Petition for Writ of Certiorari — National Maritime Union v. National Labor Relations Board

Supreme Court brief1967

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IN THE

Supreme Cowt of the United | ‘Bates

Ocrosma Term, 1966

,. =1008 | <

NATIONAL MARITIME UNION OF AMERICA, AFL- -

CIO, RICK MILLER and ROBERT COLLILEUX,

aA ae, pa Pee ae _____ Petitioners, _

. VS.

NATIONAL LABOR RELATIONS BOARD,

es —

PETITION FOR A WRIT OF CERTIORARI TO ©

THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT |

= AsraHam E. FREEDMAN,

J CHartes Sovet,’

Counsel for Petitioners,

36 Seventh Avenue,

New York, New York, 10011.

WW idede 5 oe ninco Cr mh sesaren ch PONG 8 mT ae BT He NE ow En an ob Miah Doin itll

INDEX

Opinions BELOW ......... vhekeveewses gaara ues

MS ic rte oe =

: QuEsTions PRESENTED ....... ao ereeee ze ; teveuas

Srarurs INvoLvep....... eiaau cos eae cenaias

STATEMENT OF THE NG rakes ss ha vnsds AIEEE fa

Reasons ror Grantine THE Wait sieedesscorevesse

I. The decision of the court below is in direct

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conflict with thie decisions of this Court in Local

761 v. NLRB (General Electric), 366 U.S.

667 (1961), United Steet Workers v. NLRB,

376 U.S. 492 (1964), and NLRB v. Fruit and

Vegetable Packers, 377 U.S. 58 (1964), all of

of which held that picketing addressed to em

ployees performing tasks necessary to the

day-to-day operations of the primary em-.

ployer was protected primary. picketing even

though conducted away from the - situs *

the striking employees ..........0.0.000000%

The decision of. the: court below is in direct

conflict with the decision of the Court of Ap- .

- ‘peals for the District of Columbia Ciréuit in

. Seafarers’ Union v. NLRB (Salt Dome), 265

' F.2d 585 (D.C. Cir. 1959), which held that the -

vessel on which seamen work is their work

situs, the picketing of which i is protected prj-

mary picketing, even though the crew may be

temporarily absent from the vessel ........

ages

CONCLUSION ..5...5....- pandiedeunssereveetinesin: * i

sneha alot allt 8 in a cael eN Se 2 a BL A 6 em Oe sont Ae lie hs goicten ah iin OM PEL 0 te ache Lage a tthe te ae eg kt tn seuemmeuenne 1 . ‘é

, . PAGE

Local 76 v. NLRB. ( Generat. Hilcctric), 366 U. x)

| Appendix A: Ps

; Tape or Cases

sas aihk apn) OnE PE : .6; 8, 9, 10, 13, 14, A5,18 ©

NLRB v. Fruit and Vegetable Packers; 377 U.S. 58, __

12-L. Ed. 2d 129 | en avahickeeeate os

NLRB ‘v. International Rice Milling Company, 341 -

MED eadeo ole ddh cee eneeaukecebiens 9

Sailors Union of the Pacific, 92 NLRB 5 547: (1950)

9n, 14,15

Seafarers’ i v. NLRB (Salt ne) 265 F.2d Re

585 : (D. C. Cir. 1959) ee Se ENE eer RNS fe 6,7, 16,17 -

United Steel Workers v. NLRB, 376 U.S. 492, 11 L.

Ed. 2d 863 (1964) ......... enMeE OD 13, 15

SraTures |

_ 28 U. S. C., , Seetion 1256(1) eee ee er Pee re

Nartowat LasBor Retations Act AS AMENDED

- Seétion 8(b) (4) (i) (ii) (B), 29, U. 8. ©. A. 158(b)

PTR. ci sevcessuswreisteviveten ess 2, 8, 9, 15

Index to Appendices

Statutes Se Sst Nauutheceucus Peete eee 20

Appendix B: ee

. Opinion... iid staeeeéGatnsishewaues |

Appendix C: | oo

Decree ..... PR a a ae poeree: ; note 35

detail hoe a REIN eet “

IN THE

| Sage Court of the Huited States —

| OcrosER Term, 1966

ae anv No

Nationa Maritime Union or America, AFL-CIO, Rick

Miuter and Roperr CoLLiLevux,,

* Petitioners,

vs. |

Ye Newnan Lason a, Boarp,

\ 4 a

. 4.

—_—

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF. APPEALS

FOR THE EIGHTH CIRCUIT

To THE HoworaBe, Tue Cuter J USTICE AND ASSOCIATE °

JuUsTICEs oF THE SUPREME COURT OF THE UnIrep

StaTEs:' \

Petitioners, National Maritime’ Union of America,

AFL-CIO, Rick Miller and Robert Collileux, pray that

a Writ of Certiorari be issued to review the Decree of.

the United States Court of Appeals for the Highth Circuit

entered in the above entitled case on November 3, 1966.

Opinions Below

The Decision and Order of the National Labor Rela

tions Board and Trial Examiner’s decision, entered as |

2 asst of the Record i in the Court below, nine (9) copies of

: , ee

. = P . : ;

RAS Healt Aart AL SAIS LOPE, then CHG 0 scented ‘

“ 4

which are submitted herewith. is seein in 152 NLRB

.. No. 149 (1965). The Opinion of the United. States Court

of Appeals for the Kighth Circuit, printed as Appendix

B hereto, is reported i in 367 F. 2d: 171 (8th Cir. 1966). The

Decree of the United States Court of Appeals for the

_ Eight Circuit is staat ae as + Soom C hereto.

J urisdiction

“The Decree of the United States Court of duane

' for the Eighth Circuit was entered on November 3, 1966

(Appendix C). The Petition for Rehearing was dénied on

‘November 3, 1966. The jurisdiction of this Court i is 8 invoked

under 28 US. C., Section 1254(1).

Questions Presented -

( 1) Where abies of a river senbent - company. °

engaged i in transporting coal and grain in barges are on

strike, does not the right to engage in a primary strike

and primary picketing include the right to appeal to others’

not to move, clean or load the company’s barges: even —.

,, though such work is done when the striking employees are

} a esi absent from the barges?

( 2) Where employees of a river towboat company spend

more than half their working time performing duties aboard’

the company’s barges, are not these barges the situs ‘of

--their employment even when the crew. may be temporarily

_ absent from them -

Statute Involved

The disatiees provision involved j is the National Labor

|e “Relations Act, as amended, Section 8¢b) (4) (3) (41) (B), 29

U.S.C.A. 158(b) (4) ( (ii)(B). .

SALE EALTLO PT FD LILI PEE FEO AIOE

REI IT Min ET ABN

“Statement of the Case

_ The National Maritime Union of America (NMU), Peti-

titioner herein, is the collective bargaining representative

for the unlicensed crew of the M/V ‘‘Kleanor Gordon’’, a

‘river towboat owned and operated by Mid-America Trans-

portation °Company. -.Mid-America, a wholly owned sub-

sidiary of Peabody Coal Company, is engaged in the water

transportation of coal and grain in barges. on the Missis-

sippi River between St. Louis, Missouri and the’ Minne-

_ .apolis-St. Paul area. Mid-America also ‘owns the barges

in which the coal and grain is carried. - :

_ The normal operation of the M/V-‘‘Eleanor Gordon’’ is

’ to pick up a tow of 15 barges loaded with coal at the. docks

__of the Peabody Coal Company in Hast St. Louis and move .

the barges up the Mississippi°River to a fleeting area’ in»

the Minneapolis-St. Paul area. There the coal barges aré

“tied off”? and the M/V ‘‘Eleanor Gordon’? picks up a tow

of grain barges which previously had been loaded at the-

‘Farmers’ Union Grain Terminal in St. Paul. These grain

‘barges are taken downstream to St. Louis-where the M/V

‘‘Hleanor Gordon’? picks up a new tow of coal barges and

returns north. Pos ars

The barges loaded with coal are destined for’ Northern «-

States Power ‘Company pursuant to a contract whereby

Mid-America transports the coal to points in the Minne-

: apolis-St. Paul area as designated by Northern States

Power Company.? Under this contract ‘it is the, Responsi-

bility of Mid-America, rather than, Northern States Power

Company, to -see. that the-coal is delivered to the desig-

' nated points. — | 7,

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’ ¢

1A fleeting area ‘is a place’ where the barges are left. until it is

time to take them to a dock for unloading, or conversely, where:

loaded barges. are made into tows for transportation downstream.

* The,transportation contract between Northern States Power and

‘Mid-America permits Northern States Power to participate in the

financing ofthe construction of the towboat-and several barges, and ‘

‘gives Northern States Power an interest in the ‘salvage value of .

these vessels -and ‘the right to acquire them at some future time.

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It is not feasible for a boat the size of the ‘‘Eleanor

Gordon’’ to operate in a harbor area. ‘ Accordingly, the

‘‘Kleanor Gordon’’ ties off its tow in the fleeting area

and the work of moving the barges from the fleeting area

to the Northern States Power Company docks is done by

Twin City Barge & Towing Company ‘pursuant to a sub-

contract with Mid-America. In performing this work,

Twin City did not have any’ contractual relationship with

Northern States Power but rather acted only as the sub-

contractor of Mid-America, doing work which Mid-America

was obligated to do under ats contract with Northeru States -

Power. °

Once the barges are delivered to Northern States Power.

and the coal emptied; they are then cleaned by Minnesota

Harbor Company and taken to the docks of the Farmers’

‘Union Grain Terminal where they are loaded with grain.

Twin City Barge & Towing Company then takes them

from Farmers’ Union Grain Terminal back to the fleeting

area to await the arrival of the M/V ‘‘Bleanor Gordon’? -

so that they can be transported downstream.

Although their living quarters are aboatdi the M/V

‘‘Kleanor Gordon’’, the greater part of the unlicensed

crew’s work actually is done aboard the barges in the

tow. This work includes the connecting and disconnecting

of the individual barges.in the tow, putting out running

ing the barges on a routine basis and doing all necessary

maintenance and navigational work aboard the barges.

The men work six-hour watches—six hours on and six

hours off. Of this time, more than half is ‘spent ree

ing tasks on the barges.

In August of 1964, after numerous efforts to negotiate

a collective bargaining agreement had proved fruitless,

- the unlicensed crew of the M/V ‘‘Eleanor Gordon’’ went

- lights and flags, pumping the bilges, inspecting and repair- .

on strike. /During this. strike picketing occurred at the |

situs of the Mid-America barges (1) when Twin City

picked up the barges at the fleeting area, (2) at Minnesota

BP LRT ORL A

al Darien tennant ae Alen were ae

Harbor Service: when the barges were being cleaned and

(3) at the docks of the Farmers’ Union Grain Terminal - °

when the barges were being loaded with grain. The picket

sign was specifically limited to the barges belonging to

Mid-America and the picketing was conducted as close to_

the barges.as was physically possible. No barges belong-

ing to any other company were picketed nor: were the.

operations of any. other barges affected. Thus, in- both*

intent and result the economic impact of the picketing was

strictly limited to the barges -belonging to Mid-America.

Despite the fact, thatthe picketing was limited in this

manner, the National Labor Relations Board, on a charge

filed” by Farmers’ Union Grain Terminal, issued a com-

plaint alleging that the National Maritime Union picketing

was secondary picketing.in violation of Section 8(b) (4) of

the Act. The Board, adopting the -decision of the Trial

Examiner, found that the ‘‘work situs’? of the Mid- America

employees was the route of the M/V ‘‘Eleanor Gordon’? —

between St. Louis and the fleeting area in Minneapolis-St.

Paul? and not the barges which were the property of

Mid-America and on which Mid-America’s employees spent

most of their working hours. On the basis ofthis finding

the Board then concluded that any picketing which occurred

away from this ‘‘work situs’? was secondary and contrary

to the act. | .

In addition, the’Board held that the. activities of Twin

City, Minnesota Harbor Service and Farmer’s Union

Graixt Terminal were not the day-to-day activities of Mid-

America. Actually it was never contended that they were.

Rather, it was NMU’s contention, as the evidence ‘con-

| clusively showed, that the work performed by these, com-

panies was necessary to the day-to-day activities of Mid-

America and thus might be picketed under this Court’s

decisions in United pron Workers v. NLRB, 376 U.S. 492

8 The decision of the Board would require the union to follow

the tug up and down the river—a finding which is utterly unrealistic

and practically impossible. Navigational impediments. and econamic

factors would preclude any such procedure.

es eas eee ad

(1964), and Local 761 v. NLRB (General Electric), 366

U.S. 667 (1961)...

The National Maritime Union then filed a ‘petition to

review the Board’s decision in the United States Court of

Appeals for the Eighth. Circuit. -Although affirming the |

Board’s decision, the Court of Appeals for the Eighth

Circuit did not adopt the Board’s finding. that the work

situs was the route of the M/V ‘‘Eleanor Gordon’’ between

St. Louis and the fleeting area. Rather, said the Court,

‘*We assume that what they (the Board) meant to say

.is that the employment situs was the towboat and tle

towed. barges during the time the employees worked on

them as they plied between the terminals.’? (Emphasis

supplied.) Thus, the Court below in effect held that a

‘vessel ceases to be the work situs of seamen merely because

the men temporarily leave the vessel, a conclusion which

“ig in direct conflict with the dashaion of the Court: of

Appeals for the District of Columbia Circuit in Seafarers’

Union v. NLRB (Salt ene 265 F.2d, 585 ve Cir..

1959).

In response to NMU ' contention that the ticketing was

primary because the handling, cleaning and loading of

the barges was necessary to the day-to-day operations of

Mid-America, the Court merely stated, ‘‘The concept of

what is necessary to the day-to-day operations of. MAT

must have its limitations, too’’ without, however, indi-

cating what these limits were nor ‘delineating the basis

on which it was drawing the distinction between legal and

illegal conduct.

NMU seeks review of the decision below because of

the extreme importance that it has on the rights of mari-

time workers on our inland waterways. ‘There are. over

80,000 seamien* employed on vessels engaged in trans-

4 There are over 20,000 vessels.in operation on our inland water-

| “ways on which approximately 80,000 seamen are employed with an

additional 80,000 persons employed in directly connected shoreside

‘positions, see Big Load Afloat, pages 5, 33 (1965), published by |

The American on Operators, Inc.

— porting barges on our inland rivers. The method of

operation here involved, where a towboat moves between

fleeting areas and never docks, -is the prevailing method of

- operation. Since it is impossible to picket a moving tow-

boat, river seamen will be denied the right to organize =|

and engage in collective action unless they are afforded :

the right to picket the’ barges on which they work. We q

respectfully submit that the decision below is erroneous . ,

for two reasons: Fifst, the transporting of barges to and

from: the fleeting area as well as the cleaning and loading

of. the barges, was essential to the day-to-day operations

of Mid-America and, therefore, the picketing of this work = = |

was primary picketing under the rules set forth by this

Court in United Steel Workers v. NLRB, supra and Local

761 v. NLRB (General Electric), supra. Second, the de-_.

cision of the Court below that the barges ceased to be a :

‘‘work situs’? of the crew once the barges were tied off

at the fleeting area is contrary to the decision of the

Court of Appeals for the District of Columbia Circuit in -

Seafarers’ Union v. NLRB (Salt Dome). supra, which

situs’? and that their temporary absence from the vessel

does not change the vessel’s status as the work situs.

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REASONS FOR GRANTING THE WRIT

The decision of the court below is in direct con-

flict with the decisions of this Court in Local 761 v.

NLRB (General Electric) , 366 U.S. 667 (1961 ), United

Steel Workers v. NLRB, 376 U.S. 492. (1964), and

NLRB vy. Fruit and Vegetable Packers, 377 U.S. 58 | :

(1964), all of which held that picketing addressed to

employees performing tasks necessary to the day-to-

day operations of the primary employer was protected

Primary picketing even though conducted away from

the job situs of the striking employees.

The NMU picketing was at all. times strictly limited

to the Mid-America barges at times when they were being

used to further Mid-America’s business. As such it was

; primary picketing protected by the: National Labor Rela-

tionss Act. While Section 8(b) (4) (i) (ii) (B) of the Act

makes it an unfair labor practice to induce or encourage

any person to engage in a strike or refusal to work, it is

subject to the proviso that ‘‘nothing in clause (B). shail

'. make unlawful. . . any primary strike or primary picket-

ing.’’ Literally interpreted, the portion of ‘Section .

8(b) (4) (i) (ii)(B) which precedes this proviso would ban

all picketing and all strike activity. ‘This Court, however,

has. been careful ‘to. point out that the language of the:

proviso ‘precludes such a literal interpretation. Local 761

v. NLRB (General Electric), 366 U.S. 667 (1961). ‘hus,

fulfillment of the legislative intent requires that the Court

examine the conduct in question in light: of the traditional . -

right of unions to seek support for their cause by::‘‘appeal-

ing to neutral employees whose tasks aid the employer’s

everyday .operations.”” Local 761 v. NLRB (General

Electric), 366 U.S. at 681. So long as the Union’s conduct

“is so limited, it falls within the proviso and is protected |

primary activity.

In Local 761 v. NLRB (General Blectric), supra, this

Court gave careful consideration to the question of dis-

tinguishing primary activity from a. secondary boycott

in a decision which reaches the vital issue in the present

_. case. There, Local 761 was on strike against General .

* Electric and set up picket lines at General Electric’s plant

in Louisville, Kentucky. The plant had several entrance

gates, one of which was reserved exclusively for employees -

of independent contractors. The Board had held that the

_ Union’s picketing at this. latter gate was a violation of

Section 8(b) (4) of the Act, 1 123 NLRB -1547.—This’ Court,

however, set aside this determination :and remanded the

case to the Board, holding that if the employees | of the

independent centractors who use the gate in question were

performing work necessary to the normal operations of

the plant, then the Union was entitled to picket the gate

even though it was not used by General Electric’ S em-

- ployees.

In ‘reaching this -conclusion, this Court reviewed .the

' leading cases “on the. scope of Section 8(b)(4). Thus, the

Court noted that Section 8(b)(4) was not to be inter-

preted so as to limit the right of a union to engage in the

ordinary primary strike, citing NLRB v. International

_ Rice Milling Company, 341 U.S. 665 (1951), and that ‘‘not

‘all so-called secondary boycotts were outlawed,’’ 366 U.S.

at 672, 6 L. Ed. 2d at 597. After surveying the Board’s

treatment of the problem through the evolution of the

' *Moore Drydock® tests, the Court concluded that ‘‘The

key to the problem is found in the type of work that is

being performed by those who -use the separate gate,’’ 366°

U.S. at 680, 6 L. Ed. 2d at 592. The establishment of a

separate gatecould not be used to circumvent the right

of a union to engage in traditional strike activity.

‘‘Qn the other hand if a separate gate were -de-

vised for regular plant: deliveries; the barring of

’ 8 Sailors Union of the Pacific, 92 NLRB 547 (1950).

res i$" iis as

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10°

- picketing at that location would make a clear in-.

vasion on traditional primary activity of gppealing

to neutral employees whose tasks aid the employer’s — 2

“everyday operations.’’ 366 US. at 681, 6 L. Ed. 2d

at 602. (Emphasis supplied.)

Local 761 v. NLRB (General Electric), supra, thus

establishes the principles that (1) inherent in the right

to engage in a primary strike is the right to appeal to

neutral employees not to perform: work essential] to the

normal operations of the primary employer and (2) that

these appeals may be made even though the primary .

employer’s employees are not present at and do not work

at the site where the appeal is made. eae

It is of great significance and extreme importance to

‘the instant case that the decision tin Local 761 was not

predicated on the appeals being made at the job site of

the primary employer’s employees: ‘In fact, no employees

of General Electric used the gate that was being picketed.

Instead, the test established was the nature of the work

being performed by the employees to whom the picketing

was directed rather than the location of the picketing.

. This right of a union to appeal to neutral employees

not to perrorm tasks’which were essential to the day-to-day

operations of the primary employer was reaffirmed by this

Court in United Steel Workers v. NLRB, 376.U.S. 492,

11 L. Ed. 2d 863 (1964), where the picketing involved was

not even conducted on the primary employer’s premises.* _

_ Picking up where it had left off in Local 761 v. NLRB.

(General Electric), supra, this Court stated:

6In United Steelworkers v. NLRB, 376 U.S. 492 (1964), the

striking employees picketed railroad cars destined for the primary

employer at a gate located on another employer’s premises This |

gate was kept locked when not in use and was accessible only to

railroad employees. Thus the picketing at this gate necessarily was

_ directed only to neutral employees. The Court held such picketing

to be primary because it was directed to work which was necessary |

to the day-to-day operations of the primary employer.

——

en a

‘‘Nor may the General Electric case be put aside —

for the reason that the picketed gate in the present |

ease was located on property owned by New York

. Central Railroad and not upon property owned by

the primary employer. The location of the picket-

ing is an important but not decisive factor, and in

this éase we agree with Judge Lumbard. that the

location of the picketed gate upon New Y ork Central

Property has little, if any, sau wales

‘¢¢TIn this case, it is undisputed that the rail-

road’s. operations for Carrier were in furtherance of

’ Carrier’s normal business. It is equally Clear from

the record that the picketing employees | made no

| attempt to interfere with any of the railroad’s oper-

- ations for plants others than Carrier. The railroad

employees were not encouraged to, nor did they,

- refuse to serve the other plants. The picketing was, ©

designated. to accomplish no more than picketing

outside one of Carrier’s own delwery entrances might —

have accomplished. Because the fence surrounding

the railroad’s right of way was a continuation of the

fence surrounding the Carrier plant, there was no

home to the railroad workers servicing Carrier its

dispute with Carrier’. 311 F.2d 135; 154.” (Empha-

sis supplied. )

As pointed out in: the foregoing eacnee the test: of

whether strike conduct is primary activity or a secondary

boycott lies in its economic impact. ' If the economic impact

is no greater than that which would be achieved by shutting

down the primary employer’s operations, then .the acti ity

in question is protected primary activity. | Phat is

the proper basis-for, distinguishing primary activit om

a secondary boycott appears from this Court’s decisi@in |

NLRB v. Prot aa Vegetable Packers, 377 U.S. 58, BL.

Ed. 2d 129 (1964). While that case dealt with consumer

other place. where the union could have brought. .

12 -

”

"picketing, this Court pointed. out that the basic distinction

between primary and secondary activity. is that secondary

activity involves conduct which threatens injury to the

neutral employer in his business generally, while conduct

which affects the secondary employer only in relation to

the product of the primary employer is primary- activity.

Said the Court:

‘6. When consumer picketing is employed only .

to persuade customers not to buy the struck prod- —

uct, the wnion’s appeal is closely confined to the

- primary dispute. The site of the appeal is expanded

to include the premises of the secondary employer; *

but if the appeal succeeds, the secondary employers’

_ purchasers from the struck firms are decreased only

because the public has diminished its purchases of

the struck product. On the other hand, when con-

sumer. picketing is employed to persuade customers

‘not to trade-at all with the secondary employer, the

latter stops: buying the struck product, not because

of a falling demand, but in response to pressure |

- designed to inflict injury on his business generally:

In such case, the union does more than merely fol-

low the struck product; it creates a separate dispute

with t secondary employer. oa

\ «We disagree therefore with the Court of Ap-

peals that the test of ‘to threaten, coerce, or re- -

strain’ for the purposes of this case is whether Safe-

way suffered or was likely to suffer economic loss..

A violation of Sec. 8(b) (4) (ii)(B) would not be\ es-

tablished, merely because respondents’ picketing was

effective te reduce Safeway’s sales of Washington

State apples, even if this led or might lead Safewa

to drop the item as a poor seller.’’ (Emphasis

supplied.) >» N

-* NMU had its dispute, and the picketing occurred as close

oaths eine ennis sia lela Dieta Deiks oa ee -

Applying the foregoing principles to the instant ¢ase,

it is clear that the NMU picketing was at all times pro-

tected primary activity. It should first be noted that no_

‘barges, other than Mid-America barges, were picketed.

Both the picket sign and the leaflet which was distributed _

clearly identified Mid-America as the employer with whom

cumstances. Moreover, there was no picketing when Mid-

America barges were not present. Thus, in all these re-

spects. NMU fully complied with the Moore Dry Dock

_ requirements. : ees . en

Looking at the individual situations, the work ‘being

done by T'win.City Barge and Towing Company clearly

_ was necessary to the day-to-day operations of Mid-Amer-

ica. ‘ Twin City actually was a subcontractor of Mid-

America, doing work which Mid-America was contractually

obligated to perform for N orthern States Power Company.

The delivery of the barges to Northern States Power was as

important and necessary to Mid-America’s day-to-day

operations as- was ‘the delivery of the. railroad cars in

United Steelworkers v. NLRB, supra. °In the Steelworkers

case, this Court sustained the right of the union to urge

the railroad employees not to deliver the railroad cars -

even though the railroad cars were not the property of the

primary employer. Here, where the ‘barges are the prop-.

erty of the primary employer, the right to urge neutral ©

employees not to handle them is even clearer. The work -

done by Twin City in the instant case also is analogous.

to the work which was being done by the maintenance sub-

contractors in Local 761 v. NLRB (General Electric), supra,

in that there, as here, the employer had subcontracted out .

work essential to its own operations. Local 761 v. NLRB

(General Electric), supra, makes it clear that such subcon-:

tractin@ does not deprive a union of its right to picket or ©

to urge that such work-not be performed. It should also. |

pe noted that there was no effort to prevent Twin City .

to the Mid-America barges as was possible under the on

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from handling barges, of employers other than Mid-Amer-

, ica, and that such barges were handled without any in-

terruption whatsoever. Finally the economic impact on.

Twin ‘City was no greater than that which ,would have’

been achieved if the ‘‘Eleanor Gordon’’ had stopped oper- -

ating and was unable to deliver barges to the fleeting area.

Insofar as Farmers Union Grain Terminal and Minne-:

sota Harbor Company are concerned, the work of logging .

and cleaning the barges, even though: done by neutral .em-

‘ployees, similarly was essential to Mid-America’s day-to- —

day operations for if- the barges were not cleaned and -

loaded, the ‘‘Eleanor Gordon’’ would not have any cargo .

"to tow and would have to stop operating. That such’work

is part and parcel of.the’ day¥o-day operations of vessels

was recognized by the Board in Sailors’ Union of the

Pacific, 92 NLRB at 549: ;

‘‘The multitudinous steps of preparation, includ-

ing hiring and training a crew and putting stores

aboard, are as much a part of the normal business

of a ship as the voyage itself. dg (Emphasis supplied. )

‘ The work being» done by the employees of Farmers’

Union and Minnesota Harbor is analogous to the work

‘of truckers making deliveries, to a factory. The only dif-

ference is that here, instead of the delivery men coming

'. to the premises of the primary employer, the primary em-

. ployer, Mid-America, moves its ‘‘premises’’, the barges,

to the delivery men. In either case, however, the nature

of the work involved, making a delivery to the primary

employer, remains the same. In Local 761 v. NLRB (Gen-

eral Electric), supra; this Court held that an employer, by

devising a separate; gate for regular plant deliveries, could .

not deprive a striking union of the right to picket such

work. The NMU picketing i in the instant case falls within

this principle and is but an application, in the ‘context of a

. :

b -

15°

. _ \ ; : a a

martime operation, of the kind of primary activity which

' this Cour’ has held to be permissible. |

_- The court below refused to follow the decisions in Lacal

761 v. NLRB (General Electric), supra, and United Steel-

workers v. NLBB, supra, with the cursory statement, ‘‘The

distinction lies in the situs.’’? The court then proceeded to

hold that picketing was proper only’ if conducted at the

jobsites of the primary. employees, the very contention

761 and the Steelworkers. decisions. In thus refusing to

follow these decisions, the opinion below represents a seri-.

‘ous departure from established principles in interpreting

section 8(b) (4) of the Act:. Accordingly, certiorari should

be granted upon this ground alone the end that this.

erroneous decision may be gorrected.

The decision of the court below is in direct conflict

with the decision of the Court of Appeals for the

: which this court, considered and rejected in both the Local.

District of Columbia Circuit in. Seafarers’ Union v..

NLRB (Salt Dome), 265 F.2d 585 (D.C. Cir. 1959),

which held that the vessel on which seamen work is ©

their work situs, the pickéting of which is protected :

primary picketing, even though the crew may. be fem-

porarily absent from the vessel.

Both the courts ‘and the Board have recognized that,

where seamen are involved, the situs ‘of. employm is.

the vessel or vessels on which they , work, and not any’

particular territorial locale. Thus, in the; frequent =

Moore Dry Dock decision, Sailors’ Union of the Pc

92 NLRB 547 (1950), the Board upheld the right 7 a

seamen’s union to picket 9 vessel while it was in a ship-

e yard, stating:

“Tn the usual case, the situs of a lebor dispute

is the premises of the primary employer. | Picketing

cf Sehgal:

16 ae &

: = w

_of the premises is also picketing of the situs; the

test of legality of picketing is that enunciated by the

-Board in the Pure Oil and. Ryan Construction cases.

But in some cases the situs of the dispute may not

_ be limited to a fixed location; it may be ambula-

tory. Thus in the Schultz case, a majority of the

Board held that the truck upon which a truck driver

worked was the situs of a labor dispute between him

and the owner of: the truck. ‘Similarly, we hold

in the present case that, as the Phophe was the:

plage of employment of the seamen, it was the situs

of the dispute between Samsoc and the Respondent

over working conditions aboard the vessel.’’ (Em-

phasis supplied.)

In Moore Dry Dock the Board upheld the right of a sea-

men’s union to picket at a shipyard where the employer’s

; vessel, the ‘‘situs’’ of the dispute, was undergoing repairs.

There the picketing occurred at a time when a new crew

was being trained aboard the vessel; however, in Seafarers’

Union v. NLRB (Salt Dome), 265 F.2d 585 (D.C. Cir.

1959), the Court of Appeals for the District of: Columbia

held that the presence of a crew aboard the vessel being

picketed was not essential to the union’s right to picket..

Since repajrs ‘and overhauling” were part of the normal

operations of a ship, the union had the right to picket

vsuch activity even in thé absence of the crew. Said the

| Court:

‘To us it seems indubitably clear that Salt Dome

> was engaged in its normal business in overhauling

and repairing the Pelican. In this mechanical age

“overhaul and ys are as normal and as necessary

as any phase of an operation involving machinery.

‘Engines of all sorts—trucks, newspaper pregses,

_ Jets, locomotives, etc., ete——must periodically be

cs os =e

overhauled and repaired. So much is so‘clear that

it need not be belabored.

Gp. e. eee ° °

“6, . . This boat, a piece of equipment owned

by- the primary employer, was actually the situs of

the primary dispute. The primary situs in the dis-

pute was movable and did move normally from |

plaee to place. . . . We think that, when an em-

ployer under such circumstances moves a, piece of

equipment onto the property of someone else,.for —

a normal business purposé, striking employees may

peacefully picket that equipment even though none

but supervisory employees are on or about it. Sev-

eral propositions support this conclusion. ‘The chief

one is that employees should not be held: to lose

the right to picket peaceably if all employees go

out-on the strike so that none are left on the em-

pldyer’s: property. Another supporting proposition

is that the primary employer should not. have the

power to prevent picketing by merely turning out

all his employees. We think the presence ar. absence

of employees of the primary employer on the prem-

ises is not a critical factor in the legality of a picket

line.’’ (Emphasis supplied.) -

In the instant case, the tines and loading of the

barges, as well as the movement of the barges to and |

from the fleeting area, was a much more frequent occur- -

rence than the annual overhaul of the vessel involved in

the Salt Dome decision. The absence of the men from

the barges during these routine operations was even more

temporary than the crew’s absence in Salt Dome and did

not in any way change the fact that the barges were their

‘regular place of employment. Thus, the holding below

that the barges were | the work situs. only while the men

were working aboard them is in direct conflict with the

_ Salt Dome decision. Accordingly, certiorari should be,

granted so that this conflict may be resolved.

Conclusion

The: NMU picketing was strictly limited to the Mid-

America barges during times when they were being used

to further Mid-America’s business. As.in-both Local 761

v. (General Electric), supra, and United Stéel Workers v.

NLRB, supra, the appeal of the picketing was limited to

requesting neutral employees f refrain-from activities

which were necessary to the day-to-day operations of the

primary employer. The holding below that such picket-

ing had to be limited to the jobsite of the striking em-

ployees thus is in direct conflict with this Court’s decision

the locality of the picketing was not the controlling factor

and that such picketing was permitted even though con-

ducted -away from the primary employer’s premises and

at areas where the primary employee8.did not work.

The lower Court’s holding that the barges were the -

.. situs of employment only while they were in the tow of the

M/V ‘‘Eleanor Gordon’’ is in direct conflict with the

decision of the Court of Appeals for the District of

Columbia Cireuit in Seafarers’ Union v. NIRB (Salt

Dome), supra, which held that the vessel on which seamen

work was the situs of their employment and could be

- picketed even. though the crew was temporarily absent.

~ If allowed to stand, the effect of the lower Court’s holding

_ will be -to limit striking employees to picketing a moving

towboat in mid-stream, a requirement that is both navi-

gationally impractical and economically impossible. _

The instant matter is of the utmost importance to the _

80,000 seamen employed on our inland waterways. With-

in the Local 761 and Steel Workers cases which held that

out the right to ere the barges on which they are

employed, | ithese employees will’ be effectively denied the |

' right to ‘organize and exercise the economic rights granted _

them by the N ational Labor Relations Act. Accordingly, —

it is respecté#lly submitted that Writ of Certiorari should:

be granted and the decision below reversed.

Respectfully submitted,

AspranamM. H, FREEDMAN, - — 7

CHARLES SovEL,

Counsel for Petitioners,

36 Seventh Avenue, Me. ie

New York, New York 10011.

a Pt hte corn is

20:

APPENDIX A

Statutes

NationaL Lasor Rexations Act

Section 8. Unfair Labor Practices.

(b) It shall be an unfair labor practice for a labor or-

ganization or its agents—

(4) (i) to. engage in; or to induce or encourage any in-*-

dividual employed by any person engaged in commerce or

in an industry affecting commerce fo engage in, a strike or

a refusal in the course ' is/employmént to use, manu-

_- facture, process, transport, or otherwise handle or work

PAT LN tere oR on oe

) sia Sais eee aii At G3” Wane aaraeten tink

on any goods, articles, materials or commodities or to per-

form any services; or (ii) to threaten, coerce, or restrain

any person engaged in commerce or in an industry affecting

commerce, where in either case an object thereof is:

* * *

a ;

(B) forcing or requiring any person to cease using, ,

selling, handling, transporting, or otherwise dealing in the.

products of any other producer, processor, or manufacturer,

or to cease doing business with any other person... Pro-

vided, That nothing contained in this clause (B) shall be

construed to make unlawful, where not otherwise’ unlawful,

any peers strike or primary picketing ;

a oo

: APPENDIX B

Opinion _ ;

UNITED STATES COURT OF APPEALS

For tae Eientx Crrcuir

. No. 18,066

: “ia af te : \

NationaL Maritime Union oF America, AFL-CIO,

Rick Miter and Rosert Couumevx, | ;

fs Petitioners,

Nationau Lasor Reations Boagp,

Respondent.

On Petition for Review and Cross-Petition for Enforcement

of Order of National Labor Relations Board. _

7 —

[October 10, 1966.]

Before Vocet, Chief Judge, Buacxmun, Circuit Judge, and

_ StepuHenson, District J udge.

Buackmovn, Circuit Judge.

.. We are confronted again with an issue of alleged sec-

ondary picketing and the interpretation, in a setting of

somewhat unusual facts, of § 8(b) (4) of the National Labor

Relations Act as amended by the Landrum-Griffin Act of

1959, 29 U.S.C. § 158(b) (4). Jurisdiction is established:

fad AE Ns ie tee

5 eR EEN Ge. we

Opinion

National Maritime Union of America, AFL-CIO (which

we designate herein as NMU), Rick Miller, its national

vice-president, and Robert Collileux, its employee, seek

to. set aside an order of the National Labor Relations

Board issued June 11, 1965, and reported as 152 N.L.R.B. -

No. 149. The Board in turn requests enforcement of its

order. The charging party, Farmers Union Grain ‘Ter-

minal Association (Farmers), has filed a brief amicus

curiae favoring enforcement.

Except for a footnote relating to briefs and of no sig-

nificance here, the Board panel unanimously adopted the

findings, conclusions and recommendations of the trial

examiner. It thereby determined that NMU in the course

of an economic strike against Mid-America Transportation

Company (MAT), attempted to and did induce employees

of secondary employers to engage in work stoppage and

threatened, coerced or restrained those employers with an

object of forcing them to cease doing business with MAT,

and thereby violated § 8(b)(4)(i) and (ii)(B) of the Act.*

*§ 158. Unfair labor practices oe Q

(b) It shall be an unfair labor practice for a labor ofganization x

or its agents— |

(4)(i) . .-. to induce or encourage any individual employed

by any person engaged in commerce or in an industry affecting

commerce to engage in . . . a reftisal in the course of his —,

employment . .°: to perform any services; or (ii) to threaten,

coerce, or restrain any person engaged in commerce or in an

_industry affecting commerce, where in either case an object

thereof is— |

' (B) forcing or requiring any person to cease using, sell- -

ing, handling, transporting, or otherwise dealing in the prod-

ucts of any other producer, processor, or manufacturer, or

to cease doing business with any other person . . . Provided,

That nothing contained in this clause (B) stiall be construed

to make unlawful, where not otherwise unlawful, any primary

strike or primary picketing; =§ - %

Opinion

Its order contained the usual cease and desist provisions

and called for the posting of notices.

There is no dispute as to the basic facts:

-MAT’s unlicensed maritime employees are organized

and represented by:NMU. MAT i is engaged in the trans-

portation of bulk commodities by barge on the Mississippi

River between docks at’East Saint Louis, Illinois, and the

fleeting or mooring area at Inver. Grove, a few miles down

river from Saint Paul, Minnesota. The cargo carried up ©

river is coal destined for Northern States Power Company

(N SP). The cargo carried down river igygrain. The

barges used in these operations are owned or chartered

by MAT, They are moved by a towboat owned by MAT.

See Mid-America Transp. Co. v. NLRB, 325 F.2d -87, 88

(7 Cir. 1963). ; —

The towboat . (which pushes rather than tows) — an

operating complement of about 13 employees. One crew

- works for 30 consecutive days and then is off for the same

‘ length of time while another takes its. place. When on

duty, crew members at all times remain on the bo#t-or the

barges constituting its tow. They work 6-hour shifts.

Their personal quarters are: on the towboat. The

coming crew reports at the downstream end. Its first duty

is to tie off the barges which the towboat has brought

down river. The crew then picks up and prepares the north-

bound tow. The 27 locks between Saint Louis and Saint

Paul are so sized that, they require the customary tow of

15 barges (5 in line and 3 abreast) to be split as they go

through the locks: A crewman’s time is. divided -about

- evenly between the towboat and the barges. His work

on the barge consists, among other things, of fastening

and unfastening cables; putting up the jackstaff flag;

pumping, maintenance; inspecting and checking hatches,

‘rigging and running lights; navigation; and particular

duties when the boat and tow are passing finder: bridges

or going through locks. Occasionally, a barge is dropped

- < = is oe

p eewer cece ne ‘ ~ CURR eee Peat eRe nn Ae oO a ee

ie 24

+» Opinion *

off at a dock along the way between East Saint Louis and

the Inver Grove fleeting area; otherwise, the entire tow

is taken to the fleeting area and tied off there. The tow-

boat then picks up the southbound tow and returns to

Saint Louis. The boat itself is in continuoys operation

and makes a round trip about every. two weeks. It does

not go above the fleeting area and no MAT employee

remains with the barges after they are tied off there.

Farmers is engaged in the storage and merchandising of

grain for about 150,000 patrons in Montana, the Dakotas,

and Minnesota. It owns a terminal at the foot of Chestnut

Street on the Mississippi River in downtown Saint Paul.

It ships grain from the terminal mainly by barge but also

by rail and/truck. The barges for its grain are obtained

from four ar five different companies ; about one- third of:

_the grain it ships by barge goes in MAT barges. Most of

this grain is destined for the Gulf of Mexico but MAT

tows only to Saint Louis. , Farmers had a written agree- °

ment with MAT which provided, among other things, that

MAT would furnish and Farmers would: use 100 barges

or more during the 1964 navigation season; that each

‘‘shall be chartered on a bare boat basis’’; that Farmers '-

was responsible for cleaning prior to loading of grain

and for loading and unloading its cargo; and that MAT

might move the barges by the use of other towing facilities.

NSP is a private utility with plants in the: Twin City

area. It is under a long term contract to purchase coal

from MAT’s parent corporation. It has a’ separate con-

tract with MAT for transportation of the coal. This

obligates MAT to deliver to points which-NSP designates.

‘There are three of these points up river from the fleeting °

area. It is MAT’s responsibility to see that the barges -

get to the designated docks. The MAT-NSP contract is

silent.as to who delivers the barges to the NSP docks.

Actual delivery has been made by different towing com- ”

‘panies me than MAT.

rw)

" Opinion

Twin City Barge & Towing Company (Towing) pro- .

’ vides towing and harbor services in the Saint Paul area.

Specifically, it moves barges, singly or by twos, from the _

fleeting area to the particular NSP dock which ‘has been

designated and, to this extent, fulfills MAT’s obligation

to NSP. On occasion it cleans barges for MAT. - It makés

up the southbound tows.. It has been doing this work for '

MAT for six years. MAT is obligated to use Towing if

the latter has a boat available unless: MAT’s customer —

_- Minnesota Harbor: Service, Ine. (Harbor) is engaged*

at Saint Paul in the towing of barges and in their clean-

ing, repair and service. It has done some business with

MAT since‘1962 but did not clean barges for. MAT until

. October 1964; prior to that time it cleaned MAT barges

for Farmers and another.

There is NO common ownership or control or common

officers or directors as between MAT, Farmers, N SP, Tow-

ing or Harbor.

- The fleéting area facility is owned by the.Port Authority *

of the City of Saint Paul. It is leased to Towing for the

° \

use of its barge eustomers including MAT.

No MAT employee performed any service at the docks

of Farmers or NSP. The examiner and the- Board spe-

cifically found that ‘‘MAT did not engage in any activity,

- in the conduct of its day-to-day operations, above the |

fleeting area in 1964, and no MAT employees were so

engaged in that period’’.

On August 1, 1964, NMU began a strike against MAT.

That morning, Collileux came to Farmers ’ dock -in Saint

Paul and distributed a pamphlet to five barge-loader em-

ployees of Farmers who were then at work there.’ The

pamphlet:referred to NMU’s dispute with MAT and asked

™ heii . . ~

ih RIL: BE ea A iS oe ROR EE eh cantar

. 26 ‘

Opinion

Collileux was referred: to the shop steward and to the

president of the union which represented Farmers’ em-.

ployees. NMU vice-president Miller sent telegrams to-

that union’s president and to Farmers’ superintendent

requesting assistance. |

On that day'two MAT barges were at Farmers’ dock.

Shortly after lunch Collileux began carrying a picket sign

on public property near those barges. The sign stated

that NMU was on strike against MAT and ‘‘We have no

dispute with any other employer’’. No loading of the

. barges took place so long as Collileux ‘picketed. - On August .

5 he returned when employees of Farmers were loading

a MAT barge there. He appeared again around noon

and at that time carried his picket. sign for about two

hours. The employees of Farmers stopped loading the

barge. Farmers then notified its merchandisers that ‘‘they

could not sell for delivery at a later date until such time

- as this matter is resolved’’.. Farmers attempted to get

- barges from other sources but was not entirely successful.

MAT offered to supply barges but this offer was not ac- |

_ cepted by Farmers. “As a result, Farmers ‘‘did miss a

- eonsiderable-volume of business’’. c— @

. Towing, whose deck employees’ are also members of

NMU, encountered similar difficulties in August 1964. On °

August 11 one of its boats was on its way to pick up two |

MAT barges at Harbor’s property in: Saint Paul. A

deckhand noted:a picket on the shore with a sign identical

té that. carried ‘by Collileux at Farmers. The captain -

* notified his dispatcher and did not: move the barges. On

August 20 the same boat went to another terminal in the ~

area to pick up a MAT barge loaded with grain. A deck-

hand noted a picket on the bluff and told the. captain

‘‘they did not want to pick up ‘the barge’’. On-August

25 another boat was towing barges upstream from the

fleeting area to an NSP plant.. It was met by a small craft

Opimion

: with 4 a picket aboard. Collileux was the picket and asked

the captain to tie the barges off. The captain called his

dispatcher. and then complied. Towing’s president ob-

jected about this te NMU’s Saint Louis agent. The latter .

replied that NMU was going to continue ahd even enlarge |

its picketing force.. |

About August 11 Collileux ‘inion his car near the

entrance to Harbor’s property in Saint Paul with @ sign .

_ reading ‘‘NMU on strike’’: However, no Harbor employee —

ceased work because of this. —

“There were no MAT towboats or MAT employees pre-

ent at the scene of any of these several incidents.

The trial examiner and the Board found that the picket-

ing was secondary; that the. primary dispute: was with ~

MAT;; that the situs of that dispute was between the Kast

Saint Louis docks and the Inver Grove fleeting area; that

MAT’s day-to-day activities were confined to that situs;.

that MAT boats and employees did not engage in activity

up river from the fleeting area; that Towing and Harbor

were independent contractors ; that neither: they nor

Farmers were engaged in the day-to-day activities of

MAT; that NMU’s appeals to employees of Farmers,

Towing and Harbor and to the union representatives of

Farmers’ employees were addressed.to individuals, within

the meaning of the Act; and that this conduct of NMU

and its agents violated the cited provisions of the Act.

The parties, for the most part, present the same cases

in support of their respective positions. These cases,

so far.as they are helpful ‘in the light of the language of

the statute as it preséntly reads, reveal the following:

"4, ‘The observation is made that Congress snus

has refused to prohibit peaceful picketing ‘‘except where

it is used as a means to_achieve specific ends which experi-

SR:

SAR nae

Opinion

ence has shown are undesirable’. NLRB v. Fruit &-

. Vegetable Packers, 377 U.S. 58, 62 (1964); NLRB D Vv.

sie ‘Union, 362 U.S. 274, at (1960).

2. Congress, by §8(b) (4), «did not seek ,.. to inter-

fere with the ordinary strike’. NLRB v. International

Rice Milling Co., 341 = S. 665, 672 (1951).

3. A sicily literal See therefore, could not

. be given to* that part of § 8(4)(b) which precedes the

. proviso i in sub-section (B). If the section were literally

interpreted, it would operate to ban primary activity:

Local-761, Int’l Union of Elec. Workers v. NLRB, 366 U.S.

_ 667, 672 (1961).

4. In uiiin the. statute Congress had’ the dual .‘‘ob-

‘ jectives of preserving the right of labor organizations to

' bring pressure to bear on offending employers in primary

labor disputes and of shielding unoffending employers and

others from pressures in controversies not their own’’

NLRB v. Denver Bldg. ¢ Constr. Trades Couneu, 341 U. Ss.

675, 692 (1951).

22 5. But not every type of secondary boycott is outlawed

by the statute. Local.1976, United Bhd. of Carpenters,

357 US. 98, 98-99 re

6. The presenee of economic pressure on a neutral em-

ployer is not necessarily evidence of illegality. Pressure

of this kind may be the natural result of lawful primary

activity, Indeed,

‘<The cases “recognize the very practical. fact that, -

intended or not, sought for or not, aimed for ‘ or not,

‘employees of neutral employers do take action sympa-.

thetic with strikers and do put pressure on their own

29 .

Opinion

employers. . . . The question is the objective.’?

Seafarers Int’l Union v. NLRB, 265 F.2d 585, 590

(D.C. Cir.1959). |

7. The drawing of the line between what is legitimate

‘‘primary’’ activity and. what is ‘proscribed ‘‘secondary”’

activity. can be difficult. Nevertheless, ‘‘the statute com-

pels the task’’ and, ‘‘In the absence of admissions by the .

union. of an illegal-intent, the nature of acts performed

shows the intent’’. Local 761, Int’l Union of Elec. Work- .

ers v. NDRB, supra, p. 674 of 366 U.S.; Seafarers Int’l

Union v. NLRB, supra, p. 591 of 265 F.2d.

8. Emphasis is on what is the routine activity of the

primary employer and his ‘‘every day’’ or ‘‘normal’’

operations. Where these are involved, picketing, even

though it ‘results in an appeal to neutral employees, is

usually not proscribed. See Local 761, Int’l Union of

Elec. Workers v. NLRB, supra, p. 680-82 of 366 U.S. Also,

‘‘The primary strike, which-is protected by the pro-

viso, is aimed. at applying economic pressure by halt-

.ing the day-to-day operations of the struck employer.

But Congress not only preserved the right to strike ;

.. it also saved ‘primary picketing’ from the secondary.

“ban.”” United Steelworkers of America v. NLRB, 376

U.S. 492, 499 (1964). ar il

These two cases disclose that although the location of the

picketing is an important ‘factor, it still may not be deci-

five; they indicate that picketing is not ‘protected merely

because it is at the primary employer’s property and that

. it is not proscribed merely because it is on property which, —

- although ‘‘proximate’’ to that of the primary employer,

is not owned by the latter. . c ay

2 FEWEST Pe alten a aah

= EE RE A LT

-_ oF aan

Ee ew teaee w

yrds.

oe |

9. Peaceful picketing ata pee ae site has been held

not proscribed where it is directed only to'a struck prod-

_uct, as contrasted with being directed against all trading

with the secondary employer. NDRB v. Fruit & Vegetable

Packers, supra, pp. 63. and 70-71 of 377 U.S+;NLBB v.

‘Upholsterers Frame Bedding Workers, 331 F.2d 561

(8 Cir. 1964).

10. A strike situs may be ambulatory.’ \ ship is an

example. Seafarers Int’l Union v. NLRB, supra, p. 590

‘of 265 F.2d; Sailors’ Union of. the Pacific (Moore Dry

Dock Co.), 92 N.L.R.B. 547, 549 (1950).

11. In certain circumstances, ‘‘the presence or absence

- of emplayees of the primary employer on the premises is”

not a critical factor’ in the legality of the picket line’’

Seafarers Int’l Union v. NLRB, supra, p. 590 of 265 F. 2d.

See Local 618, Automotive Employees v. NLRB, 249 F.2d

332 (8 Cir. 1957); Milwaukee Plywood Co. v. NLRB}285—

F.2d 325, 328 (7 Cir. 1960); New Power Wire & Elec

Corp. v. NLRB, 340, F.2d 71,’74 (2 Cir. 1965).

As in the Steelworkers case, supra, p. 496 of 376 U.S.,

it is clear that NMU’s activities here fell within the strict

language of clauses (i) and (ii) of $§8(4)(b); that NMU’s

objective, as judged by its actions, was to induce Farmers,

Towing, and Harbor to cease handling or loading MAT

barges during the pendency of the strike; and that that

objective also is within the language of sub-section (B),:

exclusive of that sub-section’s proviso. The question then,

is whether NMU’s activities are within the area of ee

picketing protected by that proviso.

NMU emphasizes that its picketing was peaceful at all

times and that Collileux was its only Minnesota picket. -

It argues that the barges—not the river from East Saint

Louis to Inver Grove and not the MAT towboat alone—.

Opinion

were e the employment situs; that the work done by Towing

was clearly necessary to the day-to-day operations of MAT;

that Towing was no more than a subcontractor of MAT

and was doing work which MAT was contractually obli-

gated to perform for NSP; that the delivery of the barges ~

was just as important to MAT’s day-to-day operations

as was the delivery of railroad cars in the Steelworkers

’ case; that the railroad cars there were not even the prop-

erty of the primary employer, whereas the barges here

were the property of MAT; that the subcontracting does Es

not deprive NMU of its: right to’ picket any more than

it did in the Electrical Workers case; that the handling

-. Of other employers’ barges was not interrupted ; that the

economic impact was no greater than if the towboat ‘had

stopped operating; that the cleaning and loading of barges,

even though done by. neutral employees, is essential to

MAT’s day-to-day operations and’ are a part of those

operations ; that the work done by Farmers and Harbor

is analogous to that. of truckers making deliveries to a

plant; that the cleaning and loading of barges is’ more

closely related to day-to-day operations than is the over-

- . hauling involved in the Seafarers case; and that the barges

are comparable to the cargo holds of. a seagoing vessel

except that. they can be disconnected and left at the dock

while the towboat itself moves on. :

There is a certain appeal to this rationale but | we are

| not persuaded by it,

The concept of what is necessary to the day-to-day

operations of MAT must have its limitations, too. Fuel,

for example, is necessary in the operation of MAT” s tow-

_ boat. Picketing the towboat might well effect economic

~ pressure on any fuel supplier whose delivering employees

refuse to cross the ‘picket line. That picketing, by the

cases cited, would be legal primary picketing: However,

if NMU were to picket the supplier’s Kentucky Coal mine

or its Oklahoma refinery, that ‘picketing, by the same

M6 at nw abet tt aceite tt A: mew nes

“.

RS ee kee *

Opinion .

cases, would be proscribed. Yet both situations concern

the fuel which is necessary to MAT’s ‘daily operations.

The distinction lies in the situs.

The barges here were owned or ‘ithaca by MAT.

But we are not persuaded that their wanderings and use

up river from the fleeting’ area were part of MAT’s. op-

erations, any more than that their wanderings and use

down river below East Saint Louis on their way to the

Gulf were, for strike purposes, operations of MAT. The .

significant. thrust of the Electrical Workers and Steel-

workers cases is in the vital connection of the workers

affected with ‘the day-to-day operations of the struck

_ employer. This is emphasized by Mr. Justice White in

. his opinion in the Steelworkers case, pp.497-98 of 376

U.S. Of course, in one sense, the unloading, cleaning

and reloading of its barge are. operations relating to

MAT’s business activity and essential to its business.

‘Presumably, were the barges picketed while they were

tied at MAT’s East Saint Louis docks, there would be

little question as to the propriety of that picketing. On:

‘the other hand, were picketing to go on in New Orleans

while MAT barges ‘were being unloaded there at a neutral

dock by employees of a consignee- after those barges had

been towed down. river from East Saint Louis by a trans-

~- portation company other than MAT, that picketing would

not be proper. |

The present case may perhaps fall between these two

extremes for, as NMU points out, MAT was contractually

obligated to effect, delivery of the coal | laden barges to

designated: NSP docks above the fleeting area, and to

tow grain laden barges down river from Inver Grove.

We think, however, that this additional fact of contractual

obligation does not swing the case in NMU’s favor. It

is clearly established that. MAT’s towboat did no towing

above the fleeting area and that MAT’s crew left the

Opinion

barges there -and: nes no service of any kind up-

river. Towing’s and Harbor’s and Farmers’ uses of the

barges were not occasioned by the strike but were their

regular and normal business activities. The barges’ status

_-as an employment situs, if it was such on the’ trip up-

* river, ceased when MAT’s transportation ended at Inver

Grove. This‘is not a situation. of the primary employees’

mere absence from their jobsite, such as the court’ was

concerned with in the Seafarers Union case. Instead, the

’ barges. had ceased to be the jobsite before Collileux?

picketing took place. They had then. become, instead, .

the normal jobsites of secondary employees alene and the

- picketing was directed to and affected their normal work

‘ at such normal sites without the. accompaniment .or even

proximateness of primary status. Every MAT employee

was far removed from the picketing.

The Board suggests an analogy which strikes us as

‘a valid one. It is that of a trucking firm which inter-

lines freight and turns over the loaded trailer it owns

and has hauled to another trucking company which, in

turn, transports the trailer to its ultimate destination.

Seemingly, where a union is in a dispute with the origi-

nating carrier, its effort to induce employees of the

eonnecting carrier to refuse to handle the trailer.is pro-

hibited. See NLRB v: Highway Truckdrivers, 300 F.2d

317 (3 Cir. 1962) ; Teamsters Union (Wilson Teaming Co. De

140 N.L.R.B. 164. Cf. Brown Transp. Corp. v. NLRB, 334

. F.2d 30 (5 Cir. 1964)

NMU would: distinguish the trucking ee front

‘ the present barge or maritime one on the ground that

the barges are independent vehicles and ‘‘are the very -

reason for the deckhand’s employment’’, whereas the

truckdriver’s duties with respect to. the trailer are so

few as. to be de minimis. “We fail to see the distinction.

- But if one exists, the relationship between the deckhand

}

/ nie

7 and the barge ceases once the barge is tied off from the ~

34 .

Opinin

towboat and routinely pursues its upriver way under the

power of an independent and neutral employer.

Perhaps we should say by way of final clarification

that we do not interpret the trial examiner’s and the

Board’s statement that the work situs was the river .

between East Saint Louis and Inver Grove as meaning

precisely that. We assume that what they meant to say

is that the employment situs was the towboat and the

towed’ barges during the time the employees worked on

them_as they. piled between the terminals.

Our conclusion makes it unnecessary for us to consider

what significance, if any, lies in the ‘‘bare boat’’ refer-

ence in the MAT-Farmers agreement.

NMU? s petition is denied. Enforcement of the Board’ ~

order i is granted.

A true copy. °

Attest:

Clerk, U. S. Court of Appeals, Eighth Circuit.

“a

35.

APPENDIX Cc

Decree ss

UNITED STATES COURT OF APPEALS

For tHE Eieutx Crmcuir

fy.

‘NationaL Maritime Union or ‘ AMERICA, AFL-CIO,

| Rick Mier AND Roserr Couuuax, )

Petitioners,

- bee

Nationa Lasor RELaTIoNs Boagp, ‘

Respondent.

No. 18,066

Before: . . = <

VocEL, Chief Judge, Biscaxcn, Circuit Judge, and

anuteens, District Judge. :

| « eee Cause came on to be heard upon = petition of

‘National Maritime Union of America, AFL-CIO, Rick

Miller and Robert Collileux, to review an order of the’

National Labor Relations Board issued against petitioners,

on June 11, 1965, and upon cross-petition of the National

Labor Relations Board to enforce said order. The Court

heard argument of respective counsel on March 2, 1966,

and has considered the briefs and the transcript filed in this ,

cause; ctober 10, 1966, the Court being fully advised

in the premises; ~ handed down its opinion denying the Peti-

tion for review and enforcing the order of the ‘National

-Labor Relations Board. | :

Decree

, °

On ConsiperaTion WHEREOF, it is ordered, adjudged and |

decreed by the United States Court of Appeals for the

Kighth. Circuit that the said order of the National Labor

Relations Board in said proceeding be enforced, and that

Petitioners, National Maritime Union of America, AF'L-

CIO, Rick Miller and Robert Collileux, its officers, agents,

and representatives abide by, and perform the directions

of the Board in said order contained.

a oe ,

Dated: November 3, 1966.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.