Houston Maritime Association, Inc.

National Labor Relations Board - Board Decisions

Nov 30, 1967

168 N.L.R.B. 615 (N.L.R.B. 1967)

HOUSTON MARITIME ASSN., INC. 615
Houston Maritime Association , Inc. and Its Member
Companies and Leon H. Phelps, Harry C. Torry,
Harold Mullins , Willie Earl Williams, and Robert
Hensley
Local 1351, Steamship Clerks and Checkers , Interna-
tional Longshoremen 's Association , AFL-CIO,
and Leon H. Phelps, Harry C.Torry , Harold Mul-
lins, Willie Earl Williams, and Robert Hensley.
Cases 23-CA-1996, 1996-2, 1996-3, 1996-4,
and 1996-5 and 23-CB-598, 598-2, 598-3,
598-4, and 598-5
November 30, 1967
DECISION AND ORDER
By MEMBERS BROWN, JENKINS, AND ZAGORIA
On November 17, 1966, Trial Examiner Milton
Janus issued his Decision in the above-entitled
proceeding, finding that the Respondents had not
engaged in unfair labor practices as alleged in the
complaint and recommending that the complaint be
dismissed in its entirety, as set forth in the attached
Trial Examiner's Decision. Thereafter, the General
Counsel and the Respondent Association filed ex-
ceptions to the Trial Examiner's Decision and sup-
porting briefs. I
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions and
briefs, and the entire record in the cases, and hereby
adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner only to the extent con-
sistent herewith.
The Trial Examiner found that the charges herein
were untimely filed and thus the finding of any
violation was barred by the time limitation of Sec-
tion 10(b). The General Counsel excepts to this
finding. We find merit in these exceptions.
As set forth in the Trial Examiner's Decision and
reflected in the record, the Respondents, Houston
Maritime Association and its Member Companies,2
and Local 1351, Steamship Clerks and Checkers,
International Longshoremen's Association,
AFL-CIO,3 have been parties to a collective-bar-
gaining agreement at all times material herein.
Although the contract between the Association and
the Union makes no reference to the fact that the
Union through its hiring hall is to be the exclusive
source of referrals in employment, the practice has
been in effect for many years and is understood by
the parties to be controlling. The latter is likewise
true with respect to other employers in the industry
in the area not members of the Association. Local
1351, during all times relevant herein, was a
"white" local and the sole source for referral of em-
ployees who wished to work as clerks, checkers, or
timekeepers in the Port of Houston, Texas.
This case involves the efforts over a number of
years by a group of Negro longshoremen to obtain
work as clerks and checkers through the exclusive
hiring hall of the Respondent Union.
In the summer of 1963, as more fully set forth in
the Trial Examiner's Decision, a group of Negroes,
including the Charging Parties herein, visited Local
1351's hiring hall for the purpose of obtaining work
through the Local, or, as an alternative, requesting
the setting up of a separate Negro local of clerks
and checkers. The then president, Vestal, of Local
1351, in substance, rejected both of the requests of
the Negroes on the basis that the Local was not ac-
cepting applications from Negroes. At the same
time Vestal acknowledged that the problem of plac-
ing Negroes as clerks and checkers was due to
come up. Vestal stated he would like to take up the
matter with Local 1351's executive board and,
further, he informed the Charging Parties that the
Local at its next membership meeting would vote
on the question of accepting Negroes' applications.4
Subsequently, the executive board and the Local's
membership voted to continue to bar Negroes from
membership and from obtaining work through the
Local's hiring hall. Shortly thereafter, in the latter
part of September 1963, the Local, through its ex-
ecutive board, adopted a policy of closing its re-
gister of applicants to those then registered and
refusing to accept any further applications.5
It is primarily the institution and enforcement of
this freeze policy of Local 1351 with which we are
concerned here, and whether such policy did in fact
constitute an unlawful continuation and main-
tenance by Local 1351 of its pre-September 1963
practice of barring Negro applicants from job op-
portunities.
The Trial Examiner found the existence of a
union policy of rejecting Negro applicants at the
Union's hiring hall prior to September 1963. He
also found, and we agree, that the adoption by the
Union in September 1963 of a freeze policy,
whereby all applicants, white or Negro, were to be
denied registration, was motivated by the Union's
1 The Respondent Association 's and its member companies' exceptions 3 Hereinafter referred to as Local or Union.
are limited to the Trial Examiner 's alternative conclusions as to Respond- 4 Vestal did not testify at the hearing.
ent Association's and its member companies' violations of Section ' We shall hereinafter refer to such policy as "freeze" or "freeze pol-
8(q)(1) and (3). icy."
S Hereinafter referred to as Association.
168 NLRB No. 83
616 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
wish to continue rejecting Negroes' applicants.
Nevertheless, the Trial Examiner concluded that
since under the Union's freeze policy, the practice
of refusing registrations was not directed against
some applicants because of their race but was
directed against all applicants, because of an excess
of registrants entitled to referral through the hiring
hall, the practice of rejecting all applicants not being
illegal on its face could only be converted into an il-
legal action by relying solely on a time-barred
event, i.e., the pre-September 1963 rejection of
Negroes' registration for job referrals.6
It is true that a mere surface statement of the
Union's freeze policy, i.e., that no further appli-
cants will be registered regardless of race, would
not itself indicate whether a racially discriminatory
factor is intrinisically built into its implementation,
except to the white members and nonmembers who
made use of the hiring hall and also to Negro appli-
cants who had knowledge of the Union's racially
discriminatory practices.? But the racial impact of
the freeze policy does become plainly revealed
upon consideration of the background of elucidating
union conduct preceding the adoption of such pol-
icy. Consideration of such relevant background is
clearly proper in ascertaining the ingredients of the
freeze policy and in determining what is really in-
volved in the present maintenance of such practice.
In thus appraising the policy, needless to say, we
are not passing upon the validity of the Union's
conduct during the pre-10(b) period before the
freeze;" rather we decide only whether the main-
tenance and continuation of the practice presently
entails a preference in employment referrals on the
basis of race alone, that would be violative of Sec-
tion 8 (b)(1)(A) and (2) of the Act.
The Union, a white local, by its act of "freezing"
its registrations effectively created a pool of white
employees which constituted a preferred class in
employment with the attendant benefits of seniority
and possible attainment of union membership. 9 As
a consequence, up until the summer of 1965, when
Local 1351 adopted for the first time an alleged
nonracial policy,10 a preferential hiring arrangement
continued in effect which barred Negroes. In our
opinion, the fact that this freeze policy was adopted
by the Union more than 6 months prior to the filing
of the charges herein does not detract from the
further fact that the Union's racially discriminatory
policy was, as a result of such "freeze," continued
0 The uncontradicted testimony of the Charging Parties is that at no
time when they made application to the Union were they told that the
reason for refusal was because of the "freeze policy." To the contrary,
they were informed, in substance, that the Local was not accepting appli-
cations from Negroes
7 Local Union No. 269, International Brotherhood of Electrical Work-
ers, AFL-CIO (Mercer County Division , etc ), 149 NLRB 768, enfd
357 F.2d 51 (C.A. 3).
8 We make reference here to these events as evidence to be considered
only for background. Local Lodge No. 1424, InternationalAssociation of
Machinists , AFL-CIO v. N.L R.B., 362 U S 411, 424.
and maintained from the time of its inception,
through the time the charges were filed and sub-
sequent thereto. We find, contrary to the Trial Ex-
aminer, that by adopting a practice which in opera-
tive effect created a preferred class in employment,
the result was that the Union's previous policy of
discrimination against Negroes as to job opportuni-
ties solely on the basis of race was continued and
maintained. Accordingly, the Union, by rejecting
the Charging Parties' applications for registration
for referral, breached its duty of fair representation
and as a result engaged in unfair labor practices in
violation of Section 8(b)(1)(A) and (2) of the Act. It
The Trial Examiner in his Decision cited Bryan
Manufacturing Co.12 as controlling with respect to
the 10(b) issues in this case. Here, we are not deal-
ing with a situation where a violation of the Act de-
pended wholly on proof of a prior state of events
outside the 10(b) period as in Bryan. To the contra-
ry, here the maintenance of an illegally preferred
group and the consequent unlawful rejection of the
Charging Parties because of their race continued
through the 10(b) period. Thus, the record shows
that Leon A. Phelps, a Negro and one of the Charg-
ing Parties herein, a number of times during 1964,
including a visit a few days prior to Thanksgiving
1964, inquired at the hiring hall if there had been
any change in the Local's policy with regard to the
hiring of Negroes. At all times Phelps was denied
the right to register and was informed in substance
by the Local's agents that the matter of registering
"colored" was being worked on but no final deci-
sion had been made. Phelps again, on March 11,
1965, visited the hiring hall and asked Casey, who
had become president of the Local in January 1965,
if there had been any change in the Local's position
about putting "colored" people to work. Casey in-
formed Phelps the Local was working on it, pa-
tience was needed, and that eventually some
"colored" people would get work. Nothing more
specific was offered by Casey. As a result of this
conversation, Phelps on the same day filed his
charge herein. On the morning of March 12, 1965,
Phelps and the other Charging Parties again called
at the hiring hall and again inquired of Casey if there
wasn't a chance of getting some work through the
hiring hall. Casey replied, "Yes, I think you are
going to work here." However, when Phelps
inquired if the Charging Parties would register then
and there, Casey gave the Charging Parties for the
9 This pool , in fact, continued as a source of the Umon 's job referrals up
to the summer of 1965 at which latter time the Union adopted an alleged
nondiscriminatory policy and opened its registrations. It is to be noted
that the Union's new policy followed the filing of the charges herein and
the enactment of the Civil R.ghts Act of 1964 which became effective July
2,1965
10 This, as fully described by the Trial Examiner in his Decision, is not
an issue here, and we make no findings with respect to such new policy
11 See Vaca v. Sipes, 386 U.S. 171.
12 Local Lodge No 1424, International Association of Machinists,
AFL-CIO v. N.L.R.B. (Bryan Manufacturing Co.), 362 U.S. 411.
HOUSTON MARITIME ASSN., INC. 617
first time a new reason why the Charging Parties
could not register . This was- to the effect that the
Union had a lot of misfits on its rolls that had to be
gotten rid of, that the Local was not accepting appli-
cations even from whites , and that the Local had a
backlog of applications . The Charging Parties were
not informed when , if ever, they could register, or
whether the Local was contemplating the adoption
of a new, nondiscriminatory procedure . The result
was that that afternoon the rest of the Charging
Parties filed their individual charges herein. Since
the preferred group continued to exist beyond the
time of the filing of the charges herein , the refusals
of employment to the Charging Parties solely on the
basis of race , as evidenced in the record , within the
10(b) period , establish the violations independently
of the time of the initial establishment of the freeze
policy. Accordingly, we find contrary to the Trial
Examiner that the Union by such conduct engaged
in unfair labor practices which were not barred by
Section 10(b) of the Act.13
The Trial Examiner , although recommending
dismissal of the complaint in its entirety on the basis
of his conclusions as to the applicability of the 10(b)
statutory limitation , nevertheless set forth alternate
conclusions and recommendations in the event the
Board determined that the charges in the complaint
were not barred by Section 10(b). We hereby adopt
such alternate conclusions and recommendations.14
Accordingly, we hold that Local 1351 violated Sec-
tion 8(b)(1)(A) and (2) of the Act by the operation
and continuation of a referral and hiring system
with the Houston Maritime Association and its
member employers, whereby a preferred class of
white registrants and white union members were
given discriminatory preference over Negroes in
job opportunities and union membership because of
their race. Further, we find that Respondent
Houston Maritime Association and its Member
Companies, having participated in the pattern of un-
lawful conduct found above, to be in violation of
Section 8(a)(1) and (3) of the Act. 15
THE REMEDY
Having found that the Respondents have engaged
in certain unfair labor practices, we shall direct
them to cease and desist therefrom and take certain
affirmative action designed to effectuate the poli-
cies of the Act. Accordingly, in view of the fact that
the violations found herein were based upon the il-
legal practice of discrimination against Negroes
solely because of their race, and further, it is clear
from the record herein, that such invidious prac-
tices of Respondents were illegally continued, as
found herein, up to and beyond the time of filing of
the charges herein, we shall order the Respondents
to accept the Charging Parties' applications under
the same terms and conditions as applied in the case
of white registrants who were admitted before Sep-
tember 11, 1964,16 and we shall order the Respon-
dents to make the Charging Parties whole for loss
of earnings and any loss of seniority they may have
suffered by reason of the discrimination practiced
against them, which seniority and earnings shall be
determined and computed as of the aforementioned
11 Local Union No. 269, IBEW, AFL-CIO (Mercer County Division,
NECA, ETC.), 149 NLRB 768, enfd. 357 F.2d 51 (C.A. 3).
14 We do not, however, adopt the Trial Examiner's alternative conclu-
sion as to the possible finding herein of an 8(b)(3) violation by the Re-
spondent Union since we deem it unnecessary to consider and decide
such question for the purpose of arriving at a decision herein.
We are not in accord with the Trial Examiner's interpretation of our
decision in Cargo Handlers, Inc., 159 NLRB 321. The discriminatees in
Cargo were not union members but were, as in the instant case, applicants
for referral through the union hiring hall
However, with respect to the obligation of fair representation in the
referral of applicants for employment, see Brotherhood of Locomotive
Firemen and Enginemen (Phelps-Dodge Corp.) v. N.L R.B , 313 U.S.
177, cf Brotherhood of Railroad Trainmen et al., v. Howard et al., 343
U S. 768; Local Union No. 12, United Rubber Workers (The Business
League of Gadsden), 150 NLRB 312, enfd 368 F.2d 12 (C.A. 5), cert.
denied 389 U.S. 837. Cargo Handlers, Inc., 159 NLRB 321; Houston
ChapterAGC, 143 NLRB 409; Miranda Fuel Co., 140 NLRB 181, 185,
enforcement denied on other grounds 326 F.2d 172 (C.A. 2)
Member Zagora agrees with his colleagues that the Respondent Union,
as the bargaining representative for all employees and no less for appli-
cants for referral through the union hiring hall, cannot discriminate in its
representation. It may not treat Negroes differently from whites,
Catholics differently from Protestants, or Democrats differently from
Republicans In seeking the status as bargaining representative, the Union
accepted the obligation to represent all fairly. Clearly, here it did not.
Although joining in the finding of violations herein, Member Zagoria con-
cludes only that Respondent Union violated Section 8(b)(1)(A) and
Respondent Company Section 8(a)(1), deeming it unnecessary to consider
or decide whether the Union also violated Section 8(b)(2) or the Company
Section 8 (a)(3). Local 12, United Rubber Workers, supra
is Morrison-Knudsen Company, Inc. v. N.L.R.B., 275 F.2d 914, (C.A.
2); N L.R.B v. Houston Maritime Association, 337 F.2d 333 (C.A. 5);
N.L.R B. v. Southern Stevedoring & Contracting Co., 332 F 2d 1017,
1019 (C.A. 5 ); Galveston Maritime Association , Inc., Local 1351, etc.,
139 NLRB 352, enfd. in part sub nom. 329 F .2d 269 (C A D.C.). See also
Local 12, United Rubber Workers , supra.
16 The record herein clearly establishes that the Charging Parties were
denied the use of the Union's hiring hall for racial reasons at least as early
as August 1963 , and that all of the Charging Parties herein would have
been rejected from the hiring hall at any time within the 6-month period of
limitations , prescribed by Section 10(b), because of the Respondent's un-
lawful practices as set forth above. We deem this remedial action neces-
sary in the public's interest and to recreate the conditions and relation-
ships that would have been had there been no unfair labor practices of the
nature of those found herein. (Consolidated Edison Co. v. N.L.R.B., 305
U S 197, 236; N L.R.B. v. Seven-Up Bottling Co . of Miami, Inc., 344
U.S. 344,348-349.)
Member Jenkins would, on the basis of the invidious nature of the viola-
tions found herein and under the authority vested in the Board by Section
10(c), order that the seniority of the Charging Parties be computed as of
August 1963, at which time the record establishes that such illegal racial
discrimination was practiced against the Charging Parties by Respondents
and continued by subterfuge up to and beyond the time of filing of the
charges herein . He considers that the Board's remedy , leaving uncor-
rected the seniority discrimination between August 1963, the date it was
first established to have occurred , and September 11, 1964, the com-
mencement of the 10 (b) period, permits the Union to continue to
represent the discnminatees on a basis which includes this prior dis-
crimination , and that this breaches the Union 's duty offair representation,
which if the Act is to be applied constitutionally cannot be subjected to the
10(b) cutoff date . Steele v. L & N Firemen, 323 U.S 210; Wallace Corp
v. N.L.R B., 323 U S. 248, affg. 141 F.2d 87, enfg. 50 NLRB 138; see
Vaca v. Sipes, 386 U S. 171, supra ; Ford Motor Co. v Huffman, 345
U.S. 330; Phelps Dodge v. N.L.R.B., 313 U.S. 177, Local 12 , United
Rubber Workers, supra
618 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
date . Such earnings shall be computed in ac-
cordance with the method prescribed in F. W.
Woolworth Co., 90 NLRB 289, and such earnings
shall include interest at 6 percent per annum, com-
puted in the manner prescribed in Isis Plumbing &
Heating Co ., 138 NLRB 716, 717-721.
CONCLUSIONS OF LAW
Having found, contrary to the Trial Examiner,
that Respondents engaged in unfair labor practices
in violation of the Act, we hereby delete the Trial
Examiner's conclusion of law number 3 and add the
following:
AMENDED CONCLUSIONS OF LAW
3. Local 1351 has restrained and coerced em-
ployees in the exercise of rights guaranteed by Sec-
tion 7 of the Act and in violation of Section
8(b)(1)(A) of the Act.
4. Local 1351 has caused, or attempted to cause,
Houston Maritime Association, Inc., and its
Member Companies, and other employers, to dis-
criminate against employees in violation of Section
8(a)(3) of the Act, and by this action has violated
Section 8(b)(2) of the Act.
5. By acquiescing in, and maintaining, an illegal
hiring arrangement, Houston Maritime Associa-
tion, Inc., and its Member Companies have engaged
in unfair labor practices within the meaning of Sec-
tion 8(a)(1) and (3) of the Act.
6. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that:
A. Respondent Houston Maritime Association,
and its Member Companies, their officers, agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) Maintaining , performing , or enforcing any ar-
rangement with Local 1351, Steamship Clerks and
Checkers , International Longshoremen 's Associa-
tion , AFL-CIO, in any manner whereby job refer-
rals or hiring are conditioned on the unlawful basis
of race of union membership ; or maintaining, per-
forming, or enforcing , by contract or otherwise, any
like or related arrangement in any manner whereby
referrals to available jobs or hiring are based or al-
located on the unlawful basis of race or union mem-
bership.
" In the event that this Order is enforced by a decree of a United States
Court of Appeals, in each Notice marked "Appendix A or B," there shall
(b) Discriminating against Leon H. Phelps,
Harry C. Torry, Harold Mullins, Willie Earl Wil-
liams, and Robert Hensley, because of race or lack
of union membership.
(c) In any like or related manner restraining or
coercing employees in the exercise of their rights
guaranteed by the National Labor Relations Act, as
amended.
2. Take the following affirmative action, which
the Board finds will effectuate the policies of the
Act:
(a) Post at their offices in Houston , Texas, co-
pies of the attached notice marked "Appendix
A."17 Copies of said notice , to be furnished by the
Regional Director for Region 23, after being duly
signed by respective Respondent 's representative,
shall be posted by them immediately upon receipt
thereof, and be maintained by them for 60 consecu-
tive days thereafter , in conspicuous places, includ-
ing all places 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.
(b) Post at the same places and under the same
conditions as set forth in (a) above , as they are for-
warded by the Regional Director , copies of the
Respondent Local's notice marked "Appendix B."
(c) Mail signed copies of the attached notice
marked "Appendix A" to said Regional Director
for posting at the hiring hall operated by Respond-
ent Union , in places where notices to members
and employees and prospective employees are
customarily posted . Copies of the notice, to be
furnished by said Regional Director , shall be
returned forthwith to the Regional Director after
they have been signed by an official representative
of the Respondent Association for such posting.
(d) Notify the Regional Director for Region 23,
in writing , within 10 days from the date of this
Order, what steps Respondent Association has
taken to comply herewith.
B. Respondent Union , Local 1351, Steamship
Clerks and Checkers, International
Longshoremen 's Association , AFL-CIO, its of-
ficers, agents , and representatives , shall:
1. Cease and desist from:
(a) Causing or attempting to cause Houston
Maritime Association, Inc., and its Member Com-
panies, or any other employer, in the Port of
Houston, Texas, to discriminate against employees
or prospective employees by refusing to hire them
on the unlawful basis of or union membership; or
maintaining, performing, or enforcing, by agree-
ment or otherwise, any like or related arrangement
be substituted for the words "a Decision and Order" the words "a Decree
of the United States Court of Appeals, Enforcing an Order."
HOUSTON MARITIME ASSN., INC. 619
in a manner whereby referrals to available jobs are
based on the unlawful basis of race or union mem-
bership.
(b) Discriminating against Leon H. Phelps,
Harry C. Tony, Harold Mullins, Willie Earl Wil-
liams, and Robert Hensley because of their race or
nonmembership in said Local.
(c) In any like or related manner restraining or
coercing employees in the exercise of their rights
guaranteed by the National Labor Relations Act, as
amended.
2. Take the following affirmative action, which
the Board finds will effectuate the policies of the
Act:
(a) Notify, in writing, Leon H. Phelps, Harry C.
Torry, Harold Mullins, Willie Earl Williams, and
Robert Hensley that Local 1351 will accept their
applications for registration, without discrimination
against them, when tendered by them, under the
same terms and conditions as applied in the case of
white registrants who were admitted before Sep-
tember It, 1964, and they will be employed in ac-
cordance with seniority as of September 11, 1964.
(b) Post at its office, hiring hall, and meeting hall,
copies of the attached notice marked "Appendix
B."1S Copies of said notice, to be furnished by the
Regional Director for Region 23, after being duly
signed by Respondent Union's authorized
representative, shall be posted by it immediately
upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places,
including all places where notices to members and
other persons using Respondent Local 1351's hir-
ing hall are customarily posted. Reasonable steps
shall be taken by Respondent to insure that said
notices are not altered, defaced, or covered by any
other material.
(c) Post at the same places and under the same
conditions as set forth in (b) above, as soon as they
are forwarded by the Regional Director, copies of
the Respondent Association and its Member Com-
panies' notice marked "Appendix A."
(d) Mail to the Regional Director for Region 23,
signed copies of the attached notice marked "Ap-
pendix B" for posting by Respondent Houston
Maritime Association, Inc., and its Member Com-
panies thereof, at their places of business in the Port
of Houston, Texas, and vicinity, in places where
notices to employees are customarily posted. Co-
pies of said notice on forms provided by the Re-
gional Director, shall, after being duly signed by a
representative of Respondent Union, be forthwith
returned to the Regional Director for such posting.
(e) Notify the Regional Director for Region 23,
in writing, within 10 days from the date of this
Order, what steps Respondent Union has taken to
comply herewith.
C. The Respondents, Houston Maritime As-
sociation, Inc., and its Member Companies, their
officers , agents, successors , and assigns , and Local
1351 , Steamships Clerks and Checkers , Interna-
tional Longshoremen 's Association , its officers,
agents, and representatives , shall take the following
action:
1. Notify Leon H . Phelps, Harry C. Tony,
Harold Mullins , Willie Earl Williams , and Robert
Hensley, in writing , that the Respondent Em-
ployers and the Respondent Union have no objec-
'.ion to their employment or any other employees or
applicants for employment , because of their race or
membership or nonmembership in the Respondent
Union . If they are presently serving in the Armed
Forces of the United States, notify them of their
right to full registration and employment upon ap-
plication in accordance with the Selective Service
Act and the Universal Military Training and Ser-
vice Act, as amended , after discharge from the
Armed Forces.
2. Jointly and severally make whole Leon H.
Phelps, Harry C. Tony, Harold Mullins , Willie
Earl Williams , and Robert Hensley for any loss of
pay they may have suffered because of the disc
crimination against them, in the manner and to the
extent set forth in the section of the Board ' s Deci-
sion and Order herein entitled "The Remedy."
3. Respondent , Houston Maritime Association
and its Member Companies shall preserve and,
upon request, make available to the Board or its
agents, for examination and copying , all payroll
records, social security payment records,
timecards, personnel records, and all other records
necessary to analyze the amount of backpay due
and the rights of employment under the terms of
this Order.
4. Respondent Union , Local 1351, shall
preserve and, upon request, make available to the
Board or its agents, for examination and copying,
registration for job referral records and any other
documents or records or data showing job referrals,
hiring, and work assignments of employees, mem-
bers, and registrants made to the Association Em-
ployers, which are necessary to compute and
analyze the amount of backpay due and the rights
of employment under the terms of this Order.
is See fn. 17,supra.
APPENDIX A
NOTICE TO ALL STEAMSHIP CLERKS, CHECKERS
AND TIMEKEEPERS
Pursuant to a Decision and Order of the National
Labor Relations Board and in order to effectuate
the policies of the National Labor Relations Act, as
amended, we hereby notify you that:
WE WILL NOT maintain, perform, or enforce
any arrangement with Local 1351, Steamship
620 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Clerks and Checkers, International
Longshoremen 's Association , AFL-CIO, in
any manner whereby job referrals or hiring are
conditioned on the unlawful basis of race or
union membership ; or maintain , perform, or
enforce, by contract or otherwise , any like or
related arrangement in any manner whereby
referrals to available jobs are based or al-
located on the unlawful basis of race or union
membership.
WE WILL NOT discriminate against Leon H.
Phelps, Harry C. Torry, Harold Mullins , Willie
Earl Williams , and Robert Hensley, and we
shall make them whole for any loss of pay they
may have suffered since September 11, 1964,
because of the discrimination against them.
All of our employees are free to become or
remain , or refrain from becoming or remaining,
members of any labor organization . We will not dis-
criminate in regard to hire and tenure of employ-
ment, or any term or condition of employment,
against any employee because of race or member-
ship in or activities on behalf of any such labor or-
ganization.
HOUSTON MARITIME AS-
SOCIATION, INC. AND
ITS MEMBER COMPANIES
(Employer)
Dated By
(Representative ) (Title)
Note: We will notify the above-named em-
ployees if presently serving in the Armed Forces of
the United States of their right to full registration
and employment upon application in accordance
with the Selective Service Act and the Universal
Military Training and Service Act, as amended,
after discharge from the Armed Forces.
This notice must remain posted for 60 consecu-
tive days from the date of posting and must not be
altered, defaced, or covered by any other material.
If employees have any question concerning this
notice or compliance with its provisions, they may
communicate directly with the Board's Regional
Office, 6617 Federal Office Building, 515 Rusk
Avenue, Houston, Texas 77002, Telephone
228-0611.
APPENDIX B
NOTICE TO ALL STEAMSHIP CLERKS, CHECKERS
AND TIMEKEEPERS
Pursuant to a Decision and Order of the National
Labor Relations Board and in order to effectuate
the policies of the National Labor Relations Act, as
amended, we hereby notify you that:
WE WILL NOT cause or attempt to cause
Houston Maritime Association, Inc., any of its
Member Companies, or any other employer, to
discriminate against employees by refusing to
hire them on the unlawful basis of race or union
membership; or maintaining, performing, or en-
forcing, by agreement, or otherwise, any like or
related arrangement in a manner whereby
referrals to available jobs are based or al-
located on the unlawful basis of race or union
membership.
WE WILL notify, in writing, Leon H. Phelps,
Harry C. Torry, Harold Mullins, Willie Earl
Williams, and Robert Hensley, that we will ac-
cept their applications for registration, without
discrimination towards them, when tendered
by them, under the same terms and conditions
as applied in the case of white registrants who
were admitted before September 11, 1964, and
they will be employed in accordance with
seniority as of September 11, 1964, and we
shall make them whole for any loss of pay they
may have suffered because of the discrimina-
tion against them since that date.
WE WILL NOT in any like or related manner
restrain or coerce employees in the exercise of
their rights guaranteed by the National Labor
Relations Act, as amended.
Dated By
LOCAL 1351, STEAMSHIP
CLERKS AND CHECKERS,
INTERNATIONAL
LONGSHOREMEN'S AS-
SOCIATION, AFL-CIO
(Labor Organization)
(Representative) (Title)
Note: We will notify the above-named em-
ployees if presently serving in the Armed Forces of
the United States of their right to full registration
and employment upon application in accordance
with the Selective Service Act and the Universal
Military Training and Service Act, as amended,
after discharge from the Armed Forces.
This notice must remain posted for 60 consecu-
tive days from the date of posting and must not be
altered, defaced, or covered by any other material.
If employees have any question concerning this
notice or compliance with its provisions, they may
communicate directly with the Board's Regional
Office, 6617 Federal Office Building, 515 Rusk
Avenue, Houston, Texas 77002, Telephone
228-0611.
HOUSTON MARITIME ASSN., INC. 621
TRIAL EXAMINER"S DECISION
STATEMENT OF THE CASE
MILTON JANUS, Trial Examiner: Original and amended
charges were filed by the individuals named in the cap-
tions of these cases on various dates between March 11,
1965, and March 29, 1966. On April 13, 1966, the
General Counsel of the National Labor Relations Board,
by the Regional Director for Region 23, consolidated the
cases and issued his complaint.
As amended at the hearing, the complaint alleges that
the Respondent Union and the Respondent Association
and its member companies have, within the 6-month
period preceding the filing of the original charge, main-
tained and enforced a collective-bargaining agreement,
arrangement, and understanding, and have engaged in a
practice whereby the member companies are required to
secure employees, applicants, and prospective applicants
performing the work of clerks and checkers through the
hiring hall system operated and administered by the
Union; that in the operation of its hiring hall, the Union
has refused employment to the Charging Parties and to
other employees based upon racial considerations and
upon their lack of membership and/or lack of good stand-
ing in the Union; and that the Union has thereby violated
Section 8(b)(1)(A) and (2), and that the Association and
its member companies have thereby violated Section
8(a)(3) and (1).
Respondents filed separate answers denying the com-
mission of any unfair labor practices. A hearing was
thereafter held on May 9 and 10, 1966, at Houston, Tex-
as. The General Counsel and the Respondents were
represented by counsel. The Charging Parties, with the
exception of Harold Mullins, were present at the hearing,
and testified on behalf of the General Counsel. After the
hearing, briefs were filed by the General Counsel, the As-
sociation and the Union, which have been duly con-
sidered.
Upon the entire record and my observation of the wit-
nesses, including their demeanor while testifying, I
hereby make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT EMPLOYERS
Respondent Association is a Texas corporation with its
principal office and place of business at Houston, Texas.
Its member companies are engaged in the loading and
discharging of cargo from vessels in various ports in Tex-
as, including Houston. Among the purposes of the As-
sociation is the negotiation of collective-bargaining agree-
ments on behalf of its member companies with labor or-
ganizations, including the Respondent Union. At all times
material herein, there has been a collective-bargaining
agreement in effect between the Association and the
Union. These allegations are admitted by both Respond-
ents. The complaint also alleged that the Association ad-
ministers this collective-bargaining agreement on behalf
of its member companies as well as negotiating it, but the
Association's answer admits no more than that each of its
member companies observes and administers its own em-
ployment contracts, and that the Association has a func-
tion to perform only when a question arises over the ob-
servance of the agreement. In the absence of any
evidence to the contrary, I find that the Association's
answer on this point represent the actual state of affairs
between the Respondents.
During the year preceding the issuance of the com-
plaint, the member companies of the Association
furnished stevedoring services valued in excess of
$500,000 to steamship companies operating vessels in in-
terstate and foreign commerce. I find that the Association
and its member companies are employers engaged in
commerce within the meaning of the Act.
II. THE RESPONDENT UNION
Local 1351, Steamship Clerks and Checkers, Interna-
tional Longshoremen's Association, AFL-CIO, is a
labor organization within the meaning of the Act.
III. THE UNFAIR LABOR PRACTICES
This case involves the efforts over a number of years
by a group of Negro longshoremen to obtain work as
clerks and checkers through the Respondent Union.
The Association bargains with respect to stevedoring
and related work at the Port of Houston with seven ILA
Locals: two for deep sea longshore work; two for coast-
wise longshore work; two for warehouse and carloading
work; and one, Local 1351, for clerks, checkers, and
timekeepers, who do the clerical work associated with the
industry. Of the six locals engaged in manual work, one
in each of the three groups is a white, and the other is a
Negro, local. During the period relevant here, Local 1351
was a white local, meaning that only whites were referred
for work through its hiring hall, and only whites were ad-
mitted to membership. Local 1351 is the sole source for
referral of employees who wish to work as clerks,
checkers, or timekeepers with members of the Associa-
tion. Other employers in the industry who are not mem-
bers of the Association also utilize the hiring hall facilities
of Local 1351. The contract between the Association and
the Union makes no reference to the fact that the Union
is to be the exclusive source of referrals in employment,
but the practice has been in effect for many years, and is
understood by the parties to be controlling.
The Charging Parties have worked as longshoremen
through the hiring halls of one or more of the Negro lo-
cals. Leon Phelps, the oldest of the group, and rightly re-
garded as the leader in its efforts to obtain work through
Local 1351, filed his original charge with the Board on
March 11, 1965. The other charges were filed the next
day. The 6-month period preceding the charges during
which the commission of an unfair labor practice must be
proved, therefore began on September 11, 1964. Over
the objections of the Union, I admitted testimony with
respect to the efforts of the Charging Parties to obtain
referrals for work through its hiring hall before the start
of the 6-month ]imitation period, in order to relate the
events within that period with what had happened before.
Thereafter, the Union also offered testimony which I ad-
mitted, as to events during that earlier period, in order to
substantiate its defense.
According to Phelps, he and seven or eight other
Negroes went to Local 1351's hiring hall in the summer
of 1963 and spoke with Vestal, who was then president of
the Local, about the possibility of getting work through
the Local or, as an alternative, about setting up a Negro
clerks and checkers local which would share the available
work. Vestal said he was opposed to having a second
clerks local at the Port, but that he had seen the problem
622 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of Negroes working as clerks as due to come up, and that
he would talk it over with his executive board. He
promised them that he would bring it up at the next mem-
bership meeting of the Local, and take a vote on it.
A few weeks later, Phelps and many of the same men
returned to see Vestal and the executive board. After in-
troductions, Phelps said he hoped their applications
would be acted on favorably. Vestal then took up what
was to be an oft-repeated theme in similar conversations
thereafter, and told the Negroes that even if they were
given work through the Local, they wouldn't be able to
make a living at it, and that they couldn't get in the
required number of hours set by the Local's constitution
as a prerequisite for admission to membership. Phelps
countered with the proposition that his group just wanted
to make a start and would be satisfied with any opportuni-
ty for work, no matter how few the hours. He also pointed
out to Vestal and the Board that there seemed to be a
shortage of checkers on the docks at some times, despite
Vestal's statement that there were more checkers on their
rolls than were needed. Vestal admitted that such
shortages occurred, usually on a weekend after payday,
and Phelps pointed out that the Negroes would be availa-
ble to fill in at such times.
Vestal then made two further points - that things would
eventually work our for them, and some day they would
get a break, but that the membership of the Local had
voted down the proposition that Negroes be permitted at
that time to work through the Local's hiring hall. On this
note of immediate rejection coupled with a plea for pa-
tience and hope, the meeting ended. Torry, Williams, and
Hensley, who had accompanied Phelps to both meetings
with Vestal, corroborated the important points of Phelps'
story. Vestal did not testify.
A month or so later, Phelps and a group of about 75
signatories sent a letter to Ralph Massey, president of the
ILA South Atlantic and Gulf Coast District, telling him
that some of them had recently applied unsuccessfully for
membership in Local 1351, and asked him to look into the
matter. Massey's answer is not in the record, but it did
not result in any Negroes obtaining work through Local
1351.
A number of times during 1964 when Phelps happened
to be near the Local's hiring hall, he went in to inquire if
there had been any change in its hiring policies with
respect to Negroes, and would talk to whoever was at the
desk. The answer was always that they were working on
it, but that for the present, he could not register. On the
last such occasion, a few days before Thanksgiving Day,
1964, Phelps had noticed that there weren't enough
checkers around the docks. He went over to the hiring
hall and said to the man at the desk, "You are real short
of checkers, why don't you all give me a break over there
checking." The answer was that they were working on it,
but hadn't decided to put any colored on yet.
Torry, Williams, and Hensley all testis ied that they had
gone to the hall a few times during the early part of 1964,
to see about getting work, but had always been refused
the opportunity of registering.
The morning of March 11, 1965, Phelps again went to
the hall, and this time spoke to William Casey, who had
become president of the Local a few months before. He
asked Casey whether there was any chance in the Local's
position about putting colored people to work as
checkers, and Casey said it had been discussed, they
were working on it , patience was needed, and that even-
tually some colored people were going to get work down
there. Casey offered nothing more specific, and Phelps
decided that something more than patience was now
called for. He went to the Board's Regional Office that af-
ternoon, and filed charges against the Union and the As-
sociation. The next morning, March 12, Phelps and the
other Charging Parties went back to the hall to see Casey.
Phelps again asked him if there wasn't a chance that they
might really get some work there, and Casey surprised
him by saying, "Yes, I think you are going to work here."
But Casey then proceeded with the old refrain that the
Negroes couldn't make a living working through the hall,
that the Local was working on it, and that patience was
needed. Grasping at the most hopeful of Casey's remarks,
Phelps asked him if they couldn't register then and there.
It was at this point that, for the first time, a new reason
was introduced as to why Phelps and his group could not
be allowed to register. Casey said the Union had a lot of
misfits on its rolls whom they had to get rid of, that they
were not accepting applications even from whites, and
that they had a backlog of applications at that time.
Again, nothing specific was offered about when they
might actually be permitted to register or whether the
Union was contemplating a new, nondiscriminatory
procedure. That afternoon Torry, Williams, Mullins, and
Hensley filed individual charges with the Regional Office.
The testimony of Phelps and the other Charging Parties
who testified is substantially undenied. The testimony of
Casey lays the foundation for the Union's defense, that
Negro applicants have been treated no differently than
other applicants ever since September 1963, when the
Union stopped taking any further applications to register
for work through its hiring hall.
Some background information on the Union's hiring
hall operations is necessary at this point in order to put in
context the Union' s reasons for refusing to permit the
Negroes to register, with the legal issues in this case.
In 1959, the Union had revamped its previous referral
system in order to end the discriminatory treatment of ap-
plicants and employees who were not union members. It
was led to take this step because of an unfair labor prac-
tice case which was begun in 1954 on charges filed by
nonunion registrants , and which was not to run its full
course until 1964.1 Thus, from 1959 until mid-1965,
when other changes were made, to be described later, the
Union operated its hiring hall without discriminating
against white nonmembers. That is, it permitted white ap-
plicants to register for work through its hiring hall, and as-
signed them jobs in rotation within certain categories
based on years of service as clerks or checkers. (In
describing the 1959 referral system, it is to be understood
hereafter that reference to an applicant means only a
white applicant.) An applicant who was a high school
graduate or had established its equivalency, who had no
serious criminal record, and was not a Communist could
register at the hiring hall, and would then be placed in the
F extra category. Ahead of him in priority for referral was
everyone in that category who had registered before him,
and employees in categories F-1 and F-2 (employees
with less than 2 years' service) and employees in catego-
1 Galveston Maritime Association , Inc, et al., 122 NLRB 692; Supple-
mental Decision and Amended Order in 139 NLRB 352 , enfd. in part sub
nom. Local 1351, Steamship Clerks and Checkers, etc. v N L.R.B , 329
F 2d 259 (C A.D C.), cert. denied 377 U.S. 993
HOUSTON MARITIME ASSN., INC. 623
ries E through A, reflecting more years of service, and
eligibility for membership in the Union. An employee in
F category who had worked 500 hours during the first
year, and 1200 hours the second year was moved into E
category and was invited to join the Union, provided only
that he was not then over 45 years of age. If he was more
than 45, he could not become a member, or be transferred
out of F category, although he remained eligible for refer-
ral from that category.
According to Casey, this indiscriminate registration
and nondiscriminatory referral of applicants on a strict
seniority basis brought considerable headaches to the
Union. Those classified in the lowest group had no as-
surance of steady employment, and consequently, the
better qualified of these tended to leave for more regular
work. But as long as their names remained on the board,
even though they might in fact be unavailable or difficult
to reach, the Union considered itself obligated to keep
calling them in rotation. By September 1963, the Union
had a large backlog of registrants, including some who
had not yet worked even a single day, while others had
worked only a few days in the past year. There were
about 150 men in the F extra group, while in a busy week
at the Port there would be about 50 to 60 jobs available
for them out of a total of about 350 jobs. In a slow week,
the number of available positions might drop to about
200, for which only those in the higher categories would
be called.
Casey testified that the executive board of the Union
decided to do something about the imbalance between re-
gistrants and available jobs by putting its seniority lists
into better order. Its decision was taken shortly after
Phelps and his group first applied, and the solution
adopted by the Board and approved by the members of
the Local, in September 1963, was to refuse all further
applications until the number of registrants became more
manageable.
From September 1963 on, no new registrations were
accepted, thereby limiting the F extra category to those
whose applications were already on file. There were ap-
proximately 400 pending applications, and in the next 3
or 4 months the Union asked the applicants if they were
still interested in employment through the Union's hiring
hall. There were about 140 affirmative responses, and
these registrants thereafter constituted the core of the F
extra category. A small number of these, less than 10, had
never worked, but no later than February 1964, they had
all been referred for employment, thereby establishing
themselves on the seniority ladder. To put it differently,
no one was referred for employment through the hall after
February 1964 who had not already been registered by
September 1963.
Because this proposition is important in my determina-
tion of the case, I state here my reasons for finding that it
is true. It is based on Casey's testimony to that effect
which the General Counsel did not attempt to refute, and
which I credit. Furthermore, I am satisfied that the
Union's records were available for examination by the
General Counsel, and that if these records had revealed
any new applications after September 1963, the General
Counsel would have used them to impeach Casey, and to
establish that the Union's policy of rejecting all applica-
tions after that date had not in fact been followed. I find,
therefore, that from September 1963 through March
1965,1 a period of a year and a half, no one , white or
Negro, was allowed to register for employment through
Local 1351's hiring hall, and that only persons whose ap-
plications had already been accepted by September 1963,
were thereafter referred for work.
As registrants in the F category accumulated additional
hours of employment through 1964, they were moved
into higher seniority groups. By January 1965, according
to Casey, there were still about 100 people in the lowest
group, but of these more than 40 could expect to move
upwards because of the 45-year age limitation on admis-
sion to the E category and to membership in the Union.
The import of Casey's testimony is then, that early in
1965 the Union had achieved its objective of a reasonable
balance between available work and registrants, and that
it was now time to replenish the pool of applicants for the
intermittent employment which was the lot of F extra re-
gistrants.
Other factors also contributed, early in 1965, to a reex-
amination by the Union of its past practices in the regis-
tration of applicants. Chief among these, I have no doubt,
was that the operative provisions of Title VII of the Civil
Rights Act of 1964 (78 Stat. 253, 42 U.S.C. Section 2000
et seq.) would become effective in July 1965, and that
Section 703(c) of that Act makes it an unlawful employ-
ment practice for a labor organization -
(2) to limit, segregate, or classify its membership, or
to classify or fail or refuse to refer for employment
any individual, in any way which would deprive or
tend to deprive any individual of employment oppor-
tunities, or would limit such employment opportuni-
ties of otherwise adversely affect his status as an em-
ployee or as an applicant for employment, because of
such individual's race, color , religion , sex, or national
origin;
There was also the factor of new leadership in the Union.
Casey had become its president in January, and new
counsel was obtained the following month both of whom
were aware that affirmative action to end discrimination
against Negroes in the operation of the hiring hall was
now essential
Before going on to explain what the Union did to adopt
and follow a racially nondiscriminatory referral system
(outside the scope of the complaint, but relevant as to
motivation for previous actions), I consider it appropriate
at this point to comment on what I consider the Union's
true motivation to have been for what it did or failed to do
between September 1963 and March 1965. There can be
no question or doubt that Phelps and his group were not
permitted to register for referral through the hiring hall in
August 1963, solely because they were Negroes. Vestal,
then president of the Union, and the executive board ad-
mitted as much when they told them that the Local's
membership had voted down the proposition that
Negroes be permitted to work through the hall. Nor was
Phelps' age a factor (he was then over 45) since whites
over 45 had been allowed to register to work in the F
category, although they could not advance beyond it.
If charges had been filed within 6 months of their
original application, I am satisfied that the Board, for
reasons discussed below , would have found violations of
Section 8(b)(1)(A) and (2) in the Union's rejection of the
applications. But charges were not filed for another year
and a half, and during that time other factors, legitimate
enough by themselves, also motivated the Union to call
a halt to registrations . These were a desire to place appli-
cants and available jobs in better balance , the passage in
July 1964 of the Civil Rights Act of 1964, necessitating
a new approach to registrations, the desire to raise the
caliber of applicants, and the fact that until the end of that
624 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
period, there was no serious shortage of registrants in the
F extra category. There were, in other words, good
reasons why the Union should want a breathing spell be-
fore permitting the filing of new registrations under fair
and objectively determined standards.
On the other hand, the disingenuous answers given to
Phelps and the other Negroes, that they couldn't make a
living working through the Local's hiring hall, and that
they should be patient, but never setting a definite date
when patience would have its reward, incline one to reject
as equally pretextual the reasons which the Union now
advances for refusing to allow Negroes to register during
that 18-month period. But as against the well-founded
suspicion that the freeze was continued so long merely to
keep Negroes out for as long as possible, there is the un-
disputed fact that within the 6-month s1 atutory period of
limitations, the Union treated all applicants for registra-
tion alike. Whites were not allowed to register, not only
to maintain a formal parity with the rejection of Negroes,
but also because there were good, legitimate reasons in
1964 to overhaul the registration system.
Because it has a bearing on the Union's reasons for
continuing the freeze on registrations into 1965, it is ap-
propriate to examine how the Union finally resolved its
problems. In March 1965, the Union moved quickly to
adopt an objective and nondiscriminatory hiring policy
for the future. It contrasted with an expert in industrial
psychology, Professor Osburn of the University of
Houston, to study the content of, and necessary qualifica-
tions for, the various types of jobs filled through its hiring
hall, and to administer a written test for entrance into the
system. Professor Osburn submitted job descriptions,
and proposed that standard tests to determine speed and
accuracy in clerical checking and numerical computations
be used. There is nn need to relate the details of the
scrupulous efforts of Professor Osburn and the Union to
ensure that anyone who might be interested be informed
of the test, and the fairness with which it was conducted
and its results utilized. In order to apply, an applicant had
to meet only three stated qualifications: (a) under age 45
by July 31, 1965; (b) high school diploma or equivalent;
and (c) no serious criminal record or Communist Party
membership. The notice which the Union distributed to
all who expressed an interest in applying, stated that
neither race, color, religion nor national origin would be
an element in selecting applicants to be invited to work
through its hiring hall, and that 50 people were needed im-
mediately. Toffy, Mullins, Williams, and Hensley were
sent individual letters and application blanks, inviting
them to apply and assuring them personally that race
would not be a factor in the selection of qualified appli-
cants. They did not apply to take the test. Phelps was not
invited to take the test because he could not meet the new
age requirement.
On July 17, 1965, the test was given to about 230 appli-
cants. No count was made of the Negroes taking it,
although Professor Osburn, who had sole responsibility
for administering and grading it, estimated that in the lar-
gest of the three rooms where the test was given, about 30
percent were Negroes. The 75 men who stood highest on
the test were offered personal interviews, in order to
check their high school diplomas and birth certificates
and to note any physical defects which could interfere
with job performance. Of those who appeared, the top 50
in the test ranking were all invited to work through the
hiring hall, and all but 2 or 3 accepted. Among the top 50
were 10 Negroes, all of whom have since been referred
for work through the hiring hall.2
Analysis and Conclusions
Section 10(b) of the Act provides that "... no com-
plaint shall issue based upon any unfair labor practice oc-
curring more than six months prior to the filing of the
charge with the Board. " As construed by the
Supreme Court in Local Lodge No. 1424 International
Association of Machinists v. N.L.R.B., 362 U.S. 411,
Section 10(b) bars consideration of a complaint where the
occurrences within the 6-month limitation period do not
in themselves constitute an unfair labor practice. In such
a situation, reliance on the commission of unfair labor
practices before the limitations period would not be mere-
ly "evidentiary," but would serve to "cloak with illegali-
ty" what was otherwise lawful. The Court contrasted that
situation with one in which conduct within the 6-month
period in and of itself constitutes, as a substantive matter,
an unfair labor practice; then, events occurring before
that period may be utilized to shed light on the true
character of matters occurring within the limitations
period. Basing its holding on that distinction, the Court
held that the enforcement, within the 6-month period, of
a union-security clause, lawful on its face, was not an un-
fair labor practice even though the clause had been illegal
when executed, more than 6-months before the charge
was filed.
The Court, however, also noted that enforcement of an
agreement within the 6-month period may itself constitute
a substantive violation, even though entered into outside
that period, where the agreement is invalid on its face, or
was unlawfully administered, even though validly exec-
uted.3 362 U.S. at 422-423.
How has the Board applied these principles, and how
are they to be applied in this case?
It is conceded that neither the contract between the
Union and the Association, nor the referral system which
is administered exclusively by the Union, is illegal in and
of itself. What is alleged to be illegal is the Union's prac-
tice of refusing to refer Negroes within the 6-month
limitation period, and the acceptance of that practice by
the Association. I have found that the Union did reject
Phelps and his group in August 1963, because of their
race, and that it continued to reject their efforts to re-
2 In Whitfield, et al. v United Steelworkers oFAmerica, Local No.
2708, et al, 263 F.2d 546, 551 (C A 5), a case involving a somewhat
similar factual situation where objective standards for promotion replaced
previous discrimination based on race, the Court said, in words also ap-
propriate here "The Union and the Company made a fresh start for the
future We might not agree with every provision, but they have a contract
that from now on is free from any discrimination based on race Angels
could do no more "
3 The principles which the Board and Courts utilize, in regard to Sec-
tion 10(b), to wntten contracts are equally applicable to unwritten prac-
tices Thus, the fact that the Union's referral system was not included in
the wntten contract with the Association, or that the Union's constitution
or bylaws did not specifically bar Negroes from the hiring hall or from
membership, do not excuse its actions if otherwise illegal,. It is immateri-
al, in other words, that one may not be able to point to a written document
containing an illegal provision, so long as the unwritten practice can be
proved, and is, in fact, illegal.
HOUSTON MARITIME ASSN., INC. 625
gister. The Union contends, however, that regardless of
its former motives, it did not in fact treat the Negro appli-
cants any differently than it treated other applicants
between September 1963 and March 1965. It argues that
it rejected whites and Negroes in order to regularize its
application procedures and to place the available work in
better balance with the number of registrants.
I think the Union's position is well taken. and requires
dismissal of the complaint. In order to find a violation
here, I would have to hold that the Charging, Parties were
deprived of an opportunity to register for employment
during the limitation period, because of their race. It is
true that I have found that the Union was motivated in
September 1963, to adopt its policy of rejecting all appli-
cants because it wished to continue rejecting Negroes.
But proof of the commission of an unfair labor practice
which is time-barred does not satisfy the requirement that
an unfair labor practice within the limitation period must
be independently proved.4 Such independent proof may
be a showing that the time-barred illegal practice was con-
tinued or maintained within the 6-month period, but the
continuance or maintenance must, as a matter of sub-
stance, itself be an unfair labor practice. In Great Lakes
Carbon Corporation, 152 NLRB 988, enfd. 360 F.2d 19
(C.A. 4), and in Whiting Milk Corporation, 145 NLRB
1035, enforcement denied on other grounds 342 F.2d 8
(C.A. 1), the Board found certain contractual provisions
to be illegally maintained and enforced within the 6-
month period, although executed before their because the
provisions were discriminatory on their face. In Local
Union No. 269, International Brotherhood of Electrical
Workers, AFL-CIO (Mercer County Division, etc.), 149
NLRB 768, enfd. 357 F.2d 51 (C.A. 3), the Board found
to be illegal the maintenance within the limitation period
of a contractual provision which was not illegal on its
face, but whose operative effect inevitably was to per-
petuate without change an illegal practice entered into be-
fore the 10(b) period.
Unlike the situation in the cases cited above, however,
the rejection of Negroes, unlawful when effectuated in
August 1963, did not remain unchanged. Within the 10(b)
period, the practice of refusing registrations was not
directed against some applicants because of their race but
was directed against all applicants, because of an excess
of registrants already entitled to referral through the hir-
ing hall. The practice of rejecting all applicants is not il-
legal on its face,5 nor does its operative effect follow in-
evitably from the earlier, time-barred illegal practice. I
could find the rejection of all applicants for valid reasons
to be unlawful, only if I were to consider as determinative
the Union's prior unlawful practice of rejecting some ap-
plicants because of race. But this, it seems to me, would
be something more than clarifying the true character of
matters occurring within the limitation period - it would,
rather, transform what is not in itself a substantive unfair
labor practice into an illegal action, by relying solely on a
time-barred event.
In my discussion of the Section 10(b) issue, I said that
I was satisfied that violations of Section 8(b)(1)(A) and
(2) would have been established if the charges had been
filed timely. As I think they were not filed timely, I shall
recommend dismissal of the complaint in its entirety.
With a lively appreciation of the possibility that others, no
less reasonable than I, may well conclude that Section
10(b) does not bar the complaint, on the ground that re-
jection of the Charging Parties within the 10(b) period
was based on their race, I consider it my responsibility to
explain, however briefly, why that would constitute a
violation of the Act.
A union selected by a majority of the employees in an
appropriate unit becomes the exclusive bargaining
representative of all the employees in the unit, including
those who may have voted against representation, and
those who were first hired after the union achieved its
representative status. Because the majority's choice is
imposed upon all the employees in the unit, the statutory
bargaining representative must represent everyone in the
unit fairly, and included in the duty of fair representation
is an obligation not to invoke arbitrary or invidious clas-
sifications, such as race, in the treatment of unit em-
ployees 6 The Board has held that a breach of the duty of
fair representation is in violation of Section 8(b) on the
union's part, and of Section 8(a) on the employer's part.7
A summary of the composite holdings of the cases cited
in footnote 7 would run as follows: a statutory representa-
tive's duty to represent the employees in its unit fairly is
breached, and the representative restains or coerces em-
ployees in the exercise of rights guaranteed in Section 7,
in violation of Section 8(b)(1)(A), whenever it subjects a
segment of those employees to treatment which is arbita-
ry, invidious or unfair; it violates Section 8(b)(2) if it
causes or attempts to cause an employer to treat em-
ployees whom it represents in a discriminatory manner,
by the use of arbitrary, invidious or unfair considerations,
to encourage or discourage union membership; and it vio-
lates Section 8(b)(3) by negotiating a contract which is in
breach of its duty of fair representation. Furthermore, an
employer violates Section 8(a)(1) and (3) by entering into
4 News Printing Co, Inc , 116 NLRB 210
5 This case was not tried on the theory that a union which administers
an exclusive referral system for employment violates the Act simply by
refusing to continue accepting applications for registration at its hiring
hall In any event, it is not the law that a union commits an unfair labor
practice in seeking to match men to jobs through the use of reasonable
standards which are not founded on lack of membership , or other union
considerations , or on other unfair qualifications or classifications , such as
race . N L R.B. v News Syndicate Company, 365 U S. 695; New York
Typographical Union Number Six, International Typographical Union,
AFL-CIO (The New York Times Company, et al), 144 NLRB 1555,
enfd sub nom Lawrence F. Cafero v N.L.R B, 336 F.2d 115 (C.A. 2);
Armored Car Chauffeurs and Guards Local Union No 820, Teamsters,
(United States Trucking Corporation), 145 NLRB 225., Cf. A.
Nabakowski Co, 148 NLRB 876, enfd sub nom. Sheet Metal Workers
International Association Local 65, AFL-CIO, 359 F 2d 46 (C.A. 6), and
Astrove Plumbing & Heating Corp. (Local Union No 2 o Fthe Umted As-
sociauon of Journeymen, etc.), 152 NLRB 1093, enfd as modified, 360
F.2d 428 (C.A 2).
s Bester William Steele v. Louisville & Nashville Railroad Co., etc, et
al. 323 U.S. 192 The implications of the doctrine have been articulated in
a number of subsequent Supreme Court , and courts of appeals , cases,
many of which have been cited in the Board cases listed in fn. 7. On the
whole subject, see the excellent presentation by Professor Sovern in
Chapter 6 of his recent book, Legal Restraints on Racial Discrimination
in Employment (The Twentieth Century Fund, 1966)
7 Miranda Fuel Company, Inc, 140 NLRB 181, enforcement denied
326 F 2d 172 (C A. 2), Independent Metal Workers Union, Local No 1
(Hughes Tool Company), 147 NLRB 1573, Local 1367, International
Longshoremen's Association, AFL-CIO (Galveston Maritime Associa-
tion), 148 NLRB 897, International Union, United Automobile etc.
(Maremont Corporation), 149 NLRB 482, Local Union No 12, United
Rubber, Cork, Linoleum & Plastic Workers of America, AFL-CIO, 150
NLRB 312, and Cargo Handlers, Inc, 159 NLRB 321.
626 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
unlawful arrangements, accepting the benefits thereof, or
submitting to the unlawful demands of the statutory
representative.
With these basic principles freshly summarized, I turn
to their application to the facts in this case. The Charging
Parties were all longshoremen represented by one or
more of the Negro longshore locals in the Port of
Houston. They had never been employed as clerks or
checkers by any member company of the Association in
the unit for which Local 1351 was the statutory bargain-
ing representative. The question that must then be an-
swered is whether the Charging Parties were entitled to
fair representation by the representative of employees in
a unit which they have not been permitted to enter.
It is well-established that an applicant is considered to
be an employee under some sections of the Act, but not
under others. Since an employer may not discriminate in
regard to hire, to encourage or discourage membership in
a labor organization, the Supreme Court has held that an
employer violates Section 8(a)(3) if he rejects an appli-
cant for employment because he is a union adherent;8 and
a labor organization violates Section 8(b)(2) when it
causes or attempts to cause an employer to discriminate
against an applicant in violation of Section 8(a)(3).9 An
employer also violates Section 8(a)(4) by rejecting an ap-
plicant for employment because he has filed charges or
given testimony under the Act. to
On the other hand, because Section 8(a)(5) makes it an
unfair labor practice for an employer to refuse to bargain
collectively with the representative of his employees, the
Board has held that that section was not violated by an
employer's refusal to bargain with a union representing
applicants.' 1
There is then no automatic equivalence between "ap-
plicant" and "employee," and the right of employees to
be free from arbitrary treatment at the hands of a union
which represents them does not necessarily carry over to
applicants, who are by definition, not employed in the
unit. Nor do there seem to me to be compelling policy
considerations, in the normal industrial situation, which
favor extending to applicants a union's obligation to
represent the employees in its unit fairly. An employer
violates Section 8(a)(3) if he discriminates against appli-
cants to encourage or discourage union membership, but
he does not, as I understand the law, violate any provi-
sion of Section 8(a) if he refuses to hire applicants simply
because they are otherwise displeasing in his eyes, no
matter how arbitrary, prejudiced, or unreasonable his ac-
tion may be. If an employer who has sole control over hir-
ing may act arbitrarily in selecting his employees, I do not
see why a bargaining representative, with no responsibili-
ty for selection or sponsorship of applicants for hire or
promotion, should nevertheless have an affirmative duty
to treat them as if they were already employed in its unit
and protect them against the employer's own permissible
arbitrariness. 12 In any event, I need not decide that
question here.
However, where an employer has granted to a union
his own powers in selecting and choosing among appli-
cants, through a hiring hall or other referral system, the
rationale of the Steele case suggests another approach to
the problem. Steele established that a union has a duty to
represent employees in its unit fairly, on the premise that
a union's exercise of a granted power to act in behalf of
others involves the assumption toward them of a duty to
exercise the power in their interest and behalf. 323 U.S.
192, 202. A union may not, in the operation of a referral
system, discriminate between applicants on membership
or other union considerations; and it should likewise be
required to use, in the selection and referral of applicants,
only such considerations, standards, or criteria as are
reasonably related to its sole function of matching men to
jobs. I am not unaware of the differences between the
"grant of power" referred to in Steele, and the grant of an
employer to a union to operate a hiring system on his be-
half. The former arises directly from an Act of Congress
and bestows on a bargaining representative the power to
act as the exclusive agent of employees, requiring in
return that it act in the employers' interest, in good faith
and without hostile discrimination. The latter is a grant or
delegation from an employer to a union to carry out, on
the employer's behalf, a system for the orderly selection
of employees. But in operating such a system, the union
has a responsibility to those who seek to earn their
livelihood in the industry, of providing them with a means
for obtaining work. Because applicants for employment
must use the union's hiring hall or go without work, the
union 's power over them should entail a corresponding
obligation to exercise it in good faith and without hostile
discrimination , since its power and status ultimately stem
from its statutory authority to act as the exclusive bar-
gaining representative.
I would therefore hold, if Section l0(b)'s prohibition is
inapplicable here, that Local 1351, because it was the ex-
clusive hiring agent for employment with the Associa-
tion's member companies , owed to the applicants who
were dependent on it for an opportunity to work, a duty
to treat them fairly and without invidious distinction.13 If
Local 1351 had refused to consider the charging parties
for employment within the 10(b) period because of their
race, it would have acted arbitrarily toward them,
breaching its duty to treat them fairly, and would have
thereby violated Section 8(b)(1)(A) and (2).14
There is also an alternative ground here for finding a
violation of Section 8(b)(2). Although it was not a condi-
tion for registration for employment through the hiring
hall that a white applicant already be a member of Local
1351, it is apparent that an important, if not the sole, fac-
tor in denying the Charging Parties the opportunity of re-
gistering, was that as Negroes they were considered to be
8 Phelps Dodge Corp v. N.L.R B, 313 U S 177.
s N L.R B. v. George D. Auchter Company, et al., 209 F 2d 273 (C.A.
5) enfg. 102 NLRB 881
"John Hancock Mutual Life Insurance Company v. N.L R.B , 191
F 2d 483 (C.A D.C.).
it Piasecki Aircraft Corporation, 123 NLRB 348, enfd. 280 F.2d 575
(C.A. 3), and Union Texas Petroleum, 153 NLRB 849.
12 A union's duty of fair representation has been extended to nonunit
employees who performed the same duties as unit employees, The
Brotherhood of Railroad Trainmen et al. v . Howard, et al., 343 U S. 768,
and to nonumt employees whose jobs were in a direct line of progression
to unit jobs, Dillard, et al, v Chesapeake & Ohio Ry. Co , 199 F.2d 948
(C A 4). Whether the union's duty should also be extended in favor of em-
ployees in the same industry who do no unit work and whose present jobs
are unrelated, in skills or qualifications, to unit jobs is as yet unanswered
by the Courts.
'3 I do not know of any square precedent for this proposition. As I read
the Board's decision in Cargo Handlers, Inc , 159 NLRB 321, it is based
on the assumption that the Negroes who were refused referral on racial
grounds were already in the longshore unit represented by the union, and
were not merely first-time applicants.
14 See cases cited in fn 7.
HOUSTON MARITIME ASSN., INC. 627
ineligible for membership. The proviso to Section
8(b)(1)(A), of course, allows a union to prescribe its own
rules for acquisition of membership, but it may not,
nevertheless, cause an employer to discriminate against
an employee or applicant to encourage or discourage
union membership merely because its rules preclude the
employee or applicant from joining the union.15 Here, the
preference of whites over Negroes is attributable to the
fact that the Union considered only whites to be potential
members of Local 1351. Negroes could not be en-
couraged thereby to change their race so as to become
eligible for membership, any more than the discriminatee
in Gaynor News Company, Inc., 93 NLRB 299, could be
encouraged to change his parentage in order to satisfy
that union's rule of admitting only sons of present union
members. But, as the Court of Appeals said, in affirming
the Board's Gaynor News decision:
Discriminatory conduct, such as that practiced here,
is inherently conducive to increased union member-
ship. In this respect, there can be little doubt that it
"encourages" union membership, by increasing the
number of workers who would like to join and/or
their quantum of desire. It may well be that the
union, for reasons of its own, does not want new
members . . . and will reject all applicants. But the
fact remains that these rejected applicants have been,
and will continue to be, "encouraged", by the dis-
criminatory benefits, in their desire for membership.
This backlog of desire may well, as the Board argues,
result in action by non-members to `seek to break
down membership barriers by any one of a number
of steps, ranging from bribery to legal action.' A
union's internal politics are by no means static;
changes in union entrance rules may come at any
time.16
In Gaynor, the discrimination, even though motivated by
economic considerations, was held to have an inherent
tendency to encourage membership in the union on the
part of nonunion employees. Here, it follows, Negro ap-
plicants, who could not expect to become members of
Local 1351, would nevertheless be "encouraged" by
reason of the discrimination practiced against them, to
obtain membership therein.
The complaint did not charge a violation of Section
8(b)(3), nor did I call to the attention of the General
Counsel, as did the Trial Examiner in the Hughes Tool
case , that the facts alleged might possibly encompass
such a violation. Nevertheless, as the Board said in that
case, 147 NLRB at 1576, "The procedural question.. .
is whether, when facts have been alleged and fully
litigated, the Board is precluded from finding violations of
[Section 8(b)(3)] merely because the General Counsel
chose not to allege as a legal conclusion that the pleaded
and litigated facts violate [that] section of the Act." The
Board held that it was not so precluded, and found that
the refusal of the Respondent Union to process a
grievance of an employee in the bargaining unit because
he was a Negro violated Section 8(b)(3), under which
labor organizations are prohibited from refusing to bar-
gain collectively with an employer. Unlike Hughes,
where the racially discriminatory contracts were not in
issue in the unfair labor practice proceeding, the invalidi-
ty of the Union's racially discriminatory practice was
placed in issue in the instant case.
With my usual caveat about the effect of Section 10(b),
the Board may want to consider in this case whether the
facts alleged and litigated also establish a violation of Sec-
tion 8(b)(3). I offer the following rationale for such a find-
ing: An employer violates Section 8(a)(5) if he refuses to
bargain over the institution of a legal exclusive referral
system to be operated by the union which represents his
employees. 17 As the counterpart of the employer's obliga-
tion, a union would be guilty of a refusal to bargain by in-
sisting on adherence to an illegal provision in a referral
system. 18 Thus, the perpetuation by the Union of a hiring
practice which discriminated against Negroes may, I sug-
gest, constitute a refusal on its part to bargain for a legally
valid hiring hall system.
There remain two additional points to cover in round-
ing out my discussion of the possibility that Local 1351
has been guilty of violating the Act here.
1. The liability of the Association. I have noted that
the exclusive refereal system is not mentioned in the
agreement between the Association and Local 1351, and
that the procedures used in referral through the hiring hall
were adopted by Local 1351 without prior clearance by
the Association. The Association urges that it cannot be
held liable for the Union's acts over which it had no con-
trol, where there is no evidence that its member compa-
nies knew, or should have known of, or acquiesced in,
any discriminatory practices on the part of the Union. It
is true that the Union made no demands of the Associa-
tion or the member companies that they refuse employ-
ment to Negroes. There was no need to, since the Union
refused to refer them, and it would have been futile for
any applicant to apply directly to an employer for a job as
a clerk or checker. There is no evidence that the Associa-
tion knew that the Charging Parties had ever applied to
the Union for registration, but I do not think it can
realistically be said that the Association was unaware of
the Union's racially discriminatory policies. The racial
composition of all the ILA locals in the Port of Houston
was a matter of common knowledge, and the fact that no
Negroes had ever been referred by Local 1351 was obvi-
ously based on its racial policies rather than on any disin-
terest of Negroes to work as clerks and checkers. I there-
fore conclude that the Association and its member com-
panies violated Section 8(a)(1) and (3) by acquiescing in
what they knew, or should have known, was the Union's
practice of discriminating against applicants on the basis
of their race.19
2. Remedial action. The five Charging Parties all ap-
plied to be registered through Local 1351's hiring hall on
March 12, 1965, and if their rejection was based on race,
15 N L R.B v. International Union of Operating Engineers, etc. (Sub
Grade Engineering Co.), 216 F 2d 161 (C.A 8).
16 N.L R.B. v. Gaynor News Company, Inc., 197 F.2d 719, 722-723
(C A 2), affirmed 347 U.S 17
17 Houston Chapter, Associated General Contractors ofAmerica, Inc.,
143 NLRB 409, enfd. 349 F.2d 449 (C.A. 5).
18 "Because collective-bargaining agreements which discriminate in-
vidiously are not lawful under the Act, the good-faith requirements of See-
Lion 8(d) necessarily protect employees from infringement of their rights
." Local 1367, International Longshoremen's Association, AFL-CIO,
148 NLRB 897,899
19 Cargo Handlers, Inc., 159 NLRB 321; Miranda Fuel Company,
Inc, 140 NLRB 81, Maremont Corporation (International Union,
United Automobile, Aircraft and Agricultural Implement Workers of
America) 149 NLRB 482, Morrison-Knudsen Co., Inc v. N L.R.B., 275
F 2d 914 (C A. 2), enfd. as modified 123 NLRB 12.
336-845 0 - 70 - 41
628 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
they are now entitled to be referred on the same basis as
other applicants. Before the Union's nondiscriminatory
policies became effective some months later, applicants
over 45 years of age could be and were registered for the
F category, although they were not entitled to advance-
ment into higher classifications. That would have been
Phelps' situation if he had been accorded the same
privileges as white overage applicants.
I would have recommended, if a violation had been
established, that the Charging Parties be allowed to re-
gister now, without taking the Union's qualification test,
and that they be awarded the backpay and seniority they
would have earned if they had not been discriminated
against on March 12, 1965, subject only, in regard to
Phelps, to the limitation noted above.
However, having found that the Respondent Union
and the Respondent Association have not violated the
Act in any of the respects alleged in the complaint, I
recommend that it be dismissed in its entirety.
Upon the basis of the foregoing findings of fact, I make
the following:
CONCLUSIONS OF LAW
1. Houston Maritime Association, Inc., and its
member companies are engaged in commerce, and in ac-
tivities affecting commerce, within the meaning of Sec-
tion 2(6) and (7) of the Act.
2. Local 1351, Steamship Clerks and Checkers, Inter-
national Longshoremen's Association, AFL-CIO, is a
labor organization within the meaning of Section 2(5) of
the Act.
3. The Respondents have not engaged in any unfair
labor practices as alleged in the complaint.
RECOMMENDED ORDER
It is hereby recommended that the complaint be
dismissed in its entirety.