Harbor Carriers of the Port of New York, Etc.

National Labor Relations Board - Board Decisions

Apr 4, 1962

136 N.L.R.B. 815 (N.L.R.B. 1962)

HARBOR CARRIERS OF THE PORT OF NEW YORK, ETC. 815
RECOMMENDATION
Having concluded that Respondent had not engaged in unfair labor practices as
alleged herein and having found petitioners ' objection to election to be without
merit, I recommend that the complaint be dismissed in its entirety, that the Board
overrule the petitioners ' objection and proceed to issue a certification of results of
election.
Harbor Carriers of the Port of New York, and its members
listed in Appendix A and Deck Scow Captains Local 335, for-
merly known as Deck Scow Captains Local 335, Seafarers
International Union and Deck Scow Captains Local 335, United
Marine Division , National Maritime Union, AFL-CIO, Party
in Interest
Harbor Carriers of the Port of New York, and its members
listed in Appendix B and Deck Scow Captains Local 335, for-
merly known as Deck Scow Captains Local 335, Seafarers
International Union and Deck Scow Captains Local 335, United
Marine Division, National Maritime Union, AFL-CIO, Party
in Interest
Suffolk Dredging Corp. and Deck Scow Captains Local 335, for-
merly known as Deck Scow Captains Local 335, Seafarers
International Union
Harbor Carriers of the Port of New York and its Harbor Car-
riers Division, and its members listed in Appendix A and Deck
Scow Captains Local 335, formerly known as Deck Scow Cap-
tains Local 335, Seafarers International Union and Deck Scow
Captains Local 335, United Marine Division, National Mari-
time Union, AFL-CIO, Party in Interest
Harbor Carriers of the Port of New York and its Industrial
Carriers Division and its members listed in Appendix B and
Deck Scow Captains Local 335, formerly known as Deck Scow
Captains Local 335, Seafarers International Union and Deck
Scow Captains Local 335, United Marine Division, National
Maritime Union, AFL-CIO, Party in Interest
Colonial Sand & Stone Co. and Deck Scow Captains Local 335,
Independent
Deck Scow Captains Local 335, United Marine Division , National
Maritime Union, AFL-CIO [Colonial Sand & Stone Co.] and
Deck Scow Captains Local 335, Independent
Colonial Sand & Stone Co. and Deck Scow Captains Local 335,
Independent
Deck Scow Captains Local 335, United Marine Division, National
Maritime Union, AFL-CIO [Colonial Sand & Stone Co.] and
136 NLRB No. 79.
816 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Deck Scow Captains Local 335, Independent . Cases Nos. 92-CA-
71,,81-1, 92-CA-7481-2, 2-CA-7464-6, 2-CA-7598-1, 2-CA-7598-92,
92-CA-7775, 92-CB-3063, 2-CA-7763, and 92-CB-80592. Aprril 4,
1962
DECISION AND ORDER
On August 24, 1961, Trial Examiner Sydney S. Asher, Jr., issued
his Intermediate Report herein, finding that Respondents had engaged
in and were engaging i n. certain unfair labor practices and recom-
mending that they cease and desist therefrom and take certain affirma-
tive action, as set forth in the Intermediate Report attached hereto.
The Trial Examiner also found that Respondents had not engaged
in certain other unfair labor practices alleged in the complaint, and
recommended that such allegations be dismissed. Thereafter, Re-
spondent Companies, the Charging Party, and the General Counsel
filed exceptions to the Intermediate Report and briefs in support
thereof.
The Board has reviewed the Trial Examiner's rulings made at the
hearing and finds that no prejudicial error was committed. The rul-
ings are hereby affirmed. The Board has considered the Intermediate
Report, the exceptions and briefs, and the entire record in the case,
and adopts the findings, conclusions, and recommendations of the
Trial Examiner.'
ORDER
The Board adopts the Recommendations of the Trial Examiner as
its Order with the modification that provision F read : "Notify the
said Regional Director, in writing, within 10 days from the date of this
Order, what steps they have taken to comply herewith." 2 The Board
further orders that the complaint be dismissed to the extent recom-
mended by the Trial Examiner.
1 Respondent Association 's request for oral argument is denied , since the record and
the briefs adequately present the issues and positions of the parties.
In the notices attached to the Intermediate Report as Appendixes, the words "A De-
cision and Order" are hereby substituted for the words "The Recommendations of a Trial
Examiner " In the event that this Order be enforced by a decree of a United States
Court of Appeals, the words "Pursuant to a Decree of the United States Court of Appeals,
Enforcing an Order" shall be substituted for the words "Pursuant to a Decision and
Order."
The notices shall be further amended by the inclusion of the following notation: "Em-
ployees may communicate with the Board 's Regional Office , 5th Floor , Squibb Building,
745 Fifth Avenue, New York 22, New York, telephone number Plaza 1-5500, if they have
any questions concerning this notice or compliance with its provisions "
CONSOLIDATED INTERMEDIATE REPORT
STATEMENT OF THE CASE
On July 15, 1960, Deck Scow Captains Local 335, herein called Local 335,
Independent , then affiliated with Seafarers International Union, filed charges in
Case No. 2-CA-7464-6 against Suffolk Dredging Corp.,' New York, New York.
1 Sometimes referred to in the record as William J. McCormack or McCormack Sand &
Gravel Corporation.
HARBOR CARRIERS OF THE PORT OF NEW YORK, ETC. 817
On July 19, 1960, the same Charging Party filed charges in Cases Nos. 2-CA-7481-1
and 2-CA-7481-2 against Harbor Carriers of the Port of New York, herein called
the Association, and its members listed in Appendixes A and B, respectively. On
September 30, 1960, the Regional Director issued an order consoldiating these three
cases, a consolidated complaint, and notice of hearing. Deck Scow Captains Local
335, United Marine Division, National Maritime Division, AFL-CIO, herein called
Local 335, U.M.D., was named as Party in Interest. The complaint alleged that
all the Employer-Respondents had violated Section 8(a)(1), (2), and (5) of the
National Labor Relations Act, as amended (61 Stat. 136), herein called the Act,
and that in addition Respondent Suffolk had violated Section 8(a)(3) of the Act.
Respondents Gallagher, Bilkay, Hampton, Neptune, and Rockville filed a joint
answer, Respondent Association and the remaining Employer-Respondents filed a
separate joint answer.
On October 3, 1960, the Charging Party filed additional charges in Cases Nos.
2-CA-7598-1 and 2-CA-7598-2 against the Association, its Industrial Carriers
Division, its Harbor Carriers Division, and the individual Employer-Respondents.
On October 14, 1960, the Regional Director issued an order consolidating these two
cases, a consolidated complaint, and notice of hearing. Local 335, U.M.D., was
named as Party in Interest. The complaint alleged that Respondent Association,
Respondent Divisions, and the individual Employer-Respondents had violated Sec-
tion 8(a)(1) and (3) of the Act. Respondents Gallagher, Bilkay, Hampton,
Neptune, and Rockville filed a joint answer; Respondent Association and the remain-
ing Employer-Respondents filed a separate joint answer.
On October 21, 1960, the Regional Director issued an order consolidating all
five cases, an amended consolidated complaint, and notice of hearing. Local 335,
U.M.D., was named as Party in Interest. The amended consolidated complaint
alleged that Local 335, Independent, has at all material times been the collective-
bargaining representative of the employees in two bargaining units, that from on or
about May 29, 1960, to date, Local 335, Independent, requested the various Respond-
ents to recognize it as such bargaining representative and as the administrator of
collective-bargaining agreements executed November 16, 1959, and effective from
May 1, 1959, to March 31, 1961, but the Respondents refused to do so; that since
on or about June 14, 1960, the Respondents have recognized Local 335, U M.D., as
the bargaining representative of the employees in the appropriate units and as
administrator of the contracts, and have maintained and enforced these contracts,
including provisions requiring union membership as a condition of employment;
that on or about July 15, 1960, Respondent Suffolk discharged its employees
Thomas Serpa and Antonio Da Cruz 2 and failed to reinstate them until on or about
July 29, 1960, because they refused to join and assist Local 335, U.M.D., and
because they were members of Local 335, Independent, and because of the enforce-
ment by Respondents Suffolk and Marine Division of the union-security provisions
of their contract. It is alleged that this conduct violated Section 8(a) (1), (2), (3),
and (5) of the Act. The joint answer of Respondents Gallagher, Bilkay, Hampton,
Neptune, and Rockville admits the appropriateness of the applicable unit, admits
that they executed the contract of November 16, 1959, admits that they "were ap-
proached by various individuals other than those who entered into the agree-
ment . holding themselves forth as authorized to deal in behalf of the deck scow
captains," admits that at all material times they recognized Local 335, U.M.D., as
the bargaining representative of the employees in the appropriate unit, but denies
that Local 335, Independent, was or is the bargaining representative of the employees
in the appropriate unit. The joint answer of Respondent Association and the re-
maining Employer-Respondents denies that Respondent Association or Respondent
Divisions are engaged in commerce, admits the appropriateness of the units, admits
that they executed the contracts of November 16, 1959, admits that since June 14,
1960, they have recognized Local 335, U.M.D , as bargaining representative of the
employees in the appropriate units, admits "that certain individuals purporting to
represent the employees . . asked to be dealt with as the statutory representative
of said employees and to be recognized as the successor to the contracting labor
organization, and that Respondents . . . declined . . . to grant their request,"
denies that Local 335, Independent, was or is the bargaining representative of these
employees, admits that Respondent Suffolk laid off employees Serpa and Da Cruz
from about July 15 to 29, 1960, and alleges that the "sole reason" for these lay-
offs was that the employees involved had refused to pay dues to Local 335, U.M.D.,
2 Referred to in the complaint as Anthony De Cruz
818 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and Local 335, U.M.D., had demanded their layoff under the union-security clause
of the contract? This answer further set up two separate affirmative defenses.
A consolidated hearing was held before Sydney S. Asher, Jr., the duly designated
Trial Examiner, on various dates between November 11 and December 14, 1960,
in New York, New York. All parties were represented and participated fully in the
hearing.4 At the close of the General Counsel's case, all Respondents and Local
335, U.M.D., moved to dismiss the complaint; rulings on these motions were re-
served. They are now disposed of in accordance with the findings, conclusions, and
recommendations herein. At the close of the hearing the General Counsel moved to
strike each of the affirmative defenses. Both motions were granted .5 Thereafter
Respondents Gallagher, Bilkay, Hampton, Neptune, and Rockville filed a joint brief;
Respondent Association and the remaining Employer-Respondents filed a separate
joint brief. Both joint briefs have been duly considered.6
On January 10, 1961, the Charging Party filed charges against Colonial Sand &
Stone Co., New York, New York, in Case No. 2-CA-7763 and against Local 335,
U.M.D., and United Marine Division, National Maritime Union, AFL-CIO, New
York, New York, herein called the U.M.D., in Case No. 2-CB-3052. On January 19,
1961, the Charging Party filed charges against the same Respondents in Cases Nos.
2-CA-7775 and 2-CB-3063. On February 28, 1961, the Regional Director issued
an order consolidating Cases Nos. 2-CA-7775 and 2-CB-3063, a consolidated com-
plaint, and notice of hearing. The consolidated complaint alleged that Respond-
ent Colonial, on or about November 6, 1960, threatened to discharge its employee,
Robert Bicknell, unless he joined Local 335, U.M.D., and required Bicknell to become
a member of Local 335, U.M.D, as a condition of continued employment, in viola-
tion of Section 8(a)(1) and (3) of the Act. It further alleged that Respondent
Unions, on or about November 6 and 9, 1961, threatened Bicknell that they would
cause his discharge unless he joined Local 335, U.M.D., and renounced his member-
ship in Local 335, Independent; and on or about November 6, 1960, demanded and
required that Respondent Colonial discharge Bicknell because he was not a member
of Local 335, U.M.D, in violation of Section 8(b) (1) (A) and (2) of the Act.
Respondent Colonial filed an answer denying the allegations of the complaint, and
setting up certain affirmative defenses, including an allegation that at the time
mentioned in the complaint Respondent Colonial had a lawful contract with Local
335, U.M.D., requiring membership in Local 335, U.M.D., as a condition of employ-
ment. The Respondent Unions filed a joint answer, denying the allegations of the
complaint. On March 6, 1961, the General Counsel filed a motion to reopen the
consolidated hearing in the five cases described above, and to consolidate those five
cases with Cases Nos. 2-CA-7775 and 2-CB-3063. All Employer-Respondents filed
oppositions to the motion.
On March 17, 1961, the Regional Director issued , an order consolidating Cases
Nos. 2-CA-7763 and 2-CB-3052, a consolidated complaint, and notice of hearing.
The complaint alleged that on or about October 28, 1960, Respondent Colonial
required job applicant Hussein Elgahim,7 as a condition precedent to employment, to
obtain clearance from Local 335, U.M.D.; and on or about January 9, 1961, dis-
charged Elgahim because he was not a member of Local 335, U.M.D., in violation of
Section 8(a)(1), (2), and (3) of the Act. It further alleged that on or about
January 5 and 9, 1961, Respondent Unions threatened Elgabim that they would cause
Respondent Colonial to discharge him unless he paid dues to Local 335, U.M.D., and
during January 1961 demanded and required that Respondent Colonial discharge
him, in violation of Section 8(b)(1)(A) and (2) of the Act. Respondent Colonial
filed an answer admitting that Elgabim had applied to it for work, but denying the
g The Respondents did not file new answers to the amended consolidated complaint.
Instead, the parties stipulated that answers theretofore filed to previous complaints
should stand as answers to the amended consolidated complaint
'During the hearing, Local 335's constitution was offered in evidence The General
Counsel and the Charging Party opposed the offer ; ruling thereon was reserved The
proffered document (General Counsel's Exhibit No 2-N) is now received Among other
things , it is material to determine whether the proposed constitution sent out by O'Hare
(General Counsel's Exhibit No 2-L-1) differs substantially.
51 now adhere to those rulings As to the first motion, see Bacon Contracting Com-
pany, Inc ., 127 NLRB 1250, 1268-1269. As to the second motion, see the second sentence
of Section 10(a) of the Act, and Hershey Chocolate Corporation, 121 NLRB 901, 912,
footnote 22
O The latter brief, in addition to other matters, reargues certain procedural rulings
made at the hearing. I have again considered these rulings and adhere to them
7 Referred to in the complaint as Hossin M Elgahem.
HARBOR CARRIERS OF THE PORT OF NEW YORK, ETC. 819
other allegations of the complaint . This answer also alleged as an affirmative de-
fense that , at the time mentioned in the complaint , Respondent Colonial had a lawful
agreement with Local 335, U. M.D., requiring membership therein as a condition of
employment . The Respondent Unions filed a joint answer denying the allegations
of the complaint.
On March 20, 1961, the General Counsel filed an addition motion that Cases
Nos. 2-CA-7763 and 2-CB-3052 be consolidated with the other seven cases men-
tioned above . Oral argument on the General Counsel's two motions was held before
me at New York, New York, on March 28 , 1961. All parties were represented and
participated fully. At the end of the argument , the motions of the General Counsel
were granted , conditional upon the U. M.D. being stricken as a party Respondent. A
reopened consolidated hearing was held before me on April 20 and 21, 1961, at
New York, New York. All parties were represented and were afforded an oppor-
tunity to participate fully. At the beginning , on motion of the General Counse, the
U.M.D. was stricken as a party Respondent . At the close of the hearing, the General
Counsel and the Charging Party moved to strike one of Respondent Colonial's
affirmative defenses in its answer in Cases Nos . 2-CA-7775 and 2-CB-3063. The
motion was granted. Respondent Colonial and Local 335, U.M. D., moved to dis-
miss the consolidated complaints in Cases Nos . 2-CA-7775, 2-CB-3063, 2-CA-7763,
and 2-CB-3052. Ruling thereon was reserved . The motion is now disposed of in
accordance with the findings , conclusions , and recommendations herein. After the
close of the hearing, Respondent Colonial filed a supplemental brief and the Charging
Party filed a letter. Both have been duly considered.
Upon the entire record in these cases ,8 and from my observation of the witnesses,
I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYERS
Respondent Association is, and at all material times has been , a membership
association existing by virtue of the laws of the State of New York . Its membership
consists of the employers listed in Appendix A who compose the Harbor Carriers
Division, and the employers listed in Appendix B who compose the Industrial
Carriers Division , which employers own and operate scows, barges , and tugs, and
are engaged in the transportation by water, and sale of sand , gravel, and coal, and in
performing related services . Respondent Association and Respondent Divisions
maintain their principal office and place of business in New York, New York, where
they are engaged, among other things, in negotiating , executing , and administering
collective-bargaining agreements with various unions on behalf of their employer-
members.
During the year prior to October 21, 1960, Respondent Members collectively sold
from their places of business in New York State products valued at more than
$1,000,000, of which products valued at more than $100,000 were shipped directly
to destinations outside the State. During the same period Respondent Members
purchased goods and materials valued at more than $100,000, of which goods and
materials valued at more than $100,000, were delivered to their places of business
in New York State directly from points outside the State.
s The transcript was corrected in certain respects on August 1, 1961 In addition the
following corrections are hereby made:
Page 976 , line 10: Strike the name "Wilhem " and substitute therefor the name
"Wilhelm."
Page 1320, line 3 Strike the name "Celler " and substitute therefor the name
"Zeller "
Page 1405 , line 11 : Strike the word "goup " and substitute therefor the word
"group."
Page 1416 , line 20: Strike the name "O 'Hare" and substitute therefor the name
"Hannan."
Page 1416 , line 25: Strike the name "Anglin" and substitute therefor the name
"Hannan "
Strike the name "Anglin" and substitute therefor the name "Anglim" at page 100,
lines 15, 16, and 18; page 101, lines 5, 7, and 15 ; page 666 , line 13 , page 708, lines
10, 11 , 17, and 19; page 718, lines 1 and 6 , page 956, lines 18 and 25; page 976,
lines 7, 9, and 13 ; page 1320 , lines 19 and 20; page 1361, line 18, page 1416, lines
12 and 22 ; and page 1417, line 2.
Page 1522 , line 12: Strike the name "Bard " and substitute therefor the naim
"Baard "
641795-63-vol. 13 G-5 3
820 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondents Suffolk and Colonial are, and at all material times have been, mem-
bers of the Association, in its Industrial Carriers Division. Respondent Colonial is
a New York corporation with its principal office in New York, New York, and
various other places of business in New York State. It is engaged in the business
of mining sand and stone and manufacturing ready mixed concrete and in the sale
and distribution of those products. During the year prior to April 20, 1961, it
mined, manufactured, sold, and distributed in New York State products valued at
more than $100,000, of which products valued at more than $50,000 were shipped
directly to destinations outside the State.
Employer-Respondents other than the Association admit, and it is found, that
they are engaged in commerce within the meaning of the Act. Respondent Associa-
tion denies that it is so engaged. However, the record demonstrates that the indi-
vidual Employer-Respondents have joined together for the purpose of conducting
collective-bargaining negotiations. Accordingly, the Board considers them as con-
stituting a single employer for jurisdictional purposes.9 In these circumstances the
relevant criterion in determining the Board's jurisdiction over the Association is the
effect of the combined operations of all its members. As such combined operations
meet the Board's direct inflow and outflow standards for nonretail enterprises,10 I
find that the Association is engaged in commerce within the meaning of the Act, and
that it would effectuate the policies of the Act for the Board to assert jurisdiction
over the operations of all the Employer-Respondents in this case, including the
Association.
II. THE LABOR ORGANIZATIONS INVOLVED
Local 335, Independent , and Local 335, U.M.D., are, and at all material times have
been, labor organizations within the meaning of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The appropriate units
The amended consolidated complaint alleges, the answers admit, and it is found
that, at all material times:
(a) All deck scow captains" employed by the employer-members of the Associa-
tion in the Harbor Carriers Division, excluding all supervisors as defined in the Act,
constitute a unit appropriate for collective bargaining within the meaning of the Act.
(b) All deck scow captains employed by the employer-members of the Associa-
tion in the Industrial Carriers Division, excluding all supervisors as defined in the
Act, constitute a unit appropriate for collective bargaining within the meaning of
the Act.
B. Sequence of events
1. Background-events through 1959
A deck scow is a freight vessel employed in transporting commodities, containing
housing accommodations (presumably for one person). They are not self-
propelled and must be towed from place to place by tugboats, either alone or in
groups. A deck scow captain is the watchman or custodian of the deck scow to
which he is assigned. His duties including handling the mooring lines, putting up
navigation lights when necessary, pumping out seepage and reporting any damage to
the vessel; in short, to look out for the welfare of the scow. When duty requires
the captain's presence overnight, he stays aboard in the living quarters on his scow.
Approximately one-third of the captains live aboard their scows more or less per-
manently, maintaining shore addresses , such as the Seamans Institute or the YMCA,
for the receipt of mail.
The deck scow captains in the New York harbor area have had a local union since
about 1934, herein called the deck scow local. The number of members of this local
has varied from approximately 700 to over 1,000. For about 25 years prior to the
events related herein, the affairs of the local were handled by its two paid officials,
Hugo Kasten, its secretary-treasurer, and David Graham, its delegate. Likewise the
nonsupervisory employees who worked on tugboats in the New York harbor area
9 Siemons Mailing Service, 122 NLRB 81, 84; Belleville Employing Printers, 122 NLRB
350, 352; Operating Engineers Local Union No 3, AFL-CIO (California Association of
Employers ), 123 NLRB 922, 927, and Twenty-third Annual Report of the National
Labor Relations Board (1958), p 8
10 Siemons Mailing Service, supra.
11 As each deck scow has only one employee, called a captain, deck scow captains lack
supervisory authority and are rank-and-file employees
HARBOR CARRIERS OF THE PORT OF NEW YORK, ETC. 821
have had a separate local union, herein called the tugboat local. At all material
times, Captain Joseph O'Hare was its president and Willard Quick was its secretary-
treaturer. It had a larger membership than the deck scow local.
For many years the deck scow local has had collective-bargaining contracts with
those Association members who owned or operated deck scows.12 The principal offi-
cer of the Association concerned in these matters was William E. Cleary, its executive
vice president.
In 1954 the deck scow local, the tugboat local, and several other marine locals
were part of Local 933 of the International Longshoremen's Association, herein called
the I.L.A. Each sublocal was in turn separately chartered by the parent local, Local
933, I.L.A.: the tugboat local was Local 933-3 and the deck scow local was Local
933-4. In that year these sublocals disaffiliated from the I.L.A. and affiliated with
District 50, United Mine Workers of America, herein called the U.M.W.13 Some-
time later, the deck scow local disaffiliated from the U.M.W. and received a Federal
charter from the American Federation of Labor.i4
On March 8, 1956, O'Hare and Quick, as president and secretary-treasurer, respec-
tively, of the UlM.D., signed an agreement with the National Maritime Union of
America, AFL-CIO, herein called the N.M.U. This provided that the U.M.D. and
its "subordinate locals" would affiliate with the N.M.U. "as an autonomous division
with autonomous locals." 15 On June 13, 1956, the N.M.U. issued a charter to the
U.M.D. Thereafter the deck scow local surrendered its Federal charter. Presum-
ably, although this is not quite clear, the other related marine locals did likewise.
The U.M.D. then issued separate charters to the individual locals. The deck scow
local became Local 335, U.M.D., and the tugboat local became Local 333, U.M D.
The U.M D., Local 333, U.M.D., and Local 335, U.M.D., all had offices at 107
Washington Street, New York, New York, that of Local 335, U .M.D., being on the
sixth floor. O'Hare and Quick became president and secretary-treaturer, respectively,
of both the U.M.D. and Local 333, U.M.D.
Throughout the various changes of affiliation mentioned above, the Association
and the individual Employer-Respondents continued to recognize the deck scow local,
however affiliated, as the bargaining representative of the employees in the above-
described units. Contractual relations continued uninterrupted and no other rival
union appeared on the scene or claimed to represent these employees.
In March 1959, negotiations commenced between the Association and Local
335, U.M.D., looking toward a new contract in each of the bargaining units. These
negotiations bogged down and Local 335, U.M.D., requested the aid of the U.M.D.
in negotiating. Thereafter O'Hare attended three or four negotiating meetings. On
May 8, 1959, the parties executed a memorandum extending their then-existing con-
tract to March 31, 1961, with certain specified changes. This was signed by Cleary
for the Association and, among others, O'Hare, Kasten, and Graham for Local 335,
U.M.D. On November 16, 1959, the parties executed formal contracts, effective
from May 1, 1959, to March 31, 1961, and automatically renewable from year to
year in the absence of 60 days' written notice of termination by either party to the
other. One such contract was entered into between Local 335, U.M.D , and the
Association acting for its members in the Harbor Carriers Division which owned or
operated deck scows, including those listed in Appendix A. Others were entered
into separately between Local 335, U.M D., and individual Employer-Respondents
who were members of the Association's Industrial Carriers Division, those named in
Appendix B. These contracts with the Industrial Carriers were executed separately
but were identical in all major terms, differing only in the operational requirements
of each individual company. All contracts executed that day, whether with the
Harbor Carriers or the Industrial Carriers, were signed on behalf of Local 335,
U.M D., by Kasten and Graham, and contained 31-day union-security clauses in favor
of Local 335, U M.D They also contained provisions that when a vacancy exists
the employer will promptly notify Local 335, U.M.D., of the vacancy, and that Local
335, U.M.D., may consider a vacancy unfilled until the employer notifies it of the
name of the person employed. No party herein attacks the validity of these
agreements.
12 This includes all Employer-Respondents herein except Bilkay, Hampton, Neptune,
and Rockville. Contracts with these four employers were first entered into in 1959.
13 See Bradley, et at. v. O'Hare, et at. , 202 N Y.S. 2d 141.
13 Apparently, although it is not entirely clear from the record, the deck scow local acted
in concert with the other related marine locals in this regard, as it had when affiliating
with the U M W.
15 On January 31, 1958, this agreement was amended Among other changes, a pro-
vision was added that the U M D. "and its subordinate locals will be completely
autonomous "
822 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Local 335, U.M.D., operated a hiring hall All the contracts referred to above
require the Employer-Respondents to notify Local 335, U.M.D., when a vacancy
exists for a deck scow captain, "in order that the Union may have the opportunity
of referring qualified applicants" and contained assurances that Local 335, U.M D.,
would conduct its hiring hall in a manner not violative of the Act. Despite these
provisions, the individual Employer-Respondents sometimes hired deck scow cap-
tains directly from their own lists, rather than applying to Local 335, U.M.D , for
employees.
2. Events in 1960, up to May 28
Local 335, U.M.D., held its regular membership meetings on the third Monday
of each month A special meeting of the membership of Local 335, U.M.D, was held
on April 3, 1960, at which O'Hare attended and addressed the members. A motion
was adopted to hold a referendum among the local's membership, under the auspices
of the Honest Ballot Association, on whether Local 335, U M.D., should merge with
Local 333, U.M.D. However, no such referendum was ever held. At the next regu-
lar membership meeting of Local 335, U.M.D, on April 18,16 the motion to hold the
referendum on the proposed merger was rescinded. At the same meeting, a motion
was adopted to change the date of the regular membership meeting from the third
Monday of each month to the third Sunday of each month. Thereafter a printed
notice over Kasten's name was distributed by hand to a large number of deck scow
captains announcing that regular meetings would be held the third Sunday of each
month, the next one to be on May 15, 1960.
The executive board of Local 335, U.M'D., met on May 13. Kasten submitted
his resignation as secretary-treasurer The executive board passed a motion to refer
Kasten's resignation to the next regular membership meeting of the local. A regular
membership meeting of Local 335, U.M.D., was held on May 15. Kasten's resigna-
tion was accepted and a motion w1s passed to fill the vacancy until the next regular
election of officers. Thereupon, Thomas M. Wilhelm was elected secretary-treasurer
of the local for the balance of Kasten's term.17 At this meeting a motion was adopted
to hold a special membership meeting on May 29, to vote on whether Local 335,
U.M.D., should disaffiliate from the U M.D. and the N.M U.
On May 17, Wilhelm discharged the local's clerk, Thomas Anglim. Wilhelm
testified that, on the same day, he mailed to the local's approximately 750 members
a letter describing what had occurred at the membership meeting of May 15, and
announcing a special membership meeting to be held May 29 to vote on the question
of the local's disaffiliation from the U.M D. and the N.M.U.18 Copies of this letter
were also distributed by hand to a large number of deck scow captains.
On May 18, Anglim appeared at the shipping office of Local 333 on the fifth floor
of 107 Washington Street. At the same time and place, a sign appeared bearing the
legend "Local 335." On May 19, the Association held a membership meeting to dis-
cuss the implications of Kasten' s resignation . No action was taken at this meeting.
On May 20, Quick wrote to the Association on the U.M.D.'s letterhead as follow-
As the parent Organization of Local 335 we wish to advise you that due to
internal disturbances within Local 335 it has been necessary for this Organization
to appoint Mr. Thomas Anglim as temporary Administrator with complete
authority to take charge of and administer all assets , contracts and/or other
functions normally performed by the officers of Local 335.
The only problem existing is an intra-Union matter and should have no
effect on your current collective bargaining agreement with Local 335.
Until such time as you are further notified by Captain Joseph O'Hare, the
President of this Organization, or the undersigned, all your dealings relative to
the contract should be conducted with Mr. Anglim, who will be available at
the address and telephone number above.
Our hiring hall will continue to operate as in the past under the supervision
of Mr. Anglim.
About May 20, Graham learned of Anglim's appointment as administrator over
Local 335, U.M.D. On May 23, Graham wrote a letter on the letterhead of Local
335, U.M.D, addressed to the Association, its Harbor Carriers Division and its
Industrial Carriers Division. He delivered it personally to Cleary. It read:
16 All dates hereafter refer to the year 1960, unless otherwise noted
17 The Respondents appear to challenge Wilhelm's election as contrary to the local's
constitution I consider the actions of the membership described below as at least a
de facto ratification of Wilhelm's status as an officer. Westinghouse Electric Corpora-
tion, 132 NLRB 406, footnote 1.
'- Wilhelm testified that about 50 of these were returned because of incorrect addresses.
HARBOR CARRIERS OF THE PORT OF NEW YORK, ETC. 823
Please be advised that the undersigned, duly elected and empowered to repre-
sent the above Local and its membership will continue to transact the business
thereof in accordance with the contract now in force. Your attention is par-
ticularly directed to that portion of the contract which covers the hiring of
scow captains, including the notification to this local immediately upon their
being a scow captain vacancy. Shipping shall continue to be done via the
union hall, telephone WH 4-7953.
We shall also insist upon strict compliance with all other provisions of the
contract.
Cleary asked what had happened. Graham replied: "I am still doing business at
the same old stand." Graham's letter was never answered.
The executive board of Local 335, N.M.U., held a meeting on May 26. The
president of the local and one of the trustees submitted their resignations. The
executive board determined not to fill these vacancies until the next regular election.19
The executive board also recommended that the local's membership vote to dis-
affiliate from the U.M.D. in the forthcoming vote on that issue. In addition, it
recommended that, if the membership should vote in favor of disaffiliation, the
membership elect a committee to "discuss affiliation with another labor organization
and report back to the membership" at the regular membership meeting to be held
on June 19 20
On the same day, May 26, the Association held a membership meeting. In view
of the conflicting claims arising from Quick's letter of May 20, and Graham's letter
of May 23, it was decided to retain counsel . On that day or the next, Cleary had a
telephone conversation with William J. Hannan, Esq., the U.M.D.'s attorney, or
Quick, or both. Cleary asked if there were any further developments in the internal
situation in the Union. Either Hannan or Quick or both replied that the U M D was
the parent organization and intended to carry out the provisions of the contracts
and would expect the Employer-Respondents to live up to them; and that the
Employer-Respondents were to deal with Anglim. Cleary responded that this was
all right, or words to that effect.
3. The disaffiliation of May 29, 1960, and subsequent events
A special membership meeting of Local 335, U.M.D., was held on May 29,
pursuant to the motion passed at the regular membership meeting of May 15, and
the notices mentioned above. At that time the local had between 700 and 750
members. A motion was adopted that if Local 335, U.M.D., disaffiliated from the
U.M D. and the N.M.U., all assets of the local, including its contracts with the
Employer-Respondents, would remain the property of the local. A vote by secret
ballot was then held. The result was from 130 to 140 in favor of disaffiliation, and
from 8 to 14 against. An additional motion was passed establishing a committee to
seek affiliation with some International union and to report back to the membership
on this matter. On the same day Wilhelm wrote two identical letters, on the letter-
head of "Deck Scow Captains" and signed as secretary-treasurer of "Deck Scow
Captains Local 335," to the Harbor Carriers Division and the Industrial Carriers
Division, respectively. After pointing out the existence of collective-bargaining con-
tracts between the Employer-Respondents and "this Local Union," the letters stated
that the membership of the local had voted to disaffiliate from the U M.D. and the
N.M.U., and would be known as "Deck Scow Captains Local 335," with offices at
the same location. They concluded:
In connection with the administration of our collective bargaining agree-
ment all future correspondence and inquiries should be made to this Local
Union unaffiliated, until such further time as we may otherwise advise you as
a result of the action of our membership.
No replies were ever received to these letters. On May 31, the Association held
a membership meeting. It was agreed that the substantive portions of the contracts,
such as wages, would be adhered to. So far as hiring was concerned, it was agreed
not to use either union as a hiring hall, but instead to continue the practice of using
the Employer-Respondents' own lists of prospective employees for that purpose
"At a time not clearly identified on the record, but some time prior to May 29, the
local's vice president also resigned This vacancy likewise does not appear to have been
filled
20 Some of the Respondents contend that no quorum attended this executive board meet-
ing I deem this matter immaterial and therefore do not pass upon it
824 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On June 2, Wilhelm wrote two identical letters, on the letterhead of Deck Scow
Captains Local 335, to the Harbor Carriers Division and the Industrial Carriers
Division, respectively. After pointing out that the contracts required the Employer-
Respondents to notify the Union of any vacancies, the letters stated that there had
been a "flagrant ... violation" of these provisions, in that the Employer-
Respondents had been hiring deck scow captains directly, or through Local 333,
U.M.D., and not notifying Local 335, Independent. The letters requested the
Association to inform its members to cease these violations, asked for the names of
all deck scow captains hired by the Employer-Respondents since May 16, and
requested a reply within 5 days. No answers to these letters were ever received by
Local 335, Independent.
On June 9, O'Hare sent a letter to a large number of deck scow captains, on the
letterhead of the U.M.D., announcing that Anglim had been appointed administrator
of Local 335 and James Murray Miller its business agent, and stating that they were
the "only two persons authorized to accept dues on behalf of Local 335 of the
United Marine Division." It requested that the addressee sign and return a pledge
card and application form which was enclosed, and added: "The payment of one
month's dues ($4.00) will entitle you to a membership card." It also enclosed,
without comment, a document entitled "Constitution and By-Laws of Local 335,
United Marine Division, National Maritime Union, AFL-CIO" which stated that it
was "effective as of May 15, 1960" and differed substantially from the one then in
effect. About this time Anglim began collecting dues from deck scow captains for
Local 335, U.M.D 21
On June 10, Wilhelm wrote identical letters, on the letterhead of Deck Scow
Captains Local 335, to Respondents Colonial, Steers, New York Trap Rock, Galla-
gher, and Suffolk, with copies to the Association's Industrial Carriers Division; and
to Respondent Zeller with a copy to the Assoication's Harbor Carriers Division.
These letters stated that the addressee had "failed and refused to comply" with the
hiring provisions of the "agreement in force and effect between us" and asked for a
meeting on June 15 "to hear, determine and attempt to resolve the above dispute."
On June 14, the Association held a membership meeting attended, among others, by
representatives of those Employer-Respondents to whom Wilhelm's letters of June 10
had been addressed. It was decided "to live up to the contracts" and that Anglim
was the party with whom the Employer-Respondents should deal. On the same day
Cleary wrote to Wilhelm as follows:
Received copies of your letters dated June 10, 1960, addressed to certain of
our members. Neither we nor our Members have any contract with Deck Scow
Captains' Local 335 and we will not meet with you. We do have a contract
with Deck Scow Captains' Union, Local 335, United Marine Division, N.M.U.,
AFL-CIO and we recognize this contract.
We have also received a letter from Captain Joseph O'Hare, President of the
United Marine Division notifying us that Mr. Jim Murray [Miller] has been
appointed Administrator of the Deck Scow Captains' Union, Local 335, United
Marine Division, N.M.U., AFL-CIO, and that . .. Mr. Tom Anglim is the
office manager as
This letter was reproduced and copies distributed to the Employer-Respondents.
On June 14 or 15, Cleary had a telephone conversation with Quick or Hannan or
both in which he told them what had happened, including the mailing of this letter
to Wilhelm. Either Quick or Hannan requested that Cleary send them a copy;
Cleary did so. On June 15, Wilhelm replied in two substantially identical letters,
on the letterhead of Deck Scow Captains Local 335, to the Association's Industrial
Carriers Division and the Harbor Carriers Division, respectively, with copies to all
the Employer-Respondents to whom the letters of June 10 had been sent , except
Respondent Suffolk. These letters stated that Cleary's letter of June 14 "represents
an obvious breach of agreement in effect between our Local, your Association and
its members," recited the events of the disaffiliation vote, and enclosed a certified
copy of the resolution of May 29, providing that in case of disaffiliation all assets of
"In a later undated letter to deck scow captains on the letterhead of the U DI D ,
O'Hare and Miller again requested the addressees to "fill out a new application card"
Such a card was enclosed
2 Miller denied that he had ever been appointed administrator of Local 335, U M D
But an undated letter in evidence bears his signature as such. Moreover Cleary testified
that either Hannan or Quick or both told him that Miller had been appointed administra-
tor and Anglim office manager, and that he (Cleary) then so informed the Association's
members
HARBOR CARRIERS OF THE PORT OF NE W YORK, ETC. 825
Local 335, U . M.D., including its contracts , would be "assigned forthwith " to Local
335, Independent . The letters further stated that , on June 19, the local 's member-
ship would vote on affiliation with an International union. They also again re-
quested a meeting. No reply was received to these letters.
Meanwhile , on June 3, Wilhelm had mailed letters to the members of Local 335,
Independent , stating that the committee to seek affiliation with an International union
would report at the next regular membership meeting, to be held June 19. Copies of
this letter had been distributed by hand to deck scow captains . The committee had
contacted four International unions, including the N.M.U., and had invited them to
send representatives to the local's membership meeting set for June 19 . On June 10,
Wilhelm had mailed another letter to the membership of Local 335 , Independent,
stating that this had been done, and urging attendance at the forthcoming meeting of
June 19. Copies of this letter had also been distributed by hand to deck scow
captains . The membership meeting was held as scheduled on June 19 Representa-
tives of the S.I.U. and International Union of Operating Engineers , AFL-CIO,
appeared and addressed the meeting . A secret ballot of the membership was then
taken . Approximately 160 voted for the S.I .U., 2 for International Brotherhood of
Teamsters , Chuaffeurs , Warehousemen and Helpers of America , 1 for the N.M.U.,
and 2 for no affiliation . On June 20 , Wilhelm wrote to the Association, on the
letterhead of "Deck Scow Captains Local 335, affiliated with Seafarers International
Union, AFL-CIO," stating that the local had voted to affiliate with the S .I.U. The
letter added that the membership had
assigned all our collective bargaining agreements from our Organization un-
affiliated to our Organization as affiliated with the Seafarers International
Union AFL-CIO.
We expect your organization and its members to immediately honor its
contractual obligations with our organization.. . .
No reply was received to this letter . Thereafter the S.I.U. issued a charter to
the deck scow local. Approximately 500 deck scow captains signed cards indicating
acceptance of the S.I .U. affiliation ; there were then about 700 to 750 deck scow
captains in the appropriate units.
A regular membership meeting of Local 335, S .I.U., was held on July 17. The
membership voted 367 to 1 to strike against Respondents Suffolk and Colonial. The
strike, which was accompanied by picketing , began July 20, and lasted 5 days 23
During the strike, about 500 deck scow captains signed up for picket duty24
In September the S.I.U . withdrew the charter of the deck scow local, and the local
again became independent.
On October 11, Wilhelm wrote identical letters on the letterhead of Deck Scow
Captains Local 335, Independent , to each of the Employer-Respondents. These
letters demanded that the addressees "honor your agreement with the Union,"
especially the union-security provisions . No replies were ever received to these
letters.
C. Contentions of the parties
The General Counsel and the Charging Party contend that there is no evidence
that any U.M.D. constitution existed or that the U.M.D. had any authority to appoint
an administrator, and that the appointment was therefore "a nullity." They further
argue that the disaffiliation meeting of May 29 was held on sufficient notice , was open
to all members in good standing in Local 335, U.M .D., and that the vote to dis-
affiliate was fairly conducted . They also maintain that no "true schismatic situation"
arose as that term is defined by the Board,25 that the contracts constituted a bar to
any representation petition at the time in question , and that consequently no genuine
question existed concerning the representation of the employees in the appropriate
units. They also urge that Local 335, Independent , was a continuation of-and the
same organization as-Local 335 , U.M.D., except for its lack of affiliation with the
U M.D., and continued to represent a numerical majority of the employees ; conse-
quently after the disaffiliation the Employer-Respondents were under a statutory
duty to recognize Local 335, Independent , as the contracting union rather than
a None of the parties raises the issue of the nature of this strike , e g, whether it was
an economic or an unfair labor practice strike See Bilinski Sausage Manufacturing
Company, Inc., 132 NLRB 229, footnote 2
24 On July 21 , Respondent Colonial filed charges in Case No 2-CP-43-1 and 2 against
Local 335 , S I U , alleging violation of Section 8(b) (7) (A ) and (C ) of the Act These
charges were dismissed by the Regional Director on October 20. No appeal to the General
Counsel was taken.
25 Hershey Chocolate Corporation , 121 NLRB 901.
826 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Local 335, U.M.D., which they describe as a "new organization." The General
Counsel and the Charging Party accordingly conclude that the Employer-Respondents,
by their admitted recognition of Local 335, U.M.D., as the contracting union, vio-
lated Section 8(a)(1), (2), and (5) of the Act. They contend in addition that the
Employer-Respondents terminated the contracts without the notices required by
Section 8(d) of the Act. Alternatively, the General Counsel maintains that, if a
question concerning representation did arise from the disaffiliation, then the Employer-
Respondents were under a duty to refrain from recognizing either Union, and their
recognition of Local 335, U.M.D., violated Section 8(a)(1) and (2) of the Act
under the Midwest Piping doctrine.26 The Charging Party additionally urges that
the Employer-Respondents, as early as May 19, plotted and planned to recognize
only a local under the U.M.D.'s control, in "clear-cut bad faith."
The Respondents apparently agree that the situation here did not give rise to the
kind of schism in which the Board would have entertained a representation petition
during the contracts' term. They urge that, in purporting to disaffiliate, the deck
scow local failed to follow its constitution, to give its members proper notice, or to
afford them a reasonable opportunity to vote. Therefore, they argue, the action of
May 29 had the legal effect of causing "the death of the organization as constituted
at the time of the negotiations," and thereafter Local 335, Independent, constituted
"an entirely different organizatioti. Finally, they contend that, being faced with
conflicting claims from rival groups, and being unable to invoke the Board's repre-
sentation processes, the Employer-Respondents acted in good faith when they recog-
nized Local 335, U M.D., as the holder of the contracts. By way of rebuttal, the
General Counsel maintains that whether Local 335, U.M.D., followed its consti-
tution in disaffiliating, and whether the Employer-Respondents acted in good faith,
are immaterial matters.
D. Conclusions regarding Section 8(a),(1), (2), and (5) of the Act
1. Generally
Let us first consider the U M.D.'s appointment of an administrator over Local 335,
U.M.D., on May 20. The Charging Party argues that the mere existence of a parent
organization does not ipso facto endow it with authority to appoint an administrator
over the affairs of its locals. Both the General Counsel and the Charging Party urge
that here the U.M.D. had no such constitutional authority, indeed had no constitution
at all. And there is evidence in the record tending to disprove the existence of any
U.M.D. constitution at any time here material. However, no finding on this point
is necessary. The existence or nonexistence of constitutional authority to support
the U.M.D.'s act in appointing an administrator over the deck scow local is im-
material to the issues herein.27 Nor did such appointment have the legal effect of
causing Local 335, U.M.D., to become defunct 28
The letter of Quick on May 20 plus the letter of Graham on May 23 faced the
Employer-Respondents with conflicting claims by two rival groups, each claiming to
be the exclusive representative of the employees in the appropriate units, and each
insisting upon its right to administer the existing contracts In his telephone con-
versation with Hannan or Quick or both, Cleary on behalf of the Employer-
Respondents agreed to recognize Anglim. This was on May 26 or 27, therefore
could not have been based upon the disaffiliation action of the local, which did not
occur until a few days later.
26 lltidivest Piping & Supply Co , Inc, 63 NLRB 1060
"i Jut Transportation Corp , et al, 128 NLRB 780: and Tei minal System, Inc , et al.
127 NLRB 979, 980-981
Likewise, it is not the Board's function to determine whether Anglim's appointment
violated Section 302 of the Labor-Management Reporting and Disclosure Act of 1959
(73 Stat 519) Section 603(b) of this statute provides "nor shall anything contained
in . this Act be construed to affect the rights of any person under the National
Labor Relations Act, as amended
28 Cincinnati Balers Club, 121 NLRB 422, footnote 1 : Pennington Bias , lee, 124
NLRB 935, 936; and The Great Atlantic d Pacific Tea Company. 120 NLRB 656
It should perhaps be noted in passing that the N Al U's agreement of March 8, 1956,
as amended in 1958, provided that the U M D's locals should be "completely autonomous "
The record also indicates that O'Hare orally assured Kasten and Graham that Local 335,
U M D , would enjoy "local autonomy" But, as courts have recognized, there are vary-
ing degrees of "autonomy" between local unions and their internationals See Bradley,
et al v O'Hai e, et a l , 202 N Y S 2d 141, 156.
HARBOR CARRIERS OF THE PORT OF NEW YORK, ETC. 827
Now let us turn to the disaffilation action of May 29. All parties agreed that it
did not create a question concerning representation so as to prevent the contracts
from barring an election. The Board's decisions hold that a contract bar is avoided
in schismatic situations only where there is "a basic intraunion conflict ... at the
highest level of an international union." [Emphasis supplied.] 29 The conflict here
was not at such a high level, therefore, the disaffiliation did not give rise to a ques-
tion concerning representation.
The Respondents attack the disaffiliation upon three grounds: (1) it contravened
the limitations of the local's constitution; (2) it was taken without proper notice to
the members; and (3) a large number of eligible members were deprived of an
adequate opportunity to vote.30 As to the first ground, it is well settled that whether
the union's constitution or rules were followed is immaterial in such situations.31 The
second ground, for reasons appearing below, need not be passed upon; it will be
assumed without deciding that adequate notice was given 32 In order intelligently
to rule upon the third ground, it is necessary to consider the nature and character of
deck scow operations in New York harbor.
Voyages, of course, vary in length. But a long tow (for example from Pine
Orchard to Perth Amboy), with a tugboat of average horsepower and favorable
weather conditions, might take a minimum of 3 days to complete. Often a voyage
is interrupted and the deck scow lays out in the stream moored to a stakeboat.33
Frequently in such instances the captain is required to remain aboard waiting for
orders Moreover, a deck scow captain may be ordered to stay aboard his vessel
when it is likely to be towed, loaded or unloaded, or when there is danger of ex-
cessive leakage. Under such circumstances the captain is not permitted to absent
himself from the scow for periods exceeding 1 hour.
Deck scows owned or operated by the Employer-Respondents travel to between
150 and 200 different points in and adjacent to New York harbor. They go north
along the Hudson River as far as Albany, about 142 miles from New York; along
the north shore of Long Island as far as Port Jefferson, 65 to 70 miles from New
York; in New Jersey into Newark Bay and up the Passaic, Hackensack, Raritan, and
Rahway Rivers. Assuming a car were available, a scow captain could return to
New York from Albany in about 31/z hours, from Port Jefferson in about 21/2 hours,
from Kingston (100 miles from New York) in about 21/4 hours, from Pine Orchard
in about 2 hours, and from other locations in less time. From points on Staten
Island it would be necessary to use a ferry to Manhattan. In sum, because of the
dispersal of the numerous places to which scows travel, even those deck scow cap-
tains who are not on duty may at any given time find themselves a considerable dis-
tance from New York. The difficulty of assembling any substantial number of deck
scow captains at one time, arising from the nature of their work, was recognized
by the deck scow local in its constitutional provisions, and its practice, in electing
officers a period of approximately 15 days was provided for balloting. It was also
recognized in 1954, when it conducted a mail ballot referendum on the question of
disaffiliating from the I L A.
The day on which the disaffiliation with which we are now concerned took place
was the Sunday of Memorial Day weekend. The Employer-Respondents are re-
quired to pay premium rates to deck scow captains on duty on Sundays Moreover,
the local hired a number of small boats to take deck scow captains from stakeboats
29 Hershey Chocolate Corporation, supra, 907; and St Louis Bakery Employers Labor
Council, 121 NLRB 1548, 1550
30 Apparently there is no contention that the secrecy of the ballot was impaired or that
the votes were improperly counted In any event, the record clearly shows that reason-
able precautions were taken to assure that only members in good standing could vote,
that all such members who appeared were permitted to vote by secret ballot, and that
the tally was fairly and impartially compiled
31 Radionic Prodacts Division, Radionic Controls, Inc , 91 NLRB 595, 596 ; and Heishey
Chocolate Corporation, supra, 908
"Because the Respondents were denied access to the mailing list assertedly used to
mail notices, Wilhelm's testimony that he mailed approximately 750 notices should be
scrutinized carefully, if deemed material This testimony was corroborated in part by
that of a number of deck scow captains that they received copies in the mail However,
it was contradicted by Graham's testimony that the deck scow local's officials "never took
addresses until Brother Wilhelm was elected Secretary-Treasurer " This, in turn, con-
flicts with later testimony of Graham that the local had conducted a mail referendum
ballot among its members in 1954
33 A stakeboat is a permanent anchorage at sea, usually a vessel The stakeboat owner
provides transportation to and from land, but theie is no regular service
828 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to land to attend the meeting . In all, from 138 to 154 members in good standing-
approximately 20 percent of the total membership-appeared and cast ballots 34 The
meeting lasted 3 hours. The Respondents introduced into evidence a survey of several
Employer-Respondents purporting to show that , on May 29, of a total of 488 scows
in commission , 161 were "out of New York City" and the captains of 142 others
were "required to be on duty." The circumstances under which this tabulation was
compiled were such as to cast doubt upon its complete accuracy . It is therefore not
accepted as proof of the exact figures contained therein, but is considered neverthe-
less as tending to show that , on that date, a substantial number of deck scow captains
found it either imppssible or difficult to attend the meeting.
Taking into consideration the peculiar nature of the industry , as described above,
and the facts as to the meeting of May 29, in particular , I conclude that the vote
there taken was not, standing alone, fairly representative of the wishes of the majority
of the local 's members , a substantial portion of whom were in effect disenfranchised 35
But it by no means follows, as the Respondents contend, that the effect of the vote
was to cause the demise of the local as constituted theretofore . On the contrary, as
approximately 20 percent of the membership acted, the result was a situation subject
to ratification by the majority . And the record shows such a ratification , for ap-
proximately 500 deck scow captains out of a total of about 750 signed cards accept-
ing the affiliation of Local 335 , Independent , with the S.I .U. and an approximately
equal number signed up for strike duty in July . 36 I conclude that the disaffiliation
vote of May 29 was thereafter ratified by a substantial majority of the employees
in the appropriate units, and that such ratification cured any prior defect in the
original vote.
We come then to the question of which of the competing groups was , in reality,
the same union with which the Employer -Respondents had existing contracts. The
General Counsel and the Charging Party contend that after May 29, Local 335,
Independent , was in fact the continuation of the previous Local 335, U . M.D , and
that thereafter Local 335, U .M.D., became a new and completely different organiza-
tion than the previous Local 335, U .M.D. The Respondents and Local 335, U.M D.,
maintain that the converse occurred . Let us examine the pertinent facts. After
May 20, Local 335, Independent , retained possession of the assets , records, and
offices of Local 335 , U.M.D., and continued to function exactly as it had before the
disaffiliation with precisely the same officers and constitution . As pointed out above,
it continued to enjoy the support of a majority of the deck scow captains 37 On the
other hand , the administrator appointed by O'Hare (whether Anglim or Miller)
neither demanded nor obtained possession of the local's assets , records , or offices,
and no evidence was produced to show that he assumed the obligations of Local 335,
U M D.38 Moreover , he was not antonomous as the local had been theretofore, but
was accountable to and represented the interests of the U.M .D , which was not a
party to the contracts . In addition , it is doubtful if he considered the local's former
constitution as operative , for on June 9, O'Hare circulated a new constitution, pur-
31 The attendance at other meetings of the deck scow local when important issues were
decided ranged from about 20 out of a total of 800 to 900 members in 1954 , when the local
disaffiliated from the U .%T W. to 368 voting membeis out of a total of about 750 on
July 17, 1960 , when the stiike vole was taken
-'5 1 am aware that two prior disaffhations of the deck scow local were accomplished
without prior notice and by voice vote at regular meetings attended by only a small trac-
tion of the total membership. But the picture was entirely different then-no rival gioup
was claiming to represent the deck scow captains , as was the case on May 29, 1960 In
any event , the fact that a large number of members had been effectively disenfranchised
on other occasions did not justify the local in doing so on May 29, 1960 Because of the
nature of the industry, in my opinion a genuine opportunity to vote could have been
accorded only by a means of mail ballot , or balloting spread out over a reasonable peiiod
of time
38 Majority support of a strike is evidence that the union represents a majoiity
NLRB v. Irving Taitel , Ruth Taitel and Jei once Taitel , d/b/a I Taitel and Son,
261 F 2d 1, 4 ( CA 7) rehearing denied December 22, 1958, cert denied 359 U S 944;
-31. Benevento Sand if Gravel Co , 131 NLRB 358, footnote 18 in Intermediate Report ;
and Seven Up Bottling Company of Miami . Inc, 92 NLRB 1622 , 1623, enfd. as modified
196 F 2d 424 ( CA. 5), reversed as to modification and enforcement in full directed
344 U S 344.
a Loss of majority status after the end of the strike if it occurred at all , would he
attributable in m" opinion to the Employer -Respondents' refusal to iecogni7e Local 335,
Independent , and their recognition of its rival , Local 335, U 'MD
18 Compare Lenscraft Optical Corporation, and Rayex Corporation , 128 NLRB 836 (IR)
HARBOR CARRIERS OF THE PORT OF NEW YORK, ETC. 829
portedly effective May 15.39 Finally and significantly, O'Hare solicited the deck scow
captains to sign new applications for membership, and the proposed new constitu-
tion speaks of "organizational periods " It is clear, and I find, that after the dis-
affiliation Local 335, U.M.D., engaged in attempts to organize the deck scow cap-
tains and to persuade them to abandon its rival, Local 335, Independent, in sum,
it adopted "raiding" tactics. From the above, it is concluded that after the
disaffiliation of May 29, the local continued under the name of Local 335, Inde-
pendent, and was at all times thereafter the alter ego or continuance of the organiza-
tion which had entered into the 1959 contracts,40 that the Employer-Respondents
were under a statutory duty to recognize it as such; and that after May 29, the union
calling itself Local 335, U.M.D., was basically a different organization, not entitled
to recognition as holder of the contracts.
As early as -May 26 or 27, before the disaffiliation, Cleary refused to recognize the
proper organization as the contracting local by failing to reply to Graham's letter
of May 23, and by orally recognizing Anglim as the holder of the contracts 41
His refusal continued in failing to furnish Local 335, Independent, with the informa-
tion requested in Wilhelm's letters of June 2; in his letter of June 14, declining
to meet with Local 335, Independent, as Wilhelm had requested on June 10; in his
failure to reply to Wilhelm's repeated requests for a meeting contained in his letters
of June 15, and in his failure to respond to Wilhelm's letter of June 20.42 Moreover,
none of the Employer-Respondents answered Wilhelm's letters of October 11.43
The Employer-Respondents defend, however, on the ground that they acted in good
faith.44 But the Employer-Respondents' motives or good faith are not material.45
Accordingly it is concluded that, by withdrawing recognition from the contracting
union on and after May 29, in the middle of the contract term, and by failing and
refusing to furnish data requested by the contracting union on June 2, which was
necessary to administer the contract effectively, the Employer-Respondents unlaw-
fully refused to bargain in violation of Section 8(a)(5) of the Act. By the same
conduct they interfered with, restrained, and coerced their employees, in violation of
3° The Respondents contend this proposed constitution never became effective I deem
this matter immaterial.
90 The identity of the representative of the majority of employees in an appropi late unit
is not altered either by its change of name or its change of affiliation N L R.B v.
Harris-Woodson Company, Inc, 179 F. 2d 720, 723 (CA 4) ; Continental Oil Company v.
N L R B , 113 F 2d 473, 477-478 (C A 10), rehearing denied July 31, 1940; Carpinteria
Lemon Association v. N.L R.B , 240 F. 2d 554, 557 (C A. 9), rehearing denied February 7,
1957, cert denied 354 U S. 909 ; and N L R B v. Weyerhaeuser Company, successor to
Ace Folding Box Corporation, 276 F. 2d 865 (C.A. 7), cert. denied 364 U S 879
Compare Lenscraft Optical Corporation, et al., supra, R C. Williams d Coinpany, Inc.,
107 NLRB 933; The Prudential Insurance Company of America, 106 NLRB 237; The
Louisville Railway Company, 90 NLRB 687; Chesapeake it Potomac Telephone Company
of Baltimore, 89 NLRB 231 ; Dryden Rubber Division of Sheller Manufacturing Company,
118 NLRB 369; Dalmo Victor Company Division of Textron, Inc., 119 NLRB 737; Alto
Plastic Manufacturing Corporation, 119 NLRB 1458; Charles Beck Machine Corporation,
107 NLRB 874, 875-876; and Michigan Bell Telephone Company, 85 NLRB 303 See
also Naumoff, Evolution of the NLRB Contract Bar Doctrine, 10 L L J. 687, 696.
41 The fact that the contents of this telephone conversation between Cleary on one hand
and Hannon or Quick or both on the other was not immediately revealed to the officers
of the local does not detract from its character as a refusal to recognize the local's elected
officers as holder of the contract
42 The statutory duty to recognize Local 335, Independent, as bolder of the contracts
continued through that local's affiliation with the S I U, and after the S LU withdrew
its charter. This temporary affiliation did not substantially affect the local's essential
nature ; it continued as the same basic entity throughout all the events after May 29
43 Further proof that Respondent Colonial recognized Local 335, U M.D , is found in
Regazzi's statement to Wilhelm on January 10, 1961, discussed below, that "we recognize
the local, the U.M D "
44 They point out that after May 29, Local 335, U M D , never submitted to them any
proof of majority status The Charging Party's opposing contention of bad faith rests
partly on the Employer-Respondents' failure to question O'Hare's authority to appoint
an administrator, partly on their failure to ask for proof of his majority status and partly
on the Association meeting of May 19 The Charging Party's theory is that they were
motivated by a desire to keep both the tugboat local and the deck scow local in the same
International union
45Marcus Trucking Company, Inc., 126 NLRB 1080, 1101-1102, enfd as mod 2S6
F. 2d 583 (C.A. 2) ; and Ludlow Typograph Company, 113 NLRB 724, 725
830 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Section 8(a) (1) of the Act. And by recognizing Local 335, U.M.D , as the holder
of the contracts on and after May 29, they also rendered illegal aid and assistance
to that union in violation of Section 8(a) (2) of the Act 46
There remain two contentions of the General Counsel and the Charging Party.
They maintain that the Employer-Respondents violated Section 8(a)(5) of the
Act by terminating the contracts without complying with the provisions of Section
8(d) of the Act regarding notices. But the Employer-Respondents never treated
the contracts as terminated, merely as belonging to Local 335, U.M.D., as that union
was constituted after May 29. Indeed, Cleary's letter of June 14 to Wilhelm stated
specifically "we recognize this contract." Accordingly, in my opinion, there was
here no such "termination" as was contemplated by Section 8(d) of the Act.47 I
therefore find no merit in this contention. The General Counsel alternatively urges
that, if a question concerning representation arose from the disaffiliation, the Em-
ployer-Respondents were legally forbidden by Section 8(a) (1) and (2) of the Act
from recognizing either of the competing groups, under the Midwest Piping doctrine.
The short answer to this is that, as explained above, there was no such question
concerning representation at the times here material, and therefore Midwest Piping
does not apply.
2. Respondents Gallagher, Bilkay, Hampton, Neptune, and Rockville
Respondents Gallagher, Bilkay, Hampton, Neptune, and Rockville contend that
the Association and its Industrial Carriers Division "were not our representatives for
the purpose of bargaining" and never were authorized "to act as our agents"; and
therefore they are not bound by Cleary's or the Association's acts. In this connection
they point out that they had their own representatives present during the 1959 negoti-
ations and executed separate contracts with Local 335, U.M.D. However, in their
joint answer to the original consolidated complaint in Cases Nos. 2-CA-7481-2,
these Employer-Respondents admitted (1) that they "were approached by various
individuals . .. holding themselves forth as authorized to deal in behalf of the
deck scow captains" and (2) "that at all time herein referred to the Respondents
recognized Local 335 (U M.D., N.M.U.) as the collective bargaining representatives
of the employees." Accordingly, on the basis of these admissions, and aside from
the question of the Association's agency,48 I find that Local 335, Independent, made
demands upon these five Employer-Respondents for recognition and that despite
these demands the five Employer-Respondents at all material times recognized
Local 335, U.M.D., as the holder of the contracts. Further proof that these five
Employer-Respondents refused to recognize Local 335, Independent and instead
recognized Local 335, U.M.D., is found in their failure to reply to Wilhelm's letters
of October 11, addressed to each of them individually. I conclude that these five
Employer-Respondents engaged in the same conduct as all the other Employer-
Respondents described above, and stand on the same footing.
E. Conclusions regarding Section 8(a)(3) and 8(b) of the Act
1. The discharges of Serpa and Da Cruz
a. Facts
Thomas Serpa was a deck scow captain employed by Respondent Suffolk. In
April 1960 (before the disaffiliation) he was a member of Local 335, U.M.D. and
paid his dues to that union for the first half of 1960, that is, through the end of June.
On July 5 (after the disaffiliation) he was a member of Local 335, S.I.U., and paid
his dues to that union for July, August, and September. All these payments were
entered on Serpa's union card.
On the morning of July 15, while Serpa was waiting to board his scow at a dock
on 21st Street, he was approached by two men. One of the men, having ascertained
from Serpa that he was a deck scow captain working for Suffolk, asked to see his
46 Marcus Trucking Company, Inc, sepia; and Lenscraft Optical Corpoi ation, et at,
supra.
47 Whether there was a breach of contract subjecting the breachor to civil liability is,
of course, not an issue here
48 Evidence of Cleary's apparent authority to act on behalf of Respondent Gallagher is
found in the fact that Wilhelm's letter to it of June 10 was turned over to Cleary for
reply, and that a representative of Gallagher attended the Association meeting of June 14,
and participated in the decision there made to recognize Local 335, U 11 D
HARBOR CARRIERS OF THE PORT OF NEW YORK, ETC. 831
union card . Serpa showed it to him, whereupon the man said to his companion:
"No good, we don't want him." The two men then left Serpa and held a conversation
with Thomas Peterson , Suffolk's superintendent , the contents of which are not re-
vealed on the record . A few minutes later, Peterson summoned Serpa and asked
to see his union card . Serpa showed it to him. Peterson remarked : "This card is
no good" and asked to whom Serpa had paid his last 3 months ' dues. Serpa answered
that he had paid them to Wilhelm. Peterson said: "You are just throwing your
money away" and left. He returned a short while later with a document in his
hand. He asked Serpa if he had read "Article No. 2" 49 and what it said. Serpa
replied that he had read it, and that it required deck scow captains to become a
union member within 31 days and remain "a regular union member ." Peterson said:
"You don't belong to the union at all. You have to join with that man." Serpa
replied that he had his "own union " and would not "recognize a second union."
Peterson asked: "Aren 't you going to join?" When Serpa answered in the negative,
Peterson ordered him to "pack up," but told him to wait until he (Peterson) went
"upstairs" to "call the old man." Peterson then left but soon returned and said to
Serpa: "I 'm very sorry . The told man told me to let you go." As Serpa was pack-
ing his gear preparatory to leaving , Peterson approached him and offered: "If you
join in with that man, I'll put you back on the boat." Serpa declined , and left. He
was reinstated as a deck scow captain by Respondent Suffolk on July 25, at the end
of the strike referred to above, and after service upon Respondent Suffolk of a copy
of the charges in Case No. 2-CA-7464-6.
Antonio Da Cruz was a deck scow captain employed by Respondent Suffolk.
Before May 29 he had been a member of Local 335, U .M.D. On the morning of
July 15, as he was preparing for work at the Roslyn dock, Miller approached him
and asked for his union card. He replied that he had a card from Local 335, Inde-
pendent. Miller urged him to accept "a yellow card 50 .. . as a new union" but
Da Cruz declined . Miller stated : "If you don 't join our union , then you will have
to leave the boat." A few minutes later Harold F. Madden, a representative of Re-
spondent Suffolk, appeared and talked to Miller. Later Madden said to Da Cruz:
"Captain, you have to leave this boat because we have a contract with these people
and I have to have this boat loaded today ," but Da Cruz stated that he would not
"join with them " Miller then directed the captain of a nearby tugboat not to move
Da Cruz's deck scow unless Da Cruz would "agree to join with them ." Madden and
Miller left, but Madden returned in about 15 minutes and asked Da Cruz what he
was going to do , as he had "to have that boat loaded and they don 't want you on
board that boat." Da Cruz asked if Madden were going to discharge him "because
I don 't want to join another union ." Madden answered, "What can I do?" Da Cruz
then requested : "Give me a piece of paper and state that you fire me for that pur-
pose." Madden responded : "What do you think you are? You are fired, get out of
that boat." Da Cruz packed his gear and left He was reinstated as a deck scow
captain by Respondent Suffolk on July 27, after service upon it of a copy of the
charges in Case No. 2-CA-7464-6, but was assigned to a different vessel.
b. Contentions and conclusions
The amended consolidated complaint alleges that Respondent Suffolk discharged
Serpa and Da Cruz on or about July 15, and failed and refused to reinstate them
until on or about July 29, because they "refused to join and assist" and were not mem-
bers of Local 335, U .M.D., because they were members of Local 335, Independent,
and because of the enforcement of, and pursuant to, the union -security clause of its
contract with Local 335, U .M.D. The General Counsel maintains that Respondent
Suffolk thereby violated Section 8(a)(1) and ( 3) of the Act . There is no contention
that Local 335, U.M .D., violated the Act with regard to these employees , nor that
Da Cruz's reinstatement was not complete, even though he was assigned to a differ-
ent boat. Respondent Suffolk's answer admits that it laid off Serpa and Da Cruz on
or about July 15 51 and did not reinstate them until July 29 but alleges "that the sole
reason for the temporary layoff of said employees was that they had refused to pay
regular membership dues to [Local 335, U .M.D.] and [Local 335, U .M.D.] had
99 This apparently referred to the 31-day union -security clause in the contract between
Suffolk and Local 335, U M.D.
9s The membership cards issued by Local 335, U M D , before the disaffiliation and con-
tinued thereafter by Local 335, Independent , were blue The new Local 335, U.M D ,
cards were yellow
"In view of this admission there is no issue as to Peterson's authority to discharge
Serpa or Madden 's authority to discharge Da Cruz
832 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
thereupon demanded their layoff under the union-security clause of the collective
agreement applicable to them." Thus Respondent Suffolk's defense is one of con-
fession and avoidance, namely, that we admit that we laid off these two employees,
but contend that our contract with Local 335, U.M D., plus demand by Local 335,
U.M.D., that we discharge them for nonpayment of dues, legally entitled us to do so.
The difficulty with this defense is that, as found above, Local 335, U.M.D., was
not then the contracting organization or the statutory bargaining representative of
the employees and therefore the employees' failure to pay dues to it did not excuse
Respondent Suffolk for discharging them It is accordingly concluded that Re-
spondent Suffolk violated Section 8(a)(3) of the Act by (1) depriving Serpa of
employment from July 15 to 25,52 because he had failed to join or pay dues to
Local 335, U.M.D.; 53 (2) depriving Da Cruz of employment from July 15 to 27,
for the same reason, and (3) maintaining and enforcing the union-security provision
of its contract in favor of Local 335, U.M.D , at a time when that organization was
not entitled to the benefits of the contract. It is also found that, by such conduct,
Respondent Suffolk rendered illegal aid and assistance to Local 335, U.M.D., in
violation of Section 8(a) (2) of the Act. It is further concluded that, by this con-
duct, Respondent Suffolk interfered with, restrained, and coerced its employees in
violation of Section 8(a) (1) of the Act.54
2. The Bicknell incident
a. Facts
Robert Bicknell was employed by Respondent Colonial as a deck scow captain.
On July 6, after the Local's disaffiliation, he paid dues to Local 335, S.I.U., for the
last 6 months of 1960. In October he was elected a trustee of the local, which by
then was Local 335, Independent. Bicknell's membership in Local 335, Independent,
was known to both Anglim and Richard Baard, a representative of Respondent
Colonial who had at least authority effectively to recommend the hiring and dis-
charging of its deck scow captains.
On the morning of November 7 Bicknell was aboard his vessel in Hempstead.
Baard called him to the dock and said: "I am sorry, Bicknell, but I have to lay you
off." When Bicknell asked why, Baard replied: "I don't know why. That's orders
from the main office . . . I assume it's because you don't belong to the other union."
At Bicknell's suggestion , Baard called Anglim on the telephone, holding the receiver
so that Bicknell could hear. Baard asked Anglim if any order had gone through to
lay off Bicknell; Anglim answered that he knew of no such order. Bicknell took
the telephone and asked Anglim why he was being laid off; Anglim again stated
that he knew of no order to lay Bicknell off. Bicknell offered to see Anglim, and
Anglim agreed. Baard then made a telephone call to an unidentified person, saying
"that it was all right," that he had spoken to Anglim, and "to leave [Bicknell]
on the payroll." Bicknell thereupon returned to work 55
On the morning of November 9 Bicknell went to the office of Local 335, U.M D.,
and, upon being informed that Anglim was out, conferred with Miller. A lengthy
discussion ensued. Miller stated that Local 335, U.M D., had the contract, and
before the end of the year all deck scow captains would have to join Local 335,
U.M.D., or they could not work.56 Bicknell turned over to Miller his card in Local
ga It is immaterial whether the deprivation of employment is looked upon as a dis-
charge followed by reinstatement as the complaint alleges, or as a temporary layoff as
the answer describes it.
53 I need not, and do not, determine whether an additional reason was his member-
ship in and support of Local 335, Independent See Marcus Trucking Company, Iiic,
supra, 1105 (footnote 55 in IR)
64 It will be recalled that on July 15 Peterson offered to rescind Serpa's discharge if
Serpa would join Local 335, U M.D. It is not alleged that this offer constituted an
independent violation of Section 8(a) (1) of the Act and the issue either was not "fully
litigated," Monroe Feed Store, 112 NLRB 1336, 1337, or was litigated "only incidentally
in connection with the [issue alleged in the complaint] and not as a possible basis for
an independent finding ," Crookston Times Printing Company , 125 NLRB 304 . There-
fore, I deem myself precluded from considering this issue.
55 The findings of fact regarding the events of November 7, are based on Bicknell's
undenied testimony.
ca This finding of fact is based upon the credited testimony of Bicknell, who impressed
me as a straightforward and honest witness Miller denied making such a statement, or
that there was any mention of Bicknell 's job Miller did not impress me as an entirely
HARBOR CARRIERS OF THE PORT OF NEW YORK, ETC. 833
335, Independent (blue card), showing that he was paid through the end of the year.
Bicknell signed an application for membership in Local 335, U.M.D., which Miller
also signed as "delegate." Miller retained Bicknell's blue card and application, and
gave Bicknell a card in Local 335, U.M.D. (yellow card), which Miller signed as
"delegate" and punched to indicate that Bicknell was paid through the remainder of
1960. Bicknell paid no money to Miller; thus Miller in effect credited him in full
with dues he had paid in July to Local 335, S.I.U. Bicknell stated that he was a
trustee of Local 335, Independent. Miller replied that he could not be a trustee of
Local 335, Independent, and also a member of Local 335, U.M.D., and the conver-
sation ended.
Since November 9 Bicknell has paid no money to Local 335, U.M.D. His blue
card is still in Miller's possession. Bicknell continued to act as a trustee of Local
335, U.M.D., and paid dues to that local in January 1961 on a new white card.
Since November 7 he has continued in Respondent Colonial's employ without layoff.
b. Contentions and conclusions as to Respondent Colonial
The consolidated complaint in Cases Nos. 2-CA-7775 and 2-CB-3063 alleges
that on or about November 6 Respondent Colonial, through Baard, threatened to
discharge Bicknell unless he joined Local 335, U.M.D., and required him to become
and remain a member of Local 335, U.M.D., as a condition of employment, although
Respondent Colonial had no lawful agreement with Local 335, U.M.D., requiring
membership in that union as a condition of employment. It is alleged that Respond-
ent Colonial thereby violated Section 8(a)(1) and (3) of the Act. The answer
of Respondent Colonial in these cases denies the allegations of the consolidated com-
plaint. Alternatively, as an affirmative defense, this answer alleges that at the time
in question Respondent Colonial had a lawful agreement with Local 335, U.M.D.,
requiring membership in that union as a condition of employment.
Let us examine the events of November 7. Baard first laid off Bicknell, stating
that he was doing so on "orders from the main office." Admitting that he did not
know the reason for these orders, Baard added "I assume it's because you don't
belong to the other union." Thus Baard indicated that Respondent Colonial might
lay off a deck scow captain for nonmembership in Local 335, U.M.D. This impres-
sion was underscored by what followed: When Anglim assured Baard that Local
335, U.M.D., was not seeking Bicknell's layoff, Baard immediately reacted by cancel-
ing the layoff and restoring Bicknell to duty. This vividly brought home to Bicknell
that Respondent Colonial considered that lack of clearance from Local 335, U.M.D.,
could adversely affect Bicknell 's tenure of employment . Indeed , it had the effect
one might reasonably expect: Bicknell promptly applied for membership in Local
335, U.M.D. The Respondent urges, alternatively, that it was entitled to make such
statements because of the contract's union-security provisions. However, it has been
found above that Local 335, U.M.D., was not then the contracting union; therefore
this alternative defense must fall. As Baard's acts of November 7 were attributable
to Respondent Colonial by virtue of his supervisory status, it is concluded that Re-
spondent Colonial thereby unlawfully interfered with, restrained, and coerced
Bicknell in the exercise of his protected right to refrain from joining or assisting
Local 335, U.M.D., in violation of Section 8(a)(1) of the Act57
c. Contentions and conclusions as to Local 335, U.M.D.
The consolidated complaint in Cases Nos. 2 -CA-7775 and 2-CB-3063 alleges that
on or about November 6 and 9 Local 335, U.M.D., through Anglim and Miller,
threatened Bicknell that it would cause Respondent Colonial to discharge him unless
he joined Local 335, U.M.D., and renounced his membership in and support of
Local 335, Independent; that on or about November 6, Local 335, U.M.D., through
agents unknown , demanded that Respondent Colonial discharge Bicknell because
he was not a member of Local 335, U.M.D., and that Local 335, U.M.D., did not
candid witness, and I do not credit his denial in this respect. Moreover, Bicknell's ver-
sion seems consistent with Miller's prior behavior toward Da Cruz on July 15 at the
Roslyn dock of Suffolk, referred to above.
67 The General Counsel contends that Baard's conduct on November 7, also violated
Section 8(a) (3) of the Act As neither backpay nor dues reimbursement is sought for
Bicknell, the order recommended hereafter would be the same ; I therefore deem it un-
necessary to decide the 8(a) (3) issue. There does not appear to be any contention that
the Bicknell incident involved a violation of Section 8(a) (2) of the Act
834 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
then hold a lawful contract with Respondent Colonial requiring membership in
Local 335, U.M.D., as a condition of employment. It is alleged that this conduct
violated Section 8 (a) (1) (A) and (2) of the Act. The answer of Local 335, U.M.D.,
denies the allegations of the consolidated complaint.
The General Counsel frankly admitted at oral argument that there was "no direct
testimony" that Local 335, U.M.D., requested Respondent Colonial to discriminate
against Bicknell. But he argues that such is the "clear inference" from Baard's
conduct toward Bicknell on November 7, described above. I cannot agree. In my
opinion there is no probative evidence that Local 335, U.M.D., made any such
demand upon Respondent Colonial. Indeed, the existence of any such request is
negated by Anglim's replies on the telephone to Baard and again to Bicknell on
November 7. It is therefore concluded that the General Counsel has failed to prove
that Local 335, U.M.D., violated Section 8(b) (2) of the Act with respect to Bicknell.
Nor, in my opinion, did anything said by Anglim to Bicknell on the telephone on
November 7 reasonably tend to coerce Bicknell in violation of Section 8(b)(1)(A)
of the Act. The suggestion that Bicknell confer with Anglim came from Bicknell
himself; Anglim did not coerce Bicknell by merely assenting thereto. But Miller's
remark to Bicknell on November 9, that before the end of the year all deck scow
captains would have to join Local 335, U.M.D., or they could not work stands on a
different footing. The Board has held that, in the absence of a valid union-security
clause in favor of the uttering union, such a threat made by a union agent is coercive.58
And, as found above, Local 335, U.M.D., held no such union-security clause here.
As Miller's threat of November 9 is attributable to Local 335, U.M.D., because of his
position as delegate, it is concluded that Local 335, U.M.D., thereby illegally co-
erced and restrained Bicknell in the exercise of his protected right to refrain from
joining or assisting Local 335, U.M.D., in violation of Section 8(b) (1) (A) of the Act.
The General Counsel further contends that, in the context of Miller's threat to
Bicknell, his statement on November 9, that Bicknell could not be a trustee of
Local 335, Independent, and also a member of Local 335, U.M.D., constituted an
additional violation of Section 8(b)(1) (A) of the Act. I cannot agree. In my
view this was nothing more than a recitation of Local 335, U.M.D.'s membership
rules, completely divorced from Bicknell's employment status. It fell squarely
within the protection of the proviso to Section 8 (b) (1) (A) of the Act,59 and
therefore was not coercive.
3. The Elgahim incidents
a. Facts concerning the 1960 incident
Hussein Elgahim on October 28 presented himself at the Port Washington plant of
Respondent Colonial and applied to Baard for a job as a deck scow captain. Baard
questioned Elgahim about his work experience, and asked if he "had gone to the
union," without naming any particular union. Baard then told Elgahim that he "first
had to go to the union," and gave him a piece of paper on which was written only
"107 Washington Street, New York City," but no floor or room number.60 Elgahim
then went to 107 Washington Street, took the elevator, and got off at the third floor.6i
He asked a receptionist for the union office. Either the receptionist or Miller directed
Elgahim to an office where he conferred with Miller. He told Miller that he was
seeking work as a deck scow captain and had been to Respondent Colonial's plant at
68Local 511, St Louis Offset Printing Union, AFL-CIO, et at. (Mendle Press, Inc.),
130 NLRB 324; International Hod Carriers, Building and Common Laborers' Union of
America, Local No 41 (A. B Anderson Construction Company), 129 NLRB 1447; Local
212, International Union, United Automobile, Aircraft and Agricultural implement Work-
ers of America, UAW-AFL-CIO (Chrysler Corporation), 128 NLRB 952, Local 169,
Industrial Division International Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, AFL (Rheem Manufacturing Company), 111 NLRB 460; and
Local #1150, United Electrical, Radio if Machine Workers of America, affiliated with
the Congress of Industrial Organizations, et al. (Co)y Corporation), 84 NLRB 972, 973.
59 "Provided, That this paragraph shall not impair the right of a labor organization to
prescribe its own rules with respect to the acquisition or retention of membership
therein . . . "
8s The findings of fact regarding this conversation and the Elgahim-Baard conversation
of October 31, are based upon Elgahim's undenied testimony
81 This was Elgahim's first visit to 107 Washington Street It is not entirely clear why
he got off at that particular floor, on which are offices of Local 335, U.M D , rather than
the sixth floor, on which are offices of Local 335, Independent
HARBOR CARRIERS OF THE PORT OF NEW YORK, ETC. 835
Port Washington, and gave him the piece of paper he had received from Baard.
Miller filled out and gave Elgahim a slip which read:
RICHARD BAARD--
Brother Hossan Algahim 877 is reporting for work in accordance with the
following instructions:
Classification: Scow Capt.
Vessel:
Company: Col. S/G
Place: Port Washington
UNITED MARINE DIVISION, N.M.U.-
A.F.L.-C.I.O. LocAL 333.
(S) J. MURRAY MILLER,
Trustee Shipping Agent.62
Miller told Elgahim that if he got a job at Colonial "it's a union job." Elgahim
then signed an application for membership in Local 335, U.M.D. Miller stated:
"Now, you will have to pay an initiation fee" but Elgahim protested that he had no
money. Miller replied "that he didn't have to pay it for 3 months." He added.
"You take this slip of paper and go out ." Elgahim then left 63
On October 31, Elgahim returned to Respondent Colonial's Port Washington
plant. He showed Baard the slip which he had been given by Miller on October 28,
as related above. Baard hired Elgahim as a deck scow captain, and he remained
in that job throughout the year 1960. Elgahim did not pay any money to Local
335, U.M.D.
b. Contentions and conclusions concerning the 1960 incident
The consolidated complaint in Cases Nos. 2-CA-7763 and 2-CB-3052 alleges
that Respondent Colonial, on or about October 28, required Elgahim, as a condition
precedent to his employment as a deck scow captain, to obtain clearance and ap-
proval for such employment from Local 335, U.M.D., in violation of Section 8(a)
(1), (2), and (3) of the Act. Respondent Colonial's answer in these cases admits
that Elgahim applied for work on or about October 28, but denies that it required
him, as a condition precedent to his employment, to obtain clearance from Local 335,
U.M.D. Affirmatively, this answer alleges that at the time in question Respondent
Colonial had a lawful contract with Local 335, U.M.D., requiring membership in
that union as a condition of employment. The General Counsel, by way of re-
butting this affirmative defense, maintains that conditioning Elgahim's initial employ-
ment on Local 335's approval was violative of the Act regardless of which of the
two competing unions was the holder of the contract.
Let us examine what it was that Baard, on October 28, required Elgahim to do
before being hired. He asked if Elgahim had gone to "the union," told him he "first
had to go to the union," and gave him an address-107 Washington Street. In short,
he conditioned hiring on clearance from a union-but was that union necessarily
Local 335, U.M.D., as the complaint alleges? Baard's description of the union
applied equally to Local 335, U.M.D., and Local 335, Independent, as they were
both located at 107 Washington Street. Thus, it is impossible to ascertain whether
Baard was referring to Local 335, U.M.D. (as the General Counsel contends), or
Local 335, Independent, or either of them, or even some other local (such as Local
333) at that address. The fact that Baard on October 30, may have accepted clear-
ance from Local 335, U.M.D.,64 does not answer the question, for he might equally
have honored clearance from Local 335, Independent.65 It is accordingly concluded
"This was the first such slip Miller had ever filled out for someone seeking a job as
deck scow captain He was at that time also an employee of Local 333, U M D, and
testified that he used a form with "Local 333" printed thereon merely as a matter of
convenience.
63 The findings of fact concerning the conversation between Miller and Elgahim on
October 28, are based upon a synthesis of the testimony of Miller and Elgahim
64 If, In fact. he did-for Local 335, U.M D.'s name does not appear on the shipping
slip-only that of Local 333, U 111 D.
es It Is true that Baard threatened Bicknell In a way indicating his preference for
Local 335, U MD., as described above. But that was on November 7-more than a week
later-and cannot legitimately be related back so as to show his attitude on an earlier
date Sam Leiter and George Goldberg, Partners d/b/a Letter Manufacturing Company,
641795-63-vol. 136-54
836 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that the General Counsel has failed to prove that Baard conditioned Elgahim's hiring
upon clearance from Local 335, U.M.D., as alleged in the complaint 66
c. Facts concerning the 1961 incident
Before turning to the events of January 1961, it would be profitable to describe
the duties and authority of some of the individuals involved at that time: Louis
Racina was an employee of Local 335, Independent, assigned to collect dues from
deck scow captains on behalf of Local 335, Independent. Frank Chaco 67 was a
temporary delegate for Local 335, U.M.D. As part of his duties he collected dues
from various deck scow captains on behalf of that union. James Heroes was a
runner in the employ of Respondent Colonial. He had no authority to hire or
discharge deck scow captains but could make recommendations with regard there-
to. From time to time he was directed by his superior to lay off a deck scow
captain; when he received such an instruction he carried it out. Maurice Regazzi
was Respondent Colonial's chief dispatcher. He had authority to hire and discharge
its deck scow captains and was Heines' superior.
About January 5 or 6, 1961, Racina approached Elgahim on his boat, inquired if
he had "got into the union," and asked him to pay dues. Elgahim replied that he
had not yet paid, but promised that when he had some money he would go to the
Union's office and do so. Upon inquiry from Elgahim, Racina explained that the
Union's office was on the sixth floor. On either January 5 or 6, 1961, Chaco also
visited Elgahim on his scow. He asked Elgahim to pay his union dues. Elgahim
replied that he had already promised Racina to pay dues to his union, and would not
pay two unions. Chaco responded that, if Elgahim did not pay dues to his union,
he would be laid off.
On the morning of January 9, 1961, Elgahim was assigned to scow C-74 moored
at Respondent Colonial's Hempstead plant. Chaco came to see him and again
inquired whether he was going to pay his union dues. Elgahim replied that he had
already told Chaco that he was "not going to pay both of you." Chaco stated: "If
you are not going to pay your dues now I will have you laid off and I will just go
up to the company and tell them about it," and then left.68
What happened that morning after Chaco's departure must be gleaned from the
confusing and often conflicting testimony of several witnesses. Fitting together the
pieces of the jigsaw puzzle, I find that the events of the balance of that morning
occurred substantially as follows: Chaco went to Heines, who was then at Hemp-
stead, and requested that he lay off the captain of the C-74 because he had not paid
his dues to the union. Heines answered: "You have to take that up with the
office." 69 Heines discovered that the C-74 was damaged and told Elgahim that he
would transfer him to another scow, the 119. In Elgahim's presence, Heines called
Respondent Colonial's main office and reported to either Regazzi or one of his assist-
ants that the C-74 was damaged, and that he was transferring Elgahim to the 119.
Regazzi ordered the C-74 tied up for repair and approved Elgahim's transfer 7°
Heines then told Elgahim to transfer his gear to the 119; Elgahim left to do so.
Meanwhile Chaco telephoned to Respondent Colonial's main office and requested
either Regazzi or Mrs. Dorothy Crean, Regazzi's assistant , to lay off the captain
of the C-74 because of nonpayment of union dues. Crean called Anglim and told
112 NLRB 843, 851, footnote 21. In any event the existence of such a preference could
not have been known to Elgahim on October 28, unless expressed in some way--and the
record shows no such disclosure by Baard to Elgahim
ea Assuming that the condition imposed by Baard was that Elgahim obtain clearance
from either Local 335, U.M.D , or Local 335, Independent, the issue of whether there
would be a violation of the Act is not properly before me A finding of a violation on
such a state of facts and on such a theory would constitute a substantial variance not
only from the allegations of the complaint but also from the theory on which the General
Counsel proceeded at the hearing
89 Referred to in the consolidated complaint as Frank Charco
68 The findings of fact regarding the conversation between Elgahim and Racina and the
two onvecrsations between Elgahim and Chaco are based upon Elgahim's uncontradicted
testimony. Neither Racina nor Chaco testified
85The findings of fact regarding this conversation are based upon Heines' undenied
testimony.
70 The finding that the C-74 was damaged, that Heines reported this, and that Regazzi
ordered the C-74 tied up is based upon Respondent Colonial's records and the testimony
of Regazzi The findings with regard to the remainder of the telephone call are based
upon Elgahim's testimony.
HARBOR CARRIERS OF THE PORT OF NEW YORK, ETC. 837
him that Chaco had called and "wanted a man knocked off." 71 Crean then put
Regazzi on the telephone. Anglim asked Regazzi to lay off Elgahim because he had
not paid his dues to Local 335, U.M.D.72 Regazzi either personally or through an
assistant, then telephoned Heines and ordered him to lay off Elgahim because of his
nonpayment of dues to Local 335, U.M.D.73 Heines summoned Elgahim and said
that the company had received a call from Chaco saying that Elgahim had not paid
his dues. He added: "I am sorry, we will have to lay you off, but this isn't my
fault." Elgahim then stated that he was going down to talk to his union, and
left.74
On the following day, January 10, 1961, Elgahim conferred with Wilhelm at the
office of Local 335, Independent. Wilhelm telephoned Regazzi and asked why he had
discharged Elgahim. Regazzi answered: "I wish you guys would get together there.
I had to let him go because he wouldn't pay the union dues." Wilhelm replied
that Elgahim "belongs to our union, Local 335, Independent." Regazzi responded:
"Well, we have a card.75 I wish you two guys would get it straightened out down
there. We recognize the local, the U.M.D." 76
On January 13, 1961-after service upon Respondent Colonial of a copy of the
charges in Case No. 2-CA-7763-Respondent Colonial telegraphed Elgahim to
return to work on January 16, 1961. On the later date Elgahim was restored to
duty as a deck scow captain, but was assigned to a boat other than the C-74, which
was then still out of service. He has been so employed ever since.
d. Contentions and conclusions regarding the 1961 incident
The consolidated complaint in Cases Nos. 2-CA-7763 and 2-CB-3052 alleges,
among other things, that on or about January 5 and 9, 1961, Local 335, U.M.D.,
through its agent, Chaco, threatened Elgahim that it would cause Respondent
Colonial to discharge him unless he paid dues to Local 335, U.M.D., and this was
done despite the nonexistence of a lawful contract between Respondent Colonial and
Local 335, U.M.D., requiring membership in that union as a condition of em-
ployment. It is alleged that such conduct violated Section 8 (b) (1) (A) of the
Act. Local 335, U.M.D.'s, answer denies the allegations of this consolidated
complaint.
It has been found above that Local 335, U.M.D., was not then the holder of the
contract, therefore the union-security clause of the contract affords no defense.
Moreover, Chaco had apparent authority to represent Local 335, U.M.D., and
made the threats to Elgahim on January 6 and 9, 1961, in the exercise of this
authority. The threats were thus attributable to Local 335, U.M.D. Accordingly,
like Miller's threat to Bicknell on November 9, described above, these threats
coerced Elgahim in the exercise of his protected right to refrain from joining or
71 The testimony that Crean called Anglim and so informed him is based upon Anglim's
undenied testimony. Anglim further testified that he replied* "Don't do anything about
it . . . forget it." I do not credit this part of Anglim's testimony as it conflicts with
Regazzi's credited testimony related below, concerning the balance of this telephone
conversation.
72 This finding is based upon Regazzi's testimony Anglim denied making such a re-
quest and testified that the entire conversation between Anglim and Regazzi consisted of
Regazzi's question: "When in the hell are you guys going to straighten out this mess?"
and his assurance to Regazzi that it would be straightened out in time I do not credit
Anglim's denial in this regard. Nor do I credit Regazzi's further testimony that during
this conversation he told Anglim that he "would not fire anybody because of union
conditions."
78 This finding is based upon Wilhelm's credited version of the Wilhelm-Regazzi tele-
phone conversation of January 10, related below.
t4 The findings of fact regarding this conversation are based upon Elgahim's credited
testimony. Heines admitted that he spoke to Elgahim on January 9, but denied that he
told Elgahim that he had to leave and that he could not work. I credit Elgahim's version
of this conversation as more accurate than that of Heines
75 Possibly a reference to the application for membership in Local 335, U.M D., signed
by Elgahim on October 28, as described above.
79 The findings of fact regarding this conversation are based upon the credited testimony
of Wilhelm, who impressed me as a sincere and trustworthy witness Regazzi admitted
telling Wilhelm that he wished "they would get together because it was becoming very
annoying" but denied stating that he had to let Elgahim go because he would not pay his
union dues. His denial in this respect is not credited
838 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
assisting Local 335, U.M.D., and Local 335, U.M.D., thereby violating Section
8(b)(1)(A) of theAct.
The same consolidated complaint alleges that in January 1961, Local 335, U.M.D.,
demanded and required that Respondent Colonial discharge Elgahim because he
was not a member of Local 335, U.M.D., and that this occurred at a time when no
contract existed between Respondent Colonial and Local 335, U.M.D., making
membership in Local 335 U.M.D., a condition of employment. It is alleged that this
conduct was in violation of Section 8(b) (1) (A) and (2) of the Act. These allega-
tions, likewise, are denied in the answer filed on behalf of Local 335, U.M.D.
It will be recalled that, on January 9, 1961, Chaco requested Heines to lay off
Elgahim because he had not paid his dues to Local 335, U.M.D. The same request
was made later that morning by Anglim to Regazzi in a telephone conversation. At
this time Local 335, U.M.D., was not the holder of the contracts. Moreover these
requests were made by authorized agents of Local 335, U.M.D. (Chaco and Anglim),
acting within the scope of their authority, to persons (Heines and Regazzi) employed
by Respondent Colonial in supervisory capacities 77 Local 335, U.M.D., thereby
put pressure on Respondent Colonial to punish Elgahim for reasons which were
legally discriminatory. And the fact that Local 335, U.M.D., might have believed
erroneously but in good faith that it then held the contract is no excuse for violating
Federal law. It is accordingly concluded that by such requests Local 335, U.M.D.,
attempted to cause Respondent Colonial to discriminate against Elgahim in violation
of Section 8(a)(3) of the Act, thereby violating Section 8(b)(1)(A) and (2) of
the Act.
This consolidated complaint also alleges that Respondent Colonial discharged
Elgahim on January 9, 1961, because he was not a member of Local 335, U.M D.,
and at a time when no lawful contract existed between Respondent Colonial and
Local 335, U.M.D., requiring membership in Local 335, U.M.D., as a condition of
employment. It is alleged that this conduct violated Section 8(a)(1), (2), and (3)
of the Act. Although the complaint does not so state, the General Counsel conceded
at the hearing that Elgahim was fully reinstated on January 16, 1961. Respondent
Colonial's answer denies the allegations of the complaint, and in addition sets up the
union-security clause of the contract as an affirmative defense. Respondent Colonial
apparently contends that Elgahim's layoff had nothing to do with his nonpayment of
dues to Local 335, U M.D., but was caused instead by the damage to the C-74 and
its consequent tieup for repair. In this connection Regazzi testified "when we had
another [deck scow] we sent him a telegram to report back to work." But he also
testified that on January 9, 1961, "We had another scow we were going to give him,
which was I think at the time 119." Moreover, as related above, Elgahim credibly
testified that he had already been transferred from the C-74 to the 119 before his
layoff. It is accordingly found that the 119 was available at the time the C-74 was
ordered to be tied up for repair and no layoff of Elgahim was therefore necessitated
by the C-74's damage.
Respondent Colonial also maintains that Elgahim was never laid off for any
reason, but instead that he voluntarily absented himself from work without the per-
mission of or notice to Respondent Colonial, and remained away from work until
he received the telegram of January 13, 1961, described above. In connection with
this version, Regazzi testified that about noon on January 9, 1961, he received a report
that Respondent Colonial's dock foreman at Hempstead had "looked for" Elgahim
but he "had disappeared." This testimony is not necessarily inconsistent with Elga-
him's testimony that earlier that morning he had been laid off by Heines and had
accordingly packed his gear and left-for the dock foreman may not have known
of this. It is significant that Respondent Colonial never reprimanded Elgahim for his
supposed unexcused and voluntary absence. In this connection Cleary testified from
long experience in the industry that if a deck scow captain supposedly on duty ab-
sents himself for a period of 2 hours or more and is caught, "we fire him." More-
over, Respondent Colonial made no further attempt to contact Elgahim or to ascertain
his whereabouts until January 13, 1961, 4 days later, and after service of charges
upon it. It is accordingly found that Elgahim did not voluntarily absent himself on
January 9, 1961, but on the contrary left his post of duty only because he had been
laid off.
Finally, Respondent Colonial defends on the ground that Elgahim's layoff for
nonpayment of dues to Local 335, U.M.D., was justified under the union-security
It should be noted that Heines admitted that, in January 1961 , he knew that Chaco
represented Local 335, U rI D
HARBOR CARRIERS OF THE PORT OF NEW YORK, ETC. 839
clause of its contract with Local 335, U.M.D. As it has been found above that
Local 335, U.M.D., was not then the holder of the contract, this defense lacks merit.
It is concluded that Respondent Colonial violated Section 8(a) (3) of the Act by
(1) depriving Elgahim of work 78 from January 9 to 16, 1961, because he had not
paid dues to Local 335, U.M.D.; and (2) maintaining and enforcing the union-
security provision of its contract in favor of Local 335, U.M.D., at a time when
that union was not entitled to the benefits of the contract. It is further found that,
by such conduct, Respondent Colonial rendered illegal aid and assistance to Local
335, U.M.D., in violation of Section 8(a)(2) of the Act. Finally, it is found that
this conduct also interfered with, restrained, and coerced Elgahim in the exercise of
his protected right to refrain from joining or assisting Local 335, U.M.D., in violation
of Section 8 (a) (1) of the Act.
4. The other Employer-Respondents
The amended consolidated complaint alleges that the Employer-Respondents
have, since on or about June 14, maintained and enforced the union-security pro-
visions of their contracts in favor of Local 335, U.M.D., despite the fact that Local
335, U.M.D, was not then the bargaining representative of a majority of the em-
ployees in the appropriate units. It is alleged that such conduct violated Section
8(a)(1), (2), and (3) of the Act. It has been found above that Respondents
Suffolk and Colonial maintained and enforced the union-security provision of their
contracts in favor of Local 335, U.M.D., which was not then entitled to the benefits
of the contracts, in violation of Section 8(a) (1), (2), and (3) of the Act.
But what about the other Employer-Respondents? It will be recalled that on
May 31 the Association determined at a membership meeting not to use either union
as a hiring hall, but instead to continue the practice of using the Employer-
Respondents' own lists of prospective employees for hiring purposes. In short, the
union-security provisions were to be ignored. There is no evidence that any
Employer-Respondent, other than Respondents Colonial and Suffolk, failed to abide
by this decision. It is accordingly concluded that the General Counsel has failed
to prove that after May 31, 1960, any Employer-Respondent, except Respondents
Colonial and Suffolk, maintained or enforced the union-security provision of the
contracts in favor of Local 335, U.M.D.
N. THE REMEDY
It has been found that the Employer-Respondents rendered illegal aid and assist-
ance to Local 335, U.M.D., by recognizing it as the holder of their contracts after
May 29, 1960, at a time when Local 335, Independent, was the exclusive bargaining
agent of the employees in the appropriate units. It will accordingly be recommended
that these Respondents cease and desist from rendering illegal aid or assistance to
Local 335, U.M.D., or any successor thereto, or recognizing it, or any of its succes-
sors, as the bargaining representative of any employees in the appropriate units,
unless and until Local 335, U.M.D., shall have been certified by the Board as such
representative. It will also be recommended that these Respondents cease and desist
from performing or giving effect to modifications, extensions, supplements, or renew-
als of their contracts of November 16, 1959, if any, entered into with Local 335,
U.M.D., since May 29, 1960 (the original terms of the contracts having now ex-
pired), unless and until Local 335, U.M.D., shall have been certified by the Board
as the bargaining representative of the employees in the appropriate units. It will
further be recommended that these Respondents cease and desist from in any like or
related manner interfering with, restraining, or coercing their employees in the
exercise of rights guaranteed in Section 7 of the Act.
Affirmatively it will be recommended that these Respondents withdraw and
withhold all recognition from Local 335, U.M.D, as the bargaining agent of these
employees unless and until it shall have been certified as such by the Board As the
original contracts have expired, and as it will not effectuate the policies of the Act to
to saddle Local 335, Independent, with modifications entered into since May 29, 1960,
if any, between the Employer-Respondents and Local 335, U.M.D., it will not be
recommended that Local 335, Independent, be treated as the holder of any existing
contracts Instead it will be recommended that the Employer-Respondents, upon
request, bargain with Local 335, Independent, as the exclusive representative of the
employees in the appropriate units, and, if agreements are reached, embody such
understandings in new signed agreements. However, they may do so either directly
vs As in the cases of Serpa and Da Cruz, diceusced above, it makes no difference whether
the deprivation of employment is looked upon as a discharge or as a temporary layoff
840 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
or through the Association. Moreover, it will be recommended that these Respond-
ents furnish to Local 335, Independent, the data requested by it on June 2, 1960, and,
upon request, any other information reasonably necessary to enable the said union
effectively to represent the said employees. It will also be recommended that these
Respondents post the usual notices, and sign additional copies thereof for posting
by Local 335, Independent, that union being willing.79
It has also been found that Respondents Suffolk and Colonial discriminatorily de-
prived employees of work because they failed to join or assist Local 335, U.M.D.,
and maintained and enforced the illegal union-security provisions of their contracts
in favor of Local 335, U.M.D., after May 29, 1960, at a time when Local 335,
U.M.D., was not the bargaining representative of their employees. It will accordingly
be recommended that they cease and desist from such conduct.
It has also been found that Local 335 U.M.D., threatened employees with reprisal
in regard to their employment because they failed to join or assist it, and caused
Respondent Colonial to discriminate against Elgahim in violation of Section 8(a) (3)
of the Act. It will accordingly be recommended that Local 335, U.M.D., cease and
desist from such conduct and from in any like or related manner restraining or coerc-
ing employees in the exercise of rights guaranteed in Section 7 of the Act.
It will also be recommended that Local 335, U.M.D., post the usual notices, and
sign additional copies thereof for posting by Local 335, Independent, that union
being willing.
It will further be recommended that Respondent Suffolk make whole Thomas
Serpa and Antonio Da Cruz for any loss of pay they may have suffered by paying
to each of them a sum of money equal to that which he would normally have
earned from July 15, 1960, the date of discrimination against him, to the date of
his reinstatement,80 less his net earnings during such period. It will further be
recommended that Respondent Colonial and Local 335, U.M D., jointly and severally,
make whole Hussein Elgahim for any loss he may have suffered by paying to him a
sum of money equal to that which he would normally have earned from January 9,
1961, the date of discrimination against him, to January 16, 1961, the date of his
reinstatement, less his net earnings during such period. It will further be recom-
mended that Respondents Suffolk and Colonial preserve and, upon request, make
available to the Board or its agents all records necessary to determine the amounts
of backpay due hereunder.
Upon the basis of the above findings of fact, and upon the entire record in these
cases, I make the following:
CONCLUSIONS OF LAW
1. Harbor Carriers of the Port of New York, and its members listed in Appendixes
A and B are, and at all material times have been, employers within the meaning
of Section 2(2) of the Act.
2. Deck Scow Captains Local 335, Independent, and Deck Scow Captains Local
335, United Marine Division, National Maritime Union, AFL-CIO, are, and at all
material times have been, labor organizations within the meaning of Section 2(5)
of the Act.
3. All deck scow captains employed by the employer-members of Harbor Carriers
of the Port of New York in the Harbor Carriers Division, excluding all supervisors
as defined in the Act, constitute a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9(b) of the Act.
4. All deck scow captains employed by the employer-members of Harbor Carriers
of the Port of New York in the Industrial Carriers Division, excluding all super-
visors as defined in the Act, constitute a unit appropriate for the purposes of col-
lective bargaining within the meaning of Section 9(b) of the Act.
5. Deck Scow Captains Local 335, Independent, was on May 29, 1960, and at all
times since has been, the exclusive representative of the employees in the above-
described units for the purposes of collective bargaining within the meaning of
Section 9(a) of the Act.
6. By recognizing Deck Scow Captains Local 335, United Marine Division, Na-
tional Maritime Union, AFL-CIO, as bargaining agent for the employees in the
above-described unit on and after May 29, 1960, at a time when another labor
organization was their statutory bargaining representative, thereby contributing illegal
assistance and support to the said labor organization, Harbor Carriers of the Port of
New York and its members listed in Appendixes A and B have engaged in and are
engaging in unfair labor practices within the meaning of Section 8(a) (2) of the Act.
'1 In view of the fact that the Recommendations will run against the Association and
its agents, no separate orders are deemed necessary against its two divisions
"In Serpa's case July 25, 1960; in Da Cruz' case, July 27, 1960
HARBOR CARRIERS OF THE PORT OF NEW YORK, ETC. 841
7. By withdrawing and withholding from Deck Scow Captains Local 335, Inde-
pendent , at all times since May 29, 1960 , recognition as the statutory bargaining
agent of the employees in the above -described units, and by failing and refusing to
furnish data requested by the said labor organization on June 2, 1960, thereby failing
and refusing to bargain collectively with the said labor organization as the exclusive
representative of the employees in the above-described units, Harbor Carriers of
the Port of New York and its members listed in Appendixes A and B have engaged
in and are engaging in unfair labor practices within the meaning of Section &( a) (5)
of the Act.
8. By the above-described conduct, thereby interfering with, restraining, and
coercing their employees in the exercise of rights guaranteed in Section 7 of the
Act, Harbor Carriers of the Port of New York and its members listed in Appendixes
A and B have engaged in and are engaging in unfair labor practices within the
meaning of Section 8 (a) (1) of the Act.
9. By depriving its employees Thomas Serpa and Antonio Da Cruz of employ-
ment because they failed to join or assist Deck Scow Captains Local 335, United
Marine Division , National Maritime Union , AFL-CIO, and by maintaining and
enforcing the illegal union-security provisions of its contract in favor of the said
labor organization after May 29, 1960 , at a time when the said labor organization
was not the bargaining representative of its employees , thereby discriminating in
regard to the hire and tenure of employment of its employees and encouraging
membership in a labor organization , Suffolk Dredging Corporation has engaged in
and is engaging in unfair labor practices within the meaning of Section 8(a) (3) of
the Act.
10. By depriving its employee Hussein Elgahim of employment because he failed
to join or assist Deck Scow Captains Local 335, United Marine Division , National
Maritime Union , AFL-CIO, and by maintaining and enforcing the union -security
provisions of its contract in favor of the said labor organization after May 29, 1960,
at a time when the said labor organization was not the bargaining representative of
its employees , thereby discriminating in regard to the hire and tenure of employment
of its employees and encouraging membership in a labor organization , Colonial Sand
& Stone Co. has engaged in and is engaging in unfair labor practices within the
meaning of Section 8(a) (3) of the Act.
11. By the above -described conduct, thereby contributing illegal assistance and
support to the said labor organization , Suffolk Dredging Corporation and Colonial
Sand & Stone Co. have engaged in and are engaging in unfair labor practices within
the meaning of Section 8(a) (2) of the Act.
12. By the above -described conduct, thereby interfering with , restraining, and
coercing its employees in the exercise of rights guaranteed in Section 7 of the Act,
Suffolk Dredging Corporation has engaged in and is engaging in unfair labor prac-
tices within the meaning of Section 8(a),(l) of the Act.
13. By the above -described conduct , and by threatening its employee Robert
Bicknell with reprisal if he failed or refused to join or assist Deck Scow Captains
Local 335, United Marine Division, National Maritime Union, AFL-CIO, thereby
interfering with , restraining , and coercing its employees in the exercise of rights
guaranteed in Section 7 of the Act , Colonial Sand & Stone Co. has engaged in and
is engaging in unfair labor practices within the meaning of Section 8(a) (1) of the Act.
14. By attempting to cause and causing Colonial Sand & Stone Co. to discriminate
against Hussein Elgahim in the tenure of his employment in a manner violative of
Section 8(a) (3) of the Act, Deck Scow Captains Local 335, United Marine Division,
National Maritime Union , AFL-CIO , has engaged in and is engaging in unfair
labor practices within the meaning of Section 8 (b) (2) of the Act.
15. By the above-described conduct and by threatening Robert Bicknell and
Hussein Elgahim with reprisal in respect to their employment with Colonial Sand &
Stone Co., Deck Scow Captains Local 335, United Marine Division, National Mari-
time Union , AFL-CIO, has engaged in and is engaging in unfair labor practices within
the meaning of Section 8(b)(1),(A) of the Act.
16. The above-described unfair labor practices tend to lead to labor disputes
burdening and obstructing commerce and the free flow of commerce , and constitute
unfair labor practices affecting commerce within the meaning of Section 2 ( 6) and (7)
of the Act.
17. Except for Suffolk Dredging Corporation and Colonial Sand & Stone Co.,
the General Counsel has failed to prove that Harbor Carriers of the Port of New
York and its members listed in Appendixes A and B have, after May 29, 1960,
maintained or enforced the union -security provisions of their contracts in favor of
Deck Scow Captains Local 335, United Marine Division, National Maritime Union,
AFL-CIO, in violation of Section 8(a) (3) of the Act.
842 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
18. The General Counsel has failed to prove that Deck Scow Captains Local 335,
United Marine Division, National Maritime Union, AFL-CIO, caused or attempted
to cause Colonial Sand & Stone Co. to discriminate against Robert Bicknell in viola-
tion of Section 8(b) (1) (A) and (2) of the Act.
19. The General Counsel has failed to prove that Colonial Sand & Stone Co.
required Hussein Elgahim, as a condition precedent to his employment as a desk
scow captain, to obtain clearance and approval for such employment from Deck
Scow Captains Local 335, United Marine Diivsion, National Maritime Union,
AFL-CIO.
RECOMMENDATIONS
Upon the basis of the foregoing findings of fact and conclusions of law, and upon
the entire record in the case, I recommend that:
A. Harbor Carriers of the Port of New York, New York, New York, its officers,
agents, successors, and assigns, and its members listed in Appendixes A and B, their
respective officers, agents, successors, and assigns, shall:
I Cease and desist from:
(a) Rendering illegal aid or assistance to Deck Scow Captains Local 335,
United Marine Division, National Maritime Union, AFL-CIO, or any successor
thereto.
(b) Recognizing the above-named labor organization, or any successor thereto,
as the representative of their employees in either of the units described below for
the purpose of collective bargaining with respect to wages, hours, or other conditions
of employment, unless and until said labor organization shall have been certified by
the Board as such representative.
(c) Performing, maintaining, enforcing, or giving effect to modifications, exten-
sions, supplements. or renewals' of their contracts of November 16, 1959, if any,
entered into with the said labor organization since May 29, 1960, unless and until
the said labor organization shall have been certified by the Board as the bargaining
representative of the employees in the units described below.
(d) In any like or related manner interfering with, restraining, or coercing their
employees in the exercise of rights guaranteed in Section 7 of the Act.
2 Take the following affirmative action which I find will effectuate the policies of
the Act-
(a) Withdraw and withhold all recognition from the above-named labor organi-
zation as the representative of any employees in the units described below for the
purpose of collective bargaining with respect to wages, hours, or other conditions of
employment, unless and until such labor organization shall have been certified by the
Board as such representative.
(b) Upon request, bargain collectively with Deck Scow Captains Local 335,
Independent, as the exclusive representative of the employees in the appropriate units
with respect to wages, hours, and other conditions of employment, and, if under-
standings are reached, embody such understandings in signed agreements. The
appropriate units are:
All deck scow captains employed by the employer-members of Harbor Carriers
of the Port of New York in the Harbor Carriers Division, excluding all super-
visors as defined in the Act.
All deck scow captains employed by the employer-members of Harbor Carriers
of the Port of New York in the Industrial Carriers Division, excluding all super-
visors as defined in the Act.
(c) Furnish to Deck Scow Captains Local 335, Independent, the information re-
quested by it on June 2, 1960, and, upon request, any other information reasonably
necessary to enable the said labor organization effectively to represent the employees
in the units described above.
(d) Post at their respective offices and plants in New York, New York, copies of
the notice attached hereto marked "Appendix C." 81 Copies of the said notice, to be
furnished by the Regional Director for the Second Region. shall, after being duly
signed by an authorized representative of each of the Respondents, be posted by them
immediately upon receipt thereof, and be maintained by them for 60 consecutive days
thereafter, in conspicuous places, including all locations where notices to employees
are customarily posted. Reasonable steps shall be taken by the Respondents to
insure that said notices are not altered, defaced, or covered by any other material
(e) Sign and transmit sufficient copies of the said notice to the said Regional
81 In the ease of Respondent Suffolk, Appendix D ; in the cage of Respondent Colonial,
Appendix E.
HARBOR CARRIERS OF THE PORT OF NEW YORK, ETC. 843
Director for posting , the said labor organization being willing , at the offices of Deck
Scow Captains Local 335, Independent.
B. Suffolk Dredging Corporation, New York, New York, and Colonial Sand &
Stone Co., New York, New York, their respective officers, agents, successors, and
assigns, shall, in addition to the above:
1. Cease and desist from:
(a) Encouraging their employees to join or assist Deck Scow Captains Local 335,
United Marine Division, National Maritime Union, AFL-CIO, by discharging or
laying off any of them, or in any other manner discriminating in regard to their hire
or tenure of employment, or any term or condition of employment.
(b) Entering into, performing , maintaining , enforcing , or giving effect to any
contract , agreement , arrangement , or understanding whereby their employees are re-
quired to join, or maintain membership in, any labor organization as a condition of
employment , except as authorized in Section 8(a)(3) of the Act , as modified by the
Labor-Management Reporting and Disclosure Act of 1959.
2. Take the following affirmative action which I find will effectuate the policies of
the Act : Preserve and, upon request , make available to the Board and its agents,
for examination and copying, all payroll records, social security payment records,
timecards , personnel records and reports, and all other records necessary to determine
the amounts of backpay due under these recommendations.
C. Suffolk Dredging Corporation, New York, New York, its officers, agents, suc-
cessors, and assigns, shall , in addition to the above , take the following affirmative
action, which I find will effectuate the policies of the Act: Make whole Thomas
Serpa and Antonio Da Cruz for any loss of pay they may have suffered by reason
of the discrimination against them, in the manner set forth above.
D. Deck Scow Captains Local 335, United Marine Division, National Maritime
Union AFL-CIO, New York , its officers , representatives , agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Threatening employees of members of Harbor Carriers of the Port of New
York with reprisal in respect to their employment if they fail to join or assist said
labor organization.
(b) Causing or attempting to cause Colonial Sand & Stone Co., or any other
member of Harbor Carriers of the Port of New York, to discriminate against em-
ployees in violation of Section 8(a)(3) of the Act.
(c) In any like or related manner restraining or coercing employees of members
of Harbor Carriers of the Port of New York in the exercise of rights guaranteed in
Section 7 of the Act
2. Take the following affirmative action which I find will effectuate the policies of
the Act:
(a) Post at its offices and meeting places in New York, New York, copies of the
notice attached hereto marked "Appendix F." Copies of the said notice, to be
furnished by the said Regional Director, shall, after being duly signed by an author-
ized representative of the Respondent , be posted by the Respondent immediately
upon receipt thereof and be maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all locations where notices to members are customarily
posted. Reasonable steps shall be taken by the Respondent to insure that the notices
are not altered, defaced, or covered by any other material.
(b) Sign and transmit sufficient copies of the said notice to the said Regional Di-
rector for posting, the said labor organization being willing, at the offices of Deck
Scow Captains Local 335, Independent.
E. Colonial Sand & Stone Co., New York, New York, and Deck Scow Captains
Local 335, United Marine Division, National Maritime Union, AFL-CIO. New
York, New York, their respective officers, agents, successors, and assigns, shall, in
addition to the above, take the following affirmative action, which I find will ef-
fectuate the policies of the Act- Jointly and severally make whole Hussein Elgahim
for any loss of pay he may have suffered by reason of the discrimination against
him, in the manner set forth above.
F. All Respondents named herein, their respective officers, agents, successors, and
assigns, shall, in addition to the above, take the following affirmative action, which I
find will effectuate the policies of the Act: Notify the said Regional Director, in
writing, within 20 days from the receipt of this Consolidated Intermediate Report,
what steps they have taken to comply herewith.
It is further recommended that unless the Respondents shall, within 20 days from
the receipt of this Consolidated Intermediate Report, notify the said Regional Direc-
tor, in writing, that they will comply with the foregoing recommendations, the
844 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
National Labor Relations Board issue an order requiring them to take the action
aforesaid.
It is further recommended that the complaints herein be dismissed, insofar as they
allege that: (a) The Employer-Respondents, other than Suffolk Dredging Corpora-
tion and Colonial Sand & Stone Co, have, after May 29, 1960, maintained or en-
forced the union-security provisions of their contracts in favor of Deck Scow Cap-
tains Local 335, United Marine Division, National Maritime Union, AFL-CIO, in
violation of Section 8(a) (3) of the Act; (b) Deck Scow Captains Local 335, United
Marine Division, National Maritime Union, AFL-CIO, caused or attempted to cause
Colonial Sand & Stone Co. to discriminate against Robert Bicknell in violation of
Section 8(b)(1)(A) and (2) of the Act; or (c) Colonial Sand & Stone Co. required
Hussein Elgahim, as a condition precedent to his employment as a deck scow
captain, to obtain clearance and approval for such employment from Deck Scow
Captains Local 335, United Marine Division, National Maritime Union, AFL-CIO.
APPENDIX A
Cleary Brothers, Inc.
C. W. & Crane Co., Inc.
Tug Rose A. Feeney Corp.
Henry Gillen's Sons Ltge., Inc.
Horan Transportation Corporation
James Huges, Inc.
Kelly Lighterage & Transportation Co.
Kenny Scow Corporation
B. W. King, Inc.
Charles J. King
McAllister Lighterage Line, Inc.
Petterson Lighterage & Towing
Port Jefferson Marine Corporation
Red Star Towing & Transportation
Reliance Marine Transportation & Construction Corp.
Shamrock Towing Company, Inc.
Frederick Starr Contracting
W. F. & R. Boatbuilders, Inc.
George J. Waldie
Zeller Marine Corporation
APPENDIX B
Bilkay Holding Corp.
Colonial Sand & Stone Co.
Gallagher Bros. Sand & Gravel Corp.
Hampton Scows, Inc.
Neptune Line, Inc.
New York Trap Rock Corporation
Rockville Scows, Inc.
Steers Sand & Gravel Co.
Suffolk Dredging Corporation 1
1 Also referred to in the record as William J. 'McCormack or 'McCormack Sand & Gravel
Corporation
APPENDIX C
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, you are notified that:
WE WILL NOT render illegal aid or assistance to Deck Scow Captains Local
335, United Marine Division, National Maritime Union, AFL-CIO, or any
successor thereto.
WE WILL NOT recognize the above-named Union, or any successor thereto,
as the representative of any of our employees in either of the units described
below for the purpose of collective bargaining with respect to wages, hours, or
other working conditions, unless such Union is certified by the National Labor
Relations Board as such representative.
HARBOR CARRIERS OF THE PORT OF NEW YORK, ETC. 845
WE WILL NOT perform, maintain, enforce, or give effect to modifications, ex-
tentions, supplements, or renewals of our contracts of November 16, 1959, if
any, entered into with the above-named Union since May 29, 1960, unless such
Union is certified by the National Labor Relations Board as the bargaining
representative of the employees in the units described below.
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 any union, to bargain collectively through representatives of their own
choosing, and to engage in other concerted activities for the purpose of col-
lective bargaining or other mutual aid or protection, or refrain from any or all
such activities, except to the extent that such right may be affected by a lawful
agreement requiring membership in a union as a condition of employment, in
conformity with Section 8(a)(3) of the National Labor Relations Act, as
modified by the Labor-Management Reporting and Disclosure Act of 1959.
WE WILL withdraw and withold all recognition from the above-named Union
as the representaive of any of our employees in the units described below for
the purpose of collective bargaining with respect to wages, hours, or other
working conditions, unless such Union is certified by the National Labor Rela-
tions Board as such representative.
WE WILL, upon request, bargain collectively with Deck Scow Captains Local
335, Independent, as the exclusive representative of the employees in the ap-
propriate units with respect to wages, hours, and other working conditions, and,
if agreements are reached, put them in the form of signed contracts. The
appropriate units are:
All deck scow captains employed by the employer-member or Harbor
Carriers of the Port of New York in the Harbor Carriers Division, ex-
cluding all supervisors as defined in the National Labor Relations Act.
All deck scow captains employed by the Employer-members of Harbor
Carriers of the Port of New York in the Industrial Carriers Division,
excluding all supervisors as defined in the National Labor Relations Act
WE WILL furnish to Deck Scow Captains Local 335, Independent, the infor-
mation requested by it on June 2, 1960, and, upon request, any other informa-
tion reasonably necessary for the said Union effectively to represent the said
employees.
HARBOR CARRIERS OF THE PORT OF NEW YORK,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
CLEARY BROTHERS, INC,
Employer
Dated------------------- By-------------------------------------------
(Representative) (Title)
C. W. & CRANE CO., INC,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
TUG ROSE A. FEENEY CORP,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
HENRY GILLEN'S SONS LTGE., INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
HORAN TRANSPORTATION CORPORATION.
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
JAMES HUGES, INC.,
Employer.
846 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
KELLY LIGHTERAGE & TRANSPORTATION CO.,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
KENNY SCOW CORPORATION,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
B. W. KING, INC.,
Employer.
Dated----------------- -- By-------------------------------------------
(Representative ) ( Title)
CHARLES J. KING,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
MCALLISTER LIGHTERAGE LINE, INC.,
Employer
Dated------------------- By-------------------------------------------
(Representative) (Title)
PETTERSON LIGHTERAGE & TOWING,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
PORT JEFFERSON MARINE CORPORATION,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
RED STAR TOWING & TRANSPORTATION,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
RELIANCE MARINE TRANSPORTATION & CONSTRUCTION CORP,
Employer
Dated- ------------------- By-------------------------------------------
(Representative ) ( Title)
SHAMROCK TOWING COMPANY, INC..
Employer.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
FREDERICK STARR CONTRACTING,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
W. F. & R. BOATBUILDERS, INC.,
Employer
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
GEORGE J. WALDIE,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
HARBOR CARRIERS OF THE PORT OF NEW YORK, ETC. 847
ZELLER MARINE CORPORATION,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
BILKAY HOLDING CORP.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
GALLAGHER BROS. SAND & GRAVEL CORP.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
HAMPTON SCOW, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
NEPTUNE LINE, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
NEW YORK TRAP ROCK CORPORATION,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
ROCKVILLE SCOWS, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
STEERS SAND & GRAVEL CO.,
Employer.
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.
APPENDIX D
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 Rela-
tions Act, you are notified that:
WE WILL NOT encourage our employees to join or assist Deck Scow Captains
Local 335, United Marine Division, National Maritime Union, AFL-CIO, or
any other union , by discharging or laying off any of them, or in any other
manner discriminating in regard to their hire or tenure of employment, or any
term or condition of employment.
WE WILL NOT enter into, perform, maintain , enforce, or give effect to any
contract, agreement, arrangement , or understanding whereby our employees
are required to join, or maintain membership in, any union as a condition of
employment, except as authorized in Section 8(a)(3) of the National Labor
Relations Act, as modified by the Labor -Management Reporting and Disclosure
Act of 1959.
WE WILL NOT render illegal aid or assistance to the above-named Union, or
any successor thereto.
WE WILL NOT recognize the above-named Union, or any successor thereto,
as the representative of any of our employees in the unit described below for
the purpose of collective bargaining with respect to wages, hours, or other
848 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
working conditions, unless such union is certified by the National Labor Rela-
tions Board as such representative.
WE WILL NOT perform, maintain, enforce, or give effect to modifications,
extensions , supplements , or renewals of our contract of November 16, 1959,
if any, entered into with the above-named Union since May 29, 1960, unless
such Union is certified by the National Labor Relations Board as the bargaining
representative of the employees in the unit described below.
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 any union, to bargain collectively through representatives of their own
choosing, and to engage in other concerted activities for the purpose of col-
lective bargaining or other mutual aid or protection, or refrain from any or
all such activities, except to the extent that such right may be affected by a lawful
agreement requiring membership in a union as a condition of employment, in
conformity with Section 8(a)(3) of the National Labor Relations Act, as
modified by the Labor-Management Reporting and Disclosure Act of 1959.
WE WILL withdraw and withhold all recognition from the above-named
Union as the representative of any of our employees in the unit described below
for the purpose of collective bargaining with respect to wages, hours, or other
working conditions, unless such union is certified by the National Labor Rela-
tions Board as such representative.
WE WILL, upon request, bargain collectively with Deck Scow Captains Local
335, Independent , as the exclusive representative of the employees in the
appropriate unit with respect to wages, hours, and other workings conditions,
and, if an agreement is reached, put it in the form of a signed contract. The
appropriate unit is:
All deck scow captains employed by the employer-members of Harbor
Carriers of the Port of New York in the Industrial Carriers Division, ex-
cluding all supervisors as defined in the National Labor Relations Act.
WE WILL furnish to Deck Scow Captains Local 335, Independent, the informa-
tion requested by it on June 2, 1960, and, upon request, any other information
reasonably necessary to enable the said Union effectively to represent the said
employees.
WE WILL make whole Thomas Serpa and Antonio Da Cruz for any loss
of pay they may have suffered because of our discrimination against them.
All our employees are free to become , remain, or refrain from becoming members
of any union , except to the extent that this right may be affected by a lawful agree-
ment requiring membership in a union as a condition of employment , as authorized
in Section 8(a) (3) of the National Labor Relations Act, as modified by the Labor-
Management Reporting and Disclosure Act of 1959.
SUFFOLK DREDGING CORPORATION,
Employer.
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.
APPENDIX E
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, you are notified that:
WE WILL NOT encourage our employees to join or assist Deck Scow Captains
Local 335, United Marine Division, National Martime Union, AFL-CIO, or
any other union, by discharging or laying off any of them, or in any other
manner discriminating in regard to their hire or tenure of employment or any
term or condition of employment.
WE WILL NOT enter into, perform, maintain , enforce, or give effect to any
contract , agreement , arrangement , or understanding whereby our employees are
required to join , or maintain membership in, any union as a condition of
employment , except as authorized in Section 8(a)(3) of the National Labor
HARBOR CARRIERS OF THE PORT OF NEW YORK, ETC. 849
Relations Act, as modified by the Labor-Management Reporting and Disclosure
Act of 1959.
WE WILL NOT render illegal aid or assistance to the above-named Union, or
any successor thereto.
WE WILL NOT recognize the above-named Union, or any successor thereto,
as the representative of any of our employees in the unit described below for the
purpose of collective bargaining with respect to wages, hours, or other working
conditions, unless such Union is certified by the National Labor Relations
Board as such representative.
WE WILL NOT perform, maintain, enforce, or give effect to modifications,
extensions, supplements, or renewals of our contract of November 16, 1959, if
any, entered into with the above-named Union since May 29, 1960, unless such
union is certified by the National Labor Relations Board as the bargaining
representative of the employees in the unit described below.
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 any union, to bargain collectively through representatives of their own
choosing, and to engage in other concerted activities for the purpose of col-
lective bargaining or other mutual aid or protection, or refrain from any or
all such activities, except to the extent that such right may be affected by a law-
ful agreement requiring membership in a union as a condition of employment,
in conformity with Section 8(a)(3) of the National Labor Relations Act, as
modified by the Labor-Management Reporting and Disclosure Act of 1959.
WE WILL withdraw and withhold all recognition from the above-named Union
as the representative of any of our employees in the unit described below for
the purpose of collective bargaining with respect to wages, hours, or other
working conditions, unless such Union is certified by the National Labor Rela-
tions Board as such representative.
WE WILL, upon request, bargain collectively with Deck Scow Captains
Local 335, Independent, as the exclusive representative of the employees in
the appropriate unit with respect to wages, hours, and other working conditions,
and, if an agreement is reached, put it in the form of a signed contract. The
appropriate unit is:
All deck scow captains employed by the employer-members of Harbor
Carriers of the Port of New York in the Industrial Carriers Division, ex-
cluding all supervisors as defined in the National Labor Relations Act.
WE WILL furnish to Deck Scow Captains Local 335, Independent, the informa-
tion requested by it on June 2, 1960, and, upon request, any other information
reasonably necessary to enable the said Union effectively to represent the said
employees.
WE WILL make whole Hussein Elgahim for any loss of pay he may have
suffered because of our discrimination against him.
All our employees are free to become, remain, or refrain from becoming members
of any union, except to the extent that this right may be affected by a lawful agree-
ment requiring membership in a union as a condition of employment, as authorized
in Section 8(a),(3) of the National Labor Relations Act, as modified by the Labor-
Management Reporting and Disclosure Act of 1959.
COLONIAL SAND & STONE CO.,
Employer.
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.
APPENDIX F
NOTICE TO ALL OUR OFFICERS, REPRESENTATIVES, AGENTS, AND MEMBERS AND TO
EMPLOYEES OF MEMBERS OF HARBOR CARRIERS OF THE PORT OF NEW YORK
Pursuant to the Recommendations of a Trial Examiner of the National Labor Rela-
tions Board, and in order to effectuate the policies of the National Labor Relations
Act, as amended, you are notified that:
WE WILL NOT threaten employees of members of Harbor Carriers of the Port
of New York with reprisal in respect to their employment if they fail to join or
assist our union.
850 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT cause or attempt to cause Colonial Sand & Stone Co., or any
other member of Harbor Carriers of the Port of New York, to discriminate
against employees in violation of Section 8(a)(3) of the National Labor Rela-
tions Act.
WE WILL NOT in any like or related manner restrain or coerce employees of
members of Harbor Carriers of the Port of New York in the exercise of their
rights to self-organization , to form , join, or assist any union , to bargain collec-
tively through representatives of their own choosing, to engage in concerted
activities for the purpose of collective bargaining or other mutual aid or protec-
tion, or to refrain from any or all such activities, except to the extent that such
rights may be affected by a lawful agreement requiring membership in a union,
as authorized in Section 8(a) (3) of the National Labor Relations Act, as modi-
fied by the Labor-Management Reporting and Disclosure Act of 1959.
WE WILL make whole Hussein Elgahim for any loss of pay he may have suf-
fered because of our discriminatory action against him.
DECK SCOW CAPTAINS LOCAL 335, UNITED MARINE
DIVISION, NATIONAL 'MARITIME UNION, AFL-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.
Alto Plastics Manufacturing Corporation 1 and Industrial Work-
ers Federation of Labor, Local 886, Petitioner . Case No. 21-RC-
6819. April 4, 1962
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before Louis A. Gordon, hearing
officer . The hearing officer's rulings made at the hearing are free from
prejudicial error and are hereby affirmed 2
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 labor organizations involved claim to represent certain em-
ployees of the Employer.4 At the hearing, the Intervenor alleged that
the Petitioner is a "paper union" under the domination of its presi-
dent and "consultant," that its contracts are "sweetheart contracts"
which deprive employees of the benefits of collective bargaining, and
that the Petitioner is not a labor organization within the meaning of
the Act .5 In order to pursue these matters, the Intervenor applied
1 The Employer's name appears as amended at the hearing.
2 The hearing officer's ruling revoking the subpena issued at the request of the Inter-
venor is discussed under paragraph 2, infra.
3 As the record and briefs adequately present the issues and positions of the parties,
the Intervenor's request for oral argument is denied.
4 Local 976, International Union Allied Industrial Workers of America, AFL-CIO, was
permitted to Intervene on the basis of its existing certification.
Section 2(5) of the Act defines the term "labor organization" as follows:
The term "labor organization" means any organization of any kind, or any agency or
employee representation committee or plan, in which employees participate and which
136 NLRB No. 70.