Imparato Stevedoring Corp.

National Labor Relations Board - Board Decisions

Aug 22, 1955

113 N.L.R.B. 883 (N.L.R.B. 1955)

IMPARATO STEVEDORING CORPORATION 883
sentative.4 We shall, therefore, order that the election be set aside
and direct that a new election be held.
In accordance with our usual practice in seasonal operations, we
shall direct that the second election be held at or about the, time of the
employment peak of the next potato processing and freezing season,
on a date to be determined by the Regional Director, among the em-
ployees in the appropriate unit who are employed during the payroll
period immediately preceding the date of issuance of the notice of
election by the Regional Director.
[The Board set aside the election held April 28,1955.]
[Text of Direction of Second Election omitted from publication.]
CHAIRMAN FARMER took no part in the consideration of the above
Supplemental Decision, Order, and Direction of Second Election.
' The instant case is distinguishable from Mall Toot Company, 112 NLRB 1313, on its
facts. In that case, the interviews lasting about 3 minutes each took place at the em-
ployees' workbenches, they were not individually summoned to the employer's office, and
only about half of the employees were interviewed. In the instant case, however, as in
the Economio Machinery case, supra, and General Shoe Corporatson, 97 NLRB 499, the
Employer called the employees , individually or in small groups , into its office to urge
them to reject the Union and most of the eligible employees were subjected to this type of
interview within 3 weeks of the election.
Imparato Stevedoring Corporation and International Brother-
hood of Longshoremen, AFL
Local 1247, International Longshoremen 's Association, Independ-
ent and International Brotherhood of Longshoremen, AFL.
Cases Nos. 2-CA-3694 and 2-CB-1165. August 22,1955
DECISION AND ORDER
On April 18,1955, Trial Examiner Robert L. Piper issued his Inter-
mediate Report in the above-entitled proceedings, finding that the
Respondents had engaged in and were engaging in certain unfair labor
practices and recommending that they cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. Thereafter , Respondent Imparato
Stevedoring Corporation , here called the Company , filed exceptions to
the Intermediate Report, and the Charging Union, International
Brotherhood of Longshoremen, AFL, filed a memorandum brief in
support of the Intermediate Report.
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was'committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report , the- exceptions and briefs , and the entire record in
113 NLRB No. 100.
884 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
these cases,' and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner, with the following additions and-
modifications.
1. We agree with the Trial Examiner that the Company violated
Section 8 (a) (3) and 8 (a) (1) of the Act, the Respondent Local
1247, International Longshoremen's Association, Independent, here-
called the Respondent Union, violated Section 8 (b) (2) and 8 (b) (1)
(A). It is clear from the record that on and after October 15, 1953,2'
the Respondent Union caused the Company to refuse the group known
as "the clam-diggers" further work as a gang. This followed after
the majority of "the clam-diggers" group had indicated their support
for a losing candidate in an intraunion election. Such discrimination
had the natural and foreseeable consequence of encouraging member--
ship in, and loyalty to, a particular faction of the Respondent Union,
and was therefore violative of the Act.' In its exceptions, the Com-
pany contends that it did not violate the Act because the dispute as to
which of the contending groups was to go to work was "a matter for-
the Union to determine, and the Union alone made that determina-
' After the close of the hearing and the issuance of the Trial Examiner's Intermediate.
Report, the Company submitted to the Board, as newly discovered evidence, three exhibits.
The exhibits consist of a contract between the Company and the Union, and two volumi-
nous sets of records (Daily Tonnage Reports and Gang Rosters) which the Company
alleges were kept in the regular course of business -by the Navy at the Leonardo pier here
involved The Company moved that these exhibits be admitted into the record and be
considered in support of the Company's contentions in this case. In its motion the Com-
pany states that because Of security regulations, the Navy records were unavailable to
It at, the time of the hearing, but that the records were then available to the General
Counsel and should have been introduced into the record by him at that time. The Gen-
eral Counsel and the Charging Union opposed the admission of the exhibits, stating, in
substance , that they were previously unaware of the existence of the records, and further
denying the materiality or relevance of the exhibits to the Company's case Prior to its
present motion the Company never attempted to secure the admission of the exhibits into
the record and so far as the record shows never notified the other parties of their existence.
The Company has given no explanation of its present assertion that its contract with
the Union is newly discovered The Company does not now assert that it was unaware of
the existence of the Navy records before or at the time of the hearing Despite the ab-
sence of such a disclaimer,- the Company never informed the other parties, or the Trial
Examiner, of the records' existence and it took no steps whatever to have the records
made available if they were in fact denied to the Respondent because of security measures.
Besides its sweeping assertion that the records were "not available" because of "security
measures," the Respondent, moreover, does not specify the "measure" to which it refers.
Nor does it explain its present possession of the records other than to assert that "with
the passage of time" the records became available In these circumstances, we hold that
the exhibits in question are not "newly discovered," and we hereby deny the Company's-
motion.
An examination of the exhibits in question, moreover, reveals that they are either im-
material to the matters here in issue, or, if material that their probative weight is insuf-
ficient to affect our conclusion that the Respondents violated the Act as set forth in the-
Intermediate Report and herein. In this connection, we do not at this time pass upon
the materiality of the exhibits with respect to the amount of back pay due the discrimi-
natees herein
Although the Trial Examiner appears to find that there was a hiatus in the Company's
discrimination after October 15, 1953, it is clear from the remedy section of the Interme-
diate Report that the Trial Examiner considered the October 15 violation as but the first
instance of a continuing discriminatory refusal to hire "the clam-diggers gang." We here-
by adopt only the latter interpretation.
8 See Turner Construction Company, 110 NLRB 1860, 1862; Roadway,, Express, Inc.,.
108 NLRB 874, 878.
IMPARATO STEVEDORING CORPORATION 885
tion." However, it is precisely in this respect that the Respondent was
at fault. For an employer may not under the law abdicate to a union
complete power over the selection of applicants for employment 4
2. We do, however, find merit in the Company's contention that it
was not responsible for the refusal to hire "the clam-diggers" gang on
the dates of December 1, 2, and 3, 1953. On those dates, because of a
melee at the gates caused by the Respondent Union, Navy guards
cleared the area and no work at all was done at the piers. Thus, even
had the Company desired to assign work to "the clam-diggers" on these
days, it would have been unable to do so because of the Navy's action.
Accordingly, we find, contrary to the Trial Examiner, that a pre-
ponderance of the evidence fails to establish that the Company vio-
lated the Act on December 1, 2, and 3, 1953.
It is nevertheless clear that on the days in question the Union
caused a disturbance at the gates in order to influence or prevent the
'Company from assigning work to "the clam-diggers." By such con-
duct the Union was attempting to cause the Company to discriminate
against "the clam-diggers," and it thereby violated Section 8 (b) (2)
and 8 (b) (1) (A) of the Act.
THE REMEDY
In view of the foregoing, we shall adopt the remedial recommenda-
tions of the Trial Examiner except insofar as they would require the
Respondents to make the discriminatees whole for their loss of pay
on December 1, 2, and 3, 1953.
ORDER
Upon the basis of the entire record in these cases, and pursuant to
Section 10 (c) of the National Labor Relations Act, as amended, the
National Labor Relations Board hereby orders that:
I. The Respondent, Imparato Stevedoring Corporation, New York,,
New York, its officers, agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Encouraging membership in Local 1247, International Long-
shoremen's Association, Independent, or in any other organization of
its employees, or discouraging membership in the International
Brotherhood-of Longshoremen, AFL, or any other labor organization
of its employees, by discrimination against them in regard to their hire
and tenure of employment or any term or condition of employment,
except to the extent permitted by Section 8 (a) (3) of the Act.
(b) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the rights guaranteed in Section 7 of
the Act; except to the extent that such rights may be affected by an
4 See Pacific Intermountain Express Company, 107 NLRB 837.
886 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
agreement requiring membership in a labor organization as a condi-
tion of employment, as authorized in Section 8 (a) (3) of the Act.
2. Take the following affirmative action which the Board finds will"
effectuate the policies of the Act :
(a) Immediately offer to Thomas Dolan, John Wilson, Nicholas
Garron, Fred Thompson, James Stevenson, Thomas Largey, Julius
Tomani, Allen Tracey, Walter Gerleit, Tim Keneally, and Al Pero,
employment as members of a regular gang, to be made up of those
employees and such 10 other employees, including a hatch boss, as
may be selected by the Company on a nondiscriminatory basis; such
gang shall be allowed to share equally in the work as one of a number
of regular gangs, under the rotation system in effect at Leonardo prior
to the discrimination, without prejudice to all their other rights and
privileges, if any, previously enjoyed.
(b) Jointly and severally with the Respondent Union make whole
the 11 named employees for any loss of pay they may have suffered
because of the discrimination against them, in the manner set forth
in the section of the Intermediate Report entitled "The Remedy," as
modified by the section of this Decision and Order entitled "'The
Remedy."
(c) Upon request preserve and make available to the Board or its
agents for examination and copying all payroll records, social-
security payment records, timecards, personnel records and reports,
and all other records necessary to analyze the amounts of back pay due
and the rights of employment under the terms of this Order.
(d) Post at its pier or headquarters at Leonardo, New Jersey, copies
of the notice attached to the Intermediate Report and marked "Ap-
pendix A." 5 Copies of said notice, to be furnished by the Regional
Director for the Second Region, shall, after being duly signed by the
Company's representative, be posted by the Company immediately
upon receipt thereof, and maintained by it for a period of sixty (60)
consecutive days thereafter, in conspicuous places, including all places
where notices to employees are customarily posted. Reasonable steps
shall be taken by the Company to insure that said notice is not altered,
defaced, or covered by any other material.
(e) Notify the aforesaid Regional Director in writing, within ten
(10) days from the date of this Order, what steps the Company has
taken to comply herewith.
5 This notice, however, shall be, and it hereby is, amended by striking from the first
paragraph thereof the words "The Recommendations of a Trial Examiner" and substi-
tuting in lieu thereof the words "A Decision and Order." In the event that this Order
is enforced by a decree of a United States Court of Appeals, there shall be substituted for
the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the
United States Court of Appeals, Enforcing an Order."
IMPARATO STEVEDORING CORPORATION 887
II. The Respondent, Local 1247, International Longshoremen's
Association, Independent, its officers, representatives, agents, success
sors, and assigns, shall :
1. Cease and desist from :
(a) Causing or attempting to cause the Company, its officers, agents,
successors, or assigns, to discriminate against employees in violation
of Section 8 (a) (3) of the Act.
(b) In any other manner restraining or coercing employees of the
Company in the exercise of the rights guaranteed in Section 7 of the
Act, except to the extent that such rights may be affected by an agree-
ment requiring membership in a labor organization as a condition of
employment, as authorized by Section 8 (a) (3) of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Notify Thomas Dolan, John Wilson, Nicholas Garron, Fred
Thompson, James Stevenson, Thomas Largey, Julius Tomani, Allen
Tracey, Walter Gerleit, Tim Keneally, Al Pero, and the Company in
writing, that it has no objection to, but on the contrary now requests,
the employment of the named employees as members of a regular gang
entitled to share equally in the work as one of a number of regular
gangs under the rotation system in effect at Leonardo prior to October
15, 1953, without prejudice to all their other rights and privileges, if
any, previously enjoyed.
(b) Jointly and severally with the Respondent Company make
whole the 11 named employees for any loss of pay they may have
suffered because of the discrimination against them, in the manner set
forth in the section of the Intermediate Report entitled "The Remedy,"
as modified by the section of this Decision and Order entitled "The
Remedy."
(c) Post at its business offices, meeting halls, and all places where
notices to members are customarily posted, copies of the notice at-
tached to the Intermediate Report and marked "Appendix B." 6
Copies of said notice, to be furnished by the Regional Director for
-the Second Region, shall, after being duly signed by an official repre-
sentative of the Union, be posted by it immediately upon receipt
thereof, and maintained by it for a period of sixty (60) consecutive
days thereafter. Reasonable steps shall be taken by Respondent,
Local 1247, International Longshoremen's Association, Independent,
to insure that such notices are not altered, defaced, or covered by any
other material.
(d) Mail to the said Regional Director sufficient signed copies of
the notice attached to the Intermediate Report marked "Appendix B,"
for posting, the Company willing, at its places of business where
See footnote 5, supra.
379288-56-vol. 113-57
888 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
notices to employees are customarily posted. Copies of said notice, to
be furnished by the said Regional Director, shall, after being signed
as provided in the preceding paragraph, be forthwith returned to such
Regional Director for such posting.
(e) Notify the.said Regional Director in writing, within ten (10)
days from the date of this Order, what steps they have taken to comply
herewith.
CHAIRMAN FARMER and MEMBER LEEDOM took no part in the con-
sideration of the above Decision and Order.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Charges having been duly filed and served, a consolidated complaint and notice
of hearing thereon having been duly issued and served by the General Counsel of
the National Labor Relations Board, and answers having been duly filed by Impaiato
Stevedoring Corporation (hereinafter called the Company) and Local 1247, Inter-
national 'Longshoremen's Association, Independent (herein called 1247 and the
Company and 1247 being hereinafter collectively called Respondents), a hearing in-
volving allegations of unfair labor practices in violation of Section 8 (a) (1) and (3)
and Section 8 (b) (1) (A)* and (2) of the National Labor Relations Act, as amended
(herein called the Act), 61 Stat. 136, was held in New York City from December 1
to 3, 1954, before the duly designated Trial Examiner.
In substance the complaint as amended at the hearing alleges and the answers deny
that on or about September 5, 1953, and thereafter, the Company refused to employ
11 named employees because they were members and adherents of the International
Brotherhood of Longshoremen, AFL (hereinafter called the IBL), and/or assisted'
the IBL, and/or engaged in other concerted activities for their mutual aid or protec-
tion, and that 1247 attempted to cause and caused the Company to so discriminate
against the 11 named employees because they were members or adherents of the
IBL, and/or assisted the IBL, and/or engaged in other concerted activities for their
mutual aid or protection.
At the hearing all parties were represented by counsel, were afforded full oppor-
tunity to be heard, to examine and cross-examine witnesses, to introduce evidence
pertinent to the issues, to argue orally upon the record, and to file briefs and pro-
posed findings of facts and conclusions of law. All counsel waived oral argument
and counsel for each party filed a brief which has been received and considered.
Upon the entire record in the case, and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
I. THE BUSINESS, OF THE COMPANY
The complaint alleged and the answer of the Company admitted that it is a New
York corporation which maintains its principal office in New York City and is en-
gaged in the loading and unloading of cargo of vessels engaged in the transportation
of cargo and passengers in international trade at various installations in the port of
New York, including the Naval Ammunition Depot at Leonardo, New Jersey. During
1953 the, Company received revenue in excess of $5,000,000 for such stevedoring
services rendered to companies engaged in the transportation of cargo and passengers
into and out of the port of New Yock'from and into foreign countries and, States other
than the State of New York, of which approximately 90 percent was received pursuant
to contracts with the United States Government directly related to national defense.
At all times relevant herein, the Company was a member of the New York Shipping
Association, which annually ships cargo and passengers from the port of New York,
encompassing the States of New York and New Jersey, to destinations in other
States of the United States and foreign nations. The value of such cargo during 1953
exceeded $4,000,000. The Company admits, and I find, that it is engaged in com-
merce within the meaning of the Act.
IMPARATO STEVEDORING CORPORATION 889
H. THE ORGANIZATIONS INVOLVED
The IBL and 1247 are labor organizations within the meaning of Section 2 (5) of
the Act.
HI. THE UNFAIR LABOR PRACTICES
A. Background
The events in issue concern the Company 's stevedoring operations at the United
States Naval pier in Leonardo , New Jersey, where the United States Navy operates
an ammunition depot . Sometime in 1943 or 1944 the pier at Leonardo was opened.
Some of the employees concerned in this case, including a number of the alleged dis-
criminatees , worked at the pier almost from its inception . The Navy by contract
allotted the stevedoring operations to private companies . Immediately prior to
August 1, 1953, the stevedoring operations were handled by the McGrath Com-
pany. Pursuant to contract with the Navy, the Company took over the stevedoring
operations at the Leonardo pier on August 1, 1953. Stevedoring operations in the
port of New York traditionally are performed by gangs of longshoremen. These
gangs are made up of 20 men and a hatch boss . A gang consists of 8 men who work
in the hold , 8 men who work on the dock , 4 men who work on the deck, and the
hatch boss , who does not perform manual labor himself and is the supervisor or
foreman of the gang . Ships contain a number of hatches and each hatch has a gang
to load or unload it, as the case may be. As a result, the hiring of longshoremen is
normally done on a gang basis . Partial gangs are not used , so it is essential from an
employer 's point of view to hire a complete gang for each hatch which is to be loaded
or unloaded.
Prior to 1953 substantially all, if not all, of the longshoremen employed in the
port of New York belonged to the International Longshoremen 's Association. Re-
spective locals of the ILA had jurisdiction over the various territories or geographical
areas which made up the port of New York. Normally, in the port of New York,
the longshore gangs or longshoremen employed at the various installations were,
members of the local which had jurisdiction of that installation . The employers
obtained their longshoremen from the locals either on a gang basis or by hiring
individual longshoremen at a shapeup and making up the necessary gangs at that
time . The practice varied at different installations in the port of New York. How-
ever, the practice at Leonardo was somewhat different than either of the general
practices followed in New York referred to above. Apparently because of its dis-
tance from New York City, the installation at Leonardo was not under the juris-
diction of any single local of the ILA, but instead the work was shared by the
longshoremen of four ILA locals. These locals were 1247, the Jersey City local;
1588, the Bayonne local; 1235, the Newark local; and 920 , the Staten Island local.
Because the cargo handled at Leonardo was ammunition and considered a risk
or dangerous type of cargo , the longshoremen received double pay for working
there , and as a result employment there was in demand and considered bonus or
premium work . The record establishes that sometime prior to the incidents herein,
the four ILA locals referred to above entered into an arrangement under which the
work at Leonardo was shared and rotated among them. The various stevedore
employers which operated that-pier did their hiring by gangs, not individuals, and
the shapeup was used only for the purpose of employing fill-ins or extra men to
take the place of absentees in a regular gang . Infrequently , an extra gang might
be made up from the shapeup of extra men who were not members of any of the
regular gangs . Under the rotation arrangement among the four locals , 1588 fur-
nished the first 3 gangs needed , 1247 the next 2 , 1235 the next 1 , and 920 the next 1,
making a total of 7.' Apparently the reason for this number was that most of the
ships which were loaded or unloaded at Leonardo contained 7 hatches or holds and
hence needed 7 gangs of longshoremen.
If a second ship was at the pier, an additional 7 gangs would normally be needed,
or a total of 14. The same sequence of furnishing gangs was followed , so ,that if
2 ships were being worked, the gangs would be furnished in the same ratio and
order by the 4 locals. The longshoremen employed at Leonardo were required to
have a Coast Guard pass and security clearance from the Navy Department. At
the time of hiring , a Marine officer checked each longshoreman to determine that
he had been cleared for security before his employment would be approved. Of
course, each of the locals had more gangs of longshoremen among its members
than the number of gangs which they normally dispatched to Leonardo when the
employer notified them that gangs were needed . The practice within the respective
locals was to rotate the work available at Leonardo among their respective gangs
890 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
who had been cleared for work there and who were referred to generally as ammuni-
tion gangs. This, too, was in order to divide up the work among each local's
respective gangs because of its bonus or premium nature. Upon occasion, more
than 14 gangs were needed and in those cases either the locals dispatched extra gangs
or infrequently extra gangs might be made up from among those extra employees
who shaped at the gate seeking to obtain work as fill-ins on the regular gangs.
When a ship was in or due in, the employer notified the locals that he would need
so many gangs the following morning. The locals in turn notified the hatch bosses
of the particular gangs whose turn it was under the rotation system followed within
each- local and they would notify the members of their gangs to report at the pier
the following morning. In the morning when the gangs assembled the various
hatch bosses reported to the employer's hiring boss, the official who actually did
the hiring and apparently was the principal supervisory official concerning long-
shore operations. He also was the official who notified the locals the day before
that he needed so many gangs. If less than 7 gangs were needed, the rotation system
previously described was followed with the first 3 coming from 1588, the next 2
from 1247, etc. After the 'gangs assembled at the gate, the hatch bosses would
notify the hiring boss if they were short any men in their particular gangs. It was
not uncommon for some or all of the gangs to have one or more absentees.
A number of other qualified and cleared longshoremen who were not members
of any regular gang but were, ILA members would also shape at the gate,, in the
hope of being employed as a fill-in or extra for a gang which was short. After the
hatch bosses conveyed the information concerning absentees to the hiring' boss, he
would employ from this extra pool fill-ins for the various gangs. Only the extra
men were shaping up within the customary meaning of that term, because the gangs
present had been notified the day before to report for work and knew that they
were going to go to work. The extras were shaping in the hope of obtaining employ-
ment but without any assurance thereof. The selection of the individual members
of the regular gangs, exclusive of those extras who might fill in for absentees, was
apparently the province of the respective hatch bosses. It was not done by the
Company.
• Whenever a permanent vacancy occurred in a regular gang, apparently that
vacancy was filled on a permanent basis by the selection of another member of the
particular local by the hatch boss of that gang. The extra men who shaped into a
gang continued their employment with that gang until that particular ship was
finished, but thereafter they were no longer in the gang and returned to the shapeup
at the gate in an effort to again be placed into another gang as an extra. Most of
the employees who shaped at the gate resided in or near the vicinity of the pier,
somewhat closer than the members of the gangs which were dispatched by the four
locals from their respective headquarters. A few of the gangs which worked at
Leonardo were made up of local residents who lived in the vicinity of the pier,
belonged to one of the respective locals, and whose hatch boss was a member of
one of the respective locals. Most of the gangs were dispatched from the city in
which the particular local was located.
As previously found, the longshore operations began at Leonardo sometime in
1943 or 1944. During an interval between 1946 and 1949, the pier was either shut
down or had so little work that ,the longshore operations were virtually suspended
and substantially all of the employees did not work at the pier as longshoremen
during'that time. Beginning in the latter part of 1949 or early 1950, the pier re-
opened or operations picked up and were quite busy thereafter until the incidents
involved in this case, which occurred in the summer and fall of 1953 and early
1954. When a gang was dispatched and assigned to work a ship, that gang remained
on the job until that ship was finished. The record reveals that the period of,time
to complete the loading or unloading of a ship usually ran from several days to a
week. Consequently, the rotation of the work among the various locals and in
turn among their various gangs was on a ship-by-ship basis, because any gang
assigned to a ship stayed on that job until it was completed.
B. The discriminatory refusal to employ the clam-diggers gang
1. The clam-diggers gang was one of the regular gangs rotating the
work at Leonardo
The complaint as amended alleged that on or about September 5, 1953, and con-
tinually thereafter, the Company discriminatorily refused to employ the following
named employees, and that 1247 caused the Company to do so:
IMPARATO STEVEDORING CORPORATION 891
Thomas Dolan Julius Tomani
John Wilson Allen Tracey
Nicholas Garron Walter Gerleit
Fred Thompson Tim Keneally
James Stevenson Al Pero
Thomas Largey
However, at the hearing the General Counsel with the concurrence of all parties
conceded that the issue was whether or not Respondents had discriminated against
the above-named employees as members of one of the regular gangs entitled to share
the work at Leonardo, and that there was no contention or issue that Respondents
had discriminated against them with respect to their employment at Leonardo as
individuals. Basically, it follows that one of the principal issues in the case was
whether or not the above-named employees were members of one of the regular
gangs which rotated the work at Leonardo. Respondents' position was that they
were not, and were merely among the group of extra employees who shaped at the
gate and sought employment as extra or fill-in members of gangs which had absentee
openings. On the other hand, the General Counsel contended that they were
all members of a long-established regular gang which was among those which rotated
and shared the work at Leonardo.
The record establishes that there were some 14 or 15 so -called regular gangs
from the 4 locals. These gangs were regularly employed at the pier. As pre-
viously found, an arrangement existed for some years under which 1588 was to
furnish 3 gangs, 1247 2 gangs, and the Newark and Staten Island locals 1 gang
each, or a total of 7 gangs, and then repeat this process, making a total of 14
gangs. Because each ship usually contained 7 hatches and needed 7 gangs, the
rotation of the work among these 14-odd regular gangs resulted in each one of
the 14 gangs working approximately every other ship. While the four ILA locals,
rotated their respective shares of the work among their own regular gangs, it was
undisputed that the hiring was on a gang basis except for fill-ins and that each,
hatch boss had a regular gang which by the process of rotation shared the work
available at Leonardo and to that extent was regularly employed at Leonardo.
Since the locals rotated the work among their respective ammunition gangs, and there
Was not always a need for 14 gangs or even for 7 gangs, obviously each gang did
not work every day or every ship, but nevertheless, within the process of rotation,
constituted a regular gang which in turn worked its share at Leonardo.
Basically, the defense of Respondents was that the 11 named employees were
never members of a regularly employed gang at Leonardo but were only extras who
shaped at the gate periodically, were put into various regular gangs as fill-ins, and
returned to the shapeup to seek further employment when the employment of that
particular gang terminated at the end of the work on a ship. Since the General
Counsel conceded that Respondents had not discriminated against these employees
with respect to individual employment as extras, Respondents contended that there
had been no discrimination against them, because the practice with respect to them
remained the same, they had never been members of a regular gang entitled to a
share of the work in rotation and hence had not been discriminated against as such
a gang.
However, the record establishes that the 11 employees were members of a reg-
ularly employed gang which shared in the rotation of the work and which was
commonly known as the clam-diggers gang. Much of the disagreement and dispute
in the record among the parties concerning whether or not the clam-diggers gang
was a "regular" gang seems to have stemmed from a confusion as to meaning of
the term. There were two kinds of gangs regularly employed at the pier, con-
sisting of the so-called city or general cargo gangs dispatched by the locals from
their respective cities, and a few gangs made up of local residents also regularly
dispatched by the respective locals to which they were attached but not from the
city of that local, because the members of such gangs lived in the vicinity of the
pier and did not go into the respective cities and perform general cargo work, but
instead sought employment as extras at Leonardo when their gang was not em-
ployed under the rotation system. In the sense that the city gangs were regularly
employed on general cargo work at other piers, the local gangs were not regular
gangs; in the sense that none of the gangs which rotated the work were steadily
employed at the pier on each ship which came in because of the rotation, none
of the gangs were steadily employed at Leonardo, and hence it could be said that
in that respect none of the gangs were steady gangs.
However, the testimony of the witnesses called by the General Counsel, as
well as the testimony of the principal witness called by the Company, establishes be-
892 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
yond dispute that the 11 employees were members of a regular gang which shared
in the rotation of the•workat the pier, was 1 of the gangs of 1247, and was made
up of employees who resided in or near the vicinity of Leonardo and had belonged
to the gang for years. It was undisputed that "most of the members of the regular
gangs remained the same throughout the years, and that, while occasionally in-
dividual members had to be replaced due to the inevitability of resignations, deaths,
etc., a nucleus of the gangs remained unchanged.
John Wilson, one of the alleged discriminatees, testified that he had been em-
ployed at Leonardo since 1945 and had always been a member of the same regularly
employed gang, known as the clam-diggers gang because most of its members lived
on or near the shore in the vicinity of Leonardo. He testified-that many members of
this gang had remained the same from its inception shortly after the pier opened,
that it was one of the regular 1247 gangs; and that it was regularly employed at the
pier as a gang under a particular hatch boss in rotation with the 14-odd gangs which
were regularly employed. He stated that it was his understanding that the clam-
diggers gang was entitled to 50 percent of the work, or every other ship, under the
rotation arrangement between the various locals and,employers. Manifestly, no
one of the gangs could have received 50 percent of the work; but it seems clear
that the reference to such a percentage of the work by the various witnesses in fact
meant every other ship or 50 percent of the ships. Since 7 gangs were normally
employed on each ship and the work was rotated among 14 gangs, each gang would
normally work every other ship..
Wilson said that the clam-diggers gang had various hatch bosses over the years
from its inception after the pier opened ; The gang was one of the rotating gangs
and received' its work orders directly from .1247 the day before the men were to
report for work as a gang. According to Wilson, the union delegate called the hatch
boss and he in turn notified the men that they were to work as a gang the following
day. The members of the city gangs dispatched by the four locals came to the pier
by bus from the various cities where their locals were located, while the several local
gangs, assembled at the pier without the necessity of the locals furnishing transporta-
tion, because they lived in the vicinity or were closer to the installation. Wilson
testified that all of the 11 alleged discriminatees had been members of the clam-
diggers gang for a considerable period of time prior to the summer of 1953, and that
a number of them including himself had been members of the gang from its inception
at the time the pier opened. He stated that the gang remained intact all of those
years; that there had been a few replacements made, but that on the whole the nucleus
of the gang had remained the same.
Wilson testified, as did other members of the gang, that they averaged from 7 to 10
thousand dollars a year at Leonardo during the years worked, with the exception of
the period between 1946 and 1949 when the pier was either closed or longshore
operations substantially halted. The longshoremen at Leonardo earned between 40
to 45 dollars a day and consequently the above average annual earnings established
that the 11 employees were regularly employed at the pier during such years. It is,
of course; self-evident that members of a regular gang which was entitled to its shale
of the work in rotation would receive more employment than extras who shaped
at the gate in the hope of being hired as fill-ins for gangs with shortages. The
regular gang"s always worked the day they received orders and the days following until
a ship wa"s completed, whereas the extra employees who "shaped at the gate might or
'Might not be hired and of course, in many instances, were not. On the other hand,
as pointed out by Respondents, beeau"se the Local residents shaped at the gate for
extra work when their gang was not working, it Was possible and probable for them
to obtain more employment over a period of time at Leonardo than the members of
the regular city gangs, who only worked their 'share under the rotation system and
then moved on to employment elsewhere with theii gang in general cargo work at
other installations ; The members of the local gangs which shared in the work did
not follow this practice. Because of the distance involved and the premium pay,
they preferred to take their chances on securing extra work by shaping at Leonardo
'when it was not their gang's turn to work. -
Wil`son said, and it Was not disputed, That only the regtilar gangs received orders
in advance to report for work the following day. Inasmuch as the clam=digger's gang
over a `substantial period of time-did, and it was admitted, receive such orders to
report for work, it follows that it must have been one of the regular gangs entitled
to receive such orders. Respondents' contention that the members of the clam-
diggers gang were only extra men who shaped for fill-in jobs from time to time does
not jibe with the fact that the gang did receive orders for work as one of the regular
gangs. Respondents contended that extra gangs were occasionally made up from
IMPARATO STEVEDORING CORPORATION 893
the extra employees at the shapeup, but it was undisputed that such extra gangs were
infrequent , did not have orders to report for work as regular gangs did, and were
only made up on the spur of the moment at the gate because of the need for an extra
additional gang not available among the regular gangs.
Wilson said that he knew that the work was rotated among the various regular
gangs but that he did not know in what order the gangs were called to work, except
that the clam-diggers gang was entitled to work every other ship. According to
(Wilson, the hatch boss of the clam-diggers gang was appointed by 1247, and during
recent years the members of the gang had no choice in his selection . Wilson said
that in the earlier years the gangs used to elect their own hatch boss, but that that
practice had ceased some years prior to 1953. Wilson testified, and it was not dis-
puted, that as the result of a protest by the clam-diggers gang in 1949 a vice president
of the ILA had informed them that they would receive 50 percent of the work at
Leonardo, pursuant to a decision made by the ILA District Council of, New York
and Joseph Ryan, then president of the ILA. Again this is an apparent reference
to every other ship, or 50 percent of the ships rather than 50 percent of the work,
which no gang could possibly perform. According to Wilson, the clam-diggers gang
was always a 1247 gang, its hatch boss received orders from 1247 to report for work
when it was the gang's turn, and the hatch boss kept in touch with 1247 to determine
if it had any work orders for the gang. This coincided with the testimony of
Respondents ' witnesses, who conceded that the employer contacted the various locals
when it needed gangs, advised them of this fact, and the locals took it from there.
Thomas Largey, another of the alleged disciiminatees called by the General Coun-
sel, also worked at the pier almost from its opening. ' Largey testified that the clam-
diggers gang was a regular gang which 'shared in the rotation of the work at the pier
from that time, and that it had started out under a hatch boss named McMahan, who
had remained the hatch boss of that gang until sometime in 1950. Largey said that
when he began working at the pier he was hot a member of this gang, although it
existed at the time . He, too, said its membership iemained more or le§s constant.
As all of the witnesses conceded, Largey said that the clam-diggers gang was made
up of local residents, substantially all, of whom belonged tb 1247 although there were
1 or 2 members in the gang who belonged to 1588, the Bayonne local. The hatch
boss of the clam-diggers gang was always a 1247 man. Largey said that after the
pier resumed work after the shutdown or slack period between 1946 and 1949, he
then joined the clam-diggers gang as a regular member. This was sometime in
1950, and McMahan was still hatch boss of the gang. Largey said that the clam-
diggers gang worked every other ship, and that it did not shape for work as a gang
but received orders to report for wofk as oiie of the regulai gangs sharing the work.
He said that he and the other members of the gang shaped for work only when the
gang was not working. He conceded that there were a number of other regular
gangs, and that under the rotation system some of them went to work before the
clam-diggers gang. This coincides with the arrangement among the 4 locals pre-
viously found. According to Largey, there were approximately 13 regular gangs
from the different ILA locals which shared the work in rotation, and the clam-diggers
gang participated in that and received its share of the work until the events in 1953
discussed hereinafter.
Julius Tomani, another of the, alleged discriminatees and the hatch boss of the
clam-diggers gang at the time of the incidents which occurred in August and October
of 1953 considered hereinafter, testified that he started working at-the pier in about
1945 or 1946. He said that the pier, shut down or ceased employing longshoremen
for several years between 1946 and 1949, and that he returned to work at the pier in
1950 as a member of the clam-diggers gang; a regular gang sharing in the rotation
of the work with the other gangs from the four ILA locals. Tomani explained that
the gangs rotated the work, that 7 worked I ship and 7 another, and that under that
system the clam-diggers gang worked approximately every other ship. Tomani
stated that he had been a member of the clam-diggers gang since 1945 and that the
majority of its members had always worked together as a gang. According to him,
they worked every other ship because they were a local union which lived in the
vicinity of the pier.
During the years 1950 to 1953, the pier was busy and there was a substantial
amount of work so that many gangs were needed and used. On occasions when 2
ships were in dock together, 14 gangs and sometimes more would be working at
the same time. Tomani said that during the last 2 or 3 years the rotation was based
more or less upon the hours worked, so that each of the 14 gangs got an approximately
equal amount of work. He pointed out that if the Company had only a few hours
work for 1 gang, it used the clam-diggers or a local gang in order to save the ex-
894, DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pense of calling a gang from the city and hiring a bus to transport the employees.
This was, confirmed by witnesses for the Company. Tomani said that as hatch
boss he received orders for the gang to report for work directly from the Company's
hiring boss and not from 1247. Tomani said that there were no hatch bosses who
did not have regular gangs, that extra gangs were not used at Leonardo in his ex-
perience, and that there were no extra or unassigned hatch bosses without gangs.
Thomas Dolan, another of the discriminatees who began working at the pier when
it opened , said that he was a member of the clam -diggers gang from the inception
when it was under Hatch Boss McMahan, and that it had always been one of the
gangs which regularly participated in the rotation of the work. He said that the
gang had remained constant throughout the years with some changes to replace
members who had left but with a permanent and regular nucleus. All of the mem-
bers lived in the vicinity of the pier along the New Jersey shore and hence had
acquired the appellation of a clam-diggers gang.
Gus Wreiole, a witness called by the Company, was the Company's hiring boss
during all of the time material to the incidents herein. He began working at the
pier when it opened , originally as a carpenter and later as a longshoreman. He re-
sided in the vicinity of the pier and was a member of a local gang for a number
of years. Subsequently he became the hatch boss of a local gang, which con-
tinued to work regularly at the pier for more than a year. Thereafter he was made
a hiring boss, and worked as hiring boss for the McGrath Company, the Com-
pany's predecessor. When the Company succeeded McGrath as the stevedore,
Wreiole was continued as the hiring boss. Wreiole said that the hiring at the pier
during the time he worked there and when he was hiring boss was done by calling
the various ILA locals for the gangs needed. Wreiole said that he called all four
of the locals and would advise them of the number of gangs needed . They would
then approve the request and send the gangs the following day. According to
Wreiole, no particular gangs were asked for by name. He also testified that it
was his duty when the gangs reported for work to fill vacancies that might exist
in them by hiring extra men who shaped at the gate seeking such employment. He
said that occasionally , but infrequently , an extra gang was made up from the shape-
up and a hatch boss picked by him, but that it only worked for a few days. Pre-
sumably, such an extra gang would continue working until the ship to which it was
assigned was completed and then cease to exist as a gang.
While Wreiole contended that the discriminatees were never members of a regular
gang but only extras who shaped at the gate daily, nevertheless his testimony ultimately
corroborated the testimony of the witnesses for the General Counsel that the
clam-diggers gang was in fact one of the gangs which regularly rotated the work
and was made up of regular members among whom were the 11 alleged discrimi-
natees. If Respondents ' contention that these discriminatees were only employed'
as extras at the pier were correct , they could never have remained together in any
one gang for more than a few days or a relatively short period of time. However,
the record establishes that they worked together as a gang for many years , some of
them from the inception of the pier itself.
Wreiole's testimony contained many material contradictions which clearly af-
fected his credibility . Nevertheless , he made numerous significant admissions, par-
ticularly on cross-examination , which established beyond doubt that the clam-diggers
gang was one of the gangs which regularly rotated the work at the pier. Respondent
contended -that because this gang had a number of different hatch bosses over the
years, it was not one of the regular gangs, but Wreiole testified that the hatch
bosses of steady gangs changed now and then . Wreiole admitted that there were-
several local gangs, including the clam-diggers gang , which regularly worked at
the pier and therefore obviously had orders from one of the locals to perform the
work. Wreiole said that he called the union halls for the gangs, and that they in
turn called the hatch boss who called the men. He said the only time the Com-
pany hired a local gang was to save expenses to the Navy by the elimination of the
bus. Wreiole said that in such instances he would call the union hall and let it know
that the Company wanted to use a local gang, and that the locals went along in
order to save expense . According to Wreiole , that was done only on short jobs
lasting for a few hours. Nevertheless , he admitted and testified that several of
the local gangs, including the clam-diggers gang , worked for months and years at
the pier steadily as a gang. Wreiole admitted that he not only had been the member
of a local gang but himself headed a local gang as hatch boss , and that he got
orders for it to work at the pier by calling his union hall and asking if there were
orders for his gang. Wreiole admitted that there were two other local gangs
from different locals of ILA than 1247, one headed by a hatch boss named Loori and
another headed by a hatch boss named Padzunas , and that these gangs regularly
IMPARATO STEVEDORING CORPORATION 895
worked at the pier as a gang. Wreiole said that these local gangs were originally
'made up outside the gate and that even though he had been the hatch boss of one
of them, he did not know if they were gangs of any of the locals of ILA. He said
that local gangs were regular gangs when the work was there, because their mem-
bers had been working at the pier continually, knew how to handle the ammunition,
and it was good practice for the Company to keep them on hand as a regular gang.
When Wreiole was hatch boss of a local gang which worked at the pier, he was
,a member of 1588. While Wreiole said that there was no such thing as a steady gang
at the pier, he then admitted that the hatch bosses were steady men who were
regularly employed, and that they normally brought the same gang with them with
a few changes for absentees. He also said that in the gang which he headed he
had a nucleus of- regular men, and that it received orders from its union to work
at the pier.
Wreiole admitted that the hatch boss of the clam-diggers gang who preceded
Tomani was Maffeo, and that Maffeo and his gang, which was made up of the same
11 employees and other members as Tomani's gang, had orders to report for work
at the pier. Wreiole said that only regular gangs received orders to report for
work,, and that men who shaped at the gate never had orders to work, thus clearly
establishing that the clam-diggers gang was one of the regular gangs which shared
the work. Wreiole admitted that he appointed Tomani hatch boss of the clam-
diggers gang on a day when Maffeo failed to show up, and that the gang, which
was made up of the same discriminatees and its other members, had orders to report
for work that day. It is apparent from the record that Wreiole's distinction between
regular gangs and local gangs was that the former were city men dispatched from their
respective local union halls to perform general cargo work at other piers when not
working at Leonardo, while the members of local gangs shaped for extra work at
Leonardo when their gang was not regularly employed there. Even though correct,
this does not alter the fact that the several local gangs regularly received orders
from their respective locals to report for work as a gang at Leonardo and shared
in the rotation. The record establishes, that over the years two local gangs re-
ceived orders to report for work from 1588 and one local gang received orders for
work from 1247. Wreiole himself headed one of the 1588 local gangs for a time.
They were also headed by Hatch Bosses Loori and Padzunas. The record reveals the
various hatch bosses preceding Maffeo and Tomani who headed the clam-diggers
gang, one of the 1247 gangs. It was undisputed that there was no ILA local at or in
the vicinity of Leonardo, and that all of the alleged discriminatees were members
of the ILA.
John Bushn, president of 1247 during 1953, corroborated the fact that 1247 fur-
nished 2 gangs regularly at Leonardo after the 3 furnished by 1588, and said that
1247 rotated its share of the work among its 5 ammunition gangs. Bushn contra-
dicted Wreiole's testimony that the Company contacted each of the various locals for
gangs, and said that 1247 was contacted by 1588 when gangs were to be dispatched
from 1247. Presumably 1588 was contacted by the Company and advised that a cer-
tain number of gangs were needed, and in turn contacted the other locals. Bustin
said that after receiving such notice, 1247 notified the hatch bosses whose gangs' turn
it was to receive the work, and that 1247 had nothing to do with the individual mem-
bers of any gangs, which was the province of the individual hatch bosses.
A preponderance of the credible evidence in the entire record convinces me, and I
find, that the clam-diggers gang, made up of the 11 alleged discriminatees and 10
other employees, was 1 of the regular gangs which shared the work at Leonardo under
the established rotation system, and received orders to report for work from 1247.
2. The hatch bosses and members of the clam-diggers gang
As previously set forth, the General Counsel conceded that the basic issue was
whether or not Respondents had discriminated against the 11 named employees as
members of a regular gang entitled to rotate the work, and not as individuals. The
General Counsel contended that all 11 of the alleged discriminatees were members
of the clam-diggers gang, along with 9 other members and a hatch boss. Largey
testified that the clam-diggers gang was originally known as McMahan's gang, who
was its first hatch boss and continued to be such for a short time after the pier re-
opened or work picked up sometime in 1950. According to Largey, the hatch bosses
who succeeded McMahan were Hahn, Loftus, Wilson, Cutone, Calandrillo, Maffeo,
and Tomani. Largey's testimony was substantially corroborated by Wilson, an-
other of the original members of the gang, who also testified that the first hatch boss
was McMahan, that there were several others, and that the last three prior to the
events discussed hereinafter were Calandrillo, Maffeo, and Tomani.
896 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It is undisputed that Tomani was appointed hatch boss of the clam-diggers gang by
Wreiole sometime during the month of August 1953. It is further undisputed that
Tomani succeeded Maffeo, who in turn had succeeded Calandrillo. Wilson said that
Maffeo was Calandriilo's nephew and took over the gang when Calandrillo left.
The record establishes. that the members of clam-diggers gang had no choice in the
selection of their hatch boss, who was appointed either by the Company or 1247.
Dolan testified that the first hatch boss was McMahan and that after the pier re-
opened in 1950, Dolan went back to work under McMahan in the same gang which
had the same nucleous of members from its beginning. Dolan also testified that he
knew Loori and his gang, one of the other local gangs, and that it was an old-time
gang whose members had been with Loori for many years. This further corroborates
the fact that the local gangs remained intact and participated in the rotation of work,
which could not have been the case if their members had shaped as extras each day
and taken their chances as fill-ins on the regular gangs. Dolan said that Loori's
gang might also have been called a clam-diggers gang because it was made up of local
residents, but that the McMahan gang was the original clam-diggers gang and had re-
mained with the same nucleus all through the years.
Wreiole at' one point said that he did not know how hatch bosses were appointed
and that he had nothing to do with it, but at another point admitted that he appointed
Padzunas as hatch boss to head another local gang, and that he had also appointed
Maffeo and Tomani as hatch bosses of'the clam-diggers gang. Wreiole testified that
he knew Calandrillo and admitted that he had been"the hatch boss of a local gang
known as the clam-diggers gang for 5 or 6 months. This was the same gang. Wreiole
also said that he knew a hatch boss named Cutone and that Wilson, Largey; and others
of the alleged discriminatees had worked in his gang. Cutone was the hatch boss of
the clam-diggers gang who preceded Calandrillo. Wreiole also admitted that Wil-
son, Largey, and others of the alleged discriminatees had worked in the gangs headed
by Calandrillo and Maffeo. ' His 'testimony corroborates the fact that the alleged
discriminatees were members of the clam-diggers gang for a number of years prior
to the incidents herein. One or two of the members of the clam-diggers gang had
been members for only 6 to 18 months prior to the incidents' herein, but the record es-
tablishes that all 11 of the alleged discriminatees were members of the clam-diggers
gang at the'time of the alleged incidents of discrimination.
Wilson named 15 members of the clam-diggers gang, including all of the 11 alleged
discriminatees. ' Wreiole testified_ 'that he knew employees Dolan, Largey, Wilson,
Tomani, Garron, Pero, Keneally, and Tracey. He subsequently testified that he did
not know employee Tracey, contradicting his previous testimony. He said that he
probably knew Stevenson but did not remember Thompson.' Wreiole said that all
of these employees shaped daily as extras and were never members of any regular
gang. Yet at another point he admitted that most of them had been members of the
Calandrillo, Maffeo, and Tomani gangs, which all were this same clam-diggers'gang
headed by different hatch bosses at different periods of time, and regularly rotating
the work with the other gangs.
3. The discriminatory refusal to employ the clam-diggers gang on
October 15, 1953
As previously found, the Company succeeded McGrath as the stevedore at
Leonardo on August 1, 1953. During the week ending August 18, Wreiole appointed
Tomani as hated boss 'to succeed Maffeo, because Maffeo failed to show up and the
clam-diggers gang was present with orders to work. Tomani testified that Wreiole
appointed him hatch boss around August 1. Wreiole testified that he appointed
Tomani hatch boss around the first of September. Respondent's Exhibit No. 1, a
record of some 30 employees who worked for the Company during the months
beginning August 1953 and ending March 1954, which does not purport to be a list of
all of the Company's employees 'during that time, although substantially all of the 11
alleged discriminatees are listed thereon, establishes that Tomani was appointed as
a hatch boss during the week ending August 18. A hatch boss received slightly
higher pay than the other members of the gang. During the week ending August 11,
Tomani received the same pay as the other members of the gang, whereas during
the week ending August ' 18, although he worked the same period of time, he received
a few dollars more than the other members of the gang.
During August 1953 an election campaign for officers and delegates of 1247 took
place. There was a certain amount of campaigning activity at the pier. The in-
cumbent 1247 delegate was Anthony Marchitto, and most of the members of the
clam-diggers gang, including all of the alleged discriminatees, supported Marchitto's
candidacy and wore campaign buttons favoring him. Some 4 or 5 of the clam-
IMPARATO STEVEDORING CORPORATION 897
diggers gang, headed by Joseph Smolka, supported Charles Jurgelski, who was
running against the incumbent Marchitto. These 4 or 5 members of the gang made
it clear that they were in favor of Jurgelski. Tomani, who was the hatch boss of
the gang during the campaign, testified that Smolka wore a Jurgelski button and that
Smolka warned him that heads would roll after the election. According to Tomani,
Smolka said that he and the other 4 or 5 members of the gang who supported Jurgel-
ski were going to organize a new gang and that Tomani and the remainder of the
gang who supported Marchitto would be through working at the pier. Smolka was
not called as a witness. On August 25; the election was held and Jurgelski won. At
the same election Bushn was elected president -of 1247. At that time the clam-
diggers gang and other regular gangs were working at the pier. Smolka continued
to work with the gang for 1 or 2 days and then dropped out. Largey said that he
heard that Tomani was out and that Smolka was going to take over the gang.
Nothing specific occurred for over a month.
During the first 2 weeks of October there was a lull at the pier, no ships were in,
and none of the employees worked. On October 15, ships were in and the gangs
returned to work. Tomani testified that when the clam-diggers gang was scheduled
to work, he normally received work orders around 4 p. m. the day before from
Wreiole. Tomani and other members of the gang testified that because of the rota-
tion system of work they knew that it was their gang's turn to work on October 15.
Accordingly Tomani, although he had not received orders from Wreiole to report
for work, notified the gang to report for work as usual. On the morning of October
15 the various gangs and extra men seeking work as replacements assembled at the
gate as usual. The practice was for Wreiole to blow a whistle to signal the em-
ployees to line up at the gate, and then call in the various gangs by hatch bosses,
whose names Wreiole knew and who had previously reported to him concerning any
absences in their respective gangs. Tomani and the other 14-odd members'of the
clam-diggers gang who had supported Marchitto were present at the gate. In addi-
tion, Smolka and the 4 or 5 other members of the clam-diggers gang who had
supported Jurgelski were present at the gate in a gang together with 15 or 16 new
men, whom the witnesses for the General Counsel said they had never seen at the
pier before. Many of these witnesses were employees who had worked at the pier
from the time it was opened.
Wreiole blew the whistle. As Smolka had predicted, it developed that he and the
other members of the gang who had supported Jurgelski had formed a new gang with
Smolka as the hatch boss, and instead of the clam-diggers gang headed by Tomani
it had orders to report for work from 1247. Tomani asked Wreiole why Smolka
was there with a new gang, and Wreiole replied that the new gang had the orders
to work. Tomani said that Smolka's gang had the orders for hatch No. 5. In
accordance with the rotation system among the 4 locals that would indicate that it
was the second gang sent by 1247, after the 3 gangs to which 1588 was entitled. An
argument developed between Smolka and Tomani, each telling the other that he was
not going to go in to work. At that point Wreiole entered the discussion and sug-
gested that to avoid any trouble they call their union hall and determine which gang
was entitled to work. Tomani testified that Smolka suggested that Wreiole call 1247.
Wreiole, Smolka, and Tomani went into an adjacent Navy guardhouse. According to
Tomani, after Smolka gave Wreiole the telephone number, Wreiole made the call
and both he and Smolka talked on the telephone. After the call Wreiole advised
Tomani that Smolka's gang had the orders to go in and that the Company would
subsequently straighten the matter out. It did not do so. Asa matter of fact, the
clam-diggers gang never again worked as a gang at Leonardo.
Wreiole, while evasive as to the telephone conversation with 1247, in substance
admitted the facts testified to by Tomani. Wreiole said that he recalled the election
campaign and the incident on October 15 when Smolka took over Tomani's job.
Wreiole admitted that he made a telephone call for them that morning. According
to Wreiole, he placed the call only to secure the use of the telephone for Smolka
and Tomani, because no one but officials of the Company could use the Navy's
telephone. Wreiole admitted that Smolka furnished the telephone number and
that it was a Jersey City number, but Wreiole said that he did not know if it was
1247. Wreiole also admitted that after he had blown the whistle a dispute arose
between Tomani and Smolka as to which gang was entitled to the work, and that
Wreiole suggested that they call 1247 to find out which gang was to get the work.
According to Wreiole, both Smolka and Tomani spoke on the telephone and Wreiole
did not know to whom they were speaking and did not speak on the phone. Wreiole
subsequently changed his testimony and said that after they talked on the telephone
they handed it to him and that he then said hello, but that he could not recall if any-
thing else was said. Wreiole admitted that he definitely understood after the conver-
898 DECISIONS OF NATIONAL LABOR RELATIONS' BOARD
sation ended that Tomani and the clam -diggers gang were out, and that Smolka's gang
had the orders from 1247 to report for work . It was not denied that Smolka 's 'gang
was made up of some 15 or 16 new men who had not previously worked at the pier,
in addition to the 4 or 5 former members of the clam -diggers gang.
Wreiole said that Tomani was angry, protested the decision giving the work to
Smolka 's gang, and that Wreiole advised him that he could come down and shape
for extra work but that Wreiole could not promise him anything . According to
Wreiole, although he was in complete charge of all hiring for the Company at the
pier , it was up to the ILA to boss the work, the hatch boss was solely their problem,
and whatever the ILA decided he went along with . Wreiole so testified in spite of his
testimony that he had appointed Tomani as the hatch boss of the clam -diggers gang.
As a result of the decision and instructions from 1247 , Smolka's gang went to work
and the clam -diggers gang never worked again at the pier . Dolan and Largey cor-
roborated Tomani 's testimony concerning the incidents of October 15. Largey said
that after it became apparent that Smolka was present with a gang and prepared to
take over the work, Tomani engaged in a discussion with Smolka and Wreiole about
it, and after Smolka suggested that they call 1247, the call was made by the three
of them . Of course Largey and the other members of the gang were not present
during the telephone conversation . Tomani returned from the discussion with
Smolka and Wreiole and advised the rest of the gang that they were out, and that
Smolka had orders from 1247 to take over.
. Later the same day Largey went to the offices of 1247 to see Bushn about this
matter . Largey asked Bushn why the members of the clam -diggers gang had been
deprived of their employment after they had worked at Leonardo for so many years.
According to Largey , Bushn told Largey that he knew the score , they had voted for
Marchitto , the gang ought to join 1588 , and 1247 did not want them . Largey then
left. Bushn testified about the incident at the pier on October 15, and apparently
confused it with subsequent incidents which happened during the first 3 days of
December and will be considered hereinafter . Bushn said that he was present at the
pier on October 15 and participated in the decision that Smolka should - take in his
gang instead of Tomani . None of the other witnesses , including those called by the
Company, identified Bushn as being present. According to all of the other witnesses,
the decision concerning Smolka's gang was made by 1247 over the telephone, and
no officials of the Union were present at the pier that day. Bushn 's testimony con-
cerning this incident , in view of all the other testimony in the record , is not credible.
Bushn said that he told the Bayonne delegate that Tomani was not right for the gang
and that Smolka should have the gang ; that they agreed and came to an understand-
ing and that that was that . At the same time he contended that the membership
of the gang was not changed , which is completely contrary to the actual facts. It
was otherwise undisputed that Smolka 's gang was not made up of the same members
as Tomani 's, and that both gangs were present on that occasion . Bushn testified that
he had nothing to do with the selection of a hatch boss which was a matter for the
members of the gang itself. However, his testimony that he, in consultation with
the Bayonne delegate, decided that Smolka was to replace Tomani , and that Smolka's
gang was to get the work instead of the clam -diggers gang , clearly revealed that the
15 or 16 members of the clam-diggers gang, including Tomani , had nothing to do
with that decision.
Bushn admitted that Largey came to see him at his office later that day and com-
plained about losing his work. According to Bushn , Largey said that Smolka would
not hire him because he had been a member of the opposition , and Bushn replied
that he didn 't know anything about that . However , in the subsequent discussion,
Largey admitted belonging to other locals of the ILA, including 1588 , and because
of that Bushn told him that he was all through and out as a member of 1247. Largey
impressed me as a reliable and credible witness and accordingly I credit his version
of the conversation with Bushn at the offices of 1247. Bushn admitted that he told
Largey that he was doing all right with his other work as a checker and carpenter
and that he could no longer work at the pier.
The complaint alleged that 1247 discriminatorily caused the Company to refuse
to, and the Company discriminatorily refused to , employ the 11 named employees.
However, all of the - parties stipulated that a hatch boss is a supervisor within the
meaning of the Act, and accordingly Tomani , who was the hatch boss of the clam-
diggers gang on October 15 seeking employment as such , was not entitled to the
protection of the Act and could not have been discriminated against in violation of
the Act at that time. However , in the later applications for employment as a gang
and the discrimination in connection therewith , which will be considered hereinafter,
Tomani reverted to his former status as an ordinary member of the gang, which was
IMPARATO -STEVEDORING CORPORATION - __ . 899
then applying for employment under a new and different hatch boss, and his status
then was the same as the other members of the gang who were seeking employment.
A preponderance of the credible evidence in the entire record convinces me, and I
find, that on October 15, 1953, the Company discriminatorily refused to employ the
10 named employees other than Tomani in violation of Section 8 (a) (3) of the Act,
thereby interfering with, restraining, and coercing its employees in violation of Sec-
tion 8 (a) (1) of the Act, and that 1247 caused the Company to so discriminate
against them, in violation of Section 8 (b) (1) (A) and (2) of the Act.
4. The discriminatory refusal to employ the clam-diggers gang on
December 1, 2, and 3, 1953
Sometime after the 15-odd members of the clam-diggers gang had been refused
employment because 1247 had substituted another gang under Smolka, they decided
to transfer to 1588 in order to try to get work as one of the regular gangs at Leonardo.
Wilson, Largey, and Tomani all testified that after the members of the clam-diggers
gang discovered that they were out because they had supported Marchitto in the
election and 1247 had decided to replace them with a new gang, they decided as a
group to join 1588 in order to get representation, and accordingly they did so.
Although the gang made several further attempts to get employment at Leonardo, it
was never hired. After joining 1588, that local appointed Avoglia, one of its mem,
bers, hatch boss of the gang. This gang was made up of the 15-odd members of the
clam-diggers gang including Tomani, and 5 or 6 other members of 1588, including
Avoglia as hatch boss. Sometime during the latter part of November this gang
worked 1 day for the Company at another of its installations in Bayonne.
On December 1, 1953, Avoglia and the clam-diggers gang received orders through
1588 to report for work at Leonardo as 1 of the 3 gangs to which 1588 was entitled
under the rotation system. At that time, of course, it was a 1588 gang and not a
1247 gang. Avoglia, because he was not as familiar with the names and telephone
numbers of the members of the clam-diggers gang as its old-time members, asked
Wilson to notify them that they had orders to report for work as a gang at Leonardo
on December 1. Wilson did so and the gang reported at the pier on the morning of
December 1. Wreiole blew the whistle and called the various gangs in the usual
manner. In accordance with the practice, the first three gangs called were from
1588. This particular gang under Avoglia was the third gang called. The first two
1588 gangs entered through the gate without incident. However, when Avoglia's
gang was called by Wreiole, a large group of members of 1247, including Bushn and
Maschucci who were at that time secretary-treasurer and president of 1247 respec-
tively, formed in front of the gate and physically blocked and prevented Avoglia's
men from entering the gate and going to work.
Wreiole was present during this incident and made no attempt to interfere with the
activities of 1247. -Naturally a good deal of argument and bickering ensued. The
members of 1247 who were preventing this gang from working stated that the work 1}e-
longed to 1247 and not to 1588, and that they would not permit this gang to work:
The dispute continued and finally reached such proportions that the Navy, Com-
mander called out the Marines and dispersed all of the men including the first two
gangs , cleared the pier, and nobody worked. Largey asked Bushn what the trouble
was and why 1247 would not permit the gang to work. Bushn replied that Largey
knew the score, that the clam-diggers gang had voted for Marchitto, and that they
were out. This was in substance the same information Bushn had conveyed to Largey
at the offices of 1247 after the October 15 incident. Wilson corroborated this con-
versation between Largey and Bushn. Bushn admitted that he was present, did not
specifically deny this conversation with Largey, and admitted that he had a discussion
with Largey that day.
On the following morning the gang under Avoglia still had orders from 1588 to
report for work and accordingly did so. The same thing happened again . According
to the witnesses for the General Counsel, a large number of 1247 members came down
to the pier in extra buses, in addition to those buses used by the regular gangs dis-
patched from the cities to work at the pier, and as soon as Wreiole blew the whistle
and called in the gangs, the first two gangs entered and then the members of 1247
formed a blockade at the gate and refused to permit the Avoglia gang to enter. The
same argument and dispute ensued and again the Marines were called out and the pier
was cleared. According to Wilson, both Bushn and Maschucci,were again present,
and this was not denied.
On December 3, the gang again reported for work in the same manner,'but after
arriving at the gate they discovered that Avoglia was not present. Wilson testified
that he asked Wreiole where Avoglia was and that Wreiole told him that "they"
900 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
had had a meeting the night before which had lasted until 3 a. m. and that "they"
had decided that Avoglia was out as a hatch boss. Wreiole did not say who "they"
were. Wilson then asked Wreiole if their gang was to be thrown but of work.
Wreiole replied that he would see what could be done about it. Nothing was done
about it and the gang was not permitted to work. The same blocking and barring of
the gate occurred on December 3, as it had on the previous 2 days; with the members
of 1247 still protesting that the work belonged to it and that this gang would not be
permitted to work. Wilson said that after this day Avoglia disappeared from the pic-
ture and Wilson was never able to contact him again. The gang made no further
attempts to report for work at the pier as a regular gang with orders. Wilson testified
that he later made other attempts to talk to Wreiole about employing the gang, but
that Wreiole refused to speak to him. Wreiole admitted that Wilson attempted to
contact him and that he refused to talk to Wilson. Wilson testified that on each of the
3 days Wreiole was present and tried to pacify the men, but never made any attempt
to get the members of 1247 to stop blocking and preventing the entrance of the
Avoglia gang. Largey corroborated the fact that Wreiole was present dui•iiig each
of the blocking incidents in December.
Wreiole'§ testimony concerning the incident's of the first 3 days of December was
both evasive and contradictb -y. He adnitted that a dispute tdbkplace and the block-
ing of the employees at the gate . Accofding to him, he could not recall who did
the blocking because he was inside the building. However, his subse4uent testimony
revealed that he was present at the gate, and it is apparent that since he blew the
whistle and "summoned the respective gangs he nitist have lieeri present. He admitted
that he blew the whistle. He also admitted that Busliri was there. At one point he
testified that he did not know who Maschucci Was, but subsequeiitly he testified that
while he could not recall it Maschucci might have been there. Wreiole said that he
could not recall if anyone said that the work belonged to 1247 and that that was
the cause of the dispute. According to Wreiole, the dispute was a protest by the
members of Avoglia's gang that their former hatch boss had been demoted and
Avoglia had been appointed to take his place. In view. of the fact that "some 15
or 16 members of this gang were members of the clam-diggers gang and anxious to
secure work under 1588 because they had' been ejected from 1247, Wreiole's testi-
mony that it was their gang which was protesting going to work is incredible. In this
connection , Wreiole testified that different members of the Avoglia gang told him
at the gate that they resented the demotioh of their' former hatch boss and conse-
quently were refusing to work, after he had 'previously testified that he was inside the
building and not present during the commotion.
If Wreiole's testimony were correct, then the Avoglia gang was blocking itself from
going to work, because Wreiole admitted the blocking and argument at the, gate;
Wreiole also admitted that the same thing happened on December 2. He said that
he could'not recall the conversation with Wilson on December 3 when Wilson asked
him where Avoglia was nor his reply that "they" had decided that Avoglia' g gang was
out. Wreiole said that he did attend a meeting about that time iii his boss' office, be-
cause he was compelled to do so, but that he could not recall whether it was about this
incident or what if anything it was about. Wreiole also could not recall wheilier
Avoglia had orders to report for work, even though it wag undisputed that Wreiole
called the gangs and that the Avoglia gang wags called on those occasions. The record
establishes that only gangs with orders from,one of the respective locals Were called
by the hiring boss at the gate.
Bushn also attempted to ascribe the trouble on the first 3 days of December to the
demotion and replacement of the gang's former hatch boss by 1588. Bushn admitted
that he was present, and said that he wags because he had. heard rumor's that there
would be trouble at the pier. He also admitted that Avoglia''§ gang was the third gang
called in and a 1588 gang. According to him, the members of that gang were ob-
jecting to working because of the demotion of their former hatch boss. For the same
reasons applicable to Wreiole's testimony, it is incredible that the. Avoglia gang was
preventing itself from working. Inasmuch as 1588 was entitled to the first three
gangs under the rotation system, and this was the third gang dispatched by 1588 with
orders to work, it is difficult to ascribe to 1247's contention that the work belonged
to it any other motivation than its determination that this gang would not be per-
mitted to work at the pier, as demonstrated by its action on October 15. Even though
the clam-diggers gang had been accepted by 1588 and assigned to work as one of its
regular gangs under a 1588 hatch boss, apparently 1247 would not permit it to work
under the auspices of 1588 as well as under 1247. As previously found, Bushn in
his testimony confused the incidents of the first 3 days of December with the incident
of October 15 concerning the Tomani and Smolka gangs, and was not even present
at the pier at the time of the October 15 incident.
IMPARATO STEVEDORING CORPORATION 901
A preponderance of the credible evidence in the entire record convinces me, and
I find, that the Company discriminatorily refused to employ the 11 named employees
on December 1, 2, and 3, 1953, in violation of Section 8 (a) (3) and (1) of the Act,
and that 1247 caused the Company to so discriminate; in violation of Section 8 (b)
(1) (A) and (2) of the Act.
5. The discriminatory refusal to employ the clam-digger's gang after December'
3, 1953, because they were members df the IBL
After the i§ or 16 members of the clam-diggers gang had been refused employ-
ment as a 1588 gang on December 3 for the third successive time, some of them
spoke to John Imparato, secretary-treasurer of the Company, at the pier the same
day. They complained to him that 1247 was preventing them from working and
causing the Company to refuse to employ them, and asked him to correct the situa-
tion . Wreiole was present during this conversation and remarked to Imparato that
this was a good gang. Wilson asked Imparato what was going to happen to all of
them after all of the years that they had worked at the pier. According to the
employees, Imparato advised them that he would straighten the matter out. Imparato
testified that he told them to see their union delegate, and if they were not satisfied
to have him see Imparato. Nothing resulted from this conversation. Later the
same day, the 15 or 16 members of the clam-diggers gang decided, because they
could not get employment at the pier as a gang under the auspices of either 1247
or 1588,in view of what had happened on October 15 and December 1, 2, and 3,
to join the IBL in an attempt to get representation and secure employment as a gang
at the pier. Accordingly, all of them went to the offices of the IBL and joined it.
On or about January 26, 1954, the discriminatees and a Mr. Denobili, the busi-
ness agent or delegate of the IBL, met with Imparato in his office at the Company.
Denobili advised Imparato that the members of the gang now belonged to the IBL
and asked him to employ them at the pier, in view of their tenure of service there
as a gang. According to Wilson, Imparato replied that Denobili was putting.him
on the spot and because there had been so much trouble about the gang the Com-
pany might lose its contract with the Navy. Wilson then told Imparato that they
realized the spot he was on, and asked him if.he couldn't explain to the ILA officials
that all of the employees would be out of work if they,kept up this trouble. Imparato
replied that he would like to help but. that the only. thing he could suggest was
that the gang be broken up and the men be hired from the shapeup as extra fill-ins on
the other gangs. However, after suggesting this; Imparato then said that that would
not do because the Company's insurance rate was one of the lowest in the New
York area. It is undisputed that Denobili Advised Imparato that the members of
the gang were then members of the IBL.
Largey's testimony concerning the, conversation with Imparato was substantially
the same. He corroborated the fact that Denobili requested Imparato to reinstate the
gang because of its many years of seniority. According to Largey, Imparato replied
that employing the gang would put him on the spot and the "other fellows" would
become angry. Largey corroborated Imparato's suggestion of employing the men
individually as extras and his retraction thereof because of his conclusion that it
would not work. Imparato admitted that the gang and Denobili visited him at his
office during January and told him that they had joined the IBL and were seeking work
at the pier as a gang. , Imparato also admitted that he refused to employ them as
a gang and testified that he told them that he could not see the advisability or
desirability of putting on a new or additional gang at the pier. Imparato said that
he suggested that they work as individuals. He admitted that the employees in
the office, including Tomini; were the same men who had talked to him at the
pier on December 3 concerning their being refused employment and prevented from
working on the first 3 days of December.
Imparato said that he did not know whether these men had been members of
a regular gang at the pier. Imparato admitted that Denobili asked him if the gang
was being refused employment because it belonged to the IBL. Imparato said that
he could not recall replying that the request put him on the spot, and only recalled
advising them that he would hire them as individuals but would not hire them as a
gang . Imparato denied that there was any discussion about his losing the contract
with the Navy. Other than the reference to the possible loss of the Navy contract;
there is no substantial dispute as to what occurred at the meeting in the office of the
Company.
Wilson testified that after December 1, the date when the Bi-State Waterfront
Commission came into effect, because of the distance of Leonardo from the head-
quarters of the locals involved, the commission authorized Wreiole to prevalidate
902, DECISIONS OF NATIONAL LABOR RELATIONS BOARD
longshoremen hired at the pier, and permitted a continuation of the shapeup there,
instead of the new practice adopted by the commission of having all longshoremen!
registered and validated at the commission's offices and dispatched to work from
there. It was undisputed that Wreiole was given this power and continued to hire
the gangs and extra men at Leonardo every day. Wilson said that the attempts of
the gangs to secure employment at the pier were useless, because Wreiole would not
even speak to him. Wretole admitted that after December 1 Wilson upon occasion
tried to speak to him but that he refused to do so. According to Wreiole, he knew
that Wilson was "some sort " of an organizer for the AFL and therefore Wreiole
would not talk to him. It is undisputed that the gang was never hired at the pier
again and that it made continued attempts from time to time to secure employment
there.
About a week after the meeting in the office of the Company, the clam-diggers
gang and Denobili met with Imparato and Wreiole at the pier of the Company.
Wilson asked Imparato if it was a fact that he would not hire the gang because it
now belonged to the IBL. According to Wilson, Imparato replied that hiring them
would put him on the spot with the ILA. Wilson then turned to the rest of the
gang and announced that they could see that they were not working because they
belonged to the IBL. At that point Imparato threw up his hands and left the scene.
Largey in substance corroborated this testimony. Imparato testified that he had no
conversation with the gang between the first conversation at the pier on or about
December 3, and the conversation in his office on or about January 26, but did not'
deny the third conversation at the pier after the meeting in his office. There was
no testimony concerning any conversation between Imparato and the gang occurring
between the first conversation at the pier and the meeting in the office. The
testimony concerning the third conversation was that it occurred about a week after
the meeting in the office.
It has been found that after the campaign and election of August 25, 1247 took
steps to replace the clam-diggers gang because it supported the wrong candidate in
the election and caused the Company to refuse to employ the gang because it was
not dispatched by 1247 and was replaced by a new gang. After the incident on
October 15, 1247 continued to prevent the employment of this gang. After the gang
joined 1588 and received orders to report for work as one of its regular gangs
entitled to work under the rotation system, 1247 physically prevented the gang from
working, caused the Company not to hire them , and refused to permit this gang to
work at the pier. After the three attempts to work at the pier in December the clam-
diggers gang joined the IBL because they had been prevented from working first
as members of 1247 and subsequently as members of 1588. Their attempts to
obtain employment as a gang under the auspices of the IBL met with no greater
success. It is clear that the Company, because of 1247's action on October, 1-5, and
December 1, 2, and 3, was aware that it would be useless to attempt to emgl"aylthe
gang as members of the IBL. Imparato conveyed this reason to the gang on several
occasions.
A preponderance of the credible evidence in the entire record convinces me and
I find that on or about January 26, 1954, and at various times thereafter, the
Company discriminatorily refused to hire the 11 named employees in violation of
Section 8 (a) (3) of the Act, thereby interfering with, restraining, and coercing its
employees in violation of Section 8 (a) (1) of the Act, and that 1247 caused the
Company to do so, in violation of Section 8 (b) (1) (A) and (2) of the Act.
IV. THE REMEDY
Having found that Respondents have engaged in certain unfair labor practices, I
shall recommend that they cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act. It has been found that 1247
caused the Company to, and the Company did, discriminate in regard to the hire
and tenure of employment of the 11 named employees. I shall therefore recommend
that the Company immediately offer to each of them employment as members of a
regular gang, to be made up of the 11 named employees and such 10 other employees,
including a hatch boss, as the Company shall select on a nondiscriminatory basis,
with the right to share equally in the work as one of the same number of regular
gangs under the , rotation system in effect at Leonardo prior to the discrimination.'
1 To obviate any possible confusion , the above recommendation is intended to restore,
the discriminatees to their status quo prior to the discrimination as members of one of
the regular gangs entitled to share equally and rotate the work with no change, in the
number of gangs entitled to share the work in rotation.
IMPARATO STEVEDORING CORPORATION 903
I shall further recommend that the Company restore to the 11 named employees all
rights and privileges, if any, that they enjoyed prior to the discrimination, and that
1247 notify the 11 named employees and the Company in writing that it has no
objection to, but on the contrary now requests their employment in such manner
by the Company.
I shall further recommend that Respondents jointly and severally make the 11
named employees whole for any loss of pay they may have suffered by reason of
the discrimination against them by payment to each of them of a sum of money
equal to the amount each of them, except Tomani, would normally have earned as
wages from October 15, 1953, and in the case of Tomani from December 1, 1953,
to, in the case of the Company, the date of its offer of employment, and in the case,
of-1247, 5 days after it gives the Company and the 11 named employees written
notice that it has no objection to their employment by the Company as part of a
regular gang in the manner aforesaid, less their net earnings during such period.
The back pay shall be computed in the manner established by the Board, and the
Company upon request shall make available to the Board payroll and other records
to facilitate the checking of the amount. due.2
Upon the basis of the foregoing findings of fact, and upon the entire record of
the case, I make the following:
CONCLUSIONS OF LAW
1. The activities of Respondents set forth in section III, above, occurring in con-
nection with the operations of the Company described in section I, above, have a
close, intimate, and substantial relation to trade, traffic, and commerce among the
several-States, and tend to lead to labor disputes burdening and obstructing commerce
and the free flow thereof.
2. The IBL and 1247 are labor organizations within the meaning of Section 2 (5)
of the Act.
3. By discriminating in regard to the hire and tenure of employment of the I1-
named employees, thereby encouraging membership in 1247 and discouraging mem-
bership in the IBL, the Company has engaged in and is engaging in unfair labor
practices within the meaning of Section 8 (a) (1) and (3) of the Act.
4. By causing the Company to discriminate against employees in violation of
Section 8 (a) (3) of the Act, 1247 has engaged in and is engaging in unfair labor
practices within the meaning of Section 8 (b) (1) (A) and (2) of the Act.
[Recommendations omitted from publication.]
P P. W. Woolworth Company, 90 NLRB 289.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor Re-
lations Board, and in order to effectuate the policies of the National Labor Relations
Act, as amended, we hereby notify our employees that:
WE WILL NOT encourage membership in Local 1247, International Longshore-
men's Association, Independent, or any other labor organization of our em-
ployees, or discourage membership in International Brotherhood of Longshore-
men, AFL, or any other labor organization of our employees, by discriminating
in regard to their hire and tenure of employment or any term or condition of
employment, except to the extent permitted by Section 8 (a) (3) of the Act.
WE WILL NOT in any other manner interfere with, restrain, or coerce our
employees in the exercise of the rights guaranteed in Section 7 of the Act, ex-
cept to the extent that such rights may be affected by agreement requiring
membership in a labor organization as a condition of employment as authorized
in Section 8 (a) (3) of the Act. -
WE WILL immediately offer to the employees named below employment as
members of a regular gang, to be made up of such employees and, such 10 other
employees, including a hatch boss, as we may select on a nondiscriminatory
basis, with the right to share equally in the work as one of the same number of
regular gangs under the rotation system in effect at Leonardo prior to October
15, 1953, without prejudice to all their other rights and privileges, if any, pre-
879288-56-vol. 113-58
904 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
viously enjoyed, and make each of them whole for any loss of pay he may have
suffered as a result of the discrimination.
Thomas Dolan Julius Tothani
John Wilsoh Allen Tracey
Nicholas Garron Walter Gerleit
Fred Thompson Tim Keneally
James Stevenson Al Pero
Thomas Largey
All our employees are free to become, remain, or refrain from becoining or re-
maining, members in good standing of the above-named Unions or any other labor
organization; except to the extent that such right may be affected by an agreement
in conformity with Section $ (a) (3) of the Act.
IMPARATO STEVEDORING 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 B
NOTICE TO ALL MEMBERS OF LOCAL 1247, INTERNATIONAL LOIVGSHOREMEN'S
ASSOCIATION, INDEPENDENT
Pursuant to the recommendations of a Trial Examiner of the National tabor Rela-
tions 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 Imparato Stevedoring Corporation,
its officers, agents, successors, or assigns, to refuse to employ or otherwise dis-
criminate against its employees in violation of Section 8 (a) (3) of the Act.
'WE WILL NOT in any other manner restrain or coerce employees in the exercise
of the rights- guaranteed in Section 7 of the Act, except to the extent that siich
rights may be affected by an agreement requiring membership in a labor organ=
zation as a condition of employment, as authorized in Section 8 (a) (3) of the
Act.
WE WILL immediately notify the employees named below and Imparato Steve-
doring Corporation, in writing, that we do not object to, but on the contrary now
request, their employment as members of a regular gang, to be made up of the
employees named below and such 10 other employees, including a hatch boss,
as the above-named Company may select, with the right to share equally in
the work as one of the -same number of regular gangs under the rotation, system
in effect at Leonardo prior to October 15, 1953.
WE WILL make the employees named below whole for any loss of earnings
they may have suffered because of the discrimination against then!.
Thomas Dolan
John Wilson
Nicholas Garroh
Fred ThoinpsoiI
James Stevenson
Thomas Largey
Julius Tomani
Allen Tracey
Walter Gerleit
Tim Keneally
Al Pero.
LocAL 1247, INTERNATIONAL LONGSHOREMEN'S
ASSOCIATION, INDEPENDENT,
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. -