Petition for review of an order of the National Labor Relations Board dismissing a complaint which charged that intervenor SCNO Barge Lines, Inc., violated the National Labor Relations Act by denying a union access to employees on its boats. Petition for review denied.
Pierce and Winter, Circuit Judges, and Stewart, District Judge.*fn*
The National Maritime Union of America, AFL-CIO ("the Union") petitions for review of an order of the National Labor Relations Board ("the Board") which dismissed a complaint charging that intervenor SCNO Barge Lines, Inc. ("the Company" or "SCNO") violated § 8(a)(1) of the National Labor Relations Act ("NLRA" or "the Act"), 29 U.S.C. § 158(a)(1) (1982), by denying the Union's organizers access to the employees on the Company's boats.
We conclude that, except for home visits, the alternative means the Union had available to communicate with the Company's employees, namely, by mail, by telephone or by meetings at a Union office, were unreasonable. As for home visits, we agree with the Board's conclusion that the General Counsel failed to meet her burden of proving that they were an unreasonable alternative means of communication. Hence, we deny the petition.
In 1979, the Company operated towboats on the Mississippi River and other major rivers in the midwest. These boats, each with a crew of about ten, rarely tied up along the river bank. Supplies were delivered midstream. Besides crew members, only people with business aboard the boats, such as supply vendors, repair workers, and marine surveyors, routinely boarded the boats.
Crew members typically remained aboard for thirty days at a time, followed by thirty days off. The homes of the Company's seventy-five non-supervisory employees were dispersed over twelve states. Thirty-two of these crew members lived within fifty miles of a sizeable city located along one of the rivers on which the boats operated. Many of the rest lived in rural areas and had no street addresses.
In April 1979, the Union decided to initiate an organizing drive among towboat crews. On July 25, 1979, the organizer in charge of the drive, Henry Dooley, wrote to SCNO's president, requesting permission for the Union's organizers to board the Company's boats. SCNO's lawyer, Milton Talent, responded to Dooley's letter on August 9, informing Dooley that the Company would not permit union organizers to board its boats. Talent wrote that granting the Union access would "interfere substantially with Company production and operations." Talent further stated that the Company intended to see that the employees' rights under the NLRA were fully implemented and that "any reasonable, realistic and practical suggestions [from the Union] as to how that may be carried out will be seriously considered." On August 23, 1979, the Union filed an unfair labor practice charge against SCNO, based on its refusal to give the Union access to the Company's boats.
On August 30, 1979, Dooley wrote to SCNO, requesting a list of the names and addresses of employees on the boats. Talent responded on September 10, informing the union organizer that the Company would supply such a list, and, about ten days later, Dooley received a list of the names and addresses of SCNO's non-supervisory crew members.
During the following two months, the Union sent three mailings to these employees. In the mailings, the Union enclosed a pamphlet which discussed the Union, along with a detachable pledge card. So far as the record shows, the Union received no response from any of these mailings. Other than the mailings, the Union's organizing efforts were limited to asking riverboat workers who already belonged to the Union to promote the Union and to pass along Union literature when they came into contact with non-unionized crews. The Union made no effort to contact SCNO's employees by telephoning or visiting them at home.
On December 5, 1979, the Regional Director for Region 14 of the Board issued an amended complaint,*fn1 based on the Union's charge that the Company had committed an unfair labor practice by denying the Union's organizers access to its boats. An administrative law judge ("ALJ") heard the case on December 19, 1979. At the hearing, John Guay, one of the Union's organizers, testified that the Union did not attempt to visit the employees at their homes after it received the address list because their homes were widely scattered. At one point during the hearing, counsel for the Board's General Counsel, who argued the Union's case at the hearing, asked Guay: "Has there been any occasion recently in which you have tried to contact employees, personally, using a list of names and addresses?" Guay answered in the affirmative, stating that there had been such an earlier occasion in which an employer had provided the Union with a list of the names and addresses of its employees after a representation election had been ordered. Before Guay could testify about the results of the Union's efforts to contact the employees on that occasion, counsel for SCNO objected on the grounds that evidence of the Union's efforts in this earlier situation was irrelevant to the case against his client. The ALJ sustained the objection. The counsel for the General Counsel explained that, through his question, he was trying to demonstrate that the Union in this case decided not to try personally to contact the widely dispersed towboat employees because the organizers knew from past experience that such attempts would be fruitless. The ALJ adhered to his ruling excluding the evidence.
In a decision dated April 14, 1981, the ALJ concluded that SCNO violated § 8(a)(1) of the National Labor Relations Act by refusing to allow union organizers aboard its towboats. He concluded, based on Board precedent, that writing to, telephoning or visiting the widely dispersed homes of employees were not reasonable alternatives to reaching the employees by boarding the boats. SCNO filed numerous exceptions to the ALJ's decision. Neither the General Counsel nor the Union filed exceptions.
On December 15, 1987, the Board issued its decision and order, which disagreed with the ALJ and dismissed the complaint on the ground that SCNO had not violated § 8(a)(1) of the Act by denying the Union's organizers access to its boats. In an opinion signed by two of the three members of the Board's panel, the Board held that while the property right of the Company to keep organizers off its boats and the rights of the workers to have access to information about union organizing were relatively equal, "the General Counsel failed to show that no reasonable means of communicating the Union's organizational message to employees, other than through ship access, existed." SCNO Barge Lines, Inc., 287 N.L.R.B. No. 29, at 1, 127 L.R.R.M. (BNA) 1081, 1081 (Dec. 15, 1987). The Board gave several reasons for its conclusion. First, "although [SCNO] denied the Union's request to permit organizers access to its boats, it invited the Union to make other practical suggestions for implementing the employees' right to receive information about organizing." Id. at 2, 127 L.R.R.M. at 1081. Second, "the Union simply did not make sufficient efforts with the means at hand to show that those means were ...