Seafarers' International Union of North America

National Labor Relations Board - Board Decisions

Sep 19, 1952

100 N.L.R.B. 1176 (N.L.R.B. 1952)

1176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Order
IT IS HEREBY ORDERED that the election held on March 13, 1952, among
employees of the Employer be, and it hereby is, vacated and set aside.
[Text of Second Direction of Election omitted from publication in
this volume.]
MEMBER PETERSON took no part in the consideration of the above
Supplemental Decision, Order, and Second Direction of Election.
SEAFARERS ' INTERNATIONAL UNION OF NORTH AMERICA, AFL, AND
INTERNATIONAL BROTHERHOOD OF FIREMEN AND OILERS , LOCAL 249,
AFL and HAMMERMILL PAPER COMPANY. Case No . 6-CC-61.
September 19, 1952
Decision and Order
On February 26, 1952, Trial Examiner David London issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent International Brotherhood of Firemen and Oilers,
Local 249, AFL, herein called Local 249, had engaged in certain unfair
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the copy of the
Intermediate Report attached hereto. Thereafter, the General Coun-
sel' and Local 249 filed exceptions to the Intermediate Report and
briefs.
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in
this case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner, with the following additions :
1. We agree with the Trial Examiner's conclusion that Local 249 vio-
lated Section 8 (b) (4) (A) of the Act by inducing and encouraging
the employees of Hammermill to engage in a concerted work stoppage
for the purpose of forcing or requiring Hammermill to cease doing
business with Hall. As more fully detailed in the Intermediate
Report, this finding of the Trial Examiner is based upon the advice
of Dunlavey, business agent of Local 249, to employee-members of
that labor organization not to cross the picket line. We affirm the
Trial Examiner's ruling that such advice constituted inducement and
encouragement within the meaning of this section of the amended
Act. In addition, the record reveals that Wallace Jones, who in-
100 NLRB No. 192.
SEAFARERS' INTERNATIONAL UNION OF NORTH AMERICA 1177
formed his fellow crane operators on August 15, 1951, that there was
"trouble" on the dock and instructed them to work until it was learned
if the picket line was "bona fide," was at that time a vice president
of Local 249. We therefore find that his conduct, as well as Dun-
lavey's, constituted a violation by Local 249 of Section 8 (b) (4) (A)
of the Act.
The Trial Examiner failed to rule upon the additional allegation
in the complaint that Local 249 engaged in, as well as induced and
encouraged the employees of Hammermill to engage in, a strike for an
object proscribed by Section 8 (b) (4) (A). As the Trial Examiner
found, Dunlavey met with the crane operators at the Hammermill
dock on August 15 and participated in the discussion which resulted in
their common decision not to cross the picket line. We find that the
concerted refusal of the crane operators to cross the picket line, under-
taken with the full knowledge and sanction of Dunlavey, an authorized
representative of Local 249, constituted a strike or concerted refusal by
Local 249 within the meaning of Section 8 (b) (4) (A) and that
Local 249 thereby further violated this section of the amended Act.
2. We find, in agreement with the Trial Examiner, for the reasons
set forth in the Intermediate Report, that the General Counsel failed
to prove that Maurice Dole, regularly employed as business agent
by the Great Lakes District of Respondent Seafarers' International
Union of North America, AFL, was acting on behalf of Respondent
Seafarers' in this dispute. Therefore, we will dismiss the proceeding
against this Respondent.
Order
Upon the entire record in this case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the Respondent International Brotherhood
of Firemen and Oilers, Local 249, AFL, its officers, representatives,
and agents, shall:
1. Cease and desist from : -
(a) Engaging in, and inducing and encouraging the employees
of Hammermill Paper Company of Erie, Pennsylvania, or of any
other employer, to engage in, a strike or concerted refusal in the course
of their employment to handle or work on goods, or to perform any
services, where an object thereof is to require any employer or person
to cease using, selling, handling, transporting, or otherwise dealing
in the products of or to cease doing business with the Hall Corpora-
tion of Montreal, Quebec, or any other employer or person, except
insofar as any such action is permitted under Section 8 (b) (4) of
the Act.
(b) Cease refusing to, and directing, ordering, instructing, advis-
ing or appealing to employees of Hammermill Paper Company of
1178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Erie, Pennsylvania, to refuse to, handle shipments arriving on ves-
sels of the Hall Corporation of Montreal, Quebec.
2. Take the following affirmative action which the Board finds
will effectuate the policies of the Act :
(a) Post at its business office in Erie, Pennsylvania, copies of
the notice attached hereto as an appendix.' Copies of said notice,
to be furnished by the Regional Director for the Sixth Region, shall,
after being duly signed by an official representative of the Respondent
International Brotherhood of Firemen and Oilers, Local 249, AFL,
be posted by that Respondent immediately upon receipt thereof,
and maintained by it for a period of sixty (60) consecutive days
thereafter, in conspicuous places, including all places where notices
to members are customarily posted. Reasonable steps shall be taken-
by that Respondent to insure that said notices are not altered, defaced,
or covered- by any other material.
(b) Notify the Regional Director for the Sixth Region in writ-
ing, within ten (10) days from the date of this Order, what steps
this Respondent has taken to comply therewith.
IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis-
missed as to Respondent Seafarers' International Union of North
America, AFL.
MEMBER PETERSON took no part in the consideration of the above
Decision and Order.
Appendix
NOTICE
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby give notice that :
WE WILL NOT engage in, nor will we induce or encourage the
employees Of HAMMERMILL PAPER COMPANY, of Erie, Pennsyl-
vania, or of any other employer, to engage in, a strike or concerted
refusal in the course of their employment to handle or work on
goods, or to perform any services, where an object thereof is to
require any employer or person to cease using, handling, selling,
transporting, or otherwise dealing in the products of or to cease
doing business with the Hall Corporation of Montreal, Quebec, or
any other employer or person, except insofar as such action is
permitted under Section 8 (b) (4) of the National Labor Rela-
tions Act.
' 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."
SEAFARERS' INTERNATIONAL UNION OF NORTH AMERICA 1179
WE WILL NOT direct, order, instruct, advise, or appeal to em-
ployees of HAMMERMILL PAPER COMPANY of Erie, Pennsylvania,
or any other employer, to refuse to handle shipments arriving on
vessels owned by the Hall Corporation of Montreal, Quebec, or by
any other employer or person.
INTERNATIONAL BROTHERHOOD OF FIREMEN AND OILERS,
LOCAL 249, AFL,
Labor Organization.
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.
Intermediate Report
STATEMENT OF THE CASE
Upon an amended charge filed by Hammermill Paper Company, herein called
Hammermill or the Company, the General Counsel of the National Labor Rela-
tions Board, on October 17, 1951, filed a complaint against Seafarers' Interna-
tional Union of North America, AFL, herein called Respondent Seafarers, and
International Brotherhood of Firemen and Oilers, Local 249, AFL, herein called
Respondent Local, alleging that both Respondents had violated Section 8 (b)
(4) (A) of the National Labor Relations Act, as amended, 61 Stat. 136, herein
called the Act. With respect to the unfair labor practices, the complaint alleged
in substance that since on or about August 13, 1951, and at various times there-
after, Respondents, and each of them, induced and encouraged employees of the
Company to engage in strikes or concerted refusals in the course of their em-
ployment to transport or otherwise handle materials or commodities, an object
thereof being to force or require Hammermill to cease doing business with the
Hall Corporation of Canada who had previously been hired by Hammermill to
transport pulpwood from New Brunswick, Canada, to Hammermill's dock in
Erie, Pennsylvania. By its answer duly filed, Respondents denied the commission
of any unfair labor practices.
Pursuant to notice, a hearing was held before the undersigned Trial Exam-
iner-at Erie, Pennsylvania, on November 14-15, 1951. All parties were repre-
sented by counsel, participated in the hearing, and were afforded full opportunity
to be heard, to examine and cross-examine witnesses, to introduce relevant evi-
dence, to argue the issues orally upon the record, and to file briefs. Motions
made during the hearing on which rulings were reserved are disposed of in ac-
cordance with the findings that follow. Since the close of the hearing, briefs
have been received from the General Counsel and the Respondents, all of which
have been duly considered.
Upon the entire record in the case,' and from my observation of the witnesses,
I make the following :
I Respondents' counsel having agreed thereto, the General Counsel's motion, dated
February 15, 1952, to correct the official transcript herein is hereby granted. In addition
to the foregoing, the following corrections are hereby ordered, sua sponte : Wherever in
said transcript reference is made therein to "John R. Folly" or "Mr. Folly" an counsel for
Respondents, it is hereby corrected to read "John R Foley" and "Mr. Foley," respectively ;
"anonymy" appearing on line 16 of page 348 is corrected to read "autonomy" ; " Harry
Londonberg" appearing on line 19 of page 350 is amended to read "Harry Lundeberg."
- 1180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT
I. THE BUSINESS OF HAMMERMILL PAPER COMPANY
Hammermill Paper Company, a Pennsylvania corporation , is engaged at Erie,
Pennsylvania , in the manufacture , sale, and distribution of writing and printing
paper. For that purpose , it first produces pulp from pulpwood obtained prin-
cipally from Canada. During the year immediately preceding the filing of the
complaint , Hammermill purchased raw materials valued in excess of $10 ,000,000,
of which 90 percent originated and was shipped to Hammermill at Erie, Pennsyl-
vania, from points outside the Commonwealth of Pennsylvania . During the
same period , Hammermill manufactured , sold, and shipped its products valued
in excess of $20,000,000 , of which approximately 90 percent was shipped to points
outside the Commonwealth of Pennsylvania.
II. THE LABOR ORGANIZATIONS INVOLVED
Seafarers ' International Union of North America, AFL, and International
Brotherhood of Firemen and Oilers , Local 249, AFL, are labor organizations
within the meaning of Section 2 (5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Sequence of events.
As previously noted, Hammermill is a manufacturer of various types of paper.
As such, it maintains and operates pulp and paper mills in Erie, Pennsylvania,
where it employs approximately 2,000 employees who are represented by Local
620 of the International Brotherhood of Paper Makers, AFL. The principal
commodity necessary for the operation of these mills is pulpwood, the greatest
part of which Hammermill purchases in Canada from whence it is transported
by boat to Erie. Hammermill, however, does not own any of these vessels.
Instead, it contracts with 3 vessel carriers who transport during each shipping
season , May to November, on the average, 75 cargoes of pulpwood to Hammer-
mill 's dock on Lake Erie, at Erie. Among the carriers so employed is the Hall
Corporation of Montreal, Quebec, herein called Hall, which company operated
the Canadian boats giving rise to the controversy with which we are concerned.
Altogether, Hall operates a fleet of 13 vessels, each capable of carrying approxi-
mately 1,500 cords of pulpwood per cargo.
On March 28, 1951, in accordance with a long established practice, Hammer-
mill entered into an oral contract with Hall whereby the latter agreed to trans-
port during the 1951 shipping season, 26,000 cords of pulpwood from New Bruns-
wick, Canada, to the Company's dock at Erie. The first 3 Hall cargoes were
delivered at Hammermill's dock without incident, the last of this group clearing
Hammermill's dock on July 30 The fourth, the Eaglescliff Hall, herein called
the Eaglescliff, arrived at the Hammermill dock on Sunday, August 12, at 7 p. m.
The dock which Hammermill leases from the Pennsylvania Railroad is approxi-
mately 1,000 feet in length, long enough for at least 2 vessels to be moored to
its side. On the dock are 3 cranes which hoist the logs from the boat onto the
dock. The cranes are operated by a crew of 8 engineers employed by Hammermill
and are represented by Respondent Local 249. Also employed by Hammermill
at the dock are dockmen who, with the assistance of the cranes, handle the cargo
from the boat to the dock from which latter point the pulpwood is loaded on
rail cars for transportation to the mill about 2 miles away. These dockmen,
about 120 in number, are represented by District 50, United Mine Workers of
America, Local 12955.
SEAFARERS' INTERNATIONAL UNION OF NORTH AMERICA 1181
When the Eagleseliff arrived on August 12,2 another ship carrying a Hammer-
mill cargo but belonging of another carrier, the Patterson Company, occupied
the first position at the dock. Accordingly, the Eaglescliff was tied up at the
further end of the wharf to await its turn to be unloaded, which normally would
have commenced during the evening of August 13.
On Sunday, August 12, Maurice Dole, regularly employed as business agent
by the Great Lakes District of Respondent Seafarers at Buffalo, New York, was
requested by L. C. Banks, in charge of the Canadian district of the Respondent
Seafarers at Montreal, Quebec, to proceed to Erie "to tie up" the Eaglescliff and
"keep it from being unloaded." Dole was already aware that the Hall Corpora-
tion had been engaged in "several skirmishes" with the Seafarers because it
"was refusing to recognize the Seafarers Union." He proceeded to Erie, arriving
there during the morning of August 13.
Dole promptly ascertained that Norman Dunlavey was business agent for
Respondent Local 249, the bargaining representative for the crane operators,
and met Dunlavey at the latter's office at about 11 o'clock of the same morning.
Dole informed him that he had come to Erie because of "trouble at the Hammer-
mill dock." Recalling an earlier promise he had given Hammermill officials to
notify them if any labor difficulties developed, Dunlavey made an appointment
to meet with company officials at the dock office at 2 p. in. of that day. Present
in addition to Dole and Dunlavey were Ray F. Bower, assistant manager of the
Company's Woodlands department, W. A. J. Shaner, its labor relations director,
and Carl Salchli, dock superintendent. At that time the ship belonging to the
Patterson Company was being unloaded from the first position at the dock and
the Eaglescliff was awaiting its turn to be unloaded. Dole stated he had orders
to tie up the Hall vessel, but that if Hammermill would agree not to "work the
Hall vessels, it would be permitted to continue with [its] operations on the other
vessels. However, if [it] should try to work the Hall vessel and unload it, he
would find it necessary to ... place a picket line around, and . . . tie up the
entire operation."
Hammermill's representatives protested that none of its employees was in-
volved in any labor dispute with management, that it had no knowledge of any
labor difficulties between Hall and the seamen operating its vessels, and that
any interference with those vessels would not only seriously interfere 'with
Hammermill's dock operations during the 1951 season but would also jeopardize
its mill operations in the spring of 1952. Dole was adamant in his position.
While Dunlavey's principal concern seemed to be that some arrangements be
made which would permit the men he represented to continue their employment
without interruption, he nevertheless informed management that "the men most
likely would honor a picket line," if one was established. The Company's repre-
sentatives concluded that the matter called for consideration at a higher level
in its hierarchy and adjourned the meeting for that purpose, with the under-
standing that a further session with Dole would be held later in the day.
Hammermill representatives met again with Dole at about 5 p. in. in Shaner's
office and once more stressed the seriousness of the situation. They then sug-
gested to Dole that the Company be permitted to unload the Eaglescliff, with the
understanding that it would not charter any additional Hall cargoes until after
it had contacted Banks and the Hall Corporation and "checked the facts." It
further agreed that it would then make a decision as to whether or not it would
charter another cargo from Hall. Dole tried to telephone Banks in Montreal to
get his reaction to the Company's suggestion but was unable to reach him. He
did, however, discuss the matter with one Perretti in Banks' office who said he
would take the message to Banks and call back with an answer. Later in the
2 All references to dates herein are to the year 1951 unless otherwise specifically noted.
1182 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
evening, Perretti called Dole and "said the answer was 'no' and that Dole was
to continue to carry out the orders which he had when he came to Erie, .. .
[that if Hammermill] should try to unload the vessel, he was to tie up the entire
dock operation." To give Dole an opportunity to talk directly to Banks on the
telephone on the following day concerning the Company's last proposal, the
latter's representatives agreed to set the Eaglescli ff aside temporarily and a
further meeting was scheduled for August 14 at 11 a. in. Accordingly, despite
the fact that the unloading of the vessel then in pricess was finished at about
9 p. in., the Eaglesclhff was not brought into unloading position. Instead, it was
tied up "out of the way" while the Company awaited the arrival of the Fawcette,
operated by Colonial Steamship Limited. That vessel arrived at 9: 55 p. in. of
August 13 and unloading commenced at 10 p. m'
The parties met as scheduled on August 14 at which time Dole reported that
he was unable to get clearance to let the Company unload the Eaglescltff and
that if that boat was moved in for unloading, he would have to put up a picket
line. The Company asked for further time to discuss the situation.
On August 15, at about 2: 15 p. in., Shaner talked to Dole on the telephone
and told him that "in view . . . of the illegality of his request and the tre-
mendous cost in demurrage to the Company, the Company would unload the Hall
Corporation boat." Dole replied that "he was forced to place a picket line
around the operation immediately." In the meantime, unloading of the Fawcette
was completed at 7: 45 a. in. of that day. The Eaglesclifp was brought to the
number 1 position at the dock, and unloading began at 8 a. in. It proceeded
without- incident through the remainder of the first shift to approximately the
lunch period of the second, at about 7: 30 p. in. Dole, in the meantime during
the afternoon, had placed one picket at each of three entrances to the Hammer-
mill dock premises each carrying a sign reading "Unfair to Seafarers' Inter-
national Union, A. F. L." 4
Jones, a crane operator on the first shift, left the dock about 3 p. in. and, ob-
served one of the picket signs. He returned to the wharf and informed French,
Eurmine, and Wojtalick, crane engineers on the second shift, of the picket line
but also "told them to go ahead and work until [they] found out if it was a
bona fide picket line, a picket line of the A. F. L." Jones called Dunlavey, told
him that there was trouble at the dock, and asked him to go there " and see the
men." Dunlavey arrived at the dock at about 7 p. in. and was asked by French
and Eurmine whether the picket line was a bona fide picket line. He replied
that it was. At about the same time French, Eurmine, and Wojtalick asked
his advice as to whether or not they should honor the picket line. Dunlavey
replied "that if it were [him, he] wouldn't work through a picket line, but that
they would have to make up their own minds ; [that he] was only permitted to
give them advice and not to tell them one way or the other whether they should
. . . or . . . shouldn't work." At about 8 p. in., the crane engineers
gathered in the dock office with company representatives. Shaner explained to
the men that management had no dispute with any of its employees or the
unions which represented them. At the Company's suggestion, the engineers and
Dunlavey left the office and held a meeting of their own. They there decided
"they would honor the picket line, not go through it," and so informed Shaner.
No more work was done on the Eaglescliff after the lunch hour, about 7: 30 p. in.
Dole arrived between 10 and 10: 30 p. in. The Company acknowledged it had
A Dock work was performed by two shifts , the first from 6 a. in. to 2: 30 p in, the second
from 3: 30 p. in, to midnight, with 30-minute lunch periods for each shift
' The quoted inscription is based on the credited testimony of Bower, Shaner, and em-
ployee Wright. Dole, Salchli, and employee Jones testified that the sign read "Unfair to
Seafarers' Union, A. 1'i'. of L " Respondent's brief admits that at least two of the signs
bore the inscription quoted in the text. '
SEAFARERS ' INTERNATIONAL UNION OF NORTH AMERICA 1183
been blocked in its effort to unload the Eaglescliff and offered to set that boat
aside if its other operations could be resumed. That solution of the dispute was
agreed upon. The unloading of another vessel commenced at 6 o'clock of the
following morning and the picket line was abandoned. When work on the
Eaglescliff stopped, there were on board, unloaded, 879 cords of its original cargo
of 1,462 cords. It remained in the adjoining slip until it sailed from the Erie
harbor on August 17 and was thereafter sold as a "distress cargo." On or about
August 16 Dole, with funds furnished by the Canadian district, paid Eurmine,
French, and Wojtalick for the time they lost on the evening of August 15.
On September 16 another Hall vessel, the Southcliff Hall, arrived at the com-
pany dock at 10: 20 a. in. Unloading commenced at 3: 30 p. in. of September 19,
and continued without interruption until the end of the second shift at midnight.
When Eurmine came to work at about 5: 30 a. in. of September 20, several fellow
employees, whom he met at the foot of Holland Street, told him there was a
picket line established at the entrance,to the company premises. Because of the
darkness, Eurmine was unable to read the sign, but several other witnesses who
saw it shortly thereafter testified credibly that it specifically stated that the
"Hall Corporation of Quebec was unfair to the Seafarers' International Union,
A. F. L." Dole testified that he established two such pickets, one at Holland.
Street, the other at French Street.
At about 7 a. in., Salchli, the Company's dock superintendent, approached the
Holland Street entrance and was met by Eurmine and three or four other crane
operators. He asked them why they weren't going to work and they replied
"that there was a picket line and [they] weren't going through it." Eurmine,
however, told Salchli that he would call Dunlavey and did so from a nearby
restaurant. Dunlavey told him there wasn 't anything he could do about the
picket line ; that men were within their rights to refuse to go through it, but
"it was up to them." Eurmine reported his conversation to the other engineers
and none of them crossed the picket line. As a result, unloading of the South-
cliff was tied up for the entire 8-hour daylight shift on September 20. Some-
time after 2 p. in. that day, Dole received word from Banks that agreement had
been reached with the Hall Corporation. The pickets were removed, work on the
Southcliff was resumed, and the remainder of its cargo removed without further
incident.
B Concluding findings
1. The case against the Seafarers
The threshold issue of the case against the Respondent Seafarers is whether
Dole's activities, as heretofore found, can properly be imputed to that
organization.
In the administration of the Act, the Board has recognized that labor organiza-
tions are to be treated "as legal entities, like corporations, . . . [which]
can only act through their duly appointed agents." Sunset Line and Twine Com-
pany, 79 NLRB 1487, 1507. In the case just cited, the Board summarized the
"fundamental rules of the law of agency which . . . must control . . .
decision of issue of responsibility " in this case , as follows :
1. The burden of proof is on the party, asserting an agency relationshi
both as to the existence of the relationship and as to the nature and extent
of the agent's authority. In this case, for example, it was incumbent upon
the General Counsel to prove, not only that the acts . . . alleged in
the complaint were committed, but also that those acts were committed by
agents of the Respondent Unions, acting in their representative capacity.
The Respondents' failure to introduce evidence negating the imputations in
the complaint did not relieve the General Counsel of that burden.
1184 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Agency is a contractual relationship, deriving from the mutual consent
of principal and agent that the agent shall act for the principal . . .
Authority to act as agent in a given manner will be implied whenever the
conduct of the principal is such as to show that he actually intended to
confer that authority. [Emphasis in original text.]
In the light of these principles, I can only conclude that the General Counsel
has failed to establish that Dole's conduct may legally be imputed to the Re-
spondent Seafarers. That organization is an international labor organization
which has issued charters to four constituent district organizations, the Great
Lake district, the Atlantic and Gulf Region district, the West Coast district
known as the Sailors' Union of the Pacific, and the Canadian district which has
jurisdiction over "all ships under the Canadian flag on the Great Lakes." Each
district is autonomous, operates under a separate charter, has its own office and
officers, and each has local unions with headquarters at various ports in the
respective district. Neither the constitution nor bylaws of Respondent Seafarers
or any of the districts were introduced in evidence. The mere fact that the
Canadian district is affiliated with the Respondent Seafarers International,
without more, is not sufficient to establish the latter's responsibility for the
conduct of the district. United Mine Workers v. Coronado Co., 259 U. S. 344;
Coronado Co. v. United Mine Workers, 268 U. S. 295.
Dole was not in the employ of the Respondent Seafarers but instead was
regularly employed as an agent of, and paid by, the Great Lake district 6 and
maintained his office within that district at Buffalo, New York. As an employee
of that district, Dole was hired by and generally operated under the direction
of Fred Farnen, district secretary-treasurer, who maintained the district office
at Detroit, Michigan. The record establishes, however, that there is an under-
standing between the various districts that agents of any district may be called
upon to perform, work in that district in behalf of a district other than the one
by which they are regularly employed. In such a situation, the agent is paid
for his services by the district that so specially engages him and operates under
the direction of that district's officers.
In accordance with the practice just mentioned,' Dole, on August 12, received
instruction from L. C. Banks in charge of the Canadian district with offices at
Montreal, Quebec, to proceed'to Erie and "tie up" the Eaglescliff. Whenever
necessary Dole contacted Banks and received his instructions from him. It was
under Banks' instructions that Dole placed and removed the pickets in both
August and September. No competent evidence was offered that any officer or
(agent of Respondent Seafarers ordered, sanctioned, or even had knowledge of
Dole's activities. While Dole, during the hearing, on November 15, 1951, testi-
fied that Banks on that day was a vice president of Respondent Seafarers, the
General Counsel in his cross-examination elicited the information that Dole
assumed that office "just very recently." On that-state of the record,' I am
6 There were approximately 3 0 such agents in the same district.
"Dole was similarly employed by the Canadian district in 1950-1951 on four or five
occasions
'While it is true that Shaner , IIammermill 's industrial relations director , testified that
Dole on August 13 told him that he had received his instructions from L. C Banks, the
international vice president of Seafarers International Union at Montreal , well established
principles , both In the law of agency and evidence , foreclose reliance on that testimony
to establish Dole as an agent of the Respondent International "Until it is proved that
the speaker was an agent , . . . evidence of his statements [for the purpose of proving
that the agent had authority to act] Is inadmissible ." Restatement of the Law of Agency,
Section 285 . Wigmore on Evidence , 3rd Ed ., Vol. IV, Sec . 1078, footnote 5. "It is of
course, well settled, . . . that agency and authority cannot be proved by the hearsay
statements of the alleged agent himself ." Brownell V. Tide Water Associated Oil Co.,
121 F. 2d 239, 244 (C. A. 1).
SEAFARERS ' INTERNATIONAL UNION OF NORTH AMERICA 1185
unable to make a finding that Banks occupied that position during August or
September , 1951. And even if it be assumed , arguendo , that Banks occupied
both positions during those 2 months, the only objective evidence to prove which
organization Banks was acting for establishes that Banks was then acting for
the Canadian district . Thus, it was undisputed not only that Dole was paid
for his services by the Canadian district , but the money paid by him to the engi-
neers for time lost because they honored the picket line was furnished by that
district and not by the Respondent Seafarers. And, while only slight probative
value attaches to Dole 's conclusionary testimony that he was acting for the
Canadian district, no attempt was made to diminish or cast doubt on the effect
of that testimony.
On the entire record, therefore , I find that the General Counsel has not sus-
tained the burden of proving that Dole's activities as heretofore found are
legally imputable to the Respondent Seafarers . I shall, therefore , recommend
that the proceeding against that organization be dismissed . General Electric
Company, "et at., 94 NLRB 1260; Oei tel Brewing Company, et at., 93 NLRB 530.8
2. The case against Local 249
Notwithstanding the failure of proof with respect to the Respondent Seafarers,
the record establishes that Respondent Local violated Section 8 (b) (4) (A)
of the Act. That section makes it unlawful for a labor organization, or its
agent, "to engage in, or to induce or encourage the employees of any employer
to engage in, a strike or a concerted refusal in the course of their employment
to . . . handle or work on any . . . commodities or to perform any services,
where an object thereof is : ( A) forcing or requiring any employer . . . to cease
doing business with any other person." On the record made, no question was,or
could be raised concerning Respondent Local's liability as a result of Dunlavey_'s
conduct in its behalf. He was its business agent, who had "often sat in negotia:
tion meetings . . . and met otherwise at various tunes " with Hammermill as the
representative of its crane operators.
The only question posed on this phase of the case is whether the Respondent
Local , acting through Dunlavey , its business agent, induced or encouraged any
of the crane operators to engage in a concerted refusal to service the Hall vessel
for the purpose of requiring or forcing Haiumermill to cease doing business with
Hall. While it may be true , as Respondents ' counsel urges, that one or more
of the crane operators might independently and without inducement or en-
couragement by Dunlavey have refused to unload the pulpwood arriving on
the Eaglescliff , as they would have a legal right to abstain from doing, the record
is abundantly clear that the concerted work stoppage of all the operators was
encouraged and induced by the Respondent Local acting through Dunlavey.
Dunlavey himself testified that on August 15, when Eurmine asked him for
advice with reference to honoring the picket line, he told Eurmine "that if it
were [him, he ] wouldn't work through a picket line ." While this remark is
not an explicit direction or command containing an exposed threat to compel
compliance with Dunlavey's apparent desires, Section 8 (b) (4) (A) makes
it unlawful to merely "induce or encourage" employees of a neutral employer
to engage in the proscribed work stoppage . Here, as in the case of employer
violations falling within the ban of Section 8 (a) of the Act , a realistic analysis of
conduct must be made. Under both subsections ( a) and ( b) of Section 8, a
trier of fact is not foreclosed from finding violation because of the absence of
direct evidence. The Board, in Boilermakers Union (Riclifteld Oil Corporation),
8 In view of the conclusion just announced and in the absence of Dole as a party to this
proceeding , I find it unnecessary to determine whether his conduct was in violation of
Section 8 ( b) (4) (A)
1186 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
95 NLRB 1191, had occasion to consider a similar situation. In that case,
employees of third parties asked pickets whether they might cross the picket
line, to which the pickets replied : "You are over 21 years of age. Use your
own judgment." The Board, on reported facts otherwise not more demonstrative
of a violation of Section 8 (b) (4) •(A) than those found in the instant pro-
ceeding, characterized the response of the pickets as follows : "The record
demonstrates that the pickets' evasive replies, suggestive of a negative response,
thereby caused considerable disruption to Richfield's business with such third
parties." Similarly, on the record made here, Dunlavey's statement cannot be
considered less than inducement or encouragement to engage in the conduct
proscribed by the section of the Act under consideration.
Further testimony concerning Dunlavey's influence was provided by Dunlavey
and Shaner. The latter testified credibly that during the early evening of
August 15 Eurmine told him that about 7 o'clock of that evening, Dunlavey
came to his crane and told him to "pull the pin," I. e., to stop work ° Dunlavey
admitted that when Shaner asked him shortly thereafter "what right [he] had
to . . . stop the work," he answered, not by denying that he had so ordered,
but by asserting his right and duty "as a representative of the operators to
advise [the employees] when called upon to do so."
On the entire record I am convinced and find that Dunlavey, throughout
conferences with members of Respondent Local on August 15, induced and
encouraged employees of Hammermill to engage in a concerted work stoppage
for the purpose of forcing or requiring Hammermill to cease doing business with
Hall. By such conduct, Respondent Local violated Section 8 (b) (4) (A) of
the Act.
There remains for consideration the liability of the Respondent Local in
connection with the work stoppage of September 20. The-crane operators who
engaged in a refusal to unload the Southeliff Hall on that day were members of
the same group that had been induced and encouraged by Dunlavey•not to
unload the Eaglescliff Hall. While the record appears to establish that the
men who honored the picket line on that day did so without further inducement
or encouragement by Dunlavey, it would be utterly unrealistic to assume that the
influence exercised by the Local on August 15 had been removed or dissipated
when the next Hall vessel arrived a month later. In any event, Eurmine
testified credibly that several weeks after September 20, Dunlavey paid him
for the time lost on that day. While Dunlavey denied that he paid any of
the "dock operators" for lost time, be admitted that at a conference with the
engineers on August 15 he told them "that as a general rule we take care of
the men who are on strike if it becomes necessary, and that if there was any
time lost because of any condition of this kind, that we would receive some
compensation for that and give it to them." On the entire record I find that
the Respondent Local induced and encouraged the work stoppage on the Southcli ff
Hall for the same purpose that it had previously induced and encouraged the
work stoppage on the Eaglescliff Hall and thereby violated Section 8 (li) n(4,) ,(A)
of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent Local set forth in section III, above, oc-
curring in connection with the operations of Hammermill set forth In section I,
above, have a close, intimate, and substantial relation to trade, traffic, and
commerce among the several States, and tend to lead to labor disputes burdening
and obstructing commerce and the free flow of commerce.
Eurmine testified that Dunlavey "suggested that we honor the picket line "
OTTER TRAWLERS UNION, LOCAL 53 1187
V. THE REMEDY
Having found that the Respondent Local has violated Section 8 (b) (4) (A)
of the Act, it will be recommended that it cease and desist therefrom and take
the affirmative action stated below, which it is found is necessary to effectuate
the policies of the Act.
Upon the basis of the foregoing findings of fact and the entire record in the
case, I make the following :
CONCLUSIONS OF LAW
1. Seafarers' International Union of North America, AFL, and International
Brotherhood of Firemen and Oilers , Local 249, AFL, are labor organizations
within the meaning of Section 2 (5) of the Act.
2. By inducing and encouraging employees of Hammermill Paper Company
to engage in a concerted refusal in the course of their employment to handle
shipments arriving on vessels of the Hall Corporation, with an object of re-
quiring Hammermill Paper Company to cease doing business with the Hall
Corporation, the Respondent International Brotherhood of Firemen and Oilers,
Local 249, AFL, has engaged in unfair labor practices within the meaning of
Section 8 (b) (4) (A) of the Act.
3. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
4. Respondent Seafarers' International Union of North America. AFL, has
not engaged in the unfair labor practices alleged in the complaint.
[Recommendatons omitted from publication in this volume.]
OTTER TRAWLERS UNION, LOCAL 53 and ARTHUR B. ABELSEN
OTTER TRAWLERS UNION, LOCAL 53 and JOHN GEISNESS . Cases Nos.
19-CA-495 and 19-CB-171. September 19,19&
Decision and Order
On March 5, 1952, Trial Examiner Howard Myers issued his In-
termediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging In certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. The Trial Examiner also recom-
mended dismissal of the complaint with respect to certain conduct
by the Respondent alleged to be violative of the Act. Thereafter,
the charging parties filed exceptions to the Intermediate Report and
a supporting brief.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Members Houston, Murdock, and
Styles].
100 NLRB No. 187.
227260-53-vol . 100-76