# Petition for Writ of Certiorari — National Maritime Union v. National Labor Relations Board > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385603_0271%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1967 - **Citation:** 386 U.S. 959 ## Text 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 “IL 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 ........ 7s 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 ra Vv 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 =m 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 aD “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, e " on ’ ¢ 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. \ “« 7 Bd i + 4 c hia Gnereten st Fi ms ‘ "| . , s ., A DEIN A A, AI tena NTIS I DC one! Sgr G PMR 4. 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- . 0 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. 7 — 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 © held that the yessel on which sefimen work is their ‘‘work situs’? and that their temporary absence from the vessel does not change the vessel’s status as the work situs. 7 Se ee ee Ae ees pe Sean ALE iain Heist Ths +2 nin 8 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 g “is so limited, it falls within the proviso and is protected | primary activity. 9 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 . zits Soll ioe Not 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. —— ° » ee 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. . o* 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 @ : . SRO SS DBA G DRE EAE Ma a SLAG oly Cd See ‘ . . ee een AP A NBG 14 / s} a ’ e © 7 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 ip ' 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 a ° 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 17 A 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 18 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 19 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, v. 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 22 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; =§ - % xo 23 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 s 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) 25 " 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 — has designated a.different company, © _- 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 respectfor its picket lines and support for its strike. © . . ™ 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 27 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 28 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, ‘