Alaska Steamship Co.

National Labor Relations Board - Board Decisions

Feb 11, 1952

98 N.L.R.B. 22 (N.L.R.B. 1952)

22 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ALASKA STEAMSHIP COMPANY and HORACE W. UNDERWOOD
AMERICAN RADIO ASSOCIATION, CIO and HORACE W. UNDERWOOD.
Cases Nos. 19-CA--277, 19-CA-358, 19-CB-90, and 19-CB-135.
February 11, 1952
Decision and Order
On July 3, 1951, Trial Examiner A. Bruce Hunt issued his Interme-
diate Report in the above-entitled proceeding, finding that the Re-
spondents had engaged in and were engaging in certain unfair labor
practices and recommending that they cease and desist therefrom and
take certain affirmative action as set forth in the copy of the Interme-
diate Report attached hereto. The Trial Examiner further found
that Respondent had not engaged in other unfair labor practices al-
leged in the complaint and recommended that the complaint be dis-
missed as to them.' Thereafter, the charging party and the Respond-
ents filed exceptions to the Intermediate Report and supporting briefs.
The Board 2 has reviewed the rulings of the Trial Examiner and
finds that no prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Intermediate Report,
the exceptions and briefs filed by the parties, and the entire record in
the case, and hereby adopts the findings,3 conclusions, and recommen-
dations of the Trial Examiner, with the modifications noted below.
1. The Trial Examiner apparently found the effective date of the
discrimination against Underwood to be May 5, 1950, the date Under-
wood was not offered the position of radio officer on the ship Alaska.
This resulted, as found by the Trial Examiner, from Underwood's
name being discriminatorily stricken from the national assignment list
of the Respondent Union. We find that the act of removing Under-
wood's name from the assignment list in itself constituted discrimi-
nation in violation of Section 8 (a) (1) and (3) of the Act by the
Respondent Employer and Section 8 (b) (1) (A) and (2) of the Act
by the Respondent Union. However, we agree with the Trial Exam-
iner in his finding that Underwood was also discriminated against on
May 5, 1950, and in his setting that date as the date from which
Underwood's right to back pay shall run.
1 As no exception has been filed to this recommendation , we shall dismiss the allegations
in the complaint relating to these unfair labor practices.
2 Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act,
the Board has delegated its powers in connection with this case to a three -member panel
[ Members Houston, Murdock , and Styles].
3 The Intermediate Report contains two inadvertent inaccuracies . It states that `Begin-
ning with April 1, 1950 , soon after his latest membership in the Union , Underwood wrote
a series of letters to it The correct date is April 1, 1949. At a later point the
Intermediate Report states that "[The AZaskg ] was laid up from October 1, 1949 , to May 2,
1950, when it returned to service for the period ending May 14, 1950." The last date
should be October 14, 1950.
98 NLRB No. 12.
ALASKA SBEAMSHIP COMPANY 23
2. The Alaska operated from May 5 to October 14, 1950, at which
latter date it was laid up for the winter season. At that time, had
Underwood been employed on the ship as radio officer„ as it,has been
found he should have been, he would have been entitled, according
to the rules of the Respondent Union, to "stand by" the, ship,Nretain-
ing his right to the radio officer's position when it resumed operation.
Or he could have relinquished his position and presumably had his
name restored to the Union's assignment lists. The Trial Examiner
found that Underwood would have elected to stand by the Alaska.
and would therefore have had the right to return to it when the ship
went back into operation in the spring of 1951. The Trial Examiner
further found that through the operation of the rules of the Union,
Underwood would have been automatically promoted to the position
of chief radio operator on the Alaska. He therefore recommended
that the Respondent Company be required to offer Underwood that
position or a substantially equivalent one. In our opinion, a finding
that Underwood would have attained the position of chief radio
operator involves too much speculation as to a series of contingent
events to be a proper finding for us to make. We will therefore order
that the Respondent Company offer Underwood the position of radio
officer aboard the vessel Alaska, or a substantially equivalent position.
We do not intend by this modification, however, to change in any
way the Trial Examiner's recommendations as to the back pay due
Underwood, except to the extent of any differential between the
wage rates of a radio officer and a chief radio operator.
Order
Upon the entire record in this case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that:
1. Alaska Steamship Company, its officers, agents, successors, and
assigns, shall:
a) Cease and desist from :
(1) Encouraging membership in American Radio Association,
CIO, or in any other labor organization of -its employees, by refusing
to employ any qualified person because he is not a member of this
organization or by discriminating in any manner in regard to the
tenure of employment or any term or condition of employment of
its employees, for this reason, except to the extent authorized by
Section 8 (a) (3) of the Act.
(2) In any like or related manner interfering with, restraining,
or coercing its employees in the exercise of the right to self-organiza-
tion, to form, join, or assist labor organizations, to bargain collectively
through representatives of their own choosing, or to engage in con-
24 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
certed activities for the purposes of collective bargaining or Other
mutual aid or protection, or to refrain from any or all such activities.
(b) Take the following affirmative action which the Board finds
will effectuate the policies of the Act :
(1) Offer to Horace W. Underwood immediate employment as ra-
dio officer aboard the Alaska, or in a substantially equivalent position,
with all the rights of seniority and other privileges that would have
accrued from May 5, 1950, the date of the unlawful discrimination
against him, in the manner provided in the Intermediate Report.
(2) Upon request, make available to the Board or its agents for
examination and copying all payroll and other records necessary to
determine the amount of back pay due under the terms of this Order.
(3) Post in conspicuous places in its office and places of business
in Seattle, Washington, including all places where notices to em-
ployees are customarily posted, and in the radio shacks on all vessels
owned or operated by it, copies of the notice attached to the Inter-
mediate Report and marked "Appendix A." 4 Copies of said notice,
to be furnished by the Regional Director for the Nineteenth Region,
shall, after being duly signed by this Respondent's representative,
be posted by it immediately upon receipt thereof, and maintained
by it for at least sixty (60) consecutive days thereafter. Reasonable
steps shall be taken by this Respondent to insure that said notices are
not altered, defaced, or covered by any other material.
(4) Notify the Regional Director for the Nineteenth Region in
writing, within ten (10) days from the date of this Order, what steps
the Respondent Company-has taken to comply herewith.
2. American Radio Association, CIO, its officers, rein•esentatives,
agents, successors, and assigns, shall:
(a) Cease and desist from :
(1) Causing Alaska Steamship Company, its officers, agents, suc-
cessors, or assigns, to refuse to employ any qualified person or to dis-
criminate in any manner in regard to the tenure of employment or
any term or condition of employment of its employees for failure to
belong to American Radio Association, CIO, except as authorized by
Section 8 (a) (3) of the Act.
(2) In any like or related manner restraining or coercing employees
of Alaska Steamship Company, its successors or assigns, in the exer-
cise of their rights to engage in, or to refrain from engaging in, any
or all of the concerted activities guaranteed in Section 7 of the Act.
4 This notice, however, shall be, and It hereb3 is, amended by striking from line 3 thereof
the words "The Recommendations of a Trial Examiner" and substituting in lieu thereof
the words "A Decision and Order." In the event that this order is enforced by a decree
of a United States Court of Appeals, there shall be substituted for the words "Pursuant
to a Decision and Order" the words "Pursuant to a Decree of the United States Court
of Appeals, Enforcing an Order."
ALASKA STEAMSHIP COMPANY 25
(b) Take the following affirmative action, which the Board finds
will effectuate the policies of the Act :
(1) At an appropriate time and upon his request and proper ap-
plication, restore Horace W. Underwood to its assignment lists in
conformance with its rules, and refer him to assignments in accord
with his proper place on those lists and without discrimination in
any manner, except as authorized by Section 8 (a) (3) of the Act.
(2) Post in conspicuous places in its offices in Seattle, Washington,
and wherever notices to its members and other radio officers utilizing
its employment facilities are customarily posted, copies of the notice
attached to the Intermediate Report and marked "Appendix B." 5
Copies of said notice, to be furnished by the Regional Director for
the Nineteenth Region, shall, after being duly signed by this Respond-
ent's representative, be posted by it immediately upon receipt thereof.
(3) Alai] to said Regional Director signed copies of the notice at-
tached to the Intermediate Report and marked "Appendix B," for
posting, the Respondent Company willing, at the office and places of
business of the Company in Seattle, Washington, in places where
notices to employees are customarily posted, And in the radio shacks
on all vessels owned or operated by the Company. Copies of said
notice, to be furnished by said Regional Director, shall, after being
duly signed by this Respondent's representative, be forthwith re-
turned to the Regional Director for such posting.
(4) Notify the Regional Director for the Region in writing, within
ten (10) days from the date of this Order, what steps the Respondent
Union has taken to comply herewith.
3. The Respondents, Alaska Steamship Company, its officers, agents,
successors, and assigns, and American Radio Association, CIO, its
officers, representatives, agents, successors, and assigns, shall jointly
and severally make whole Horace W. Underwood for any loss of pay
he may have suffered by the Respondent's discrimination against him,
in the manner described in the.Intermediate Report.
IT IS FURTIIER,ORDERED that, the complaint be dismissed insofar as
it alleges that the Respondent Company has violated-Section '8 (a)
(2) of the Act or has engaged in unfair labor practices within the
meaning of Section 8 (a) (1) and (3) thereof, except by the dis-
crimination against Underwood.
IT IS FURTHER ORDERED that the complaint be dismissed insofar as
it alleges that the Respondent Union has engaged in unfair labor
practices within the meaning of Section 8 (b) (1) (A) and (2) except
by the discrimination against Underwood.
6 See• footnote 4
26 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Intermediate Report and Recommended Order
STATEMENT OF THE CASE
Upon charges duly filed by Horace W. Underwood, herein called the Complain-
ant, the General Counsel of the National Labor Relations Board,' by the Regional
Director for the Nineteenth Region (Seattle, Washington), issued a consolidated
complaint dated January 22, 1951, against Alaska Steamship Company, Seattle,
Washington, herein called the Company, and American Radio Association, CIO,
Seattle, Washington, herein called the Union, and jointly called the Respond-
ents, alleging that the Respondents had engaged in and were engaging in unfair
labor practices affecting commerce within the meaning of Section 8 (a) (1) and
(3) and Section 8 (b) (1) (A) and (2), respectively, and Section 2 (6) and
(7) of the National Labor Relations Act, as amended, 61 Stat. 136, herein called
the Act. Copies of the complaint, accompanied by an order consolidating the
cases and notice of hearing, and copies of the respective charges, were duly served
upon the Respondents.
With respect to the unfair labor practices, the complaint alleged in substance
that: (a) On December 3, 1948, the Respondents entered into an agreement, later
amended by an agreement of July 14, 1950, each of which provided that the Com-
pany would obtain its marine radio officers through the facilities of the Union
and also contained preferential employment provisions which were illegal and
void because of the failure to satisfy the requirements in the proviso to Section
8 (a) (3) of the Act, both as to the conduct of a union-shop election and the
permissible limits of union-security provisions; (b) since about May 15, 1949,
the Union has had in effect certain shipping rules for radio officers, pursuant to
which the Union has maintained and administered assignment lists, restricting
to members of the Union referrals to positions with the Company and other
employers; (c) notwithstanding application by Horace W. Underwood, a radio
officer, to the Union for placement on its assignment lists and to the Company
for employment, the Union refused to dispatch Underwood to the Company or
other employers for available positions as a radio officer; and (d) by said acts
and conduct, the Union violated Section 8 (b) (1) (A) and (2) and the Com-
pany violated Section 8 (a) (1) and (3) of the Act.
On January 31, 1951, the Company filed its answer, admitting certain allega-
tions of the complaint concerning its corporate structure and business activities.
The answer admitted also that on December 3, 1948, the Company, through
Pacific American Shipowners Association, and on July 14, 1950, through its
successor, Pacific Maritime Association, acting on behalf of their member com-
panies, had entered into labor agreements with the Union, but the answer denied
that the Company had engaged in unfair labor practices. On February 2, 1951,
the Union filed its answer, admitting that it was, and had been, under con-
tractual relationships with the Company, but denying that it had engaged in
unfair labor practices.
Pursuant to notice, a hearing was held on February 26 and 27, and March 26
to 28, 1951, inclusive, at Seattle, Washington, before the undersigned Trial
Examiner duly designated by the Associate Chief Trial Examiner. The General
Counsel, both Respondents, and the Complainant were represented by counsel,
and all participated in the hearing. Full opportunity to examine and cross-
examine witnesses and to introduce evidence pertinent to the issues was afforded
all parties. At the opening of the hearing, the General Counsel moved to
I The General Counsel and the attorney representing him at the hearing are referred
to as the General Counsel . The National Labor Relations Board is referred to as the Board.
-ALASKA STEAMSHIP COMPANY 27
amend the complaint in a minor respect, and the motion was granted. The
Union moved to strike certain allegations of the complaint,, which motion was
joined in by the Company. It was taken under advisement by me and later
denied. The Company moved, and the Union joined therein, to dismiss the
allegations of the complaint that the contract of July 14, 1950, was unlawful
per se, upon the ground that the alleged unlawful provisions therein had been
approved- in substance by the Board in another proceeding involving other parties,
and this motion was taken under advisement. The Company also moved, with
the Union joining in, that the complaint be dismissed insofar as it alleged that
the execution of the agreement of December 3, 1948, had been unlawful, upon
the ground that no timely charge had been filed. This motion was granted upon
that and an additional ground, as will appear in the discussion of the contracts
below. On the second day of the hearing, the General Counsel moved to amend
the complaint in several respects, particularly to allege'' that -the - Company
violated Section 8 (a) (3) by its failure to employ Underwood after his applica-
tion to the Company for employment, and to allege also that the Company, by
its alleged acts and conduct above recited, violated Section 8 (a) (2) of the
Act. This motion was granted over the Respondents' objections. Upon motion
of the Respondents, the hearing was adjourned until March 26. When the
hearing resumed, the Respondents moved that their respective answers be
deemed amended to deny the new allegations, and these motions were granted.
The Company, with the Union joining therein, renewed its motions above stated
to dismiss certain allegations of the complaint, and my rulings were as before.
At the close of the hearing, the General Counsel moved to conform the pleadings
to the proof as to minor matters, and this motion was granted without objection.
Each Respondent moved to dismiss the complaint upon the ground that there had
been a failure of proof, and the Company renewed its motion to dismiss the
allegation that the contract of July 14, 1950, was unlawful per se. These motions
were taken under advisement, and are disposed of in accordance with the deter-
minations below. The parties did not avail themselves of an opportunity to argue
orally, but there was a brief discussion of the issues on the record. Pursuant
to leave granted, the Respondents and the Complainant filed briefs.
Upon the entire record in the case and'from my observation of the witnesses,
I make the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
'Alaska Steamship Company, a Washington corporation with its principal
office and place of business in Seattle, is engaged in the operation of ocean-going
vessels for the transportation of persons and cargo between ports in the United
States and ports in the Territory of Alaska. During the year 1950, the Com-
pany's revenue from its business' activities exceeded $100,000. There is no
dispute, and I find, that the Company is engaged in commerce within the mean-
ing of the Act. '
II. THE LABOR ORGANIZATION INVOLVED
American Radio Association, CIO, is a labor organization admitting to member-
ship employees of the Company.
III. THE UNFAIR LABOR PRACTICES
A. Preliminary statement
The Company is a member of Pacific Maritime Association, herein called
PMA, and was a member of PMA's predecessor, Pacific American Shipowners
28 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Association, herein called PASA. These associations, neither of which is a
party to this proceeding, represented their member companies in collective
bargaining negotiations with the Union. This case involves a contract between
PASA and the Union, dated December 3, 1948, and the Union's applicable shipping
rules governing assignments of radio officers to available positions under prin-
ciples of "rotary hiring," a system based essentially upon hiring in rotation with
an effort to distribute the work equally. The legality of that contract was in
issue in Pacific Maritime Association, 89 NLRB 894. The succeeding contract
between PMA and the Union, dated July 14, 1950, and executed after the Board's
decision in the cited case, is also involved here along with the Union's revised
shipping rules, both of which were in effect at the time of the hearing herein.
The December 3, 1948, contract is herein called the 1948 agreement. The later
contract is called the 1950 agreement. The complaint alleges that each agree-
ment was unlawful per se and in its administration. Additionally, we have
alleged discrimination against Horace W. Underwood, a radio officer who sought
employment with the Company during the lives of the two agreements. First
we shall consider the issues concerning the agreements and the Union's shipping
rules, and next the issues involving Underwood.
B. The app eernents and the Union's shipping rules
1 The 1948 agreement
On December 3, 1948, PASA and the Union executed a collective labor agree-
ment which, in part, was as follows :
PREFERENCE OF EMPLOYMENT
Section 1. Employers [Member Companies of PASA] agree to recognize
the Association [Union] as the authorized collective bargaining agent for
all Radio Officers employed by Employers and when filling vacancies prefer-
ence of employment shall be given to members of the Association.
HIRING
Section 2 . The names of all unemployed members of the Association shall
be placed on the Association 's unemployed lists at the various offices of
the Association . The offices of the Association shall be the central clearing
bureaus through which all arrangementsin conneeti if with the,,employ-
ment of Radio Officers shall be made. For the purposes of promoting safety
of life and property at sea, and to guarantee as far as is practical equal
distribution of work among all members of the Association , the parties
hereto agree that vacancies shall be filled in the following manner. Pref-
erence shall be given the Radio Officer longest unemployed who can
present proof of previous employment and/or experience on a job or jobs
similar to that which is offered , and who in the judgment of the Employer
is qualified , competent , and satisfactory to fill the job.
When any Radio Officer is rejected , the Employers shall furnish a state-
ment in writing to the Association stating specifically the reason why he is
not qualified , competent , and satisfactory to fill the job.
a s s * •
DISCRIMINATION
Section 3. (a) The Employers agree not to, discriminate against any mem-
ber of the Association for legitimate union activity. • - -
ALASKA STEAMSHIP COMPANY 29
Section 3 (b) of the contract provided certain substitute procedure for the
employment of radio officers by the Member Companies of PASA in the event
that the above-quoted provisions were "suspended in any way as a result of
legal action . . .," which substitute provisions were to be applicable during nego-
tiations for "provisions complying with the law."
2. The Union's applicable shipping rules
The Union's shipping rules, correctly termed "National Marine Assignment
Rules," which were adopted in early 1949 and were effective thereafter during
the life of the 1948 agreement, are quoted in part below. In order to facilitate
an understanding of the changes later made in the rules, certain wording is
emphasized The rules provided •
Rule 1. It is the policy of the Union that the membership shall be offered
employment through the Branch offices of the Union in accordance with the
principle of rotary hiring. . .
Rule 3. The term "member" or "menz,bersh.ip" as used in these Rules shall
mean a full book member or members in good standing in the American. Radio
Association.
NATIONAL ASSIGNMENT LIST
Rule 4. (a) A National assignment list shall be maintained by the Union.
Such list shall be posted in each Branch office of the Union.
Rule 4. (c) The assignment list shall be considered confidential and shall
not be divulged in whole or in part to any non-member of the Union.
REGISTERING ON LIST
Rule 5. (a) All members desiring to obtain employment shall register for
the assignment list and shall be designated as Active [available for employ-
ment] for a specific Branch office of the Union.
ASSIGNMENT LIST FORMS
Rule 6. (a) A member registering on the Assignment List shall fill
out in full an Assignment List Application Form provided by the Union
ASSIGNMENT PROCEDURE
Rule 7. All Active members shall be offered employment in rotation, in
accordance with the following basic procedure :
1. The Port Assignment Committee shall first offer employment to'the
member registered on the Assignment List who is designated as active at
the_ TBranch..Qfce and whose number is lowest in numerical order of the
Assignment` List (the highest in shipping seniority) . . . If such member
shall accept the offered employment the member shall be issued clearance to
the job.
2. If the member who has been offered employment in accordance with (1)
hereof shall refuse such offer of employment or shall not answer such offer
within a reasonable time, the Assignment Committee shall offer such em-
ployment to the member whose number is next lowest in numerical order
of the Assignment List and who is designated as Active.
3. The procedure described in (1) and (2) hereof shall be continued until-
such time as the Assignment Committee shall secure a member who will
accept the offered employment. [Entire emphasis supplied.]
30 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The shipping rules also provided the method for compilation of a national
assignment list each week. Members of the Union obtaining employment had
their names transferred from the "Active" column to the "Employed" column,
and in practice were dropped 30 places on the list. For each week of employ-
ment, in a permanent or temporary job, a member's number on the succeeding
weekly list was increased by 30, thereby causing him to progress toward the
bottom of the lists. Unemployed members moved upward to the places formerly
held by members who had secured employment.
3. The 1950 agreement
On June 3, 1949, PMA replaced PASA.2 On April 28, 1950, the Board issued
its decision in the Pacific Maritime case, holding that the execution of the
1948 agreement had been violative of Section 8 (a) (1) by PASA because
of the provision granting preference in hiring to members of the Union. The
Board found "it unnecessary to consider either the closed-shop or the hiring-hall
aspects of this contract." There is some dispute whether the Respondents
acted under a contractual relationship until the new agreement was executed,
but I believe it is unnecessary to recite the details. It is sufficient to say
that the Company continued to obtain its radio officers through the Union.
After the decision in the cited case, PMA, representing the Company and its
other members, and the Union began negotiations for a new agreement. The
Union also undertook to revise its shipping rules. On July 14, the Union and
PMA executed the 1950 agreement, retroactively effective to the date of the
decision in the cited case. The new agreement recited that the 1948 agreement,
and certain "Supplementary Agreements" not here in issue, were "reinstated
with all rights and benefits accruing to the parties" and that the 1948 agreement
was to "be continued until its expiration date [June 14, 1951, with a renewal
provision from year to year]," with certain amendments described below.
Section 1 of the 1948 agreement, entitled "Preference of Employment," was
amended to read :
Recognition.
The Employers agree to recognize the Association as the authorized
and exclusive bargaining agent for all Radio Officers employed by the
Employers.
Section 2, entitled "Hiring," was amended to read :
The Employers shall employ and continue in their employment on board
their vessels Radio Officers procured from the list of unemployed Radio
Officers on file at the nearest employment office of the Association [Union].
For the purpose of promoting safety of life and property at sea and to
guarantee as far as practical equal distribution of work among Radio
Officers, vacancies shall be filled in the following manner ;
Preference shall be given to the Radio Officer longest unemployed who
is qualified, competent and satisfactory and who can present proof of
previous employment on vessels of one or more of the companies under
agreement with the Association and who has worked as Radio Officer, on
U. S. flag vessels during the two year period immediately preceding signing
of this agreement and who has experience on a job similar to that -which
is offered.
This date is taken from the findings in.Pacifc Maritime Asspeiation, above cited.
'ALASKA 'STEAMSHIP COMPANY 31
The Association agrees to maintain , administer and operate its employ-
ment offices and to apply the aforementioned preferences in accordance with
the law and assumes sole responsibility therefor.
When filling vacancies all Radio Officers shall produce official assignment
clearance from the Association employment office. When any Radio Officer
is rejected for employment, the company shall furnish a statement in writ-
ing to the Association employment office stating specifically the reason why
he is not qualified, competent or satisfactory to fill the job. In the event the
Association employment office is unable to furnish a Radio Officer to fill a
vacancy, the provisions of this section shall be waived in such cases and the
company shall be free to fill vacancies from other sources, and the Associa-
tion employment offices thereupon notified.
The Employers agree not to discriminate against any member of the
Association because of Union activity or because of race, creed or color.
The Association agrees that no applicant or prospective employee shall
be discriminated against because of membership or nonmembership in the
Association or by reason of race, creed, color or national origin.
Section 3, entitled "Discrimination," was amended to read :
Association SeCUrity
The Employers agree, as a condition of employment, that all employees in
the bargaining unit shall become and remain members of the Association
thirty (30) days after the effective date of this clause or thirty (30) days
after date of hiring whichever is later.
The foregoing clause shall become effective when the Association shall
have been certified by the National Labor Relations Board as provided by
Section 8A and 3 [sic] of the amended act, or when certification shall no
longer be required, whichever is sooner.
4. The Union's revised shipping rules
During June 1950 , the membership of the Union at its various port offices
adopted new shipping rules The adoption in Seattle was on June 21, and they
became effective there simultaneously with the new agreement with PMA. These
rules need not be quoted extensively . Reference may be made to the earlier
rules above quoted , particularly to the emphasized wording therein . The new
rules provide for a continuation of rotary hiring, with assignments to be in
rotation in an effort to spread available work among the applicants . No distinc-
tion is made between members and nonmembers in placement on the assign-
ment lists. The words "membership" and "members " were deleted from the
earlier rules , and the words "Radio Officer ( s)" substituted therefor . The defi-
nition of a member in rule 3 was supplanted by the definition of a "Radio Officer"
as "a qualified and experienced Radio Officer who is eligible for employment on
vessels under contract to the Union." The reference to "Branch offices" of the
Union are now references to "Branch Hiring Halls." Rule 4 (c) of the earlier
rules, providing that the assignment lists should be confidential to members, was
deleted . Also deleted were the provisions in rule 7 that assignments were to be
offered by the port assignment committees, the rule now reading merely that "em-
ployment shall be offered" in the manner there provided'
8 Rule 10 (e) of the 1950.rules provides that "Radio Officers who are not members of
the Union shall help defray the expense for upkeep of the Branch Hiring Halls by the
payment of $25.00 for each three months each Radio Officers name is registered for employ-
ment on board a union contract vessel. Such fee shall be paid for each three months in
advance." The Union's constitution in effect during 1949 provided that membership
dues were to be $15 quarterly, payable in advance, but the record does not disclose whether
the amount has been changed.
32 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
5 The complaint's allegations concerning the agreements and the shipping rules
The complaint alleges that both the 1948 and 1950 agreements contain prefer-
ential employment provisions which are unlawful because of a failure to satisfy
the requirements in the proviso to Section 8 (a) (3) of the Act, both as to the
conduct of a union-shop election and the permissible liinits ' of union-security pro-
visions. It is undisputed that the Union has not been authorized by the Board
to enter into a union-security agreement.
With respect to the Company, the complaint , as amended , also alleges inter cilia
that it violated Section 8 (a) (1), (2), and (3) by entering into the 1948 and
1950 agreements , by "knowingly assenting to and participating in the adminis-
tration of" the 1948 agreement "as amended which required the practice of
obtaining all of its radio officers exclusively " from the Union , and by "know-
ingly assenting to and accepting the assignment lists established " by the Union
pursuant to alleged discriminatory shipping rules.
With respect to the Union , the complaint is silent concerning the adoption of
new shipping rules during 1950, it being alleged instead that the former shipping
rules here remained effective The complaint also alleges inter aim that by en-
tering into the 1948 and 1950 agreements , by adopting and administering dis-
criminatory shipping rules, and by maintaining and administering assignment
lists pursuant to such rules , the Union violated Section 8 (b) (1) (A) and (2)
of the Act
6 Conclusions concerning the agreements and the shipping rules
The questions to be decided at this point relate to the agreements and the
shipping rules and the practices of the Respondents thereunder without regard
to the alleged discrimination against Underwood , which is considered separately
below after a chronological statement of the facts surrounding Underwood's
relations with the Respondents.
The initial question involves the 1948 agreement between PASA and the
Union, the execution and performance of which are alleged to have been violative
of Section 8 (a) (1), (2 ), and (3 ) by the Company and Section 8 (b) (1) (A)
and (2 ) by the Union . As related above , this is not the first time the Board
has had occasion to consider the 1948 agreement . In the Pacific Maritime case
above cited , where the Union was not a party respondent , the Board found that
PASA had violated Section 8 (a) (1) by the execution of the agreement because
of the unlawful preference provision therein The complaint in that case also
alleged a violation of Section 8 (a) (3) in the enforcement of the agreement,
but the Board held that there was a "complete lack of evidence as to enforce-
ment of 'thd illegal provisions ," and dismissed the 8 ( a) (3) allegation. There
was no 8 ( a) (2) allegation , the absence of which was specifically commented
upon by the Board in framing its remedy . As detailed above, after the issu-
ance of the Board 's decision , PMA and the Union negotiated new contractual
provisions which they contend , contrary to the General Counsel, are lawful.
The Union also adopted new shipping rules to replace those which are alleged
in the complaint herein to have been discriminatory . Under these circumstances,
I do not believe that issues should be litigated anew , that an alleged violation
of Section 8 (a) (2) based upon the 1948 agreement should be entertained, or
that the conduct of the Respondents pursuant to that contract and applicable
shipping rules should be the subject matter of litigation at this late date, except
to the extent that there is alleged an instance of specific discrimination. It
would not effectuate the purposes of the Act to do so. Cf . Califruit Canning
ALASKA STEAMSHIP COMPANY 33
Company , 78 NLRB 112. To the extent that there was alleged unlawful dis-
crimination against Underwood pursuant to the 1948 agreement and applicable
shipping rules, the issues are properly subject to litigation in this proceeding
Cf. Agar Packing & Provision Corporation , 81 NLRB 1262.
Turning to the 1950 agreement , the basic allegation of the complaint is that
the document is per se unlawful because of preferential employment provisions
to members of the Union by reason of the Company 's utilization of the Union's
employment office as its sole source of radio officers , as set forth in section 2
of that agreement , and because there has been no union -shop election to author-
ize the first paragraph of section 3 thereof . On the other hand, the Respondents,
argue that the Company 's use of the Union ' s employment facilities in securing
radio officers , where there is no preferential employment provision based upon
membership in the Union , and where instead the agreement expressly provides
that the Union shall operate its employment facilities "in accordance with the
law" ` and that "no applicant or prospective employee shall be discriminated
against because of membership or non -membership in the" Union , is a lawful
arrangement sanctioned by the Board in _lational Union of Marine Cooks and
Stelcaf ds , 90 NLRB 1099 . The similarity between the proposed contractual pro-
vision in that case and the language of section 2 of the 1950 agreement need not
be set forth . In short, I find that the cited case is apposite and that section 2
is not per so i,uiawful Likewise , I find that the shipping rules of the Union,
adopted during June 1950, are not per se discriminatory against nonmembers of
the Union , With respect to section 3 of the 1950 agreement , the General Coun-
sel's contention appears to be that the union -security provision in the initial
paragraph is in violation of the Act regardless of its postponed effective date
as set out in the second paragraph " This contention must be rejected. Gulf
Shipside Storage Corporation , 91 NLRB 181.
Turning next to the question whether the 1950 agreement and the Union's
applicable shipping rules have been administered in a discriminatory manner
between members and nonmembers of the Union, the allegations insofar as-,they
involve Underwood are deferred to a,subsequent portion of this Report . There is
no substantial evidence of a discriminatory administration involving other radio
officers, although there is testimony by Carl Lundquist , port agent for the Union
in Seattle at the time of the hearing , that only members have been listed on its
national assignment lists since adoption of the existing shipping rules. But
this fact does not establish that those rules, not per se discriminatory , have been
misapplied to a discriminatory end. The rules were approved by the Seattle
branch of the Union on June 21 ,,1950, at which time there were more radi ;y position aboard the
Baranof, a vessel of the Company, which he declined because of its tempoiary nature.
The incident involving the Baranof occurred before January 17. 1950. because it is set out
in the charge in Case No 19-CB-90, filed on that date ' An examination of exhibits
showing the voyages of the Baranof and the radio officers assigned by the Union to po3i-
tions aboard, establish that the incident occurred while Underwood was a member of
the Union.
ALASKA STEAMSHIP COMPANY 37
Underwood 's experiences in the Coastal Rambler and Palisana positions
made him aggrieved . He was so far down the assignment list that, as he
testified, be believed that not until 1951 could he be reached' for employment
by the employer of his choice, the Company. Underwood was wrong in this,
-estimate , as will be developed, but the point is that his opposition to rotary
hiring and to the Union's shipping rules gained momentum He felt that he
-was entitled to seniority rights with the Company and that the rotary hiring
system resulted in discrimination against him On December 23, Underwood
wrote to the Company and requested "retention" of the position aboard the
Palisaim In the letter, Underwood termed the position his own, which he
,.was foi ced to relinquish it short time ago on account of the temporary lay
up of this vessel and certain illegal b.^laas of the" Union. Underwood, who'had
received preference in employment by reason of his membership in the Union,
did not have reference to the provisions of the Act in his allegation that the
Union had "certain illegal bylaws" Instead, his reference was to the rotary
hiring aspects of the bylaws which, as he saw it, were in disregard of his
claimed seniority rights with the Company and which had not enabled him
to obtain employment permanently with the employer of his choice. As the
Company says in its brief, Underwood prefers "a system based upon job avail-
ability and seniority with one company . . . [His] position and views would
be the same and would have been the same under a rotary hiring system op-
erated by employers on an industry-wide basis without the union in the picture
at all."
By December 27, Josserand had decided not to return to the Palisana. On
that day, the vessel was removed from idle status preparatory to sailing and,
under rotary hiring, Cyrus Wagoner was offered the position in a permanent
capacity. Wagoner accepted.12 On December 28, Underwood wrote a letter of
resignation to the Union, saying inter <4lia that he had resolved for the New
Year (1) to seek to avoid approachiiig poverty `Which had been-caused by his-
"poor luck" in obtaining employment under the Union's "employment Roulette
Wheel [the system of rotary hiring] . ," and (2) "To fight a system . . .
[which] will tolerate a set of bylaws that foster the complete elimination of
the freedom of the individual and the titter disregard of earned and proven
seniority rights."
As related, Underwood was interested in employment with the Company only.
He testified that he would accept other employment only "under duress," the
force of economic necessity. Accordingly, after resigning from the Union, Under-
wood did not make application for employment to any other employer repre-
sented by PASA. On or about December 29, Underwood called upon William
Felton, port engineer for the Company, and requested employment. He filled
out an application blank and left it with Felton.
At a union meeting during January 1950 , Underwood 's resignation was ac-
cepted , and during that month his name was removed from the national assign-
ment lists 33 because he resigned from the Union."
"Although the Palisana was in idle status at various times thereafter . Wagoner appar-
ently chose to stand by during those occasions , rather than to seek other employment
requiring use of his license , because at the time of the hearing lie still held the position
is The assignment list prepared on December 31, 1949 , on a Nation-wide basis contained
Underwood ' s name as number 828 Of the radio officers desiring to ship out at Seattle.
Underwood was number 21. The copy of the list which was sent to the Union's Seattle
office shows Underwood's-name marked through with ink, after which appear the words :
"Out of Union ." It does not appear, however, when the deletion was made, and Under-
wood's name appears on the national list for the following week , ending January 7, 1950,
opposite number 796. Underwood having advanced 32 places toward the top of the list
998666-vol 98-52-4
38 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On January 17, 1950, Underwood filed charges against both Respondents in
Cases Nos. 19-CB-90 and 19-CA-277. Copies of the charges were served upon
the respective Respondents on January 19 and 21, 1950. Beginning on March
3, and continuing for about 3 months, Underwood wrote a series of letters to
the Company in which he expressed (1) a continuing interest in obtaining
employment with the Company; (2) his opposition to rotary hiring of radio
officers; and (3) his preference for hiring based upon seniority with the Com-
pany which, in his judgment, would have afforded him a better opportunity for
obtaining employment with it. So far as the record discloses, the Company has
never made it a practice to employ radio officers under the system advocated by
Underwood. See Pacific American Shipoumers Association, 80 NLRB 622.
On March 20, Underwood filed an amended charge in Case No. 19-CA-277,
copy of which was served upon the Company on March 21. On March 29, the
Company wrote to the Union and to Underwood, enclosing to each a copy of
its letter to the other. In the letter to the Union, the Company said that Under-
wood had made application for employment on December 29, 1949, and that
another radio officer, Dallas Hughes, had made application on December 12. The
letter contains the following paragraph :
We request that when radio officers are ordered [by the Company] from
your office that these applicants, upon registering with you, be dispatched
without discrimination as to union or non-union affiliation or other dis-
crimination whatsoever, anything in our collective bargaining agreement to
the contrary notwithstanding. It is also requested that their registration
with you be deemed effective from the date of the application filed with us.
We, of course, reserve the right to reject for sufficient cause any person
dispatched to us.
The letter to Underwood was as follows :
... We are unable to give consideration to applicants for employment
made to us by mail. We make use of the employment facilities of the office
maintained by the American Radio Association .. .
You are requested to'register with that office and we have requested that
you be dispatched to us without discrimination. . . . If after so registering
you consider that any discrimination has been practiced against you, kindly
advise us in writing.
On April 3, 1950, following the Company's suggestion, Underwood called at
the Union's office. He testified that he registered for employment, but the cir-
cumstances are not clear. He did not fill out an assignment slip, which is the
normal and customary manner in which a radio officer seeking employment
obtains a place on the national assignment lists. I believe, however, that it is
during the period of a week. Underwood appears not to have been named on any national
list thereafter.
14 The Union contends that Underwood's name was removed from the lists,because it was
understood that he so desired, preferring to seek employment through other channels.
This contention is unpersuasive. At that time, before the opening of hostilities in Korea,
the number of radio officers seeking employment through the Union far surpassed the
number of job openings on any given date. The 1948 agreement then in effect provided
that preference in employment be given to members of the Union, and the applicable
shipping rules provided that the assignment lists should be restricted to members and
were designed to give them preference in employment. Moreover, the failure of the
Union to reinstate Underwood 's name to the assignment lists during the early months of
1950, when he was seeking employment with the Company and when the Company requested
of the Union that he not be discriminated against, as described below , is indicative that
his name was removed , and remained removed , from the assignment lists during those
months because he had resigned from the Union.
ALASKA STEAMSHIP COMPANY 39
`immaterial that he did not do so. His name had been discriminatorily stricken
from the assignment lists of December 31, 1949, and January 7, 1950. Had
it not been stricken therefrom, it would have continued to rise toward the top
of later lists, in accord with the principles of rotary hiring as persons ahead of
him obtained employment, until he, was offered employment which he would
have accepted aboard the Alaska on May 5, 1950, as described below.
Also on April 3, Underwood wrote to the Company again. On April 12, the
Company wrote to the Union, enclosing Underwood's letter and saying that
Underwood had expressed the opinion that the Union would discriminate against
him. The Company voiced the hope that the Union would not do so. On April
16, according to the undenied testimony of Underwood, which I credit, he chanced
to meet Ralph Miller, then port agent of the Union in Seattle, and Miller offered
him an assignment to another of the Company's vessels, the Flemish Knot, if
lie would withdraw the charge against the Union. Miller said also, as Under-
wood testified, that he would hold a union meeting to determine whether the
membership would reinstate Underwood. The assignment on the Flemish Knot
was declined by Underwood because he believed that it might be of short duration,
and he asked Miller for a guarantee of 6 months' work as a condition for with-
drawing the charge.15 Miller replied that he would take up the matter with
the membership, and Underwood heard no more about it.
On April 19 Miller responded to the Company's letter, saying that Underwood
and Hughes had been listed for employment and that there would be no dis-
crimination against them. Underwood's name does not appear to have been
restored to a national assignment list, however.
On April 28 the Board issued its decision in the Pacific Maritime case.
On May 3, 1950, the Company's vessel, Alaska, which had been laid up since
October 1, 1949, returned to service. Albert Dittberner and George D. Johnston,
chief radio operator and first assistant, respectively, had retained their perma-
nent positions on the vessel by remaining in standby. The second assistant
radio operator during late 1949 had been Jesse D. Sneff, who apparently had
not chosen to stand by the vessel. On May 5, Lewis A. Deyo was dispatched by
the Union to fill Sneff's former position. For reasons detailed below, I find that
the failure to offer this assignment to Underwood was discriminatory within
the meaning of the Act. On May 7, 1950, Underwood wrote to the Company
that it could "plainly see" that he would "get nothing but discrimination from"
the Union, and he asked for employment in return for which he would withdraw
the charges against the Company. The record does not disclose whether Under-
wood had knowledge of or reference to the assignment of Deyo, nor does it
appear that the Company responded to Underwood's letter.
During ;June 1950 the membership of the Union at its various port offices
adopted the new shipping rules. On July 14 the Union and PMA executed
the 1950 agreement. Because of the allegations of the complaint that Under-
wood was unlawfully discriminated against in the administration of that agree-
ment, it is necessary to continue the factual recital concerning Underwood's
relations with the Respondents, although unlawful discrimination against
Underwood was practiced on May 5 in the failure to, offer him the assignment
aboard the Alaska.
15 The position on the Flemish Knot was filled by the assignment on April 21 of Gena C.
Hallett, a radio officer who had a higher position than Underwood on the national assign-
ment lists from which Underwood 's name was stricken . The position on the Flemish Knot
appears to have been a permanent and relatively long one, contrary to Underwood 's expec-
tations. With the exception of two periods of idleness, totaling about 2 weeks, the vessel
was in continuous service from April 19', 1950 , to at least late February 1951 , when the
hearing began.
40 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On July 23, 1950, Underwood, having been unable to secure employment withi
the Company, went to Kake, Alaska, for employment as a radio operator in a
cannery. On September 11, while,there, his counsel filed in his behalf charges
in Cases Nos. 19-CB-135 and 19-CA-358
On October 9, 1950, having returned from Kake, Underwood telephoned Lund-
quist, who had succeeded Miller as port agent. Underwood said that he was
available for employment within the following limitations : By the Company
only, in a permanent capacity, aboard a vessel sailing in the Alaska trade, the
voyages of which were to be of short duration. Lundquist had established
a practice of preparing port assignment lists based upon the names of radio
officers on the national lists who desired to work out of Seattle, and he noted
on the port list in use that week that Underwood had made known his avail-
ability for employment within limits. On October 13, Underwood declined
referral by the Union to a position on a vessel in the Military Sea Transport
Service because he preferred employment with the Company.
On December 5, Underwood again telephoned Lundquist, saying that he
would accept a temporary or permanent position on vessels of the Company
in the Alaska trade le Underwood also said that he had been registered for
employment since December 1, 1949, the date of registration following his
employment aboard the Palisana, and he asserted that his name therefore should
be at the top of the current national assignment list. The basis of Underwood's
contention seems to have been that his name should have continued to move
upward on the lists each week after that (late, including the period of his
employment in Kake Lundquist said to Underwood, erroneously, that Under-
wood's name was at the bottom of the national assignment list, "where it
belonged." He also said, correctly, that Underwood's name was "not at the
bottom" of another list, presumably the port assignment lists upon which Lund-
quist had placed Underwood's name. Lundquist said further that he could
not discriminate against Underwood, nor could he discriminate against members
of the Union 17
Between October 9 and December 5, the dates of the two telephone conversa-
tions, Underwood did not visit the Union's hiring ball. In that period, there
were only two vacancies within the limitations imposed by him, one of which
aboard the Victoria, was filled in a "pierhead jump," an emergency situation
caused by the failure of the operator regularly assigned to the vessel to appear
for the voyage and the assignment of an unemployed operator regardless of
his place on the national assignment list.18 There was inadequate time in which
to reach Underwood,, whose residence is on Vashon Island, between Seattle and
Tacoma. The second vacancy, on the Denal,, was filled by an operator who was
higher than Underwood on the national assignment list of January 7, the last
list upon which Underwood's name appeared.
On December 13, Underwood, accompanied by Hughes, called at the Union's
hiring hall and talked with Lundquist. There was some discussion about dis-
16 Lundquist testified that this telephone conversation occurred on December 5, while
Underwood fixed the date as December 12. The Seattle port assignment list indicates that
the conversation took place during the week of December 4, rather than the following
week , and I find that the correct date was December 5, as testified by Lundquist
17 The finding that Lundquist said that Underwood ' s name was at the bottom of the
national assignment list "where it belonged " is based upon Underwood 's testimony.
Lundquist testified that he could not recall what lie had said in the telephone conversa-
tion , but that later he realized that lie may have used "poor language" which could have
caused Underwood to obtain a "misconception ," and that he . Lundquist, sought to correct
any misconception when they met on December 13, as described below.
18 Rule 20 ( 2) of the Union ' s, shipping rules envisions assignments out of rotation in
situations of this nature.
ALASKA STEAMSHIP COMPANY 41
patching radio officers to employment, and Underwood spoke of his inability to
retain the permanent position aboard the Coastal Rambles during 1949 because
•of the rules of the State Unemployment Compensation Commission , which he
characterized as discrimination against him. Underwood reiterated his state-
ment of December 5 that lie would accept temporary employment on vessels
of the Company in the Alaska trade,- and again insisted that his name should
appear at the top of the current national assignment list because he had not
received referral to employment since December 1, 1949, about a year earlier.
Lundquist said that Underwood' s name was being carried on the port assignment
lists, as it had been since Underwood's telephone call to Lundquist on October 9.
Lundquist also said that Underwood's name did not appear on the national
assignment lists because he was not a union member 1B
On (December 19, by telegram, Lundquist advised Underwood of a position
aboard a vessel of the United States Government sailing in Alaskan waters.
Underwood declined it because the voyage was scheduled for 4 months, too long a
period to suit his wishes, and also because he preferred to await employment
with the Company. Between that date and February 6, 1951, shortly before
the hearing herein, six vacancies occurred aboard vessels of the Company within
Underwood's limitations . The Union did not utilize telephone or telegraph
service in an effort to inform Underwood of any of the vacancies, nor does it
appear that he visited the Union's hiring hall to seek an assignment . There is
uncontradicted testimony by Lundquist, however, that in one instance the
t acancy was filled by a radio officer who was entitled to the assignment in pref-
erence to Underwood under a nondiscriminatory application of the shipping
rules, while in the remaining, five instances the positions had to be filled quickly
and there was too little time in which to attempt to contact Underwood on
Vashon Island and have him arrive at any of the vessels before sailing time.
On February 27, during the course of the hearing, the Union offered to refer
Under-vv ood to a permanent position aboard a vessel sailing in the Alaska trade.
the Pacifirls, operated by Coastwise Line, a member company of PMA Under-
wood accepted, and he was employed in that position when the hearing closed
about a month later
2 Conclusions concerning Underwood
The amended complaint alleges that the Union, by utilizing discriminatory
shipping rules and assignment lists, refused to, dispatch Underwood for employ-
ment-with the Company, thereby causing the Company to discriminate against,
Underwood in violation of Section 8 (a) (3) of the Act, and thereby itself violat-
ing Section 8 (b) (2).20 The allegations that the Company discriminated against
Und-er''ood are in substance two€old : (1)- By obtaining, all of its radio officers
19 This finding is based upon the testimony of Underwood and Hughes, which is flatly
,contradicted by Lundquist While I am mindful that Hughes' testimony on the point
was obtained only after a leading question, and that the testimony of Underwood and
Lundquist must be scrutinized because of their interests, I think that the testimony of
Underwood and Hughes is to he accepted Clearly, as already found. Underwood's name
did not appear on national assignment lists after January 7, 1950, and at least until the
new shipping rules were adopted, because he was not a member of the Union. This
finding. however, does not resolve the question whether the Union would have refused-
Underwood a place on the national assignment lists tinder its existing shipping rules had
Underwood sought to register therefor The issue is discussed below.
2D The complaint also alleges that the Union refused to dispatch Underwood to positions
with employers other than the Company. Since Underwood was not an applicant for
other employment until lie accepted the position aboard the Paciftcns , having previously
rejected assignments with other employers and having testified that he would accept
such assignments only "tinder duress," this allegation has no merit
42 DECISIONS OF NATIONAL-LABOR RELATIONS BOARD
through the Union and by accepting and assenting to assignment lists from which
the Union unlawfully excluded Underwood; and (2 ) by refusing to employ
Underwood after he made application directly to the Company during December-
1949.
First to be considered are the allegations against the Union and the initial:
allegation against the Company during the period following Underwood' s resig-
nation from the Union and before execution of the 1950 agreement. It will be-
recalled that Underwood, while a member of the Union, had a "permanent" posi-
tion aboard the Coastal Rambler and that in order to draw unemployment com-
pensation he chose not to remain in standby status when the vessel was tempo-
rarily removed from service. Underwood regarded the situation as one of dis-
crimination against him, but it is clear that there was no discrimination as
contemplated by the Act. As a consequence of employment aboard the Coastal
Rambler, and later employment aboard the Palisana, Underwood dropped so far-
down the assignment lists that he believed there was no prospect for employment
with the Company in a position to his liking until 1951. In this respect Under-
wood was mistaken, but he felt prejudiced by the Union's shipping rules, uni-
formly applied to him and other members. Accordingly, he resigned his member-
ship and sought to achieve directly from the Company the employment which he-
desired.
As mentioned above, on May 5, 1950, Underwood was unlawfully denied em-
ployment. The circumstances will be related. Underwood's name had been
removed from the national assignment lists because of his resignation from the-
Union. His name last appeared on the list of January 7, 1950, with the number
796. From the time of his resignation until May, 5, there were six vacancies-
on vessels of the Company suitable to his preferences.21 All these vacancies were-
filled by referral of radio officers with lower numbers than Underwood (higher-
numbers in the order of shipping seniority) on the list of January 7, which is
consistent with Underwood's own analysis of his poor prospects for employment
with the Company at the time of his resignation. On May 5, which was subse-
quent to the Company's written request of the Union that Underwood be referred
for employment without discrimination, a vacancy in a permanent position aboard
the Alaska was filled by the Union's referral of Lewis A. Deyo, and at this point,
had Underwood's name not been stricken from the assignment lists, he would
have been entitled to referral to the position ahead of Deyo under the principles-
of rotary hiring. The contention of the Union and the Company is that Deyo•
was entitled to the assignment , even assuming that Underwood's name had re-
mained on the assignment lists R2 Documentary evidence was offered by the Union
to establish this contention, but when it is examined in the light of the entire
21 February 23 on the Square Sinnet, February 24 on the Denali, March 14 on the Nadine,
April 5 on the Coastal Rambler for its initial voyage in 1950, April 8 on the Lucidor, and
April 21 on the Flemish Knot
a In its brief, the Company argues that "This exchange of correspondence [with the-
Union] clearly establishes an agreement between the union and the company as to Mr.
Underwood which removed any alleged application of the illegal portion of the hiring-
provisions of the December 3, 1948, agreement to Underwood. The fact that Underwood's;
registration was accepted on April 3 [when Underwood visited the Union 's offices ] and pre-
sumably made effective . . . on December 29, 1949 [prior to the effective date of Under-
wood's resignation from the Union]. In accordance with the Company's request . . . also,
pointedly demonstrates that the normal channels of employment were at all times open'
to Underwood irrespective of his union status . . . [At] all times subsequent to April 3,
1950, Mr. Underwood received equal treatment in the normal channel of employment." The
fact that the Union did not restore Underwood's name to the national assignment lists, plus-
the facts surrounding the referral of Deyo,, rather than Underwood, to the position aboard1
the-Alaska, disprove the Company's contention.
ALASKA STEAMSHIP COMPANY 43
record a fallacy is apparent. As contrasted with Underwood's place on the
January 7 list, number 796, the Union incorrectly asserts that Deyo's number
was 793, from which point he had advanced to number 544 at the time he was
offered referral to the Alaska. The fact, however, is that Deyo's number on the
January 7 list was 815 or thereabouts, as set out in the footnote." Under the
facts herein, the preference in employment to members of the Union resulted in
an unlawful denial of employment to Underwood."' The record leaves no doubt
that Underwood would have accepted the position aboard the Alaska. I find that
the Company discriminated against Underwood in violation of Section 8 (a) (3)
and (1) of the Act, and that the Union, by causing the Company to do so, violated
Section 8 (b) (2) and (1) (A) thereof.`
Turning to the Company's refusal to hire Underwood after his application for
employment during December 1949, the General Counsel contends that there
was a continuing duty upon the Company, beginning with the first vacancy aboard
23 The assignment list for January 7 was not offered in evidence. The list of radio officers
dispatched by the Union to positions with the Company shows Deyo's referral to the Alaska,
and after Deyo's name there is the number 793 to signify his place on the January 7 list.
That number had been marked through under circumstances which were not detailed, and
the number 815 substituted The Union's testimony concerning Deyo's referral assumed
that number 793 was correct, thus giving Deyo preference over Underwood for the referral.
The number 815, or a number thereabouts, is correct, however. This is so because on the
assignment list dated December 31, 1949, only a week earlier, which was received in
evidence, Underwood was number 828 and Deyo was number 845. Since Underwood was
unemployed, Deyo could not have advanced over and beyond Underwood on the list of
January 7. The conclusion that Deyo's number on the latter list was 815 or thereabouts
is further supported by the fact that the number for Harry 0 Buer thereon is 812, and
only a few places separated these two individuals on the list dated December 31, Buer
having been number 843, thereon
u In its brief, the Company asserts that the record is barren of evidence that Underwood
informed it that he had resigned from the Union, that it knew of the resignation at times
material, and that Underwood advised it that union affiliation or nonaffiliation played any
part in his opposition to rotary hiring. Instead, says the Company, its information was
that Underwood opposed rotary hiring on an industry-wide basis, as described herein,
and "that he believed that the company should establish a system based upon seniority
with the company which would afford him a better chance of securing employment""
with the Company. In fact, however, the amended charge in Case No 19-CA-277, served
upon the Company on March 21, 1950, alleges that the Company refused to employ Under-
wood "to encourage membership in" the Union in violation of Section 8 (a) (3), and the
Company's letter to the Union about a week later asked that the Union dispatch Underwood
for employment "without discrimination as to union or nonunion affiliation or other
discrimination whatsoever, anything in our collective bargaining agreement to the contrary
notwithstanding."
za A finding that the Company, by thus discriminating against Underwood, also violated
Section 8 (a) (2) would be in accord with the authorities. Cf. United Hoisting Co, Inc,
92 NLRB 1642. I believe, however, that the finding should not be made There are two,
reasons* First, the allegation of the complaint, as amended, that Section 8 (a) (2) was
violated by discrimination against Underwood is included within a series of allegations deal-
ing with the 1948 and 1950 agreements and alleged practices of the Respondents thereunder.
That an 8 (a) (2) violation was in issue arising specifically out of the treatment accorded
Underwood before execution of the 1950 agreement appears to have been lost sight of by-
counsel and the Examiner in discussions interpreting the amended complaint and motions
directed thereto, and counsel may have concluded, as did the Examiner, that such a 'viola-
tion was not in issue. The point was not briefed Second, even if such a finding-
were to be made, it would not lead me to alter the remedy set out below. This is so because
no violation of Section 8 (a) (2) having been alleged in the Pacific Maritime case, the
parties thereto were left free to negotiate anew. Specifically, PMA was not directed to,
withdraw and withhold recognition from the Union. For nearly 1 year, PMA and the.
Union have had a lawful contractual arrangement, the 1950 agreement, and I do not believe
that at this date it would effectuate the policies of the Act to require that the Company
withdraw and withhold recognition because of the discrimination against Underwood prior-
to execution of that agreement. -
44 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
one of its vessels, to fill a vacancy by employing Underwood.26 The theory appears
to be that the 1948 agreement having contained an unlawful preference clause,
there was an absolute duty upon the Company to disregard the principles of
rotary hiring and to employ a radio officer who made direct application to it
in preference to a radio officer referred by the Union. On the other hand, the
Company asserts that it maintains no facilities for directly hiring radio officers,
that since 1935 it has utilized the services of the Union and predecessor unions
in order to employ such officers, as have other employers in the industry-wide
unit, and that the provisions of the 1948 agreement embodying rotary hiring
were lawful except insofar as preference in employment was given to members
of the Union.
I do not believe that the mere existence of the unlawful preference provision
of the 1948 agreement obligated the Company to employ Underwood in the first
vacancy arising after his application. The preference provision (lid not result
in discrimination against Underwood until the employment of Deyo on May 5,
15)50 It was under normal principles of rotary hiring, long an integral part of
the Company's hiring practices, that he was denied employment with the Com-
pany until that date, and indeed it was precisely those principles to which he
objected, and which furnished the basis for his resignation from the Union when
he foresaw them as probably precluding such employment because many other
radio officers possessed greater shipping seniority. No authority has been cited
to support the apparent contention, and I do not perceive, that by resigning
from the Union Underwood achieved a preferred status over all others, thereby
overcoming his lack of shipping seniority and obligating the Company to hire him.
We turn next to the alleged discrimination against Underwood under the 1950
agreement and applicable shipping rules. As found above, that agreement is not
per se unlawful, nor are those shipping rules per se discriminatory as to non-
members. Indeed, the complaint does not allege that those rules are discrimina-
tory, the allegation being erroneous that the earlier rules had been continued in
effect. The General Counsel does not contend that after the adoption of those
rules and the execution of the 1950 agreement, Underwood sought a place on a
national assignment list by the prescribed practice of executing an assignment
form Indeed, it was Underwood's contention that he was bntitled to a place
at the top of those lists in late 1950 because of his registration on December 1,
1949, after his employment aboard the Padisan a terminated. While it is true
that Underwood's name had been removed from the lists with the object and
result of discriminating against him unlawfully, I do not believe that I can
justifiably conclude that there has been an unlawful administration of the 1950
agreement or a misapplication of the existing shipping rules. The most that can
be said for the General Counsel's contention is that doubt exists that the Union
will abide by those rules where Underwood is concerned. This doubt arises
froin'Lundquist's.remarkrto Underwood that?the,latter's name dill.not aipear on
a national assignment list because he was not a member, and the failure of the
Union voluntarily to restore his name to the lists after adoption of the new rules
On the other hand, upon Underwood's return to Seattle from employment in hake,
Alaska, he had his initial communication with the Union after those rules became
effective-a telephone conversation with Lundquist in which he said that lie
26 In addition to the vacancies described in footnote 21. there was the position aboard
the Pahsana which Cndeiwood sought to achieve permanently for himself by his applica-
tion to the Company, but which was assigned to another radio officer higher on the assign-
ment list before Underwood resigned from the Union. In addition , there were a number
of positions aboard other vessels of the Company which were held permanently by men
in standby status, who returned to their respective positions when the vessels resumed
operation Those positions. in my judgment , were not vacant positions denied to
Underwood.
ALASKA, STEAMSHIP COMPANY 45
-was available for employment within certain limitations. Thereafter, Lundquist
placed Underwood's name on the port assignment lists and offered to refer him
to employment, although he had not registered therefor under the provisions of
the rules." The Union asserts that, had he registered,- and -had he thereafter
rejected employment opportunities before compilation of the next national assign-
ment list, he would have been entitled to, and would have received, a place
thereon. Underwood chose, however, to rely upon a registration antedating
the new rules by about 7 months. Under the circumstances, where it appears
that other nonmembers who registered for employment were not treated differ-
ently than members, I do not believe that the Union has been put to the test of
whether it will treat Underwood differently than a member of the application of
the existing shipping rules, and I find that the 1950 agreement has not been admin-
istered so as to result in unlawful discrimination against him
IV. TiIE EFFECT OF THE UNIAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondents set forth in Section III, C , above, occurring
in connection with the operations of the Company described in Section I, above,
have a close .- intimate, and substantial relation to trade, traffic, and commerce
among the several States and tend to lead to labor disputes burdening and oh-
structing commerce and the free flow of commerce.
1'. THE REMEDY
Having found that the Respondents have engaged in unfair labor practices,
1 shall recommend that they cease and desist therefrom and that they take
certain affirmative action designed to effectuate the policies of the Act. I have
found that on May 5, 1950 , in filling a vacancy aboard the Alaska, the Company
discriminated against Underwood in violation of Section 8 (a) - (1) and (3)
of the Act , and that the Union caused the Company to, discriminate against
Underwood , thereby violating Section 8 (b) (2) and ( 1) (A). The position
aboard the Alaska as second assistant radio officer was a "permanent" one,
and the vessel was in service for the period of May 3 to October 14 , 1950. On
the latter (late, the Alaska was removed from service and its crew was paid
off. I shall recommend that the Company and the Union , jointly and severally,
make whole Underwood for any loss of pay he may have suffered by reason
of the discrimination against him by payment to him of a sum of money equal
to the amount which he normally would have earned as wages from May 3 to
October 14, 1950; inclusive , less'his net earnings " ( Crossett-Camber • Cownpawll„-,
8 NLRB 440, 497-8) during said period, the payment to be computed upon a
quarterly basis in the manner established by the Board in F. W Woolworth
Company, 90 NLRB 289. I shall also recommend , in accordance with the
Woolworth decision , that the Company , upon request, make available to the
Board and its agents all pertinent records. The Company 's argument in its
brief that Underwood should not be awarded back pay because his unwillingness
to accept employment opportunities with other employers amounted to "a will-
ful incurrence of wage loss" is not persuasive . Within approximately 2 months
ZT A new registration is required after each period of employment in a position requiring
use of the radio operator's license, and under the rules it is immaterial whether the
employment (1) was achieved through the Union's facilities or by the radio officer's per-
sonal efforts (2) was ashore or afloat, and (3) was with an employer under contract
.with the Union This rule was carried over from the earlier rules when only members
of the- Unipn }'era entitled to he placed on, assignment lists, and appears to have, had its
"basis in an effort to prevent'-f'member'sraobtaining employment -without notice to the
Union and having his name mount on assignment lists as "Active" or "Inactive" when in
reality "Employed "
-46 DECISIONS - OF NATIONAL LABOR RELATIONS BOARD
after the Respondents' discrimination against Underwood, he accepted employ-
ment in Kake, Alaska, which continued for about the period that the Alaska was
in service during 1950.
The next question is whether the Company shall be required to offer Under-
wood employment aboard the Alaska, or a substantially equivalent position.
As related, the Alaska was removed from service on October 15, 1950. As of
February 20, 1951, the vessel had not been returned to service. While the record
is not specific on the point, it appears that the Alaska was laid up for the
winter, rather than permanently removed from service.28 Under such circum-
stances, Underwood would have enjoyed the right to stand by the vessel during
the period it was laid up, thereby retaining his position30 It is perhaps ques-
tionable that Underwood would have chosen to stand by 30 Whatever doubt
there may be should not be resolved in favor of the Respondents , however, be-
-cause their discrimination against Underwood gave rise to the doubt. I be-
lieve, therefore, that the Company should be required to offer Underwood
immediate employment in the position of chief radio operator aboard the
Alaska, to which position he would have advanced under the Union' s shipping
rules," or to a substantially equivalent position,$2 without prejudice to his
seniority or other rights and privileges. I shall recommend accordingly. I
shall also recommend that the Union and the Company, in the manner above
provided, make Underwood whole for any additional loss of pay he may have
suffered by reason of the discrimination against him by payment to him of
a sum of money equal to that which he normally would have earned as wages
from the date the Alaska was returned to service after October 15, 1950, to the
28 The Company's practice is to withdraw certain vessels from service at the end of
its busy season each year. The Alaska is a passenger vessel which is not operated the
year around. It was laid up from October 1, 1949, to May 2, 1950, when it returned to
service for the period ending May 14, 1950.
29 While the Union for some time has had a rule limiting standbys, under certain cir-
cumstances, to maximum periods of 90 days, the rule is not enforced in the Seattle area
in instances of vessels which are operated only in the spring and summer seasons. See
the next footnote Counsel for the Union indicated by his questions of a witness that
the reason lies partly in the seasonal nature of the Company's business.
80 During the period of October 1, 1949, to May 2, 1950, when the Alaska was laid up,
two of its radio officers, Dittberner and Johnston, chose to stand by. The third radio officer,
Jesse D. Sneff, did not stand by for the entire period, and was succeeded on May 3, 1950,
by Deyo. This period was one of slack employment for radio officers, and the record
shows that those who held permanent positions aboard desirable vessels made it a practice
to stand by when the vessels were laid up in order not to lose the positions. After the
Alaska was laid up on October 15, 1950, when employment opportunities had greatly
increased following the beginning of hostilities in Korea, Dittberner, Johnston, and Deyo
gave up their rights to stand by the vessel, as is shown by certain port assignment lists.
8i Shipping Rule 13, entitled "PROMOTIONS ABOARD SHIP" Is as follows :
When a vacancy occurs on a ship upon which more than one Radio Officer is employed,
such vacancy shall he filled by promoting the remaining Radio Officer or Radio' Officers
provided that such Radio Officer is competent and qualified in the judgment [of the]
Branch Hiring Hall and has faithfully complied with Hiring Hall rules and policies
during the term of his employment on such job. For the purposes of this section,
competence shall be deemed to be satisfactory if no provable complaint of unsatisfac-
tory performance of work has been filed with the Union Hiring Halls. Qualification
shall he deemed to be satisfactory if the Radio Officer shall possess a requisite grade
of Radio Operator license for the job. There shall be no special qualifications insti-
tuted by any Branch Hiring Hall which shall conflict in any manner with the terms
of this section.
Underwood testified without contradiction , and I find, that he possesses the requisite
grade of radio operator ' s license for the position of chief radio officer on vessels of the
Company.
82 See The Chase National Bank of the City of New York, San Juan, Puerto Rico Branch,
,65 NLRB 827. 1
ALASKA STEAMSHIP COMPANY 47
,date of the Company ' s offer of employment," provided, ho" ever , that the Union
may terminate its liability for further accrual of back pay to Underwood by
notifying the Company , in writing , with a copy of such notification to Under-
wood, that the Union has no objection to his employment as recommended
,herein. The Union shall not be liable for back pay accruing after 5 days from
the giving of such notice . Absent such notice, the Union shall remain jointly
and severally liable with the Company for all back pay that may accrue to
Underwood until the Company offers him employment as recommended . Oeom ne
W. Reed, 94 NLRB 698.
As found above, the 1950 agreement and applicable shipping rules are lawful
and nondiscriminatory as to nonmembers of the Union . Their continued
observance by the Respondents as to all radio officers, including Underwood,
-would not be unlawful . Accordingly , nothing herein is intended to exempt
Underwood from the requirements of lawful shipping rules and collective
labor agreements at the conclusion of such employment as shall be offered to
him by the Company as above provided
In accordance with the Board 's practice in factual situations of the nature
presented herein, broad cease-and -desist orders will not be recommended.
Carly le Rubber Co ., Inc, 92 NLRB 385
Upon the basis of the above findings of fact and upon the entire record in
the case , i make the following:
CONCLUSIONS OF LAW
1. The Union is :i labor organization within the meaning of Section 2 (5)
of the Act
2 By discriminating in regard to the hire and tenure of employment of
Horace W. Underwood, thereby encouraging ineinbership in a labor organiza-
tion, the Company has engaged in and is engaging in unfair labor practices
'within the meaning of Section 8 (a) (3) of the Act.
3 By interfering with, restraining, and coercing its employees in the exercise
,of the rights guaranteed in Section 7 of the Act, the Company has engaged
in and is engaging in unfair labor practices within the meaning of Section
8 (a) (1) of the Act.
4. By causing the Company to discriminate against Underwood in violation
,of Section 8 (a) (3) of the Act, the Union has engaged in and is engaging in
unfair labor practices within the meaning of Section 8 (b) (2)-of the Act..
5. By restraining and coercing employees in the exercise of the rights guar-
anteed in Section 7 of the Act, the Union has engaged in and is engaging in unfair
labor practices within the meaning of Section 8 (b) (1) (A) of the Act.
6. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
7. In all respects other than the discrimination against Underwood, the
Respondents have not engaged in the unfair labor practices alleged in ' the com-
plaint as amended.
[Recommendations omitted from publication in this volnme.1
99 Since Underwood was employed aboard the Pactficas before the Alaska commenced
operations in 1951, there can be no question of willful 'loss of earnings for' this, period.
The Pacificu8 is not operated by the Company , but by Coastwise Line, a member company
of 'PMA. In its brief , the Company contends that it should not be required 'to` employ
Underwood because he has obtained substantially equivalent employment . I believe, how-
ever , that the policies of the Act will best be effectuated by the recommendation of Under-
wood's employment , regardless of whether Underwood has obtained equivalent , employment
elsewhere Atlantic Company, 79 NLRB 820. Moreover , the record does not disclose
sufficient facts about the position aboard the Pacificus to determine whether it is,equi 'valent
to that of chief radio operator aboard the Alaska
48 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Appendix A
NOTICE TO ALL EMPLOYEES
Pursuant to,the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that.
WE WILL NOT encourage membership in AMERICAN RADIO ASSOCIATION, CIO,
or in any other labor organization of our employees, by refusing to employ
any qualified person or by discriminating in any manner in regard to the
tenure of employment or any term or condition of employment of our em-
ployees, except to the extent authorized hy,Section 8 (a) (3) of the Act.
WE WILL NOT in any like or related manner interfere with, restrain, or
coerce our employees in the exercise of the right to self-organization, to
form, join, or assist labor organizations, to bargain collectively through
representatives of their own choosing, or to engage in concerted activities
for the purpose of collective bargaining or other mutual aid or protection,
or to refrain from any or all of such activities.
WE WILL offer to Horace W. Underwood immediate employment as
chief radio operator aboard the Alaska, or in a substantially equivalent
position, with all the rights of seniority and other privileges that would have
accrued to him from the date of our unlawful discrimination against him,
and we will make him whole for any loss of pay suffered as a result of the
discrimination.
All our employees are free to become or remain, or refrain from becoming or
remaining, members of the above-named union or any other labor organization,
except to the extent that this right may be affected by an agreement in con-
formity with Section 8 (a) (3) of the Act. We will not discriminate in regard
to hire or tenure of employment or any term or condition of employment against
any employee because of membership or nonmembership in any labor organization.
ALASKA STEAMSHIP COMPANY,
Employer
Dated ------ ----------------------- By -------------------------------
(Reliresentative) (Title)
This notice must remain posted for 60 days from the date hereof, and must not
be altered, defaced, or covered by any other material.
Appendix B
NOTICE
To ALL MEMBERS OF AMERICAN RADIO ASSOCIATION, CIO, To Ai.r. OTHER RADIO
OFFICERS UTILIZING THE EMPLOYMENT FACILITIES OF THIS UNION, AND 7O ALL
EMPLOYEES OF ALASKA STEAMSHIP COMPANY
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify you that :
WE WILL NOT cause ALASKA STEAMSHIP COMPANY, its officers, agents, SUC-
cessors, or assigns, to refuse to employ any qualified person or to discriminate
in any manner in regard to the tenure of employment or,any term or condi-
tion of employment of its employees foi failure to bdlong,to-AMERICAN-.RADIO
ASSOCIATION, CIO, except as authorized by Section 8 (a) (3) of the Act.
JOSTEN ENGRAVING COMPANY 49
WE WILL NOT in any like or related manner restrain or coerce employees of
ALASKA STEAMSHIP COMPANY, its successors or assigns, in the exercise
of their rights to engage in, or to refrain from engaging in, any or all of the
concerted activities guaranteed in Section 7 of the Act.
WE WILL make whole Horace W. Underwood for any loss of pay suffered
as a result of our unlawful discrimination against him.
AMERICAN RADIO ASSOCIATION, CIO,
Labor Organization.
Dated -------------------- By ---------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof, and must not
be altered, defaced, or covered by any other material.
JOSTEN ENGRAVING COMPANY , D/B/A AMERICAN YEARBOOK COMPANY
and AMALGAMATED LITHOGRAPHERS OF AMERICA, LOCAL UNION No. 10
(CIO), PETITIONER . Case No. 18-I?C-1075 . February 11, 1952
Decision and Order
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before Erwin A. Peterson, hearing
officer. The hearing officer's rulings made at the hearing are free from
prejudicial error and are hereby affirmed.
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The Petitioner and the Intervenor, International Jewelry Work-
ers Union, Local No. 17, AFL,. are labor organizations claiming to
represent certain employees of the Employer.
3. The Employer and the Intervenor assert that their current 1950
contract constitutes a bar to this proceeding. The Petitioner contends
that the contract is not a bar, on the grounds: (a) That it does not
cover the employees herein sought; and (b) thatit contains an illegal
union-security clause.
Applicability of the Contract to American Yearbook Employees
Petitioner seeks to represent a group of lithograph employees who
work in the American Yearbook division of the Employer.' The
Petitioner contends that the current contract does not cover any
employees in this division, because the name of this division is not
I The American Yearbook division or American Yearbook Company, a new project of the
Josten Engraving Company. was established in the spring of 1950, some 6 months prior to
the current contract, executed in August 1950. This division is engaged in the production,
of high school and college yearbooks, and it draws upon the same market for the sale of
its products as its parent company, the Josten Manufacturing Company, which manu-
factureshigh school.and college jewelry.
98 NLRB No. R.