Before STALEY, GANEY and SMITH, Circuit Judges.
This matter is before the Court upon petition of the National Labor Relations Board for enforcement of its order. It arose out of charges brought by the Board of Harbor Commissioners of Wilmington, Delaware, against the International Longshoremen's Association, AFL-CIO ("ILA"), its affiliated Local 1694, and two of ILA's officers, alleging that they unlawfully induced employees of Murphy, Cooke & Co. ("Murphy"), a stevedoring concern, not to remove a cargo of frozen meat from a vessel docked at the Marine Terminal in Wilmington. The ILA and Local 1694 claimed the right on behalf of employees of Murphy to do the necessary handling of the cargo until it was placed at the freezer door of Transit Freeze Corporation, consignee of the meat. The Board found that respondents had committed unfair labor practices within the meaning of § 8(b)(4)(B) of the Labor Management Relations Act, 29 U.S.C.A. § 158(b)(4)(B), by inducing employees of Murphy to engage in a strike with an object of forcing or requiring Murphy and Norton, Lilly & Co., Inc., ("Norton"), a shipping agent, to cease doing business with other persons, and also within the meaning of § 8(b)(4)(A) of the Act by forcing or requiring Murphy "to enter into" an agreement which is prohibited by § 8(e) of the Act. International Longshoremen's Association, AFL-CIO, et al ., 137 NLRB 1178 (1962).
The Marine Terminal in Wilmington, Delaware, is maintained and operated by the Board of Harbor Commissioners, a political subdivision of Wilmington.*fn1 The Commissioners had a collective bargaining agreement with Highway Truck Drivers & Helpers, Local 107 of International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America. They therefore hired employees represented by locals affiliated with the Teamsters Union. Transit Freeze Corporation leased a portion of the pier space from the Commissioners for the purpose of building a freezing compartment for the storage of fresh and frozen foods. One of the provisions of the lease states in part: ". . . charges for all services which may be rendered by Lessor to the Lessee other than those specified hereinabove, shall be as is specified in the presently effective publication designated as 'Tariff No. 13' of the Wilmington Marine Terminal or as may be specified in any amendment thereof or Supplement thereto."*fn2
Transit orally agreed to have the Commissioners hire all labor, when necessary, on a cost plus fifteen percent basis, for services incident to the handling and transporting of food stuff on the terminal to and from its freezer compartment. Around August 15, 1960, the freezer compartment of Transit Freeze was ready for use.
The first frozen cargo of meat destined for Transit Freeze was scheduled to arrive on the S.S. Pipiriki in August of 1960. Before meat may be brought into the United States, it must pass inspection by inspectors of the Department of Agriculture. For this purpose containers of meat must be placed at a convenient place on the dock or pier, the containers opened, the meat inspected, and if found to be fit, graded and stamped, and then repackaged. Thereafter, the containers are placed at a location on the dock or pier where they may be picked up by the consignee. If the meat is to be stored, the containers must be transported to the storage place. The process of opening and reclosing the containers is known as "coopering". The vessel owner employed Norton as shoreside agent for the vessel. Norton, in turn, made arrangements with the Commissioners for docking the vessel at the Wilmington Marine Terminal according to the rates, terms and conditions of Tariff No. 13.*fn3 It also contracted with Murphy to unload the cargo of the vessel. Both Norton and Murphy are members of the Philadelphia Marine Trade Association ("PMTA"), an association of some 72 employers, consisting of steamship companies, steamship agents, terminal operators, stevedoring companies, ship repair and cleaning companies, ship carpenters, and other related organizations concerned with servicing vessels and piers on the waterfront of the Delaware River within the geographical area of the Port of Philadelphia. PMTA has a collective bargaining agreement with ILA effective from October 1, 1959 to September 30, 1962. It has also entered into similar agreements with a number of local unions affiliated with ILA. One of these, dated December 23, 1959, and designated "Longshoremen's Agreement" was entered into with Locals 1290, 1291, 1332 and 1694 which represent long-shoremen.The preamble of this agreement, in pertinent part, provides:
"THIS AGREEMENT . . . covers the work pertaining to the rigging of ships, loading and unloading of all cargoes, including mail, ships' stores and baggage, in the Port of Philadelphia and Vicinity, including all points on the Delaware River from Trenton, New Jersey, to Artificial Island, inclusive.*fn4
"The Employer-Members of the Association agree that they will not directly perform work done on a pier or terminal or contract out such work which historically and regularly has been and currently is performed by employees covered by this agreement or employees covered by I.L.A. craft agreements unless such work on such pier or terminal is performed by employees covered by I.L.A. agreements."
The S.S. Pipiriki docked on August 22, 1960, with a cargo of meat at the Wilmington Marine Terminal ready to be unloaded. During a meeting on the previous day at which representatives of ILA, Local 1694, the Commissioners, Local 107 (Teamsters), Transit Freeze, and Murphy were in attendance, ILA and Local 1694 were told by the superintendent of the Terminal that the employees represented by ILA were not entitled to the work in question. In response, James T. Moock, vice-president of ILA, said that he was not going to permit the vessel to be unloaded unless ILA members got that work.*fn5 Moock also insisted that Murphy live up to the PMTA-Local 1694 agreement which, according to him, called for Murphy to do the necessary work of handling the meat from shipside to freezer door. Thereafter, the employees of Murphy, without Murphy's consent, refused to unload the vessel until a restraining order was issued against respondents by the United States District Court for the District of Delaware on August 27, 1960, pursuant to § 10(l ) of the Act. Samoff v. International Longshoremen's Association, Local 1694, et al ., 188 F. Supp. 308. The employees of Murphy did the unloading, and the employees hired by or through the Commissioners did the coopering and the transporting of the meat shipside to the door of Transit Freeze.*fn6 After a hearing before the National Labor Relations Board, that Board made findings of fact and conclusions of law and issued an order requiring respondents to cease and desist from conduct found by the Board to be unfair labor practices.
I. Respondents do not seriously deny that they induced or encouraged employees of Murphy to engage in a strike or that their activity fell within clauses (i) and (ii) of § 8(b)(4). Instead they defend their actions on the asserted ground that such employees have a right to strike for the purpose of requiring their employer to adhere to the provisions of a collective bargaining agreement which forbids the employer from performing or contracting out work done on a pier or terminal unless such work is performed by employees covered by ILA agreements, where the work has been historically and regularly performed and is currently performed by employees covered by the agreement or by employees covered by ILA craft agreements. Such a strike, respondents maintain, is specifically protected by the proviso clause of § 8(b)(4)(B),*fn7 which permits any primary strike where not otherwise unlawful. We agree with the Board that respondents' activities were proscribed by clause (B) of § 8(b)(4). As stated in NLRB v. Enterprise Assn ., 285 F.2d 642 (C.A. 2, 1960),*fn8 at page 645: Respondents' argument, "is predicated upon a faulty and incomplete view of the controlling facts." The Board found that an object of respondents' conduct in inducing the strike was to effect a disruption of the business relations of all persons engaged in the transportation of meat to Transit Freeze until employees represented by ILA were employed to do the disputed work.
It cannot be gainsaid that the Act does not prohibit all strikes. Sand Door case, (Carpenters Union v. NLRB ), 357 U.S. 93, 98-99 (1958). It outlaws only those strikes whose objects are proscribed by the Act. Clearly one of the objects here, if not the only one, was to require someone to hire employees represented by ILA to do the coopering and the transporting of the meat to the door of Transit Freeze. If Murphy was without power, under the circumstances, to assign that work or without authority to perform it, then respondents' actions were proscribed by § 8(b)(4)(B).
Responsibility for performing or hiring labor to perform the disputed work rested upon someone. The Board concluded that the Commissioners, not Norton or Murphy, had the authority to decide which contractor and hence, which group of employees would be permitted to do the work. Respondents claim that there is no provision in Tariff No. 13, requiring persons doing business with the Terminal to leave the handling of goods on the pier to the Commissioners. The right of the Commissioners to insist on such a condition precedent before one may transact business on the Terminal is well within the power granted by the Delaware Act of April 12, 1917, as amended, Revised Code of Del. (1935), Ch. 67, art. 3, § 2436 ( § 28). And item 60 under the rules and regulations of Tariff No. 13, we think, is sufficient notice to shippers, consignees and water carriers that they must make arrangements in advance with the Commissioners for the handling of cargo if they desire to transact business at the Terminal. Here, prior arrangements were made with the Commissioners by representatives of the consignee and the vessel owner.*fn9 Agents of the latter were told by the superintendent of the Terminal that their jurisdiction over the cargo would end when the longshoremen placed the cargo on pallets at the side of the vessel. Moock testified that this was the usual practice on the waterfront.
But even if we assume that Tariff No. 13 did not reveal that the Commissioners were exercising their power to take exclusive jurisdiction over goods on the Terminal, we cannot say that the Board's conclusion was not supported by substantial evidence on the whole record. The fact is that the Commissioners assumed they had the right to handle goods on the pier and told Murphy that they would take over when it placed the cargo of meat on pallets at the vessel's side. If they were wrong in doing so, the inducing or calling of a strike against Murphy was not the proper answer. Superior Derrick Corp. v. NLRB, 273 F.2d 891, 893 (C.A. 5, 1960), cert. denied sub nom. Seafarers' International Union of North America, AFL-CIO, v. NLRB, 364 U.S. 816; NLRB v. Plumbers Union of Nassau County, Local 457, 299 F.2d 497, 501 (C.A. 2, 1962). There was no showing that Murphy conspired with the Commissioners in order to circumvent the terms of the agreement between PMTA and Locals 1290, 1291, 1332 and 1694. Therefore, ILA and Local 1694's dispute was not with Murphy, the employer of the striking longshoremen, but with some other person. Moreover, the vessel owner did not have the primary obligation of paying for the coopering and the transporting of the meat from shipside to the consignee's freezer door. Its responsibility for the cargo ended when it delivered the meat to the terminal operator. The Board did not find the custom of the port to be otherwise, or that the Commissioners or the consignee complained that proper delivery was not made. See The Eddy, 27 U.S. 481 (1866); Constable v. National Steamship Co ., 154 U.S. 51, 63 (1894); North American Smelting Co. v. Moller S.S. Co ., 204 F.2d 384 (C.A. 3, 1953); Tan Hi v. United States, 94 F. Supp. 432 (N.D. Cal. 1950). Also see Norjac Trading Corp. v. The Matilda Thorden, 173 F. Supp. 23, 28 (E.D. Pa. 1959). The obligation of paying for the work in question fell upon either the consignee or the shipper, or in part upon the consignee and in part upon the shipper. As has been adverted to earlier, the consignee, Transit Freeze, had previously arranged with the Commissioners to have them supply all the labor and equipment which it might require from time to time. Norton was the agent for the vessel owner and not that of either the consignee or the shipper. Hence Murphy, who derived its power to unload the vessel from Norton, had no authority to mete out any phase of the disputed work.
The Board also found that respondents' activities were not within the protected area of primary striking in the proviso to clause (B). ...