarding the Arthur J. Dyer, and the violent conduct of Wayne
Johnson, George McReynolds, and their unidentified companions in the speedboat
LOCAL 28, INT'L ORGANIZATION OF MASTERS, ETC. 1185
who endangered the replacement crew attempting to board the Hortense B. Ingram,
or for the threat of violence by Johnson in the course of this same incident. Howell,
Johnson, and McReynolds were members of Local 28 and not of Local 3. The
affiliation of Wheeler and the other persons involved in these incidents with any
organization is not established'in the record. Local 3 may be held liable for the
conduct of these persons provided it has been shown that they were its agents in the
commission of their violent acts. See Sunset Line and Twine Company, 79 NLRB
1487, and Perry Norvell Company, 80 NLRB 225. It has not been proved that
they had joined the ranks of the Local 3 pickets with the knowledge and approval
of Rutan or some other responsible agent of Local 3. In fact, neither Rutan nor
any other Local 3 agent directing the action of its pickets was shown to have been
present during the incidents involving the Arthur J. Dyer and the Hortense B. Ingram.
Were there proof that Local 3 had recruited these Local 28 members or other persons
to join the ranks of its pickets I would unhesitatingly have found basis for Local 3
responsibility for their violence. Such proof is lacking. Adoption or ratification
by Local 3 of their conduct during or after commission would also have provided
basis for Local 3's responsibility. Evidence of such adoption or ratification is not
present. Thus, absent proof of the required agency, adoption or ratification of the
violent conduct by the foregoing perpetrators there is no legal basis for charging
Rutan or Local 3 with responsibility for their conduct.
b. The alleged Section 8(b)(4) (A) violation by Local 3
The General Counsel contends that the picketing of the Texas dock at Lockport by
Local 3 from July 20 to August 7, 1958, was violative of Section 8(b) (4) (A) of the
Act, in that it occurred at the premises of a secondary or neutral employer with
whom Local 3 had no dispute, and the object of the picketing was to induce and
prevent Texas employees from performing their regular duties and thus to cause
Texas to cease doing business with Ingram. The Respondents assert the legality of
this picketing. They insist that it was intended only to affect the loading of Ingram's
barges and to restrict the area of the dispute to Ingram. While the Respondents
acknowledge that Texas employees were induced or encouraged to cease work, they
declare such inducement and encouragement was for the exclusive purpose of
having them cease "doing business with the primary employer (Ingram) only."
They emphasize the fact that the picketing had the effect only of inducing the Texas
employees to refrain from loading Ingram barges, and that it did not deter them
from performing these operations on the barges of other companies at the struck
premises during the picketing. The Respondents rely on the Board's Pure Oil
Company decision, 84 NLRB 315, in support of their argument that the inducement
of the Texas employees not to perform services was in effect a lawful appeal to
them to respect Local 3's traditional primary strike action. Moreover, the Respond-
ents maintain, Texas lost whatever immunity it might have had as a neutral employer
when it directed its employees to perform work on the Ingram barges customarily
performed by Ingram's employees. Thereupon, they say, Texas became Ingram's
ally in the dispute with Local 3 and was deprived of statutory protection from
involvement in that dispute by Local 3's inducement of its employees to cease per-
formance of services.
The General Counsel's brief concedes that if Ingram employees had been present
at the Texas dock Local 3 would have been entitled to picket at this location provided
it did so in accordance with the standards established by the Board in Moore Dry
Dock Company, 92 NLRB 547. At the same time, the General Counsel argues that
the Texas dock was not the site of the dispute after the Ingram towboat and its
entire crew had berthed the barges at the dock and had sailed to a remote position,
and would equate the situation created by the absence of the Ingram employees
from the Texas dock with the factual conditions which obtained in the Incorporated
Oil Company case, 116 NLRB 1844, where the Board held that the total absence of
the primary employers' employees from the vicinity of the claimed common situs
rendered inapposite legal precedents relating to cases involving common situs
picketing. As related above, the Ingram towboat, the E. B. Ingram, had arrived
with its three empty barges on July 20 and, after securing them to the Texas dock,
had in the ensuing 4 days been berthed about 300 feet upstream from the barges.
On July 24 the E. B. Ingram with its entire crew aboard moved to the other side
of the canal opposite the Texas dock about 300 to 400 feet downstream and remained
there until August 7 except for brief intervals when the boat came back to the Texas
dock to put out lights on the barges. The canal at the point where the Texas dock
is located is about 300 feet wide. The General Counsel reasons that on and after
July 24 the situs of the dispute became the place opposite the Texas dock where the
E. B. Ingram and its crew were located. Essentially the General Counsel's position
1186 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
is that the Moore Dry Dock conditions that the picketing be strictly limited to times
when the situs of the dispute is located on the secondary employer's premises, that
it be limited to places reasonably close to the location of the situs, and that at the
time of the picketing the primary employer must be engaged in its normal business
at the situs, were not met when after July 24, at the latest, Local 3 picketed at the
Texas dock and not on the other side of the canal or by boat in the canal near the
E. B. Ingram and its crew.
The General Counsel further disagrees with the Respondents' contention that Texas
lost its neutrality and became Ingram's ally by directing its employees to board In-
gram's barges during loading operations to perform the customary functions of
Ingram's tankermen. The General Counsel argues that no alliance was thereby estab-
lished because the control of valves aboard the barges during loading was work
essential to the continuation of Texas' business, and that when Texas directed its
employees to perform duties on the barges it was only devising "other methods" of a
sort mentioned by the Board in its United Marine Division, Local 333 decision, 107
NLRB 686, 707-708, to which a secondary employer faced with a strike against his
supplier of services may resort without forfeiting its status as a neutral. The General
Counsel's brief further states that the basic function of Ingram was merely to tow the
barges to the Texas dock, whereas the loading of the barges was the exclusive re-
sponsibility of Texas. Granting that Ingram employees before the strike assisted in
loading the barges, the General Counsel characterizes this activity as a mere addition
to their prime function of transporting the barges to their various destinations. In
these circumstances the General Counsel would not regard the takeover by Texas of
all the loading operations including the work ordinarily done by the Ingram tanker-
men as a transfer or farming out by Ingram of struck work to Texas so as to constitute
it an ally.
I find that the picketing at the Texas dock between July 20 and 24 before the Ingram
towboat and all its personnel departed from the dock area was lawfully conducted in
conformity with Moore Dry Dock requirements. The General Counsel conceded at
the hearing that the pickets were stationed as near the barges as they were permitted
to be. From the description of the dock area in the record it appears that the
picketing from this location was also as close as possible to the towboat and the
personnel aboard while it was tied up about 300 feet upstream from the barges at
the Texas dock. In these circumstances, it cannot be disputed that Ingram employees
were present at the Texas dock and that picketing at this sites was permissible if it con-
formed to the Moore Dry Dock conditions. With the towboat and its personnel, as
well as the barges, at the dock, the Texas premises were clearly harboring the situs
of the dispute between Ingram and Local 3. The picketing while this condition pre-
vailed was therefore (1) strictly limited to times when the situs of the dispute was
located on the secondary employers' premises; (2) at the time of the picketing the
primary employer, Ingram, was engaged in its normal business at the situs; (3) the
picketing was limited to places reasonably close to the location of the situs. As to the
fourth Moore Dry Dock requirement, that the picketing disclose clearly that the dis-
pute was with Ingram, the legend on the picket signs displayed during the picketing-
ON STRIKE AGAINST INGRAM BARGE LINE,
MASTERS, MATES AND PILOTS, AMU
LOCAL 3, AFL-CIO
is an unequivocal declaration of a dispute with Ingram only. Furthermore, the
appeals to Texas employees were limited to withholding of services to be performed
by them in connection with Ingram operations only, and not to refuse to do work in-
cident to Texas' business with other employers at the dock. The General Counsel's
brief itself asserts that the object of the picketing as expressly represented by Rutan
was to induce Texas employees not to perform work incident to the loading or unload-
ing of Ingram barges. The fourth requirement was, therefore, also met. The July 20
to 24 picketing having thus conformed to all the Moore Dry Dock requirements, I
find no violation of Section 8(b) (4) (A) by Local 3 in the course of such picketing.
The removal of the towboat and crew from the Texas dock after July 24 did not
susbtantially alter the situation prevailing before then. This was merely a shadow
departure of Ingram's personnel which did not affect the fundamental character of
the circumstances which satisfy me that Texas continued to harbor the situs of the
dispute. While the Ingram tow and employees were on the side of the canal opposite
the Texas dock, the Ingram barges still remained at the dock to be loaded. In the
course of ordinary operations no loading of these barges would have occurred without
the presence of Ingram employees on them to regulate the flow of petroleum. Had
the pickets departed it was to have been expected by them that Ingram's employees in
accordance with custom would have returned to work on the barges during loading.
LOCAL 28, INT'L ORGANIZATION OF MASTERS, ETC. 1187
Ingram's true situs was therefore not its towboat, but the barges on which Ingram's
employees were to perform the only work to be done incidental to the presence at or
near the Texas dock of the barges or the towboat with its crew. In this respect this
case differs factually from Incorporated Oil, supra, where the employees of the sec-
ondary employer were induced to withhold construction services which were wholly
unrelated to the work of the absent employees of the primary employer which con-
sisted of the operation of an automobile service station. In this circumstance the
Board logically regarded the picketing of the offending union during the total absence
of the primary employer's employees not as inducement of these employees to refuse
to work, but as a mere "provocation of a strike by the employees of [the secondary
employer], with which this Union had no quarrel whatsoever." In these circum-
stances, the Board said, "legal precedent relating to common situs cases is inapposite."
In the instant case, the picketing by Local 3 was directed only against work in which
Ingram and Texas employees ordinarily joined. It was, moreover, addressed to the
work of Ingram employees which Texas employees had been directed to perform.
Picketing to induce Texas employees not to perform work which, pursuant to the
direction of their superiors, involved assumption of duties which would have been
performed by absent Ingram employees may not be equated with more provocation
of a strike by Texas employees to compel a cessation of business between Texas and
Ingram. I would consequently regard the common situs legal precedents as applicable
to this case, and, because the Moore Dry Dock requirements were met after July 24,
as before, do not find that the picketing of the Texas dock by Local 3 was violative
of Section 8(b) (4) (A).
Wholly independent of my conclusion that the Ingram barges at all times remained
the situs of the dispute between Ingram and Local 3, I find that the picketing at the
Texas dock was statutorily permissible on other grounds. Contrary to the position
elaborated by the General Counsel in his brief, the operation of loading Ingram barges
was not the exclusive responsibility of Texas. The above-related testimony of Texas
Foreman Blish, and the testimony by Texas assistant supervisor of operations at Lock-
port, Edwin Rowley, contradict the General Counsel's position. According to them
the loading of Ingram barges before July 20, 1958, had customarily been the joint
operation of Texas and Ingram employees. The latter employees performed duties
on the barges which were indispensable to their proper loading, for by regulating the
flow of petroleum into the barge compartments they prevented the barges and their
cargoes from damage by listing in the water. The testimony of Blish that in advance
of the arrival of the Ingram barges on July 20 he had received unprecedented loading
instructions from the Texas industrial relations department that the work customarily
performed on the barges by Ingram's tankermen would this time be performed by
Texas employees bespeaks an arrangement between Texas and Ingram whereby the
former assumed the performance with its employees of work which but for the strike
against Ingram would have been performed by the latter's employees. This transfer
of struct work by Ingram to Texas created an alliance between them whereby Texas
lost its neutrality in the Local 3 dispute with Ingram. N L.R.B. v. Business Machine
Office Appliance Mechanics Conference Board, Local 459, etc., 228 F. 2d 553 (C.A.
2) and the Board's decision in that case reported at 111 NLRB 317, 329 (the finding
of alliance between Royal and Mahnattan); Douds v. Metropolitan Federation of
Architects, etc. (Project Engineering Co.) 75 F. Supp. 672 (D C.N.Y.). That this
was an arrangement devised by Ingram to "protect its employees from injury and
abuse at the hands of its striking employees," and to "to prevent the premises of
[Texas] from becoming a common situs for picketing" by Local 3, does not alter the
inescapable fact that Texas assumed the performance of Ingram's struck work pur-
suant to arrangement with the struck employer. Nor am I convinced that the struck
work was so "miniscule," as characterized by the General Counsel, that it should be
disregarded in determining that Texas by its assumption became Ingram's ally. I am
not aware that in the formulation and acceptance of the "ally" concept by the Board
and courts the importance of the struck work is weighed and balanced in relation to
other work involved in the total operation of which it is an indispensable part.
The significant fact is that the loading operations in this case could not have proceeded
without performance of the duties regularly carried out by Ingram's employees and
that Texas employees were directed to take them over pursuant to an understanding
between their employer and Ingram.
In finding that Texas had formed an alliance with Ingram I have considered the
General Counsel's argument gleaned from the United Marine Division decision,
supra, that Texas was not in the face of the strike against Ingram "obligated to sit idly
by lest [it] forfeit [its] status as a neutral," but could "without risking the protection
Section 8(b) (4) (A) accords [it] against the extension of [its] business of economic
conflicts in which [it] is not involved, seek other suppliers, devise other methods,
and employ other means to enable [it] to continue [ its] business on as nearly normal
641795-63-vol. 136-76
1188 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a level as possible." This privilege of self-help, however, is not an unqualified
authorization to a secondary employer to perform with its employees the struck
work of its supplier of services, on the struck employer's equipment, and by arrange-
ment with that employer. Texas could independently have used its own employees
or the employees of any employer to load and transport its fuel without sacrificing its
neutrality, so long as this did not involve the arranged replacement of Ingram's em-
ployees by Texas employees to perform the services for which they were hired by
Ingram. For example, Texas could with impunity have chartered the barges of
other shipping concerns and could even have used its own employees to load their
barges. This it did not do. Instead, it merely substituted its employees for Ingram's
to do their work for Ingram's benefit. If in the process Local 3 were statutorily for-
bidden to picket the loading of the barges, Texas' neutrality could have been a potent
weapon used by Ingram to defeat the strike against it. The allied doctrine would
thereby have no meaning. In this connection, I observe, contrary to the General
Counsel's view of the record, that the loading of the barges was as essential to the
conduct of Ingram's transportation business as it was to Texas' business of refining
and distributing petroleum.
Because the picketing by Local 3 was in its entirety conducted at a common situs
which at all times harbored the locus of the dispute with Ingram, and Local 3
.conformed its picketing to the Moore Dry Dock requirements, and because Texas
was not during the picketing a neutral whose premises were shielded by the Act
from picketing during Local 3's dispute with Ingram, but was instead Ingram's ally,
I find that Local 3 did not by picketing at the Texas dock at Lockport, Illinois, from
July 20 to August 7, 1958, violate Section 8(b) (4) (A) of the Act.
c. Section 8(b) (1) (A) violations by Local 28
The General Counsel ascribes responsibility to Local 28 for the Section
8(b) (1) (A) violations which I have found were committed by Local 3. Because, as
I have already stated, I find in this report that Local 28 is not a labor organization
within the Act's meaning, it may be held responsible as a violator of the Section 8(b)
provisions of the Act only as an agent of Local 3. See Di Giorgio Wine Company,
87 NLRB 720, enfd. 191 F. 2d 642 (C.A.D.C.), cert. denied 342 U.S. 869; Inter-
national Organization of Masters, Mates and Pilots of Ameirca, Inc., AFL-CIO,
et al. (Chicago Calumet Stevedoring Co., Inc.), 125 NLRB 113. The General
Counsel contends that Local 28 became such agent by participating with Local 3 in
its strike against Ingram as a joint venturer or cosponsor. The Respondents take a
contrary view. They urged that the record not only fails to show any evidence of an
association between Local 3 and Local 28 in the course of their disputes with Ingram,
but that the record convincingly shows that each organization pursued different and
separate courses against Ingram, Local 3 by a strike and Local 28 by a civil court
action against Ingram for breach of contract. I am persuaded, for the reasons herein-
after stated, that Local 28 did participate with Local 3 in its strike against Ingram,
and accordingly became a cosponsor and agent of Local 3. As such, I find it re-
sponsible with Local 3 for the violations of the Act committed by the latter in its
strike against Ingram.
During times relevant to these proceedings Locals 28 and 3 were quartered in the
same office in St. Louis where they had a single telephone listing in the name of Local
28, utilized the services of a single clerk, and shared the expense of maintaining the
office, rent, and the clerk's salary. The Local 28 business agent, E. A. Adams, had
in the past simultaneously served as the paid business agent of Local 3. He had
resigned his Local 3 post in May 1957 and continued thereafter only as the Local 28
business agent. Upon Adams' recommendation he was succeeded as the Local 3
business agent by Harry Rutan. The latter had been Adams' assistant in his capacity
as the Local 28 business agent. Rutan continued as Adams' assistant to Local 28
after he became the Local 3 business agent. Despite Adams' formal resignation as
the Local 3 business agent, he remained the only person with authority to sign checks
for the withdrawal of funds from the Local 3 account with its bank in St. Louis, and
this authority continued until the account was closed by a final withdrawal by a check
signed by Adams in November 1958.
The tight functional relation between Locals 28 and 3 coupled with their identical
disputes with Ingram over its unilateral imposition of the three-quarter day off for
each day worked arrangement for all personnel on its boats, including Local 28 and
Local 3 members, provides a basis from which it may fairly be reasoned that these
locals would tend towards cooperative action in their disputes with Ingram. I
assume that Local 28 was not oblivious to the fact that successful strike pressure by
Local 3 to compel ingram's recission of the three-quarter day off arrangement and
restoration of the former day off for each day 'worked would redound to its benefit
LOCAL 28, INT'L ORGANIZATION OF MASTERS, ETC. 1189
in securing this same result for its members. Local 28's activities during Local 3's
strike must therefore be considered in the context of its attraction to Local 3, in
determining whether these activities reveal a joint venture in that strike.
As related, Ingram's masters tied up the boats on which they were sailing when the
Local 3 strike messages were received. While the boats were tied up the masters,
mates, and pilots, all of whom were Local 28 members, remained aboard as security
crews. When replacements for the striking Local 3 deckhands were brought aboard,
the masters, mates, and pilots uniformly refused to work and left their boats. In
addition, some, the aforementioned Howell, Johnson, and McReynolds, and possibly
others, added their own violence to the violent conduct of Local 3 pickets who
sought to prevent operation of the boats by replacements. I have refrained from
finding Local 3 responsible for such conduct because of lack of proof that the
activities of the Local 28 members were solicited by an agent of Local 3 or were
committed in his presence. I do, however, consider this conduct and the general
refusal of,the masters, mates, and pilots to work as indicative of Local 28's support
for the Local 3 strike.
Adams, though called by the General Counsel as a witness, refused to testify. The
record, nevertheless, includes his testimony in the Federal district court injunction
proceeding which preceded the hearing in this case. There Adams admitted his
interest in the Local 3 strike; that he was informed of its developments by Rutan
whom he supervised as his assistant and to whom he gave orders; that he knew of the
refusal of Local 28 members to work during the strike, but that he took no action to
induce them to work despite the no-strike clause in the contract with Ingram which
Local 28 considered binding. That Adams and other responsible officials of Local 28
knew of the refusal by their members to work during the strike and not only failed
to discourage this refusal, but as a matter of Local 28 policy approved it is further
revealed by the following evidence. Lee C. Brazie, a Local 28 trustee since 1955,
claimed that Adams and the Local 28 trustees had after the start of the Local 3
strike decided that Local 28 could not strike because it was bound by the no-strike
clause in its contract with Ingram, and that Local 28 should direct its members not
to picket. While admitting that he knew that Local 28 had advised its members that
Local 3 was on strike, he testified that he could not recall what advice was sent
them about respecting Local 3's picket lines. He significantly added, however,
"It's always understood, of course, that we respect a picket line." Harold Heule,
a Local 28 member, had been the pilot of the Dyer when this boat was tied up at
Henderson, Kentucky, on July 6, 1958. That day Heule, at the direction of the
boat's master, called Adams for instructions. Heule testified that Adams advised the
Local 28 members to remain aboard until Ingram asked them to leave, and then
not to cause trouble; that Adams had noted that there was not then a Local 3 picket
line about the boat, but "that we would not cross the picket lines." Adams must
also have learned about the violent acts of the Local 28 members in support of the
Local 3 strike. There is no proof that he or anyone in behalf of Local 28 repudi-
ated or discouraged this conduct. On the contrary, after Local 28 resorted to its
own strike action against Ingram, Wayne Johnson, whose violent conduct of
July 21, 1958, has heretofore been described, was designated by Local 28 as its
strike captain thereby denoting its approval of his prior conduct during the Local 3
strike.
I appreciate that traditional union sentiments might have impelled Local 28 mem-
bers individually not to work with replacements for members of their sister local who
were on strike. The uniformity of such refusal by Local 28 members, however,
together with Local 28's acquiescence, approval, and encouragement of their action,
impresses me that this was not just spontaneous conduct by individuals, but rather a
concerted response to the direction and will of their organization.
There is other evidence which shows affirmatively that Local 28 approved and
even directed its members not to work aboard their boats with replacements for the
striking Local 3 members. Captain Charles R. Hutchinson, who appears to have
been master of the vessel E. B. Ingram when it was tied up during the strike on
July 6 at Paducah, Kentucky, remained aboard as part of the security crew. He
testified without contradiction that on July 6 or 7 a person who identified himself as
Walter Gass circled the Ingram tow in a motorboat and issued instructions to him.
Hutchinson questioned his authority and declared his intention to speak to Adams
to determine what he should do. Thereupon Gass told him, "Your orders are to get
off when they start to take this boat out." Gass, according to the Local 28 July-
August 1958 "News Letter" to its members, signed by Adams, had been an organizer
for the MMP International who, because of curtailed organizational work, "was
working in the interest of Local #28." While I expressed doubt at the hearing that
the General Counsel had sufficiently proved the nature of Gass' agency so that I
1190 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
could be satisfied that his order to Hutchinson was within the scope of his authority
and binding upon his principal , Local 28, I am now, upon consideration of the entire
record, disposed to find that his authority to issue the order in question was suffi-
ciently proved. While ordinarily mere proof that an agent was working in the
interest of his principal would have been too vague to support a finding of specific
authority, I so find here because of the refusal of the Respondents to provide evi-
dence and of Adams to give testimony pursuant to the subpenas of the General
Counsel. In the circumstances, I accord the General Counsel's proof its most
favorable construction and find that Gass' order to Hutchinson was issued within
the scope of his authority to act in behalf of Local 28's interest. This order con-
stitutes an express directive by Local 28 to its members not to work with replace-
ments for Local 3 strikers, and is clear proof of Local 28's support for Local 3's
strike.
The most compelling proof of Local 28's participation in Local 3's strike consists
of the undenied admission by Rutan on July 21, 1958, during the course of the picket-
ing at the Texas dock in Lockport to Texas Attorney Bender that he, Rutan, lacked
authority to withdraw the pickets, and that this action could be authorized only by
Adams. Rutan had acknowledged on July 12, 1958, to Texas officials at Texas'
Mount Vernon Refinery in the course of his discussion with them concerning the
troubles that Locals 28 and 3 were having with Ingram that he represented both
organizations. That Rutan was Adams' subordinate as a Local 28 agent and took
orders from him is incontestably established . His statement to Bender was clearly
within the scope of his authority to act as Adams' assistant. In these circumstances,
I can construe Rutan's statement to Bender only as meaning that he, Rutan, was
directing the picketing under the authority of Adams. In the full context of Local
28's affinities to Local 3, the identity of their disputes, and the various indications
which I have related of Local 28 interest in and support of Local 3's strike against
Ingram, I deem Rutan's admission as clear proof of Local 28's participation with
Local 3 in its strike as a joint venturer or cosponsor. The clear implication of
Rutan's admission is so forceful as to satisfy me even without reference to other
factors that Local 28 was a participant with Local 3 in its strike. This conclusion
is not logically deterred by the fact that Local 28 did not formally declare a strike
against Ingram, that it decided upon a civil action against Ingram for breach of
contract, and that it so advised its members. Local 28 could have done all this
and still could have co-sponsored the strike by Local 3. As a joint venturer or co-
sponsor of that strike, Local 28 was Local 3's agent and with it responsible for its
conduct during the strike violative of Section 8 (b) (1) (A) of the Act, and I so find.2
Local 28's Alleged Status as a Labor Organization
Section 2(5) of the Act defines a labor organization as-
any organization of any kind . . . in which employees participate and which
exist for the purpose, in whole or in part, of dealing with employers concerning
grievances, labor disputes, wages, rates of pay, hours of employment, or condi-
tions of work . [Emphasis supplied.]
The General Counsel and Charging Parties vigorously contend that Local 28 is a
labor organization within the meaning of Section 2(5). The Respondents firmly
deny this.
2 My finding regarding Local 28's participation in Local 3's strike is made without re-
liance upon testimony by Captain Hutchinson concerning conversations during the strike
with Local 28 trustee, Captain Hass At most, I would construe the statement ascribed
to Hass as his personal agreement with Hutchinson's refusal to work during the strike,
and not as an official directive as an agent of Local 28 to Hutchinson not to work Nor
have I relied upon evidence concerning the report by Captain Zimmer in his typewritten
copy of his ship's log to Ingram for July 6, 1958, as proof that he had been ordered by
Adams on that date to tie up his vessel, and thus to support the Local 3 strike Had this
entry been made in the rough or official log which was required to be kept on the vessel,
I would have relied upon it as proof of the fact denoted by the entry I cannot, however
accord the typewritten copy the same dignity as the official log from which it differed
Zimmer 's testimonial denial of any contact with Adams on or about July 6 nullifies any
possible value as proof which the typewritten copy might have had absent Zimmer's
testimony. I have also placed no reliance on the testimony of Mack Brewer, from which
the General Counsel would have me find that Local 28 paid strike benefits to its membeis
who did not work during the Local 3 strike. Brewer's testimony is too uncertain, con-
fused, and even implausible to permit reliance thereon.
LOCAL 28, INT'L ORGANIZATION OF MASTERS, ETC. 1191
There is no dispute between the parties about the applicability to Local 28 of all
portions of the statutory definition of a labor organization except the phrase "in
which employees participate." The General Counsel maintains it has been proved
in this case that "employees," as that term is defined by Section 2(3) of the Act, do
participate in Local 28. The Respondents assert this has not been proved, but on
the contrary the record shows that only supervisors, as that term is defined by
Section 2(11) of the Act, participate in Local 28.
The General Counsel and counsel for Ingram concede that the masters on Ingram's
boats and on the boats of other employers who have membership in Local 28 are
supervisors. They assert, however, that the pilots and mates on Ingram's boats and
on boats of other employers are not supervisors but are employees, and that their
membership in Local 28 determines its status as a labor organization. They also
maintain that the phrase "in which employees participate" is not limited to member-
ship in the organization by employees, but equate participation with representation
or even attempts to represent employees in collective bargaining by the alleged labor
organization. In this connection, the General Counsel and counsel for Ingram urged
during the hearing that Local 28 either represented or sought to represent a classi-
fication of employees known as "steersmen." There is no reference, however, to this
position in their briefs.
The Respondents oppose the general Counsel's position in the foregoing respects
both on the facts and law. They say that only supervisors are eligible for or are
admitted to membership in Local 28, and that all masters, mates, and pilots in-
cluding those who serve Ingram, as well as other employers, are without exception
supervisors. The Respondents further deny that the record proves that Local 28
has ever represented or sought to represent "steersmen," or that as a matter of
statutory definition it could be considered a labor organization simply because it
represented or sought to represent such persons, assuming, but not conceding, it
has been proved that Steersmen are employees. The Respondents interpret the
phrase "in which employees participate" as meaning membership by employees
in the alleged labor organization and nothing short of membership with its normal
prerequisites.
The General Counsel asserts, and with this the Respondents do not disagree, that
in determining supervisory status "the important thing is the actual duties and
authority of the employee, not his formal title." N.L.R.B. v. Qincy Steel Casting
Co., Inc., 200 F. 2d 293, 296 (C.A. 1). This is the controlling principle to be ap-
plied in the evaluation of the great mass of evidence provided by both sides in this
case concerning the status of the mates and pilots as supervisors or employees.
Before reciting and analyzing the evidence, it is appropriate to note that Local
28 has bargaining relations with several employers who, like Ingram, are engaged
on the same inland waterways in the transportation of goods by barges which are
propelled by towboats. Local 28 had a membership of approximately 600 masters,
mates, and pilots during the time of the events in question, and at the time of the
hearing its membership was approximately 750. Ingram's June 1, 1958, seniority
list shows that it then employed 10 masters and 10 pilots. An April 15, 1958, list
shows employment by Ingram of 10 first mates and 4 second mates, licensed. It was
stipulated that in July 1958 Ingram employed six second mates, unlicensed. The
General Counsel could have established that Local 28 is a labor organization by
proving that its membership includes employees whether they were employed by
Ingram or by any other employer. Accordingly, witnesses for both sides testified
concerning their knowledge of practices on Ingram's boats and on the boats of
other employers with which they had familiarity.
Practices Aboard the Ingram Boats
Ingram operates five boats named E. B. Ingram, Arthur J. Dyer, Hortense B. In-
gram, Nelson M. Broadfoot, and Alice Ingram. The Alice Ingram is distinguishable
from all other boats in that it is smaller and has fewer members in its crew. The
others are comparable in size and in the makeup of the complement aboard each.
These differences will be noted as this account progresses.
The complement aboard each of Ingram's boats includes a master, pilot, first
mate, and second mate. These persons are members of the deck department which
also includes persons classified as deckhands, tankermen, a cook and cook's helper.
The engineroom department, which is in no way involved in the question under
consideration, includes a chief engineer and his subordinate engineroom personnel.
While with insignificant exception there is uniformly aboard each boat a qualified
master, pilot, first and second mate, there are occasional variations in the composi-
1192 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion of the deck crew normally comprised of the deckhands and the tankermen.
These variations, to which the General Counsel and the Charging Party attach sig-
nificance , will be later described.
Ingram 's boats and barges sail from their home port at New Orleans the full length
of the Mississippi River and enter its tributary waterways for distances of hundreds
of miles. The voyages of these boats are as long as 30 or more days during which
their complements are continuously employed. It is from this circumstance that
there arose the employment condition whereby Ingram formerly allowed all per-
sonnel 1 day off with pay for each day worked and then unilaterally changed this
allowance to three-quarters of a day off with pay for each day worked. Because
of the continuous operation of the boats the personnel aboard them divide their
duties. Each person stands what is termed a "6-hour watch," and is then relieved
from duty for the next 6 hours by the person who takes over his duties. During
a watch on each boat the deck complement includes the master or the pilot, who
stand opposite watches, and the first mate or second mate who also stand opposite
watches. On all boats except the Alice Ingram, there are also in the deck comple-
ment on each 6-hour watch two deckhands or tankermen, who in turn are relieved
by two other deckhands or tankermen who stand the opposite watch. On the Alice
Ingram there are times when there is only one deckhand on board who stands his
watch together with the first mate, so that when the second mate stands his watch
there is no deckhand on duty with him. At other times, however, there appear to
have been two or more deckhands in the crew of the Alice Ingram, so that one or
more deckhands stood watch with the first and second mates
While most of Ingram's masters, mates, and pilots are licensed by the Coast
Guard, there is no statutory or regulatory requirement that they have licenses This
is so because of the conversion in recent years from steam to diesel-powered boats.
During the era of steam engines the Coast Guard required licensing of persons in
these classifications. There is no such requirement for them on diesel boats. The
Coast Guard does require tankermen to be licensed, and it appears that some of
Ingram's second mates although unlicensed in that classification are licensed as
tankermen. The duties for which a tankerman is licensed involve only pumping
operations aboard barges during loading and unloading of fuel cargoes Accord-
ingly, the tankermen in the crew perform the functions of deckhands or second
mates except during loading and unloading operations aboard the barges
The operation of an Ingram boat and its tow of barges involves the making up
of the tow by coupling barges to each other and to the boat which pushes them
The tow, sometimes consisting of 6 barges, may stretch ahead of the boat for a
distance of over 1,000 feet. As the barges are transported it is necessary to push
them through locks which appear occasionally along the waterways being traversed.
Special procedures are involved including uncoupling the barges and pushing them
separately through the locks and afterward reassembling the tow. In the course of
a trip the boat and its tow may engage in several docking operations to drop off
barges or to pick up others. Special techniques are involved in these operations.
During the foregoing activities, the master or the pilot, whoever is on watch, is
stationed in the pilothouse where by the manipulation of levers the boat and its tow
are steered in desired directions The first mate or second mate, whoever is on
watch, along with the deckhands on watch are stationed during docking or locking
procedures at strategic places on the boat or barges where by the use of lines which
they cast out and tighten or slacken secure the boat and barges to control their
movements. All these activities are carried out either pursuant to the preconceived
plan of the master or pilot explained by him before docking or locking to the mate
and deckhands, or without explanation it may be understood from experience what
is generally expected from each person involved in the operation The master or
pilot from his higher vantage point in the pilothouse may, and generally does,
shout directions to the mate or deckhand nearest him The mate himself may and
does often shout directions to a deckhand near him. The mate and deckhands by
prearrangement frequently send information by signals from their positions on the
barges to the master or pilot so that he can determine the location and distances of
the barges from the dock or lock wall. The high degree of cooperation required
from all participants in the performance of these operations is self-evident.
The General Counsel's principal witnesses who testified concerning the authority
and responsibilities aboard the Ingram boats of the masters, mates, and pilots were
R. E. Bridges, Ingram's vice president and general office manager, Port Captain
Rubin N. Cioll. and George D Hutcherson, Ingram's personnel manager and pur-
chasing agent. Bridges is Ingram's chief operating official responsible for the staffing
and condition of the boats and barges. He also fixes Ingram policy for the opera-
tion of its boats subject to the veto of Ingram's president. He sometimes consults
LOCAL 28, INT ' L ORGANIZATION OF MASTERS , ETC. 1193'
Cioll and Hutcherson in the formulation of policy. Cioll is responsible for the
hiring and discharge of Ingram 's requirements in the operation of the boats.
Hutcherson hires mates , deckhands , and tankermen for the deck department of the-
boats. Bridges, Cioll , and Hutcherson periodically visit the boats and remain on,
board for a few days at a time while they observe conditions and occasionally
instruct the personnel.
It is apparent from the testimony of each of the foregoing witnesses that Ingram
has not reduced to writing any book or manual of instruction defining the chain of
command or line of authority on its boats . Each had a concept with respect to the
authority and responsibility of masters , mates, and pilots, but could refer to no
tangible source in which these concepts are objectively outlined. While they asserted
that the Ingram book of instructions which was kept aboard each boat or various
publications issued by the Coast Guard or the United States Engineers provided at
least a partial basis for their opinions as to the authority and responsibilities of the
masters, mates , and pilots , they did not, nor has the General Counsel, referred to
any specific area in these publications , some of which are included in the record,
containing any significant reference to the question at issue. My own examination
of these documents fails to reveal any pertinent reference , except for some indication'
of the responsibility of masters . There is , however, one group of documents which
overrides all other considerations determining the authority and responsibilities of
Ingram 's boat personnel . These are the contracts between Ingram and Locals 3
and 28 which the foregoing witnesses conceded they honor in defining that authority
and responsibility . The fact, as I see it from the testimony of the General Counsel's
witnesses , is that when masters , mates , and pilots are hired or assigned by Ingram
to their respective positions it is understood by these persons what is expected of
them functionally in the performance of their duties , and also what is the relative
authority and obligation of each person aboard a boat to all others . This is so be-
cause the operation of an Ingram boat and tow is conducted in a manner consistent
with practices on the river which have developed through custom and tradition
with which all involved persons presume familiarity . It is essentially from these
foundations that Bridges , Cioll, and Hutcherson expressed their views.
According to them the master is Ingram's agent on board the boat who is re-
sponsible for its total operation except for the maintenance and repair of the engines.
He also is responsible for the conduct and performance of duties by the crew, and
only he may discharge or lay off a crew member subject to investigation by Ingram.
Only the master may enforce discipline on his boat . No one on the boat, including
the master, may hire crew members except in rare emergencies Nor may anyone
on the boat promote , reward , or demote members of the crew. These authorities are
exercised exclusively by Cioll and Hutcherson , and by the Ingram port engineer
for engineroom personnel . Only the master has authority on his boat to entertain,
and handle grievances.
While the General Counsel's witnesses , particularly Cioll and Hutcherson , initially
testified that only the master had authority to issue an order to the members of the
deck department which they were required to obey, they withdrew from this posi-
tion when confronted with the Ingram contracts with Locals 3 and 28. Having been
referred to the pertinent clauses of the contracts they reverted their positions and
conceded that pilots and mates, both first and second , had authority to issue original
orders to deckhands which they were required to obey. Neither Cioll nor Hutcher-
son was at first willing to designate as officers anyone aboard the Ingram 's boats
other than the master or chief engineer . Presented with the contracts and Ingram
memorandum to the boats they acknowledged that masters , pilots, and mates, both,
first and second , were referred to by Ingram as the deck officers on board the boats.
In this connection , it was further conceded by the witnesses that Ingram does not
distinguish between its officers as to their authority because they are or are not
licensed by the Coast Guard . With these conditions established , the witnesses were
shown the significant contractual clauses which identically provided that-
nothing herein contained shall be construed to limit the authority of the Master
or other licensed officers of the boat operated by the Company in the dis-
charge of their lawful duties , and the Company and the Union agree that the
authority and legal responsibility of the Master and of the licensed officers
are fully recognized and their orders shall be obeyed.
Acknowledging that Ingram lived up to its contractual obligations , and conceding
the precedence of contract clauses over all other considerations in Ingram 's relations
with its boat personnel , the witnesses finally agreed that in addition to the masters,
the pilots and mates could issue orders to nonofficer personnel which had to be
obeyed.
1194 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
When the Ingram master is relieved by the pilot at the conclusion of his watch he
generally retires to his quarters. He may leave instructions for the pilot's information
such as to pick up or drop barges from the tow at various locations. He does not,
however, leave detailed instructions as to how these or any other operations pertaining
to the navigation of the boat and tow are to be performed. Because of the recog-
nized experience of and confidence in the pilots there is no need for such instructions
from the master. Having assumed his watch, the pilot exercises the same respon-
sibility as the master for the navigation and safe conduct of the boat, tow, and
personnel. In the performance of his duties it is sometimes necessary that he obtain
the assistance of the mate or deckhands on his watch. This occurs while the boat
and tow are en route, as for example when in inclement weather or fog with poor
visibility the pilot may require a man to go to the head of the tow to look out for
navigational hazards and to signal their presence to him so that he can initiate pro-
cedures to avoid them. In the course of docking or locking operations, as previously
described, the pilot may station the mate and deckhands at posts where in his judg-
ment, considering the prevailing circumstances of current, wind, location of dock, or
length of tow, they would be in the most favorable position to help him in the per-
formance of his functions. If prevailing conditions suddenly change, as wind and
current sometimes do, the pilot in his judgment may require the mate and deckhands
to shift positions and to vary the procedures he had earlier indicated.
Although Cioll insisted that Ingram holds the pilot responsible during his watch
for the safe and careful navigation and conduct of his boat and tow, he was reluctant
to concede that the pilot's directions in the course of the foregoing procedure were
orders demanding obedience from the mates and deckhands, but sought to give the
impression that the pilots merely voiced personal decisions or advice to the deck
crew who had the real responsibility for tying up to a dock. Curiously, Cioll gave
an account of a docking operation with a master in charge in which the master's com-
munications to the mate or deckhands assisting him were without hesitation referred
to by him as orders which the mate and deckhands obeyed Cioll's unwillingness to
regard the pilot's communications, like the master's, as orders appears as a partisan
gesture Notwithstanding his knowledge of the existence of the above-quoted clauses
in the Locals 3 ano 28 contracts, Bridges consistently denied that anyone but a
master had authority on an Ingram boat to issue an order.
In describing the duties and authority of Ingram mates, Hutcherson emphasized
their participation with deckhands in the performance of manual work on the boats.
This approach was consistent with Cioll's characterization of mates as "glorified
deckhands" in whom Ingram had not reposed any authority to issue orders compelling
obedience from others. Hutcherson testified that the mate is responsible for main-
taining the deck department of the boat. This includes the cleanliness of the boat,
the condition of the paint, the working order of the motor launch and other mechani-
cal deck equipment, and the care of safety equipment. The manual labor involved
in these operations performed by the mate with deckhands involves chipping paint
and painting, scrubbing decks. cleaning windows, and repairing and maintaining the
launch and mechanical equipment. Hutcherson related that while the mate carries
out his responsibilities under the master's direction. it is nevertheless up to the mate to
get the various jobs done and for this purpose they issue orders to the deckhands
which they, as required by the contracts, would have to obey.
The General Counsel and counsel for Ingram presented testimony which they
believe establishes that certain Ingram mates are merely employees because they
perform their duties by themselves with no deckhands or other employee present
over whom they could exercise authority. This testimony relates to the times when
the crew of the Alice Ingram included a first mate and second mate and only one
deckhand The contention is that the second mate stands his watch by himself on
the Alice Ingram and that he cannot be regarded as a supervisor in this circumstance.
Two persons testified that they had been second mates on the Alice Ingram. One
of these. Irvin A. Taylor. had been a deckhand for Ingram before his promotion to
second mate in September 1957. As a deckhand he had belonged to Local 3. When
he became a second mate his affiliation was changed to Local 28 Taylor defaulted
in his payment of dues to Local 28 and it appears that he ceased to be a member
about April 1958 or at some time before the commission of Local 28's alleged
unlawful conduct in this case. Taylor testified that after he became a second mate
he served on other Ingram boats besides the Alice Ingram. The other witness was
Mack Brewer who was also promoted by Ingram from deckhand to second mate
As a deckhand he had belonged to Local 3. When he became a second mate in 1957
he chanced his membership to Local 28 He worked first as a second mate on the
Arthur I Dver. He claimed that on this vessel he directed the deckhands He
believed that he spent about 4 months in 1957 on the Dyer and the rest of the year
on the Alice Ingram. He also was on the Alice Ingram the first 6 or 7 months of
LOCAL 28, INT'L ORGANIZATION OF MASTERS, ETC. 1195
1958. Although he claimed at first never to have worked with a deckhand on his
watch on the Alice Ingram, Brewer later conceded the possibility that he may have
worked on this boat wtih two deckhands at well as two tankermen. He remembered
that there were tunes when the Alice Ingram carried four deckhands or tankermen
and it was necessary for them to rotate their sleeping time in the same beds. Cioll
testified that Ingram rotated its mates on the Alice Ingram so that the same mates did
not serve on this boat during the entire years of June 1957-58.
The General Counsel and counsel for Ingram presented other evidence to show
that there were times on Ingram boats when the deck crew consisted of two, three,
or even four mates all performing duties as deckhands or tankermen. They argue
that because on such occasions these mates worked as employees while retaining their
Local 28 membership, this necessitates a finding that Local 28 included employees
in its membership and is therefore a labor organization. Cioll testified that there
were 12 to 18 situations during the 11/z years before 1958 when a mate was assigned
to the job of deckhand. These were emergency situations and involved only a
negligible proportion of the total yearly working time of any of the mates who were
given a deckhand assignment. Generally, different mates received these assignments
and only some were involved more than once. From other evidence in the record
it is clear that those mates who occasionally were assigned to deckhand duties were
actually performing as deckhands at these times, taking orders from, and respond-
ing to the directions of, the master, pilot, and mates on their boats. Ingram at such
times kept them on the payroll as mates so that they received the salary of this
classification.
The Respondents offered testimony by several witnesses who had worked on Ingram
boats in various classifications. James W. Coats had worked for Ingram from July
1952 until July 1958 as a master and pilot. His last employment had been as
master of the Hortense B. Ingram. He had worked in practically every classification
from deckhand to master on the river boats since 1935. As evidence of Ingram's
high regard for him he revealed that Vice President Bridges twice had offered him
the post of port captain before Cioll was chosen and that each time out of preference
for his job as master he turned down the offer. He is a member and trustee of
Local 28.
Coats testified that there was a definite chain of command on the Hortense B.
Ingram. The master is first in command and followed in order by the pilot, first
mate, and second mate. When the master turns over his watch to a pilot the latter
is in complete charge of the boat and may give any orders he sees fit to the mate or
deckhands on watch with him. These are not just instructions being passed along
from the master, but are original orders. In maneuvering the boat the pilot may
tell the mate what he wants done and how it is to be done, as for example in tying
off a tow, passing through a lock, or in coming to or leaving a dock The pilot
may and usually does issue orders to deckhands for the safety of the boat and its
navigation including the handling of the barges, checking running lights, putting
carbon in the lights, or concerning anything which may arise. The pilot, Captain
Coats related, might have to communicate "a thousand and one things" to the mate
and deckhands during his watch. The boat might run aground, weather conditions
could force the pilot to order it to be tied up, and numerous other emergencies could
arise. In these situations the pilot would ordinarily communicate with the mate to
indicate what he wanted accomplished. The mate would then relay instructions to
the deckhands.
What procedures the pilot would follow in going through a lock would depend
on the variable factors governing the situation such as weather, high water, low
water, the condition of the dam, how much water "was running," how much water
was being held back, how many gates had to be opened, how many "bear traps" had
to be opened, how many "wickets" were up or down, whether the barges were loaded
or empty, whether the tow was small or large, and the direction and velocity of the
wind The pilot has to weigh all these factors in making a judgment as to how to
proceed This is a command responsibility. Having made up his mind he explains
his plan to the mate and this is done before arrival at the lock However, the situa-
tion could change in seconds and the pilot would then have to convey revised orders
to the mate or the deckhand nearest him. This is an ordinary experience according
to Coats. The pilot's plan having been received by the mate, the latter proceeds to
carry it out by stationing the deckhands at various places and giving them the
required orders.
Docking the boat and tow involves the pilot in procedures comparable to those
described by Coats in passing through locks and also entails the giving of direct
orders by the pilot to the mate and deckhands in carrying out these procedures
According to Coats, a mate, first or second, is responsible for the care of the
deck. His job is to keep the boat clean and in a safe and navigable condition. For
1196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
this purpose he requires the deckhands to perform such duties as keeping up the rig-
ging including making lines and splicing wire . He is also in charge of the deck-
hands while making or breaking tow, going through locks, or in the performance of
any deck work , and has authority to issue any orders or directions to them incident
to the performance of their duties.
Coats was emphatic in his assertion that a master is empowered to discharge a
deckhand and that in fact he had done so . In the exercise of that authority he
would as master discharge a deckhand pursuant to the pilot's request for refusing
to obey his order sooner than if the deckhand had disobeyed his personal order.
He flatly declared that a deckhand would also be discharged for failure to obey the
order of either the first or second mate.
Mark E. Lucas had worked for Ingram for 4 years until October 1957 as a
master and pilot. His last assignment had been as master of the Arthur J. Dyer.
He also had a long history of service on river boats as a pilot and master for
various shipping companies dating from 1936.
Lucas testified that an Ingram pilot while on watch may and does give orders to
mates and deckhands just as the boat's master does on his watch . The mate directs
the deckhands on watch with him and they are required to comply. Lucas claimed
authority for the Ingram pilots and mates to discipline the deckhands working
under them . He did not explain the form or manner of applying such discipline,
except to indicate that he as master would severely reprimand deckhands for in-
subordination and that it was up to the master to discharge the deckhand if this
were the pilot's recommendation . He declared that masters are guided by the
principle of the river "to back up your officers."
Charles D. Callis, a former member of Local 3, had worked for Ingram from
October 1957 to July 1958 as a deckhand on the Hortense B. Ingram, the Arthur J.
Dyer, and the E. B. Ingram. He testified that he took orders on these boats without
'distinction from the masters, pilots, and mates, both first and second, and that he
understood he was to carry out these orders to the best of his ability Refusal to do
so would have meant his discharge . The person whom he regarded as his immediate
"boss" was the mate with whom he was on watch. He received orders from the pilot
to tighten the tow, change carbon in the lights , what to do with certain lines during
locking, to throw out bumpers, to go to the head of the tow in inclement weather,
or to wipe the windshield of the pilothouse. He never refused to obey these orders
for he knew that he would otherwise be discharged. Mates would tell him what to
do during lockings unless they were satisfied he knew without being told what was
expected of him. However, if there were something out of the ordinary during a
particular operation the mate would tell the deckhands just what he wanted them to
do before he went to the head of the tow. He would be told by the mate during
locking or barge-spotting operations from which position the mate wanted him to
work. He also took orders from the mates to paint and "soog" the boat . The latter
duty involved washing down the boat inside and out.
Richard V. Schickling had worked as a deckhand for Ingram for about 6 months
in 1958 on the Hortense B. Ingram. While on the forward watch he had taken
orders from the master and the first mate. On the after watch he took orders from
the pilot and the second mate. He received orders from the mate to soog the boat,
or where to tie off a barge, make a coupling , or paint. The mate instructed him in
splicing a line and cable and how to make up a tow. During locking procedures he
took orders directly from the master such as taking up slack in a line, or to put a
line on one timberhead rather than another. He was never on watch with the pilot
during lockings. When he reported to the Hortense B. Ingram as a green hand he
was told by the master what his duties would be. He was also told that if directed
by the mates to do something he should "listen" to them. He was instructed in his
duties by the mates. Other deckhands also showed him how to do various things.
Robert Wall had been a deckhand for Ingram for 21/2 years. He had last worked
on the E. B. Ingram. His employment for Ingram ended with the start of the
Local 3 strike Wall had been a member of Local 3 and had been on its contract
negotiating committee. He testified that as a deckhand he had taken orders from
the master, pilot, and first and second mates. He had been ordered by the mates to
paint, clean the head, make locks and tows, clean the searchlights, put carbon in the
lights, handle lines , and to perform other like duties. During rain or fog or while
the boat and tow were going under a bridge the pilot had ordered him to the head
of the tow for observations. It was his opinion that refusal to carry out any of
these orders would have resulted in his discharge
LOCAL 28, INT'L ORGANIZATION OF MASTERS, ETC. 1197
Practices Aboard the Boats of Other Employers
Ostensibly to prove that pilots and mates who belonged to Local 28 and who were
employed on the boats of employers other than Ingram were not supervisors, the
General Counsel presented testimony by two masters for such other employers.
The Respondents countered with the testimony of several witnesses.
Tommy L. Drury, a Local 28 member testifying for the General Counsel, is
employed by the Rose Barge Line as a master on a towboat. He has worked for
this employer for 5 years as a deckhand, mate, steersman , and pilot, and for 11h
years before testifying as a master . The boats on which he had worked sailed the
Mississippi and tributary rivers. He testified that officer personnel on Mississippi
River boats include the master, pilot, mate, and chief engineer . As on Ingram boats,
the Rose boats also have nonofficer deck personnel, and the work on the boats
is performed by groups which relieve one another on their respective 6-hour
watches. As master of his boat Drury is in complete charge at all times that he is
on board. He is relieved by the pilot who replaces him at the bridge, steers the
boat, takes orders from the Rose home office, presumably by radio, and "supervises
the men" as to "how he wants to do the work as far as dropping barges, picking up
barges." While on watch the pilot is responsible for the safe navigation of the boat
and the safety of the crew, and he must carry out orders received from the home
office or from his master. Drury may leave written instructions for the pilot when
he is relieved with respect to picking up or dropping off barges, but he does not tell
the pilot how to perform these operations. This is a matter of individual judgment
and he would not require his pilot to use his methods and procedures. Besides,
there are variable factors which the pilot would have to consider when he encountered
them such as the way the river is running, the current, and wind. He does not know
what the pilot might tell the deckhands during a given operation. He does have
authority, however, to tell him how he wants them to perform their duties, as, for
example, when barges are to be picked up at a dock.
In performing such operations as tying up at a dock or picking up barges when he
is on watch, Drury does not always give the same instructions to the crew which
is to carry them out. Nor does the pilot in these circumstances. Instructions must
vary and do depending upon such factors as the length of the tow, the location of
the dock, the presence of eddies, the existence of navigational hazards, and the
condition of the weather. What instructions are to be given by the master or pilot
depends upon individual judgment. In picking up or dropping off barges the pilot
calls the deckhands to the pilothouse and tells them how he wants a particular job
done. He usually selects those deckhands with greater skill and experience for
particular duties. If a mate is also on watch the pilot will give the instructions to
him.
As master, Drury's orders to the crew must be obeyed. This is equally true of
the pilot's orders to the crew. When the mate is on watch the master's or pilot's
orders are transmitted through him to the crew. The mate has general supervision
over all the deckhands and is described by Drury as the "overseer of the deckhands."
He sees that the deckhands properly perform their functions. When barges are being
delivered to or being picked up from a dock somebody must watch the deckhands to
make sure they are properly performing their functions. If the mate is on duty he
is the one who stands over them. Otherwise this is the pilot's responsibility. On
Drury's boat there is only a first mate and no relief or second mate. Consequently,
although the mate is on 24-hour call, there are times when he is not on duty. When
the boat or barges are tied up to a dock the master or pilot on watch decides which
lines go over first or what kind of a line or wire should be used, and how much
slack to give. Improper performance of this operation could result in the boat or
barges breaking loose and possibly sinking or tearing up the dock.
Drury has not designated an order of command on his boat. He conceded, how-
ever, that in carrying out an operation the pilot may insist that the mate and deck-
hands do things his way, whether the mate believed it should be done some other
way. He stated that circumstances could arise while he was asleep when the pilot
might send for him, particularly in emergencies. This, however, is a matter for the
pilot to decide. The pilot is not authorized to hire or discharge a deckhand. Drury
asserted that he would give great weight to his pilot's recommendation, but that
before taking any action he would discuss the matter with the mate who in Drury's
view was better acquainted with the deckhands. His personal investigation to deter-
mine the facts is in any event required in his view because of the governing labor
contract provisions. Deckhands normally take their complaints about personal
1198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
treatment and working conditions to the mate. If he is not on watch they could if
they desired go to the pilot. If the deckhand's complaint concerned treatment by
the mate, the deckhand would likely, if the master were not on watch, go to the pilot.
Code W. Grant, a Local 28 member, also testified as a witness for the General
Counsel. Grant works as a master for a company in the towboat business on the
rivers. He has worked on the rivers since 1930 as a deckhand, a mate, pilot, and
master. Work on his boat, like the others, is performed during 6-hour watches. He
is relieved by the pilot who also is a Local 28 member. Grant testified that when
the pilot is at the wheel "the boat is in his hands." By this he means that the pilot
is responsible for the navigation and safety of the boat. In connection with such
operations as tying barges on or off, the pilot does just what the master would do.
The actual physical operations incident thereto are performed by the deckhands In
his direct testimony Grant took the position that the pilot does little else on the boat
but steer pursuant to the instructions given in advance by the master; that in the
course of such operations as tying barges on and off, the mate together with the pilot,
but still following the master's original order, would decide how to put the barges in
the tow. During these procedures only the mate is authorized to tell the deckhands
what to do. If the pilot shouts a direction to a deckhand even to catch a line he is
overstepping his authority. Grant's testimony on cross-examination was substantially
different. He conceded that the pilot's responsibility for bringing the boat and tow
in safely is the same as the master's, and that this is not the mate's responsibility
The pilot, just as the master, in coming alongside a dock shouts orders to the crew
concerning the specific handling of lines. The master may tell the pilot who relieves
him about the existence of navigational hazards, but leaves their avoidance to the
pilot. The pilot, he admitted, has authority to call on the mate and deckhands to
perform specific operations, and if the pilot is not satisfied with their performance,
as for example with the manner in which the tow has been lined up and secured, he
is authorized to tell the mate to make changes. Grant acknowledged that pilots and
mates, like masters, are officers who by virtue of such status are empowered to give
orders to crew members. The master or pilot may give orders from the wheelhouse
to the mate or crew members to accomplish what is needed to be done at a given
moment. Such orders from the master or pilot to others are necessary for the safety
of the boat.
Lee C. Brazie, a witness for the Respondents, is a member and trustee of Local 28
He is a master and pilot for the Mississippi Valley Barge Line Company and sails
the Mississippi and tributary rivers. His experience on the rivers dates from 1930
having served since then as pilot and master for several companies He testified
that the master of his boat is in general charge and may issue orders to all personnel
The pilot is responsible for navigating the boat on his watch and has authority to and
does issue direct orders to the mate or any of the deck crew on watch with him. The
mate has general charge of the deckhands and when he is near the pilot the latter
will tell him what he wants accomplished by the deckhands. The mate, however,
may be at the head of the tow or at some other point too far from the pilot for
communication between them. In this circumstance the pilot issues his orders
directly to the deckhands near him. Both first and second mates, who stand opposite
watches, are over the deckhands and may issue orders to them. Their orders must
be obeyed. A second mate could, if he saw fit, discharge a deckhand for refusal to
obey his order. The pilot, however, does not have authority to discharge or even
warn a deckhand that he will be discharged for improper performance of duty The
pilot is supposed to take up with the master his criticisms of deckhands Brazie
asserted, however, that he has never on any boat observed the refusal of a mate
or deckhand to take an order from a pilot, and that if such refusal were to occur
on his boat he would discharge the offending mate or deckhand. While mates have
the responsibility for the performances of tasks on the boat involving manual duties,
such as scraping paint, painting, or cleaning the galley, they are not themselves
obligated to perform these duties. They occasionally join the deckhands in this work.
Jess D. Marks, a Local 28 member who testified for the Respondents, impressed
me as the most knowledgeable witness for either side. His testimony merits complete
reliance. For the past 20 years Marks has been a master for Federal Barge Lines,
one of the larger companies in the towboat business on the Mississippi and other
inland rivers. Before then he had worked for several other companies as a pilot,
mate, and deckhand.
According to Marks, the master has supreme authority on his boat over all its
operations. At the conclusion of his 6-hour watch the master is relieved by the pilot
who during his watch carries out the master's instructions pertaining to such activities
as picking up barges and placing them in the tow. In the performance of these
operations the pilot may issue appropriate orders to the mate or deckhands on duty.
He may also order them to do whatever is necessary for the navigation of the boat.
LOCAL 28, INT'L ORGANIZATION OF MASTERS, ETC. 1199
He might order them to tighten the tow, put up the "jack stack," check the running
lights, put carbon in the lights, bring him coffee, or do whatever comes to mind.
During docking or locking operations the pilot is compelled to give various orders.
He might in a single operation tell the mate to catch a line, to check a barge in, to
throw or release a line. He may order a deckhand to perform the same functions,
or to put out a bumper to prevent the boat from damaging a lock wall, to knock off
"ratchets" or to take other actions to protect a barge from damage Marks main-
tained that he has never seen a locking or docking operation in which it was not
necessary for the pilot or master to issue some orders. This is so because of the
variable factors which affect the execution of a particular operation, so that despite
attempts to anticipate conditions, and this may be done with reasonable success, in
the end the person in charge of the operation, whether it is the master or the pilot,
must always make an individual judgment as to how to proceed and accordingly
shouts his orders to the mate or deckhands. There are so many elements involved
in these operations that it is beyond a man's ability to plan them with absolute finality.
Factors which complicate docking and locking operations are the weight of the tow,
the velocity of wind and current, the direction of the wind, and turbulence. Then,
too, these factors may react against each other so that the wind may be one way
and the current another with variations at different points which will carry the boat
and tow in varying directions. This necessitates the issuance of numerous orders to
catch or release lines, or to turn the tow loose to prevent serious damage. While
the pilot is "screaming" to the mate or deckhands, the mate is also "screaming" orders
to the deckhands. Ordinarily, the master or pilot in preparation for a locking or
docking procedure will rough out a plan to the mate who will then station deck-
hands at certain places. However, as the operation progresses, the deckhands will be
moved about. They are not given detailed directions for the particular operation
before it begins because of the ever-changing conditions which enfold as the opera-
tion proceeds. They receive their directions as the operation continues. This
apparently accounts for the shouting and screaming by the master, pilot, and mate
during lockings and dockings.
While sailing the master or pilot will during their respective watches issue orders
to deckhands for maintenance of the boat such as cleaning or painting. In bad
weather they will send a deckhand to the head of the tow. They may require a
deckhand to check the tow and to take care of problems on the tow. If the mate
were handy these orders would be directed to him and he in turn would direct their
performance by the deckhands. If, however, the mate were not about the orders
would be issued directly to a deckhand.
Marks testified without reservation that the pilot's orders, like the master's, must
"absolutely" be performed by those receiving them. A mate's orders to a deckhand
likewise require obedience. A disobedient deckhand who has been referred by the
mate to the master for failing to carry out his order wiil be discharged. Marks has
himself, as master, discharged deckhands in these circumstances.
Marks described the mate as foreman over the deck department. In general
he directs the deckhands in the maintenance of the boat and in making up the tow.
He will tell them what and when to do various things such as cleaning or scraping
paint He will give them such orders during dockings and lockings as may be re-
quired by the situation. While the first mate gives orders to the second mate with
respect to performance by the deckhands, the second mate may originate such
orders as he may feel necessary for the accomplishment of work by the deck-
hands. So far as the latter are concerned, they must be equally obedient to first
and second mates.
Marks related that there is "quite a distinction" between officer and nonofficer
personnel aboard a boat. Officers in the deck crew include the master, pilot, first
and second mates. The essential difference between officers and those who are
not in that category is that the former have the right to give orders which must
be obeyed whereas the latter do not have such right.
Charles Burdick is a licensed first mate employed by the Sinclair Refining Company
for whom he has worked for about 5 years as first and second mate. He has
also worked on the rivers for another company. His total experience on river-
boats covers about 6 years. Testifying for the Respondents he related that after
the master or pilot has determined that certain jobs are to be done the mate picks
the deckhand to do the necessary work and oversees the performance of the work
to make sure it is properly accomplished The jobs consist of sooging, scrubbing,
and other sanitation details, painting, and making up tows, caring for deck equip-
ment by oiling winches and ratchets , maintaining searchlights , and taking on stores
and supplies . The mate instructs deckhands in splicing cable and lines, teaches them
the differences between various lines , and shows them the placement and setting of
the several lights on the boat. These functions are the same for both first and
1200 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
second mates whether licensed or unlicensed. He conceded that a mate will together
with a deckhand handle lines and uncouple barges, but maintained that there are
times when only the deckhands under him do these things. He has himself never
put out running lights nor has he ever seen this done by a mate. He has as a
mate done some painting, but this was not required of him. He has painted a sign
or something else he chose to paint because he felt he could do it better than a deck-
hand. He could not recall ever scrubbing a deck or chipping paint as a mate.
Although the master and next to him the pilot have authority to issue orders to
deckhands in any circumstance, usually they do so when the mate is not available
to receive their order. This is particularly true in locking operations when the
mate is at the head of the tow and distant from the deckhands, whereas the deck-
hands on the stern are nearer the pilot. In this situation it is more convenient
for the pilot to shout his order directly to a deckhand.
Burdick testified that a deckhand will be discharged for refusing to obey the
order of a mate or pilot. If a deckhand refused to obey his order he would
take him to the master whether he was on watch or not. He has himself never
taken a disobedient deckhand to the master, but has seen other mates do this and
knows that the deckhands were discharged for their disobedience. He has never
witnessed the refusal of a deckhand to obey the order of a pilot.
Archie Thomas Hayden is a Local 3 trustee who testified for the Respondents.
Hayden's experience on the riverboats consists of about 5 years' employment prin-
cipally for Commercial Barge Lines and other companies. As a deckhand he
received orders from the master, pilot, first or second mate. He was obligated to
obey the orders of any of them. Failure to do so would have meant discharge.
His duties included coupling and uncoupling barges while making up the tow or
breaking it down during locking and docking procedures, tightening couplings,
checking running lights, cleaning up the boat, painting, and scraping. Mates do
not clean floors or the galley. Mates could, if they desired, paint or scrape paint, or
tighten lines on the tow. They were not, however, themselves required to do these
things. He regarded the orders of a pilot as effective as the master's orders because
they were both "officers."
En routing
Several of the Respondents' witnesses employed by Ingram on its boats testified
concerning practice referred to as "en routing." As the boats sail along the rivers
they may come to a city or other locality near the home of the master, pilot, or
one of the mates. In this circumstance the particular officer may leave the boat to
visit his home for a period of several hours. In the process the officer may be
absent from the boat for variable periods ranging from 8 to 48 hours. In the absence
of the master, the pilot will stand a continuous watch until he returns. The master,
in the pilot's absence, will do the same. The first and second mates similarly spell
each other. When an officer thus absents himself from his boat he leaves infor-
mation with the remaining officers as to where he can be reached if needed. Thus,
the master may, except while traveling to and from his boat, be reached by
telephone in an emergency. Several other witnesses working for other above-
mentioned companies testified concerning the existence of this practice. While
the General Counsel argues that the en routing practice at Ingram should not be
significantly regarded in this case, in part because it was not authorized by Ingram,
the record shows otherwise. The aforementioned Ingram master, Coats, testified
without contradiction that he had discussed the practice with Vice President Bridges
and that he, Coats, would not have engaged in it without Bridges' consent. More-
over, according to Coats, Ingram's port captain, the aforementioned Cioll, himself
engaged in the practice when he had been a master. Coats further testified that
when the master is off the boat the pilot takes command, and that when the first
mate is en routing the second mate exercise his authority.
Steersmen
As noted, the General Counsel and counsel for Ingram had maintained through-
out the hearing that Local 28 represented or sought to represent persons designated
as steersmen who they say are employees, and that Local 28 for this reason should
be deemed a labor organization. The Respondents deny that the record proves that
Local 28 represented or sought to represent such persons, but that in any event the
General Counsel has not proved that they are employees. Furthermore, the
Respondents deny that it has been proved that steersmen, as such, are eligible for or
are admitted to membership in Local 28, and finally they deny that it has been
proved that there were even such persons employed on any of the riverboats during
times relevant to this case.
LOCAL 28, INT'L ORGANIZATION OF MASTERS, ETC. 1201
The Ingram contract with Local 28 which ran from March 16, 1956, to March
16, 1957, provided:
One Steersman will be carried on the m/v Broadfoot, one on the m/v Dyer,
and one on the m/v Hortense Ingram. They must have the following qualifica-
tions:
(a) One year's service with the Company.
(b) 100 miles of Pilot's License.
(c) Furnish the Company with three letters of recommendations from
Master-Pilot or Pilots working for the Company.
If at the end of six (6) months as Steersman the man cannot present the
Company with letters from three (3) Master-Pilot or Pilots under whom
he has worked stating that he is qualified to stand a watch, he will be returned
to his former position.
The wage rate for the Steersman shall be the same as that he was receiving
for the position he was holding at the time he was selected to serve as Steersman.
During the negotiations for a new contract in early 1957 whatever agreements
were reached between Ingram and Local 28 did not include provisions for steersmen
or for a proposed pension plan. Negotiations concerning these subjects were to
continue after the other agreements had been reached. No agreement as to these
subjects was ever reached. On February 4, 1958, Local 28 had sent the following
proposals concerning steersmen to Ingram with a covering letter attached signed by
Business Agent Adams stating that the plan had been approved "by the men of your
company":
Plan for Steersmen
1. Shall be according to Seniority with only Senior Mates acting.
2. After the Mate gets the work lined up for the day, -then he shall steer
the balance of his watch when in river the Master deems safe for him to work
in. This schedule shall be put into effect for a period of two years.
3. After two years of steering while employed as Mate, he must obtain an
original Pilot's license of at least 100 miles.
4. He must be able to draw a chart of those sections of the river over which
he has been working for the past two years.
5. After complying with the above provisions, he shall be assigned as Steers-
man for a period of six months.
6. During the period he is assigned as Steersman, he shall be permitted to do
some handling to familiarize himself with this end of piloting.
7. Steersmen shall receive time off at the rate of one half day for each day
worked.
8. If after acting as Steersmen for one year and he does not complete his
license, he shall be reassigned as Mate on one of the smaller vessels.
According to Gilbert R. Schickling, an Ingram master and member of the Local 28,
negotiating committee in 1957, the parties had reached an agreement on a complete
contract which did not contemplate inclusion of provisions for the steersmen or
pension plans. These were matters which were left open for future discussion and
for eventual inclusion by Ingram in its book of instructions to boat personnel.
There is no evidence to show that persons called steersmen worked on the boats
of other employers sailing on the inland rivers during times relevant to this case.
Such evidence as does appear indicates that during such times persons bearing this
designation did not perform duties on any boats on the inland rivers. No witness
in this proceeding, whether for the General Counsel or the Respondents, in his ful-
some description of the complements on board the towboats of the several shipping
companies for whom they worked or with which they had familiarity related that
there was a person called a steersman on any of these boats. One witness, the
aforementioned Jess Marks, testified that his employer, Federal Barge Lines, had
not employed a steersman on its boats "for some time." Another, the afore-
mentioned master of a Rose Barge Line towboat, Tommy L. Drury, testified that
he had once been a steersman, but that he was not then a member of Local 28. He
added that the Rose contract with Local 28 contains no provision for steersmen.
Qualifications for Membership in Local 28
Article II, section 1 of the Local 28 bylaws, revised 1955, provides:
This organization shall be composed of personnel acting in an officer capacity
aboard sail or power-propelled vessels on ocean, coast wise, Great Lakes and
1202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
inland waters, who have been regularly admitted to membership and are in
good standing.
The aforementioned Jess D. Marks had been a member of the Local 28 committee
which in 1955 had been created to revise the organization's bylaws pertaining to
qualification for membership. Donald L. Mullady, the president of Local 28, had
held this office in 1955 when the foregoing committee submitted its report which
resulted in revision of the bylaws. They testified that up to 1955 admission to
membership had been conditioned upon possession of a license by the applicant.
Because of the substitution of diesel-powered boats for steam-powered boats fewer
masters, mates, and pilots were acquiring licenses and were thus barred by the
then-existing qualification from membership. The changes in the bylaws were in-
corporated to permit their eligibility for membership. The term "officer capacity"
was incorporated in the bylaws with the intention that only a person who fulfilled
the prerequisites of officership in his duties could qualify for membership. An
officer, according to the meaning of the bylaws, as explained by Marks, means a
person who on his boat has authority to give orders to the crew which must be
obeyed. Mullady testified that "officer" within the meaning of the bylaws means a
person who can issue orders with expectation of obedience from the crew and who
may recommend discipline or discharge of disobedient crew members with the fur-
ther expectation that his employer will follow his recommendation.
Analysis and Conclusion Concerning the Alleged Status of Local 28
as a Labor Organization
Determination of whether Local 28 is a labor organization or an organization of
some other kind depends upon the status of the masters, mates, and pilots whom it
admits to membership and represents in collective bargaining 3 If any such per-
sons are employees, Local 28 must be regarded as an organization in which em-
ployees participate and, hence, a labor organization within the meaning of Section
2(5) of the Act. National Maritime Union, AFL-CIO (Standaid Oil Company),
121 NLRB 208; enfd. 274 F. 2d 167 (C.A 2). Conversely, if the persons it admits
to membership and represents are supervisors, Local 28 is not a labor organization
within the meaning of Section 2(5).
The requirement in the Local 28 bylaws that membership is limited to persons
who are "acting in an officer capacity" and the informed explanation of Mullady
and Marks that the quoted phrase refers to authority of applicants for membership
to issue orders to subordinates which must be obeyed, do not by themselves con-
clusively settle the question of Local 28's status. While the Local 28 requirement
for membership is a factor supporting the contention that all the masters, mates,
and pilots who are its members are supervisors, that determination cannot be made
without reference to the facts pertaining to their actual duties, responsibilities, and
authority aboard the boats on which they work. I have thoroughly and meticulously
considered all testimony and evidence bearing on the performance of duty, the
empowerment and execution of authority of the masters, mates, and pilots belong-
ing to or represented by Local 28 and find that the record overwhelmingly establishes
that they are supervisors and not employees
Section 2 (11) of the Act defines a supervisor as a person who in the interest of
his employer has authority to take various actions affecting the status or perform-
ance of work of the employer's employees. The law is well established that the
several forms of authority mentioned in Section 2(11) are listed disjunctively and
that investment of a person with any one of them is sufficient to constitute him a
supervisor within the Act's meaning. N.L.R.B. v. Edward G. Budd Manufacturing
Co., 169 F. 2d 571 (C.A. 6), cert. denied 335 U.S. 908. Among the criteria in-
cluded by Section 2(11) for testing supervisory status is the authority "responsibly
31 need not become involved in the contention at the hearing that Local 28 should be
found a labor organization because it had represented or sought to represent Ingram's
steersmen Assuming this would have been a cogent contention if there had been persons
employed by Ingram as steersmen, and if in fact steersmen were employees, the conten-
tion merits no attention because it has not been proved by the General Counsel, as part
of his burden of proof, that there were such persons employed at relevant times or that
steersmen are employees Furthermore, no authority has been presented to me, and my
own research failed to uncover any authority, for the proposition that an association of
supervisors becomes a labor organization when it negotiates concerning a classification of
employees which has no present existence. On the state of the record I find the conten-
tion with respect to Local 28's attempted representation of steersmen to be wholly without
merit.
LOCAL 28, INT'L ORGANIZATION OF MASTERS, ETC. 1203
to direct employees" provided that such direction is not of a merely routine or
clerical nature, but requires the use of independent judgment. I am satisfied that by
the application of this one test all masters, mates , and pilots on board towboats
sailing the inland waterway must be found supervisors within the statutory definition.
From my analysis of the record I make the following summary pertaining to all
masters, mates, and pilots on the towboats on the inland waterways:
1. Masters, pilots, and mates, both first and second, licensed or unlicensed, are
regarded as officers by the employers for whom they work , and by the deckhands
and all other deck personnel aboard their boats.
2. The term "officer" has a precise meaning to personnel aboard the boats. An
officer is a person with authority to issue orders in the performance of work which
nonofficer deck personnel must obey . The penalty for such disobedience is usually
discharge by the master , and the penalty is imposed whether the offending crew
member has disobeyed the order of the master or of any other officer aboard the
boat.
3. The responsibility of a pilot when he relieves the master is the same as the
master 's with respect to the safety of the boat , tow, and the entire crew. In carry-
ing out this responsibility the pilot is frequently confronted with complex procedures
which involve skillful independent judgment . The pilot 's judgments are compli-
cated by variable changing factors, many of them unforeseeable , which do not per-
mit his duties to be characterized as routine . In the performance of his functions
the pilot must, and does , with authority issue orders to mates and deckhands which
they must unhesitatingly and faithfully execute. Failure by the mates and deck-
hands or other deck employees to respond in this manner to the pilot's orders could
result in serious damage to property and injury to person.
4. Mates have the responsibility for the accomplishment of a variety of tasks
aboard their boats. Some of them are of a routine nature involving unskilled manual
operations . Others, however , particularly during locking and docking operations and
in emergency situations , involve the exercise of independent judgment in the issuance
of orders to deckhands and other deck employees which require prompt and faithful
obedience for the protection of person and property . With respect to the perform-
ance of all their responsibilities mates have authority to order performance of duty
by subordinate deckhands and other deck employees who must obey these orders
or risk discharge for disobedience.
5. The power and authority of pilots and mates to command and obtain obedience
to their orders is constant and may be applied at any time.
In sum, I find that the record insurmountably establishes that masters , pilots,
and mates are individuals who in the interest of their employers have authority
"responsibly to direct" employees within the meaning of the quoted phrase as it
appears in Section 2(11) of the Act and are, therefore , supervisors as defined by that
section. In concluding that they are supervisors I need not go beyond the assigned
reason, and will therefore not dwell upon other possible reasons to support my
conclusion which may be derived from some of the evidence indicating authority
by pilots and mates to discipline employees or effectively to recommend their
discipline.
In the light of the foregoing findings, I reject the contentions of the General
Counsel and counsel for Ingram in their briefs that the orders or directions to em-
ployees from pilots or mates are "routine" or "mechanical ," that they do not
involve the exercise of "independent judgment," and that pilots and mates do not,
therefore , responsibly direct employees in the performance of their duties. Nor can
I perceive any basis for comparing the functions of mates and pilots, as the General
Counsel would , with the inspectors in the Capital Transit Company decisions, 98
NLRB 141 and 105 NLRB 582, set aside and remanded 221 F. 2d 864 (C.A.D.C.),
in which the Board held that certain inspectors were employees and not supervisors
because they were "concerned primarily with equipment rather than personnel" and
any direction or control of personnel by them was merely "incident thereto." The
most cursory appraisal of the swift on-the -spot judgments of pilots and mates and
the orders given pursuant thereto while maneuvering 1,000-foot tows in the face
of unpredictable winds, currents , and weather conditions reduces to sheer implaus-
ibility any characterization of such judgments and orders as routine . The direct
concern of pilots and mates with the conduct of subordinates to effect a safe and
efficient locking or docking or to prevent a catastrophe in an emergency in which the
boat, tow, and crew aboard are at the peril of the river and the elements may hardly
be compared to the control over the streetcars and buses of the Capital Transit Com-
pany by its inspectors . I further regard as totally inapt the numerous comparisons
in the briefs of the facts in the instant case with those in Board decisions holding
certain repetitive or unskilled manual operations to be routine and not requiring the
641795-63-vol. 136-77
1204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
exercise of independent judgment in the issuance of orders or directions pertaining
to them.
I accord no merit to the argument raised by the General Counsel that the authority
of pilots and mates is only sporadically exercised. The Board's view and that of the
courts does not require a supervisor always to exercise his authority in order to retain
his supervisory status. Although the ascendancy of the pilot to the master's post
while the latter is absent "en route" would, if that alone were the basis for a pilot's
authority, be a mere "sporadic" exercise of authority insufficient to constitute him a
supervisor , the reliance in this case is not upon that , but instead upon his constant
power to command inherent in his status as pilot . The same is also true as to mates.
In denying enforcement of the Board's Order in the Ohio Power Company case, the
Court of Appeals for the Sixth Circuit stated in its decision reported at 176 F. 2d
385, cert. denied 338 U.S. 899, that Section 2(11) "does not require the exercise
of the power (responsibly to direct) for all or any definite part of the employee's
time. It is the existence of the power which determines the classification." In that
case it was the authority of the control operator to requisition and direct the services
of employees in time of emergency which satisfied the court that he met the statutory
test of a supervisor . In so holding the court stated it was immaterial "that an emer-
gency is not always in existence." Because of its pertinence to the facts of the
instant case , I include this additional language from the court's opinion reasoning
that the control operator there in question was a supervisor:
It is undisputed that in the absence of the shift operating engineer the responsi-
bility rests upon the control operator to direct other employees in the handling
of emergencies; that an emergency may require split second action, and that
the control operator exercises this authority not as a matter of routine, but by
the use of independent judgment.
Significantly, the Board has since the Sixth Circuit's reversal of its decision explicitly
endorsed the position declared by the court. See Capital Transit Company, 114
NLRB 617, footnotes 10 and 30. See also the adoption of this position by other
courts of appeals in N.L.R.B. v. Fullerton Publishing Company, 283 F. 2d 545
(C.A. 9), and N.L.R.B. v. Leland-Gifford Company, 200 F. 2d 620, 625 (C.A. 1).
Because pilots and mates are constantly clothed with authority to compel deck
employees to comply with their orders in the exercise of their independent judo
ment, I find them for this reason to be supervisors. Wilson Transit Company, 80
NLRB 1476; Globe Steamship Company, et al., 85 NLRB 475.
I reject the contention that the performance of manual work by mates in carrying
out some of their duties mitigates against a finding that they are supervisors. Passing
upon a similar contention in the Wilson Transit Company case, supra, the Board
stated:
The mere fact , however, that a supervisor spends a large part of his time in
the performance of manual labor does not necessarily affect his status as a
supervisor.
The General Counsel further argues against a finding that pilots and mates are
supervisors because on a boat with only two deckhands on watch, the ratio of
supervision would be only one supervisor to one employee. This is a circumstance
which I have considered but do not in this case consider controlling . It is never by
itself controlling but only a factor to be considered with all others in deciding
whether an alleged supervisor really has the authority ascribed to him.4 The record
shows that pilots and mates in the performance of their duties do in fact have
supervisory authority over deck employees, however few in number such employees
may be. The high ratio of supervisors to deck employees on the boats does not
detract from the existence of that authority.
The General Counsel and counsel for Ingram have placed special emphasis upon
the fact that on the Ingram towboat, Alice Ingram, there appears generally to be
no deckhand on watch with the second mate. In this circumstance the second mate
has no employee under him to supervise. Obviously, a second mate assigned to
this boat during times when this condition prevails is not a supervisor in the per-
formance of his duties . See Graham Transportation Company, 124 NLRB 960.
On the other hand, the record indicates that there are times when there are deck
4 The Ironsides Company, 87 NLRB 1564, footnote 1 , see Ramsey Motor Company, Inc ,
99 NLRB 408, where the Board found a person to be a supervisor where his authority was
over only one employee. In Republic Steel Corporation, 94 NLRB 1294, the Board said
that notwithstanding proof of a high ratio of supervisors to employees "where the evi-
dentiary facts show that supervisory status exists, we will so find "
LOCAL 28, INT'L ORGANIZATION OF MASTERS, ETC. 1205
employees on the boat who are on duty with the second mate and who are super-
vised by him. Moreover, according to the testimony of Port Captain Cioll, Ingram
rotates its mates on the Alice Ingram so that the same mates do not serve continually
on this boat. At the same time it appears that all duty as second mate by Taylor
and Brewer during most of the year preceding the period beginning July 1958 when
the relevant events of this case had their beginning was on the Alice Ingram The
circumstances regarding their status during that period are therefore variable. Dur-
ing times when no deck employees were on watch with them, they were not acting as
supervisors, but when such employees were present, they did act as supervisors.
Exactly how much time was spent in either status is uncertain. To find that Local 28
which admitted these second mates to membership and represented them is because of
these circumstances a labor organization seems on its face to lack propriety, especially
as Local 28's membership during the events in question was about 600. I regard the
participation of Taylor and Brewer, or of any other Ingram second mate with equal
uncertain status, to have had no significant effect on the real character of Local 28
as an association of supervisors. In this respect, I share the reaction of the Court
of Appeals for the Second Circuit in National Marine Engineers Beneficial Associa-
tion, AFL-CIO, et al. v. N.L.R.B. (S & S Towing Co.), 274 F. 2d 167, where the
argument had been made that MEBA was a labor organization because of proof
that it had once filed a petition with the Board for representation of marine engineers
on a certain boat. MEBA's constitution admits marine engineers to membership.
The court declared in response to this proof:
The inference that this shows that non-supervisory engineers participate in
MEBA in a significant manner becomes somewhat less shattering when examina-
tion of the petition discloses that the number of employees in question was two.
Several other arguments were raised in the brief of counsel for Ingram which
require only short answers. It is argued that because in other Board and court
proceedings the International Organization of Masters, Mates and Pilots is found to
be a labor organization, Local 28 should also be held a labor organization. The
brief asserts that Local 28 is without autonomy and merely a subsidiary part of its
parent. In answer I point out that the constitution of Local 28 and all other evi-
dence in this record with respect to the manner in which it performs its business
indicates its autonomy and separation from its parent. The brief says also that dire
consequences would ensue if Local 28 were not found a labor organization and were
able, free from the restraints of the Act, to force "unwholesome and unjust bargains
upon maritime business firms with complete immunity." This is an argument which
is not relevant to any issue before me. I, therefore, comment neither on its premises
or propriety. Finally the brief urges that Local 28 be held a labor organization
because of the Board's tendency to expand its jurisdiction over businesses by liberal-
izing its standards for the assertion of jurisdiction. As to this argument, I reply
only that I do not appreciate its pertinence in this proceeding.
Having found that Local 28 is an association which admits to membership and
represents only supervisors, I conclude that it is not a labor organization within the
meaning of the Act.5 Accordingly, I shall recommend dismissal of all allegations
in the Fourteenth Region complaint against Local 28, and the allegations of the
Thirteenth Region complaint with respect to conduct committed by Local 28 after
termination by Local 3 on August 7, 1958, of its strike against Ingram.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondents, set forth in section III, above, occurring in
connection with the operations of the companies described in section 1, above, have
a close, intimate, and substantial relation to trade, traffic, and commerce among
the several States, and tend to lead to labor disputes burdening and obstructing
commerce and the free flow thereof.
613y motion dated October 13, 1960, counsel for the Respondents requested that I otH-
cially notice the order of U.S. District Judge George IT. Moore of the Eastern Division of
the Eastern Judicial District of Missouri in Case No. 58 C 457(1), Court No 1, entitled
Temaco, Inc . v. International Organization of Masters, Mates, and Pilots, Inc , APL-CIO,
et at. In this order the court had dismissed the plaintiff's complaint on the ground that
Local 28, MMP is not a labor organization within the meaning of the Act. Neither the
General Counsel nor other parties opposed the Respondent's motion. I accordingly take
official notice of the court's order. I have not, however, relied thereon In reaching the
conclusion that Local 28 is not a labor organization, principally because it cannot be
determined from the order what facts governed its issuance by the court.
1206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
V. THE REMEDY
Having found that the Respondents have violated Section 8(b)(1)(A) of the
Act, it will be recommended that they cease and desist therefrom and take certain
affirmative action designed to effectuate the policies of the Act.
On the basis of the above findings of fact and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. Associated Maritime Workers, Local No. 3, International Organization of
Masters, Mates and Pilots, Inc., AFL-CIO, is a labor organization within the mean-
ing of Section 2(5) of the Act.
2. Local 28, International Organization of Masters, Mates and Pilots, Inc., AFL-
CIO, is not a labor organization within the meaning of Section 2(5) of the Act.
3. Ingram Barge Company, the Texas Company, Commercial Barge Line, and
Globe Fuel Products, Inc., are employers within the meaning of Section 2(2) of the
Act, and are engaged in commerce within the meaning of Section 2(6) and (7) of
the Act.
4. The above-mentioned Local No. 3 and Local 28, and their agent, Harry Rutan,
have engaged in acts of restraint and coercion, as hereinabove related, which inter-
fered with the exercise of rights of employees guaranteed by Section 7 of the Act.
The responsibility of Local 28 for these violations is predicated upon the conclusion
that in the commission of the unlawful conduct it acted as the agent of Local No. 3.
5. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
6. Those allegations of the complaint as to which specific findings of violation
have not been made hereinabove have not been sustained.
RECOMMENDATIONS
Upon the basis of the foregoing findings of facts and conclusions of law and upon
the entire record in the case, I recommend that the aforementioned Local No. 3
and Local 28, their officers, representatives, agents (including Harry Rutan), suc-
cessors, and assigns, shall:
1. Cease and desist from restraining and coercing the employees of Ingram
Barge Company by acts of physical violence, including the throwing of stones and
rocks, the shooting of marbles or any other missiles, by threats of violence to and
physical assaults on Ingram supervisors and property whether such acts are com-
mitted in the presence of Ingram's employees or under such circumstances as to
insure they will learn of them, or by like or related conduct restraining or coercing
Ingram's employees in the exercise by them of the right to self-organization, to form,
join, or assist labor organizations, to bargain collectively through representatives of
their own choosing, and to engage in other concerted activity for the purpose of
collective bargaining or other mutual aid or protection and to refrain from any or
all such activities except to the extent that such rights may be affected by an agree-
ment requiring membership in a labor organization as a condition of employment
as authorized in Section 8(a)(3) of the Act.
2. Take the following affirmative action which the Trial Examiner finds will
effectuate the policies of the Act:
(a) Post in conspicuous places in their business offices and all places where
notices to members are customarily posted copies of the notice attached hereto
marked "Appendix." Copies of said notice, to be furnished by the Regional Di-
rector for the Thirteenth Region, shall, after being duly signed by a responsible
official of each Respondent, including the aforesaid Harry Rutan, be posted by the
Respondents immediately upon receipt thereof and maintained for a period of 60
consecutive days thereafter in conspicuous places, including all places where notices
to members are customarily posted. Reasonable steps shall be taken by the Re-
spondents to insure that said notices are not altered, defaced, or covered by any
other material.
(b) Furnish to the Regional Director for the Thirteenth Region signed copies of
the notice marked "Appendix" for posting, Ingram Barge Company willing, for a
period of 60 days on bulletin boards of this employer, where notices to its em-
ployees are customarily posted.
(c) Notify the Regional Director for the Thirteenth Region, in writing, within
20 days from the date of receipt of this Intermediate Report and Recommended
Order, what steps the Respondents have taken to comply herewith.
3. It is recommended that all allegations of the complaint concerning which
specific findings of violation have not been made be dismissed.
OREGON LABOR-MANAGEMENT RELATIONS BOARD 1207
It is further recommended that unless within 20 days from the date of the receipt
of this Intermediate Report and Recommended Order the Respondents shall notify
said Regional Director , in writing , that they will comply with the foregoing recom-
mendations , the National Labor Relations Board issue an order requiring Respond-
ents to take the aforesaid action.
APPENDIX
NOTICE TO ALL MEMBERS OF ASSOCIATED MARITIME WORKERS, LOCAL No. 3,
INTERNATIONAL ORGANIZATION OF MASTERS , MATES AND PILOTS, INC., AFL-
CIO, AND LOCAL 28, INTERNATIONAL ORGANIZATION OF MASTERS , MATES AND
PILOTS, INC., AFL-CIO
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board , and in order to effectuate the policies of the National Labor Re-
lations Act, we hereby give notice that:
WE WILL NOT coerce or restrain the employees of Ingram Barge Company by
acts of physical violence for continuing to work for Ingram Barge Company
because of a strike against it by Local No. 3, by throwing stones and rocks,
shooting marbles or any other missiles , by threats of violence to and physical
assaults on Ingram supervisors and property where such conduct directed
against supervisors and property is committed either in the presence of Ingram's
employees or under such circumstances as to insure they will learn of it.
WE WILL NOT by like or related conduct restrain or coerce the employees of
Ingram Barge Company in the exercise by them of the right to self-organization,
to form , join, or assist labor organizations , to bargain collectively through rep-
resentatives of their own choosing,, and to engage in other concerted activities
for the purpose of collective bargaining or other mutual aid or protection or
to refrain from any or all such activities except to the extent that such right
may be affected by an agreement requiring membership in a labor organization
as a condition of employment as authorized by Section 8(a)(3) of the Act.
ASSOCIATED MARITIME WORKERS, LOCAL No. 3, INTER-
NATIONAL ORGANIZATION OF MASTERS, MATES AND
PILOTS, INC., AFL-CIO; LOCAL 28, INTERNATIONAL
ORGANIZATION OF MASTERS , MATES AND PILOTS, INC.,
AFL-CIO; THEIR AGENT HARRY RuTAN,
Organizations.
Dated------------------- By-------------------------------------------
(Title of Officer)
This notice must remain posted for 60 days from the date hereof, and must not be
altered, defaced, or covered by any other material.
Oregon Labor-Management Relations Board and Charles Lake
Construction Co., a sole proprietorship , owned by Charles
Lake and Eugene Building Trades Council and Carpenters
Local 1273 . Case No. A0-32. April 19, 1962
ADVISORY OPINION
This is a petition filed by the Oregon Labor-Management Relations
Board, herein called State Board, for an advisory opinion in con-
formity with Sections 102.98 and 102.99 of the Board's Rules and
Regulations, Series S. Thereafter, on March 12, 1962, the State Board
filed a supplemental petition setting forth additional information and
attaching thereto letters from the parties' attorneys.
136 NLRB No. 114.