Sabine Towing & Transp. Co., Inc. v. N.L.R.B.
| Decision Date | 27 July 1979 |
| Docket Number | 77-2540,Nos. 77-1261,s. 77-1261 |
| Citation | 599 F.2d 663 |
| Parties | 101 L.R.R.M. (BNA) 2956, 86 Lab.Cas. P 11,439 SABINE TOWING & TRANSPORTATION COMPANY, INC., Petitioner-Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent-Cross-Petitioner. NATIONAL LABOR RELATIONS BOARD, Petitioner, v. SABINE TOWING & TRANSPORTATION CO., INC., Respondent. |
| Court | U.S. Court of Appeals — Fifth Circuit |
John H. Smither, William A. Jones, Jr., Houston, Tex., for Sabine Towing & Transp. Co., Inc. in both cases.
Lynne E. Deitch, Atty., N. L. R. B., Washington, D. C., Elliott Moore, Dep. Assoc., Gen. Counsel, N. L. R. B., Washington, D. C., for N. L. R. B. in both cases.
Benjamin Schlesinger, Michael S. London, New York City, for Seafarers Union in both cases.
Petition for Review and Cross Application for Enforcement of an Order of the National Labor Relations Board.
Application for Enforcement of an Order of the National Labor Relations Board.
Before TJOFLAT and HILL, Circuit Judges, and HIGGINBOTHAM, * District Judge.
This consolidated appeal features the petition of Sabine Towing & Transportation Co., Inc. (Sabine) for review of one aspect of a decision of the National Labor Relations Board (the Board) in Case No. 77-1261, 205 NLRB 423 (1973), and the petition of the Board for enforcement of its entire order in that case and its order in Case No. 77-2540, 224 NLRB 941 (1976). The Board found Sabine in violation of sections 8(a)(1), 8(a)(3), and 8(a)(4) of the National Labor Relations Act, 29 U.S.C. § 158(a)(1), (3), (4) (1976), in a number of ways. Because its findings are clearly supported by substantial evidence, we enforce without further discussion the Board's entire order in Case No. 77-2540 and all but one aspect of its order in Case No. 77-1261. In the latter case, the Board misallocated the burden of proof in attempting to balance the property rights of Sabine against the organizational rights of non-Sabine-employee organizers from Seafarers International Union of North America, Atlantic, Gulf, Lakes and Inland Waters District (SIU) to carry out activities on Sabine's property. In so doing, the Board found that Sabine denied SIU organizers access to employees on Sabine's property and, accordingly, violated section 8(a)(1) of the Act. Had the Board charged SIU with the burden of proving nonaccess, as an intervening Supreme Court decision mandates, it would have been required to find for Sabine on the issue. We do so now and deny enforcement to the pertinent portion of the Board's order in Case No. 77-1261.
Sabine operates a small fleet of ocean-going oil tankers which ply the coastal waters of the United States. Since 1947, Sabine's unlicensed seaman employees have been represented by the Sabine Independent Seamen's Association (SISA). In 1967, both SIU and the National Maritime Union (NMU) petitioned the Board for a representation election, which was won by SISA. In April 1971, SIU petitioned for another election; SIU, SISA and NMU all appeared on the ballot. After the election petition was filed, SIU requested that Sabine allow its organizers, none of whom were Sabine employees, to board Sabine's vessels in order to campaign among the unlicensed seamen, who resided on Sabine's tankers. Sabine refused SIU's request.
After the June 1971 election, which was won by SISA, SIU filed charges against Sabine for, among other things, denying its organizers access to the tankers. Following a lengthy hearing, the Administrative Law Judge (ALJ) held that the General Counsel had failed to meet his burden of proving that Sabine's denial of access had deprived SIU organizers of a reasonable opportunity to communicate their message to Sabine crewmen. The Board reversed, holding that Sabine, not the General Counsel, bore the burden of proof in this case I. e., Sabine had to show that SIU organizers had a reasonable opportunity to convey their campaign to Sabine employees; it was not the General Counsel's obligation to establish that the denial of access prevented SIU from communicating its organizational message. As the Board conceded in oral argument, if the burden of proof was improperly placed with the employer, its decision cannot stand.
The genesis of this case is NLRB v. Babcock & Wilcox Co., 351 U.S. 105, 76 S.Ct. 679, 100 L.Ed. 975 (1956), where the Supreme Court discussed employer property rights as compared with the right of nonemployees engaged in organizational activities to have access to the employer's property. The Babcock & Wilcox Court held that:
(A)n employer may validly post his property against nonemployee distribution of union literature if reasonable efforts by the union through other available channels of communication will enable it to reach the employees with its message and if the employer's notice or order does not discriminate against the union by allowing other distribution. . . .
. . . (W)hen the inaccessibility of employees makes ineffective the reasonable attempts by nonemployees to communicate with them through the usual channels, the right to exclude from property has been required to yield to the extent needed to permit communication of information on the right to organize . . . (I)f the location of a plant and the living quarters of the employees place the employees beyond the reach of reasonable union efforts to communicate with them, the employer must allow the union to approach his employees on his property.
Id. at 112-13, 76 S.Ct. at 684-85. The mere fact that Sabine's employees resided on its tankers during their tours of duty operated, in the Board's view, to shift the burden...
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